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HiOlTED r3Y 



JAMES KIRBY, Q.C., D.C.L., LL.D. 



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TABLE OF CASES 

REPORTED, NOTED AND DIGESTED 



IN VOL. XVI. 



Page 

Adams et al. v. Boucher 57 

Archambault v. Corporation de 

St. Francois d' Assize de la 

Longue Pointe 190 

Archibald v. McLaren 50 

Archibald v. Reg 135 

Arp V. The State 197, 229 

Ashdown v. Lavigne 153 

Atkinson v. Couture 107 

Atlantic A North- West R. Co. 

ATurcotte 247 

Attorney-General of Canada v. 

City of Toronto 129 

Attorney-General of Ontario v. 

Vaughan Road Co 98 

Aubert-Gallion v. Roy 47 

Aug6 & Cornellier . , 184 

Auger & Labont^ 121 

"Aurora," The 29 

Bagg V. Duchesneau 156 

Bain V. Monteith 154 

Baltimore & Ohio R. Co. v. 

Baugh 182 

Ban que de St Hyacinthe v. 

Sarrasln 86 

Banque Nationale v. Aubertin. 174 
Banque Nationale v. Ricard .. 112 
Banque Nationale v. Trudel . . 161 

Baptist & Baptist 83 

Bastien v. Kennedy 267 

Bastien v. Labrie 359 

Baxter V. Sterling 248 

Beauchene & Couillard 306 

Beaudry v. Starnes 153 

Beaulien v. Levesque 123 

Beanlieu v. Phillips 303 

Belair v. La Viile de Maison- 

neuve 360,376 

Belair v. S^n^cal 125 

Bernard v.C6t6 88 

Benoit v. Desnoyers 157 

Bernard V. Valine 108 

Bigras v. Cit4 de Montreal; .... 125 



Page 

Booth v.Ratt^ 103 

Bousquet v. Duquette 268 

Boisvert v. Aug6 126 

Bourbonnais v. Filiatrault — 248 
Bowyer v. Percy Supper Club. 198 

Brennan v. Winkler 2 

Brewster v. Campbell 249 

Brown v. Leclerc 200 

BrAce^- Sailing Ship Co. v. Lon- 
abn Assurance Association... 96 

Bruch^i v. Desjardins 194 

Brunelle <& B6gin 84 

Brunet v. Berthiaume 174 

BruDet V. La Compagnie d'lm- 
primerie et de Publication du 

Canada 305 

Bulmer v. Reg 25 

Bury V. Murphy 278 

Cadieux v. Rawlinson 143 

Campbell v. Patterson 116 

Canada Atlantic Railway Co. 

& Norris 185 

Canadian Bank of Commerce 

& Stevenson 55 

Canadian Pacific R. Co. v. Cob- 
ban Manufacturing Co 314 

Canadian Pacific R. C^. v. Flem- 
ing 130 

Garbonneau v. Valine 144 

Carlill V. Carbolic Smoke Ball 

Co 165 

Caron v. Houle 91 

Carter v. Grant 267 

Carter v. Hamilton 345 

Casgrain, Proc Gen., V. Pacaud 112 
Cedar Shingle Co. <& La Com- 
pagnie d'Assurance, etc., de 

Kimonski 307 

Central Vermont R. Co, & La 
Compagnie d' Assurance Mu- 

tuelle, etc 327 

Chabot y. Quebec Steamsh p 
Co 190,206 



, r-r ^ - 



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IV 



TABL£ OF CASES. 



Page 

Champoux v. Paradis 175 

Cbaput V. Chaput 305 

Chapnt V. at^ de Montreal ... 194 
Chauss^ V. Christin dit St 

Amour 265 

Ghristin & Lacoste S3, 151 

City of London v. Watt 315 

City of Toronto v. Gillespie. . . 202 

Clarke v. McClellan 212 

Clarke v. SUte 178 

College de M^dedns et Chirnr- 

giena & Pavlides 53 

(*ompagnie d' Assurance Mutu- 

elle, etc., & Cedar Shingle Ca SA 
Compagnie de Navigation R. 

&0.& Triganne 53 

Compagnie de Pr^t et Credit 

Foncier v. Normand 160 

Compagnie de Pnlpe dee Lau- 

rentides & Clement 204 

Compagnie du Chemin de fer 
de Montreal et Ottawa & Bei^ 

trand 171 

CompagDie dn Chemin de fer 
de Montreal et Ottawa & ( 'as- 

tonguay 171 

Compagnie da Grand Tronc & 

Huard 106 

Cook & La Banque de Quebec 153 

Corbett V. Smith 201 

Corporation de St. George de 

Henry ville <& Lafond 151 

Corporation de St Henri v. 

Gagnon 1 72 

Corporation de St. Mathias A 

Lussier 185 

Corporation of Frelighsburg v. 

Davidson 158 

Corporation of City of Quebec 

V. Reg 27 

Corporation of the Villuge of 
New Hamburg v. County of 

Waterloo 315 

Costigan v. Pennsylvania Ry. 

Co 63 

County Court Judges of Brit- 
ish Columbia, i2« 49 

Cowen V. Evans 309, 310 

Cross V. Bullis 126 

CioBS V. Canadian Pacific K. Co 158 

Cullen V. Bryson 107 

Cumming v. Landed Bank & 

Loan Co 284 

Cure et Marguiiliers, etc., v. 

Mooarque 191 

Cushing V. Fortin 89 

" Cnitch," The Ship 347 

" Cynthia" V. "Polynesian"... 253 



Page 

Dancy V. Grand Trunk B. Co. 29 
Darling v. City of Montreal. . . 374 

Davies v. McMillan 202 

Davignon v. Lesage 189 

De Angelis v. Masson 87 

DeMartigny v. Laviolette. . . . 292 

Desmarteau v. Daignault Ill 

Desmarteau v. Reed 266 

Desrosiers v. Meilleur 173 

DolanA Baker . 52 

Dorion v. Dorion 145 

Draper v. Badenhurst 101 

Drouin v. Lefran9oiB 92 

Dub6v. Gu^ret 141 

Dub6v.i2eo 28 

Dufaux V. Morris. 249 

Dufresne v. Prefontaine 48 

Duguay & Vincent 172 

Dumoulin V. Burfoot 283 

Dwyer v. Port Arthur 285 

Eberbart V. State 320 

Edison General Electric Co- v. 

Barsalou 92 

Edmonds v. Tiernan 

Eican V. Thomson 166 

EWisY. Reg 134 

Emard v. Marcille ; 268 

Etna Life Insurance Co. & Gau- 
cher & Gosselin 159 

Evans V. Wiggins 153 

Fairchild v. Ferguson 51 

Falconer v. Paterson 188 

Fee & Peatman 122 

Filial rault, Ex parte 7 

Fogarty V. Fogarty 279 

Foley V. at^ de Montr^l 1 57 

Follit V. The Eddy stone Gran- 
ite Quarries 31 

Forget & Ostigny 294 

Eraser v. Eraser 110, 170 

Eraser v. Magor 90 

Freygang v. Daveluy 265 

Fyfe V. Bourdeau 2tt4 

Gagnon, Ex parte 187 

Gagnon & Valentine 87 

Garon v. Anglo-Canadian As- 
bestos Co 290 

Gautbier v. Corporation de Ste. 

Marthe 177 

Gendron v. Labranche 216 

Gerhardt V. Davis 193 

Gilligan v. Cit4 de Montreal . . 174 

Gingue v. Giroux 147 

Goldie & Rasconi 56 

Gosselin v. Pr^ontaine 156 



TABLE OF 0AHE8. 



Page 

Grand Trank Railway Co. v. 

Coanty of Halton 118 

Grant v. Nortbero Pacific R. 

Co. 31 

Great Eastern By. v. Lambe . . 4 

Greenhill v. Chauncey 195 

Groulx V. Wilson 91 

Gnarantee Co. of N. A. & Har- 
bour Commissioners of Mont- 
real 119 

Cruay V. Durand 291 

Gu6rin V. Craig 109 

Haines V. Baxter 266 

Halifax Street Ky. Co. v. Joyce. 286 

Hallv. i?«sf 348 

Hamilton v. Perry 188 

Harris v. Robinson 5 

Hart V.Tudor. 267 

Harte. In re, <& Ontario Express 

& TransporUtion Co 30 

Hooper & Dugas 110 

Houffh & Cowan 83 

Hould & Tonsignant 120 

Howland v. Dominion Bank . . 281 

Hudon V. Provost 146 

Huet dit Dulude v. Laporte dit 

Denis 88 

Hnson v. South Norwich 118 

Internationa] Coal Co. v. 
County of Cape Breton 316 

Jodoin v. La Banque d'Hoche- 

laga 142 

•loseph V. Leblanc 194 

Jntean V. Magor. 177 

Kay & Gibeanlt 53 

King V. Corporation de la Par- 
tie Nord du Township d'lr- 
lande 204 

Labrador Co. v. The Queen 67 

Laidlaw v. Sage 358 

l>alonde v. Daoust 288 

Lalonde v. Garand 154 

I amarche v. La Cit4 de Mont- 
real 156 

Lambe v. Beauchamp 155 

liAmb&rU Ex parte 187 

Lambert v. J^ri viere 268 

Lamirande v. Cartier 87 

Lancaster v. Doran 148 

Langelier v. Casgrain 206, 216 

Lapierre v Rodier 106 

Lapierre v. St Jacques 142 

Larue & Kinghom 204 



Page 

Lanthier v. Thouin Ill 

Lavigne v. Dame 264 

Lawlor v. Law lor 267 

LeBel v. B^langer 141 

Jj&bltLnc Y, Reg 187 

Leclaire V. C6t6 289 

Leclaire v. Gagn<^ 59 

Leet V. Crothers 148 

Lefebvre & Marsan dit La- 
pierre 55 

Lefebvre v. Goyette 124 

Ldfeuntun v. Veronneau 312 

Legault V. Legault 90 

Lemieux, Ex parte 161 

Lemienx v. Compagnie du Che- 
min de Fer Quebec et Lac 

St Jean 289 

Letoumeau v. Blouin 176 

Levesque v. Plourde 147 

Liquidators of the Maritime 
Bank of Canada v. Receiver- 
Greneral of New Brunswick.. 32 

Little&Fatt 142 

Loftus V. Harris 220 

Loignon v. La Banque Na- 

tionale 157 

Loranger v. Filiatrault 160 

Lorlie V. Uauda 160 

Lovell & Leavitt 151 

Lylev. State 3 

McBean & Marler 54 

McCIana^han v. Gauthier — 359 

McCuaig V. Cbenier 305 

McGu ire V. Grant 146 

McLaren & Laperriere 55 

McLaughlin V. Paul 109 

McLea v. Holman • • . • 58 

McGregor v. Canada Invest- 
ment & Agency Co 46 

McHugh V. Walker Ill 

McMillan V. Valois 115 

McNamara v. Gautbier.123, 1 75, 304 

McWilliam & Osier 108 

Mace v. Cleveland 359 

Macdonald v. Ferdais 277 

Macdonald v. "The National 

Review" 180 

Mackav v. Evans 191 

Mackill V. Morgan 90 

Mader v. McKinnon 116 

Mageev.iS^o 136 

Maguire v. Baile 205 

Manitoba Free Press Co. v. 

Martin 97 

Marmen v. Royer 161 

Mar(;|uis v. Gaudreau 265 

Martin v. Martin 292 



VI 



TABLE OF OASES. 



Page 

Martindale v. Powere 200 

Martineau v. Foumier 288 

Masfi^ V. Lain^ 140 

Mattev.Ratt6 177,290 

Meloche & Brunette 292 

^ercier v. Mercier 192 

Midland Ry. Co. v. Younj? ... 284 

Miller V. Plummer 280 

Mills V. Corporation of Cote St 

Antoine 146 

Mills et al. V. Limoges 311 

Milloy V. Grand 'J runk R Co. 217 

Mitchell V. Bradstreet Co 181 

Mitchell & Trenholme 189 

Mitchell V. Trenholme 310 

MitchesoB v. Burnett 146 

Molleur & Ville de St Jean ... 120 
Molsons Bank v. Charlebois . . 144 
Montreal, City of & Dumaine. 86 
Montreal, City of & Thompson. 144 
Montreal, City of v. Perodeau. 155 
Montreal Loan & Mortgage Co. 

V. Pilodeau 160 

Montreal Watch Caee Ca & 

Bonneau 54 

Moore v. Jackson 28'2 

Moore v. Johnston 126 

Mousseau v. Raeburn 148 

Mullin V. Bojjie 173 

Murphy v. Williams 91 

Neillv. Proulx 58 

Newman & Kennedy 188 

Nixon V. Grand Trunk R. Co.. 59 

Noel V. White 159 

Nova Scotia Central Ry. Co. v. 

Halifax Banking Co 98 

Nunensynski v. Pilnik 191 

O'Connor v. Nova Scotia Tele- 
phone Co 286 

O'Connor v. Scan Ian 304 

Ouellet v. City of London Fire 

Insurance Co 88 

Ouellette & Corporation de La- 
chine ; 139 

Ouimet <& Benoit 54 

Ouimet v. Meunier dit Lapierre 265 

Pacaud v. Banque du Peuple.. 176 

Paquette & De^no} ers 248 

Parent v. Cite de Montreal... . 177 

Pearson & Spooner 170 

Pelletier v. Pacaud 124 

Perodeau v. Jackson 56 

Peters v. City of St John 131 

Phillips v. Kerr 188 

Picard & Picard et al 106 



Page 

Pinsonneault v. Hood 193 

Piatt V. Drysdale 144 

Polette V. Brown 248 

Prairie v. Vineberg 266 

Prince <& Stevenson 152 

Quebec Bank v. Bryant . . .206, 287 
Quebec Central Ry. Co. v. 

Lortie 312 

Quebec, City of & Godin 105 

Quebec Skating Club v. Reg. . . 344 
Quenneville v. St Aubin.. .110, 266 

Quintal v. Roberge 195 

Quirk v. New Rockland Slate 

Co 166 

Ratt6 V. Noel 57 

Rayner v. Answers 223 

Reed v. Helbronner 174 

Reeves & Cameron 186 

iJey. V. Clarke 117 

Reg, V. I )emers 138 

Reg, Y, FsiTVfeW 134 

Reg, ex rel. Denis v. Beaudry . . 124 

12^^. V. GoBsage 178 

Reg, V. Gyngall 179 

Reg, V. Labelle 187 

Reg, V. Labrador Co 67 

Reg, V. Mercier & Pacaud ..... 9 

Reg, V. Mercier 85 

12e^. V. Thompson 219 

Reg.y,To\tLnd 30 

Reid & McFarlane 34, 151 

Ritchie V. Valine 206 

Riverin V. Lessard 109 

Robertson & Quebec Central 

Railway Co 205 

Roch V. Thouin 306, 325 

Rocheleau & La Charity 85 

Ross V. Ross et al 92, 122, 307 

Koy V. Cantin 154 

Roy V. Great North- Western 

Telegraph Co 112 

Roy V. La Cit4 de Montreal. . . 155 
Roval Canadian Insurance Co. 

& Roberge 162 

Rozetsky v. Beullac 216 

Samoisette & Brassard 3, 86 

Samson v. Lemelin 108 

« Santanderino," The 346 

Schiller V. Schiller 89 

Schullze V. Thorold Felt Goods 

Co 88 

Scroggie & Watson 139 

Seguin v. Ciiy «f Quebec. .143, 176 
S^D^al V. Edison Electric Co.. 108 
Sentenne & Cit^ de Montreal.. 185 



TABLE OF CASES. 



VII 



Fage 

Shepherd ▼. White 352 

Simpson & Caledonian Insur- 
ance Co 171 

3mith& Davis 122 

St. Amour v. St Amour 147 

Ste. Marie v. Smart 148 

Stephens v. Grordon 201 

Stevens Y. Uiggins 192 

Stevenson v. Canadian Bank 

of Commerce 113 

Stewart V. Atkinson 313 

Stewart V. Wright 228 

Stout V.King 190 

Sylvainv. Labh^ 249 

Syndics des Chemins A Bar- 
ridree & Burroughs 107 

TaUmv. Reeve 93 

Taylor v. Guerin 145 

Thibaudeau v. Pauz6 173 

Thivierge v. Moineau 173 

Thompson v. White 161 

Timmerman v. City of St John 132 
Toupin V. Montreal Harbour 

Commissioners 358 

Town of fresoott v. Connell ... 319 

Trudel & Parent 373 

Truteau V. Fahey 194 

Turcotte es QQal. vs. Auser. . . 57 
TumbuU V. Travellers' Insur- 
ance Co 86 



Page 

Vall^ V. Pr6fonUine 48 

Vaudreuil Election Case 115 

Varin v. Guerin 187 

Vendette v. Bolduc dit Gei^ 

main 189 

y eronneau v. Veronneau 304 

Vezina v. Tousignant 192 

Ward V. Royal Canadian In- 
surance Co 123 

Warkv. Perron 193 

Warner v. Watson 296 

Waterous Engine Works Ca & 

Collin 105 

WaterouH Engine Works Co. v. 

Town of Palmerston . . • . • • . 99 

Webster v. Foley 102 

Weightman v- Louisville, etc, 

R.Co 16(> 

White v. Cit6 de Montreal .... 157 

White & Langelier 83 

Whitley v. Pinkerton 145 

Willettv. Viens 264 

Williams v. Irvine 199 

Wisner v. Coulthard 281 

Wolmerhausen v. Gullick .... 340 
Wood & Atlantic & N. W. Ry. 

Co 293 

York V.Canada Atlantic Steam- 
ship Co 318 

Valade v. Cousineau 268 * Zimmer v. Grand Trunk R. Co. 30 



THE 



LEGAL NEWS 



VOL. XVL JANUARY 2 & 16, 1893. No. 1 & 2. 

CURRENT TOPICS AND CASES. 

The authority of the legislature being invoked in On- 
tario, to compel the Law Society to admit women to the 
practice of the profession, the question was disposed of 
by giving the Law Society power to admit. This, of 
course, was not imperative, as was held recently by our 
own Court of Appeal in the case of College of Physicians and 
Surgeons Sf Pavlides, with reference to holders of foreign 
medical diplomas. But on the 27th of December the 
Benchers of the Law Society, by the close vote of 12 to 
11, resolved to admit women to practice as solicitors. 
Doubts have been expressed whether this vote represents 
the real sentiment of the profession, and it is urged that 
such an important change should not be made without 
the endorsation of the whole Bar. It is probable that the 
Benchers were influenced to a considerable extent by the 
action of the legislature, and that some of those who 
voted for the resolution are not very enthusiastic sup- 
porters of the innovation. 



Several inquiries having been received with reference 
to the Reports published by the Quebec Bar, a few words 
of explanation may be desirable. The facts, as we gather 
them, are that the Greneral Council, having but a limited 
sum at their disposal for the publication of the reports, 
entrusted the printing to a printer whose tender was the 



2 THE LEGAL NEWS. 

lowest, but whose establishment was imperfectly equip- 
ped for the execution of a considerable work. Vexatious 
delays in the issue of the monthly parts as well as many 
imperfections in the typography of the work have resulted. 
As the contract was only for the year 1892, the (J^neral 
Council did not consider it expedient to renew it, and 
the work of printing and issuing the reports for 1893 has 
been transferred to the Gazette Printing Company, which 
has printed the 14 volumes of the Montreal Law Eeports, 
15 volumes of the Legal News, besides many other legal 
publications, and possesses facilities for despatch which 
cannot be obtained in a small printing office. The ques- 
tion of the arrears for 1892, at the time of writing, is caus- 
ing some difficulty, but will soon be settled. Some 
changes in the reporting staff take effect from the begin- 
ning of the new year. Mr. Justice Mathieu retires, Mr. 
Kirby has been appointed chief editor, and Mr. P. B. 
Mignault has been appointed to the vacancy at Montreal 
occasioned by Mr. Justice Mathieu's retirement. The 
Reports for 1893 will begin with the January decisions, 
and some little time must necessarily elapse before there 
will be enough matter for the issue of the first numbers, 
'but it is expected that as soon as the arrears of 1892 can 
be overtaken the issues will keep pace with the deci- 
sions. 



The Supreme Court of South Carolina, in Brennan v. 
Winkler, Nov. 3, 1892, held that a trust ** for the education 
of young men for the priesthood, or to educate individual 
orphan boys or orphan girls,'* is void for uncertainty, and 
that parol testimony to show that testatrix prepared her 
own will, that she had been reared as a Catholic, and by 
the use of the word ** priesthood " probably meant that 
of the Catholic Church, was properly excluded. "The 
rule," the Court observed, "certainly is that the intention 
of a testator must be disclosed by the will itself, with 
possibly two exceptions : In the cases of a latent ambi- 
guity, and of explaining the particular language used in 



THE LEGAL NEWS. 3 

the instrament. We are unable to see that either of these 
exceptions are ai)plicable here. We can conceive of no 
parol testimony admissible in this case, unless it may 
possibly be such as is allowed by the rule which permits 
extrinsic parol evidence * as to the circumstances of the 
testatrix and her family and affairs, for the purpose of 
enabling the Court to identify the person or thing in- 
tended by the testatrix;' that is to say, to enable the 
judge to put himself, as near as possible, in the place and 
situation of the testatrix when she wrote her will." 



-4 — _ 



In Samoisette Sc Brassard, the Court of Appeal, Montreal, 
Dec. 23, 1892, held that the civil courts have no jurisdic- 
tion to interfere with the canonical or civil erection of par- 
ishes. The canonical erection is a matter solely within 
the jurisdiction of the ecclesiastical authority, and the 
civil erection is within the jurisdiction of the provincial 
government. Mr. Justice Hall differed from the majority 
of the Court. 



In Lyfe V. StatCy the Court of Appeals of Texas. June 25, 
1892, held that a statute which enacted that intoxication 
shall not constitute any excuse for crime, nor mitigate 
the degree or penalty thereof, does not mean that it may 
not be considered on an indictment for perjury, for the 
purpose of showing whether defendant's condition was 
such at the time of the perjury as to indicate the wil- 
fulness and deliberation necessary to the crime. 



The late Montagu Williams, Q.O., was a well-known 
character in London. He was first a schoolmaster, then 
a soldier, then an actor and writer of farces, and finally 
was called to the bar at the age of 28. His strong point 
was the defence of prisoners. While in extensive practice 
he was compelled to desist from work by a painful throat 
trouble which necessitated the removal of half the larynx, 
a dangerous operation which, however, saved his life and 



4 THE LEGAL NEWS. 

restored his health, but rendered the continued exercise 
of his profession impracticable. The Grovernment con- 
siderately appointed him a police magistrate, a position 
in which he continued to be actively usefal. A curious 
circumstance recorded by him in his " Later Leaves," with 
reference to the Whitechapel murders, will be found in 
14 Legal News, 1*76. 



The new revised edition of English Statutes contains in 
five volumes all the enactments to the beginning of the 
present reign which were formerly comprised in *77 vol- 
umes. It is estimated that the work will be brought 
down to the present time in twenty volumes. All pre- 
ambles are omitted which do not affect the construction 
of the Acts, or which are not of historical value. 



SUPREME COUET OP CANADA. 

Ottawa. October, 1892. 
Quebec] 

Great Eastern Eailwat v. Lambi. 

Opposition afin de charge — Pledge — Art. 419, C. O. — Agreement — 
Effect of— Arts. 1977, 2015 <& 2094, C. G. 

The respondeDt obtained against the Montreal & Sorel Eailway 
Company, a judgment for the sam of $675 and costs, and having 
caused a writ of venditioni exponas to issue against the railway 
property of the Montreal & Sorel railway, the appellants who 
were in possession and working the railway, claimed under a 
certain agreement in writing to be entitled to retain possession 
of the railway property pledged to them, for the disburaements 
they had made on it, and filed an opposition afin de charge for the 
sum of $35,000 in the hands of the sheriff. The respondent con- 
tested the opposition. The agreement relied on by the appel- 
lant company whh entered into between the Montreal & Sorel 
Bailway and the appellant company, and stated, amongst other 
thingH, that "the Montreal & Sorel Eailway company was bur- 
thoned with debts and had neither money nor credit to place the 
the road in running order, etc." The amount claimed for dis- 
bursements, etc., was over $35,000. The Superior Court, whose 



THE LEGAL NEWS. 5 

judgment was afRrmed by the Court of Queen's Bench for Lower 
Canada, dismissed the opposition afin de charge. On appeal to 
the Supreme Court the respondent moved to quash the appeal on 
the ground that the amount of the original judgment was the 
only matter in 'Controveray and was insufficient in amount to 
give jurisdiction to the Court. The Court without deciding the 
question of jurisdiction, heard the appeal on the merits, and it 
was 

Heldy 1st, that such an agreement must be deemed in law to 
have been made with intent to defraud, and was void as to the 
anterior creditors of the Montreal & Sorel Eailway Company. 

2nd, that as the alleged deed of pledge affected immovable 
property, and had not been registered, it was void against the 
anterior oreditora of the Montreal & Sorel Bailway Company. 
Alts. lOTT, 2015 & 2094, C. C. 

3rd, that art. 419, C. C, does not give to a pledgee of an im- 
movable who has not registered his deed a right of retention as 
against the pledger's execution creditors, for the payment of his 
disbui-sements on the property pledged, but the pledgee's remedy 
is by an opposition afin de canserver to be paid out of the proceeds 
of the judicial sale. Art. 19'72, C. C. 

Appeal dismissed with costs. 

Lanergan for appellant. 

Choquette for respondent. 



Ottawa, Oct. 10, 1892. 
Ontario.] 

HaBBIS v. BOBINBON. 

Contract — Specific performance — Time — Eoctension — Waiver — 

Rescission. 

H. made an offer to E. for exchange of properties on specified 
terms, the matter to be closed within ten days if possible. B. 
accepted the offer. He had not at the time the title to the pro- 
perty he proposed to transfer, but had an agreement for the sale 
of it with one S. who had a similar agreement with the holder of 
the title. Several interviews took place between the parties and 
their solicitor both before and after the ten days elapsed, and 
the registry office was visited where it was found that the con- 
tract which formed the title of S. was not registered, and also 
that there was an annuity charged against the lands which E. 
was to transfer. These matters were pointed out to S. who 



6 THE LEGAL NEWS. 

tcok no active steps to remove them. Finally a letter was sent 
by H. to B.'8 solicitor, infoinning him that unless somethirg was 
done in regard to the proposed exchange by the following morning 
the agreement would be considered null and void. After this 
letter was written E, took proceedings to enforce his agreement 
with S. and obtained a decree declaring his title to the property 
he proposed to transfer to H. a valid title, and he then brought 
a suit against H. for specific performance of the agreement for 
exchange. This suit was tried before Armour, C.J., who dis- 
missed the action, holding that time was of the essence of the 
contract. His judgment was reveraed by the Divisional Court, 
and on further appeal to the Court of Appeal the judges were 
equally divided in opinion and the decision of the Divisional 
Court stood. 

Heldy reversing the decision of the Court of Appeal (19 Ont. 
App. R 134), and of the Divisional Court (21 O. E. 43), Tasche- 
reau, J., dissenting, that the action could not be maintained ; 
that as the evidence established that E. had no title whatever at 
the date of the agi-eement to the land he proposed to transfer to 
H., the latter was not bound to give reasonable notice of inten- 
tion to rescind, as he would have been if the title had been im 
perfect merely ; that the letter to E.'s solicitor, put an end to 
the contract ; and independently of any rescission the conduct of 
E. was such as to disentitle him to relief by way of specific per- 
formance. 

Held^ further, affirming in this respect the judgment of the 
Courts below, that time was originally of the essence of the con- 
tract, but H. had waived the necessity to adhere to the time 
specified by negociating as to the title after it had expired. 

Appeal allowed with costs. 

Beeve, Q.C., for the appellant. 

Hodgins <Sc Coatstoorth for the respondent. 



Ottawa, Oct 19, 1892. 
British Columbia.] 

Edmonds v. Tiebnan. 

Mechanic's lien — Suspension — Waiver — Taking promissory note 

for amount, 

T. was building a house under contract and £. supplied him 
with material, taking a promissory note for $1,100, the amount 



THE LEGAL NEWS. 7 

of his accouDt. The note was discounted but dishonoured at 
maturity, and E. took it up and filed a mechanic's lien against 
the property which T. had been building. Prior to this the 
owner had paid T. $500, and afterwai*ds, but when was not cer- 
tain, he paid $600 more. In an action by E. to enforce his lien : 

Held, affirming the judgment of the Supreme Court of British 
Columbia^ that E. had waived his lien by taking the note which 
suspended the lien during its currency, and there being nothing 
in the Lien Act to show that, being once abandoned, it could be 
revived again ; that even assuming that only part of the amount 
had been paid to T. before the lien was filed, it would be abso- 
lutely gone. 

Appeal dismissed with costs. 

Cassidy for the appellant. 

Chrysler, Q.C., for the respondents. 



SUPERIOR COURT. 

Montreal, Oct. 31, 1891. 

Coram Sir R G. Johnson, C.J. 

Ex parte Filiatrault, petitioner for certiorari ; DeMontignt, 
Recorder, and Thb City op Montreal, respondent. 

Sale of liquor to minor — E. S. Q. 921 — Conviction. 

Held: — Under E. S. Q. 921, a conviction which merely alleges an 
illegal selling of liquor to a minor, without stating that the 
sale was made to a minor the seller knowing him to be a minor, 
is bad. 

Johnson, C.J. : — 

The writ in this case was granted by my brother Wui'tele, 
and the return shows a conviction by the Recoi*der for illegally 
selling to a minor. The question is whether under Art. 921 of the 
Revised Statutes which deals with persons licensed to sell spirit- 
uous liquors, and was subsequently amended by the 54 Yic, c. 
18, a conviction is sufficient which merely alleges an illegal 
selling to a minor. The Art. 921 said that intoxicating liquors 
shall not be sold to drunken persons, or to minors, or, after eight 
o'clock at night, to soldiers, sailoi*s, apprentices or servants, 
known as such by the master of the house. The punctuation 
perhaps left it literally unexpressed whether the knowledge of 
minority was within the intention of the law ; but if the matter 



8 THE LEGAL NEWS. 

merely stood there, I don't think it would be doubtftd whether, 
by law a man could be held to commit an offence by an act of 
which he had no knowledge. The power of legislation given to 
the provinces would surely not extend to the creation of a new 
species of offence unknown to !E!nglish criminal law. But I am 
satisfied that the provincial law had no intention of creating an 
offence without knowledge. The amending Art., sec. 23, added 
the following to Ai*t. 921, viz. : '^Intoxicating liquors shall not 
*' at any time be knowingly sold to a minor in a club licensed 
" under Art. SST." Knowledge, — The mens rea, is of the essence 
of every offence, and the meaning of Art. 921, even without the 
word ' knowingly ' subsequently used in the amendment, must be 
held to include knowledge. Nor can any reason be suggested 
why knowledge of minority should be required by those who sell 
in clubs, and not by those who sell elsewhere. This, then, being 
my view of the law, it is hardly necessary to add that the con- 
viction should not have been merely for illegally selling to a 
minor ; but for illegally selling to a minor knowing him to be 
so. The cases are well known and were cited at the bar where 
the general words of a statute are not a sufficient description 
of an offence in a conviction. In R, v. CJiapmanj Ch, J. Eyder 
laid it down as law, founded on the 3d Inst. 41, that although the 
words of a statute by which an offence is described are general 
(as in Art. 921), yet the description of the offence in an indict- 
ment, (and it would seem even more especially in a conviction), 
must be particulai*. A roost revolting injustice would result 
from an opposite view of the law. I must interpret the will of 
the legislature to have been just and reasonable and not to inflict 
an intolerable wrong on a class of persons whose trade is licensed 
by the state. The conviction is therefore quashed. At the same 
time, however, while the law requires a legal statement of an 
offence on the recoixi to give jurisdiction to the Secorder, it is to 
be observed that the amending Act, sec. 16, requires licensees to 
use precautions to prevent illegal drinking, and though the point 
is not stnctly before me as to what would constitute evidence of 
knowledge of minority, if it was alleged. I feel constrained to 
call the attention of those who are more immediately concerned 
to the tremendous responsibility they incur by selling intoxicants 
to the young. The exercise of common sense and judgment 
is required by the law from licensees, and when persons whose 
youthful appearance ought alone to arouse suspicion pi*esent 
themselves, society has at least a right to expect the precaution 



THE LBQAL NBWS. 9 

which the law enjoins, in view of the enormous evils arising from 
abuse of the liquor traffic, particularly in such cases. 

The judgment reads as follows : 

''The Court having heard the parties by their respective 
counsel, as well upon the petitioner's motion to quash the convic- 
tion rendered in this cause on the 26th March last (1891), by 
B. A. T. DeMontigny, Esq., Recorder of the City of Mor;treal, as 
upon the motion of 'the respondent, the City of Montreal, to quash 
the writ of certiorari issued in this cause, examined the proceed- 
ings and deliberated ; 

'' Considering that the alleged conviction contains no sufficient 
statement of a legal offence so as to give jurisdiction to the 
Recorder ; 

'' Doth quash the said conviction with costs/' 

Ouimet dh Emard for petitioner. 

Boy dh Ethier for respondent. 



THE LAW OF CONST IMAGY— BEGIN A v. MEBCIER 

AND PACAUD. 

Several points of importance arose on the trial, at Quebec, of 
the charge of conspiracy against Messi*6. H. Mercier and E. 
Pacaud, and were noticed in the charge of the presiding judge, 
Wurtele, J., before leaving the case to the jury. The following 
is a repoi*t of the charge, revised and approved by the learned 
judge :— 

Messieurs les Juris, — Nous sommes maintenant i*endus k la 
phase de ce long et important proc^ oii il ne nous reste plus que 
deux choses k faire. 

II me reste, k moi, de vous expliquer la loi se rapportant k Tac- 
cusation port^e centre les defendeurs et de vous rappeler la 
preuve qui a ^t^ faite, et k vous d'dtudier en conscience et au 
meilleur de vos capacit^s cette preuve; et, quand vous Taurez 
examinee, de rendre le verdict que votre conscience vous dictera. 

On a dit, pendant le cours des d^bats, que ce proems ^tait un 
proofs politique. II se pent que la cause pr^sente des aspects 
politiques ; la cause pent avoir, sous certains rapports, un aspect 
politique, mais la cause en elle-m§me n'est pas une cause poli- 
tique. Nous ne sommes pas appel^s k juger ici les actes poli- 
tiques des defendeurs, mais k decider si I'accusation qui est port^e 
centre eux, sous la loi criminelle du pays, est vraie ou non. 



10 THE LKGAL NEWS. 

Qaant k Thonorable M. Mercier, notre mission n'est pas de 
nous enqu^nr et de declarer s'il a bien ou s'il a mal ad ministry 
les aifaires de la province. Cela, c'est Taffaire de la legislature 
et de reiectorat. Notre mission ici est judiciaire ; c'est k nous k 
decider si oui ou non, en accomplissant un acte minist^riel, il a 
commis, en dehors de ses fonctions minist^rielles, an acte indi- 
viduel qui enfreint la loi criminelle du pays. 

L'accusation port^e contre les deux ddfendeurs est celle connue, 
dans le droit criminel, sous 1e nom de conspiration. 

TTne conspiration est le concert ou TeDtente entre deux ou 
plusieurs person nes pour atteindre un but illegal, ou pour attein- 
dre un but l^gal par des moyens ilMgaux. C'est Tentente entre 
deux ou plusieurs personnes pour faire une chose ill^gale ou pour 
faire une chose qui, sans Stre ill^gale en elle-meme, sera pr^judi- 
ciable k une autre personne, k une classe de peraonnes ou au pu- 
blic en g^n^ral. 

Dans le proems qui nous occupe, nous aurons k decider s'il y a 
eu ou non conspiration pour i'un ou Tautre des buts qui sont men- 
tionn^s dans Tacte d'accusation. 

Avant d'aller plus loin, je me permets d'attirer voti*e attention 
sur r importance des fonctions que vous etes appel^s k remplir en 
ce moment. Yous occupez, sous un certain rapport, une position 
analogue a celle quo j'occupe, et dans eette position nous devons 
faire notre devoir sans consideration pour les personnes, sans 
egai*d k la voix des passions politiques. Nous devons rendre jus- 
tice, faire notre devoir honn^tement, au meilleur de notre con- 
naissance, sans nous laisser influencer soit par des pr^juges soit 
par des affections de parti. 

Qnand, il y a six ans, j'ai pr§te serment comme juge de Sa 
Majeste. dans cette province, j*ai jui*e devant Dieu d'oublier toute 
passion politique, d'apporter aux affaires qui me seraient sou- 
mises toute mon intelligence et de repousser les dict^es de la par- 
tiality. Autant que la faiblesse humaine le permet, j'ai agi de la 
sorte ; et je demande 'X Dieu do m'aider afin que je puisse con- 
tinuer k agir de m§me. 

Quand vous &tes entrds Tautre jour dans la tribune du jui*y et 
que vous avez fait serment de juger entre la Gouronne et les d^- 
fendeura d'apr^s la preuve, vous avez prete en effet le m§me ser- 
ment que j'ai pr^te moi-m§me il y a six ans, et ce serment vous 
oblige d'apporter k cette cause toute votre intelligence, de decider 
d'aprds la preuve seulement et d'^carter compl^tement, d'un cdtf 
les pr^jug^s et de Tautre c6te les sympathies que vous pourriez 



THE LEGAL NEWS. 11 

avoir comme membre de Pun on de Taatre des partis politiqnes 
du pays. 

Je ne voas connais pas ; je ne vous ai jamais van avant que 
vons ayiez form^ le corpn des petits jur^, mais je crois, d'aprds 
votre physionomie et d'aprds Tattention que vous avez apporte k 
ce long proems, que vous essaierez de faire ce que j'essaie toujours 
de faire, de juger sans partiality mais en m&me temps sans 
crainte. 

Bemarquez que nous aurons, vous et moi, k r^pondre plus tai*d 
de Tacte que nous accomplissons aujourd'hui. Et, si au lieu d'agir 
consciencieusement, si au lieu de decider d'apr^s les tdmoignages, 
nous nous permettons d'dcouter des sentiments soit d'inimiti^, 
soit d'affection, nous deviendrons parjures au serment que nous 
avons pr§t^. 

J'ai toute confiance que vous suivrez les dictdes de votre con- 
science, que vous ne vous laisserez influencer en aucune mani^re 
par Tesprit de parti qui pouiTait naturellement vous affecter en 
dehors de cette enceinte ; et que vous d^oiderez suivant la preuve 
et la loi. 

Les d^fendeurs sont accuses : 

1. — D'avoir, le 23 ftvi'ier 1891, ill^galement conspire et de 
s'§tre ligu^s pour obtenir et s'approprier ill^alement, au moyen 
de divers artifices et sous de faux pr^textes, la somme de $60,000 
des argents de Sa Majesty, c'est-a-dire, des argents du Gouverne- 
ment de la Province de Quebec, avec Tintention de frauder Sa 
Majesty ; 

2. — D*avoir, le m@me jour, ill^galement conspire et de s'^tre 
ligu^s pour obtenir et s'approprier, par les mSmes rooyens, la 
somme de $60,000 des argents d'une certaine banque appel^e la 
Gaisse d'Economie de Notre-Dame de Quebec, aveo Tintention de 
la frauder. 

G'est ma fonction de vous dire quelle est la loi qui s'applique ii 
cette accusation ; et vous 6tes obliges d'accepter T^nonc^ que je 
vous en ferai. 

Votre fonction, k vous, c'est de consid^rer la preuve et, apr^s 
Tavoir pes^e, de declarer si, d'apr^s cette preuve et la loi telle 
qu'elle vous sera expliqu^e, les defend eurs sont coupables ou non 
de Toffense dont ils sont accuses. 

Si, d'un c6t^, vous Stes obliges d'accepter Texpos^ 'que je vous 
donnerai de la loi, d'un autre c6t4, je suis oblige d'accepter la de- 
claration que vous me ferez, par votre verdict, de votre apprecia- 
tion de la preuve. 



12 THE LEGAL NEWS. 

Je dois voas expliquer la preave afin de voos aider, mais je ue 
doi8 pas VOU8 inflaencer et je ne veax pas non plus le faire. C'est 
k voos de decider, dans votre conscience, quelle est la port^e de 
la preuve qui a ^t^ faite, et de declarer si, d'apr^s cette preuve, 
les d^fendeui*s sont coupables ou non. Je ne dois pas intervenir 
sur ce point. S'il est de mon devoir de vous rappeler les faits et 
de vous aider a comprendre la preuve, 11 est aussi de mon devoir 
de vous en laisser enti^rement Tappr^ciation, et lorsque vous 
serez d*accord sur un verdict, — que ce soit un verdict de culpa- 
bility ou d'acquittement, — de Tenregistrer et de lui donner son 
effet. 

Maintenant, je vais vous retracer bri^vement la preuve qui a ^t^ 
faite devant nous. 

Yous savez qu'il se consomme dans les bureaux du Gouverne- 
ment une gi*ande quantity de papeterie, c'est-&-dire, le papier et 
les effets dout on se sert ordinairement dans les bureaux, tels 
que crayons, canifs et autres articles de cette nature. II se d^- 
pense aussi une grande quantity de papeterie dans les bureaux 
des Coura de Justice ^ Quebec et k Montreal, ainsi qu'une grande 
quantity de papier pour rimf)re8sion des rapports, des statnts et 
des documents dont le Gouvernement a besoin. 

Depuis longtemps, on votait tons les ans pour cbaque d^parte- 
ment une somme afifect^e k cette fin. Ce credit ^tait d^pens^ sous 
la direction duohefdu d^pai*tement ou du sous-chef. On s'ap- 
provisionnait de la papeterie dont on avait besoin pour le d^par- 
tement chez diff(^rents fotimisseurs, eton achetait en detail. Aussi 
est-il probable qu'on payait le prix, parce qu'il est g^n^ralement 
reconnu que Ton fait payer au gouvernement un peu plus cber 
qu'aux individus. 

Souvent on a discut^ Topportunit^ d'op^rer une r^forme, dans 
le but de r^uire la d^pense de la papeterie. 11 en a ^t^ question 
en 1887, au cours d'un d^bat dans ('Assemble Legislative. Dans 
ce d^bat M. Mei*cier aurait exprim^ Tintention qu'il avait de faire 
une r^forme dans le sens que je viens d*indiquer, et de fonder, 
pour cela, un bureau central d'oCi pourrait se faire Tapprovision- 
nement de la papeterie, non seulement pour les d^partements 
mais aussi pour toas les bureaux publics sous le contrdle du Gou- 
vernement en dehors de son hotel, tels que les Coui*s de Justice 
de Quebec et de Montreal et les bureaux du service ext^rieur. 

II paraitrait que Thon. M. Taillon, alors chef de I'opposition et 
qui avait ^t^ un des membres du Gouvernement qui avait pr6c4d4 
celui de Thon. M. Mercier, avait lui-m§me ^tudi^ ce sujet et que, 



THE LEGAL NEWS. 13 

lors da d^bat en question^ il aurait approuv^ le pi'ojet, et qu'il 
aurait dit qn'il esp^rait que le Gouvernement trouverait le moyen 
d*effectuer une r^forme dans ce sens. 

C'^tait, cela, en 1887. Peu aprds, M. Langlais a commence 
des tentatives pour avoir Tapprovisionnement de toute la pape- 
terie dont le Goavemement aurait besoin. II a fait des proposi- 
tions k cet efPet k M. Mercier. U I'a va a plnsiears reprises et il 
lui a expliqn^ les avantages que le Goavei*nement retirerait de 
Tadoption du projet ; mais n^anmoins la chose est reside en sus- 
pens. Cependant, en 1887 il avait fait preparer par M. Pelletier 
an projet de contrat lui donnant Tapprovisionnement du papier 
pour les bfitisses du Parlement, et il I'avait sign^, mais ce contrat 
n'a jamais ^t^ compl^t^ par le Gouvernement et il n'a jamais et^ 
mis k execution. N^anmoins M. Langlais a continue k fournir de 
la papeterie au Gouvernement; et cela en quantit^s assez conside- 
rables, vu qu*il dtait un des principaux fournisseurs. 

En 1891 une Election pour la Chambre des Communes a eu lieu 
dans le Canada. Les deux d^fendeura, hommes importants dans 
le monde politique, ont pris, comme c'^tait leur droit, une part 
trds active dans ia campagne ^lectorale ; et, pendant cette cam- 
pagne ^lectorale. avant le jour de la votation, M. Langlais, un 
bon jour, — dimanche, le 22 figvrier 1891, — se rendit chez M. Pa- 
caud pour lui demander son appui, afin d'obtenir le contrat pour 
Tapprovisionnement de la papeterie pour tons les bureaux publics. 

II s'^tait imaging que M. Pacaud avait beaucoup d'influence et 
que peut-etre, par son intercession aupres de M. Mercier. il pour- 
rait obtenir le contrat. II lui exposa les avantages que le Gou- 
vernement en retirerait et il demand a a M. Pacaud de s'int<$- 
resser pour lui et de demander (i M. Mercier de le lui donner. M. 
Pacaud lui dit qu'il verrait le Premier Ministre' et qu'il pensait 
qu'il lui donnerait le contrat. Puis il lui dit : " Bien, M. Lan- 
'^glais, si vous avez le contrat, souscrirez-vous quelque chose 
** pour les elections ? " 

M. Langlais alors lui rdpondit: ^*M. Pacaud, je ne veux pas 
" qu'il soit question de cela maintenant.'' Mais M. Langlais a 
6t6 interroge deux fois, une fois ici et une autre fois k renqu§te 
preiiminaire, et il se trouve une diif^rence entre les deux versions 
qu'il donne de ce qui se serait passe k ce moment. 

Lorsqu'il a 4U examine devant nous, on a demande k M. Lan- 
glais s'il n'avait pas ete question, au cours de cette entrevue avec 
M. Pacaud, d'un nomme Tourville, comme concurrent pour Tob- 
tention du contrat, et il a repondu qu'il ne s'en rappelait pas, 



14 THE LEGAL NEWS. 

tandis qu'& renqnSte pr^liminaire il a dit que M. Pacaud lai avait 
alors declare que M. Tourville berait dispot^^ k prendre le contrat 
et k souBcrire liberal ement, et que m^me il est possible que la 
somme de $50,000 ait ^^ mentioun^e. 

On a demand^ ici h M. Langlais s'il n'^tait pas vrai qu'il avait 
dit cela a Tenqu^te pr^liminaire, et il a r^pondu qu'il ue s'en sou- 
venait pas^ Ensuite, aprds que la ddposition qu'il avait donu^e k 
renquSte prdliminaire devant le magistrat Chauveau lui a 4i4 
lue, on a demand^ k M. Langlais si cette deposition contenait la 
v^rite, et il a i^pondu qu'elle avait ^t^ donn^e k une ^poque plus 
rapproch^e des fails, et que, naturellement, il devait avoir la 
m^moire plus fraiche k cette dpoque-1^, et il a ajout^ que ce qu'il 
avait jure devant le magistrat Chauveau etait la v^rite. 

Maintenant, prdcihons. II a jure que ce qu'il avait dit la pre- 
miere fois est la vdrite. La deuxi^me fois, 11 a dit qu'il ne se 
rappelle pas dans le moment certains faits. Yous aurez d. decider, 
apr^s avoir pese mtirement les deux depositions, si vous croyez 
que le nom de M. Toui*ville et la somme de $50,000 ont ete men- 
tiohnes, ou ne I'ont pas ete, loi*8 de I'entrevue entre M. Pacaud et 
M. Langlais le 22 fevrier. 

Dans cette enlrevue, M. Pacaud a dit qu'il vorrait M. Mercier 
et qu'il renconti*erait ensuite M. Langlais k Thdtel du gouverne- 
meut. II s'y rendit le lendcmain matin et Ik, en le rencontrant, 
M. Langlais lui demanda s'il avait vu le Premier Mini8ti*e. M. 
Pacaud repondit qu'il ne I'avait pas vu. On apprit alora que M. 
Mercier etait engage avec un monsieur de Montreal et qu'on ne 
pouvait pas le voir dans le moment. Apr^s s'6ti*e consultes en- 
semble, M. Pacaud dit k M. Langlais qu'il valait mieu^ ecrii*e au 
Premier Ministre. M. Langlais et M. Pacaud redig^rent alors 
une lettre et en pass^rent le brouillon ii M. Clement, le secretaire 
pai'ticulier du Premier Ministre, M. Mercier, qui la mit au net, 
puis la porta k ce dernier. 

Cette lettre n'a pas ete produite ; on ne I'a pas trouvee. II a 
ete suggere que jamais telle lettre n'a existe, mais M. Langlais, 
lui, jure positivement qu'il I'a ecrite, et son temoignage n'a pas 
ete contredit. 

Peu de temps apr^s, on a remis a M. Langlais la lettre suivante 
de M. Mercier : 

" J'ai I'honneur de vous informer qu'apres en avoir avise avec 
^^ mes collogues, je suis auto rise a vous dire que le Gouvernement 
•* a decide de vous accorder, pour I'espacc de quatre ans k compter 
'* du premier niai's prochain, I'approvisionnement de tout le papier 



THE LEGAL NEWS. 16 

*^ n^essaire ^ tous lea bnreanx pablics sons notre coDtrdle, et 
'* ordre va Stre donn^ incessamment, 4 cet effet, dans tons les 
*' bureaux publics, au palais l^gislatif, au bureau du protonotaire, 
*^ celui du sh^rif et de la cour de police k Quebec, et aux bureaux 
*'du protonotaire, du sherif, au bureau de police, des magistrats 
*' du district de Montreal. Ordre sera aussi donne aux r^gistra- 
'* teurs des diff^rents districts de la province, ainsi qu*aux im- 
^^primenrs du Gouvemement, d'acheter de vous, k Tavenir, le 
'* papier portant une marque sp^ciale. Yous serez pay^ pour ce 
" papier suivant le prix courant. 

''11 ne s'agit que du papier n^cessaire aux d^partements et 
'^ aux autres bureaux publics ci-dessus mentionn^s, et nullement 
'' de Timpression de tel papier, laquelle devra se faire oii le Gon- 
•* vernement le d^sirera.*' 

En recevant cette lettre, il se consul ta avec M. Pacand, et il 
lui dit : '' II me faudrait une avance pour ex^cuter mon contrat." 
lA^lessus M. Pacaud dit 4 M. Langlais : *' Ecrivez au Premier 
Ministre/' On a alors r^igd en collaboration une autre lettre, 
qui a 6t6 mise au net par M. Clement et que ce dernier a port^e 
au Premier Aiinistre. A cette lettre qui demandait une avance, 
M. Langlais rc9ut, peu aprc^n, la r^ponse suivante : 

** Je viens de recevoir votre lettre, en date de ce jour, me de- 
'' mandant de vous faciliter les moyens d'obtenir des banques les 
*' avances n^cessaires pour vous permettre Tex^cution de votre 
" contrat, comportant Tapprovisionnement de tout le papier n^- 
''cessair'e aux bureaux publics sous notre controle. Je n*ai an- 
** cune objection k me rendre k votre d^sir. Prenant en consid^- 
''ration Timportance de ce contrat, ainsi que la moyenne des 
" sommes payees pour cette fin dans le pass^, je puis vous dire 
" que le Gouvernement payera, 4 vous ou d. votre oi*dre, la somme 
"de $30,000 dans six mois de cette date, c'est-^dire, du ler mars 
"procbain." 

A la reception de cette lettre, M. Langlais d^olara k M. Pacaud 
qa*il ne trouvait pas Pavance de $30,000 suffisante. M. Pacaud 
lui r^ppndit : "Ecrivez de nouveau." 

lis r^dig^rent ensemble une seconde lettre, et M. Langlais re9ut 
dans quelques minutes la rdponse suivante : 

" Je viens de recevoir votre lettre par laquelle vous me dites 
".que vous trouvez insuffisante la pi*omesse d'un paiement de 
<' $30,000 dans six mois, en acompte sur le contrat, et vous me 
" demandcz de doubler le montant. 

" Je regrette d'avoir k vous dire que je ne puis me rendre a 



16 THB LEGAL NEWS. 

'< votre demande. Dans mon opinion, cette somme de $30,000 
'^ serait safELsante pour acqaitter ce que vous auriez fourni alors 
^' an Goavernement. Je n'ai pas d'objeotion, cependant, k voas 
" dire que le Gouvernement payera, k vous ou k voire ordre, une 
^* somme additionnelle de $30,000 dans un an k compter du ler 
" mars prochain." 

Apr^s avoir re9U cette derni^re lettre, MAi. Langlais et Pacaud 
partirent et se rendirent dans le bureau du secretaire particulier 
de I'hon. M. Garneau. L^ M. Langlais fit Tobservation k M. 
Pacaud qu*il n*aimerait pas rembourser cette somme de $60,000 
toute k la fois, mai8 qu*il d^sirerait qu'on ne retint que 20 p. c. 
Bur chaque livraison, c'est-i-dire, que sur chaque $100 qu'il four- 
nirait il d^sirait qu'il ne ffit d^uit que $20, jusqu'& ce que les 
$60,000 fnssent ainsi rem bounces au Gouvernement. Alors M. 
Pacaud lui dit: ^'Ecrivez ^ M. Mercier." M. Langlais ^crivit 
une autre lettre et demanda ti M. Pacaud d'aller la porter, et M. 
Pacaud y alia. 

Jusqu'^ ce moment, la preuve n'a r^v^l^ aucune trace d*une 
entrevue entre M. Pacaud et M. Mercier au sujet de Taffaire qui 
nous occupe. 

M. Pacaud revint quelques minutes aprds en disant qu'il avait 
vu le Premier Ministro, que c'^lait correct, et que les rembour- 
sements se feraient tel que propose par M. Langlais. 

MM. Langlais et Pacaud descendirent alors ensemble k la Oaisse 
d'Economie. On demanda le president, et on reyut la r^ponse 
qu'il etait^son diner ; alors iis se rendirent chez le Dr. Bobitaille. 
M. Pacaud n'entra pas, mais M. Langlais vit le president de la 
Caisse d*Economie, le Dr. Bobitaille, et il lai demanda s'il serait 
di8po6<S do lui escompter les deux promesses ou lettres do cr^it 
qu*il avait cues de M. Mercier. II montra au Dr. Bobitaille la 
lettre accordant le contrat et les deux lettren de credit. 

Le Dr. Bobitaille dit : ^' Nous avons de Targent en banque et 
*' nous cherchons des placements pour cet argent ; nous avons 
^' souvent n^goci^ des documents semblables k ceax que vous me 
'^ prdsentez et nous avons toujours ^t^ bien pay^s ; je crois qu'il 
^' n'y a pas de danger, et je vais vous accorder Tescompte que 
'^ vous me demandoz.'' 11 lui donna alors une petite lettre pour 
le secr^taire-tr^sorier de la Caisse d'Economie k cet eifet. MM. 
Langlais et Pacaud retonrn^rent k la Caisse d'Economie et la le 
secrdtaire-tr^soriery M. Marcoux, donna suite k la decision prise 
par le president d'accoi-der Tescompte demand^. M. Marcoux 
d^duisit sur les $60,000 I'int^r^t de six mois pour $30,000 et d'un 



THE LEGAL NEWS. 17 

an pour les aatres $30,000, et il remit a M. Langlais un ch^ae 
poor $56,772.33, ^tant le produit net de la transaction. 

De la MM. Langlais et Pacaud descendirent k la Basse-Yille. 
Ghemin faisant, M. Pacaud dit ^ M. Langlais : '^ Maintenant que 
'* vous avez votre argent, M. Langlais : combien allez-voua sous- 
" crire pour les Elections ? " ** Combien demandez-vous ? " r^- 
pondit M. Langlais. M. Pacaud lui dit : *' Yous savez que j'ai la 
main large ; il me faudrait $50,000." Sur le cbamp et sans hesi- 
tation M. Langlais r^pondit : " Vous les aurez." 

M. Langlais se diiigea vers la Banque Nationale, od le cheque 
de $56,772.33 ^tait payable, mais M. Pacaud lui dit qu'il valait 
mieuz aller ^ la Banque Union, quMls auraient Pargent \k comme 
k la Banque Nationale. 

lis entr^rent k la Banque Union et le payeur compta et paya 4 
M. Langlais, sur le comptoir, le montant de son cheque. M. Lan- 
glais prit Targent, se dirigea de Tautre cdt^ da bureau, oii il y 
avait une table, compta Targent, remit $50,000 ^ M. Pacaud et 
garda les $6,772.33 qui restaient. 

II n'y a pas de doute quant k cela ; les avocats de la defense 
mSmes admettent que M. Pacaud a re9u cette sorome de $50,000. 

M. Pacaud prit alorR pour lui-m^me $25,000 des $50,000 ; il mit 
$500 dans sa poche et d^posja $24,500 k son cr^it a la Banque 
Union, oCi il avait an compte. 

Ce mSme jonr-U une somme de $25,000 a ^t^ transmise k Mont- 
rtol, pour Stre plac^e aa cr^it do M. Mercier. 

Le payeur de la Banque Union, M. Laird, dit qu*il a une con- 
naissance personnelle que les $25,000 qui ont ^t^ transmises k 
Montreal provenaient des argents pay^s pour le cheque de $56,- 
772.33, que 9a formait partie de la somme remise k M. Langlais. 

L'argent a ^t^ transmis ; mais qui a donn^ I'ordre de Tenvoyer ? 

Le g^rant de la Banque Union dit qu'il ne se rappelle pas 
d'avoir eu des instructions de M. Pacaud de le tran^mettre. Le 
comptable de la banque dit qu'il a re9U Tordre du g^rant de trans- 
mettre Fargent en question sur les instruciions, lui a-t-il dit, de 
M. Pacaud, mais M. Pacaud n'^tait pas present lorsque le<comp- 
table a ve^u cet ordre du g^rant. N^anmoins le g^rant ajoute que 
si Targent a ^t^ transmis 9'a dCL n^cessairement Stre sur Toi^dre de 
M. Pacaud. 

Vous aurez k consid^rer si Targent qu'on a transmis au or^it 
de M. Mercier k Montreal provenait de la somme de $50,000 re- 
mise k M. Pacaud par M. Langlais. Qa ne pouvait pas avoir ^t^ 



18 THS LEGAL NEWS. 

envoys par M. Langlais, car M. Langlais n'avait gard^ que $6,- 
772.33, et avec cette Bomme il ne pouvait pas envoyer $25,000. 

M. Langlais jure qn'il a remis $50,000 entre les mains de M. 
Pacand, et d'ailleurs, il est admis qu'il les a regaes. M. Laird de- 
clare qn'il a une connaissance personnelle que les $25,000 trans- 
mises au crMit de M. Mercier k Montreal formaient partie de Tar- 
gent qa'il avait pay^ poar le cheque de $56,772.33. 

Vons aurez ^ tirer une cone^qucnce de ces faits, & dire si cet 
argent a ^t^ envoys au cr^it de M. Mercier ^ Montreal sans que 
personne ait donn^ des instructions ^ cet effet, on si les instruc- 
tions ont ^t^ donn^es par M. Pacaud. 

L'argent a ^t^ transmis a la Banque Union k Montreal, et le 
lendemain matin, le 24 f^vrier, cette barique a d^pos^ les $25,000 
k la banque Jacques-Cartier, au credit de M . Mei*cier. 

Le lendemain du ddpdt, le 25 f^vner, le fr^re de M. Mercier, 
M. Joseph A. Mercier, a retire le d^p6t de la banque Jacques- 
Cartier par deux cheques de $12,500 chacun ; pour cela il s*est 
servi de deux ch^ues sign^s en blanc pai* Thon. M. Mercier, que 
celui-ci lui avait laiss^s. 

II parattrait que depuis longtemps Joseph A. Mercier ^tait 
Tagent de son frdre, que c'^tait lui qui'faisait toutes ses affaires 
de banque, et qu'au lieu d'agir et de signer le nom de son frdre 
en vertu d'une procuration, Thon. M. Mercier lui laissait des che- 
ques sigD^s en blauc, et que dans Toccasion en question il s'est 
sefvi de deux de ces ch^ues. Joseph A. Mercier a rempli les 
deux ch^ues k son propre ordre, les a endoss^, puis les a d^ 
pos^ k son propre credit, Tun k la Banque du Peuple et Tautre 4 
la Banque Nationale k Montreal. Le m§me jour, il a tir^ sur 
cbacune de ces deux banques un ch^ue pour $12,500 et les a 
remis k M. Geoffrion, qui ^tait le tr^sorier du fonds Electoral du 
parti liberal k Montreal. 

Ces cheques n'ont pas ^t^ remis k M. Geoffrion pour des fins 
peraonnelles, mais pour des fins politiques, des fins ^lectorales. II 
a re9U cette somme de $25,000 en sa quality de trdsorier du fonds 
Electoral du parti liberal, et on ne sait pas comment Targent a 
6i6 employ^. 

Yoilk en peu de mots les faits. 

Dans une accusation de conspiration, la preuve de la conspira- 
tion pent se faire de deux mani^res. Elle pent se faire directe- 
ment ou elle pent se faire par deduction, c'est-drdire, en prouvant 
des faits ou des circonstances dont on pent tirer la conclusion 
qu'il a dCL y avoir conspiration. Dans le premier cas la preuve 



THE LEGAL NEWS. 19 

est une prenve direote et daos I'autre elle est nne preuve de cir- 
constanoes. 

Dans ce proems, il n'y a ancune preave directe de la conspira- 
tion dont les d^f endears sont acons^s. 

Et, en v^rit^, il est tr^s difELcile de faire une preave direote de 
conspiration. Une conspiration se trame ordinairement dans 
Tombre, et on ne peat en avoir la preave directe qae lorsqa'an 
tiei*s a en tend a les convei*8ations des conspiratears, oa qaand Tan 
des conspiratears se constitae t^moin de la coui*onne. 

La preuve d'une conspiration se fait cons^quemment d'ordi- 
naire par induction. 

Yous aurez maintenant k oonsid^rer les faits proav^ dans cette 
cause et aprds mClre deliberation de dire si oui ou non ces faits 
vous mdnent & la conclusion qu'une conspiration a exists entre 
les deux d^fendeurs pour obtenir Targent, soit du Grouvemement 
soit de la Caisse d' Economic, et de se Tapproprier. 

L*acte d 'accusation centre les d^fendeurs comporte, comme je 
vous Tai d^j^ dit, deux chefs. 

On porte souven); plusieurs chefs d'accusation pour la m§me 
offense, pour s'assnrer d'une definition de Toffense qui puisse dtre 
conforme k la preuve. 

Dans le cas actuel, par le premier chef d'accusation, les deux 
defendeurs sont accuses d'avoir conspire pour obtenir et s'appro- 
prier la somme de $60,000 des argents de Sa Majeste, c'est4-dire, 
des argents du Grouvernement de la Province de Quebec ; par le 
second chef d'accusation, lis sont accuses d'avoir conspii*e pour 
obtenir et s'approprier cette mdme somme, non du Gouverne- 
ment, mais de la Caisse d'Economie de Notre-Dame de Quebec. 

Dans un procds pour conspiration, le but de la conspiration doit 
Stre prouve tel que mentionne dans Tacte d'accusation ou dans 
un des chefs d'accusation. 

Prenons maintenant le premier chef d'accusation, par lequel 
les defendeurs sont accuses d'avoir conspire pour obtenir Targent 
du Grouvernement. 

Pour qae Ton puisse dii*e qu'il y a eu conspiration k cet effet^ 
il faut d'abord constater s'il est possible d'obtenir, en vertu des 
documents produits, Targent du Gtouvernement, et ensuite deduire 
des circonstances et de ces documents qu'il y avait concert et en- 
tente entre les accuses pour s'approprier ou pour tenter de s'ap- 
proprier de I'argent appartenant au Grouvernement. 

S'il 7 a eu conspiration pour s'approprier ou pour tenter de 
s'approprier I'argent du Grouvernement de la Province de Quebec, 



20 THB LEGAL NEWS. 

9*a dt dire au moyen de la let ire du Premier Ministre ddclarant 
qu'il accordait k M. Langlais le contrat pour rapprovisionnement 
de la papeterie, et des deux lottres par lesquelles il promettait 
que deux Bommes de $30^000 seraient payees, Tune daus six mois 
et Tautre dans nn an. 

II faut done voir s'il est possible de s'approprier, au moyen de 
ces documents-l^y Targent du Gouvernement. 

Pour le faire, il faudrait que ces documents auraient une force 
juiidique, un effet I^gal qui obligerait et forcerait le Grouverne- 
ment de payer les sommes y-mentionn^es. 

Ces documents sont sign^ par M. Mercier seul, agissant, il est 
vrai, comme Premier Ministre ; il a m^me sign^ apr^s en avoir 
donn^ connaissance H ses collogues, mais le consentement du 
Lieutenant-Grouverneur comme le reprdsentant de la Couronne, 
n'a ^t^ ni obtenu ni mdme demand^. 

Or, nous vivons ici sous une monarchic. Le penple a ses droits, 
mais la souveraine a aussi ses prerogatives. La Reine, repre- 
sentee par le Lieutenant-Gouverneur, doit voir k ce que les affaires 
publiques, qui sont conduites en son nom, soient administrees 
•pour Tavantage du penple, et son I'eprdsentant a le droit, en son 
nom, de donner ou de refuser son concours aux actes de ses mi- 
nistres. Le Lieutenant-Gouveiiieur doit agir suivant Tavis de 
ses ministres ; mais pour lier le Grouvemement il faut de toute 
necessity son consentement. 

Or, pour qu^un contrat du GouvernemcDtt soit valable, il faut. 
non seulement qull soit fait sur Tavis dee ministres de la Cou- 
ronne, mais aussi que le repr^sentant de la Couronne y consente 
et que ce concours de volonte soit manifesto par un oi*dre en 

conseil. 

II y a, n^anmoins, certaines chosee que les ministres peuvent 
faire sans consulter le Lieutenant-Gouverneur ; mais c'est parce 
qu'il y a pour ces cas-1^ des statuts qui y pourvoient, et, comme 
ils ont re9U la sanction royale, la Couronne a consenti d'avance 
aux actes qu'on pourrait faire en vertu de ces statuts. 

Par exemple, le Commissaire des Torres de la Couronne, en 
vertu des statuts qui r^gissent son d^partement, pcut vendre les 
terres publiques ; il n'est done pas n^cessaire, chaque fois qu'il 
vend un morceau de terre, qu'il obtienne le consentement de la 
Couronne. 

De m§me, chaque ministre est charge du contrdle et de Tadmi- 
nistration de son departement. Par consequent, il a le droit de 



THE LEGAL NEWS. 21 

faire lea contrats qui concernent radmihistration de son d^parte- 
ment. 

Dans Taffaire qui nous occupe, le contrat ne conceme pas qn'un 
seal d^partement, mais regarde tous les d^paKements. Or, aucnn 
d^partement n'est subordonn^ k an autre, et le droit d*admmis- 
tration d'un niinistre est restreint k son propre d^partement; et, 
cons^uemment, pour qu'un contrat s' applique k tous les d^par- 
tements, il faut qu'il ^mane du Lieutenant-Gouverneur en Conseil 
et qu'il repoFe sur un ordre en conseil. 

Ce qu^on appelle le contrat, c'est-^ire, la lettre adress^e par 
M. Mercier k M. Langlais, lui accordant I'approyisionnenient de , 
la papeterie, et les lettres promettant de payer d'abord $30,000 
dans six mois et ensuite $30,000 dans douze mois, n'ont jamais 
614 appronv^es par le Lieatenant Gouverneur, et ne sont pas 
basdes sur un ordre en conseil ; et lis n'ont, par consequent, au- 
cune force juridique. On ne pent done pas exiger du Gouverne- 
ment de la Province de Quebec le paiement d'atlcun argent en 
vertu de ces documents. 

II est de mon ressort de vous expliquer la loi dont la connais- 
sance est n^cessaire pour rappi^ciation (ies faits de la cause; je 
vous dis done que ces documents n'engagent aucunement le Gou- 
vernement, et vous dtes obliges d'aocepter cette ^nonciation de 
la loi pour votre gouverne. 

On pent avoir des soup9ons que les d^fendeurs ont machine et 
out fait ces documents avec Tintention de s'approprier, ou de 
tenter de s*approprier, de Targent du Gouvernement, mais pour 
juger il nous faut non des soup9ons mais une preuve legale, ca- 
pable de produire sur noire esprit la conviction. 

Haintenant, il appert a la face m§tne des deux lettres de credit, 
que leur but ^tait de *' faciliter les moyens d'obtenir des banques 
des avances.** En Tabsence de toute preuve directe de conspira- 
tion, les jur^s doivent inf^rer des circonstances et des faits pi*ou- 
v^ s'il y a eu conspiration ou non. Tel ^tant le cas, pouvons- 
nous conclure des faits et des circonstances de cette cause, qu'il y 
a eu conspiration pour frauder le Gouvernement de la Province 
de Quebec de la somme de $60,000 ? 

Pour frauder le Gouvernement, il aurait fallu que les docu- 
ments fuRsent valables, qu*on eut pu forcer le Gouvernement k 
paj^er les sommes ymentionn^es, et peut-on dire que le but des 
accuses etait de s'approprier, ou de tenter de s'approprier, Targent 
du Gouvernement, quand Tintention avou(^e des lettres de cr^it 
est d'obtenir de Targent des banques, et qull est prouv^ que, de 



22 THE LBGAL NEWS. 

fait, de Targent a ^t^ obtenu Bur lea documents en question de la 
Caisse d'Eoonumie ? 

Je ne crois pas qu'on puisse conclure, dans les circonstances, que 
les d^fendeurs ont conspire pour frander Sa Majestd, et que Ton 
puisse dire que le but de la conspiration soit l^galement prouv^ 
tel que port^ dans le premier chef d'accusation. Si, dans I'appi*^- 
ciation de la preuve, vous Stes de mon avis, il ne vous sera pas 
n^ceseaire de vous occuper davantage de ce premier chof^et vous 
devez T^cartei*. 

II nous reste, maintenant, le deuzidme chef d'accusation, par 
lequel on accuse les d^fendeurs d'avoii* conspire pour obtenir, 
d'une mani^re frauduleuee et par de faux pr^textes, cette somme 
de $60,000 de la Caisse d'Economie. 

C*est prouv^ clairement que le Dr. Bobitaille, croyant que les 
documents qu'on lui pr^sentait dtaient valables, a escomptd les 
deux lettres de cr^it, et que la Caisse d'Economie a pay^ k M. 
Langlais le produit de la somme de $60,000, eoit $66,772.33. 

La question est de savoir si les d^fendeurs ont conspire pour 
obtenir cet argent de la Caisse d'Economie et se Tapproprier. 

C'est 4 vous k decider si, d*api^s la preuve faite, vous pouvez 
dire que les deux d^fendeurs ont conspire ensemble pour atteindre 
CO but. Y a-t-il eu complot entre M. Mercier et M. Pacaud pour 
obtenir de la Caisse d'Economie la somme de $60,000 au moyen 
des documents en question et en se servant de M. Langlais 
comme interm^iaire ? 

Si, dans une accusation de conspiration, deux personnes pa- 
raise ent avoir poursuivi le m^me but par les m^mes moyens. 
Tune d'elles ayant fait une partie et Tautre ayant compl6t^ le 
reste des actes n^cessaires pour atteindre ce but, le jury pent de 
]dk tirer la consequence qu'il y a eu conspiration. Ici, M. Pacaud 
a r^igd la demande des lettres de ci*^it et M. Mercier les lui a 
fait pai venir tout de suite ; M. Pacaud a reyu les fonds et une 
pai'tie de Targent a iU d^pos^e au cr^it de M. Mercier d^ Mont- 
real et a 6i6 retiree par son pi*ocureur. Fouvez-vous inf^rer de 
cela qu'il y ait eu concert entre les defend eurs, — conspiration ? 
C'est dk vouB k peser mtirement ces faits et & vous prononcer. 

Si vous trouvez la pi'euve sufSsante pour vous permettre de 
declarer que les defendeurs ont conspire ensemble, vous devrez, 
dans ce cas, les declarer coupables ; mais si vous ne pouvez pas 
arriver & cette conclusion, si vous ne pouvez pas dire conscien- 
cieusement que TafPaire a dd avoir lieu par le concert et Tentente 



THE LEGAL NEWS. 28 

des deux ddfendeurs, il faudra n^cessairement dire qulls ne sont 
pas coapableB. 

Mais si vous croyez qa*il y a en conspiration entre M. Pacaud 
et JkL Langlais ponr se procurer cet argent afin de souscrire au 
fonds Electoral, cela ne vous suffira pas pour declarer que les deux 
d^fondeurs, M. Mereier et M. Pacaud, sont coupables. 

Dans une accusation de conspiration, il faut que deux, au 
moinSy soient coapablee. Vous ne pouvez pas due qae Tun des 
deux est coupable et que Tautre est innocent, parce qu'un seul ne 
pent pas conspirer; il faut Stre deux, au moins, pour conspiror. 
Par consequent, pour prononcer un verdict de culpability, il faut 
que vous soyez convaincus que M. Pacaud et M. Mereier ont eu 
des rapports ensemble, se sont concerts ensemble dans le but 
d'obtenir et de s*approprier Targent de la Caisse d'Econoroie. 

L'accusation est qu*ils ont complot^ pour obtenir et s'appi*o- 
prier cet argent ; ce quUls ont pu faire de Targent ne pent chan- 
ger la nature de roffense. 

Si quelqu'un vole votre argent, quelque soit Tusage qu'il puisse 
en faire, qu'il le d^pense pour ses affaires ou pour ses plaisirs, ou 
qu*il Temploie pour une oeuvre de charity, il sera toujours cou- 
pable de vol. L*emploi qu*il pent faire de Targent vol^ ne change 
pas la nature de son offense. 

Si, dans ce eas-ci, les d^fendeurs se sont appropri^ Targent, non 
pas pour I'employer k leurs pi*opros affaires, mais pour Temployer 
k des fins d'^Iection ; cela ne change nullement la nature de Tof- 
fense, — si vous arrivez k la conclusion qu*il y a eti conspiration. 

L'accusation est que lea deux defend eurs ont conspir6 ; et par 
consequent la prenve d'une conspiration entre M. Pacaud et M. 
Langlais, qui n'est pas accuse, ne concord e pas avec Tacte d'accu- 
sation ; et la conspiration ne serait pas prouv^e pour les fins de 
cette cause. Quand bien m§me M. Pacaud serait coupable d'avoir 
conspire avec une autre pcraonne, et que la preuve en serait faite 
dans le proc^ qui nous occupe maintenant, il faudrait le declarer 
non coupable, car il n'est pas accuse de cela, et pour rendre un 
verdict de culpabilite dans la presente cause il faut que vous 
soyez convaincus que les deux defendenrs ont conspire ensemble. 

Yous aui*ez h, considerer toute la preuve pour voir si vous pou- 
vez y trouver les indices d*uno conspiration. 

Si la preuve vous conduit 4 la conclusion qu'il existait un con- 
cert ou une entente, c'est-&-dire, un complot ou une conspiration 
entre les deux defendeui*s, il sera de votre devoir de dire qu'ils 
sont coupablesy quelles qu'en soient les consequences. 



24 THE LEGAL NEWS. 

Si, d'nn autre c6t^, voas croyez qu'il n'y a pas eu de complot on 
de conspiration, vons devrez dire qu'ils ne sont pas coupables. Si 
vous avez nn donte s^rieux, pas nn donte cr^^ par le d^ir de 
prononcer un acquittement, mais nn donte tellement s^rieux que 
plus tard, 1oi*sque vons serez appel^ k rendre compte de votre 
condnite en ce monde, vous auinez k vons reprocher de Tavoir mis 
de cdt^ pour rendre un verdict de culpability, si vous avez nn 
doute tellement grave que vous ne pouvez d^larer que vous dtes 
convaincus, en votre conscience, qu'il y a eu conspiration, vous 
devrez, dans ce cas, donner le b^n^fice du doute aux d^fendeurs. 

Je regrette de vous avoir retenus aussi longterops, mais j'^tais 
tenu de vous donner les explications que je croyais n^cessaires 
pour vous mettre en ^tat de rendre un verdict honndte et vrai. 

Je m'en rapporte k vous maintenant pour ^tudier et consid^rer 
soigneusement tons les faits de la preuve, mettant de c6t^ toute 
passion politique, consid^rant les choses simplement au point de 
vue de la preuve, avec calme et sans vous laisser influencer par 
les ^loquentes paroles des avocats qui doivent r^onner encore 
dans vos oreilles. Si je me suis tromp^ dans le r^sum^ que je 
viens de vous faire de la preuve, vous devrez ne pas accepter mon 
r^cit des faits, mais vous on rapporter enti^roment k votre propre 
souvenir des t^moignages qui ont ^te rendus. 

Maintenant, retirez-vous pour d^lib^rer. Agissez sans pai*tialit^ 
et faites votre devoir sans crainto. 

M. FiTZPATRicK. — Votre Honneur aura-t-il la complaiEance de 
r^p^ter en franyais les derni^res remarques qui ont M faites en 
anglais, k la fin de votre charge, en rapport avec Tavis du d^pdt 
de $25,000 au compte de M. Mercier ? 

Le Juob Wurtele. — On mo demande de rdp^ter en frangais 
les quelques paroles que j'ai ajout^es ^ ma charge en Anglais. 
Voici : 

II appert du t^moignage de M. DeMartigny que la Banque 
Jacques-Car tier n'aurait pas notifi^ M. Mercier qu'une somme de 
$25,000 avait ^t^ mise & son crMit. Yous aurez k vous rendre 
compte comment M. Joseph A. Mercier a pu savoir la chose. 

M. Joseph A. Mercier a aussi ddclar^ que son fr^re, THon. M. 
Mercier, n'a pas eu connaissauce du d^p6t de la somme de $25,000 
k la Banque Jacques-Cartier, ni du fait que cette somme avait ^t^ 
remise & M. Geoffrion. 

Yous aurez k consid^rer la preuve de la defense aussi bien que 
celle de la Couronne, et de decider la port^e et Timportance 
qu'elle doit avoir. 



THE LEGAL NEWS. 25 

Je remets la cause entre vos mains, en toute confiance, con- 
vaiDcn que vous vous efforcerez, comme je Tai fait, de rendre jas- 
tice anx parties. 

(Verdict—Not guilty. Nov. 4, 1892). 



EXCHEQUER COURT OF CANADA. 

Ottawa, Jan. 9, 1893. 
Coram Buebidqs, J. 

BuLMER V. The Queen. 

Crown domain — Disputed Territory — License to cut timber — Implied 
warranty of title — Breach of contract — Damages. 

By the 50th section of the Dominion Lands Act, 1883, it is 
provided that leases of timber berths shall be for a term of one 
year, and that the lessee shall not be held to have any claim 
whatsoever to a renewal of his lease unless such renewal is pro- 
vided for in the Oi*der-in-Council authorizing it, or embodied in 
the conditions of sale or tender. The Orders-in-Council in question 
in this case authorized the issue of leases subject to the terms of 
the regulations of March 8, 1883, by which it was provided that 
under certain conditions, existing in this case, the Minister of the 
Interior might renew such license. From the Oi'dei*s-in-Council 
and the character of the several transactions, it appeared to be 
the intention of the parties that the license should be renewable. 

Held, that such renewals were provided for within the mean- 
ing of the Statute. 

When the Crown agrees to issue a lease.or license to cut tim- 
ber on public lands it agrees to grant a valid lease or license, and 
a contract for title to such lands is to be implied from such agree- 
ment. Not only the woi-d "demise '* but the word " let," or any 
equivalent words which constitute a lease create, it appears, an 
implied covenant for quiet enjoyment. Hart v. Windsor, 
(12 M. & W. 85.) Mostyn v. The West Moatyn Coal and Iron 
Company, (L. R., 1 C. P. D. 152), referred to. But quaere if the 
rule is applicable to a Crown lease ? 

Queen v. Robertson, (6 S. C. R. 52), referred to. 

To the general i*ule as to the measure of damages for the breach 
of a contract there is an exception as well established as the rule 
itself, namely, that upon a contract for the sale and purchase of 
real estate, if the vendor, without fraud, is incapable of making a 



26 THE LEGAL NEWS. 

good title, the pi*oposiDg purchaser is not entitled to recover com- 
pensation in damages for the loss of his bargain. Bainv. Fother- 
gill, (L. B , 7 H. L. 168;. Flureauv. Thomhill, (2 Wm. BL 1078), 
referred to. 

This exceptional rale is confined to cases of contract for the 
sale of lands or an interest therein, and does not apply where the 
conveyance has been executed, and the purchaser has entered 
under covenants express or implied for good title or for quiet en- 
joyment. Williams v. Burrell, (1 C. B. 402) ; Lock v. Furze. 
(L. R, 1 C. P. 441), referred to. 

The authorities are not agreed, but it is pt*obable that this ex- 
ceptional rule as to the meabure of damages for the breach of a 
contract of sale of real estate does not apply where the vendor is 
able to make a good title and refuses or wilfully neglects to do so. 
Engel v. Fitch, (L. B., 3 Q. B. 314); Sobertwm v. Dumaresq, 
(2 Mooro, P. C. N. S. 84, 95), referi-ed to. 

An agreement to issue and to renew from year to year at the 
will of the lessee or licensee a lease or license to take exclusive 
possession of a tract of land and to cut the merchantable timber 
thereon, is an agreement in respect to an interest in land, and 
not merely a sale of goods. 

The claimant applied to the Government of Canada for licenses 
to cut timber on certain timber berths situated in the Territory 
lately in dispute between that Government and the Government 
of Ontario. The application was granted on the condition that 
the applicant would pay certain ground rents and bonuses, and 
make surveys and build a mill. The claimant knew of the dis- 
pute which was at the time open and public. He paid the 
rents and bonuses, made the surveys, and enlarged a mill he had 
previously built, which was accepted as equivalent to building a 
new one. The dispute was determined adversely to the Gov- 
ernment of Canada, and consequently they could not carry out 
their promises. 

'Held, that the claimant was entitled to recover from the Gov- 
ernment the moneys paid to them for ground rents and bonuses, 
but not the losses incurred in making the surveys, enlarging the 
mill, and other preparations for carrying on his business. 

Solicitor for claimant : A, Ferguson, 

Solicitor for respondent : O'Connor, Hogg & Balderson. 



THE LSGAL NEWS. 2*7 

Ottawa, Nov. 4, 1892. 

Coram Burbidge, J. 

CoBPORATiON OF TEES CiTT OF QuxBXc, Suppliants; and 

The Queen, Kespondent. 

Injury to Property on a Public Work— Negligence of Crown's Officer 
or Servant — 50-51 Fic, c. 16, a. 16 (c) — Liability — Bemedy. 

The Crown is liable for an injury to pi'operty on a public work, 
occasioned by the negligence of its officer or servant acting with- 
in the scope of his duty. That liability is recognized in The 
Exchequer Court Act, sec. 16 (c), but has its origin In the earlier 
statute, 33 Vic, c. 23. 

2. Prior to 1887, when The Exchequer Court Act was passed, a 
petition of right would not lie for damages or loss resulting from 
such an injury, the subject's remedy being limited to a submis- 
sion of his claim to the official arbitrators, with, in certain cases 
after 1879, an appeal to the Exchequer Court and thence to the 
Supreme Court of Canada. 

3. No officer of the Crown has any duty to repair or add to a 
public work at his own expense, or unless the Crown has placed 
at his disposal money or credit with instructions to execute the 
same. He must exercise reasonable care to know of the con- 
dition in which the public work under his charge is, and he must 
report any defect or danger that he discovers. It does not follow 
from the fact that a public officer does not discover a defect in, or 
a danger that threatens, a public work under his charge, that he 
is negligent. To make the Crown liable in such a case it must 
be shown that he knew, of the defect or danger and failed to re- 
port it, or that he was negligent in being and remaining in 
ignorance thereof. 

The Sanitary Gommmioners of Gibraltar v. Orfila, 15 App., 
Cas. 400, referred to. 

The injury complained of by the suppliant was caused by the 
falling of a part of the rock or cliff below the King's Bastion, at 
the citadel in Quebec in the year 1889. The falling of the rock 
was caused or hastened by the discharge, into a crevice of the 
rock, of water from a defective drain, constructed and allowed to 
become choked up while the citadel and works of defence were 
under the control of the Imperial authorities, and before they be- 
came the property of the Government of Canada. The existence 
of this drain and of the defect was not known to any officer of 



28 THE LEGAL NEWS. 

the latter Government, and was not disooverod nntil after the 
accident, when a careful enquiry was made. In the year 1880 an 
examination of the premises had been made by careful and capable 
engineers, one of whom was the City Engineer of Quebec, with- 
out their discovering its existence or suspecting that there was 
any discharge of water from it. The surface indications, more- 
over, were not such as to suggest the existence of a defective 
drain. The water that came out lost itself in the earth within a 
distance of four or five feet, and might reasonably have been sup- 
posed to be a natural discharge from the cleavages or cracks in 
the cliff itself 

Held, that theie was no negligence on the part of any ofElcer 
of the Crown, in being and remaining ignorant of the existence 
of this drain and the defect in it. 

Quaere, whether the place where the accident happened was 
part of a public work ? 

SembUy the Crown may be liable although the injui^ com- 
plained of does not actually occur on, i.e. within the limits of, a 
public work. 

Solicitors for the suppliants : Baillairge dc Pelletier. 
Solicitors for the respondent: O'Connor, Hogg <& Balderson. 



Ottawa, Nov. 11, 1892. 
Coram Bubbidge, J. 

TANCBiDB DubH, Suppliant ; and Thx Quxxn, Bespondent. 

Petition of right — Damages sustained by an accident on a Govern- 
ment railway— -Burden of proof — Latent defect in axle of car — 
Undue speed in passing sharp curve. 

On the trial of a petition for damages for injuries sustained in 
an accident upon a Government railway, alleged to have resulted 
fi'om the negligence of the persons in charge of the train, the 
bui*den of proof is upon the suppliant. He must show affirma- 
tively that there was negligence. The fact of the accident is not 
sufScient to establish & prima facie case of negligence. 

The immediate cause of the accident was the breaking of an 
axle that was defective. It was shown, however, that great care 
had been used in its selection, and that the defect was latent and 
not capable of detection by any ordinary means of examination 
open to the railway officials. The train had immediately before 



THB LEGAL NEWS. 29 

the accident passed a carve which, at its greatest degree of cur- 
vature, was odc of 6^ 52'. It was alleged that the persons in 
charge of the t.ain were guilty of negligence in passing this 
curve and a switch near it at too fast a rate of speed. On that 
point the evidence was conti*adictory, and, having regard to the 
rule as to the burden of proof stated above, it was 

Held, that a case of negligence was not made out. 

Solicitor for suppliant : P. A. Choquette. 

Solicitors for respondent: O'Connor, Hogg de Balderson, 



Ottawa, Jan. 9, 181)3. 
Coram Bubbidqb, J. 

1*HS Aurora (Bergman). 

Maritime law— Master's lien — Inland waters — R. 8, C, cc, 74 and 75 
— The Colonial Courts of Admiralty Act, 1890 — The Admiralty 
Act, 1891 — Construction, 

The master of a vessel registered at the port of Winnipeg, and 
trading upon Lake Winnipeg had, in the years 1888, 1889 and 
1890, no lien upon the vessel for wages earned by him as such 
master. 

Even if such a lien were held to exist there was in the years 
mentioned no Court in the Province of Manitoba in which it 
could have been enforced, and it could not now be enforced under 
The Colonial Courts of Admiralty Act, 1890 (53-64 Vic. (U. K.) 
c. 27), or The Admiralty Act, 1891 (54-55 Vic. (Can.) c. 29), 
because to give those statutes a retroactive effect in such a case 
as this would be an interference with the rights of the parties. 

Wade <fc. Wheeler for plaintiff. 
Mather for liquidators. 
Darby for creditors. 



RECENT ONTARIO DECISIONS. 

haiiway Company — Ticket — Contract — Condition — Damages 

— " Via direct line:' 

A condition in a railway ticket as to travelling ** via direct 
ine " was rejected as meaningless, each of three possible routes, 
being circuitous, though one was shoHer in point of mileage than 
the others. — Dancy v. Grand Trunk R, Co., Court of Appeal, Nov. 
8, 1892. 



30 THE LEGAL NEWS. 

Railway Company ^Damagei — Limitations — 51 Vic, (JD,) c, 29, 
5. 287. 

The plaintiffs father was killed on the 10th Febraaix 1891, by 
a fall from a bridge which crossed the defendant's line, and had 
been negligently allowed by them to be out of repair. The ac- 
tion was begun on the lObh December, 1891. 

Held^ that this was not '' damage sustained by reason of the 
railway," and that the limitalion clauses of the Railway Act did 
not apply. — Zimmer v. Grand Trunk E, Co,, Court of Appeal, 
Nov. 8, 1892. 



Dominion Winding up Act, s. 66 — Dominion and Provincial laws — 
Claim under Quebec law. 
Held, that there is nothing in s. 56 of the Dominion Winding- 
up Act which alters or interferes with the lex loci contractus ; 
and therefore, in the case of a lease entered into in Montreal, 
where the Qaebec law provided that on the insolvency of the 
lessee, the rent not yet exigible by the terms of the lease should 
become so by reason of the insolvency of the tenant, a claim for 
the whole rent to the end of the term must be allowed to the les- 
sors in the liquidation proceedings which were being carried on 
under the Dominion statute. — In re Harte & The Ontario Eocpress 
<Sc Transportation Co,, Queen's Bench Division, Bobertson, J., 
Sept. 24, 1892. 



Constitutional law — Forgery — Summary trial by police magistrates — 
Ultra vires. 
Procedure in criminal ipattera, which by the B. N. A. Act is 
assigned exclusively to the Parliament of Canada, includes the 
trial and punishment of the offender ; and therefore s. 2 of 53 Vic. 
c. 18 (O.), authorizing police magistrates to try and convict per- 
sons charged with forgery, is ultra vires of a provincial legisla- 
ture. — Reg, V. Toland, in chambers, MacMahon, J., July 28, 1892. 



Bailway Company — Railway carrying goods through other railways 
as agents — Loss of goods on agent line — Liability of principal 
railway company. 
Action to recover the value of certain goods. Evans, the pur- 
chaser of the goods in question in British Columbia, having the 
right to name the mode of transit, arranged with Blackwood, the 



THE LEGAL NEWS. 81 

defendants' agent there, that they should be forwarded by the 
Grand Trunk Railway and the Chicago & Northwestern Railway, 
to the defendants' care in St. Paul. The order to this effect hav- 
ing been forwarded by Blackwood to Belcher, the defendants' 
agent in Toronto, was by him forwaixled to the plaintiffs with a 
request that they would ship the goods, marked in the prescribed 
manner, and the plaintiffs did as directed. 

Held-f that the defendants must bo taken lo have received the 
goods by their agents the G-rand Trunk Railway Company upon 
a contract to carry them 'and deliver them safely to the order 
of the consignee at Victoria, B.C. This contract was bi-oken by 
their delivering the goods to a person other than the consignee ; 
and the plaintiffs, having thus lost the value of the goods, were 
entitled to recover. — Orant v. Northern Pacific R, 0>., Chancery 
Division, Nov. 16, 1892. 



GENERAL NOTES. 

PasLicANs' Pablours and Musio. — The question was i*aised at 
Accrington as to the right of a publican to permit singing on his 
premises without having a music license. The justices thought 
that if a landlord permitted pianoforte playing and singing as an 
additional attraction, although he did not pay for the latter, he 
ought to take out a license. The justices considered that the 
case came within a recent Act, and, this being a test case, they 
inflicted a nominal penalty of bs, and costs. Notice of appeal 
was given. 

Judos Advocats-Gsnbral. — ^The office of Judge Advocate- 
General has, pending future arrangements, been offered to and 
accepted by Sir Francis H. Jeune, President of the Probate, 
Divorce, and Admiralty Division. The office was some yoara 
ago held, for a period, by Sir Robert Phillimore, when judge of 
the Court of Admiralty. The duties connected with the office 
are wholly unpolitical, and it is at present without a salary. 

Sbourity of Debsnturb-holdkbs. — ^The decision of Mr. Jus- 
tice Stirling in Follit v. The Eddystme Granite Quarries (^Lim.), 
61 Law J. Rep. Chanc. 567, is of considerable interest to deben- 
ture-holders. The conditions under which the debentures in that 
case were issued constituted them a first charge on the company's 
property, but gave certain powers to the debenture-holders in 
general meeting, at which a majority could bind a dissentient 
minority, including a power * to sanction any modification or 
compromise of the rights of the debenture-holders against the 
company or its property.' The company afterwards obtained a 
loan to answer pressing demands, for securing payment of which 
as a first charge on the company's property they obtained the 
consent of the necessary majority of the debenture-holders to 



32 THE LEGAL NEWS. 

postpone their security, and Mr. Justice Stirling held that the 
postponement was efTectuai and binding on a dissentient minority, 
having regard to the power to which we have referred, being a 
'modification' or 'compromise* of their rights. Mr. Justice 
Chitty seems to have arrived at a similar conclusion in In re Thfi 
Dominion of Canada freehold Company {Lim,), 55 L. T. (n.s.) 347, 
on the construction of the trust-deed in that case. Intending in- 
vestors in so-called * first debentures, would do well to study the 
conditions of the debentures or trust-deed in this respect, as the 
power is one which may seriously affect the value of the securi- 
ty, and lead to some embarrassment when the debentures happen 
to be held by trustees. — Law Journal^ (^London,) 

Disposal of Convicts* Estates in England.— The London 
Law Jotimal refers to Neili as the greatest criminal of the cen- 
tury, and adds : — "Neill is said to have made a will. This document 
will, we imagine, be inoperative by virtue of the Abolition of 
Forf^ture Act, 1870 (33 & 34 Vict. c. 23), by which the Crown 
may appoint administrators of the property of any convict, in- 
cluding in that term a convict under sentence of death : though 
the Act does not expressly provide for the case of a convict on 
whom the capital sentence has been carried out, nor does it express- 
ly nullify any will of such convict. The administrator may (out 
of the property of the convict) pay the costs of his prosecution, 
defray his debts, and pay compensation to peraons injured by his 
criminal acts, and ^ may also cause such payments and allowances 
for the support and maintenance of any wife or child or reputed 
child ' of the convict, * or of any other relative, or reputed relative 
of such dependent upon him for support." 

Engaoemknt Bings. — We are disposed to query the correctness 
of the rejioviod obiter dictum of }iv. Plowden in a recent Police 
Court case, to the effect that nn engagement-ring is an absolute 
gift by one of the engaged parties to the other, and not a con- 
ditional one upon the marriage contracted for being solemnised. 
It was said by Lord Hardwicke more than a hundred years ago, 
in Robinson v. Cumming, 2 Atk. 408, that wedding presents made 
in contemplation of a marriage that does not take place ought to 
be returned, and there is some ground for saying that such pre- 
sents would be recoverable as ^ gifts upon a condition subsequent 
not fulfilled * (see ' Chitty on Contracts,* 12th edit. p. G22) . We 
cannot see any valid distinction in the law between the gift of an 
engagement-ring and a wedding present, and we believe that the 
usual custom is for the donees of such rings to return them to the 
donors on breaking off engagements to marry. — Law Journal 
(^London) . 

Prerogative of the Crown. — In Liquidators of the Maritime 
Bank of Canada v . Receiver General of New Brunswick^ I'eported in 
the Law Journal Reports for December, it was decided by the 
Privy Council that the prerogative of the Crown, when not ex- 
pressly limited by local law or statute, is as extensive in the 
colonial possessions of the Crown as in Great Britain. 



THE 



/ 



LBGAL NBWS. 



VOL. XVL FEBRUARY 1 & 15, 1893. Noe- 3 & 4. 

CURRENT TOPI S AND CASES. 

By 40-50 Vic, c 84, s. 94, as reproduced in 859^ 
B. S. Qm it was expressly enacted by the Quebec Legis- 
lature that " advocates are entitled to fees and remuner- 
ation for their professional services. Amongst the pro- 
fessional services for which fees and remuneration may 
be charged are included : travelling, attendance, written 
and verbal consultations, and the examination of papers 
and documents." This was a positive declaration of the 
law which had previously been somewhat unsettled. In 
the recent case of Christin Sc Lacoste, decided by the Oourt 
of Appeal, at Montreal, Jan. 26, 1898, it was contended 
that for services specifically mentioned in the tariff the 
advocate is governed by its provisions, even in adjusting 
his account with his own client. The Oourt did not en- 
tertain this view, but held, in the words of Mr. Justice 
Hall who delivered the judgment, " that the tariff was 
never intended to regulate the adjustment of the attor- 
ney's claims against his own client, but only the success- 
ful litigant's claim, either in his own name or that of his 
attorney, against the losing party." The advocate, there- 
fore, is now in a position to sue and recover judgment 
against the client who has employed him, for the proved 
value of his professional services, irrespective of the tariff. 
' The Court concedes that in the absence of a special agree- 
ment between advocate and client there is a presumption 



84 THE LEGAL NEWS. 

that the tariff shall gOTern, but holds that this presumption 
may be rebutted by evidence as to the unusual or unex- 
pected importance or duration of the litigation. 



Another important decision rendered by the Court of 
Appeal at Montreal, on the same day, was that pro- 
nounced in the case of Reid Sc McFarlane. This judgment 
is remarkable as it reverses the ruling of the same Court, 
three years ago, in the case of Davie Sf Sylvestre^ M. L. B., 
6 Q. B. 148 ; nay, more, it reverses the decision of the 
Court pronounced two years previously in McFarlane Sc 
Fait (M. L. R., 6 Q. B. 251) on the same agreement which 
the Court was called upon to construe in Reid 4* McFar- 
lane, An English judge, when a case of Brovm v. Robin- 
son was cited before him in argument, informed the coun- 
sel that he should not feel himself bound by that case 
unless a suit were before him in which the facts were 
precisely similar; indeed, added his lordship, ''unless 
the plaintiff's name were Brown and the defendant's 
Robinson." Our Court of Appeal has hardly paid as 
much regard to precedent as the learned judge above 
referred to, for in a case turning upon the same agree- 
ment, the facts being exactly the same and one of the 
parties the same, it has declined to follow its own deci- 
sion of two years ago. Of course, the composition of the 
Court is changed, the judges, with one exception (Mr. 
Justice Baby), being different, and he entered a dissent. 
The ground on which the Court overruled the precedents 
referred to was, that in the first case, Davie Sc Sylvestre, 
the Court had been misled by an incorrect appreciation 
of the decision of the Privy Council in Singleton 8f 
Knight, 11 L. N. 401, and that in the subsequent case of 
McFarlane Sf Fatt the Court had merely followed the pre- 
cedent of Davde Sf Sylvestre, without any special examin- 
ation of the facts of the case. In Davie Sc Syfvestre the 
Court laid down the broad rule that participation in pro- 
fits makes the person participating liable as a partner to 
third parties, creditors of the person in whose name the 



THE LEGAL NEWS. 85 

business is carried on. The facts in Reid Sf McFarlane 
were hardly so favorable to the person sought to be held 
liable as in the Davie case. McFarlane advanced moneys 
to one Nowell ; each was to draw the same sum, monthly, 
from the business, and at the end of the year the profits 
were to be equally divided between them. McFarlane 
was to act as manager. The principal circumstance which 
negatived the existence of a partnership was that the 
business was not only carried on in the same name as 
before, but McFarlane's name appeared on the bill and 
letter-heads as manager. The Court of Appeal, in an ela- 
borate judgment pronounced by the Chief Justice, holds 
that the first consideration is the intention of the parties, 
and that if they did not intend to form a partnership an 
arrangement for sharing profits will not make them liable 
to third persons, unless their acts have been such as to 
lead third persons to suppose that a partnership existed. 
"La particip9.tion dans les profits," observed the Chief 
Justice, " ne constitue done pas a elle seule le contrat de 
80ci6t6 ; il faut y ti'ouver les autres 6l6ments essentiels de 
la 8oci6t6, savoir Tapport pour le b§n6fice commun et 
rintention des parties de former une 80ci6t6, et ceci s'ap- 
plique aux tiers cr^anciers tout aussi bien qu'aux parties 
entr'elles, car un contrat ne peut ^tre un bail, un louage 
ou un pr6t entre les parties et en m^me temps une society 
vis*a-vis des^ tiers. Ce qu'une cour a d'abord a determiner 
c'est la nature du contrat des parties inter se. Si elle ar- 
rive a la conclusion que c^est une society, les cr6anciers 
auront un recours. Dans le cas contraire ils en seront 
priv6s. En cela il n'y a pas d'injustice, comme dit Alau- 
zet. Society, No. 376. Si le nom du cr6ancier est rest6 
inconnu des tiers, si ceux-ci n'ont pas contracte avec le 
commer9aDt d^biteursous la foi de la responsabilitg du 
pr^teur, si m6me ils ont eu connaissance du prdt. qui a 
6t6 fait, mais qu*ils n'aient jamais consid6r6 le bailleur de 
fonds comme associe ; qu*importe les conditions du con- 
trat? La convention des parties doit determiner leur 
position respective, et s'il n'y a pas 8oci6t6 tout recours 



86 THE LEGAL NEWS. 

sera refusg aux tiers contre le baillenr de fonds a moins 
que celui-ci ne se soit doiin6 k eux comme as8oci6. Sa 
responsabilitS dans ce cas d^coule d*aiie autre source. 
Les tiers ne connaissent pas ce qui a 6t6 convenu entre 
lea parties. Le contrat de soci6t6 est consensuel et ne 
requiert pas d*6crit. Si done une personne agit comme 
si elle 6tait associee ou si elle contraote avec des tiers en 
cette quality, si par sa conduite elle induit le public en 
erreur et encourage ainsi un credit ou des avances qui 
n'auraient peut-6ire pas ete fournis sans cela, il y aura 
quasi soci6t6 ou soci6t6, vis-a-vis des tiers, ind6pendante 
du contrat reel, qui la liera vis-a-vis dVux. O'est ainsi 
que les tiers seront prot^gt'^s. Nous avons un exemple 
de cette responsabilit^ dans Tart. 1900 de notre Code." 



The question as to the arrears of the Law Reports for 
1892, referred to last month, has been settled by the can- 
cellation of the contract, the printer having failed to pro- 
ceed with the work for want ol paper on which to print 
the pages standing in type. The work will therefore be 
taken up by the printers who have the contract for the 
current year. This difficulty has unfortunately caused 
much delay, and a good deal of work has had to be done 
over again. It is expected that the printers will now soon 
be in a position U> resume the issue of the publication. 



TBE CANADIAN CRIMINAL CODE. 

Ottawa, 20th January, 1893. 
DsAB Sir, — 

Having been informed, on reliable anthority, that amend- 
ments to the criminal code passed at the last session of Parlia- 
ment are to be introduced at the next session, I take the liberty 
to send you a memorandum of the changes which should, in my 
humble opinion, be made thereto, before it is allowed to come 
into force. 

It was a self evident proposition, one which no one will 
controvert, that the Chief Justice of England laid down, in re- 



THS LEGAL NEWS. 37 

feroDce to an akin measure presented to the Imperial House of 
Commons in 1875, when he said : — *^ I think that any attempt 
^' at codification which is either partial or incomplete can only 
" be productive of confusion and mischief/' or, as he put it, in 
other words, in 1879, in refei*ence to another one of the same im- 
port : " It is of the very essence of a perfect code, that it shall 
*' contain and provide for whatever it is intended shall be the law 
'' at the date of its formation, ^o that both those who have to ad- 
'' minister the law, whether in its preliminary or aHer stages, 
'^ and those who have to obey it should have it before them as a 
" whole, without having to search for it in Acts of Parliament 
^* scattered over the statute book, and which most persons, at 
'* leant so far as the laity are concerned, are ignorant of and know 
^' not where to find. The main purpose of the codification of the 
" law is utteily defeated by leaving the code to be supplemented 
" by reference to statutes, and what is still worse, to parts of 
" statutes which are still to remain in force, but are not eml)Odied 
" in it." 

Now, sir, as you are aware, the draft code, upon which 
the Lord Chief Justice made these observations, was found to be 
so defective, as well for incompleteness, as for other reasons, thut 
it had to be dropped in 1880 by the Attorney-General, and has 
never been adopted into law by the Imperial Parliament. 

That our code of 1892 is deficient, in respect of completeness, 
to a still greater degree than that one in reference to which the 
Lord Chief Justice so expressed his views on the essential re- 
quisites of a codification, must, it seems to me, be conced^, when 
it is taken into consideration that, whilst the latter superseded 
all the common law, the former leaves all of it in force, with, be- 
sides, a number of important enactments, scattered all over the 
statute book. So that, in future, anyone desirous of ascertaining 
what is, on a given point, the criminal law of the country will 
have to refer first, to the common law, secondly, to our unre- 
pealed statutory law, thirdly, to the case law, fourthly, to the 
Imperial special statutory enactments on the subject in force in 
Canada, not even alluded to in the code, and fifthly, to the code. 
I shall not attempt to here enter into details on what, to anyone 
at all conversant with the subject, appears on the face of the record. 
I have, however, called moi-e particularly your attention in the 
annexed memorandum to a few of these lacuruE, which, in my 
opinion, most prove hereafter to detract so much from the use- 
fulness of this legislation. They are those which more particu* 



88 THE LEGAL NEWS. 

larly struck my mind in a preliminary survey I have made of its 
contents, in view of a third edition of m^ book on crimioal law 
adapted to it, which, under pressing solicitations from Bench and 
Bar, from all parts of the Dominion, I have undertaken to pre- 
pare. 

To cite here a few instances, under this head of omissions, I 
may more particularly allude to the following offences, which I 
have not been able to find treated of anywhere ; negligent escape, 
compounding felonies, or offences generally, abortive inciting to 
commit any of the offences provided for by the code, one maim- 
ing himself, either to increase his chances at begging, or to avoid 
military service, champerty, malfeasance, or culpable nonfeasance 
of a public officer in relation to his office ; extortion, and bribery, 
generally ; various statutory indictable crimes, the number of 
which I have not ascertained ; conspiracy to commit an unlaw- 
ful, not indictable, act. 

Then, as to accessories before the fact, I find that though 
sec. 63 defines what is an accessory after the fact, what is an 
accessory before the fact is nowhere to be found. The very 
name has disappeared from the law, even in the index. 

Those who know the law on the subject can see that sec. 61 
is given as a re-enactment of it in a different shape, but for 
those who, in their studies, finding the expression as one known 
at common law, in every book, desire to ascertain what it is in 
the code, it is putting obvious difiicalties in their way, not to, at 
least, keep the name in the marginal note, or sub-title ; the same 
may belaid as to aiders and abettors. Then, not a word is to be 
found of the rule, " actus non facit reum nisi mens sit rea," nor 
of the cognate rule, as to intent, that the law of England judges 
not of the fact by the intent, but of the intent by the fact ; nor of 
the law, in criminal cases, of principal and agent, or master and 
servant, nor of the rules on consent, waiver, or estoppel in such 
cases I neither of the law as to contributory negligence in man- 
slaughter. 

Another class of omissions is such as follows, and there are 
many of them. A man steals ten sheep at the same time. Can 
he be indicted ten times, one accusation for each ? '* Yes," says 
Lord Hale, '^ for thus it hath happened that a man acquitted for 
stealing the horse hath yet been arraigned and convicted for 
stealing the saddle, though both were done at the same time." 
— But then if a man steals, say ten sovei*eigns, can he be indicted 
ten times ? or twice, if five of the sovereigns belong to A., and 



THB LEGAL NEWS. 89 

five to B? — A. kills B. and C. by one nhot. Has he commiUed 
two murders, or one marder of two men ? Why not provide for 
Bach eases and say that one act constitutes only one crime, the 
qaantity, etc., being only a matter of aggravation, or settle it, in 
someway or other? Persecution, in the guise of prosecution in 
the public interest, should not be tolerated. Such questions, it 
must be assumed, have been discussed by the special committee, 
but there is not a word of them in the code. 

A third class of omissions to which I may here more enpe- 
cially allude is that of the Imperial Statutory enactments in force 
in Canada. I beg leave to refer you, for a few instances thereon, 
to my note under section 640 as to such of those that have come 
to my mind. Allow me, also, to call your attention to the fact 
that section 542 bears the construction that our Parliament has 
assumed jurisdiction on offences committed by a foreigner yOn the 
high seas, on board a foreign ship. That cannot have been in- 
tended and should be set right. 

A few observations, now, on some of the amendments made 
to the existing law. I have not had time, as yet, to ascertain, to 
my own satisfaction, which of its 983 sections are new law, and 
which are old law, not a simple thing to do, by any means, you 
will admit, sir ; but I have, however, seen enough of it to be in a 
position to assert that the changes and innovations are numerous 
and of a sweeping chai'acter, both in the substantive and in the 
adjective law. 

A large, I may say, a very largo number of these changes 
and innovations, including those in the law of mui*der, rape, per- 
jury, bigamy, etc., etc., as well as those in the rules of procedure, 
were undoubtedly taken from the abortive bill or draft code pre- 
sented to the Imperial House of Commons in 1880, that I have 
already alluded to. And it may be, if I am allowed to say so, that 
sufficient attention was not paid to the fact that these innovations, 
though suggested, had never been adopted in England, and that 
consequently, some of them have passed into this code without 
haviil^ been dedned before Parliament in such a clear way that 
their consequences can have been foreseen. And, on this, rather 
than to speak for myself, I take the liberty to make the follow- 
ing quotation from the report of the committee of the Imperial 
House of Commons, to which had been referred, in 1875, a cog- 
nate measure, a bill on homicide drafted by Sir James Fitzjames 
Stephens : ^' Nothing could be more likely to impede, or, indeed, 
'' utterly to frustrate the work of codification, than the suspicion 



40 THE LEGAL NEWS. 

*' or certainty that, under the pretext of Bimplification and re- 
*' arrangement, great and important changes were effected which 
'< had never been brought out in a clear and simple way to the atten- 
'' tion of the Hoascs of Parliament. For these reasons, your 
*' committee are of opinion that it is not desirable to proceed with 
** the present bill, notwithstanding that this experience in codi- 
'* fication has been presented to them with every advantage that 
<' learning and skill could give it." 

Without wishing here to enter into details, I call your atten- 
tion to the following alterations and changes that I have noticed 
in the course of my cursory examination of the act. 

The atrocious crime of infanticide by starvation, or neglect of 
natural duties, (so fVequent in cases of illegitimacy) which has 
always here, as in England, and, in all the civilized world, been 
either murder or manslaughter, is to be nothing more in the 
future but a simple offence of the class now known as misde- 
meanours, and punibbable with a mere tine, at the discretion of 
the Judge, or with impribonment for not more than three year*. 
If a hu^band, under a legal duty to provide neceKnaries for his 
wife, omits, without lawful excuse, to do so, and thereby causes 
her death, he has always been, up to the prenent, deemtni guilty 
of murder or mannlaughter. But that in, also, to be, in the 
future, but a simple offence puni^hable by a tine, or at the most, 
by an imprisonment for thiee yeara. Heretofore, a gaoler who 
caused the death of his prisoner, by not supplying him with the 
necessaries of life was guilty of manslaughter, but Parliament 
has decreed that that shall not be so in the future. I may be mis- 
taken, but I am strongly inclined to think that such alterations 
in the law have not deliberately been made by Parliament. Tet, 
there they stand on the statute book, to be our law after the Ist 
of July. These last three changes, I need hardly say, were not 
proposed in the English bill of 1880. 

Another instance : — It is decreed, by sec. 64, that the question, 
whether an act is too remote or not to constitute an attempt, 
shall be a question of law and not one for the jury. Has this im- 
portant innovation been designedly made ? See, in memo, what 
Chief Justice Cockburn says of a similar one, when proposed in 
England. 

Another one again, (not proposed in the English bill) : — In 
future, perjury, forgery, and manslaughter even, are to be triable 
at Quarter Sessions ; counterfeiting Her Majesty's coin, treason 



THB LEOAIi NEWS, 41 

at common law, is also to be triable in the inferior Courts. 
Offences now falling under sees. 247 and 248, for injuries by ex- 
plosives, heretofore not triable at Quarter Sessions, are also now 
to be so. I refer you for other instances of changes in the law to 
my memorandum. 

I pass now to the intrinsic defects of the measure ; they are 
numerous. It is replete of contradictory clauses, of redundant 
enactments, of clumsy, needlessly minute and irrational, or re- 
pugnant provisions, obviously leading, in many instances, to in- 
congruities and anomalies, nidis et indigesta moleSf cumbrous, yet 
not complete : the classification is unsystematic, and the whole 
without attempt at symmetry. 

Why, for one or two instances, as to defective classification, 
put the offence of unlawfully digging up a dead body, under the 
title of nuisances? Or, why separate by eighty sections the of- 
fence of defiling a girl under 14 with the offence of defiling a 
girl above 14 ? As to repugnancy, reilundance, irrational legis- 
lation, let me rofer to a tew enactments as illustrations. 

It is an indictable offence to conspire to induce a woman to 
commit adultery, but to commit adultery itself, is not, except in 
New Brunswick. Now, a ccmspiiacy to commit or procure the 
commission of an unlawful act is, at common law, indictable, even 
where that unlawful act iU^elf is not. But there is no reason, 
that I can see, for a special enactment as to this one, when the 
unlawful act itself is not made indictable. It has the effect to re- 
duce the punishment, and that cannot have been the reason why 
it was enacted. Such an enactment was proposed in the English 
draft. It was a necessary one there, because all the common law 
was supei-seded. It has been lost sight of, in this special provision 
on conspiracy to cause adultery to be committed, that the com- 
mon law of conspiracy remains untouched by this code. 

Any one who offers for sale a putrid carcass of mutton, or an 
obscene photograph, or a car conductor's fault of being drunk on 
duty, must be prosecuted by indictment, whilst any one who en- 
tice^ one of Her Majesty's soldiers to desert fi*om the service, or 
any one who personates a candidate at an examination in a col- 
lege or university, may be punished on summary conviction. 
Adultery is to be an indictable offence in New Brunswick, but is 
not to be so in the other Provinces. A number of offences are 
purged by lapse of time, whilst there is no limitation for the pro- 
secution of the attempt or conspiracy to commit the same of 



42 THE LEGAL NEWS. 

fences ; treasoD, and the ofTences under the trade marks act are 
put alone on the three year's limitation list. Why ? The sedacer 
of a girl under sixteen is protected by o ne years' limitation, 
whilst one who once offers for sale one obscene photograph, or a 
pound of tainted meat, has no such protection, and can be prose- 
cuted at any time. One year relieves from all liability to pun- 
ishment the nefarious crime of a mother^ who, for a few dollars, 
is a party to the ruin of her 14 year old daughter ; but the prose- 
cution for the same offence when committed by any other person, 
on that girl, is barred by no limitation whatever. There are to 
be found five sections on injuries by explosives ; three different 
enactments to say that a peace officer may arrest without war- 
rant a person committing certain offences ; two to say that a 
false oath, not in a judicial proceeding, amounts to perjury ; two 
or three to provide for offences against railways ; two sections to 
decree, in different terms, that if any one leaves a hole made by 
him through the ice, unguarded, he will be guilty of man- 
slaughter, if any peraon loses his life by falling therein. One 
section enacting that an attempt to commit sodomy, will be 
punishable by ten years, and another one, that an assault, with 
attempt to commit sodomy, will be punishable by seven years. 
Could even a Philadelphia lawyer tell the difference between the 
two, between an attempt to commit sodomy and an assault with 
attempt to commit sodomy ? With, to make confusion worse 
confounded, a different punishment attached to each. It is de- 
creed that a nuisance which occasions injury to one individual is 
indictable. Is that a common nuisance ? 

On many of the-ie subjects, the law, it is true, was not previous- 
ly in a better state ; and the errors and anomalies that I have 
called attention to, often are mere reproductions from the statute 
book. But you will bear me out, sir, when I say that this is 
obviously an aggravation, not an excuse of the fault committed 
of not taking advantage of the codification to remedy the law.> 
The pruning knife was evidently wanting in the hands of the 
drafter : the 'topping off the dead branches without hurting the 
ix)Ot,"if you allow me, sir, to use the felicitous expression, was 
not performed, the weeding has been left undone. 

A most favorable occasion has been lost to improve, to 
ameliorate, to make needed reforms, to reduce the bulk of the 
law and simplify its mechanism. I have given you illustrations 
of it ; allow me to add a few others. A complete revision of the 
punishments is clearly wanted — ^that is admitted on all hands in 



THE LEGAL NEWS. 48 

Eiigland, and our Btatutes on the subject do not stand on a better 
footing. A reference to the compilation, under the heading 
''Punishments," that I have attached to my memorandum, so as 
to afford an easy though incomplete comparison thereon, will am- 
ply demonstrate it, were demonstration necessary. But to par- 
ticularize here for one moment, should not a codification have 
purged our statute book from the following anomalies instead of 
re-enacting them ? — An accessory before the fact to the offence 
of carnally knowing a girl under fourteen, ivhen a perfect stranger 
to her, is punishable with imprisonment for life. But, if he is a guar- 
dian who is such accessory to the like offence on his ward, he is pun- 
ishable by fourteen years only. That extraordinary legislation is a 
reproduction from the statute of 1890. But that is not all ; if it 
is himself, the guardian, who seduces his ward, he is liable only 
to a fine, or at the most, to two years' imprisonment I And 
another one almost as startling : a train conductor for merely 
being drunk on duty, is liable to seven years' penitentiary. And, 
for another one again, any one who, unsuccessfully incites another 
to commit an indecent assault is liable to seven year^ penitentiary, 
but, if the other does, in fact, commit the assault, then the inciter 
escapes with two years* prison. 

Again, to simply obstruct a ^[public** officer in the execution of 
his duty, is punishable by ten years' penitentiary, but to assault a 
public officer whilst performing his duty, only by two years' 
prison ; and to obstruct a ^^peace" officer in the execution of his 
duty, tuH) years. 

Then, in many instances, it has evidently been forgotten that 
a codifier must not rashly cast down without also building up ; 
that, to quote Austin's words (^Principles of Jurisprudence) — ** he 
should have constantly before his mind, a map of the law as a 
whole, enabling him to subordinate the less general under the 
more general, to perceive the relations of the parts to one an- 
other and thus to travel from general to particular, and from par- 
ticular to general, and from a part to its relations to other parts, 
with readiness and ease, to subsume the particulare under the 
general, and to analyze and traD slate the general into the par- 
ticulars that it contains." 

Some of the instances where most beneficial enactments have 
been repealed and not re-enacted have been referred to in my 
memorandum. 

As to the enactments relating to the code itself, I call your at- 
tention specially to section 981, which enacts that, after July 1st, 



44 THE LEGAL NEWS. 

next, two sets of rales of procedure will be in force, one, for the 
offences committed before that date, and one for the offences com- 
mitted after that date. That seemn to me very objectionable 
for obvioas reasons. Please refer to my note under that article 
for my suggestions on the subject. 

Another class of errors may be mentioned. Here again I shall 
not enter into details. They are of a less important nature, and, 
evidently, the result of inadvertence. Some of the class of those 
I here allude to are the eri^ors made in the repeal of the statutes. 
One, for instance, is the repeal of a section that had already been 
repealed. Another one, is the unrepeai of an enactment which 
clashes with an enactment on the same subject. One, and a sin- 
gular one it iSy is in enacting that the code itself shall come into 
force on the \st of July, whilst the repeal of the previous Statutes 
takes eff«'Ct only on the 2nd, So that on the 1st of July itself, for 
twenty four hours, the two sets of laws will be in force. Another 
one, a clear oversight also, has for serious consequence to strike 
out of the law the proviaion for punish irg a master, foreman or 
superintendent of a factory, mill, workshop, /or the seduction nf any 
girl under twenty-one years of age who is under his control and in his 
employment All of these, and there are not a few of them, are 
palpable errora ; I leave it to you, sir, to say whether they do 
not disfigure the measure, to make use, for once, of an euphemism. 

I BBST HERS. — My object is simply to bring to your attention 
what I consider to be serious defects in this legislation, without 
entering into more details than necessary to prima facie support 
my remarks. In fact, the short time at my disposal, at this sea- 
son of the year, would not have allowed me to do more. I have 
not been able to go over the whole of these 983 sections more 
than once, and in such a cursory way, that it is possible that 
some, of them, not many, are not open to the objections I have 
taken. 

There is an observation that I think proper to make, sir, before 
closing, one hardly necessary, yet, which it is perhaps, better for 
me not to omit, so that no room be left anywhere for misrepre- 
sentation or misinterpretation. Whilst addressing this letter to 
you as head of the administration of justice in the Dominion, in 
your capacity of Attorney-General, I wish it to be clearly under- 
stood that I have not committed the mistake to think that you 
are the author of this code of 1892. It cannot be expected, in 
any quarter, that an Attorney-Generars duties, here not more 
than in England, and, perhaps here still less than in England, 



THE LEGAL NEWS. 46 

wonld at all permit him to undertake Bach a task. And when 
Lord Chief Justice Cockburn, in 18 9, addressed his criticisms 
OD a similar measure that I have alluded to, to the Attorney- 
G^eneral of England, he was, likewise, perfectly aware that 
though he had introduced it in the House of Commons, the At- 
tomey-Oeneral had not drafted it. 

Moreover, let me assure you, that, had it at all been possible 
for me to think, for one moment, that you were the author of this 
one, I would certainly not have taken the liberty to address you 
these comments. The mistake!^ have been made somewhere, and 
there lie, perhaps, the principal causes of the ill-succesH, first, to 
place too much reliance on Sir James Stephen's draft; and 
secondly, to form too light an entimate of the difficulties that lie 
in the drafting of a code, a mistake that haH, in England, put 
such powerful arms in the hands of the opponents of codification, 
as to enable them, by itnelf almost alone, to resist successfully, 
so far, all endeavora in that direction. I myself, though, at one 
time, of opinion that a code of criminal law would be of great 
advantage to Canada, and might be prepared without very serious 
difficulties, am free to admit that I, now, have, to say the least, 
grave doubts on the subject. A revision and consolidation, not a 
mere compilation, of the ntatutory law, would, perhaps, be all that 
is necessary in that direction to supply the present needs of the 
administration of justice in Canada. 

Should Parliament, however, not determine to withdraw the 
present one, temporarily at least, I suggest that the ends 
of justice might perhaps require that the date of its coming into 
force should be postponed. 

I have the honour to be, Sir, 

With highest consideration. 

Your obedient servant, 

H. E. Tasohbbsau, 

Judge^ Supreme Court, 
Thb Hon. Sib John Thompson, K.C.M.6. 

Minister of Justice and Attomey-Oeneral. 

P.S. — Following the course adopted by Lord Chief Justice 
Cockburn, in England, when addressing the Attorney-General on 
an analogous subject, I give to this communication the form of 
an open letter. I trust, sir, that you will see no impropriety in 
my doing so. 



46 THE LEGAL NEWS. 

SUPEBMB COUBT OP CANADA. 

Ottawa, Dec. 13, 1892. 
Quebec.] 

McGrbqob v. Canada 'Inyistmint & Aoinot Co. 

Will — Construction — Usufruct — Sheriff's sale — Effect of— 

Art.nil.G.C.P. 

The will of the late' J. McG. contained the following provi- 
sions :— 

'^ Fifthly. I give, devise and bequeath nnto Helen Mahers, of 
the said parish of Montreal, my present wife, the asufruct, use 
and enjoyment during all her natural lifetime of the rest and 

residue of my property movable or immovable in which I 

may have any right, interest or share at the time of my death, 
without any exception or reserve. 

^' To have and to hold, use and enjoy the said usufruct, use 
and enjoyment of the said property unto my said wife the said 
Helen Mahers, as and for her own property from and after my 
decease, and during all her natural lifetime. 

"Sixthly. I give, devise and bequeath in full property unto 
my son James McGregor, issue of my marriage with the said 
Helen Mahers, the whole of the property of whatever nature or 
kind movable, real, or personal, or of which the usufruct, use and 
enjoyment during her natural lifetime is hereinbefore left to my 
said wife the said Helen Mahers, but subject to the said usufruct, 
use and enjoyment of his mother the said Helen Mahers during 
all her natural lifetime as aforesaid, and without any account to 
be rendered of the same or of any part thereof to any peraon or 
persons whomsoever ; should however my said son the said James 
McGregor die before his said mother, my said wife the said Helen 
Mahers, then and in that case I give, devise and bequeath the 
said property so hereby bequeathed to him to the said Helen 
Mahers in full property, to be disposed of by last will and testa- 
ment or otherwise as she may think fit, and without any account 
to be rendered of the same or of any pai*t thereof to any pei*son 
or pereons whomsoever. 

" To liave and to hold the said hereby bequeathed and given 
property to the said James McGregor, his heira and assigns 
should he survive his said mother, as and for his and their own 
property for ever, and in the event of his predeceasing his said 



THS LEGAL NSW8. 47 

mother, nnto the said Helen Mahera her heirs' and assigns, as and 
for her and their own property for ever." 

Heldj affirming the judgment of the Coart of Queen's Bench 
for Lower Canada (Appeal side), 1 B. B. Q. (1892) 197, that 
the will of J. McO. did not create a snbstilation, bat a simple 
beqaeat of nsafruct to his wife and of ownei^ship to his son. 

Heldj also, that a sheriff's sale (decret) of property forming 
part of J. McG.'s estate under an execution issued against a per- 
son who was in possession under a title from the wife, such sale 
having taken place after J. McG.'s son became of age, was valid 
and purged all real rights which the son might have had under 

the will. Art. Ill C. C. P. Pattan v. Morin, 16 L. C. R 267, fol- 
lowed. 

Appeal dismissed with costs. 

Honan and E, Lafleur for appellant. 

Laflamme, Q.C., and H, Abbott^ Q.C, for respondent. 



Ottawa, Dec. 13, 1892. 

Quebec.] 

Aubxbt-GaIiLion v. Bot. 

44-45 Fic, Ch. 90 (P. Q.)'^Toll'bridge^Franchise of^Free bridge 

— Interference by — Injtmctian. 

By 44-45 Vic. (P. Q.), Ch. 90, sec. 3, granting to respondent 
a statutory privilege to construct a toll-bridge across the Chau- 
di^re Biver in the parish of St. George, it is enacted that ''So 
soon as the bridge shall be open to the use of the public as afore- 
said, during thirty yeai*s no peraon shall erect or cause to be 
erected, any bridge or bridges or works, or use or cause to be 
used, any means of passage for the conveyance of any persons, 
vehicles or cattle for lucre or gain across the said river, within 
the distance of one league above and one league below the bridge, 
which shall be measured along the banks of the river and follow- 
ing its windings ; and any person or peraons who shall build or 
cause to be built a toll-bridge or toll-bridges, or who shall use or 
cause to be used, for lucre or gain, any other means of passage 
across the said river, for the conveyance of persons, vehicles or 
cattle, within such limits, shall pay to the said David Boy, three 
times the amount of the tolls imposed by the present Act, for 
the pei*8ons, cattle or vehicles, which shall thus pass over such 
bridge or bridges; and if any person or persons shall, at any 



48 THE LEGAL NEWS. 

time, for lacre or giUn, convey aci-oias the river any person or 
persons, cattle or vehicles within the above mentioned limits, 
such offender shall incur a penalty not exceeding $10 for each 
person, animal or vehicle which shall have thus passed the said 
river ; provided always that nothing contained in the present 
Act shall be of a nature to prevent any persons, cattle, vehicles 
or loads from crossing such river within the said limits by a ford, 
or in a canoe or other vessel without charge." 

After the bridge had been used for several years the appellant 
municipality passed a by-law to erect a free bridge across the 
Chaudidre in close proximity to the toll briilge in existence; the 
respondent thereupon by petition for injunction prayed that the 
appellant municipality be restrained from pr<»cei*ding to the 
erection of a tree bridge. 

Heldy affirming the jiKlgments of the Courts below, that the 
erection of the fve^i bridge would be an infringement of ihe re- 
spmdent*s franchise ofa toll brilgo, and tho injunction should 
be granted. 

Appeal dismissed with c<>bts. 

LemieuXy Q.(7., & TaschereaUy Q.C.^ for appellant 
Fitzpatncky Q.C, for renpondent. 



Ottawa, Dec. 3, 1892. 
Quebec] 

YALLiE V. PaKfONTAINB. 
DdFBESNE y. PaSFONTAINK. 

Builder's privilege— Arts. 1695, 2013, 2103, C. C— Expert— Duties 
of — Proces verbal — Arts. 333 et seg., G, C. P. 

Appeal from judgment of the Court of Queen's Bench, P. Q., 
Vide 1 B. R. Q. (1892), 330. 

Held^ 1. That it is not necessary for an expert, when appointed 
under Art. 2013, C. C. to secure a builder's privilege on an im- 
movable, to give notices of his proceedings to the proprietor's 
creditors, such proceedings not being regulated by ai*t8. 322 et 
seg, C. C. P. 

2. That there was evidence to support the finding of fact of 
the Courts below that the second proces-verbal, or official state- 
ment required if} be made by the expert under art. 2013, had 
been made within six months of the completion of the builder's 
works. 



THE LEGAL NEWS. 49 

3. That it was sufficIeDt for the expert to state Id his second 
proc^verhal made within the six months, that the works des- 
cribed had been executed and that such works had given to the 
immovable the additional value fixed by him. The words com- 
pleted " suivant les rdgles de Tart," are not strictissimi juris. 

4. That if an expert includes in his valuation works for which 
the builder had by law no privilege, such error will not be a 
cause of nullity but will only entitle the interested parties to ask 
for a reduction of the expert's valuation. 

Appeals dismissed with costs. 

Oeoffrion, Q,C., Beigue, Q.C., dh Beaudin, Q,G., for appellants. 
Girauardf Q,0., db Madore for respondent. 



Ottawa, Dec. 13, 1892. 
British Columbia.] 

Be CouNTT Court Judges of British Columbia. 

(Referred by Governor General in Council.) 

ConsUtutifmcU law — Administration of justice --Constitution of Provin- 
cial Courts — Powers of Federal Government — Appointment and 
payment of judges — B, N. A. Act, s. 92, a.a. 14. 

The power given to the provincial governments by the B. N. 
A. Act, s. 92, S.S. 14, to legislate regarding the constitution, main- 
tenance and organization of provincial courts, includes the power 
to define the jurisdiction of such courts territorially as well as 
in other respects, and also to define the jurisdiction of the judges 
who constitute such courts. 

The C. S. B. C, c. 26, s. 14, enacted that "Any county court 
judge appointed under this Act may act as county court judge 
in any other district, upon the death, illness or unavoidable ab- 
sence of, or at the request of the judge of that distinct, and while 
so acting the said first mentioned judge shall possess all the 
powera and authorities of a county court judge in the said dis- 
trict ; provided, however, the said judge so acting out of his dis- 
trict shall immediately thereafter report in writing to the pro- 
vincial secretary the fact of his so doing and the cause thereof;'' 
and by 63 Vict, c. 8, s. 9 (B. C), it is enacted that " Until a 
county court judge of Eootenay is appointed, the judge of the 
county court of Tale shall act as and perform the duties of the 
county court judge of Kootenay, and shall, while so acting, 

2 



50 THE LEGAL NEWS. 

whether sitting in the county couH district of Kootenaj or not, 
have, in respect of all actiong, suits, matters or pi*oceeding8 being 
carried on in the county coart of Kootenay, all the powers and au- 
thorities that the judge of the county court of Kootenay, if ap- 
pointed and acting in the said district, would have possessed in 
respect of such actions, suits, matters and proceedings ; and for 
the purpose of this Act, but not further, or otherwise, the several 
districts as defined by sections 5 and 7 of the County Courts Act, 
over which the county court of Yale and the county oonrt of 
Kootenay, respectively, have jurisdiction shall be united." 

Held, that these statutes are intra vires of the Government of 
British Columbia under the said section of the B. N. A. Act. 

By the Dominion statute, 51 V., o. 47, ** The Speedy Trials Act," 
jurisdiction is given to *' any judge of a county court " among 
others, to try certain criminal offences. 

Held, that this expression " any judge of a county court " in 
such Act, means any judge having, by force of the Provincial 
law regulating the constitution and organisation of county courts, 
jurisdiction in the particular locality in which he may hold a 
'* speedy tinal." The statute would not authorise a county court 
judge to hold a ''speedy trial" beyond the limits of his teiri- 
torial jurisdiction without authority from the ^Provincial legis- 
lature so to do. 

Held also, that the Speedy Trials Act is not a statute conferring 
jurisdiction, but is an exercise of the power of Parliament to re- 
gulate criminal procedure. 

jEmilius Irving, Q.C, for Atiy. Gen. of B. C. 
Sedgewick, Q.C,, for Atty. Gen. of Canada. 



Ottawa, Dec. 13, 1892. 
Ontario.] 

Archibald v. McLaren. 

Action far maliciow prosecution — Reasonable and probable cause — 
Inference from facts proved — Functions of judge and jury. 

In an action for malicious prosecution the existence or non- 
existence of reasonable and probable cause is to be decided by 
the judge and not the jury. 

A., staff inspector of the Toronto police force, laid an informa- 
tion before the police magistrate charging M., a married woman, 
with the offence of keeping a house of ill-fame. In laying the 



THB LEGAL NEWS. 51 

information A. acted on a statement made to him by a woman 
who alleged that she had been a freqnenter of the house o<v 
cnpied by M. and stated facts nufficient, if true, to prove the 
charge. A warrant was issued against M. who was arrested and 
brought before the magistrate, who, after hearing the evidence, 
dismissed the charge. M. and her husband then brought an ac- 
tion against A. for malicious prosecution. 

The action was tried three times, each trial resulting in a judg- 
ment of non-suit which was set aside by a divisional Court and a 
new trial ordered. From the judgment ordering the third new trial 
A. appealed and the judges in the Court of Appeal being equally 
divided the order for new trial stood. A. then appealed to the 
Supreme Court of Canada. 

At the last trial of the action it was shown that A. had re> 
quested the police inspector for the division in which M.'s house 
was situate, to make inquiries about it, and that after the infor- 
mation was laid the inspector informed A. that there were fre- 
quent rows in the house owing to the intemperance of M., and 
that he thought there was nothing in the charge. The trial 
judge did not submit the case to the jury but held that want of 
reasonable and probable cau»&e was not shown ; but the Divisional 
Court held that ho should have asked the jury to find on the fact 
of A's belief in the statement furnished to him on which he acted 
in bringing the charge. 

Held, Taschereau, J., dissenting, that A. was justifiel in acting 
on the statement, and the facts not being in dispute there was noth- 
ing to leave to the jury ; that the trial judge rightly held that no 
want of reasonable and probable cause had been shown, and his 
judgment should not have been set aside and must be restored. 

Appeal allowed with costs. 

Maclaren, Q.C., for the appellant. 
Tytler for the respondents. 



Ottawa, Dec. 13, 1892. 
North West Territories.] 

FAiKcniLD V. Ferguson. 

Promissory note — Form of — *^ Sixty days after date toe promise to 
pay" and signed by manager of company — Liability of com- 
pany on, 

B., manager of an unincorporated lumbering Co., gave a pro- 
missory note for logs purchased by him as such manager, com- 



52 THE LEGAL NEWS. 

menoing " sixty days after date we promise to pay," etc., and 
signed it: '' R., manager 0. L. Co.*' An action on this note 
against the individual memhet-s of the company, was defended on 
the ground that it was the personal note of R. ; that the words 
*' manager/' etc., were merely descriptive of B.'s occupation ; and 
that the defendants were not liable. 

Held, affirming the judgment of the Supreme Court of the 
North West Territories (1 N. W. T. Rep. part 3, p. 41), that as 
the evidence showed that when the note was given both R. and 
the creditor intended it to be the note of the company, and as R. 
as manager was competent to make a note on which the mem- 
bers of the company would be liable, and as the form of the note 
was sufficient for that purpose, the defence set up could not pre* 
vail and the plaintiffs in the action were entitled to recover. 

Appeal dismissed with costs. 

Ewart, Q.Cf for appellants. 

Ferguson, Q.C., for respondents. 



COUBT OF APPEAL ABSTRACT. 

Privilege — Hyjpoth^x — Non-registration — Effect of. 

Appellant, holder of a bailleiur defonds claim on an immovable 
in the possession of M (being the unpaid balance of the pi ice of 
sale from L. to M.) brought the pioperty to judicial sale. Res- 
pondents were collocated by privilege on the proceeds, for the 
amount of an obligation with hypothec exeeuttsd by L. before the 
sale, and tran>ferred to res^pondcnts. The title of L. was not reg- 
istered until afier the sale to M. 

Held, maintaining the collocation, that appellant, transferee of 
the rights of L., held the relation of debtor as regards the res- 
pondents ; thatL. could not, by selling and reserving to himself a 
bailleur defonds claim, create in his own favor a preferential claim 
over that of his hypothecary creditor. Notwithstanding absence 
of registration of title, a hypothecary creditor has a valid hypo- 
thec as regards his debtor, and is entitled to be collocated by 
preference to him on the proceeds of the immovable hypothe- 
cated. — Dolan (& Baf^ er, Montreal, Lacoste, C. J., Bosb^, Blanchet, 
Hall, Wurtele, JJ., June 8, 1892. 



Engineer— Workman and laborer— R.S.Q., 5931.— ilrt. 628, par. 

5, C.G.P. 

Heldf that an engineer engaged on a steamer, and having the 



THE LEGAL NEWS. 63 

sapervision and direction of the motive power, is not, within the 
meaning of Art. 628, par. 5, C.C.P., a workman or laborer (^ope- 
rarius), and therefore his wages are not exempt from seizure to 
the extent of three-fourths thereof. — Cie, de Naoigation R. dh 0. 
db Triganne, Montreal, Lacoste, C.J., Baby, Boss^, Blanchet and 
Hall, JJ., Sept. 26, 1892. 



College of physicians and surgeons — R.S,Q.j 3977 — Construction of — 

— Discretion of medical board. 

Held, that Art. 3977, R.S.Q., which provides that the Provin- 
cial Medical Board " has power to grant the same privilege (i.e., 
a license to practise without examination) to holders of degrees 
or diplomas of medicine and surgery from other British, Colonial 
or French universities or college^," does not make it imperative 
on the Provincial Medical Board to grant such license, but mere- 
ly vests the Board with discretionary power to graator refuse a 
license as they see fit. — College de Medecins et Chirurgiens dh 
Paolides, Montreal, Lacoste, C.J., Baby, Boss^, Blanchet and 
Hall, JJ., Sept. 26, 1892. 



Hypothec — Payment of hypothecary claim by purchaser. 

M. acquired an immovable against which a judgment had pre- 
viously been registered. M. paid this hypothecary claim out of 
the purchase price payable by him only after the extinction of 
an usufruct on the property. When he did so, the time for re- 
newing the registi*ation*of the hypothec had not expired, and he 
did not renew the registration of the judgment within the delay 
of the cadastre. 

Held, that the payment by M. of the hypothec on the property 
was made en temps utile, and had the effect of extinguishing the 
hypothec, and that M. was entitled to retain the amount so paid 
out of the price payable to his vendor. — Kay & Gibeault, 
Montreal, Lacoste, C. J., Baby, Bossd, Blanchet and Wurtele, JJ., 
Dec. 23, 1892. 



Master and servant-— Dismissal of employee — Damages. 

Held, where an employee who is engaged fov a definite term, 
is dismissed without sufficient grounds before the expiration of 
his engagement, and it is shown that he was unable to procure 
work at his trade elsewhere, he is entitled by way of damages to 



54 THE LEGAL NEWS. 

his wages from the date of diBtnissal until the end of the period 
for which he was hired. — Montreal Watch Case Co. <& Bormeau, 
Montreal) Lacoste, C.J., Baby, Blanehet, Hall and Wurtele, J J., 
Nov. 26, 1892. 



Substitution — Institutes — Community — Arts. 947, 949, 0,C. 

Meld, that institutes are entitled to sue for the recovery of a 
debt due to them as institutes, without the curator to the substi- 
tntion being a party to the cause. 

2. Husband and wife communs en hiens, and sued as such, may 
be condemned jointly and severally for the amount of an obliga- 
tion contracted by the wife, for her pet*sonal atfaira, and for which 
her husband became personally liable, even where it is not ex- 
pressly Etated that he binds himself jointly and severally with 
her. — Ouimet & Benoit, Montreal, Baby, Boss^, Blanchet, Hall 
and Wurtele, JJ., Sept. 26, 1892. 



Contract — Sale— Error— Nullity, 

The defendant purchased an immovable pi*operty at auction 
for $5,000. In the conditions of sale were the following words, 
'Uease to be respected, rental £90." This was an unintentional 
error, the lease, which had one more year to run, being for 
£85. The rent was not mentioned in the public advertisements 
of the sale; the seller acted in good faith, and had offered to 
make up the deficiency in rental. 

Held, that the error was not sufficiently serious to justify the 
buyer in treating the sale as a nullity, and in refusing to com- 
plete the purchase. — McBean dc Marler, Montreal, Lacoste, C.J., 
Boss^, Blanchet, Hall and Wurtele, JJ., May 21, 1892. 



Costs— Discretion of court. 
Held, where appellant had agreed to discharge a hypothec in 
his favor, registered against an immovable, and it appeared that 
he had instructed his notary to pi'opare the discharge, but 
through inadvertence no discharge was executed or registered 
until afker the institution of an action against him en radiation 
d'hypothique, the Court of Appeal will not interfere with the dis- 
cretion exercised by the Court below in condemning the appel- 
lant to pay the costs of such action, — more especially as the hypo- 
thec in question was not in fact included in the registered trans- 



THE LEGAL NEWS. 55 

fer of his rights pleaded by appellant. — McLaren dh Laperriire, 
Montreal, Lacoste, C.J., Boss^, Blanchet, Hall, Wurtele, JJ., 
May 21, 1892. 



SirmUatian — Seizure against party not registered owner — Procedure. 

Heldy whore opposant't) title to immovable property, acquired 
by her from a disinterested third party, was duly registered be- 
fore the existence of the claim of a judgment creditor of opposant's 
husband, and no action to annul the wife's deed had ever been in- 
stituted, such creditor is not entitled to seize the property, and a 
contestation by him of the wife's opposition on the ground that 
the deed to the wife was simulate*!, and that the husband was 
the real owner, cannot be maintained. — Lefebvre d: Marsan dit 
Lapierre^ Montreal, Lacoste, C.J., Boss^, Blanchet, Hall and 
Wurtele, J J., May 21, 1892. 



Pledge — Bank — Commercial matter — Knowledge of insolvency — 

Arts. 1036, 1488, 1966/1, (7.(7. 

Reld^ 1. The pledge of goods to a bank by a trader, as col- 
lateral security, the goods in question being held at the time by 
the trader under commercial documents pf title duly endorsed 
and transferred to him, and the pledge being in the course of the 
bank's regular business, is a commercial ma.tter ; and the bank 
receiving such pledge in good faith thereby acquires a valid title 
to the goods, and the right to dispose of the same for its benefit. 

2. A transfer of promissory notos made by a trader to a bank 
as collateral security for a debt due by him to the bank, the 
manager of the bank, at the time of the transfer, having reason 
to know that the transferor is insolvent, is void under art. 1036, 
C. C. — Canadian Bank of Commerce ds Stevenson^ Montreal, Baby, 
Boss^, Blanchet, Hall and Wurtele, JJ., May 21, 1892. 



Jurisdiction — Cause of action—Intervention — Arts, 114, 157, (7 C P. 

Seldf 1. Where the intervening party, within three days after 
allowance of the intervention, fails to have it served upon the 
parties in the case, and to file a certificate of such service, it is 
held not to have been filed, and a motion to dismiss a second in- 
tervention by the same party on the ground that the fii'st is still 
in the record, will not be granted. (Art. 157, C. C. P.) 

2. Where the plaintiff, domiciled in the district of M., revendi- 
cates as his property goods in the pos.session of a defendant domi- 



56 THE LEGAL NEWS. 

ciled in another district, and alleged to be illegally detained by 
him therein, the action, being based on defendant's possession of 
the goods, should be brought in the district of his domicile. 

3. Where an action is manifestly beyond the jurisdiction of the 
Court, it will be dismissed even though no declinatory exception 
has been filed. 

4. A person who intervenes in an action of revendication (the 
defendant making default), in order to contest the seizure, may 
raise the question of jurisdiction by his intervention, without 
having filed a declinatory exception within four days from the 
allowance of his intervention. 

5. The intervening party in such case, is not bound by a con- 
sent to the jurisdiction, pi*oved to have been given by defendant, 
before the institution of the action. — Goldie dh Bascani, Mont- 
real, Lacoste, C.J., Blanche t, Hall, J J., and Boherty, A. J., June 
8, 1892. 



SUPERIOR COURT ABSTRACT, 

Gaming contract —Pledge — Money deposUed with broker as margin 
on speculative stock transactions — Action to recover balance of 
deposit — Interest, 

Held: 1. An action lies for the recovery of money deposited by 
the plaintiff in the hands of a broker, as "margin*' for speculative 
stock transactions which were admittedly mere jeux de bourse ; 
the money in question being the balance renfaining in the 
broker^s hands, as shown by the account rendered by him, after 
pay ment of all losses incurred in the transactions. The illicit 
nature of the debt to secure which a pledge is given, is not a 
ground which the pledgee can invoke as entitling him to retain 
the pledge, — ^more especially where the pledge is given, as in the 
present case, to secui*e merely an eventual indebtedness, which, 
whether licit or illicit, has never existed, the event od which it 
was to come into existence not having occun*ed. 

2. Interest is due on such balance only fi*om the date of service 
of action. — Perodeau v. Jackson, S. C, Doherty, J., Montreal, De- 
cember 10, 1892. 



Circuit Court — Jurisdiction — Contract — Fraud, 

Held, 1. On the contestation of the declaration of a garnishee, 
in the Circuit Court, that that Court has jurisdiction to pro- 
nounce upon the validity of a deed invoked by the garnishee to 



THE LEGAL NEWS. 57 

prove title to goods in his hands, though the price or consider 
ation mentioned in the deed exceed $200. 

2. An onerous contract made by an insolvent debtor with a 
person who does qot know him to be insolvent, and whose acts 
throughout show good faith, will not be set aside as simulated 
and fraudulent.— ii(fam« et at v. Boucher, & Boucher, T. S., Mont- 
real, in Review, Johnson, C. J., Tait and Davidson, JJ., Nov. 30, 
1892. 



Sale d remere — Simulation. 

The sale d remeri by a debtor to enable him to pay part of his ' 
liabilities cannot be attacked as simulated, fraudulent and prefer- 
ential by a creditor who was cognizant of the sale, and himself 
received the proceeds of it. Under such circumstances the rem- 
edy of the creditor is, not to deprive the advancer of his necurity, 
but rather to disinterest him by repaying him, and thus bring 
the security back into the debtor's estate. — Ratti v. Noel et al,, 
and Matte, oppt. S. C, Quebec, Andrews, J., March 23, 1892. 



Officier public — Taxe imposie par V article 1213, S, R. P. Q. 

Juge, Que la taze de vingt pour cent sur Texc^antde la recette 
nette des officiers publics au-dessus de mille piastres, impos^e 
par le statut 45 Vic, ch. 17, sec. 2, codi6^ maintenant dans 
Particle 1213 des statuts refondus de la province de Quebec, pent 
dtre oxig^ des officiers publics qui ^taient en fonctions lors de la 
passation du dit statut. — Turcotte es qual, v. J, G, Auger, Fagnuelo, 
J., Montreal, 9 jan. 1892. 



Droit maritime — Saisie-comervatoire dun vaisseau — Dernier voyagi 
Privilege du dernier equipeur — Art, 2383, § 6, C. C. 

Dans les premiers jours de novembre 1891, les demandeurs ont 
approvisionn^ le steamer Haytor qui fit voile le 5 novembre pour 
Bottexxlam. De \k il alia successivement^ Cardiff, Wales, k Balti- 
more, & Falmouth, k Newport en Yirginie, k Livoume, k Eliza 
qui est une tie sur la c6te d'Espagne, & St. Jean de Terreneuvev k 
Fictou dans la Nouvelle Ecosse. De Fictou il fit voile pour 
Montreal, oii il arriva le 11 mai 1892. Le lendemain les de- 
mandeurs le fit saisir pour assurer leur privilege. 

Jugi, Que toutes ces courses ne constituent, en ^gard au pri- 
vilege accords par Tarticle 2383, § 5, C. C, qu'un seul et m§me 
voyage; que Texpression ''dernier voyage" dont se sert cette 



68 THE LEGAL NEWS. 

article, H'entend da voyage complet d'aller et retoor, et qae co 
voyage n'est achev^ que lorsqae le navire revient an port de 
depart. Que c'est le droit fraD^ais, et non le droit anglais, qai 
fait aatorit^ sur cette matidre. — McLea v. Holman^ C. S., Mont- 
real, Pagnuelo, J., 3 d^cembre 1892. 

Preuve — Copie de document — Action en nulliti de proces-verbal — 
Competence de la Cour Supirieure — Pouvoirs de$ conseils muni- 
cipaux — Proces-verbal — Surintendant spicial et repartition. 

Jugi ;-— 1. La copie d'ane copie d'un proc^s-verbal contenant 
une attestaiion du Becretaire-tr^sorier qu*ii n'exiHte que sous cette 
forme dans ies archives dont 11 est d^positaire, ne constate paa 
I'ezistence du pi*oc^s-verbai, et n*en constitue pas la preuve l%ale 
dans une action intent^e pour le faire annuler. 

2. La Ck>ur Supirieure est comp^tente k connaiti*o d*une action 
par un int^ress^ en nullity d'un proces-verbal homologu^, mdmo 
api ^s Texpiration des trente jours dans lesquels la demande en 
caseation doit dtre port^e devant la Cour de Circuit. 

3. Mais Taction ne pent etre pri-^e avant Thomologation du 
proces-verbal, qui n'est juaque-l^ qu*une information au corps 
municipal auquel il est adress^. 

4. Un conseil municipal pent, par resolution, nommer an sur- 
intendant special pour faire une repartition de travaux en vertu 
d'un proces-verbal qui n*en contieut pas, et le rapport exige par 
Tarticle 809a, C. M,, n'est pas requis en ce cas. Ce surintendant 
pout 6tre choisi en dehors de la municipalite. Art. 204, C. M. 
— Lacoursiere v. Corporation du Comte de Maskinongi, Quebec, en 
revision, Casault, Caron, Andrews, JJ., 31 mars 1892. 



Sale without reserve — Mining rights — R, S. Q, 1421 — Non-apparent 
servitude— C. C. 1519— (7. C. P. 126. 

Held : An unreserved sale of an immovable conveys all mining 
rights on the same, subject to the provisions of the Quebec mining 
laws; and an action will lie to resiliate such sale, or for an in- 
demnity, by the purchaser who subsequently discovers that a 
reserve of such mining rights exists in favor of his vendor's 
auteurs, — Neill v. Froulx, Quebec, in Heview, Casault, Eouthier, 
Andrews, JJ., April 30, 1892. 



Assign»ition — Exception a la forme — Temps moyen et vrai — " Stand- 
ard time,'' 

Jug4 : Le temps moyen k Tendroit oii une assignation est donnee 



THE LEGAL NEWS. 59 

est celui qni doit determiner si elle Ta ^t^ avant eept heures du 
matin, on aprds sept beures dn soir. 

2. D*apr^ le temps moyen ^ Ste. Lace, le 31 octobre dernier, 
la d^fenderesse a ^t^ a^^signee avant sept heares du soir (Casanlt, 
J., diss.). — Leclaire v. GagrU, Quebec, on revision, Casault, Rou- 
tbier, Andrews, J J., 30 avril 1892. 



QUEEN'S BENCH DIVISION. 

Toronto, Dec. 29, 1892* 

Coram Eosi, J. 

Nixon v. Grand TAunk R. Co. 
Railway — Damage to animals — 53 Vict, (D,), ch. 28, s. 2. 

Plaintiff's horses escaped from his farm^ passed down a concession 
road to an allowance for road which was intersected by defend- 
ants' railway^ then along the allowance for road to the point of 
intersection^ and thence along the railway to the place where 
they were struck by a passing train. 

Held : — That the horses not being in charge of any person, were not 
properly within half a mile of the point of intersection, and so 
did not get upon the railway from an adjoining place where, 
under the circumstances, they might properly be ; and notwith- 
standing the absence of cattle-guards the plaintiff was not entitled 
to recover. 

Bosk, J. — Tbis demurrer raises tbe question of tbe proper Qon- 
struction of 53 Vic, cb. 28, s. 2 (D.), repealing a-s. 3 of s. 194 of 
'*The Railway Act," 51 Vict., cb. 29, and substituting a new sec- 
tion therefor. Tbe 51st Vict, repealed Cap. 109, R. S. C. (1886) 
S. 13, wbicb provided for tbe construction and maintenance of 
fences and cattle guards. 

Under s-s 2 of S. 13 the liability of a railway company for 
damages to animals on tbe railway where fences or cattle guards 
were not constructed or maintained was absolute and uncondi- 
tional. 

Surst V. B, dh L. H. £. Co., 16 U. C. R. 299 ; Daniels v. G. T. 
R Co,, 11 A. R., p. 474. 

By the 51st Vict, tbe liability was limited to damages done to 
animals ** not wrongfully on tbe railway and having got there 
" in consequence of tbe omission to make complete and maintain 
** such fences and cattle guaitis as aforesaid." 



60 THE liBGAL NEWS. 

The 53 Yict. introdaced the following provision : ^ 3. If the 
" company omits to erect and complete as aforesaid any fence or 
<' cattle gnardy or if after it is completed the company neglects 
'' to maintain the same as afoi*esaid, and if in consequence of 
*' such omission or neglect any animal gets upon the railway 
'* from an adjoining place where under the circumstances, it 
*' might properly be, then the company shall be liable to the 
'* owner of every such animal for all damages in respect of it 
'^ caused by any of the company's trains or engines ; and no 
'' animal allowed by law to ran at large shall be held to be im- 
'^ properly on a place adjoining the railway merely for the reason 
'' that the owner or occupant of such place has not permitted it 
" to be there." 

A perusal of the cases above referred to as well as of Ferrie ▼. 
Q. T. R, 16 U. C. E. 474; McKennan v. Q. T. A, 8 C. P. 411 ; 
Simpson v. O. W. E., 11 U. C. R. 57 ; Corley v. Q, T. R,, 18 U. 
C. R 96; Conway v. G, T. B., V2 A. R. 708; and Duncan v. C. P. 
E., 21 O. R. 355, will show the history of the legislation, the 
construction put upon it by the Courts and the object and effect 
of the clause above set out. 

The facts appearing upon the recoi*d show that the horses in 
question ''escaped" from the plaintiff's farm, passed down a 
concession road to an allowance for road which was intersected 
by the railway, then along the allowance for road to the point of 
intersection, and thence along the railway to the place where 
they were struck by a passing train. No negligence is chai*ged 
in the management of the train, the only negligence charged is 
in not constructing and maintaining cattle guai-ds or fences. I 
do not see why anything is said about fences, as no fence could 
have prevented the horses going from the highway on the rail- 
way. A cattle guard would no doubt have kept the hoi*ses from 
travelling along the track of the railway, and it may properly 
be said that it was in consequence of the omission or neglect to 
construct and maintain a cuttle guard that the animals got upon 
the railway from the highway. 

Then, was the highway a place where, under the circumstances, 
the animals at the time when they went on the tnick '' might 
properly be?' If they were animals ''allowed by law to run at 
large," the fact that they were on the highway without the per- 
mission of the owners of the road, would not, of itself, be suf- 
ficient to warrant a holding that the animals wei*e improperly 
on the highway. 



THE LEGAL NEWS. 61 

Sec. 271 prohibits the permitting of horsee, etc., to be at large 
upon any highway within half a mile of the intersection of such 
highway with any railway at rail level, *^ unless sach cattle are 
*' in charge of some person or persons to prevent their loitering 
" or stopping on such highway at such intersection." See Simp- 
son V. Q, W. R., supra. 

Ft'om the pleadings we learn that the line of the railway 
crosses the i*oad allowance " on the level.'' It does not appear 
that the horses were in charge of any person \ if not, they were 
not properly within half a mile of the point of intersection, and 
so did not get upon the railway from an adjoining place, where, 
under the circumstances, they might pi*operly be. The case of 
Daniels v. O. T. B.y above referred to, is much in point. See 
also Corley v. O, T. J2., supra. 

In my opinion the defendant is entitled to judgment on the 
demurrer with costs. 

jH. 8. Osier for demurrer. 

Watson, Q.C.y contra. 



ENGLISH TESTAMEXTARY LAW. 

It may be worth while to draw attention to what appears to 
be a serious defect in English testamentary law. No curb is 
placed by the law of England on the arbitrary power of testators. 
If a pernon i^'proved to have been of sound mind, and not under 
undue influence at the time of making his (or her) will, and if 
the will is correct in form, English law will not venture to set 
it aside,no matter how cruel, how unjust, or unnatural may be its 
provisions. Suppose, for instance, a man has conceived some 
unfounded antipathy against his wife and children — a thing that 
sometimes happens — there is nothing to prevent him, according 
to English jurisprudence, fi*om leaving them penniless, although 
he happens to die a millionaire. He may give all his property 
to an utter stranger — to a mistress, for instance — and the law 
will not interfere with his will. As a text-book on Probate Law 
puts it, ' However ridiculous or extravagant the dispositions of a 
will may be, still if the testator was, at the time, of sound mind, 
and not acting under undue influence, the will must be establish- 
ed.' Many examples have been given of absurd and capricious 
wills, which were upheld by the English Probate Court. The 
will of an Englishman, who had at diiferent times, while residing 
in India, professed the Hindoo and Mohammedan faith, and who, 



62 THB LEGAL NEWS. 

to thie excladion of all his relatives, left the balk of his property 
for the benefit of the poor of Constantinople was held to be per- 
fectly valid (Austen v. Graham, 8 Moo. P. C. C. 493). In 1838, a 
man named Boys, a clerk and book-keeper, by his will left all 
his property to a stranger, and directed his executors to cause 
some of his bowels to be converted into fiddle strings, others to 
be sublimed into smelling salts, and the remainder of his body to 
be vitrified into lenses for optical purposes. This extraordinary 
will was uphold (^vide Monthly Law Magazine for 1838, p. 117). 
But surely the sanity of this testator was, at least, open to sus- 
picion. 

Some restraint should certainly be placed on the arbitrary 
power of disinheriting those who have a natural claim on the 
testator. It is easy to conceive a case where a father might 
reasonably punish a worthless son by leaving him merely th^ 
means of subsistence; but the law should be at liberty to set 
aside wills which are inofficious, or, to use a less technical word, 
unnatural. 

Nearly every code of laws, except the English, has limited the 
powers of testators in this rovspect. In the laws of ancient Eome 
there was a form of procedure known as the querela inofficiosi 
testamentij whereby children or other persons who had without 
cause been excluded from the testator's will, could seek to set it 
aside even though it was formally perfect. Even brothers and 
sisters of the half-blood were allowed to bring this suit by the 
laws of Justinian. It should, however, be meutionod that, if 
anything was left to a person by the will, he could not attack it 
as inofficiosum, but he had the right to bring the action in supple- 
mentum legitimce, to have that which was left to him made up, so 
as to equal the fourth part of what he would have taken ab in- 
testate. 

The testator's power of disposition is greatly restricted in 
France and Spain. In France, if a man at the time of his doath 
has only one legitimate child, he cannot dispose of more than a 
moiety of his goods ; if he leaves two children, he can only dis- 
pose of a third, and if he leaves three or four he can only dis- 
pose of a fourth. In Spain, he who has a child, grandchild, or 
other deiicendant, can only will one-fifth to strangers. If he has 
no legitimate off^spring he may give all to his illegitimate child- 
ren ; and a woman may, in the absence of legitimate offspring, 
leave all she dies possessed of to illegitimate children, provided 
they are not the fruit of adultery. The Italian law has some- 



THE LEGAL NEWS. 68 

what similar provisions. In Tarkey there is no power of making 
a will, and the law disposes of a man's property. Of course, there 
is an exception in the case of non-Turkish subjects residing in 
the Ottoman Empire. 

Nature, and the elementary principles of justice, demand that 
no man should have the power, through mere caprice or malice, 
of beggaring his wife and children. English law bas failed to 
recognise this principle, and, therefore, it is desirable that, either 
by statute or otherwise, the powers of testators should be cur- 
tailed within reasonable limits. — Irish Law Times. 



GENERAL NOTES. 



Trespass by Subterranean Squeezing. — A recent New Jer- 
sey case (jOostigan v. Pennsylvania Railway Company ^ 23 Atl. E, 
810) presents a rather novel instance of trespass. The declar- 
ation charged that the defendants wrongfully and injuriously 
madA, on their own land, an embankment so heavy that the 
downwai*d pressure (two hundred thousand tons), causing an 
equal lateral pressure, forced earth and gravel, lying below the 
suiittce in the defendant's land, into the plaintifTs land, thereby 
disturbing the surface of the plaintiffs lot, moving his house on 
to land not his, and cracking its foundation. The defendants 
justify under their charter, the embankment being properly and 
carefully built. The Court holds that while the charter justi6es 
any public damage from reasonable working of the road, as 
injury arising from noise, smoke, cinders, vibration, any damage 
which in its nature ia distinctly private is not within their 
privilege. This decision, that such an embankment is not within 
the legislative sanction, which on the facts stated seems open to 
doubt, leaves the question as though the act had been done by a 
private individual, and the result of the case is that no man shall 
squeeze his neighbour's land, even below the surface. To say that 
a man cannot put buildings of the size he chooses on his own 
land is at first a startling doctrine ; but if the plaintiff can prove 
actual transfer of particles of earth from his neighbour's lot to his, 
however far below the surface, it seems to follow necessarily that 
there is a trespass. Of course, as every downward pressure 
produces lateral pressure, and pressure is displacement, a man 
trespasses with every step he takes on his .own land. It also 
follows that, since the right to support extends only to the land 
itself, a man is absolutely responsible for all damages to his 



64 THE LEGAL NEWS. 

neighbour's land resulting fi-om building on his own, however firm 
his land and however loose that of bis neighbour. It is needless 
to add that the unmetaphysical sympathies of juries, as well as 
the infrequency of violent subterreanean displacements, will keep 
this scientific principle within due limits. — Harvard Law Review. 



Personal {Statistics. — ^The oldest Cabinet Minister is the 
Right Hon. William Ewart Gladstone, M.P., First Lord of the 
Treasury and Loixi Privy Seal, aged eighty-three yeara; the 
youngest is the Right Hon. Herbert Henry Aequith, Q.G., M.P., 
Secretary of State for the Home Department, aged forty-one. 
The oldest member of Hel' Maje>ty'8 Privy Council is the Right 
Hon. Sir James Bacon, aged ninety-four; the youngest, the Right 
Hon. Loi-d Walter Gordon-Lennox, M.P., aged twenty seven. 
The oldest member of the House of Commons is the Right Hon. 
Charles Pelham Yilliers, M.P. for the Southern Division of the 
Borongh of Wolverhampton, aged ninety-one; the youngest, Mr. 
William Shepherd Allen, M.P. for the Boi*ough of Newcastle- 
under-Lyme, aged twenty-two. The oldest judge in England is 
the Right Hon. Lord E.sher. Master of the Rolls, aged seventy- 
six ; the younge>t, the Hem. Sir John Gorell Barnes, of the Pro- 
bate, Divorce and Admiralty Divihion of the High Court, aged 
forty -four. The oldcr^t judge in Ireland is the Hon. John Fitz- 
Henry Townsend, LL.D., of the Court of Admiralty, aged eighty- 
two; the youngest, the Right Hon. John George Gibson, of the 
Queen's Bench Division, aged forty-six. The oldest of the Scotch 
Lords of Session is the Right Hon. George, Loi'd Young, aged 
seventy-three ; the youngest, the Right Hon. Loixi Robertson, 
Lord Justice-General, aged forty-seven. — Who*s Who in 1893. 



MES3iERi8u. — The following curious and interesting question is 
asked by Law Notes : ** If A. mesmerizes B. and induces him to 
disclose his most private affairs, can B. have a summons for 
assault against A.? A metropolitan magistrate the other day 
declined to grant one. What is the remedy, a civil action for 
damages ? " It has struck us on several occasions of late that 
before very long the difficulties of the magistrate and of the law 
may be very appreciably increased by the constant recurrence 
of questions connected with the conduct of hypnotizers, mesmer- 
izers and others of the kind toward patients, particularly females. 
The existence of a mysterious power for evil, in the nature of 
hypnotization, cannot be denied or ignored. — Indian Jurist 



T j-j "g^ 

LBGAL NBWS. 

VOL. XVL MARCH 1 & 15, 1893. No8. 5 & 6. 

CURRENT TOPICS AND CASES. 

The courts are seldom called upon to deal with a more 
complicated and yoluminous case than that of the Labra- 
dor Company, reported in the present issue. Lord 
Hannen, with his usual ability, and clearness, has 
delivered a judgment whi(*h shows that the case has 
received very close attention, and it is satisfactory to 
find that he has discovered no reason for differing from 
the conclusions reached by our Court of Appeal. The 
case also possesses some historical interest, involving as 
il does a review of titles extending back more than two 
centuries. 



Three of the numerous holidays which have been 
observed by the Courts of the Province of Quebec and by 
Parliament, are about to disappear from the legal calen- 
dar. Hon. Mr. Angers has introduced a bill in the senate, 
which provides that '* the Annunciation, Corpus Christi 
and the Festival of St. Peter and St. Paul shall not 
henceforth be holidays.*' This is in compliance with 
the wish of the Roman Catholic Church, and will also 
be enacted in the Province of Quebec. 



An elaborate criticism of the Canadian Criminal Code, 
by Mr. Justice Taschereau, of the Supreme Court, in the 
form of a letter to the Minister of Justice, appeared 
in our last issue. Several defects of importance are 



66 THE LEGAL NEWS. 

pointed out. The observations contained in the letter 
are accompanied b7 a commentary on the articles criticised, 
in which the writer states at greater length the objections 
suggested by an examination of the Code. The observa- 
tions of the learned judge, who, from his study of the 
criminal law, is an authority on the subject, indicate the 
wisdom of the course pursued in postponing for a time 
the coming into force of the Code. It has been pertinent- 
ly remarked, however, that these observations would 
have been more useful if they had been presented while 
the bill was under consideration. Some of the topics 
treated were not overlooked while the measure was 
before the House. Other defects pointed' out by the 
learned judge will be remedied by a short amending . act. 



One point to which Mr. Justice Taschereau has directed 
attention is of considerable importance, that is, the neces- 
sity of some guiie to the changes which have been 
actually effected in the criminal law. The Civil Code 
Commissioners indicated new law by placing within 
brackets the clauses which changed the old law. These 
aids have been found of great value. The Commissioners 
also framed reports in which the changes were com- 
mented upon. Every lawyer who has practised since 
the introduction of the Civil Code knows how miich 
confusion has been avoided by these reports, and how 
frequently they have been referred to. If it were possible 
to have some substitute for these reports, in regard to the 
Criminal Code, much of the diflBlculty of finding the law, 
to which Mr. Justice Taschereau makes pathetic allusion, 
would be removed. 



The important bill introduced by Attorney G-eneral 
Casgrain, in the Quebec legislature, aflfecting the judicial 
system, has been postponed for a year. This delay is 
demanded by the bar, in order that the changes may be 



THE LEGAL NEWS. 67 

fully considered. The principal features of the bill, 
creating two orders of judges, reducing the number of 
superior judges, and permitting them to reside in the 
large cities, seem to offer great advantages. 



JDDICIAL COMMTTTEB OP THE PBIVY COUNCIL. 

London, Nov. 19, 1892. 

Present: Lords Watson, Hobhousk, Maonaghten, Morris 
and Hannen. 

Labrador Co. v. The Queen. 
The Queen v. Labrador Co. 

Act of Parliament — Statement contained therein — Force of — Scfied^ 
uh %indfr Seigniorial Act — Seigniory cf Mingan. 

Held: — 1. ItU not competent for a court of law to disregard an abgohUe 
ttatement of fact contained in an Act of the legvdatwre, even if it could be 
proved thcU the Ugidature vxu deceived. If a mistake has been made in 
an Act the legisiature alone can correct iL So, it being stated in the 
Seigniorial Amendment Act of 1856 (19 Vtc c 53, «. 10), that there toas 
a Seigniory of Mingan, the courts are bound to give effect to such determin- 
cUion* 

2. Where the schedule made under the Seigniorial Act of 1855 has been de- 
posited without complaint being made by any person interested therein^ 
it mutt be deemed to be correct^ and to establish conclusively the existence 
and boundaries of the Seigniory therein described. 

Lord Hannen: 

The subject matter of these appeals is a tract of country on the 
northern shore of the Gulf of the St. Laverenco, extending from 
Cape Cormorant to the Strait of Bolle Isle, a dl^tiince of more 
than 400 miles, with a depth of >ix miles. 

The Lab. ador Company is in possi'ssion of thi:^ territory. The 
Attorney General for the Province of Quebec, on behalf of ffor 
Majesty, seeks to recover it from the company, who claim title 
to the whole of the land in question under a grant alleged to have 
been made in 1661 to one Francois Bissot by ''the Company of 
" New France," deriving its powers from the Crown of Finance. 
The Labrador Company also claimed a title by prescription and 
immemorial possession. In answer to this claim the Attorney- 
General denies that the alleged grant of 1661 gave a title to the 



68 THE LEOAL NSWfi. 

land in qaestion, or that a title by presoription can be aoqmired 
against the Crown. He also alleges that the grant to Bissot was 
revoked by the French Crown and abandoned by Bissot's suc- 
cessors in title. The com pany failher rely on certain alleged 
acts of recognition by the Crown, which they contend preclude 
the Crown from setting up the said revocation and abandonment 
of the grant, or from denying its validity. 

The judgment of the Superior C ourt affirmed the title of the 
Crown to the larger portion (about 250 miles) of the tract in 
dispute, leaving the company in possession of the rest. The 
river Agwanus or Gognish was taken as the dividing line, the 
Crown recovering all that lies to the east of that river, and the 
company keeping all that lies to the west. 

Both parties appealed from the judgment, and the Court of 
Qaeen's Bench dismissed both appeals. 

The basis of the company's claim is the alleged grant of the 
25th Febrnaiy, 1661. It is necessary, therefore, in the first place, 
to examine the nature and extent of th is grant. In 1627 a com- 
pany, called the Company of New Fi*ance .(oi* of the Cent 
Associes) was formed, to which the King of France conceded 
the pays de la NouvelU France^ including the land in ques- 
tion, "en toute prapriete, justice et seigneurie*^ with right to 
distribute the lands. The rights of this company were subse- 
quently surrendered to the King, and by him ceded to a freeh 
Company, called *^the Company of the West Indies ;'' but, in 
1661, while the Company of New Fitince retained its original 
powers, it made, on the 25tli February of that year, a grant 
to Fi*an90is Bissot, under whom the Labrador Company claim as 
successors in title. 

This grant is no longer in existence, the original document, as 
well as the copy supplied to Bissot, having been destroyed by 
fire. Before their destruction, however, Francois Bissot, on the 
11th February, 1668, made an aveu, or declaration, to the 
Company of the West Indies, the successora of the Company of 
New France, setting forth the grant made to him by the last* 
named company in 1661. This aveu has been preserved, and it 
has been treated throughout these proceedings as containing a 
correct statement of the original grant. 

This aoe\i is in the following terms : — 

'' Francois Bissot, Sr. de la Bivi^re, lequel avoue et declare 
tenir de nos Seigneura Tlsle auz CEufs, situ^e au dessous de 
Tadonssac, vers les Montpell^, da cost^ du Noi*d, quarante lienea 



THE LEOAL NEWS. 69 

ou environ dad. Tadoossac, aveo le droit et facalt^ de chasse et 
d'^tablir en terre ferme auz endroits qa*il troavera pins com- 
modes, la peBche sMentaire des loaps marins, baleines, maraoains, 
et lea aatres n^goces, depats la dite Isle aux (Eafs jusqa*aax 
Sept Isles et dans la Grande Ansa, vers les Esqaimaiiz oH les 
Espagnols font ordinairement la pesche, avoc les bois et terres 
n^cessaires poar fa re le dit ^tabltdsement Le toat & lay appar- 
tenant par titre do conc^^ssion en date da 25 F^^rrier 1661, sign^ 
par extrait des d^lib^ititions de la Compagnio de la Noavelle 
France, A. Chefaalt, ii la charge de payer par chacan an, deax 
castors d*hyver, oa dix livres toarnois aa recev^eur de la dite 
compagnie, et les droits accoatam^s poar lu ti*aite & la com- 
manaut^ de ce pays, aa bas daqael titre est ^crit Dubois Danaa- 
goar, ratiffi^ le don qae dessas de laqaello dite declaration il 
noas a rcqais acto et a sign^. Ainsi signd. Bis sot, avec paraphe. 

''Sarqaoy, oiiyle procareoi* fiscal, nous avons accords acte 
aa dit sieur Bissot de son dit avea et declaration, et iceley coo- 
damne payer la dite redevance, tant poar le p^iss^ que poar 
ladvenir, suivant et conformiment aadit titre de concession, sans 
n^antmoins que le dit acte paisse dtre tir^ k consequence n*y 
prejadice, remettantaa Boy ou k la compagnie de faire valoir le 
dit titre oa point. Mandons, &c. 

'' Donne par nous Loais Theandre Chartier, Bscayer, Seigneur 
de Lotbiniere, Conseiller da Boy, Lieutenant-General Civil et 
Criminel, 4 Quebec, les assizes tenant le onzidme jour de Fevrier, 
1668." 

It is not disputed that this concession gave to Bissot the 
seignearie of the Isle aux (Eafs, situated some distance to the 
west of Cape Cormorant, the western boundary of the land now 
in question. The contest arises on the passage commencing 
*'Avec le droit et faculte de chasse^ kc'' 

For the Crown it is contended that the effect of the grant is to 
give the seignearie of the Isle aux (Eafs^ with the accessory 
right of hunting, &c., on the mainland within certain limits, the 
extent of which will be considered later. The company, on the 
other hand, contend that this grant gave a seignearie, not only 
in the Isle aux CEufs^ but in the territory on the mainland 
witLin the defined limits. 

Their lordships are of opinion that th'^s contention of the 
company is wholly antenable. They agree on this point with 
the opinion expressed by all the judges in the courts below, 
that the rights to be exercised on the mainland are only 



10 THE LEGAL NEWS. 

acce^pory to the seignearie of the island. They consiHt in the 
permiHsion (not to take pos-^eHbion of a defined district on ifae 
mainland, but) to establish at sach places as may be most con* 
venient, tized stations for the capture of seals, &c., with the 
privilege of taking the timber and land neccBsary for the Chtab- 
lishment of sach stations. This last- mentioned provision effect- 
ually excludes the idea that the whole land was conceded to 
Bissot in fee, in which case it would have been superfluous to 
give him the right to take the wool and land necessary for the 
stations. Further, the reservation of an annual payment of two 
beaver skins for the right to hunt and fi^h is stated by the Chief 
Justice Sir A. A. Dorion, in the judgment of himself and his 
colleagues, to be inconsibtent with the hypothesis that a fief on 
the mainland was granted, and this appears also to have been the 
opinion of Mr. Justice Bouthier, and it has not been controverted 
before this Board. 

One fact remains to be noticed, tending strongly to negative 
the company's contention that a seigneurie on the mainland was 
conceded by the grant of 1661. That document contains no 
limitation inland of the supposed fief. It might therefore as 
well have been made the basis of a claim to the whole territory 
northwards forming part of La NouvelU FYance, as to the 
lai^d for six miles inland. A license to make stations for fishing 
and hunting, and trading with the natives in an unsettled country 
might naturally be given without fixing its limits inland, but it 
cannot be supposed that a fief would be created without some 
indication of what its boundaries were to be. 

This leads to the consideitition of the question, over what 
extent of territory on the mainland is the right of establishing 
stations for fishing, &c., conceded ? It is thus defined : '' Depuis 
*' la dite Isle aux (Eufs jusqu*aux Sept Isles, et dans la Grande 
" Anse, vers les Esquimaux oii les Espagnols font ordinairement 
*' la pesche," that is " from the said Isle aux CEufs up to the 
'' Seven Islands, and in the great cove in the direction of the Esqui- 
" maux where the Spaniards usually fish." In English there can 
be no doubt this means that the fishing stations may be established 
in the land between the I$le aux (Eufs and the Seven Islands, 
and also in the Grande An&e, It -has, however, been contended 
that the proper construction of the French is different, and that 
the force of the word "jusque" is earned on to the word ^'dans,'* 
and that the passage has the same meaning as if it had run 
^'jusqu' aux Sept Isles et jusque dans la Grande Anse." No 



THS LEGAL NEWS. 71 

aathority for this constraction has been given, and all the judges 
in the court belo% whose mother tongue isi French, agree that 
the right of establishing a station in the Grands Anse is distinct 
from the right to make stations up to the Sept Isles. Mr. Jus- 
tice Bjuthier says: '*Cos derniers mots comprennaiont-ils toiite 
*^ ia terre ferme depnis les Sept Isles jusqu'k la Grande An^e 7 
'^Jenele crois pas, car, autrement, on aurait fiz6 T^tendue de 
" ia concession depuis 1' Isle aux CEufs jusque dans la Gmnde 
*' Anse.*' And Chief Justice Dorion thus paraphrases the grant : 
*' Que la concession ^tait de Tlsle aux (Eufs en seigneurie, et de 
" pins le droit de faire des ^tablissements de p§che et de chasse sur 
'^ la cdte Nord jusqu'aux Sept Isles, puis dans la Grande Anse 
''vers les Esquimaux." Their lordships have no doubt that 
this is the correct interpretation of the grant, and that it con- 
ceded to Bissot no seigneune on the mainland, but only a 
right to make establishments for fishing and bunting up to Sept 
Isles and also in the Orandd Anse, Where that Grande Anse 
was situated will be considered hereafter. 

It may be convenient at this point to refer, in order of date, 
to a map of 1678, which has been relied on as showing that a 
aeigneurie on the mainland was recognized as belonging to 
Biasot; This map is described as one " pour servir & r^claii^cisse- 
** ment du papier terrier de la Nouvelle France," and was dedi- 
cated to the Minister Colbert by the Intendant Duchesnoau. 
Upon this map is printed **Seigneurie du Sieur Bissot," stretch- 
ing along the coast fi-om a little east of the Sept Isles to a place 
about two-thirds along the '' Isles do Mingan." These islands 
fpllow one another to a river along which is written " Esqui- 
maux," and at a short distance eastward ''^Baye des Espagnols " 
is inscribed. 

The bearing of this map on the question of boundary will, so 
far as is necessary, be referred to by-and-by. Its value as evi- 
dence of a seigneurie on the mainland is now the subject of 
consideration. The utmost effect that could be given to this 
map would be as evidence of reputation at the date it bears of 
the existence of such a seigneurie ; but this must necessarily give 
way before the proof which the representatives of Bissot have 
supplied that this grant to him did not in fact concede a seig- 
neurie on the mainland. But undue importance has been given 
to this inscription on the map. Bissot had, in fact, a seigneurie, 
namely, that of the Isle aux (Eufs to which belonged as an 
-accessory a right of making establishments for hunting, fishing, 



72 THE LSOAL NEWS. 

ftc., on the mainland. It was not necessary for the purpose of 
the chartographer that all this shoold be set oat on the map. 
What was of importance to him was to indicate over what extent 
of coast Bissot exercised rights whatever they might be, and he 
did this by writing the words referred to. This interpretation 
is indeed impliedly adopted by Mr. Jastice Bonthier, who is 
most favorable to the contention of the Labrador Company. 
He says (Record p. 731), speaking of the right of continaing the 
establishment of Mingan, *' Comme cette exploitation 6tait an 
" accessoire de Tancienno seigiiearie de Tile aax (Eafs, il n*est 
"pas ^tonnant qae dopuis des temps recall on Tait appelfo 
" seignearie du sieur Bissot." 

But it is contended on behalf of the Labrador Company, that, 
even if the grant of 1661 did not in itself create a seignearie on 
the mainland in favoar of BisHOt, this effect was produced by an 
Ordonnance of Intendant Hocqaart in 1733, and the subse- 
quent action upon it by the French Crown. 

This Ordonnance was pronounced in a sait instituted in 1732 
by Pien*e Cartier, the *' Adjudicataire G^n^ral des Fermes 
Unies de France, et du Dvimaine d'occident," against the heirs 
of Fran90i8 Bissot (who had died in 1676), and the heirs of 
Sieurs Lalande and Louis Jolyet, to whom the seigneuries of the 
isle and islets of Mingan had been granted by the French Crown 
in 1679, calling upon them to show by virtue of what title they 
had taken possession of the territory occupied by them on the 
'* terre du nord " (i.e., the mainland north of the St. Lawrence) 
below the river Moisy up to the Bay of the Spaniards. 

The " Adjudicataire G^n^ral " did not dispute the title of 
Jolyet (deceased) to the Isles of Biiugan, described in the grant 
of 1679 (Record, p. 225), as the "Islets du Mingan du c6t4 du 
'^nord et qui se suivent jusqu*^ Tanse des Bspagnols." He 
only required the title to anything claimed on the mainland. 
The seigneurie of the isles and islets of Mingan will therefore 
only be of importance in considering the question of boundary. 

In answer to the demand of the " Adjudicataire Gr^n^ral " the 
defendants relied solely on the grant of 1661, under which they 
alleged they had formed establishments and had continual 
possession for 71 years, and they conclude by a specific claim to 
be maintained in the possession and enjoyment of the lands granted 
to Francois Bissot, deceased, " in accordance with the title of 
" concession of the 25th February, 1661." 

In reply the '^ Adjudicataire G^n^ral," after taking the objec- 



THB LBGAL NEWS. 78 

tion, not now insisted on, that the grant of 1661 was in conflict 
with certain earlier grants, said that, admitting the grant of 
1661 and the declaration of 1668 as valid title deeds, and con- 
struing them in the sense most favoarable to the defendants, the 
grant gave no proprietary title except on the Isle aax (Eiifs. 
On the mainland it conferred no right of ownership, bat only 
the right to establish there " la peschesMentaire,'* from I'hle aaz 
GSufs np to the Seven Isles and in the Bay of the Spaniards, 
''a right," he continues, ''which it would have been useless to 
'' express, if the intention of the concession had been to give a 
/' right of property, and which by its expression positively ex- 
" eludes a right of property.*' He then presents substantially 
the arguments against the then defendants' claim, which have 
been repeated before this Board, and he procee^ls, '* Though the 
'' defendants have not even the right to make establishments in 
'^ the tract of countiy from the Seven [slands up to the Bay of 
'Hhe Spaniards, it is in ponsequence of their title of concession 
'Hhat Bissot, deceased, has founded the establishment of Ifiui^an 
''continued by the defendants, for which they allere a continued 
" possession of 71 years. Having regard to this long enjoyment 
" of the scigneurie of Mingan, be will not dispute it, provided 
"that they be limited to a concession of which the limits shall be 
"certain and determined, so that they cannot injure or prejudice 
"the 'Traites du Domaine du BoL' It is at Mingan that they 
" have fixed their establishment on the mainland. The Farmer- 
" General will not offer opposition to the enjoyment of it being 
" continued to them, and even that the property in it be accorded 
" to them by a new title, if His Majesty should think fit to 
" accord to them as recompense the establishments which they 
" have made there." The Mingan here refeiTcd to as the place 
where the defendants are said to have fixed their establishment 
on the mainland is a station on the mainland opposite to the 
islands of Mingan, and is marked on several maps as the Min- 
gan settlement. 

The " Adjudicataire (r^n^ral " concludes by demanding that 
he be maintained in his right, to the exclusion of all others, to 
exercise trading, hunting, fishing, and commerce in the tract of 
the domaine between I'lsle aux Ck>udres up to and including the 
river Moisy, that the defendants be condemned to pay him the 
arrears of the annual dues of two beaver skins or ten " livres 
Toumois" from 1661 to the then present year, unless they 
should prefer to give up (" se ddsister de ") the said concession, 



^74 THB LKOAL NEWS. 

and consent to the reunion to the domaine of the Raid seigneurie 
of the lale aax (Eufd, which they long since abandoned, and 
moreover also to pay the does for the trading which they had 
carried on at Ifingan ; and that the said defendants bo boand to 
take a new title for the establishment made by them at Mingan 
aforesaid, to commence from Cormorant Point ('^ en allant *') in 
the direction of the Bay of the Spaniards, with such depth and 
on (payment of) such daes as it should please His Ifajesty to 
accord them. 

By way of rejoinder to the reply of the '' Adjudicataire G^n- 
^ral/' the defendants reassert in general terms their claims, and 
ask whether their possession for 70 years, and the expenses they 
have been put to, and the. losses they have suffered f^om the 
English in times of war, paght not to serve them in the place of 
title, and they conclude that though they have proved their 
right, they consent to the river Ifoisy being the western limit 
of their concession up to the Bay of the Spaniards, and therefore 
they pray that they may be relieved from the payment of the 
dues with which that territory is charged, and that they may be 
given a new title to it. 

This was the state of the controversy which the Intendant 
Hocquart had to decide. After reviewing the pleadings, Mon- 
sieur H^ocquart gave his judgment as follows : — 

He took notice of the abandonment by the defendants of the 
territory conceded to Fmnyois Bissot, deceased, by the Com- 
pany of '*Nouvelle Fi*ance" on the 25th February, 1661, from 
the Isle aux (Eufs up to the river Moisy, and in consequence, as 
far as was necessary, reunited to the domain of His Majesty the 
said territory conceded to the said Fmnyois Bissot from and in- 
cluding the Isle aux (Eufs to Cormorant Point, four or five 
leagues below the river Moisy ; forbade the defendants and all 
others directly or indirectly to exercise any trading, hunting, 
fishing, commerce, or establishment in the territory so reunited, 
or in the said river Moisy and its affluent lakes and rivers ; 
and, in consideration of the abandonment aforesaid by the de- 
fendants, he discharged them from any arrears which might be 
due fi*om them, and '' as to the ne^ title of concession required 
" by them for the establishment mode by them and their pre- 
^' decessor Francois Bissot at the place of Mingan aforesaid, the 
" parties shall apply to His Majesty to obtain the same, with 
"such frontage and depth and on payment of such dues as His 
" Majesty shall be pleased to grant.'* 



THE LSOAL NEWS. 76 

The eifei't of this " OnlonnQme " wasenliroly to pnt an end to 
the seignearie in the Inle aux (Eufrt« and to the righlB, whatever 
they were, which had been conceded to BisBOt by the original 
grant, as far as Cormorant Point, and to reannex the district 
from and including the said Isle aux (Eafs up to Cormorant 
Point to the domain of the King. This, with the remission of 
the arrears, was the whole operative part of the *' Ordonnance." 
As to the request of the defendiints that the limits of their con- 
cession should be from the river Moisy to the Bay of the Span- 
iards, and that of this district a new title should be granted to 
them, this was not acceded to. The district for five or six 
leagues eastward of the river Moisy was reunited to the Crown, 
and no mention whatever of the Bay of the Spaniards is made, 
and the defendants are remitted to the Crown to obtain a new 
title for '* the establishment made by them and the said Fran- 
'' 9ois Bissot, at the place of Mingan aforesaid," for such frontage 
and depth as His Majesty might think fit to grant 

Francois Bissot, the son, addressed several petitions for a new 
title to the Comte de Maurepas, the French Secretary of State. 
In these petitions he set out the substance of the original grant 
of 1661, explained that his father had made his first establish- 
ment at Mingan, where the family residence was formed, but 
that he had made many others at different places, which, after 
they had been destroyed by the English, had been from time to 
time re-established. He stated that the limits of the Boyal 
domain had been fixed by Hocquart at Cormorant Point, and he 
prayed that he might be continued in the remainder of his con- 
cession ftom that* point '< down the river to the conceded lands " 
(by which appears to be meant, conceded to other persons), and 
the exclusive, privilege of continuing there his establishments, 
and others if possible, for the hunting of seals, with the rights 
of hunting and trading with the savages such as he and his late 
father had enjoyed for 70 years. 

The result of a correspondence which followed between the 
Comte de Maurepas and the Marquis de Beauhamois, the Gh>v- 
,emor of la Nouvelle France, and the Intendant Hocquart, was 
that the Comte de Maurepas stated, in a letter to M.M. de Beau- 
hamois and Hocquart, that the circumstances of the case would 
have determined him to propose to the King to confirm the 
heirs of Bissot in the possession of a part of the coast conceded 
by the grant of 1661, and to fix their condition ; but that, having 
regard to the existing circumstances of the family, and the dis- 



76 THE LEGAL NEWS. 

cnssions which saoh a confirmation might give rise to, he had 
taken the coarse recommended by M. M. de Beaaharnois and 
Hocqnart, to suspend all determination on the sabject, and that 
he had only indaced the King to agree that the heirs (of Bissot) 
should enjoy sach extent of coast as they (Beaaharnois and 
Hocqaart) had designated in their letter, from the boundary of 
Tadoussac down the river to the concession of the Sienr Lafon- 
taine, with such depth as they (Beauharnois and Hocqaart) 
should think right to fix ; and he concladod with a request that 
they would consider whether it would be convenient to leave 
them this extent of territory, or whether it would not be right 
to reduce it for the purpose of locating other concessionaries. 

It does not appear that these suggestions of M. de Itaurepas 
were ever communicated to the heirs of Bisr^ot. No new title was 
ever granted to them. This letter imports no engagement on 
the part of the Cmwn to give one ; it contains only the expres- 
sion of a p )s8ible intention to do bO if, upon the examination of 
this matter by M)f. Boiuharnbls anl UoCH^uart, it should be 
thought expedient No further action on the subject is shown. 
No boundary inland was ever fixed. All that can bo inferred is 
that the representatives of Bissot continued to carry on their 
stations for fishing, &c., at Mingan as before. Their lordships, 
therefore, are of opinion that the judgment of Hocquart and 
the action of the French Crown upon it did not create or recog- 
nize any title in the heirs of Bissot to a seigneurie on the 
mainland. 

Nothing between the date of M. de Manrepas'.letter down to the 
cession of Canada to England in 1763, calls for observation. In 
1766 the representatives of Frangois Bissot laid before the 
British Government a claim to be proprietors of the '' terre 
ferme de Mingan," commonly called '' the seigneurie and post 
of Mingan.'' In support of their claim they do not appear to 
have furnished evidence of the contents of the grant of 1661, but 
they relied on an *' Acte de Notori^t^," signed by several citizens 
and notables of Quebec, two of whom, at least, were parties 
interested, to prove an immemorial possession of the seigneurie 
of the mainland of Mingan by the heira of MM. F. Bissot and 
Lewis Jolyet. This claim was referred to the law offioera of the 
Crown in England, who, in the year 1768, reported upon it 
After observing that *^ the claim is of an exclusive right of pro- 
^* perty in the soil containing originally, in extent along the 
''^ north shore of the Biver St Lawrence f^om the Isle of Eggs 



THE LEGAL NSWB. 77 

'< to the Bay of Phellipeaux which appears to be about 500 miles^ 
'' and in depth into the coantrj withoat bounds or limitation/' 
bat of which a space of about 30 leagues from Egg Island to 
Cape Cormorant was acknowledged to have been surrendered^ 
the law officers comment on the uncertainty of the grant, as well 
as of possession, and they conclude, " Under these circumstances, 
'' we are of opinion that this claim, standing as it' does at pre- 
'^sent upon these papers, coald not in any judicial inquiry be 
''allowed in point of law as valid and effectual ; at the same time 
" there is reason to think that some part of this family has been 
'' in some kind of legitimate and authorized possession of some 
" particular parts of the shore within the limits described, but 
'' the ground, the nature and extent of such possession does not 
" appear at present in such au thee tic manner as to be capable 
''of receiving any judicial confirmation/' 

In 1781 the claimants appear to have endeavoured to supply 
the want of proof thus pointei out. On the 28th of Muy in that 
yearF. J. Cagnet,on behalf of himseh and othei*s named,claiming 
to be seignourH and proprietors in undivided shares of the seig- 
neuriai tiefs of the islen and islets of Min^an, of the isle of 
Anticosty, and of the '* terre ferme de Mingan," is alleged to 
have presented an act of *' foi et hummage" in renpeot of the 
said fiefs and Hcigneuries. A document of this date and to this 
effect is found in the .egister of '' foi ot hommiige," and it states 
that the " Soignourie de la terre ferme do Mingun," commencing 
at Cape Cormorant, "jusqu* ii la grange A nee vers les E^M^ui- 
"maux oii les E^tpagnoU faisuient oixlinuirement la p§che sur 
"deux lieux de profondeur," wan conceded by the Company (of 
La Nouvelle Franco) on the 25ih of February, 1661, to the 
Sieur Frangois Bissot Appended to this document is a certificate 
of Cugnet himself (who appears to have held the office of keeper 
of the "Papier Terrier") that this "foi et hommage" had 
been presented, but it is not signed by the Governor, and there- 
fore has no validity. But from its having been found in the 
registry it has since been frequently assumed, though erron- 
eously, to have had an official character. 

This document contains two statements which are now known 
to be untrue, whether wilfully or not, it is unnecessary to in- 
quire. The one is that the grant of 1661 conceded a seigneurie 
from Cape Cormorant as far as the *' Grande Anse." It omits 
altogether the mention of the " Sept Isles," and changes the 
language with regard to the "Gi-ande Anse." The second is 



78 THE LEGAL KBW8. 

that it introdaces a limitation inland, thas supplying words 
whiph wonld meet tho objeotion taken as to the nocertaintj of 
the grant in this respect. It is said that these words are intro- 
duced in the margin of the document, but as the original is not 
before them, their lordships cannot verify the statement. 

The effect of these inaccuracies, whether intended or not, was 
that in 1803 MBC. Yondenvelden and Charland, surveyors, in a 
work on the subject of the titles of ancient concessions, include 
that of '' la teri*e ferme de Mingan," on the authority of the 
supposed act of ''foi et hommage" of 1781 ; and from this 
work the same error has been derived and continued in subse- 
quent transactions. Thus in 1805, in an action at the suit of 
Ealph Bosslewin against one Crawford and others, the sheriff 
seized fifteen thirty-second undivided parts of the seigneurio 
of the Isles Mingan, '^with all the rights in the seigniory 
''of the mainland of Mingan.*' The Frocurenr G^n^ral claimed 
the " droit de quint" due to the Crown on the sale. The matter 
was referred to the arbitration of M. Plants, an advocate, who 
gave his decision and based it upon the supposition that the 
grant of 1661 was a oonce^ion of the '' terre ferme de Mingan " 
to Sieur Fr. Bissot, and refers for his authority to tho false entry 
of the 28th May, 1781, in the register of " foi et hommage " and 
the work of MM. Yondenvelden et Charland. The demand and 
receipt on this occasion of the " droit de quint " by tho Procureur 
G^n^ral has been relied on by the Company as a recognition by 
the Crown of thoir title to a Rcignenrie of the " terre ferme de 
Mingan." There is no proof that it was puid, but assuming that 
it was, it does not amount to a recognition by tho Crown. A 
recognition to be effectual for the purpose o\' caring a defective 
title mast be made with knowledge of the defectn to be cured, 
and no such knowledge on tho pirt of the Crown can in tluM 
case be inferred from the mere receipt by its officer of a fiscal 
due, under a mistake indnce I by the company's pi-edecossorn. 

In 1837 James Stuart, on the part of sevo al persons namely 
renders I faith and homas^o for, amongst other things, certain 
undiv d«'d shares in the '' Seigneurie de la terre ferme do Min- 
gan." On this occasion the act of faith and hom;ige is signed by tho 
Governor, Loi-d Gosford. This woald be prima facie proof of the 
existence of some seigneurie on the mainland of Mingan, but 
this prima facie proof is rebutted by the title relied on by the 
claimants, namely, that supposed to be derived from the grant of 
1661, and the " Ordonnance " of Hocquart of 1733. The effect 
of these documents of title has been already considered. 



THE LEGAL NEWS. 79 

Nothing calliDg for observation occurred after 1837 until the 
year 1854. Down to this time their Ioi*dships are of opinion that 
the facts proved fail to establish that there was a seigneurie of 
the mainland of Mingan, or that the Crown had recognized its 
existence, although, chiefly fVom the supposed act of '' foi et 
hommage" of 1781 containing the erroneous statement of the 
effect of the grant of 1661, a reputation had arisen that there 
was such a seigneurie. 

With regard to the claim of the company to hold by prescrip- 
tion and immemorial possession,* it is unnecessary to consider 
what would have been the' effect of the evidence if the title of 
the company had rested on this basis alone, because as the true 
root of their title has been shown by the company themselves, 
there is no room for the application of the law of prescription. 
This is clearly stated by many authors of authority : ^^ On ne 
''pent pas prescrire centre son titre en ce sens que Ton ne peut 
'^ pas se changer ^ soi-m6mo la cause ot le principe de sa pos6es- 
" sion * * * il suit de 1^ que lorsque le titre est repr^sent^, 
'' c*est par lui qu'il faut r^gler la cause et le principe de la pos- 
'' session ; et tant que le possesseur ne prouve pas une interver- 
'' sion legale soit par le fait d'un tiers, soit par une contradiction 
*'formelle, le titre reste la loi invincible qui sert ^ qualifier sa 
'' possession. II j est ramen^ sans cesse par la loi et par la 
'' raison. C*ost ce que les praticiens ont voulu cxprimer par ee 
" brocard ; ad primordium tituli posterior semper refertur even- 
" tus." Troplong do la Proscription, 522, 4th ed. 

In this state of things the legislature of the Province of Can- 
ada, deeming it expedient to abolish all feudal rights and daties 
in Lower Canada, passed for this purpose the Seigniorial Act of 
1854(18 Vict., c. 3), amended by the Act of 18 7ict., c. 103 
(1855), and the Seigniorial Amendment Act of 1856 (19 Vict., 
0. 53). The 10th section of this last- mentioned Act is as f )liows : 
" Inasmuch as the following fiefr^ and sei«^niorios, namely : Perth- 
"uis, Hubert, Mille Vaches, Mingan, and the island of Antico^ti, 
''are not settled, the tenure under which the said seigniories are 
"now hi'ld by the prewent proprietoi-s of the same respectively, 
'Shall be and is hereby changed into the tenure of 'franc alcu 
" roturier ' ." 

This is an absolute statement by the legislature that there was 
a seigneurie of Aiingan. Even if it <'Ould be proved that the 
legitilature was deceived, it would not be competent for a court 
of law to disregard its enactments. If a mistake has been made 



80 THK LSOAL NEWS. 

the legiBlature alone can correct it. The Act of Parliament haa 
declared that there was a seigneurie of Hingan, and that thence- 
forth its tenure shall be changed into that of "franc alea 
rotarier." The courts of law cannot sit in judgment on the 
legislatare, bat must obey and give effect to its determination. 

It remains only to consider what was the seigneurie of Mingan 
to which the Act of 1856 referred. It has been contended for 
the Crown that there was a seigneurie of the isles' and islets of 
Mingan which may have been intended. The answer to this 
contention is that the proper name of this last-named seigneurie 
was that of '' the isles and islets of Mingan/' and that there is 
no trace of evidence that it has been on any occasion otherwise 
designated, or that it haa ever been known as the Seigneurie de 
Mingan, 

An examination of the Act further proves that a seigneurie 
on the mainland was contemplated. 

The original Act provides for the appointment of Commiss- 
ioners (Sec. 2), to whom (Sec. 4), the Governor shall assign the 
seigneurie or seigneuries in and for which each of them shall act, 
and whose duty it shall be (Sec. 5), '* to value the several rights 
i< 4e 3ie « with regard to each seigniory which shull be 
** assigned to him as aforesaid." 

By virtue of these provisions Ilenry Julah. one of the Com- 
missioners, had assigned to him the making of the cadastre 
and the valuation of the rights of the seigneurie of Mingan, and 
he has discharged bin dutien speciicully with regard to the 
''seigneurie of the terre firmede M'ngan,** while on the other 
hand no mention has been made of the seigneurie of the isles and 
islets of Mingan. 

Before beginning to prepare the schedule for any seignenrio it 
was the duty (Sec. 7 of the Act of 1854) of the Commissioner to 
give public notice of the place, day, and hour at which he would 
begin his enquiry ; he had power to examine on oath any person 
appearing before him. 

Immediately after the making of the schedule the Commis- 
sioner was bound (Sec. 11 of the Act of 1854, and Sec. 5 of the 
Act of 1856, to give eight days' public notice that such schedule 
would remain open for the inspection of the seignior and the 
censitaires of the seigniory during thirty days following the said 
notice, *' and any peraon interested in the schedule may point 
'<out in writing any error or omission therein, and require that 
'' the same be corrected or supplied." Provisions are also made 



THE LSOAL NBWS. 81 

for the revieion of the echedule, and it is enacted (See. 8 of the 
Act of 1866) that no revision shall be allowed, unless application 
be made for the same within fifteen days after the Com- 
missioner shall have given his decision under Sec. 11 of the Act 
of 1854 ; and by the 10th Sec. of the Act of 1855 it is enacted 
that ^* after any schedule shall have been completed and deposited 
** under said Act, it shall not be impeached, or its effect im- 
" paired for any informality, error or defect in any prior proceed- 
" ing in relation to it, or in anything required by the said Act 
'' to be done before it was completed and deposited, but all such 
'^ prior proceedings and things shall be held to have been rightly 
'' and formally had and done, unless the contrary expressly appear 
''on the face of such schedule; and the same rule shall apply to 
'' all proceedings of the Commissioners under the said Act, so 
'' that no one of them, when completed, shall be impeached or 
" questioned for any informality, error, or defect in any previous 
" proceeding, or in anything heretofore done or omitted to be 
''done by the Commissioners or any of them." 

It was open, therefore, to the Government on the one hand, 
or the peraons claiming to be proprietors of the seigneurie of the 
terre ferme of Mingan, to have complained in due time and in the 
manner prescribed, of any error in the schedule. As no such 
complaint was made, the schedule as deposited must be deemed 
to be correct. 

Now, by the schedule drawn up by Henry Judah (dated the 
23rd January 18b'4) it is certified that the " seigneurie de Mingan 
^*oude terre ferme de Mingan ** is scheduled in the county and 
district of Saguenay, and is not conceded ; it contains fifty leagues 
of frontage by two leagues of depth, extending from Cape Cor- 
morant up to the river Goznish, forming an area of 705,400 
arpents, and is bounded in front by the river St. Lawrence, and 
along its depth and two sides by the public domain. 

This schedule, with the Act under which it was made, must 
now be deemed to have conclusively established the existence 
and boundaries of the Seigneurie de Mingan referred to in the 
10th Section of the Act of 1856. 

Mr. Justice Bouthier by an independent examination of the 
evidence has arrived at the conclusion, in which their lordships 
entirely concur, that the territory in which the right to make 
establishments for fishing, &c., was granted by the Concession of 
1661, did not extend further eastward than the river Groznish, 
and that there is no foundation for the claim to extend it to 



82 THE LEGAL NEWS. 

Brador Bay in the strait of BeUe Isle. Their lordships concur 
with Mr. Jostice Bouthier in thinking that the bay referred to 
in the grant of 166 1 as that where the Spaniards ordinarily 
fished was not that which is now called Brador Bay, but was the 
one indicated as the Baye des Espagnols on the map, presumably 
drawn up on the information of Sieur Joiyet, an experienced 
navigator, and one of the parties having an interest under the 
Concession of 1661. This bay exactly answers the description 
given in the grant of 1679 to Laland and Jolyet of the seigniory 
of the isles and islets of Mingan, '' which follow one another to 
'^ the bay called VAnse avx Espagnoh^ and to the position assigned 
to it in the map of 1678, near the eastward end of those islands 
and near a place or river marked " Esquimaux." It is, however, 
unnecessary to examine this question in detail, as their lordshipcs 
are of opinion for the reasons already given, that the schedule 
drawn up by Bir. Jndah is conclusive on the subject of boundary. 

Their lordohips will humbly advise Her Majesty that both 
appeals be dismissed, and that the judgment of the Court of 
Queen's Bench be affirmed, and they direct that the pai*ties pay 
their own costs of the appeals. 

The Solicitor-General, 8ir H, Bighy, Q,C., H, Abbott, Q.C, of 
the Quebec Bar, and Tyrrell T. Payne, for the Labrador Com- 
pany. 

Sir Horace Davey, Q.C, R, Lafiamme, Q.G., (of the Quebec 
Bar), Jf. Belleau, Q.C., (of the Quebec Bar) and F. C. Gore, for 
the Queen. 



COURT OF APPEAL ABSTRACT. 

Testament — Interpretation des lois^*^ Sain d^esprit'* — Preuve 

— Captation, 

Jugi, le Code exigeant 4 Tartiole 831, que le testa teur soit 
'^ sain d*esprit/' ne frappe pas de nullity seulement le testament 
du fou propi*ement dit, mals aussi le testament de celui dont la 
faiblesse d*esprit ne lui permet pas d'appr^cier le caract^re et les 
effets de Facte qu'il acoomplit. 

La preuve d*un ^tat mental semblable pent r^snlter, directe- 
ment, des actes, du langage et de la oonduite du testateur, avant, 
pendant, et apr^s la confection du testament, et, indirectement 
de la nature de la dispoiition testamentaire et de sa port^e, v. g., 
de son injustice. 



THE LEGAL NEWS. 88 

Dans I'esp^e, la testatrice quoique susceptible de ooncevolr 
nne donation ou transport afin d'assurer sa vie, ^tant trop faible 
d'esprit pour connaltre T^tendue de sa fortune, appr^cier la 
nfeessit^ d'une telle donation, se rappeler les avanta^es res- 
pectifs que ses enfants avaient regas dans le pass^, et se rendre 
compte de la position relative de chacun d'eux visii'Vis de sa 
succession et de celle de son mari, n'^talt pas assez '^ sained'esprit " 
poar ponrvoir tester valablement 

An surplus, le b^n^ficiaire, rintim^, qui avait le contrdle des 
affaires de la testatrice et exergait une grande influence sur elle, 
lui avait sugg^r^ le testament, qui ^talt le r^rjultat de captation 
dolosive de sa part. — Baptist ds Baptist^ Quebec, Lacoste, J.C., 
Boss^, Bianchet, (diss.), Wurtele & Tait, JJ., 5 mai 189/?. 



Bcul — Prohibition de sous-louer— Cession de bail^Alienation de la 

chose huie, 

Jug6: — Le cesaionnaiie d*un locataire principal qui a sous-lou^ 
une partie des lieuz lou^s, malgr^ une prohibition de sous-louer 
dans le bail, et qui a ensuite acquis du locateur principal la 
propri^t^ de ces lieux, n'a pas d*action centre le sous-locataire 
pour le faire ^vincer avant I'expiration du sous-bail. — Hough df 
GowaUf Quebec, Baby, Bo^, Bianchet, Hall, et Wurtele, JJ., 
(Boss^ & Hall, JJ., diss.) 8 octobre 1892. 



LiheUe — Jurisdiction, 

Jugi, que dans une action en dommages pour libelle public 
dans un papier-nouvelles, le d^fendeur pent 6tre poursuivi dans 
un autre district que celui de son domicile et du lieu de publi- 
cation du journal, si le demandeur a limits les dommages qu'il 
reclame au seul district dans lequel il a assign^ le defendeur. — 
White ds LangelieTy Sir A. Lacoste, J.C., Boss^, Bianchet, Hall, 
k Wurtele, JJ., Quebec, 8 octobre 1892. 



Lot ilectorale — NuUiti de contrat — S, B. Q. 4&b—Preuve. 

L'intim^, poiirsuivi par Tappelant sur billet promissoire, a 
offert en compensation un compte pour effets et marchandises 
all^gu^ avoir 6i& vendus et livr^s k Tappelant et k sa demande 
et requisition sp^iale. La preuve a d^montr^ que ce compte se 
rapportait k une election faite en vertu de la loi ilectorale de 



84 THE LEGAL NEWS. 

Quebec, et ne paraissait pas avoir ^16 transmis k Tagent I^gal da 
oandidat dans le d^lai d*nn mois de la declaration de Meotion, et 
de plus, que le dit compte n'avait pas ^t^ encourn pour Tappelant 
personnelloment, ni pour rencontrer des d^penses l^itimes de la 
dite election, et que Tintime connaissait Tobjet poar leqnel il 
vendait et livrait les dits effets et marcbandises. 

Jugit qu'en verta des dispositions de Particle 425 des Statuta 
Bevis^s de Quebec, le dit pr^tenda contrat etait nal, et le compte 
en question non rocouvrable on loi. Sous les circoiistances de cette 
cause, et en Tabsence d*objection de part et d'autre, une preuve 
verbale et secondaire de la tenue de Teiection etait suffisante. — 
Brunelle ds Begin, Quebec, Lacoste, J.C., Baby, Boss^, Blanche!, 
Hall, JJ., 6 mai 1892. 



Inscription en faux — Acte signi hors la presence du notaire, 

Jugi^ Un acte notarie, date et clos comme fait k Bimouski, 
mais qui a de fait ete signe k Quebec, oii le notaire qui connais- 
sait les signatures des parties, avait envoye le projet de minute 
pour y dtre Hign6, est nul comme acte authentique. — Cie d^assur- 
once mutuelle etc, dk Cedar Shingle Co., Quebec, Lacoste, J.C, 
Baby, Bosse, Hall, Wurtele, JJ., 6 mai 1892. 



Billet de location — Conditions d'etahlissement non accomplies — JDilai 
accordepar Dipartement — Cancellation par erreur — Complainte 
et reintegrande—S. B. Q. arts. 1269, 1273, 283, et seq.— 
Interpritation. 

Juge : Le droit de revoquer un billet de location pour cause 
est un droit absolu qui pent toujours 6tre exerce par le commis- 
saire des terres de la Couronne, lorsqu'il y a lieu, mais il ne pent 
pas y avoir revocation sans avis et sans publication par Tagent 
local, non plus qu'avant 60 jours de deiai apre^ Taffiche de Tavis. 
Cependant, lorsqu'une looation octroyee par un agent local est 
repudiee par le Commissaire, ce n*est pas la revocation d'une 
location reguli^rement faite, mais le refus par le Commi>saire de 
ratifier le billet donne par Tagent ; il n'est pas necessaire, dans ce 
cas, de donner avis, et le refus de ratification rend sans effet le 
billet de location. 

Si avant Texpiration d'un deiai accorde pour Taccomplisse- 
ment des conditions d'etablisdement, la location est cancelUe par 
erreur, le Commissaire a droit de retirer cette cancellation et 



THE LEGAL NEWS. 85 

remettre la partio daos la position qu'elle avait occup^e aupar- 
avant, et comme consequence de ne pas approuver un second 
billet de location accords dans rintervallo par un agent local. 

Un porteur de billet de location, ainsi d^poss^d^ par errour, 
a droit ^ Taction possessoire pour se faire r^int^grer, — le permis 
cl*occupation ^tant un titre et une preuve prima facie de possession, 
aux teimesde Tarticle 1270, par. 2, S.^R Q. — Rocheleau & La 
Charite, Quebec, Lacoste, J.C, Baby, Boss^, Hall & Wnrtcle, JJ., 
2 juin 1892. 



Parishes — Canonical and civil erection and division — Jurisdiction of 

the Courts— R. 8. Q. 3371-3381. 

Held : 1. The civil courts in the province of Quebec have no 
jurisdiction to annul or rovirte a canonical decree erecting a 
parish, the only remedy being an application to the superior 
ecclesiastical authority. 

2. The courts have no jurisdiction to revise the proceedings of 
commissioners for the civil recognition of parishes, this being a 
matter within the sole jurisdiction of the executive of the pro- 
vince, and the commissionei's being merely a commission charged 
to make such inquiry and report as may enable the lieutenant- 
governor to act with proper knowledge of the facts. — Samoisette 
et al. df Brassard et al,, Montreal, Lacoste, C.J., Baby, Boss^, Hall 
and Wurtele, JJ., December 23, 1892. 



Chrand Jury — Recusation du tableau — Recusation par ttte ( '' to the 

polls''). 

Jugiy la proc^ure criminelle dans cette Pi*ovinco ne reconnait 
pas aux accuses le droit de r^cuser le Grand Jury, ni par vole de 
recusation du tableau (challenge to the array) ^ ni par vole de r^cu. 
sation individuelle (^challenge to the polls). — Regina v. Mercier et 
al., au Criminel, Boss^ et Blanchet, JJ., Quebec, 12 octobre, 1892. 



SUPERIOR COURT ABSTRACT. 

Jury trial-- Verdict against evidence — Ntmrsuit 

Held'. 1. Absence of evidence to support a verdict is not 
ground for rendering judgment non obstante veredicto. 

2. The judge presiding at the trial has no power to non-suit a 
plaintiff, save in the two cases provided for by Arts. 394, 395| 



86 THE LEGAL NEWS. 

C. C. P., that is, either where the plaintiff does not appear at the 
time and place fixed for the trial, or where, having so appeared, 
he at any time during the trial and before verdict withdraws frqin 
court or abandons his suit, the effect of such non-suit being in 
either case to dismiss plaintiff's action, but permit his beginning 
anew. — TurnbvU v. Travellers' Insurance Go.^ Montreal, in Review, 
Loranger, Ouimet, Dohertj, J J., November 30, 1892. 



Es^ropriatioM — Oite de Montreal — R6le des CommissairesStat 

produit par la Oite, 

Jug^j que dans les expropriations sous la charte de la cit^ de 
Montreal, les commissaires jouent le rdle d'experts jur^s, et ila 
peuvent accoi*der k Tindemnitaire moins que le montant port^ k 
r^tat pi*oduit de la part de la cit^. 

Quo cet ^tat ne constitue pas une reconnaissance par la cit^ de 
Montreal, roais n'est que Texpression de Topinion de leurs 
t^moins. — Cite de Montreal et Dumaine^ C. S. (en B^ vision), 
Johnson, Davidson et Pagnuelo, J J., Montreal, 30d^cembre,1892 



Banque — Taux de Vinterit — Bepitition de Vindu — Q^e8tion icrdre 

public, 

Juge, que les banques ne peuvent charger sur les billets qui leur 
sont pr^zient^ pour escompte qu'un int^rdt de sept par cent par 
an. 

Que la prohibition de la loi, en cette mati^re, ^lant d'ordre 
public, celui qui a pay^ 4 une banque un int^rdt d^passant le taux 
fix^ par la loi, a droit de r^p^ter de la banque le montant de I'ex- 
c^dant. — La Banque de 8t. Eyacinthe, v. L. Sarrazin et aL, 
Pagnuelo, J., C. S., St. Hyacinthe, juin, 1892. 



Propres de communaute — Succession^ Go-heritier — Acquisition de 
parts immobilieres — Benonciation d succession — Enregistre- 

ment—Arts, 1279 et 2126, C. C. 

Jug6f 1. La renonciation k une succession qui n*a pas ^t^ enre- 
gistr^e est sans effet k regard des tiers, et notamment des crdan- 
ciers du renon9ant. 

2. L'acquisition par des conjoints des droits mobiliers et im- 
mobiliers des co-h^ritiers de Tun d*eux dans une succession di- 



THE LEGAL NEWS. 87 

recte, attribue k ce dernier, comme propres, les parte d'im- 
meables acquises, saaf indemnity eDvers la commtiDaaU, b'iI y a 
liea, et ce, ^ plus forte raison, lorgque, dans Tacte d'acqaisition, 
les portions d'immeubles sont d^sign^es. — Gagnan et Valentine^ es 
qual,^ et Gagn(m, es qual, Oppt, en B^vision, Casault, Caron et 
Andrews, JJ., Qn^beo, 31 mars, 1892. 



Cautiormement pour frais. 

Juge, qu*une ordonnance d'un Juge en chambre, condamnant le 
demandear ^ fonrnir caationnemont poor frais, parceqa*il n'a pas 
sa residence dans la province (Art. 29, C.G.)) pent dtre r^vis^e 
par le tribunal, et ie demandear d^charg^ de cette obligation. — 
De Angelis v. Masson et al,^ C. S., Mathieu, J., Montr^l, 27 
octobre, 1892. 



Sale — Malicious seizure — Damages. 

JBield, 1. That an agreement by which the defendant trans- 
ferred to plaintiff a barge for 9300, whereof 950 were payable in 
July following, 950 in September, and the balance in annual in- 
stalmente of 950, and which stipulated that in default of payment 
of the instalments as they became due the defendant would beat 
liberty to take back the barge, is a sale and not a lease. 

2. That a saisie-gagerie seizing the barge under such pretended 
lease, was issued maliciously and without probable cause; and 
vindictive as well as real dainages may be allowed in such case. — 
Lamirande v. Cartier, in Beview, Taschereau, Loranger, Doherty, 
J J., Montreal, January 30, 1892. 



Revision — Montant des dommages — Bail — Obligations du locateur — 

Fuite d'eau. 

Jiigif 1. La Cour de B^vision pent modifier les jugemente qui 
lui sont soumis quant au montant des dommages accord^s, lors- 
qae la nature de Taction en rend la determination precise pos- 
sible. La r^gle ^tablie par la Cour Supreme (vol. YI., p. 482, 
Levi et Heed, &c.) que '' Tappi-^ciation du tribunal de premiere 
instance doit dtre finale, hors le cas oii la condamnation est exces- 
sive au point de constituer une erreur Evident ou une injustice," 
ne s'applique qu'aux actions, comme coUes d'injnres, oii la deter- 
mination des dommages est laiss^e ^ sa discretion. 



88 THS LEGAL NEWS. 

2. Le locatear est reBponsable des dommages caos^ aa loca- 
taire de la partie infdrieure d'an ^ifice, par ane faite d*eaa dans 
r^tage sap^rieure. — Bernard v. Cote, C. S. (en r^visioD), Canaalt, 
Cai*OD, Andrews, J J., Quebec, 81 mars, 1892. 



Assignation — Oompagnie itrangire incorporee. 

Jugi, Que dans le cas d'une assignation faite h. une compagnie 
ayant son principal bureau d'affaires dans la province d'Ontario, en 
parlant 4 son agent, sur une exception h la forme niant la quality 
de I'agent ^ qui Thuissier a parld, c'est an demandeur k prouver 
cette agence. — Schultze v. Thorold Felt Goods Co,, C. S., Mathien, 
J., Montreal, 14 novembre, 1892. 



Vente — Obligation — Enregistrement. 

Jugi, Que, par la disposition du dernier alin^a de Tarticle 2098. 
C. C, prise conjointement avec Tarticle 2043, C. C, Phypoth^que 
consentie par le possesseur k titre de propri^taire, et enregistr^e 
avant Tenregistrement de son titre, prime Thypoth^ue da 
vendQur qui n'a enregistr^ qu'aprds cette hypotfadque et aprte 
les trente jours de la date du titre. — Huet dit Dulude v. Alphanse 
Laporte dit Denis, et N. J. Laporte dit Denis, cr^ancier colloqu^, 
et Alexandre Laporte dit Denis, cr^ancier-contestant, C.S.,Mathieu, 
J., Montreal, 8 novembre, 1892. 



Jury trial in civil cases — Absence of jurymen — Postponement — 

Alias venire facias. 

The postponement of the trial on account of the absence of 
certain jurymen, is not a sufficient reason for the striking of a 
new jury ; but in such case the issue of an alias writ of venire 
facias will be ordered, to summon anew, for a later day, the jury 
already sti'uck. — duellet v. City of London Fire Lis. Co,, Quebec, 
Andrews, J., June 30, 1892. 



Capias — Secretion — Cfiose jugie — Costs. 

Where a capias is based on a judgment, the question of indebt- 
edness as fixed by the judgment is chose jugee, and the defendant 
is precluded from questioning the correctness of the amount so 
found to be due by him. 



THE LEGAL NEWS. 89 

A Bale by a restaarant-keeper of his effeots and bneinMs and 
the leasehold of his restaurant, will not sustain a charge of secre- 
tion, if it be established by him that he acted with the concui^- 
rence of his lessors, his principal creditors, who had the right at 
any moment to sell him out and take the proceeds by privilege 

for rent due, and who received the pi ice in pay ment of their 
claim. But where the defendant acts thus, without the know- 
ledge of his other creditoi-s, no costs will be allowed him on the 
quashing of a capias issued by one of them. — Gushing v. Fortin, 
Montreal^ Davidson, J., June 27, 18H2. Confirmed in Beview, 
Johnson, C.J., Tait and Doherty, JX, November 30, 1892. 



WiU^Captaticn — Suggestion. 

The testator, aged 66, and for many years clerk of the Crown 
acd of the Peace at Montreal, being seriously ill with rheuma- 
tism and Bright's disease, and being warned by his physician to 
settle his temporal affairs, instructed his notary to prepare a will 
in accordance with memoranda written with his own hand. He 
kept the draft under examination for several days, and made a 
number of alterations. The will contained several bequests, but 
left the bulk of his fortune to his sister and her sons, defendants. 
Becovering partially from his illness, the testator lived 21 
months after the execution of the will, and during the greater 
part of this time attended his office, and was competent for the 
performance of his duties. He also attended as usual to his 
private affairs. His sister, the defendant, had lived with him for 
some time before and after the date of the will, but it did not 
appear that she had brought any pressure or influence to bear 
upon him, or that he was not free to alter the dispositions of the 
will, if he so desired. 

H^eldf that the pi-oper inference fi*om these facts was that the 
will was the expression of the testator*s voluntary wishes, and 
should be maintained. — Schiller v. Schiller, Montreal, Davidson, 
J., June 30, 1893. 



Libel — Allegations in petition — Justification. 

The defendants, for the pnrpose of obtaining the liberation of 
L., brother of two of them, who was under arrest on a fake 
charge of lunacy, presented a petition to a judge, supported by 



90 THE LEGAL NEWS. 

affidavits, containing statements respecting plaintiff, which were 
relevant to the purpose of the petition, and were moreover sub- 
stantially true, and had been generally known for two months 
previoasly. The petition was maintained, and the magistrate's 
commitment quashed. In an action of damages based on the 
statements contained in the petition and affidavits : 

Seldf that the defendants having acted in good faith and on a 
privileged occasion, and their allegations being relevant and made 
with probable cause, the plea of justification was established, and 
the action should be dismissed. — Legault v. Legault, Montreal, 
Davidson, J., June 30, 1892. 



Shipping — Charter party — Date fixed for sailing — Breach. 

A cattle shipper engaged the cattle space of a steamship for 
the transportation of cattle from Montreal to England, one of the 
stipulations of the contmct being, " vessel to sail about 16th of 
May next." The ship's agent gave noiico on May 16, that the 
vessel would be ready to load on May 21. 

Held, that there was a failure to comply with the conditions of 
the contract, and that the shipper was justified in treating the 
agreement a«t cancelled and in refusing to load. 

2. An action may be brought on a contract by the principals 
though the con ti act was made by their agents in their own name 
and without disclosing their principals. — Macldllv, Morgan et al.y 
Montreal, Davidson, J., June 30, 1892. 



Sale — Apparent defect — Examination of goods by buyer — Seasonable 

diligence. 

Where herring was sold without warranty, subject to inspec- 
tion, and the buyer, after obtaining delivery on the 18th Novem- 
ber, deferred all examination of the fish until the 30th November, 
and did not make a complete inspection until the end of Decem- 
ber following, held, that he was not entitled to recover the price of 
fish then found to be rusty, rust on fish being an apparent defect, 
which might have been discovered by inspection if the fish had 
been examined at the time of delivery. — Fraser v. Magor^ 
Montreal, Pagnuelo, J., October 25, 1892. 



THE liEGAL NEWS. 91 

Carrier — Mght cf retention for payment of carriage — Art. 1679, G. C. 

A carrier who has pat the thing transported in the particular 
place specified in the contract of carriage, is not considered to 
have thereby dispossessed himself of it ; and his right of reten- 
tion under Art. 1679, C. C, until he is paid for the carnage, still 
exists, and may be asserted by conservatory seizure against par- 
ties claiming title by purchase. — Groulx v. Wilson, Montreal, in 
Beview, Johnson, C.J., Gill and Mathieu, JJ., October 8, 1892. 



Delay for appealing to the Supreme Court — Long vacation — Dis- 
cretion of Judge — Acquiescence. 
Held, 1. That the delay prescribed under section 40 of the 
Supreme Court Act runs during the long vacation. 

2. That where the defendants had been unnecessarily dilatory 
in applying for the exei-cise of the discretion of the judge under 
sec. 42, the reason allege! being that they had overlooked the 
fact that the above mentioned delay runs during the long vaca- 
tion, the judge will not allow the appeal. 

3. The fact of entering into negotiations as to the execution of 
a judgment, constitutes an acquiescence in the judgment. — A. H. 
Murpfiy V. J. J. Williams, S. C, Pagnuelo, J., Montreal, December 
13, 1892. 

Exdcution forcie — Vente immobilize — Designation — Cadastre — 
Dation en paiement — Delivrance — Action petitoire. 

Juge: 1. L'acqu^reur d'un immeuble qui n'en a pas eu la pos- 
session, pent agir au petitoire en invoquant le titre et la posses- 
sion de son auteur. 

2. La delivrance de Timmeuble n'est requise, pour fendre la 
dation en paiement parfaite, qu'entre le cMant et Pacqu^reur, et 
lee tiers ne sont pas re^us & en invoquer le d^faut. 

3. La vente par le sh^rif d'un immeuble sous un num^ro 
cadastral, mais avec une designation par tenants et aboutissants 
qui comprend un autre immeuble design^ au cadastre sous un 
autre num^ro, ne donne pas k I'adjudicataire un titre a ce deux- 
i^me immeuble. — Caron v. Houle, en fi^vision, Casault, Caron, 
Andrews, JJ., 31 mars, 1892. 



Vente mobiliire — Tradition — Possession. 

Jugi, dans le cas de vente de meubles par un mdme vendeur & 
deux personnes differenteSi Pacheteur qui est en possession actu- 



92 THB LEGAL NEWB. 

elle et de bonne foi doit §tre pviKH, m§me si son titre d'acqaisi- 
tion est post^riear a celui de Taatre acheteur, et lors in§me que 
ce dernier aurait eu tradition. — Drouin v. Lefran^is, Cour de Cir- 
cuit, Bouthier, J., Quebec, 6 avril, 1892. 



Mandamus — To compel mayor of municipality to sign contract — 

Resolution of council. 

Held, that a mandamus will not be granted, to compel the 
mayor of a municipality to sign a contract with the petitioner in 
purHuance of a resolution of the council, when it appears that 
before the proceedings were instituted the resolution authorizing 
the mayor to sign had been rescinded by the council, and the 
contract awai*ded to another company. 

2. Even if 6uch Bubsequent resolution be annullable, it cannot 
be annulled on a petition for mandamus againet the mayor of the 
municipality to compel him to sign the original contract. — Edison 
General Electric Co. v. BarsaUm, Montreal, Doherty, J., January 
7, 1892. 



Will — Form of — Legacy — Vagueness and uncertainty. 

Held: 1. The 14th Geo. III. cap. 73, sec. 10, in force in 
February, 1865, and which provides " that it shall be lawful for 
every peraon to devise by will executed either accord- 
ing to the laws of Canada or according to the forms prescribed 
by the laws of England," is not to be read as restricted to wills 
made in the province, but applies to wills generally wherever 
made. Therefore, a will made at that time in the State of New 
York by a person domiciled in this province, in the holograph 
form, is good and valid. 

2. A bequest in the following woixls : " I hereby will and 
bequeath all my property, assets or means of any kind, to my 
brother Frank, who will use one half of them for public Protes- 
tant charities in Qaebec and Carluke, say the Protestant Hospi- 
tal Home, French Canadian Mibsion, and amongst poor relatives 
as he may judge best, is not void for vagueness or uncertainty. 

Semble, there is power in the Court, where a trustee empow. 
ered to select beneticiaries under a legacy from a class, fails to 
do so, to order an equal distribution of tlie amount of the legacy 
among those who compose the class. — Ross v. Ross et al., S. C, 
Andrews, J., Quebec, September 26, 1892. 



THE LEGAL NEWS. 98 

QUEEN'S BENCH DIVISION. 

London, November 3, 1892. 

Tatam v. Bbbvb, 61 L. T. Eep. (N.S.) 683. 

Gaming — Action for money paid in payment of lost bets upon 

request of losers. 

The plaintiff, upon the request of (he defendant^ paid for the defendant certain 
eums of money to certain persons. These sums were jot bets on horss' 
races lost by the defendant, as the plaintiff knew, 

Hbld: that the plaintiff was not entitled to recover, as the payments were made 
" in receipt of ** agreements rendered null and void by 8 and 9 Victoria 
chapter 109, and by section 1 of the Oaming Act of 1892, no action couldi 
he maintained for the recovery (hereof. 

Lord Coleridge, C. J.: — I confess I have no hesitation at 
all in deciding this case, and it seems to me that judgment must 
be given for the defendant. If a person with fall knowledge of 
what is called a debt of honor choose to trust another he must do 
so at his own risk, and with the knowledge that he must suffer 
if the person he has trusted choose to repudiate his debt. The 
old act (the 8 and 9 Yict, chap. 109) was discussed in the case 
of Beady. Anderson, 10 Q. B. Div. 100; 13 id. 119, in which 
Lord Esher, M. B., emphatically dissented from the other 
members of the court. In that case the Court of Appeal decided 
that when a commission agent was employed to make bets on 
behalf of his principal, and where it was admitted that if the 
bets had been made between principals only, the contracts would 
have been null and void under the statute, yet that an implied 
contract arose and could be enforced for repayment to the agent 
of the sums which the agent had paid for his piincipal. I 
entirely agree with the dissent of the master of the rolls in that 
case, for that decision really cut into the Gaming Act (8 and 9 
Yict., chap. 109), as it was a decision that a person might do by 
means of another what he was prohibited from doing himself. 
However that was the decision of the Court of Appeal, and that 
was an end of it. Then there was an act of Parliament passed 
in the present year to amend this act (8 and 9 Yict., chap. 109), 
and this act enacts that "any promise, express or implied, to 
pay any person any sum of money paid by him under or in 
respect of any contract or agreement rendered null and void by 
the 8 and 9 Victoria, chapter 109, or to pay any sum of money 
by way of commission, fee, reward or othei'wise in respect of any 
such contract, or of any services in relation thereto, or in 



94 THE LEGAL NEWS. 

connection therewith, shall be nail and void, and no action shall 
be brought or maintained to recover any sach snm of money/' 
Now the facts here are that the plaintiff was desired by the 
defendant to pay certain sams of money mentioned in a slip, and 
the plaintiff did so pay these sams, and as a matter of fact, these 
snms were for bets made aud lost by the defendant. Now, it 
was argaed that these sums were not paid in respect of bets. I 
cannot agree with that contention. True, they were not paid 
'' under'* an agreement rendered null and void by the 8 and 9 
Victoria, chapter 109, as there was no betting between the 
plaintiff and the defendant, but they were paid ' in respect of" 
these betting agreements. In respect of what were these 
payments made by the plaintiff, except to discharge the sums 
which the defendant owed under these betting contracts? I 
decide this casse with the less hesitation, as I think the plaintiff 
was not ignorant of the purpone of thene payments. If the 
plaintiff had been deceived into making payments in respect of a 
matter he knew nothing whatever about one would have 
he^itated and been sorry to come to the conclusion to which I 
have come in this case. I think however that the plaintiff knew 
very well the nature of the transactions, and therefore he must 
take the risk of the defendant refuning to repay him the sums he 
has paid. I am of opinion therefore that there should be 
judgment for the defendant. 

Wills, J.: — I am of the same opinion. The chief argument 
of the plaintiff's counsel was based on the assumption that the 
only object of the statute 55 Victoria, chapter 9^ was td get rid 
of the effect of the decision in Read v. Anderson, ubi supra. If 
that were the only object of the statute, then it would not touch 
the present case, as the plaintiff here did not make the bets 
which he paid, and so the case is not the same as Bead v. Ander- 
son, ubi supra. During the argument I asked the learned counsel 
for the plaintiff what meaning was to be given to the words " in 
respect of" as well as the woini ** under," for the word ** under" 
would have done, and would have been sufficient if the 
Legislature had thought that the only object was to get rid of 
Bead v. Anderson, ubi supra. The answer was given by both the 
learned counsel for the plaintiff that the words " in respect of" 
were equivalent to '' under," and meant no more. I do not think 
that is so, and it must be that the woi*ds '^ in respect of" mean 
something different from the word " under." I do not think it 
makes any difference whether the plaintiff knew or did not 



THE LEGAL NEWS. 95 

know that these payments were for bets, because whether he 
knew or did not know, they were equally made '' in respect of" 
an agreement null and void by the 8 and 9 Victoria, chapter 109. 
If the plaintiff had been misled by the defendant, then it might 
well be that the defendant would have been estopped from 
setting up this defence. It is not necessary to decide that point, 
as on reading the affidavits, I cannot doubt, and I have not the 
slightest doubt in my mind, that the plaintiff knew what these 
payments were for. I think therefore that there must be 
judgment for the defendant. 



MR, JUSTICE SEBQEWICK. 

Mr. Bobert Sedgewick, Q. C, deputy miniHter of justice, has 
been appointed a puisn^ justice of the Supieme Court of Canada, 
to fill the vacancy caused by the death of Chief Justice Bitchie 
and the appointment of Mr. Justice Strong as Chief Justice. 

Mr. Sedgewick was born on May 10, 1848, in Abei*deen, 
Scotland. His father, the Bev. Dr. Sedgewick, was a pastor of 
the Presbyterian Church. Mr. Bobert Sedgewick entered the 
law office of the late Mr. John Sandfield Macdonald at Cornwall 
as a student. In 1872 he was called to the Bar of Ontario and 
in the following year to the Bar of Nova Scotia, taking up 
practice in Halifax where he became Becorder. In 1880 he was 
appointed Q. C. He was vice-president of the Nova Scotia 
Barristers' Society and lecturer on jurisprudence in the Dalhousie 
Law School. He was president of the Alumni Association of 
Dalhousie College and one of the governors. In 1888 he was 
made Deputy Minister of Justice at Ottawa. '^During his five 
years' tenure of office," says an Ottawa letter, " Mi*. Sedgewick 
has been, perhaps, the haixlest worked officer in the service of 
Canada and has discharged the important and onerous duties of 
the office with full acceptance. All important mattei*s of 
administration and legislation focus in the Department of Justice 
and such was the part taken in their settlement by Mr. Sedgewick 
that he maybe said to have shaped the course of many important 
matters. He has represented Canada before the Judicial 
Committee of the Privy Council, and was sent to Washington in 
connection with Behring Sea matters a few years ago. He had 
a great deal to do in drafting the act of 1890 respecting bills of 
exchange and promissory notes and the criminal code of 1892. 



96 THE LEGAL NEWS. 

PoBsessed of ability and experience coupled with a training in 
an office whei*e he often performed the function of a judge, Mr. 
Sedgewick*B appointment to the highest court in the land is 
regarded as u promotion well earned." 



GENERAL NOTES. 

« 

The Law Journal ( London) .-r-The Law Journal^ at the be- 
ginning of the year, has enlarged its page and columns, and 
assumed a laige quarto form. Several improvements in typo- 
graphy and make-up have also been introduced. The Law 
Journal, which has entered on the twenty-eighth year of its exist- 
ence, is a worthy representative of the English Bar, and deserves 
the wide support which it has received from the profession. 

YxaDiOT SET ASIDE. — A new trial is seldom ordered on the 
ground that the verdict was against the weight of evidence, for a 
jury are not often so utterly wrong-headed as to give a verdict 
which no reasonable men could properly find. The verdict 
of a Liverpool special Jury in The Bruce Sailing Ship Company v. 
The London Assurance Association had, however, last week, the 
inglorious distinction of being set aside as wholly unreasonable. 
Then the question arose whether judgment should be entered for 
the appellants, or the case sent back for a second trial. The 
respondents* counsel stated that his clients might, if there were a 
new trial, call some additional witnesses who had appeared at a 
wreck inquiry in America. With the consent of the parties the 
depositions of these witnesses were read. The Court thought 
that the proposed evidence might possibly strengthen the respon- 
dents' case, and therefore ordei*ed a new trial. On r.o other 
ground, apparently, could the Court have refrained from entering 
judgment for the appellants, for if a verdict be one which no 
reasonable jury could find, it obviously would be useless to sub- 
mit the case to a second jury on the same evidence as before. 
One other point deserves to be noticed. According to the report 
of Solomon V. Bitton (S Q. B. Div. 171), the granting of a new 
trial ought not to depend on the question whether the judge who 
tried the action was dissatisfied with the verdict. In the present 
case the learned jadge had reported against the verdict, and the 
Court held that his opinion, though, of course, not conclusive, 
was a matter which they ought to take into consideration in 
coming to a conclusion. We are glad to find that this is good 
law. It is certainly good sense. — Law Journal (^London), 



THE 



LBGAL NBWS. 



VOL. XVL APRIL 1, 1893. No. 7. 

SUPREME COUBT OF CANADA. 

Ottawa, Dec. 13, 1892. 
Manitoba.] 

Manitoba Free Press Company v. Martin. 

Libel — Personal attack an Attorney-General — Pleading — Rejection 
of evidence — Fair comment — General verdict — New trial. 

In an action for a libel contained in a newspaper article re- 
specting certain legislation, the innuendo alleged by the plaintiff, 
the Attorney General for the Province when such legislation 
was enacted, was that the article charged him with personal 
dishonesty. Defendants pleaded " not gailty," and that the ar- 
ticle was a fair comment on a public matter. On the trial the 
defendants put in evidence (plaintiff's counsel objecting), to 
prove the charge of personal dishonesty, and evidence in rebuttal 
was tendered by plaintiff and rejected. Certain questions were 
put to the jury requiring them to find whether or not the woi*ds 
bore the ccxistructioa claimed by the innuendo or were fair com- 
ment on the subject matter of the article ; the jury found generally 
for the defendants ; and in answer to the trial judge who asked if 
they found that the publication bore the meaning ascribed to it 
by the plaintiff, the foreman said : '' We did not consider that at 
all." On appeal for an order for a new trial : 

Held, that defendants not having pleaded the truth of the 
charge in justification the evidence given to establish it should 
not have been received, but as it had been received evidence in 
rebuttal was improperly rejected ; the general finding for the de- 



98 THE LEGAL NEWS. 

fendants was not sufficient in view of the fact that the jury stated 
that they had not considered the material question, namely, the 
charge of personal dishonesty ; for these reasons a new trial was 
properly granted. 

Haegel, Q.C., for the appellant. 

Ewart, Q.O.f for the respondent. 



Ontario.] 

Attornbt General of Ontario v. The Yaughan Soad 

Company. 

Statute— Application cf—B. S. 0. (ISSI) c. 159—53 7., c. 42— 
Application to Company incorporated by special churter — Collec- 
tion of tolls — Maintenance of road — Injunction. 

The provisions of the general Boad Companies Act of Ontario 
(B. S. O. (1887), c. 159, as amended by 53 Y., c. 42), relating to 
tolls and repair of roads, apply to accompany incorporated by 
special acts, and on the report of an engineer, as provided by the 
Greneral Act, that the road of such company is oat of repair, it 
may be restrained from collecting toils antil such repairs have 
been made. 

Judgment of the Court of Appeal on motion for interim in- 
junction (19 Ont. App. B. 234) over-ruled, and that of the Divi- 
sional Court (21 O. B. 507) approved. 

8. H, Blake, Q.C, and Lawrence, for the appellants. 

Bain, Q.C, and Kappele, for the respondents. 



Nova Scotia.] 

Nova Sootia Central Bt. Co. v. Halifax Banking Co. 

Mortgage — Railway bonds — Security for advance — Second mortgagee 

— Purchase by — Trust 

W. having agieed to advance money to a railway company for 
completion of its road, an agreement was executed by which, 
after a recital that W. had so agreed and that a Bank had under- 
taken to discount W.'s notes indorsed by E. to enable W. to pro- 
cure the money to be advanced, the railway company appointed 
said bank its attoioiey in*evocable, in case the company should 
fail to repay the advances as agreed, to receive the bonds of the 
company (on which W. held security) from a trust company, 
with which they were deposited, and sell the same to the best 
advantage, applying the proceeds as set out in the agreement. 



THE LEGAL NEWS. 99 

The railway company did not repay W. as agreed, and the 
bank obtained the bonds from the trust company and having 
threatened to sell the same the company, by its manager, wrote 
to B. and W. a letter requesting that the sale be not carried out, 
but that the bank should substitute E. and W. as the attorney 
irrevocable of the company for such sale, under a provision in 
the aforesaid agreement, and if that were done the company 
agreed that E. and W. should have the sole and absolute right to 
sell the bonds for the price and in the manner they should deem 
best in the interest of all concerned and apply the proceeds in a 
specified manner, and also agreed to do certain other things to 
further secure the repayment of the monies advanced. iS. and W. 
agreed to this, and extended the time for payment of their claims, 
and made further advances, and, as the last mentioned agreement 
authorised, they re-hypothecated the bonds to the bank on cer 
tain terms. 

At the expiration of the extended time the railway company 
again made default in payment, and notice was given them by 
the bank that the bonds would be sold unless the debt was paid 
on a certain day named ; the company then bi*ought an action to 
have such sale restrained. 

Beldf affirming the decision of the Court below, that the bank 
and E. & W. were respectively first and second incumbrancers of 
the bonds, being to all intents and purposes mortgagees, and not 
trustees of the company in respect thereof, and there was no rule 
of equity forbidding the bank to sell, or E. & W. to purchase, 
under that sale. 

Beldf further, that if E. & W. should purchase at such sale they 
would become absolute holders of the bonds and not liable to be 
redeemed by the company. 

Seld, also, that the dealing by the bank with the bonds was 
authorised by the Banking Act. 

Henry ^ Q/\, and Newcombe for the appellants. 

Borden, Q.C., and Eussell, Q.O., for the respondents. 



Ontario.] 

Watibous Enqini Wobks Co. v. Town of Palmebstok. 

Municipal Corporation — Contract under seal — By-law — Executory 

contract — Enforcement. 

Li pursuance of Sec. 480 of the Ontario Municipal Act (R S. 
0. 1887, c. 184) empowering any Municipal Council to purchase 
fire apparatus, the Council of the Town of P., by resolution, 



100 THE LEOAL NEWS. 

aathoiised the Fire and Water Committee to ascertain the price 
of a fire engine, and on the committee's report recommending the 
purchase a contract was entered into under the corporate seal of 
the council for the construction of an engine hy the WaterousCo. 
No hy-law of the corporation was passed authorizing or sanction* 
ing such contract The engine was built and placed in the town 
Hall and a committee of the council was appointed to engage 
experts to test it The test was made and the experts reported 
favorably upon it, but the council afterwards passed a resolution 
that all negociations in reference to the purchase be dropped, and 
that the company be notified to remove the engine from the 
town hall. An action was brought against the municipal cor- 
poration for the contract price of the engine and hose, on the 
trial of which the presiding Judge found as a fact that the engine 
had answered the test and fulfilled the requirementa of the 
contract, but held that the contract could not be enforced for 
want of a by-law. This judgment was affirmed by the Divisional 
Court (20 O. E. 411), and by the Court of Appeal (19 Ont A. R 
47). 

ffeldy affirming the decision of the Court of Appeal, Gwynne, J., 
dissenting, that the engine not having been accepted by the 
corporation the contract was not executed ; that sec. 282 of the 
Municipal Act requires all powers of the corporation to be 
exercised by by-law unless otherwise expressly authorized or 
provided ; that the authority to purchase fire apparatus is 
expressly given to municipal corporations by the Act, and is 
a power to be exercised by by-law under said section, and the 
contract being executory the waiit of a by-law was a bar to the 
action.— Bemardin v. North Dufferin (19 Can. S. C. R. 681) 
distinguished. 

Held, per Gwynne J. — ^That the powers to be exercised by 
by-law are only legislative powers, and a contract such as that 
in question in this case could be enforced without a by-law. 

Appeal dismissed with costs. 
Wilkes^ Q. C, for appellants. 

A, M. Glark, for respondents. 



THE LEGAL NEWS. 101 

Ontario.] 

D&APBB V. BaDENHUBST. 

Title to land — Purchase ai tax sale — Glnud upon title — Agreement 
for quit-claim deed — Payment for deed— Eight to monies paid. 

J. B. died leaving all his estate to his vidow, and in the event 
of her death without having made a disposition thereof, to his 
surviving children. The estate having become involved an 
absolute deed of all the real estate was executed in favour of 
one of the testator's children by the widow and other children, 
the grantee undertaking to pay off the liabilities and improve 
the estate, and on being repaid all amounts advanced for that 
purpose she was to re-convey the lands to all the heirs in equal 
proportions. The grantee managed the estate for several years, 
but was finally obliged to suiTcnder it to trustees for benefit of 
creditors, it then owing her some $18,000. 

A poi*tion of the estate conveyed by the said deed was sold for 
taxes, and the purchaser wished to obtain quit-claim deeds from 
the heirs of J. B., the original testator, to perfect his title, and 
also to obtain title to 100 acres of timber land belonging to the 
estate of J. B., which was not included in the assignment for 
benefit of creditors. Similar quit-claim deeds had previously been 
given for portions of the lands, and the monies paid for the same 
were distributed in equal proportions among the sui*viving 
childi*en and grandchildren of the testator, and in this case the 
deeds were prepared and executed by the hell's in favour of the 
purchaser at the tax sale. Before the money agreed to be paid 
for the same was received, however, the above mentioned deed 
executed by the widow and* children of the testator, which had 
been mislaid for several years, the grantee under it having died, 
was discovered, and the children of the grantee claimed the 
whole of the said money, and an action was brought by the other 
heirs for their respective shares of the same. On the trial 
judgment was given in favour of the plaintiffs, the trial judge 
holding that an agreement was proved between the parties that 
the money should be equally divided. This decision was affirmed 
by the Divisional Court, but reversed by the Court of Appeal. 

Heldf affirming the decision of the Court of Appeal, that the 
purchaser at the tax sale paid the money in order to obtain a 
perfect title, and as the defendants were the only persons who 
could give such title, the legal estate being in them, the plaintiffs 



102 THE LEGAL NEWS. 

could not claim any part of the money^ no agreement with the 
defendants to apportion it being proved, and any agreement 
made by the plaintiffs with the porchasera not being binding on 
the defendants. 

Appeal dismissed with costs. 

Marshy Q. (7., for the appellants. 

Donovan^ for the respondent. 



British Columbia.] 

Webster v. Folxt. 

Master and servant — Defective system in using machinery — Injury to 
workman — Liability of master — Notice to master, . 

F. was employed in a sawmill at Vancouver, B. C, as a 
chainer, and worked on a I'ollway, which is 'the poi*tion of the 
machinery of the mill along which the logs ai-e brought to the 
saw carnage. One of his duties was to put a chain under the log 
and roll it on to the carriage, and while doing so, on one occasion, 
a log rolled down the roUway and against one behind him, and 
crushed him against the carriage, causing severe injuries for 
which he brought an action against W. & E., the ownei*s of the 
mill. 

On the trial it was shown that chock blocks were used to 
check the log in its course down the roUway, which had a slope 
of from 5 to 7 inches in its length of 12 ft., and that the blocks 
were only sufficient to hold one log. The juiy found that the 
accident was due to the slope of the rollway and defective chock 
blocks ; that F. could not have avoided the injury by exercise of 
proper care and skill in discharging his duties ; that he had 
complained of the chock blocks to the proper persons who 
promised to make them good ; that W. & E., the owners, were 
not aware of the defects, but that W., the manager and foreman, 
should have taken cognizance of the matter, and did not appear 
to have exercised due care ; and they assessed damages to F. at 
$5,000. The trial judge reserved judgment, and a motion was 
afterwards made on behalf of F. for judgment, and a cross-motion 
by defendants to set aside the findings, and for a non-suit. 
Eventually judgment was entered against W. & E. for the 
damages assessed, which was sustained by the Court in banc. 

jReld, affirming the decision of the Supreme Court of British 
Columbia, that the employers were no less responsible for the 



THE LEQjlL NSWS. 108 

iDJaries occasioned to F. by the defective system of using their 
machinery than they virould have been for defect in the machinery 
itself. . 

Held, farther, that there being no Employera' Liability Act in 
force in British Columbia, when the injury happened, F. was not 
precluded from obtaining compensation by failure to give notice 
to his employers of the defect in the chock blocks. 

Appeal dismissed with costs. 

Camdy, for appellants. 

Etcartj Q. C, for respondent 



Ontario.] 

Booth t. Batte. 

Practice — Master's office — Beference to assess damages — Severance 
of damages — Reasons for report — Judgment of Court — Ei^ual 
division — Withholding judgment, 

R brought an action against several mill ownei*s on the Ottawa 
Biver for damage to his business as an owner and letter of boats, 
caused by sawdust and mill refuse being thrown into the river 
and accumulating so as to obstruct navigation, and he claimed 
that he was not only prevented from sailing his boats on the 
river, but his customera who hired boats lefl him on account of 
the sawdust and refuse accumulating in front of his boathouse. 
On. the trial judgment was given for the defendants, but was 
reversed by the Court of Appeal and by the Privy Council, and a 
reference to a master was ordered to assess the damages. Before the 
master defendants claimed that other mill-ownera, not proceeded 
against in the action, had contributed to the alleged nuisance, 
and that the report should show the amount of damage caused 
by each defendant, also the amount of damage to R under each 
head of injury claimed. The defendants offered evidence 
to show that the loss of custom to B. in letting boats arose 
from the change in public taste, customers preferring the 
canal to the river ; and plaintiff gave evidence in rebuttal, some 
of which defendants alleged to be irrelevant. The master having 
reported generally, awarding B. $1,000 damages against each of 
the defendants, an appeal was taken against the report, resulting 
in its being affirmed by the Chancellor ; and in the Court of 
Appeal two of the four judges were in favour of confirming the 



101 THE LEGAL NEWS. 

report and the other two gave no judgment. On appeal by 
defendants to the Supreme Court, in addition to the objections 
to the report, it was argued that the Court of Appeal gave no 
judgment 

Held, that the master properly treated defendants as joint tort- 
feasors and was not obliged to give reasons for his report, provided 
he sufficiently followed the directions in the decree ; and, that he 
was not obliged to sever the damages, either to show the liability 
of each defendant or the amount due plaintiff under each head 
of damage claimed. 

Seld, further, that the master was the final judge as to the 
credibility of the witnesses, and his report should not be sent 
back because some irrelevant evidence may have been admitted 
of a character not likely to have affected his judgment, especially 
as no appeal was taken from his ruling on the evidence. 

Held, also, that this Court should not go behind the formal 
judgment of the Court appealed from, which stated that the 
appeal was dismissed. Moreover the position was the same as if 
the judges of the Court of Appeal had been equally divided in 
opinion, in which case the appeal would have been properly 
dismissed. 

Appeal dismissed with costs. 
QormuUyf Q. C, for appellants. 

QGara, Q. C, for respondent. 



COURT OF APPEAL ABSTRACT. 

Vente conditionnelle — Reprise de possession d difatU de paiement — 

Exercice abusif de ce pouvoir. 

En Janvier 1888, le demandeur a achet^ de la d^fenderesse 
certaines machines pour un moulin k scies, pour la somme de 
$1,690, payable $400 comptant, et la balance par quatre billets 4 
6f 12, 18 et 24 mois, avec stipulation que la propria t^ resterait & 
la ddfenderesse jusqu'au parfait paiement, et qu'& d^faut de paie- 
ment des termes & ^ch^ance, la totality du priz deviendrait 
exigible, el la d^fenderesse pourrait reprendre possession des 
machines sans remboursement des paiements faits. En aodt 1889, 
la d^fenderesse, r^clamant une balance de $681, comme non 
pay^e, a enlev^ les machines, qui ^taient stabiles et enmuraill^es 



THE LBOAL NSWS. 105 

dans le monlin dn demandenr, — et de Ik action par ce dernier 
pour $10,000 de dommages. La d^fenderesse n'a remis lea 
billets qn'avec ees plaidoyers, et la prenve a d^montr^ qn'il 
n'^tait dd par le demandeur, lors <le Penldvement des machines, 
qn'ane balance de $2.88. 

Jugiy que si la Coar est obligee de reconnaftre des contrats de 
oette nature, qui sont peut-dtre, dans la rigneur, n^cessaires avec 
notre mode de transiger les aflfairos, elle doit les limiter 4 lenrs 
strictes dispositions; que dans les circonstances do la pr^sente 
cause, la Gonr ne pouvait faire autrement que de d^larer abusive 
la oondnite de la d^fenderesse, et le jugement accordant $1,760 
de dommages, (an montant des argents pay^s en accompte par le 
demandeur, et les dommages k ses b&tisses), est confirm^ avec 
d^pens. — Waterous Engine Works Co. et Collin, Quebec, Lacoste, 
G. J., Baby, Boss^, Blanchet, Hall, JJ., 6 mai 1892. 



Vente par licitation — Annulatian. 

La vente par licitation d'an immeable dont une partie a ii6 
distraite, an coars des procMures, par alienation en faveor d'nne 
compagnie de chemin de fer, sons I'Art. 5164, S. R Q., est annn- 
lable k la demande de I'adjudicataire par voie d'action en nnllit^ 
de d^cret. — Picard dh Picard et al,, Quebec, Lacoste, C. J., Baby, 
Blanchet, Hall, et Wortele, Jj., 6 f($vrier 1892. 



Citi de Quebec — R^lement municipal, 

Juge : — ^Un rdglement municipal qui frappe d'un droit de $5 
chaque cheval et chaque voiture, etc., est conforme au Statut qui 
autorise la Ck>rporation k pr^lever ce droit <' sur chaque cheval et 
chaque voiture, etc.,'' quoiquHl ajoute '^ lesquels cheval et voiture 
seront exempt^s do porter un num^ro, et ne devront pas station- 
ner aux portes et aux stations des cochers et cbarretiers," ces 
derniers mots ^tant ajout^^ pour un objet special et n'ayant pas 
pour effet de borner le pouvoir do la Corporation k I'imposition 
d'un seul droit pour chaque cheval avec voiture. — Citi de Quebec 
et Oodin, Lacoste, J. G., Boss^, Blanchet, Wurtele, JJ., et 
Ouimet, J. A., 6 f^vrier 1892. 



106 THE LEGAL NEWS. 

Statute^Canstrudim o/— 54 Vict. (Q.) Ch. 96—" Is authorized to 

to pay " — Preamble. 

A testator directed that certain allowances should be paid 
monthly to his children. By a sabseqaent act of the Legislature 
(54 Vict., Q., Gh. 96), his testamentary executrix was '^ authorized 
to pay'' to each of the children an additional sum of $200 per 
month, — the preamble stating that the revenues of the estate 
were considerable, that it appeared from the provisions of the 
will that it was the desire of the testator that his children should 
continue to live, after his death, in the Fame condition as to 
fortune, as during his lifetime, and that the testamentary execu- 
trix, with a view to the settlement of her children, desired to 
secure to them, during her administration, a larger income out 
of the revenues of the estate. It appeared that the revenues of 
the estate were amply sufficient for the payment of the increased 
allowances. 

Held, that the terms of the statute, " is authorized to pay," 
were porminsive and not imperative, and that the testamentary 
executrix might refuse to pay the additional allowance without 
being obliged to assign any reason for such refusal.^— Xo/ntfrre dh 
Eodier, Montreal, Bosb^, Blanchet, Hall, Wurtele, JJ., Ouimot, 
J., ad hoc, February 24, 1892. 



Chemin defer — Traverse de ferme— Obligation d'en construire pour 
chaque subdivision de lot — Droits futurs^Appel, 

Jugi: — Les dispositions de TActe des clauses consolid^es des 
Chemins de fer, 14 et 15 Y., c. 51, s'appliquent 4 la Compagnie 
du Grand Tronc, incorpor^e par 16 Y., c. 37, et cette compagnie 
est par consequent tenue a la construction d'une traverse de ferme 
pour chaque terio traverb^e par sa ligne, que cesterres soientdes 
subdivisions, ou non, des terrains originairement expropri&s. 

Le Statut Provincial des Chemins de fer (S. E. Q. 5171) n'affecte 
pas la compagnie du Grand Tronc ni les autres chemins de fer 
qui sont sous le contrdle de Tautorit^ f^d^rale, lesquels restent 
soumis ^ la seule autorit^ du Parlement Federal. 

Dans la pr^sente cause un appel au Ck>nHeil Priv^ est accord^ ' 
des droits futurs se trouvant aifect^s, quoique le montant de 
Taction ne soit que de $110. — Oie, du Grand Tronc et Huard^ 
Quebec, Sir A. Lacoste, J. C, Baby, Boss^, Hall, Wurtele, JJ., 
21juin 1892. 



THE LSOAL NBWS. 107 

Corporation publique — Cliemins d barrieres — Saisie despiages. 

jugi : — ^Les Byndics des cbemins k barrieres de la Bive Sad, 
prds de la ville de Quebec, ne sont pas les agents da GroaTernemeDt 
mais forment ane corporation, et les argents prodaits des phages 
per9a8 aax baiTi^res sar les cbemins soas lear contr6le ne for- 
ment pas partie da revenu provincial, ni des argents appartenant 
k la Province, et peavent dtre saisis poar le paiement des dettes 
oontraot^es par les Syndics poar les fins de leor incorporation. — 
Les Syndics des Chemms a Bani^es db BurrougJiSf Quebec, Sir A. 
Lacoste, J.C., Baby, Blancbet, Hall, Wartele, JJ., 21 jnin 1892. 



SUEPRIOR COURT ABSTRACT. 

Promissory note — Relation between parties to — Prescription, 

Heldy tbat tbe relation between two persons, joint and several 
makers of a promissory note, one of whom signs after the other 
for his accommodation, is that of principal debtor and surety ; 
and where the person signing ior accommodation is obliged to 
pay the amoant of the note at or after maturity, his claim against 
the principal debtor is not subject to the five years' prescription 
applicable to promissory notes and claims of a commercial na- 
ture, but only to the prescription of thirty years, applicable to 
the claim of a surety who has paid the debt, against the prin- 
cipal debtor. — Cullen v. Bryson, Montreal, in Beview, Johnson, C. 
J., Loranger, Doherty, J J., November 30, 1892. 



Riviire flottable — Ecluse^&lissoire — Brave. 

Jugi : — ^Le droit de draver le bois sur les rividres flottables k 
bdches perdues dans leurs grosses eaus, est reconna par la loi, et 
oelui qui y met obstacle, par la construction d'une chauss^e sans 
glissoire, est responsable des dommages qui peuvent en r^sulter. 
— Atkinson v. Couture^ Quebec, en Revision, Casault, Bouthier, 
Caron, J J., 31 mai 1892. 



Cession de biens — Curator's costs — Landlords privilege. 

The defendant, plaintiff's tenant, became insolvent and assigned 
to the opposant, who did not take possession. Later, the plaintiff 
seized and sold defendant's effects under a writ of attachment for 
rent, and on the proceeds the opposant sought to be paid his bill 
as curator, by privilege. 



108 THS LEGAL NEWS. 

HMf that the opposant had no right to be collocated for any 
portion of his claim to the detriment of the plaintiff who, as 
landlord, had a lien upon the whole of the effects seized and sold. 
— Mc William dh Osiers & Matte, oppt., Quebec, S. C, Andrews, J., 
March 10, 1892. 



Municipality — Injtmctian by ratepayer — Amended declaration — 

Service. 

Held: — 1. A ratepayer of a municipality has no right of ac- 
tion to restrain works or cause the removul of obstructions on 
the public highway, without showing that the same have cau- 
sed, are causing, or will cause him some special damage peculiar 
to himself, and different from the damage which they may cause 
to the public generally ; and the Court is not required in such 
action, on the issue between the plaintiff and the party executing 
the works, to decide whether the resolution of council, under the 
authority of which the works are being performed, is radically 
null. 

2. Where a municipality is mise en cause in a suit in which the 
plaintiff asks that a resolution of the council be set aside, grounds 
of nullity, which are invoked only in the declaration as amended, 
cannot be taken into <K>nsideration by the Court on the issue 
with the mise en cause unless the amended declaration has been 
served upon the miee en cause, — Senecal v. Edison Electric Co,^ 
Montreal, S. C, Doherty, J., January 7, 1892. 



Loi ilectorale — D^enses personnelles d^un candidat. 

Juge: — ^11 existe en loi une action pour le recouvrement d*une 
dette encourue par un candidat pour ses d^penses personnelles. — 
Bernard v. ValUe, C. C, Montmagny, Pelletier, J., 21 d^. 1892. 

Mariage — Epaux siparis defait — Aliments. 

Juge: — La femme s^par^e de fait de son mari, a un reoours 
contro lui pour aliments, lorsque les mauvais traitements de ce 
dernier sont la cause de la separation. — Samson v. Lemelin is^ual.^ 
Quebec, C. S., Casaull, J., 24 ddcembre 1892. 



Charge puhlique — Usurpation — Acceptation — G. P. C, 1016 — 

Bequete lihelUe — Diposition. 

Juge: — ^Puisquo le recours que donne Tarticle 1016 du C. P. C. 
n'existe que lorsqu'il y a usurpation, detention on exercice ill^auz 



THE LSGAL NEW8. 109 

d'nne charge, une deposition sous serment qui ne mentionne que 
son acceptation est insaffisante ponr aatorieer r^manation du bref. 
Prendre sans permission noe charge (veraion frangaise) n'eat pas 
senlement Taccepter, mais s'en saisir, les mots ^^intmde into" 
(version anglaise) ne voalant pas dire sealement accepter une 
charge, mais s'en m^ler, s'y fourrer. 

Dans Tesp^ce, cette objection n'ayant pas ^t^ prise in limine 
Utis, et la preave d^montrant que Tacceptation inentionn^e a r^- 
ellement ^t^ une prise de possession, le jugement d^possMant le 
ddfendear de la charge de conseiller, pour manqae do qualifica- 
tion, est confirm^ avec d^pens. — McLaughUn v. Paul^ Quebec, en 
B^vision, Casanlt, Bonthier, Caron, JJ., 29 f($vrier 1892. 



Qarantie centre les f aits etpromessesdu vendeur seulement — Droit de 
commutation ouvert — Oonnaissance de la cause dUvietion — Dip6t 
d^vn acte sous seing prive chez un notaire — Freuve — Art. 1510, 
CO. 

Juge: — 1. Que racqn^reur d'un immeable, sous la gaitintie 
centre les faits et promesses seulement da vendeur, ne peat r^- 
darner de ce dernier le montant qu'il a pay^ pour acqnitter un 
droit de commutation ouvert lors de la vente. 

2. Que plusieurs mutations de Timmeuble en question ayant 
eu lieu avant le titre de cet acqu^reur, et la commutation deve- 
nant exigible lors de la premiere mutation, I'acqu^reur est pre- 
sume avoir connu cette cause d'^viction, et ne peut Topposer k 
son vendeur qui ne I'a garanti que centre ses faits et promesses 
settlement. 

3. Que le d^pdt d*an acte sous seing priv^ ches an notaire, 
n'a pour but que de conscrver cet ^crit, et ne donne pas auz 
copies qu'en dresse le notaire le caract^re et la force probante 
d'un acte authentique, mais que cet ^crit doit dtre prouv^ comme 
les autres Merits sous seing priv^. — Guerin v. Craig, et Craig, 
opposanti MontrdaJ, en Envision, Loranger, Tellier et Davidson, 
JJ., 31 mai 1892. 



Ccntrainte par corps^Injure — Denonciation cahmnieuse, 

Jugi: — II n'y a pas lieu k la contrainte par corps en execution 
d'un jugement accordant des dommages, pour une denonciation 
calomniease. — Biverin v. Lessard, Montreal, C. S., Mathieu, J., 2 
d^oembre 1892. 



110 THE LEGAL NEWS. 

Mandamm. 

Juge: — Qae, dans nne requite pour mandamxis^ bods Tart. 1022, 
C. P. C.y ooDtre an niagistrat qui refase d'entendre une plainte, 
dans aneaflflaire o^ il a jnridiction, 11 n'estpas n^cessaire d'all^gner 
que le reqa^rant n*a pas autre remMe. — Hooper dh Dugas, Mont- 
real, G. S., Alathiea, J., 21 octobre 1892. 



Action en dommages — Oontrainte par corps — Distraction defrais. 

Jugi : — Que la partie qui a obtena jugement, dans nne action 
pour injures personnelles, pour des d^pens qui ont ^t^ distraits ^ 
son avocat, ne pent proc^er k la contrainte par corps, en eon 
nom, pour le montant de ces d^pens. 

Qu'il n'est pas n^cessaire, avant de demander la contrainte par 
corps, de discuter les immeubles de la partie condamn^e. 

Que, sous lo9 articles 2272 et 2276, G. G., la femme pent dtre 
incarc^r^e, lorsqu'elle est sous le coup d'un jugement accordant 
des dommages-int^rdts pour injures personnelles. 

Que la contrainte par corps est k Tarbltrage du tribunal qui 
pent Taccorder pour un temps limits. — Quenneville v. St-Auhin^ 
Montr^I, G. S., Mathieu, J., 2 d^cembre 1892. 



Loi seigneuriale — Droit de p^he, 

Jugi : — 1. Le droit de p§che sur les rives du St. Laurent bornant 
les seigneuries, n'en ^tait pas un accessoire et n'appai*tenait pas 
au seigneur auquel il n'avait pas ^t^ sp^cialement accord^. 

2. Ce droit, lorsqu'il avait 4t4 accoi*de au seigneur, n'^tait pas 
sous-inf($ode sans concession expresse et sp^ciale ; et le seigneur, 
auquel le donne son titre, pent empdcher le censitaire riverain, 
que n'en a pas, de tendre une p^he sur la gr§ve du St. Laurent k 
laquelle sa terre aboutit. — Fraser v. Draser, Quebec, en B^vision, 
Gasault, Bouthier, Andrews, JJ., 31 mai 1892. 



ProcSdure — Saisie-arrH avant jugement — Seguite pour annular 

la saisie — Inscription, 

Juge : — 1. Que quand la proc^ure a ^t^ faite d'une mani^re 
n^gligente de part et d'autre, il convient de s'assurer si justice a 
^\A rendue aux parties, et non pas si Ton a suivi strictement les 
regies de la procMure. 

2. Que loroqu'une requ§te pour Tannulation d'un bref de saisie- 



THE LEGAL NEWS. Ill 

arrdt avant jugement a 6t4, aprds Ba presentation, contina^e ik un 
autre jour, il n'est pas n^cesRaire qu'il y ait inscription pour 
preuve et audition snr cette requite, mais que le jour fiz^, le 
requ^rant doit Stre present avec ses t^moins, et que faute par lui 
de proc^der sur sa requite le tribunal, sur inscription du deman- 
deur, pent rendre jugement sur le m^rite de Taction, sans avoir 
^gard a la requ§ce du d^fendeur. — McHugh v. Walker^ Montreal, 
en K^vision^Jette, Davidson et Fagnuelo, JJ., 30 novembre 1892. 



RpquUepour annulatian dUlectian municipal — Objections prilimi' 
naires — Cautimnement — Amendement — Dilais. 

Jugi, qu'en mati^re do contestation d'^lections municipales, la 
Cour est toujours dispos^e k permettre d'amender la procedure et 
mdme de completer le cautionnement, pourvu que les amende- 
ments ne constituent pas une procedure nouvelle en dehors des 
d^lais de rigueur. 

Que le cautionnement exig^ en pareil cas doit se rattaober 
clairement k la procedure dont il est question. — Desmarteau et cU. 
V. DaignauU^ Montreal, C. C, Pagnuelo, J., 16 avril 1892. 



Procidurt — Opposition — Effets exempts de saisie — Cfkoix du saisi — 
Description des effets — Articles 556, 560, 0, P. C, 

Jugif que lors de la saisie, Thuissier iustrumentant doit offrir 
au saisi le choix des effets qui sont exempts de saisie. 

Que I'buissier doit d^crire les effets saisis de manidre k les iden- 
tifier ; qu'ainsi, la designation, au procds-verbal, de *' quatre lits 
sur sept *' est insuffisante. — Lanthier v. I'houinydh Thouin, Montreal, 
C. C, Pagnuelo, J., 1892. 



Condictio indehiti — Lien de droit — Difense en droit — C, C. 1047. 

La declaration alieguait qu'en avril 1891, le gouvernement 
provincial, desirant payer certains subsides votes en favour de 
la Compagnie de Chemin de fer de la Baie des Cbaleurs, et 
Toulant que ces subsides fussent d'abord employes 2^ acquitter 
certaines dettes anterieures de cette compagnie, nomma un man- 
dataire qu'il chargea de faire ces paiements, et qu'uno lettre de 
credit au montant de $100,000, adressee k la Banque Union, fut 
mise & la disposition de ce mandataire pour cet objet. Que celui- 
ci la deposa k la dite Banque Union, et, le m§me jour, fit d. Toi-drc 



112 THE LEGAL NEWS. 

du nomm^ C. TS. Armstrong, cinq ch^ues de $20,000 chaoun, et 
les lai remit dans le barean da d^fendeur, et qu'imm^iatement 
les dits ch^ues farent endoss^s et d^livr^s par le dit Ai*mstrong 
au d^fendear, sans qa'il ne fat Hen d^ ik ce dernier. Et le gou- 
vernement demanda le reconvrement de cette somme dn d^fen- 
dear, par action en r^p^tition de llndtL. 

JiigS : — Sar defense en droit, qae Taction nc d^montrait aacon 
lien de droit entre le Goavernement et le d^fendeur, et ne 
poavait Stre maintenae.— Cflw^oin, Proc.-Gen. v. Pacaud^ Quebec, 
S. a, Boatbier, J., 16 mai 1892. 



Femme mariee — ObligatUm pour sonmari — Billet — Tiers porteur de 

bonne foi-^Preuve — Art, 1301, C. C. 

La femme marine, qai veat profiter de la disposition ^nonc^ en 
rarticle 1301, C. C, poar ^chapper aa.paiement d'an billet qa'elle 
pretend avoir sign^ poar son mari, doit pi*oavor que le tiers 
porteor qai a escompt^ ce billet savait, an moment oil il a avanc^ 
son argent sar la foi de la signature de la d^fenderesse, que cette 
derni^re ne s'^tait obligee qae poar son mari. — JLa Banque 
Nationale v. Dame H, Bicard, Monti*^aI, S. C, Loranger, J., 
11 avril 1892. 



Telegraph Company — Power to cut overhanging boughs — Trespass. 

Held : — ^The Montreal Telegraph Company has, by its charter, 
the right to cat the branches of trees overhanging highways, 
which interfere with the working of its telegraph lines ; but such 
right does not justify a trespass on private property for tho 
purpose of catting such branches, and the Great North Western 
Telegraph Company, as lessees of the Montreal Telegraph Com- 
pany's lines, has the same rights. — Boy v. Great North Western 
Telegraph Co,, Quebec, C. C, Casault, J., 1892. 



Appbals. — ^The Quebec Act, 56 Yict. ch. 42, passed la8t session, 
provides that an appeal from an interlocutory judgment must 
first be allowed by one of the judges of the Court of Queen's 
Bench, upon a summary petition. 



THE 



LBGAL NKWS 



VOL. XVL APRIL 15, 1893. No. 8. 



SUPEEME COURT OF CANADA. 

Ottawa, Feb. 20, 1893. 
Quebec.] 

Stsybnson v. Canadian Bank of Commerce. 

Insolvency — Knowledge of by creditor — Fraudulent preference — 
Pledge — Warehouse receipt — Novation — Arts, 1034, 

1035, 1036, 1169, CC. 

W.B.E., connected with two business firms in Montreal, viz. 
the firm of W. E. Elliott & Co., oil merchants, of which he was the 
sole member, and of Elliott, Finlayson & Co.,wine merchants, made 
a judicial abandonnent, on the 18th August, 1889, of his oil busi- 
ness. Both firms had kept their accounts with the Bank of 
Commerce. The Bank discounted for W. E.Elliott & Co., before 
his departure for England, on the 30th June, a note of $5,087.50 
due Ist October, signed by John Elliott & Co., and endorsed by 
W. E. Elliott & Co. and Elliott, Finlayson & Co., and on the 5th 
July took as collateral security from Finlayson, who was also 
W. E. Elliott's agent during his absence, a warehouse receipt for 
292 barrels of oil, and the discount was credited to Elliott, Finlay- 
son & Co. On or about the 9th July 146 barrels were sold and 
the proceeds, viz. $3,528.30, were subsequently, on the 9th 
August, credited to the note of $5,087.50. On the 13th July, 
McDougall, Logic & Co. failed and W. E. E. was involved in the 
failure to the extent of $17,000, and on the 16th July, Finlayson, 
as agent for W. E. E., left with the bank as collatei-al security 
against W. E. £.'8 indebtedness of $7,559.30 on the paper af 
McDougall, Logie &, Co., customers' notes of the oil business to 



114 THE LEGAL NEWS. 

tlio amount of S2,7(;8.28, upon which the bank collected $1,603.43, 
and still kept a note of J. P. k Co. unpaid of $1,165.32. 

On the return of W. B. E: another note of John Elliott & Co. 
for $1,101.33, previouKly diBCounted by W. E. E., became due at 
the bank, thus leaving a total debit of the Elliott firms on thoir 
joint paper of $2,660.53. The old note of $5,08750 due Ist October, 
and the oneof $1,101.33, were signed by John Elliott & Co., and ou 
the 10th August were replaced by two notes signed by Elliott, 
Finlayson & Co., and secured by 200 barrels of oil, viz., 146 barrels 
remaining from the onginal number pledged and an additional 
warehouse receipt of 54 barrelaof oil, endorsed over by W. B. B. 
to Finlayson, Elliott & Co., and by them to the bank. The 
respondent, as curator for the estate of W. E. Elliott & G:>., 
claimed that the pledge of the 200 barrels of oil on the 10th 
August and the giving of the notes on the 16th July to the Bank 
were fraudulent preferences. The Superior Court held that the 
bank had knowledge of W.E. E.'s insolvent condition on or about 
the 16th July, and declared that they had received fraudulent 
preferences by receiving W. E. B.'s customers' notes and the 200 
barrels of oil, but the Court of Appeal, reveraing in part the 
judgment of the Superior Court, held that the pledging of 
the 200 barrels of oil by Elliott, Finlayson & Co. on the 10th 
August was not a fraudulent preference. ( Vide 1 B. B. Q. 
371.) 

On an appeal and cross appeal to the Supreme Court : 

Heldf 1st, that the finding of the Court below of the fact of the 
bank's knowledge of W. E. Elliott's insolvency dated from the 
13th July was sustained by evidence in the case, and there had 
therefore been a fraudulent preference given to the bank by the 
insolvent in transferring over to it all his customers' paper not 
yet due. Gwynne, J., dissenting. 

2nd. That the additional security given to the Bank on the 
10th August of 54 barrels of oil for the substituted notes of 
Elliott, Finlayson & Co. was also a fraudulent preference. 
Gwynne, J., dissenting. 

3rd. Eeversing the judgment of the Court of Queen's Bench 
and restoring the judgment of the Superior Court, that the legal 
effect of the transaction of the 10th August was to release the 
pledged 146 barrels of oil, and that they became immediately the 
property of the insolvent's creditors, and could not be held by 
the bank as collateral secuiity for Elliott, Finlayson & Co.'s 



THB LBOAL NEWS. 116 

BubstitDted notes. Arts. 1 169 and 1034 C. C. — Gwjnne and Pat- 
terson, J J., dissenting. 

Appeal allowed and cross 

appeal dismissed with costs. 
Macmaster, Q.C., dh Oeoffrion, Q,C„ for appellant. 
Lashy Q.C.f dh Morris, Q.C., for respondent. 



Quebec.] 

Vaudheuil Elsotion Casb. McMillan v. Valois. 

Election petitions — Separate trials — RS.O. ch, 9, sees. 30 <fe 50 — 

Jurisdiction. 

Two election petitions were filed against the appellant, one 
by A. C. filed on the 4th April, 1892, and tEe other by A. Y., the 
respondent, filed on the 6th April. The trial of the A. Y. peti- 
tion was by an order of a judge in Chambers, dated the 22nd Sep- 
tember, 1892, fixed for the 26th October, 1892. On the 24th 
October the appellant petitioned the judge in Chambers to join 
the two petitions and have another date fixed for the trial of both 
petitions. This motion was referred to the trial judges who, on 
the 26th October, before proceeding with the trial, dismissed the 
motion to have both petitions joined, and pi*oceeded to try the 

A. Y. petition. Thereupon the appellant objected to the petition 
being tried then, as no notice had been given that the A. C. 
petition had been fixed for trial, and subject to such objection, 
filed an admission that sufficient bribery by the appellant's agent 
without his knowledge had been committed to avoid the election. 
The trial judges then delivered judgment setting aside the elec- 
tion. On an appeal to the Supreme Court, 

Held, 1st, that under sec. 30 of ch. 9 B. S. C. the trial judges 
had a perfect right to try the A. Y. petition separately. 

2nd, that the ruling of the Court below on the objection relied on 
in the present appeal, viz. that the trial judges could not proceed 
with the petition in his case because the two petitions filed had 
not been bracketed by the prothonotary as directed by sec. 30 of 
ch. 9 B. S. C, was not an appealable judgment or decision. 

B. S. C, ch. 9, s. 50. (Sedgewick, J., doubting.) 

Appeal dismissed with costs. 
Bisaillon, Q. C, for appellants. 
J^. JT. Choquette, for respondent. 



116 THE LEGAL NEWS. 

Ontario.] 

Campbell v. Pattbrson. 

Mader v. MoKinnon. 

Chattel mortgage — Preference — Band fide adoance — Consideration 
partly bad — Effect on whole instrument — B. S. 0. (1887), c. 124, «. 2. 

B., being in insolvent circumstances, applied to P. his uncle, 
for a loan of $5,000 which he received, P. mortgaging his house 
for part of the amount and giving his note for the balance, which 
E. had discounted. The security for this loan was a chattel 
mortgage on K.'8 stock of goods in his store. The money, was 
applied by R for the most part in taking up notes made by him 
and endorsed by his relatives. P. knew when he advanced the 
loan that R. was insolvent, but it was not shown that he knew 
how the money was to be applied. 

B. gave another chattel mortgage to M. for another loan of 
money applied in the same way, but it was shown that part of 
the loan was his own qioney though alleged to have been advanced 
by his wife. 

An action was brought on behalf of B.'s creditors to have these 
mortgages set aside as being void under E. S. O. (1887), c. 124, 
8. 2, and at the trial before the Chancellor both were set aside. 
The Court of Appeal reversed the decision setting aside the 
mortgage to P., and affirmed that setting aside the mortgage to 
M., holding as to the latter, following Commercial Bank v. Wilson 
(3 E. & A. Rep. 257), that the mortgage being void in part for 
illegal consideration the whole instrument was void. 

Held, affirming the decision of the Court of Appeal in Campbell 
V. Patterson (18 Ont. App. R. 646, sub nom. Campbell v. Boche), 
that the mortgage to P. being given for an actual bond fide ad- 
vance, the provisions of sec. 2 of the Ontario statute did not 
apply to it, especially as P. was not shown to have had know- 
ledge of E.'s motive in procuring the loan. 

Held, also, over-ruling the decision in Mader v. McKinnon (18 
Ont. App. B. 648, sub nom McKinnon v. Roche) in so far as Com- 
mercial Bank V. Wilson was followed, that that case was decided 
under the statute of Elizabeth, and is not now law under the On- 
tario statute, and a mortgage may be set aside as to part and 
maintained as to the remainder, but affirming the judgment of 
the Court of Appeal on the ground that the evidence showed the 



THE LBOAL NEWS. 117 

whole of tho consideration for M/b mortgage to be illegal and bad. 

Appeal dismissed with costs. 

McCarthy^ $. C, and McDonald^ Q. C, for appellants and res- 
pondents respectively. 

MosSj Q, C.J and Thomson, Q. C, for respondents and appellants 
respectively. 



Exchequer.] 

The Quebn v. Clarki. 

Appeal — Limitation of time — Final judgment. 

On the trial in the Excheqaer Court, in 1887, of an action 
against the Crown for breach of a contract to purchase paper from 
the suppliants, no defence was offered and the case was sent to 
referees to ascertain the damages. In 1891 the report of the 
referees was brought before the Court, and judgment was given 
against the Crown for the amount thereby found due. The Crown 
appealed to the Supreme Court, having obtained fi*om the Excheq- 
uer an extension of the time for appeal limited by statute, and 
sought to impugn on such appeal the judgment pronounced in 
1887. 

Heldf Gwynne and Patterson, JJ., dissenting, that the appeal 
must be restricted to the final judgment pronounced in 1891 ; that 
an appeal from the judgment given in 1887 could only be brought 
within thirty days thereafter, unless the time was extended as 
provided by the statute, and the extension of time granted by the 
Exchequer Court on its face only refers to an appeal fi'om the 
judgment pronounced in 1891. 

Held^ per Gwynne and Pattei*son, J J., that the judgment given 
in 1891 was the only judgment in the suit in respect to the mat- 
ters put in issue by the pleadings, and on appeal therefrom all 
matters in issue are necessarily open. 

Appeal dismissed with costs. 

Robinson, Q, C, and Hogg, Q. C, for appellant. 

McCdrthy, Q. C, and McDonald, Q. C, for respondents. 



118 THE LEGAL NEWS. 

Ontario.] 

HusoN V. South Norwich. 

Municipal Corporation — By4aw — Submission to rate -payers — Com- 
plianceunth statute — Imperative or directory provisions — Authority 
to quash. 

The Ontario Municipal Act, E. S. O. (1B87) c. 184, requires, by 
sec. 293, that before the final paB^ing of a by-law requiring the 
assent of the rate-payers, a copy thereof shall be published in a 
public newspaper either within the municipality or in the County 
town, or published in an adjoining local municipality. A by-law 
of the township of South Norwich was published in the village 
of Norwich in the County of Oxford, which does not touch the 
boundaries of South Norwich, but is completely surrounded by 
North Norwich which does touch said boundaries. 

^(02(;2, affirming the decision of the Court of Appeal (19 Ont. 
App. B. 343) that as the village of N. was geographically within 
the adjoining municipality, the statute was sufficiently complied 
with by the said publication. 

This case raises also a question as to the constitutionality of 
what is known as the '^ local option Act " of Ontario, the argu- 
ment on which was postponed until the validity of the by-law was 
settled, and will be proceeded with at the May Term. 

Bobinson, Q, C, and Du Vernet for the appellant. 

Maclaren, Q. C, and Titus for the respondents. 



Ontario.] 

Grand Trunk Railway Co. v. County of Halton. 

Bailway company — Bonus to — Bond — Condition — Breach 

The County of H. in 1874 gave to the H. & N. W. Ry. Co. a 
bonus of $65,000 to be used in the construction of their railway, 
and the company executed a bond, one of the conditions of which 
was that the bonus should be repaid " in the event of the com- 
pany, during the period of twenty-one years, ceasing to be an 
independent company." In 1888, the H. & N. W. B.y, Co. became 
merged in the G. T. B. company, and as was held on the facts 
proved by the trial judge and the Divisional Court, ceased to be 
an independent line. 



THE LEGAL NEWS. 119 

J76^(2, affirming the decision of the Court of Appeal (19 Ont. 

App. R. 252), that there had been a breach of the above condition, 

and the County was entitled to recover from the G. T. R the 

whole amount of the bonus as unliquidated damages under said 

bond. 

Appeal dismissed with costs. 

S, H. Blake, Q. C, and W. Cossets, Q, C, for the appellants. 

hohinson, Q. (7., and Bain, Q. 0,, for the respondents. 



COURT OF APPEAL ABSTRACT, 
Insurance, Guarantee^ Notice to insurer of defalcation — Diligence, 

By a condition of a guarantee policy insuring the honesty of 
W., ao employee, it was stipulated that the employers should, 
immediately upon its becoming known to them, give notice to 
the guarantors that the employee had been guilty of any 
criminal offence entailing, or likely to entail, loss on the 
employers, and for which a claim was liable to be made under 
the policy. On the 22nd June, the employers* auditors notified 
them that an unexplained deficiency, amounting to S300 or $400, 
existed in the accounts of W., who was their secretary-treasurer. 
Kespondents did not notify the guarantors, but gave W. a week 
to explain or rectify the matter. On the 29th of the same 
month the auditors, about 4 p.m., notified the employers of their 
discovery that a cheque for $14,000, received by W. on the 9th 
June, had not been entered in his cash book although it had been 
regularly credited to the employers' account at their bankei's. 
The matter was discussed between the employers and auditors 
that evening, but notice of the dinco very was not given to the 
guarantors until the following morning, when W, failed to 
appear at his place of business, and they did not aut )orizo his 
arrest or detention until some hours afterwainls, when it was too 
late to intercept him in his flight from the country. 

Held, that the employers had not complied with the conditions 
of the contract as to immediate notice, and were not entitled to 
recover under the policy. — Guarantee Co, of N, A. d? Harbor Com- 
missioners of Montreal, Montreal, Lacoste, C. J., Baby, Blanchet, 
Hall and Wurtele, JJ., (Hall, J., diss.) December 23, 1892. 



Billet promissoire — Prite-nom — Compensation. 
Juge: — ^Lorsqu'un cr^ancier poursuit son d^biteur sur obli- 



120 THE LEGAL NEWS. 

gation, et offre de lui remettre ses billets, donnas comme stiLret^ 
coUat^rale, le d^biteur pout, dans ce oas, compenBor cette cr^ance, 
et auouQ recours ne peat §tre exerc^ sur ces billets. — Hould dk 
Tcusignant, Quebec, Sir A. Lacoste, J.C., Baby, Boss^, Blanchet^ 
Hall, JJ., 21 juin 1892. 



Municipal matters — 53 Vic. (Q.) ch. 71, «. 699 — Exemption from 
taxes as consideration for services to ^e rendered. 

Held: — 1. That there is no appeal from a judgment rendered 
by a judge of the Superior Court in municipal matters, unless 
there is an evident excess of jurisdiction on the part of the 
council, or a serious violation of general or statutory provisions. 

2. A section of a town charter which authorizes the council 
'' to provide for the purchase of fire engines, or apparatus destined 
for the same purpose, aqd generally to adopt all measures best 
calculated to prevent accidents through fire,*' sufficiently covers 
the exemption fi*om taxation of private water works, the 
exemption being granted in consideration of the proprietor 
furnishing an improved water service for the town. — Mollevar dk 
Ville de St. Jean, Montreal, Lacoste, C. J., Baby, Bos8^, Blancbet, 
Hall, J J., November 26, 1892. 



Droit paroissial — Election et resignation de mar gnilliers^ Avis d^as- 
semblees — (^ualiti d'ancien marguHlitr— Usage, 

Jage : — 1. Qu'il suffit qu'une assembl^e de fabrique soit convo- 
qu^e suivant Tusage de la paroisse (art. 3438 S.RP.Q.) 

2. Que lorsqu'il est d'usage d'envoyer un avis par ^crit 4 
chaque marguillier le convoquant k Tassembl^e et d*annoncer 
cette assembl^e au pr6ne, T irregularity qui a pu se glisser dans 
Tannonce au pr6ne et couverte par Tavis par ^crit en bonne et 
due forme qui a ^t^ adress^ k chaque marguillier. 

3. Que Tusage de la pai*oisse de Notre Dame de Montreal 
n'^tant d'indiquer le but de Tassembl^e quo dans deux cas, I'^lec- 
tion des marguilliera et le rendition des comptes, il n'^tait pas 
n^cesaaire de specifier le but d'une assembl^e convoqu^e pour 
accepter la resignation de marguiliiors d^missionnaires. 

4. Que des requ^rants qui attaquent une election de marguil- 
liers pai'cequ'on leur aurait refuse de prendre part ik cette eiec 
tion, et qui n'alldguent pas que Teiection aurait produit une autre 



THE LEGAL NEWS. 121 

r^ultat si on lear edt permiR d*y participer, Houl^vent nne objec- 
tion qui est sans int^rit dans la cause. 

5. Semble ^ la majority de la cour qu'un margaillier qui se 
d^mct do ses fonclions comme marguillier du banc n'a pas droit 
^ la quail te / d'ancien marguillier. — Auger & Labonii, Montreal, 
Baby, Boss^, Blanchet, Hall et Doherty, JJ., 21 mai 1892. 



Substitutim — Acceptation — Revocation avant Vacceptation^Fiducie 
— S&paration de corps — Pension alimentaire — Biconciliation. 

L'appelant avalt remis aux intim^s comme fiduciaires, nne 
somme de $20,000, dont ils s'engag^rent d. payer Tint^rSt & sa 
femme ^ titre de pension alimentaire. Dans I'acte errant cette 
pension alimentaire se lisait la clause suivante : 

" At the death of the said party of the second part (la femme 
de Tappelant), the capital sum of $20,000 shall revert to and 
become the property of the said four children, or the survivors 
of them, share and share alike accoi*ding to law, payable to them 
on their respectively attaining the age of majority, and should 
the said party of the second part die before the said children, or 
any of them, attain such age of majority, then and in that case, 
the revenues of the said capital sum of $20,000, or the proportion 
thereof of such minors as have not attained the age of majority, 
shall be payable to the said party of the first part (Fappelant) 
until they shall have so attained said period of maj ority. But in 
case the said party of the second part survive the said party of 
the first part, it is agreed that the said payment of said trust 
shall cease, and that the said party of the second part shall be 
entitled to claim the sum stipulated in her contract of manage* 
namely $1,500 per annum, unless she prefer the present payments 
in lieu thereof, and that she shall not be entitled to both sums." 

JugS (infirmant le jugement de la Ck)ur Sup4rieure) : Que la 
clause en question ne constitue ni une donation ni nne substitu- 
tion on favour des enfants, I'appelant ne s'^tant pas d^saisi de la 
dite somme da jour de la dite donation et les intim^s n'en dtant 
pas devenus propridtaires k la charge de la rendre, mais ^tant 
seulement charges de Tadministrer. 

Qu'aucune des parties ^ Tacte n'ayant accepts cette disposition 
aa nom des dits enfants, elle pouvait §tre valablement r^voqu^e 
par Tappelant. 

Qu'un acte par lequel unmari donne une pension alimentaire a 



122 THE LEGAL NEWS. 

sa femme perd tons hob effets par suite de la reconciliation surve- 
nne sabs^qaemment entre les ^poux. — Smith & Davis, Montreal, 
LacoBte, C J., Baby, Boss^, Blanchet, Hall, JJ., 26 Janvier, 1893. 



Distraction de depens— Opposition —Intirit de la partie quand les 

frais ant eti distraits a son procurewr, 

Jugiy que la partie, ^tant re-^^ponsable du paiement des d^pens 
qui ont ^t^ distraits k son procureur, a un int^rdt suffisant pour 
contestor une opposition a la saisie faite k la poursuite de ce pro- 
cureur sur distraction de frais. — Fee dh Peatman, Montreal, La- 
coste, C.J., Baby, Boss^, Blanchet et Wurtele, JJ., 28 ftvrier, 
1893. 



SUPERIOR COURT ABSTRACT, 

Will — Legacy — Vagueness and uncertainty — Trust — Intervention — 

Pfocedurc'-C. C. P. 157, 158. 

Held : — By the will in question in this cause a trust was created 
in favor of public Protestant charities and poor relations: and 
the terms creating such trust were not so vague and indefinite as 
to make it incapable of execution. 

A party who has obtained leave to intervene in a suit, is jus- 
tified, after the lapse of eight days from service of his petition, in 
considering his intervention as admitted (C. C. P. 158), and may 
thereafter produce his grounds of intervention, without demand- 
ing from the other parties a plea to his petition. 

The premature production of such grounds would, in any case, 
constitute merely an irregularity, to be attacked by motion, and 
not by exception to the form. — Ross v. Ross, Quebec, S. C, 
Routhier, J., May 10, 1892. 



Delegation of payment — Acceptance — Evidence. 

Heldf 1. An order in writing, addressed by a creditor to his 
debtor, directing him to pay a certain sum out of the moneys due 
to the drawer by the drawee, and to charge the same to the 
drawer, is not a bill of exchange, but an assignment to the payee 
of so much of the claim of the drawer against the drawee. 



THE LEGAL NEWS. 128 

2. The acceptance and retention of such order by the drawee 
renders the delegation of payment perfect, without a written 
acceptance, and the subsequent insolvency of the drawer or assign- 
or does not divert the payee of his right to such amount. 

3. Verbal evidence is admissible to prove that the order was 
accepted. 

4. Interest is due by the drawee on the amount of the order 
only from the time that* he is put en demeure to pay the same. — 
Wardv. Royal Canadian Ins. Co., Montreal, in Review, Johnson, 
C. J., Tait and Davidson, JJ., Dec. 30, 1892. 



—J 

AvocaU — Distraction de fraia. 

Jugit que Tavocat, qui a obtenu distraction de frais, et qui a fait 
^maner, nu nom de son client, un brefd'ex^cution poar le mon- 
tant du jugement, en capital, int^i 6t et frais, pent, n^anmoins, 
faire ez^cuter ensuite son jugement pour le montant des frais qui 
lui ont ^t^ accoi d^s par distraction, en son nom propre, et que 
r^manation du premier bref d'ex^cution au nom du client, ne 
pent 6tre consid^r^e comme une renonciation ^ la distraction. — 
McNamara v. GautJuer, Montreal, C. S., 10 octobre 1892. 



Action pauUenne — Droits immobiliers — Gompitence — 0. C. P. 1054 
— Fraude — Annvlation de vente — 0. G. 1032 et seq. — G, N, 1167. 

Juge : La Cour Sup^rieure (ou la Cour de Circuit, appelable) 
est seule eomp^tente a connftitre des causes relatives a des droits 
immobiliers, lors m^me que la demando est pour une somme 
moindre de $100. 

Par Casault, J. La revocation d'un contrat frauduleux est pro- 
nonc^e non seulement en faveur du cr^ancier qui la demande, 
mais aussi en faveur de tons los or^anciers auxquels le contrat 
attaqu^ porte prejudice. Leduc dh Tourignyet al., 17 B. J. Q. 385, 
discut^e. Et, sous ce rapport, il n'y a aacune difference entre un 
paiement (C.C. 1036) et un contrat, tons deux faits per un debiteur 
insolv&ble et reputes faits avec intention de frauder. 

Pour les actions paulicnnes, co mmo pour toutes les autres ac. 
tions revocatoires. la juridiction est determin^e par la valeur dee 
choses qu'elles ont poar but de retablir, les premieres dans Tactif 
du cedant, les autres dans celui de la personne qui les intente. — 
Beaulieu v. Levesque, Quebec^ en Revision, Casault, Caron, Andrews, 
JJ., 31 decembre 1892. 



124 THE LEGAL NEWS. 

Tuteur et pupille — Vente par un minewr^ devenu majeur, a son tuteur 
— Compte de tutelle-^Distribution de demera — Art 311, C. C 

Jugi : — Qae 4oi*8que les droits du mineur ont 416 clairement 
ddtermin^s par Tinyentaire de la succession ^ehue d, ce mineur, 
et que le compte de tutello ne serait qu'uoe r^p^tition de cet in- 
ventaire, les revenus des biens du pupille ^tant plus qu'ab- 
sorb^s par les frais de garde et de r^dncation du mineur, la Cour 
ne mettra pas de cdt^ une vente consentid par le mineur, devenu 
majeur, 4 son tuteur, de ses droits successifs, pour la seule raison 
que cette vente n'a pas 4i6 pr^cdd^e d'un compte de tutelle, snr- 
tout lorsque les parties ont r4^4v4 ^ I'inventaire comme consta- 
tant les droits de ce mineur. — Lefebvre v. Goyette^ Montreal, en 
Revision, Taschereau, Tait et Pagnuelo, JJ., 30 novembre 1892. 



Damages — Libel — Criticism of conduct of public man. 

Held: — Though fair public criticism of a public servant is jus- 
tifiable in the public interest, yet attacks on a public man based 
on unreliable rumors are ])ernicious and indefensible, and merit 
judicial reprobation. 

In the present case, $100 damages were allowed for the publica 
tion (without malice) of a newspaper article reflecting on the con- 
duct of plaintiff as a public man, such article being basei upon 
alleged rumors which the proof showed to be unreliable and un- 
founded, and the truth of which defendant took no means to 
test, though he might easily have done so. — Pelletier v. Facaud, 
Quebec, S. C, Andrews, J., December 30, 18^2. 



Certiorari — Summary convictions Act — Vagrancy — Costs — 
Amended conviction — B, S. (7., c. 157, s. 8. 

Held: — The provisions of the Summary Convictions Act apply 
to section 8 of chapter 157 of the Revised Statutes of Canada, 
respecting vagrants. 

. A mere informality in the drawing up of a conviction is not a 
sufficient cause for quashing it, nor (there being no substantial 
defect in the justice and legality of the proceedings before the 
convicting justice) any reason for the removal of such convic- 
tion into the Superior Court by certiorari. 

Any such informality may be amended and a substituted con- 
viction retuined by the convicting justice. — Reg. ex rel. Denis v. 
Beaudn/j Quebec, S. C, Andrews, J., December 24, 1892. 



THB LBGAL NEWS. 125 

Procedure — Pension alimentaire — Insaisissabilite—Creance almen- 

taire—Art. 558, G.P,G. 

Jugi, qu'ane pension alimentaire declar^e insaisissable pent 
n^anmoinB dtre saisio ^ la poursuite d'ane personne, dans Tesp^ce 
V^pouse da d^fendour, & qui le cr^ancier de cette pension alimen- 
taire doit lui-m^me des aliments. — Belair v. Senecaly <Sb Senecal, 
T.iS., Montreal, C.S., Jette, J., ler. septembre 1892. 



Arrestation mal-fondee — Erreur de nam — Publicite donnee d Varres- 

tation — Dommages — Besponsabilite, 

Un mandat d'arrestation ayant ^mand contre le frdre da de- 
mand ear, deaz officiers de police de la cil^ de Montreal, sans 
8*6tre procurd an signalement saffisant de Taccus^ ni s'§tre ren- 
seign^ sar ses p^dnoms et sa residence, arrgtdront le demandear 
qui avait ane certaine rossemblance avec son fr^ro. Le deman- 
dear passa la nait dans les cellules d'une station de police et ne 
fat UMv4 qne le lendemain. 

Jugi : Que ce manque de prdcaations engageait la responsabilit^ 
des ddfendeurs, mais cette responsabilitd ne s'dtendait pas k la pub- 
llcitd donnde par les journaux k cette arrestation du demandeur, 
les ddfendeurs n'ayant aucanement participd k cette publicity. — 
Bigras v. La Cite de Montrial, Montreal, C.S., Jott6, J., ler. sept. 
1892. 



Garantie de foumir et de faire valair — Becours du cessionnaire — 

Insolvabilite du debiteur. 

Juge, que le cessionnaire d'une crdanoe, qui lui est transport de 
avec gurantie de fournir ct do faire valoir, perd son recours contre 
le cddant, s'il retarde de plusieurs anndes k en poursuivre le re- 
coavrement contre le ddbiteur, et si ce retard est cause dclaperte 
de cette crdance, a moins qu*il ne soit dtabii que ce dernier n'dtait 
plus solvable k Tdpoque du transport ou de I'exigibilitd de la 
crdance. — Boisvert v. Auge, Montreal, en Kdvision, SirF. G. Jolin- 
son, J.C., Mathieu et Loranger, J J., 13 fdvrier, 1892. 



Sale — Contract in writing — Modification — Parol evidence. 

Plaintiff, at Melboarne, sold to defendant lumber, intended for 
tlie New York market, wbicb, by the terms of the contract in 



126 THK LEGAL NEWS. 

writing, was '^ to be of good quality, and to be accepted at 
Beloeil/' thence to be forwai*ded to New York on defendant's own 
boat. At BeloBil defendant pointed out to plaintiff, on the barge 
on which the lumber was laden, a quantity of culls which had 
been set apart on the deck, and objected to them. Plaintiff, ac- 
cording to his evidence, answered, "do the best you can with 
them," meaning, as he explained, that a small amount of lumber 
was nothing, in a quantity like the total amount sold; but he 
also aiiserted that he had refused to modify the contract, or to 
accept inspection of the lumber at New York. Defendant then 
paid $775 on account, and carried the lumber, including the 
culls, to New York, where the whole was sold. Defendant 
claimed that the contract had been modified, so as to make the 
lumber subject to inspection at New York. 

Held, that the evidence of plaintiff did not justify the admission 
of parol evidence to show that the original contract, by which 
the lumber was to be accepted at Beloell, had been abandoned, or 
varied, so as to entitle the defendant to treat the entire cargo as 
sold subject to inspection at New York. — Gross et aL v. BuUis, 
Montreal, in Review, Johnson, C.J., Tait and Davidson, JJ., 
December 30, 1892. 



SUPERIOR COURT. 

Shebbbookb, Jan. 31, 1893. 

Coram Bbooks. J. 

MooBB v. Johnston ot al. 

Possessory action. 

Hbld : — 1. That title can legally be pleaded to a possessory action 
in respect of lands field in free and common soccage in the 
Eastern Townships, 

2. That a holder by sufferance is without quality to bring a 
possessory action. 

3. That the proof in the present case establishes that the pos- 
session of the plaintiff was not animo domini, but rather a pos- 
session by tolerance and sufferance ff the real owner. 

Bbooks, J. : — 

This is a possessory action to recover possession of the north- 
west half of the south west half of lot 17 range 10, Windsor, 
coupled with a demand for $2,000 damages. 



THK LEGAL NBWS. 127 

The plaintiff alleges that he had been illegally dispossessed of 
the property of which he had been in possession animo damini for 
upwards of a year and a day. 

He alleges that the defendants illegally conspired together to 
oast him from his property, and that he had been greatly 
damaged thereby. 

The defendants, Johnston and Fraser, plead a denial of the al- 
legations of the plaintiff, and especially that plaintiff was not in 
possession as owner, bat as a tenant of the defendant, Loais Ba- 
ch esneaa. 

They further plead title in the defendant Fraser of the pro- 
perty in question. This plea is demurred to by the plaintiff on 
the ground that adverse title cannot be pleaded as a defence to a 
possessory action. 

This demurrer or answer-in-law, was heard, and preuue avant 
faire droit ordered. 

The demurrer is unfoanded and must be dismissed. 

The principle seems to be well settled that adveise title can 
be pleaded in respect of lands held in free and common soccage 
in the Eastern Townships. 

I find that this principle has been held in our courts in several 
cases, some of which are unreported. 

In a case from Arthabaska of Mantel v. Jacques, this point was 
decided by Mr. Justice Polette, and his judgment was confirmed 
by Judges Meredith, Taschereau and Stuart, in Eevlew. 

I have seen the record in that case, and the factum of the 
plaintiff Hamel, and a copy of the judgment. 

It was a possessory action in respect of land of which Hamel 
had been in possession under a location ticket from the Crown. 

Daring his absence in the States, the defendant Jacques re- 
covered judgment against him, and brought this land to Sheriff's 
sale, baying it himself at a nominal price. Hamel returned and 
resumed possession and was afterwards forcibly dispossessed by 
the defendant Jacques. Hamel then brought a possessory action 
against Jacques who pleaded the Sheriff's title. This plea was 
demurred to and the demurrer was over-i-uled on the ground 
that the land was situate in the Easteni Townships, and held 
under the free and common soccage tenure, and that title could 
be pleaded in respect of such lands. This judgment was con- 
firmed in Beview as before stated. 

A similar judgment was rendered bj* the Court of Beview at 
Quebec (Judges Casault, Andrews & Caron) in a case No. 113 



128 THE LEGAL NEWS. 

Vigneau v. OhampouXy also from Arthabaaka. I have also seen 
the recoi*d in that case and examined the pleadiDgs, and it ap- 
pears to be in point. 

The case of Fahey v. Watts, 1 1 Q.L.R. 354, decided by Judges 
Stuart, Casanlt & Andrews is to the same effect. 

Then there was a case No. 58, Millette v. Desrochers et al., fi-om 
Arthabaska, in which this same question was raised by a demurrer 
to a plea. The demurrer was over-ruled by judgment of the 
Supe.ior Co irt, and leave to appeal therefrom to the Court of 
Queen's Bench, Appeal Side, was refused. The record in that 
ca«o has also been placed before me. 

These decisions appear to be based upon Arts. 948 and 1110 
C.P.C, and upon the principle that to allow title to be pleaded 
may avoid a circuity of actions. 

I have less hesitation in holding this doctrine in the present 
case, from the fact, which to my mind is well established, that the 
possession of the plaintiff was not as owner but through toler- 
ance, and that the defendant Fraser, was acting in good faith 
under the authority of a writ of possession granted him by the 
Court. 

Plaintiffs possession was not animo domini, it was not such a 
possession as would entitle him to an action pos&essoire, Poth. 
Poss. M5-J00-115., C.P.C. Art. 946. He produced no title what- 
ever characterizing his possession, and it is proved that before 
Duchesneau bought this property on the 10th November, 1890, 
plaintiff occupied simply by the charity and tolerance of his 
brother W. H. Moore, who was the registered and actual owner, 
and who aided and assisted plaintiff by allowing him the use of 
the farm and by giving him money, seed grain and cattle, etc., 
with which to carry it on. It appears also that when this pro- 
perty was about being sold at public sale on the 10th November 
1890, the plaintiff made some arrangement with defendant Du- 
chesneau to buy in the property and allow plaintiff to remain on 
in possession. 

I am satisfied from the evidence that after the 10th of 
November, 1890, the plaintiff occupied by the sufferance of the 
defendant Duchesneau who had the legal possession through the 
plaintiff his tenant. Poth. Poss. (Bugnet's Ed.) No. 15. 

Action dismissed. 
Brown dh Morns for plaintiff. 

Hwd dh Fraser for defendants. 



THE 



LBGAL NBWS. 



VOL. XVL MAY 1, 1893. Na 9. 

SUPBBMB COURT OF CANADA. 

Ottawa, Feb. 20, 1893. 
Ontario.] 

Attt. Gbnseal of Canada v. City of Toronto. 

Municipal corporation — Water rates — Discount by prompt payment 
— Property exempt from municipal taocation — Discrimination 
as to—B.S.O. (1887) c. 184, s. 480, s.s. 3 ; c. 192, s.s. 19, 20. 

By RS.O. (1887), c. 184, s. 480, s.-s. 3 (Municipal InatitutionB 
Act), it is the daty of a manicipal corporation which has con- 
structed water works, to supply water to all builiings on land 
along the line of any supply pipe, on request of the owner or 
occupant thereof. By c. 192, s. 19 (Municipal Water Works 
Act) the corporation has authority to regulate the distribution 
and use of water and fix the prices and time of payment therefor, 
and by s. 20 the corporation may pass by-laws, etc., for allowing 
a discount for pre-payment. 

Pursuant to these powei*8, the corporation of the City of To- 
ronto passed a bylaw allowing a discount on all water rates paid 
in the first month of the quarter for which they should be due, 
but the same was not to apply to Grovernment or other institu- 
tions which are exempt from city taxes. A tender was made to 
the City of the amount assessed on property of the Dominion 
Grovernment, less the discount allowed by the by-law, which was 
refused, and the whole amount having been paid under protest an 
action was brought against the city for the rebate. 



130 THE LEGAL NEWS. 

Held, reversing the deciBion of the Court of Appeal (18 Ont* 
App. B. 622), and that of Ferguson, J., at the trial (20 O. R 9) 
Patterson, J., dissenting, that the legislature intended and enacted 
that the rate for water supplied by the City should be an equal 
rate charged upon all consumers alike, and the city corporation 
had no power to impose a greater rate for water supplied to a 
consumer who is not subject to civic taxation than is imposed 
upon consumers who are ; therefore the by-law was uUra vires in 
BO far as it makes a distinction between the two classes of con- 
sumera. 

Per Patterson, J. — The imposition of water rates is not a tax, 
and there is no principle on which the city can be pi*e vented 
from demanding a larger price for water supplied to consumers 
who have paid no part of the cost of constructing the works than 
it is willing to receive from those who have. 

Appeal allowed with costs. 

Beeve, Q.C, dk Wickhamy for appellant. 

Bohinsmy Q,0.f for respondent. 



New Brunswick.] 

Canadian Pacific Rt. Co. v. Flbming. 

Appeal — Jurisdiction — Trial by jury — Withdrawal from jury — 
Disposal of questions of fact by Court — Consent of parties. 

In an action against a railway company for damages for an 
injury caused by an engine of the company, the counsel for both 
parties agreed at the trial as follows: — ''That the jury be dis- 
charged without giving a verdict, the whole case to be referred 
to the Court, which shall have power to draw inferences of fact, 
and if they shall be of opinion upon the law and the facts that 
the plaintiff is entitled to recover they shall assess the damages, 
and that judgment shall be entered as the vei*dict of the jury. If 
the Court should be of opinion that the plaintiff is not entitled to 
recover, a non-suit shall be entered." The jury were then dis- 
charged, and the Court in banc, in pni*suance of such agreement, 
subsequently considered the case and assessed the damages at 
$300, considering plaintiff entitled to recover. The company 
sought to appeal from such decision. 

By the practice in the Suprame Court of New Bininswick all 
questions of fact are to be tried by a jury, and the Court can only 
deal with such questions by consent of parties. 



THE LEGAL NEWS. 181 

Heldy Gwynne and Pattoi'soa, JJ., dissenting, that as the Court 
took upon itself the decision of the questions of fact in this case 
without any legal or other authority therefor, than the consent 
and agreement of the parties, they acted as quasi-arbitrators, and 
the decision appealed from was that of a private tribunal consti- 
tuted by the parties, which could not be i*eviewed in appeal or 
otherwise, as judgments pronounced in the regular course of 
the ordinary procedure of the Court may be reviewed and ap> 
pealed from. 

ffeld, also, that if the mei*its of the case were properly before 
the court the judgment appealed from should be affirmed. 

Held, per Gwynne and Patterson, JJ., that the case was 
appealable; and on the merits, it appearing from the evidence 
that the sei'vants of the company had done everything required 
by the statute to give notice of the approach of the train, the 
appeal should be allowed and a judgment of non-suit entered. 

Appeal quashed with costs. 

Weldan, Q.G., for appellants. 

Skinner^ Q.C, for respondent. 



New Brunswick.] 

Pbtbbs v. Citt of St. John. 

Assessment and taxes — Insurance company — Net profits — Deposit 
mth Government — Statement to asse8V)rs—Vnnance from form. 

By sec. 126 of the St. John City Assessment Law, 1889, (52 V. 
c. 27) the agent or manager of any Life insurance company 
doing business out of the Province is liable to be assessed upon 
the net profits made by him as such agent or manager fit>m 
premiums received on all insurances effected by him ; and the 
better to enable the assessors to rate such company, the agent or 
manager is required to furnish at a certain time in each year 
a statement under oath in a prescribed form, setting forth the 
gross income and particulars of the losses and deductions claimed 
therefrom, and showing the ratable net profits for the preceding 
year. 

By the form prescribed, the deductions to be made from the 
gross income consist of re-insurance, rebate, etc., actually paid, 
and amounts paid on matured claims on policies issued by such 
agent or manager. In the form presented by the agent of a Life 
Insurance company in St. John, N. B., there was no amount 



132 THE LEGAL NEWS. 

entered for deductionB of the latter class, but instead thereof an 
item was inserted of ** 75 p.c. of premiums deposited with 
Grovernment for protection of policy holders," which was an 
addition to the form. Tiie statement showed that the deductions 
exceeded the gross income, leaving no net profits to be taxed. 
The assessors on receiving this statement disregarded the result 
shown thereby, and assessed the agent on net profits for the year 
of 06,300. A rule nisi for a certiorari lo quash the assessment 
was obtained, in support of which it was shown by affidavit that 
^he amount required to be deposited with the Dominion Grovern- 
ment by the company assessed was about 75 p.c. of the premiums 
received, and that the amount of such deposita from time to time 
returned to the company was applied for the benefit of policy 
holders and formed no part of the income or profits of the com- 
pany. The Supreme Court of New Brunswick discharged the 
rule and refused to quash the assessment, on the ground that the 
Grovernment deposit was a part of the income of the company 
held in reserve for certain purposes and formed no part of the 
expenditure, and that the agent had no right to strike out certain 
requirements of the form prescribed and substitute different 
statements of his own. 

Meldy reveraing the decision of the Court below, Fournier and 
Taschereau, JJ., dissenting, that the agent was justified in de* 
parting from the form to show the real state of the business of 
the company, and the deposit was properly classed with the 
deductions; and the assessors had no right to disregard the 
statement and arbitrarily assess the company as they did. 

Appeal allowed with costs. 

Weldon^ Q.C., dh Bruce, Q,C,, for appellant. 

Jackf Q,C,, for respondent. 



New Brunswick.] 

TiMMBRMAN V. ClTY OP St. JoHN. 

Assessment and taxes — Taxation of rainvay— Statutory form — De- 
parture from — Powers of assessors — 53 F., c, 27, s. 125 (N,B,) — 

By the assessment law of the City of St. John (53 V., c. 27, s. 125 
[N.B.] the agent or manager of any joint stock company or cor- 
poration established abroad or out of the limits of the Province 
may be rated and assessed upon the gross and total income 
eceived for such company or corporation, deducting only there- 



THB LBaAL NEWS. 138 

from reasonable cost of management, etc., and such agent 
or manager is required to furnish to the assessors each year a 
statement ander oath in a prescribed form, showing the gross 
income and the deductions of the various classes allowed, the 
balance to be the income to be assessed ; and in case of neglect to 
fni-nish such statement the assessors are to fix the amount of 
such income to be assessed accoi*ding to their best judgment, and 
there shall be no appeal from such assessment. 

The Atlantic division of the C.P.R. runs from Bfegantic in the 
Province of Quebec, through the State of Maine into New Bruns- 
wick. On entering New Brunswick it runs over a line leased 
from a N. B. Co. to the western side of the River St John, and 
then over a bridge into the city, where it takes the I.C.R Boad. 
The general superintendent has au office in the city, but all 
monies received there are sent to the head office in Montreal. 

The superintendent was furnished with a printed form to be 
filled up for the assessors as required by said act, which was as 
follows :— 

'' Gross and total income received for (Co.) during the fiscal 

year of next preceding the 1st day of April. This amount 

has not been reduced or off-set by any losses " etc. This latter 
clause the superintendent struck out and filled in the first 
clause by stating that no income had been received by the com- 
pany ; the remainder of the form, consisting of details of the de- 
ductions, was not filled in. This was given to the assessors as 
the statement called for, and they disregarded it, assessing the 
company on an income of $140,000, without making any inqui- 
ries of the superintendent as the act authorised them to do. A 
rule for a certiorari to quash this assessment was obtained, but 
discharged by the Court, on the ground that the superintendent 
had so far departed from the prescribed form that he had in 
effect failed to furnish a statement as required by the act, and 
the assessment against him was final. 

Held, reversing the decision of the court below, Pournier and 
Taschereau, JJ., dissenting, that the superintendent had a right 
to modify the form proscribed to enable him to show the true 
facts as to the business of the company in St. John, and the 
assessors had no right to arbitrarily fix an amount assessable 
against him without taking any steps to inform themselves of 
the truth or falsity of the statement furnished. 

Meldy also, that the provision that there should be no appeal 



184 THE LEGAL NEWS. 

from the assessment where no statement is flirnished, relates only 
to an appeal against over-valaation under C.S. N.B. c. 100, s. 60, 
and does not abridge the power of the court to do justice if the 
assessors assess arbitt*arily or upon a wrong principle, or no prin- 
ciple at all. 

JSiBldf per Grwynne and Patterson, JJ., that the assessment law 
of St John does not apply to railway companies, there being no 
provision made for ascertaining the amount uf business done in 
the city as proportioned to the whole business of the company. 

Appeal allowed with costs. 
Weldm^ Q.C, for appellant. 

Jacky Q,C,y for respondents. 

New Brunswick.] 

Ellis v. Thb Qubbn. 

Appeal — Contempt of court — Criminal proceeding — Sup. db Ex, 

Courts Act (jB.S.(7. c. 135), s. 68. 

Contempt of court is a criminal matter, and an appeal to the 
Supi*eme Court from a judgment in proceedings therefor, cannot 
be brought unless it comes within sec. 68 of the Supreme and 
Exchequer Courts Act (R.S.C., c. 135). ffShea v. O'Shea (15 
P.D. 59) followed. In re O'Brien (16 Can. S.C.R. 197) referred 
to. 

The Supreme Court of New Brunswick adjudged E. guilty of 
contempt, but deferred sentence. 

JSeldf that this was not a final judgment fi*om which an appeal 

would lie to the Supreme Court of Canada. 

Appeal quashed. 
Weldony Q.C., for appellant. 

Currey, for respondent. 



EXCHEQUER COURT OP CANADA. 

Ottawa, March 13, 1893. 
Coram Bubbidgb, J. 
Thib Queen v. Fabwbll. 

Information of intrusion — Appropriate remedies to he prayed for 
therein — Injunction to re-convey — Practice — Subsequent action 
between same parties — Res judicata. 

Where, in a former action by information of intrusion to 
recover possession of land, the title to such land was directly 



THE LEGAL NEWS. 185 

iQ issue and determined, the judgment therein was held to be oon- 
elusive of the issae of title sought to be raised by the defendant 
in a subsequent action between the same parties. 

2. An order directing the defendant to re-convey the land is 
not an appropriate part of the remedy to be given upon an in- 
formation of intrusion. 

SembUy that letters-patent for public lands situated within the 
railway belt in British Ck>Iumbia should issue under the Great 
Seal of Canada, and not under the Great Seal of British Columbia. 

BichardSy Q.C, Pooley, Q.C, and Htlmcken for Crown. 

Bodwell (with whom was Hunter) for defendant. 



January 23, 189.3. 
Archibald v. the Qubbn. 

Construction of public work — Interference with public rights — Dam- 
age to indioidual enjoyment thereof — Liability — 50-51 Vic.f c, 
16, & 16, (c), Construction of. 

Where the Grown, by the construction of a public work, has 
interfered with a right common to the public, a private owner of 
real property whose lands, or any right or interest therein, have 
not been injured by such interference, is not entitled to compensa- 
tion in the Exchequer Court, although it may happen that the 
injury sustained by him is greater in degree than that sustained 
by other subjects of the Crown. 

2. The injurious affection of property by the construction of a 
public work will not sustain a claim against the Crown based 
upon clause (c) of the 16th section of The Exchequer Court Act, 
(50-51 ViCy c. 16), which gives the Court jurisdiction in regard 
to claims arising out of any death or injury to the pei*son or to 
property on any public work, resulting from the negligence of 
any officer or servant of the Crown, while acting in the scope of 
bis duties or employment. 

R. G, Code for suppliant. 
W. B. A. BitcMe for Ci-own. 



1^ THB LEGAL KBWS. 

Maroh 20, 1893. 
. Magbb et al, v. thb Quxbn. 

Eideau Canal— n Vict. {Prov. Can,) e, 11,9 Vict. {Proo. Can.) e. 

42 — Conditional gift — Expropriation — Acqtiiescence — For- 
feiture for breach of condition subsequent — Remedy against the 

Crown for unauthorized use of land^Abmdmment by Crown — 

Beverter^-'SoUcitor and client- Privileged communie^i^tion — 

Evidence. 
The Act 9 Yic, c. 42, was passed with the objeot of removing 
doubts as to the application of section 29 of the Act 7 Vic. c. 11, 
to certain lands set oat and expropriated from one 8. at By town. 
By the first section of the first mentioned Act it was enacted that 
the proviso contained in the 29th section of the Ordnance Test- 
ing Act shoald be constraed to apply to all the lands at Bytown 
set oat and taken from 8. ander the provisions of the Rideau 
Canal Act, except " (1) so mach thereof as was aotaally ocoapied 
'* as the site of the Rideaa Canal, as originally excavated at the 
^' Sapper's Bridge, and of the basin and bywash, as they stood at 
'^ the passing of the Ordnance Vesting Act, and excepting also, 
*^ (2) a tract of two hundred feet in breadth on each side of the 
^' said canal, — the portion of the said land so excepted having 
'' been freely granted by the said Nicholas Sparks to the late 
<' Colonel By, of the Royal Engineers, for the purposes of the 
^* canal, — and excepting also, (3) a tract of sixty feet round the 
"said basin and bywash ----- which was then 
"freely granted by the said Nicholas Sparks to the Principal 
" Officers of Ordnance for the purposes of the said canal, pro- 
" vided that no buildings should be erected thereon." 

The site of the canal, and the two hundred feet which were in- 
cludtd within the limits of the land so set out and ascertained, had 
been given by an instrument, dated 17th November, 1826, under 
the hand of 8. and one B. who was acting for the Crown, by 
which it was agreed that such portion of the land so freely given 
as might not be required for His Majesty's service, should be 
restored to 8. when the canal was completed. The canal was 
completed in 1832. Subsequent to the passing of the Act 9 
Vict., c. 42, all the lands of 8. so set out and ascertained were 
given up to him, except the portions above described, and deeds 
in the terms of the Act were exchanged between 8. and the Prin- 
cipal Officers of Ordnance, in regard to the land so given up and 
so retained respectively. 



TBS LSaAL NEWS. 187 

Beldf 1. That apart fi-om the question of aoquiesceDce and 
delay on the part of 8. and those claiming under him, the Act 9 
Yict., c. 42, and the deeds of surrender so exchanged, were con- 
clusive between the parties so far as the area and boundaries of 
the lands to be retained and restored respectively, are concerned. 

2. That the lands so retained are held by the Crown for the 
purposes of the canal, and that as to the tract of sixty feet around 
the basin and by wash there is attached a condition that no build- 
ings are to be erected thereon. 

3. That the proviso, that no buildings are to be erected on the 
said tract of sixty feet does not create a condition subsequent, a 
breach of which would work a forfeiture and let in the heirs ; nor 
would the use by the Crown of a portion of the lands in question 
for purposes other than the '' purposes of the canal " work such 
a forfeiture. 

4. The court has no power or authority to restrain the Crown 
from making any unauthorized use of the land, or to compel the 
Crown to remove any buildings erected thereon contrary to the 
terms of the grant. 

Semhle, that the Crown cannot alien the land or any portion 
of it, and if it should do so the suppliants would have their action 
against the grantee. If the Crown should abandon the land or 
any portion of it the land or such part of it would revert to the 
suppliants, and they might enter and possess it. 

Held, also, that where a solicitor or counsel of one of the par. 
ties to a suit has put his name as a witness to a deed between the 
parties, he ceases, in respect to the execution of the instrument, 
to be clothed with the character of a solicitor or counsel, and is 
bound to disclose all that passed at the time, relating to such 
execution. 

Bobnon V. Kemp^ 6 Bsp. 52, and Crawcaur v. Saftcr, L.R. 18 
Chan. 34, followed. 

McCarthy, Q.O,, and Christie, Q.C., for suppliants. 
Robinson, Q.C. and Hogg, Q.C., for Crown. 



188 THE LSOAL NBWd. 

March 13, 1893. 
Thb Qubbn V, DxMBRS et al. 

Federal and Frooineial rights — Title to lands in railway-belt in 
British Oolumlna'—Unsurveyed lands field under pre-emption re- 
ccrdj at time of grant of railway lands coming into operation — 
British Columbia Land Acts of 1875 and IS19— Terms of 
Union, section 11 — Construction. 

Held (l)LandH that were hold under pre-emption right, or Crown 
grant, at the time the statutory oonveyanoe of the railway belt 
by the Province of British Coiambia to the Dominion of Canada 
took effect, are exempt from the operation of such statutory oon- 
veyanoe, and upon such pre-emption right being abandoned or 
cancelled, all lands held thereunder become the property of the 
Crown in right of the Province, and not in right of the Dominion. 
2. Unsurveyed lands i*ecorded under the British Columbia 
Land Acts of 1875 and 1879 are lands held under '* pre-emption 
right" within the meaning of the 11th section of the Terms of 
Union between the Province of British Columbia and the 
Dominion of Canada. 

See Statutes of Canada, 1872, p. XCY II. 
BichnrdSy Q.C. and Helmcken for Crown. 
Attomey'&eneral, B.C. and A. &. Smith for defendants. 



COURT OF APPEAL ABSTRACT. 

Corporation municipale — Confirmation de certificat pour vente de 
liqueurs enivrantes — Conseillers interessis — Arts. 135, 136, code 
municipaL 

La corporation de Lachine avait, par une seule resolution, vot^ 
la confirmation de neuf certificats pour vente des boissons 
enivrantes. Parmi les membres du conseil presents et qui ont 
vote, so trouvaient trois conseillers intdress^s, et en retranchant 
les noms de ces trois conseillers, il n*y avait pas quorum dea 
membres du conseil. 

Juge, que, d. raison de Tint^rSt de ces trois conseillers, la resolu- 
tion accordant la confirmation des neuf certificate etait ill^gale et 
qu*on ne pouvait scinder le vote et se demander si, quant an 
certificat de I'appelant, il y avait un nombre suffisant de voteurs 



THB IiEGAL NEWS. 139 

non iDt^ress^s k la oonfirtnation de ce certificat. — Ouellette et La 
corporation de Lachine, Montreal, Lacoste, J. C, Baby, Bosb^, 
Blanchet, Hall, .TJ., 26 Janvier 1893. 



Locateur et locataire — Changements aux lieux louis. 

Le bail en question contenait la clause suivante: 
*' Should the lessee desire any altei^ations to be made to the 
said premises, and should the lessor see fit to make the same, the 
said lessee binds and obliges himself to pay 10 per cent per 
annum upon the total cost thereof, quarterly with said rental." 
Juge : — Que sons cette' clause, il ^tait k la discretion du locateur 
de faire ou de ne point faire les changements aux lieuz lou^s 
demand^s par son locataire, et que dans Tesp^ce, ce dernier ne 
pouvait le forcer d'^tablir une communication entre plusieurs 
magasins contigus que le locateur lui avait lou^ par ce bail. — 
Scroggie et Watson et aL, Lacoste. J. C, Baby, Boss^, Blanchot, 
Wurtele, JJ.,- Montreal, 28 fSvrier 1893. 



Injure dans un plaidoyer — Malice et absence de cause probable — 

Avocats. 

Jug6f que I'accusation port^e dans un plaidoyer malicieusement 
et sans cause probable, accusant les demandeurs, avocats et 
procureui-s, d'avoir institn^, sans leur autorisation, des procMui*e8 
et d'avoir perdu, par leur incurie, leur inhabilit^ et leur ignorance 
de la loi, des causes que les d^fendeurs leur avaient confines, 
constitue une injure et engage la responsabilit^ des d^fendeurs. 

(Par la majority de la cour, Lacoste, J. C, et Hall, J., diss.) 
Que la malice et Tabsence de cause p'robable peuvent s'infiSrer du 
fait qu'un des d^fendeurs avait au nom de ses co-d^fendeurs 
suivi les procMures en question pto k pas et avait exprim^, par 
^rit, sa satisfaction du travail accompli par ses procureurs. — 
Mitchell et al, et Trenholme et al., Montr^l, Lacoste, J. C, Baby, 
Boss^, Blanchet et Hall, JJ., 28 f^vrier 1893. 



140 THK liSaAL NEWS. 

SVPEBIOB COURT ABSTRACT. 

t 

Saisine du Ugataire universel — £xception dilatoire povar arreter 
r action pendant les dilais pour fcure inventcUre et delibirer — 
Continuation de V action apris qualiti prise de Ugataire universel 
sous benefice d^inventaire— Frais de V exception dilatoire, 

Juge : — 1. Qae, d^s le lendemain de la mort da testateur, son 
or^ncier a le droit d'aasigner le legataire universe!, et telle 
assignation est valide k toutes fins quelconqaes. 

2. Qae le l^gataii*e aniversel a Tezception dilatoire poor arre- 
ter Taction pendant les dilais pour faire inventaireet d^HMrer. 

3. Que, si le legataire universel ensuite aocepte sous Mn^fice 
d'inventaire, alors Taction se continuera centre Ini en cette noa- 
velle quality. 

4. Qae, les demandeurs n'ayant pas contests Texception dila- 
toire, les frais de cette exception sei-ont mis k la charge de la 
succession, c'est^-dire, dans le prteent cas, k la charge de la d^fen- 
deresse ^s-qualit^ de legataire universel sous b^n^fice'd*inventaire. 
— Massi et al. v. Laine^ Fi*aserville, Cimon, J., 17 novembre 1892. 



Bois coupi iUegalement sur le terrain d!autrui et converti en hois de 
construction — Saisie-revendication — Main d'asuvre plus considi- 
rahle que la matiire — Compensation — Arts, 434, 435, et 1190 

c. a 

Juge: — 1. Que les d^fendeura, qui ont coup^ ill^galement du 
bois sur la terre du demandeur et Tont enlev^, ne peuvent, k la 
saisierevendication que celui-ci en fait, lui opposer, en compensa- 
tion, du bois qu'il avait coup^ ill^galement, quatre ans aupara- 
vant, sur la terre de Tun des d^fendeura : Spoleatus ante omnia 
restituendus. 

2. Que 1^ d^fendeurs, en coupantce bois et le convertis^ant en 
bois de construction, ont form^ une chose d'une nouyelle esp^ce, 
dans le sens de Tart. 434 C. C. 

3. Que, bien que la main d*oeuvre surpasse de beaucoup la 
valeur de boiB debout, le demandeur, mattre du bois debout, reste 
pi*opri^taire de la chose devenue dune nouvelle esp^ce, tant qu'il 
n'aura pas 6t4 pay^ du prix du bois debout, et il a di*oit de saisir 
revendiquer la chose. 

4. Que, bien que les ddfendeurs n'aient pas encore offert le prix 
du bois debout, la cour, en maintenant lasaisie-revendication, leur 



THS LBGAL NEWS, 141 

accordera Toption de pouvoir, soub an d^lai d'un mois, en payant 
le prix du bois deboat, devenir propria taire de la chose. — Dubi v. 
Gaeret et al., Fraserville, Ghnon, J., 10 ootobre 1892. 



Servitude non diclarie ni apparente-- Action en diminution du prix — 

a C. arts. 548, 1508, 1518, et 1519. 

Juge : — 1. Que Tacheteur a, centre son vendear, Taction en 
diminution du prix et en dommages, k cause d'une servitude non 
ddclarde oi apparente au moment de son achat, et qu'il a trouv^e 
consignee dans le titre de son vendeur sous forme de reserve en 
faveur d'un tiers, propri^taire de terrain voisin, m@me si celui-ci 
n'y ^tait pas partie, et quand bien m§me la ser^tude n'est pas 
assez importante pour autoriser la i*e8cision de la vente. 

2. Que c'est au vendeur* si ce tiers n'y a pas droit, k faire 
disparaltre la servitude, et non k Tacheteur k plaider k ce sujet 
avec ce tiers. 

i. Que la clause d'un acte do vente, disant : ^M'acqu^reur 
declare connaitre le susdit emplacement et ses accessoires et n'en 
pas exiger plus ample designation,'' est de pur style et ne porte 
que sur r^tat apparent de Templacement k ce moment-1^. 

4. Un tuyau pos^ dans la terre pour conduire Teau, loi'squ'il 
est reconvert de terre, et, surtout, le 9 avril, alors que la terre 
est recouverte de neige, ^tant non apparent, la servitude qui 
pourrait exister k s6n sujet est, aussi, a ce moment, non- 
apparente. 

5. Qu'un puits sur un emplacement, s'il n'y a aucun signe 
apparent pour d^montrer le contraire, est cens^ appartenir 
exclusivement au pi-opri<$taire de cet emplacement, et 11 ne 
montre pas §tre une servitude sur cet emplacement. 

6. QuaDd bien m§me une servitude a 616 apparente ant^rieui^e- 
ment, si elle ne Test pas au temps de la vente et n'a pas ^t^ 
d^clai*ee k Tacheteur, celui-ci am'a Taction en diminution du prix 
et en dommages. — LeBel v. Belanger, Fraserville, Gimon, J., 
10 octobre 1892. 



Vente de grainee — Garantie, 

Jugi : — Que le marchand de graines de semence, qui vend k un 
jardinier des graines qu'on lui domande pour semer, est respon- 
sable de Terreur, si ces graines ne sont pas de la quality deman- 



144 tiats liSGriti NiBWs. 

I'objection faite contre le droit d'an appelant d'inscrire eh Hvi- 
sion, Tobjet de la revision ^tant seulement de determiner le mon- 
tant de rindemnit^ k Itre pay^e. 

Qa'auoane indemnity n'est due pour Texpropriation d'an chemin 
que le propri^taire a d^di^ an public. — La cite de Montrialy reqn^ 
rant expropriation de la rue Milton, et an propri^taire inconnn, 
et Thompson et cU., Montreal, en Revision, Johnson, J. C, Davidson 
et Pagnuelo, JJ., 30 novembre 1892. 



Exception a la forme — Assignation cCun affsent — Rapport de Vkumier 

—NulUte—Art. 68, 0. P. C. 

Juge: — Qa'un rapport d'assignation qui constate Fabdcnce da 
ddfendear est irr^galier lorsqae Thaissier certifie qu'il a fait la 
signification au greffe, tandis qa'il aarait dd se borner k dire qa'il 
avait d^pos^ an greffe la copie d'aotion. 

Que cependant cette irregularity est suffisamment couverte par 
Tordonnance du tribunal permettant Tassignation r^gulidre du 
defendeur par la voie des journaux. — Garbonneau v. Vallie et aL, 
et Prioost et al., T. S., Montreal, C. S., Taschereau, J., 12 avril 
1892. 



Evidence— Commercial case — 54 Vic. (Q.) ch. ^^-Interrupted 
employment —Resumption cf -^Salary — Presumption. 

Held: — 1. A party to a suit cannot be heaitl as a witness on 
his own behalf, in a commercial case, to prove a contract alleged 
to have been made at a date prior to the coming into force of the 
Act 54 Vic. (Q.) ch. 45. 

2. Where an employee quits his employment, and after an 
illness of several months resumes his former employment, it will 
bo presumed, in the absence of evidence of a new agreement, 
that he returned at the salary he was getting at the time he left. 
— Piatt V. Brysdale^ Montreal, S. C, Doherty, J., January 25, 
1892. 



Promissory note — Parties io— Dilatory exception — Action en 

garantie — Art. 1953, C. C. 

Held: — ^The maker of a promissory note cannot by dilatory 
exception stay the suit of the holder in order to call in the 
endoreer en garantie. — Molsons Bank v. Charlebois, Monti'eal, S. C, 
Davidson, J., February 23, 1892. 



THB LEGAL NEWS. 145 

Election expenses — Action far. 

Held: — The legitimate expenses of a candidate, incarred in 
connection with an election, are i*ecoverabIe at law, unless it 
appear that the expenses were incarred with a corrupt or illegal 
motive. — Taylor et al. v. Ouerin^ Montreal, S. C, Taschereau, J., 
March 3, 1892. 



Promissory note — Prescription — Insolvency of maker-'Arts. 1092, 

2260, § 4, C. 0. 

• 
J^eld : — A promissory note is not prescribed by the lapse of 

five years from the date of the maker's insolvency when he 

becomes insolvent before the date of maturity. Art 1092, C. 0., 

which says that the debtor cannot claim the benefit of the term 

when he has become a bankrupt or insolvent, was enacted in 

favor of the creditor, and does not create a new date, antecedent 

to maturity, froija which prescription would begin to run in 

cases of insolvency, — Whitley v. Pinkerton, Montreal, S. C, 

Davidson, J., March 23, 1892. 



lUvocation dejugement — Prescription — Desaveu deprocureur 

ad litem. 

Juge : — ^Que le repr^entant de la partie qui attaque un juge* 
ment parceque Tinstance aurait ^t^ reprise, continue, instruite- 
ot jug6 sous le nom, mais hors de la connaissance de cette partly 
et sans son consentement, ne pent r^ussir dans sa demande si les 
procureurs ad litem qui out occupy dans cette f eprise d'instanc& 
n'ont pas 6t6 d^savou^s par la partie ou pour elle. 

Que Taction en revocation d'un jugement pour dtfaut d'autori- 
sation de proc^ures se prdscrit par trente ans, et que le point de 
depart de cette prescription est la date de ces procMures et noD 
la date du jugement attaqu^, — Dorion v. Dorian^ Montr^l, C. S. 
Tellier, J., 31 mars 1892. 



Annulation cPun acte pour difaut de consentement — Benifice accru au 

demandeur — Bq^Kmse en droit. 

Juge, que Pall^gation que le demandeur en nullity a b^n^fici^ do 
Tacte dont il demande Tannulation pour difaut de consentement 
de sa part, n*est pas une r^ponse suffisante, et que cette allegation 



146 THE LEGAL NEWS. 

sera reuvoy^e sur r^ponso en drait. — Hudon v. Provost, Montr^l, 
O. S., Oaitnet, J., 19 mars 1892. 



Corporation municipale — Negligence — Besponsabilite, 

r 

Jugij qu'ane corporation muDicipale est i*esponsable da fait qa6 
les planches d'an de ses ti'Ottoirs no sont pas convenablement 
clou^eSi et qu'il ne suffit pas k cette corporation de faire examiner 
de temps k autre les trottoirs sous son contr61e par ses employ^, 
mais elle est responsable'de la negligence de ces employes si ces 
derniers ne tiennent pas les trottoirs en bon ordre, die manidre ^ 
offrir toute s^curit^ possible aax passants. — Mills v. Corporation 
of the Town of C6te St. Antoine, Monti*eal, C. S., de Lorimier, J.y 
29 f^vrier 1892. 



Locateur et locataire— Capias — Receh 

Jugi^ que le fait d'un locataire d'enlevor la nuit les effets qui 
garnissent les lieux lou^s constitue un acte de recel donnant lieu 
au capias^ et que le locateur n'est pas tenu de faire la recherche 
des effets recel^s pour en op^rer la saisie-gagerie par droit de 
euite, mais qu'il est fond^ k exercer son recoai*s par voie de capias 
du moment que le locataire ne lui divulgue pas I'ondi'oit oit se 
trouvent les dits meubles. — Mitcheson v. Burnett^ Montreal, G. S., 
Jette, J., 29 fSvrier 1892. 



* BesponsabiUti — Negligence, 

Juge, qu'un forgeron, qui, apres avoir ferr^ un cheval, Tenvoie 
mener chez son propri^taire sous les soins d*un jeune gargon et 
sans bride, ni mors, est responsable d'un accident arrive k co 
cheval par la negligence de son conducteur, et aussi du fait qu'il 
aurait, sans consulter le propri^taire du cheval, fait soigner ce 
cheval par nne personne ignorante dont le traitement a rendu le 
cheval impropre k tout travail. — McGuire v. Grants Montreal, 
C. S., Jette, J., 16 mars 1892. 



Eoidence — Admission of party — Divisibility — Art. 231, §3, C.U.P. 

In an action for the price of transfer of a tavern license, the 
defendant, being called as a witness, admitted that he had not 



THE LEGAL NEWS. 14t 

paid plaintiff the price stipulated, but he added that one 0. was 
to do so. In the deed of transfer the plaintiff acknowledged 
receipt of the consideration. 

Held^ 1. That the accessory statiement, in the defendant's 
answer, having relation to a fact wholly distinct from the prin- 
cipal fact mentioned in the first pari of the answer, the answer 
was divisible. 

2. (Johnson, C.J., dm,) The defendant having admitted in 
his evidence that he had not paid the plaintiff, it was for the de- 
fendant to show that some one else had, and' he was not relieved 
from making this proof by the plaintiff's declaration, contained 
in the deed of transfer, that he had receive I payment. — St, 
itmowr V. iSt ilmour, Montreal, in review, Johnson, C.J., Talt 
and Davidson, JJ., December 30, 1892. 



Alimentary allowance — Art. 169, C. C. 

Held: — In a petition claiming an alimentary allowance, from 
children and grandchildren, where it is neither alleged in the 
petition nor established by the affidavits produced in support of 
it, that the defendants are in a position to pay the alimentary 
allowance claimed or any part thereof, such petition will be 
rejected saufrecours, — Levesgue v. Plotarde et al, Montreal, S. C, 
Tait, J., March 21, 1892. 



Adopted child — Removal of parents — Claim for maintenance. 

Held : — ^Where a pei^son undertakes the support and main- 
tenance of a child of unknown parents, with the object of 
bringing it up as his own child, and this purpose is frustrated 
by the parents, who subsequently appear and claim the child, he 
is entitled to recover from them a reasonable allowance for the 
maintenance of the child during the time it was under his care. 
— GHngue v. Qiraux^ Montreal, S. C, Lynch, J,, March 3, 1892. 



Requite civile — DSsistement — Costs. 

Held: — A party who, through a misunderstanding between 
attorneys, has obtained a judgment in the absence of his opponent, 
but who has voluntarily desisted therefrom, is not obliged to 
desist with costs ; and if the opposite party refuses to accept a 
degistement without costs, and proceeds by requite civile^ seeking 



148 THE LEGAL NBW8. 

the revocation of the judgment on groands of artifice and irregu- 
larity, his regime may be dismissed with costs, if it be not shown 
that the judgment was in fact obtained by artifice or irregahurity. 
—Leet y, Crothers, Montreal, S. C, Doherty, J., Mai'ch 10, 1892 



Procedure — Summary mcUters — Art. 899a, C. C. P. 

Meld, Where the words '' summary matters " are not marked 
upon the writ issued in a cause, the action must be held to have 
been instituted as a non<4ummary action, and, as such, is subject 
to the ordinary delays between service and return of the writ. — 
Mousseau v. JRaeburfif S. C, Montreal, Doherty, J., March 8, 1892. 



Sescieionr^Transaction — Erreur de droit — Lesion — Orainte dtun 

procU—Arts. 1012, 1921, G. C. 

Le demandenr avait achet^ de bonne foi d*un tiers, du fer 
appartenant k la d^fenderesse, qu'il avait ensnite bris^ pour le 
vendre comme du Tieux fer. M^nac^ de poursuites criminelles, 
11 s*^tait oblige k payer d. la d^fenderesse, 11,400, ce qui d^passait 
consid^rablement le montant des dommages soufierts par cette 
derni^re. 

Jugi : — Que cet arrangement constituant une transaction, il ne 
pouvait dtre mis de cdt^ k cause de Teri'eur du droit sous Tempire 
duquel le demandeur s'^tait engage k payer cette somme pour 
^viter des poursuites qui auraient ^t^ roDvoy^es par suite de sa 
bonne foi, et cemalgr^ la lesion que le demandeur avait ^prouv^e, 
la l^ion n*^tant plus une cause de nullity enti*e majeurs. 

2. Que la crainte d'un proc^ suffit en droit pour constituer 
une transaction et lui servir de cause valable et licite. — Ste, 
Marie v. Smart et vir & de Lorimier^ m.-e.-c., C. S., Montr^, 
Jett^, J., 2 avril 1892. 

Procedure — Revision de la taxation d'un memoire de frais — Defaut 

de produire des pilces. 

Le 6 juin les mis-en-cause avaient foumi copies d'un plaidoyer 
et d'articulations de faits aux avocats du demandeur, mais ce 
plaidoyer et ces articulations de faits n'^taient pas produits 
lorsque, le 30 juin, le demandeur s'est disist^ de sa demande 
centre les mis-en-cause, 

Jugi: — Que les procnreurs des mis-en-cause n'avaient droit 
qu*aux honoraires d*une action discontinu^e aprds comparution. 
Lancaster v. Doran et al.^ et Charlebois et al, C. S., Montr^» 
Pagnuelo, J., 20 f(6vrier 1892. 



THE 



LKGAL NKV/S. 



VOL. XVL MAY 15, 1893. No. 10. 

CURRENT TOPICS AND CASES. 

Those who remember the prodigality with which ap- 
pointments of Queen's Counsel were made, in this pro- 
vince as well as elsewhere, only a few years ago, will 
feel rather surprised to learn that even a diligent investi- 
gation of the registers could disclose the names of forty- 
one other members of the bar, in the province of Quebec 
alone, upon whom the distinction had not been already 
conferred. Tet the Canada Gazette has been publishing 
weekly a fresh list of names which already number forty- 
one, and no man can predict what the total may be. We 
have so often referred to the subject of Queen's Counsel 
appointments (see particularly vol. 13, p. 25), that we 
presume our readers are nearly as tired of it as we are. 
The supposed honor having ceased to have any signifi- 
cance or use (unless it be regarded as an indirect tax upon 
the profession), common sense seems to suggest that it 
should be abolished. 



The London Law Journal notes an interesting case relat- 
ing to the liability of inquiry offices towards those con- 
cerning whom they give information. A Mr. White- 
church, an English merchant in Paris, applied to a well- 
known agency there, Messrs. Wys Muller, to ascertain 
the commercial standing of Messrs. Weissmann & Eahn. 
The reply of the agency was favourable, but a few days 



150 THE LEGAL NEWS. 

later the agency informed Mr. Whitechurch that they 
had learnt that Messrs. Weissmann & Kahn had become 
insolvent. They did not state this as a rumor, but as a 
fact. Mr. Whitechurch informed Messrs. Weissmann & 
Eahn of the information given him and its source, where- 
upon the injured firm took proceedings against Messrs. 
Wys Muller for defamation. The Tribunal of Commerce 
found against the plaintiffs, but the Court of Appeal de- 
clared itself satisfied that the statement was untrue, and 
that Messrs. Wys Muller had, therefore, incurred liability 
towards the appellants. The ground given by the deci- 
sion is important. It is not material, it states, that the 
information was given "confidentially and without guar- 
antee;" this does not annul the fault and its consequences. 
Even a rectifying note sent later on only diminished, 
but did not extinguish, the damage done, which was 
assessed at i*,000 francs. Messrs. Wys Muller hereupon 
sued Mr. Whitechurch for divulging the information, in 
spite of his engagement to treat it as confidential and 
himself as responsible for the consequences if he should 
divulge it. The Tribunal of Commerce condemned him to 
pay 500 francs damages for violation of his engage- 
ment, and this the Court of Appeal confirmed. It will 
be observed that, in spite of Whitechurch's undertaking 
to guarantee the agency against the consequences of di- 
vulging the information given, he only pays 500 francs 
of the 2,000 francs for which the agency is condemned. 



COURT OF APPEAL ABSTRACT, 

Partnership — Participation in profits — Liability to third parties. 

Held : — That participation in the profits of a business does not 
make the person participating liable as a partner towards third 
parties unless he has been held out to the public as a partner. 

M. entered into an agreement with N., who was then doing 
businesH alone under the stylo of B. L. Nowell & Co., by which 
M. advanced N. the sum of $2,000, for which he was to i^eceive 
8 per cent interest and one half the net profita of the business. 



THB LBQAL NEWS. 151 

M. sIbo entered N.'a employment as manager, at a salary of 
11,200 a year. The agreement was fur a year, at the end of 
which time N. agreed to take M. into the businoas as a partner, 
if M. so desired. After about 15 months N. made an assignment, 
and M. was sued for a debt of fi. L. Nowell & Co., on the ground 
that by yiriuo of the above ugi*eement he was a partner. Held, 
that M., not having been held out to the public as a partner, was 
not liable as such to third parties. — Reid A McFarlane, Montreal, 
Lacoste, C. J., Baby, Blanchet, Hall, Wurtele, JJ., (Baby, J., 
diss.) January 26, 1893. 



Attorney and ctient — Right to remuneration in excess of official tariff. 

Held : — An advocate has tKe right, in the absence of any 
agreement, to recover judgment against his client, for the proved 
value of his p]*ofes8ional services, irrespective of the tariff. In 
the absence of a special agreement between advocate and client 
there is a presumption that the tariff shall govern as to the 
advocate'H remuneration, but this presumption may be rebutted by 
evidence ns to the unusual or unexpected importance or duration 
of the litigation. — Christin et al. & Lacoste et a/., Montreal, Baby, 
Boes^, Blanchet and Hall, JJ., January 26, 1893. 



Vente pour taxfs municipales super non domino — Nulliti — Prescrip- 
Hon— Arts. 1487 C. C, 632 C. P. (7., 1015 C. M. 

J^^i quo l& vente pour taxes municipales d'un immeuble qui, 
avant la saisie et la vente, ^tait devenu la propri^t^ d'un tiers, 
est nulle, et que le tiers pout invoquer cette nullity m§me apr^ 
Texpiration des deux ans que I'article 1015 du code municipal 
acoorde pour demander Tannulation do semblables ventes. — 
Lovell Ss Leavitt, Montreal, Lacoste, J. C, Baby, Boss^, Blanchet, 
et Wurtele, JJ., 25 mars 1893. 



Procidure — Cassation d^un riglement municipal — Droit d'appeler 
—Articles 1033, 1053, 1054 et 1142 C.P.C. et 100, 698 et 1077 G.Af. 

Juge, qu'il y a pas d'appel du jugement de la cour de circuit 
cassant un r^glement municipal. — Corporation de la paroisse de St. 
George de Henryville dh Lafond, Montreal, Baby, Boss^, Blanchet, 
Hall, Wurtele, JJ., 26 Janvier 1893. 



152 THE LEGAL KE^S. 

Jury trial — Misdirection — Art 414, C.C.P. — Verdict against evi- 
dence — New trial. 

Held: 1. A veixiict will not be set aside for miBdirection by 
the court as to a point not material to the issue, and where it 
appears that justice upon the whole case was done and the proper 
question left to the jury. 

2. Where the jury have properly and sufficiently answered one 
of the questions submitted to them, it is a sufficient compliance 
with Art. 414, C.C.P., if they refer, in their answer to a subse- 
quent question, to their former answer as containing a sufficient 
reply to the question. 

3. A new trial will not be granted on the ground that the ver- 
dict is against evidence, even where the court would have come 
to a different conclusion from that reached by the jury ; but there 
must be such a preponderance of evidence as to make it unrea- 
sonable for the jury to find the verdict complained of. — < Royal 
Canadian Insurance Co, <& Roberge, Montreal, Baby, Boss^, Blanchet 
and Hall, JJ., December 23, 1892. 



Summary Matters—Curator — Exception to the Form — Attorney's 

Signature— Arts. 56, 887, C. C. P. 

Heldj 1. The curator has the same right as the party he repre- 
sents to proceed summarily in the cases mentioned in article 887, 
C. C. P., as amended by E, S. Q. 5977, 53 Vic. c. 61, s. 1, and 54 
Vic. c. 41, s. 4 

2. An exception to the form will not be maintained on the 
ground that the signature of the attorney certifying the copy of 
declaration was not written by the attorney himself, if it be 
proved that the signature is in the handwriting of a person duly 
authorized to sign for the attorney, the defendant in such case 
•having no grievance. — Prince ds Stevenson^ Lacoste, C. J., Boss^, 
Blanchet, Hall & Wurtele, JJ., Montreal, Feb. 28, 1893. 



Exicuteur testamentaire — Saisine — Inventaire — Interpretation — 

Arts. 917, 918 c« 919, (7. C\ 
Juge^ L'executeur testamentaire est saisi des biens meubles du 
testateur au momant du d^c^s de ce dernier, ind^pendamment de 
la confection de Tinventaire. 

L'art. 919 C. C, ne fait qu'^non^ier les dcvoirb de Tex^cuteur 
testamentaire, a d^faut do Taccomplissement desqucls, I'h^ritier, 



THS LSOAL NEWS. 158 

oa le l^gataire universel peat demandcr sa destitution. — Cook et 
a/., <k La Banque de QiUbeCy C. R., Quebec, Lacoste, J. C, Boas^, 
Blanchet, Hall et Wurtele, JJ., 10 Janvier, 1892. 



SUPERIOR COURT ABSTRACT. 

Mori etfemme — Pension alimentaire — Separation de corps — Enfanta 

mineurs. 

Juge : — 1. Que lorsque T^pouse est forcf^e pavjf^s mauvais 
traitements de son mari de vlvm ^/^nni'-^^o ue im, elle peut porter 
contre lui un*^ p^*;/Nn p^ - pension alimentaire, tant pour elle- 
in§me, que pour les enfants qui sont k sa charge, sans avoir 
recours ^ Taction en separation de corps. 

2. Qu'olle peut prendre cette action sans avoir ^t^ nomm^e 
tu trice de ses enfants mineurs. — Beaudry v, Stames, C.S., Mont- 
real, Taschereau, J., 25 novembre 1892. 



ProprUte litUraire et artistique — Action pour amende^ Defense en 

droit, 

Jugi, que pour pouvoir redamer la penality edict^e par la 32e 
section du ch. 62, S. R. C, concernant la propriety litt^raire et 
artistique, il faut all^guer la possession par le defendeur du nom- 
bre d'exemplaires qui forme la base de Taction. — Ashdown v. La- 
vigne et al.j C. S., Montreal, Pagnuelo, J., 20 f^vrier 1892. 



Execution — Guardian — Rule agaJnst^Option—Art. 597, C. C. P. 

Held: — A rule against a gu»rdian to effects seized under exe- 
cution, which gives him the option of producing the goods seized, 
or of paying the value thereof, without stating what the value 
amounts to, and asks that he be imprisoned until he shall have 
paid an unascertained value of goods or amount of money, is ille- 
gal, and will be set aside. — Evans v. Wiggins, and Wiggins^ 
guaitiian, rms-en-cause, S. C, Montreal, de Lorimier, J., May 31, 
1892. 



Cession et transport — Saisie-arret — Connaissance du cessionnaire de 
la saMe arret — Signification du transport — Arts. 2085, 2127 
C. (7., et 625 C P. C, 

Jugi : 1. Que le transport judiciaire d'une cr^ance portant hy- 
poth^ue qui rdsulte d'uno saisie-an^St, doit etre enregistr^, et s'il 



154 THE LEGAL NEWS. 

ne Ta pas 4>i4, ce transport est sans etfet ^l Pencontre d'un cae- 
sionnaiie subsequent qui s'est conform^ aux exigences de la loi. 

2. Que la connaissance que le cessionnaire a pu acqu^rir de 
cette saisie-arr§t non enregistr^e, ne pr^Judicie pas aux droits 
qn'il a acquis par le transport r^gulier et enregistr^ de la mSme 
cr^ance, qui lui a ^t^ fait pour valeur. 

3. Que la signification par extrait d'un acte de transport est 
^uffisant si I'extrait recite toute la clause de Tacte de transport 
§]U .9^,-Papporte ^ la cr^ance en question. — Lalondev. Garand, 
G. S., Montreal, Pagnuelo, J., 28 juin 1892, 



Procidure — Peremption d! instance — Acies interruptoires — PUcespro- 
duties apres les dilah—Arts, 207 et 458 C, P. C. 

Jugi: 1. Que le jugoment de eong^ ddfaut que le domandeur a 
obtenu contre une premiere motion pour peremption d'instance 
ne constitue pas une procedure utile dans Ja cause qui puisse §tre 
oppos^e i une seconde motion pour peremption, la demande en 
peremption formant une instance distincte de Tinstance princi- 
pale. 

2. Que des articulations de faits produites apr^s enqudte close, 
et par consequent en dehors des deiais de Tarticle 207 C. P. C, 
sans la permission de la cour ou le consentement de la partie ad- 
verse, et un avis d'enquSte produit apr^s la premiere mptlon 
pour peremption, mais qui avait ete signifie avant la peHode de 
trois ans constituant cette peremption, ne sont pas des procedures 
utiles pouvant couvrir la peremption. — Boy v. Cantin et al., C. S., 
Montreal, Tascheroau, J., 11 avril 1892. (Confirme en revision 
le 29 avril 1893.) 



Trees on neighbour's land — Art. 529, C. C, 

Held : A proprietor is not entitled, without obtaining authority 
to do so, to cut down trees and shrubs growing on his neigh- 
bour's land, on the line dividing their respective properties, on 
the ground that the trees and shrubs in question interfei'e with 
the cleaning of the boundary ditch, more especially where the 
weight of evidence shows that the ditch could have been cleaned 
without cutting the trees and shrubs. — Bain v. Monteith^ S. C, 
Montreal, Gill, J., Februaiy 5, 1892. 



THB LEGAL NEWS. 166 

Procidure — Folk enchere — Description defectueme—Adjudicataire — 

Art 717, a. P.O. 

Juge, que la demande dlrig^ contro un adjudicataire poar folle 
enchere sera nmvoj^e, si radjudicataire fait voir que le lot qui 
lui a ^t^ adJQg^ ^tait d^crit aux avis de vente comme ^tant an lot 
b&ti, tandis qu'au contraire ce lot ^tait vacant. — Cite de Montricd 
V. Perodeauj C.S., Montreal, Loranger, J., 28 Janvier 1892. 



Corporation municipale — Execution de rlgUments — Mandamus, 

Jugi : 1. Que le pouvoir accords ^ une corporation municipale 
de faire des r^glements pour une certaine fin, est une attribution 
legislative, enti^rement discr^tionnaire, et qui n^mpose aucune 
responsabilite civile si elle n'est pas exerc^e ; que ie fait d'avoir 
pass^ les r^glements invoqu^s ne change pas la position d'nne cor- 
poration municipale en vers ses administr^s, et ne la laisse pas moins 
libro soit d'en eziger Tex^cution, soit d'en tol^rer I'inobservance, 
soit mdme d'en d^cr^ter le rappel pur et simple, si elle le juge k 
propoB. 

2. Que toute personne int^ress^e pouvant elle-m§me poursuivre 
les infractions aux rdglements municipaux, on ne pent par man- 
damus forcer la corporation elle-m6me k le faire, le recoura par 
mandamus n'^tant pas per mis lorsque la loi autorise un autre 
recours efficace et r^gulier. — Roy v. La Cite d^ Montreal, C.S., 
Montr^l, Taschereau, J., 3 mai 1892. 



Procedure — Loi des licences — Competence — Cour de Circuit — 

Art. 1031 S.E.P.Q. 

Juge^ que la cour de circuit a scale juridiction pour connaitre 
des actions en recouvrement d'amendes enconrues pour infrac- 
tions aux dispositions de la loi des licences, lorsque le montant de 
la demande n'excMe pas $200. — Lambe y. Beauchamp, C.S., 
Montreal, Loranger, J., 16 fSvrier 1892. 



Procedure — Bonoraires d experts— Articles 344, 345 C.P.C, 

Jugi: 1. Que des experts nomm^s en justice ne sontpas obliges 
d'attendre Tissue du proems pour le paioment de leurs frais et ho- 
noraires; mais qu*ils peuvent, d^s que le moataot en a ^t^ con- 
tradictoirement ^tabli, le recouvrer des parties, lorsque aucun 
d^pdt n'a ^t^ fait en cour. 



156 THE LEGAL KEWS. 

2. Qa'une partie ne peat se Boustraire a ce paiement qa'en 
d^moDtrant que le rapport des experts est nal et sans utility dans 
la cause. — Quirk v. New Rockland Slate Co. et al, C.S., MoDtrtol, 
Loranger, J., 30 mai 1892. 



Cfujtrte de la citi de Montreal — Changement du niveau dfune rue — 

Juridiction des court — Dommage^. 

Jug6j que les dispositions de la charts de la cit^ de Montr^l, 
52 Vic, ch. 79, sec. 213 et 227, relativement k revaluation de dom- 
mages par des commissaires, n'en Invent pas aux cours de justice 
leur juridiction ordinaire pour condamner la cite k payer des 
dommages et pour faire etablir ces dommages d'api*^3 les modes 
de preuve oixiinaire. — Lamarche v. La Cite de Montrial^ C.S., 
Montreal, Pagnuelo, J., 29 Janvier 1892. 



Locateur et locataire — Stipulation de non reparation — Maison inJui- 
bitable — Resiliation de bail — Dommages — Tarif. 

Juge : 1. Que malgr^ la stipulation que le locateur ne sera tenu 
de faire aucunes reparations, pas meme celles que la loi impose 
au proprietaire, la maison lou^e doit ^tre habitable et salubre, 
sinon, le locataire a le droit d'oxiger les reparations nece^saires 
pour rendre cetto maison babilable, et k defaut de reparations, 
la faculte de laisser les lieux. 

2. Que, cependant, lorsqu'avant Taction, le locateur a offert de 
resilier le bail, Taction du locataire pour dommages et les frais, 
sera renvoyee. 

3. Qu*aucun honoraire ne sera accorde pour des definitions de 
faits qui ne sont autre chose que les anciennes articulations de 
faits pour lesquelles il n'est rien aocoixie par le nouveau tarif. — 
Baggy, Duchesneau^ C.R., Montreal, Mathieu, Gill et Pagnuelo, JJ., 
31 octobre 1892. 



Connaissement — Fret — Art, 2454, C,C. 

Jugi, que le consignataire de marchandises sous un connaisse- 
ment qui declare que le fret sera payable par le consignataire, ne 
peut, apres reception de ces marchandises, i-efiisor de payer ce 
fretau mattre du navire sous le pretexte que celui qui lui a con- 
signe cos marchandises etait son debiteur et devait payer le fret. 
— Gosselln v. Prifontaine, C.S., Montreal, Pagnuelo, J., 30 juin 
1892. 



THS LEGAL KSW8. 157 

Corporation municipale — Besponsabilite — Negligence — Rue rendue 
dangereusepar suite de causes climatiriques — Faute commune. 

Juge : 1 . Que lorsque uno corporation a n^glig^ d'entreteuir 
une rae pendant Thiver, elle ne peut ^chapper k la responsabilit^ 
qui r^ulte d'un accident, en plaidant que la rue s'est trouv^e 
dangereude par saite d'un d^gel subit, son devoir ^tant d'y couper 
la glace et de couvrir les trottoirs de cendres. 

2. Qae n^anmoins le demandear, an vieillard, s'^tant imprn- 
demment engage dans une rae ^ pente raido, sans grappins et 
avec des claques en caoutchouc us^es, il y a lieu de mitiger les 
doro mages ^ cause de la faute commune des parties. — White v. 
Citi de Montreal, C.S., Montreal, Pagnuelo, J., 29 Janvier 1892. 



Loi des licences — Certiorari — Exception a la forme — Art. 116 CP,C,, 

et 1074 8.R,P.Q. 

Jugi: 1. Que le d^pot exig^ par Varticle 1074, S.RP.Q., dans 
le cas de T^manation d'un bref dec^r^ioran contre une conviction, 
est de pgaeur, et Tabsence de ce d^pdt entt*ainera le renvoi de 
Taction. 

2. Que le d^faut de fairc ce ddp6t peat dtre plaids par excep- 
tion a la forme. — Benoit v. I>esnoyers, <Sc Lambe, intervenant, C.S., 
Montreal, Loranger, J., 16 f<Svrier 1892. 



Corporation municipale — Besponsabilite — Pente des rues — Degel, 

JugSf que loraqu'un trottoir a ^t^ constamment entretenu en 
bon ^tat, et que Taccident qui y est arrive ne peut §tre attribu^ 
qu'& un degel considerable ainsi qu*^ la pente de la rue, il n'y a 
pas lieu de tenir la corporation responsable de cet accident. — 
Foley et vir v. Cite de Montrial, C.S., Montreal, Pagnuelo, J., 29 
Janvier 1892. 



Procedure—Signification — Exception a la forme — Art, 61, C,P,C 

JugS, qu'ane banque qai a son bureau principal & Quebec et une 
succursale k Montreal, ne peut Stre assignee k cette succurpale, 
mais que Tassignation doit §te*e donn^e au bureau principal de la 
banque. (Voir dans le m^me sens Baxter v. The Union Bank of 
Lower Canada, 7 L.N. 61.) — Loignon v. La Banque ^Nationale, 
Montr^l, Jette, J., 16 septembre 1892. 



168 THE LEGAL NEWS. 

Railway Act of Canada-^S Vict c. 28, sec. %--<)attU killed on 
track while straying — Absence of cattle-ffuards — Liability of 
company. 

Held : — Where animals escape from the land of their owner, 
without any faalt or negligence imputable to him, and stray 
upon the highway, and thence get on to the railway track at the 
point of intersection owing to the absence of cattle-guards, and 
are killed on the ti'ack at some distance from the point of inter- 
section, the company is liable. — Cress v. Canadian Pacific R, Co.^ 
S. C , Bedfoi-d, Lynch, J., Sweetsburg, Nov. 16, 1892. 



Municipal law — By-law — Invalidity — Action for assessment — 

Exemption. 

Held : — 1. The illegality of a by-law pai;sed by a municipal 
council, within the limits of its powers, and of a collection roll, 
cannot be pleaded as a defence to an action for the recovery of 
a tax thereunder, unless the invalidity alleged be absolute and 
not merely the absence of a formality, where said by-law and 
collection roll have not been previously attacked and pmceedings 
have not been taken within the proper time to set them aside. 
Hence the omission to publish a by law after its approval by the 
lieutenant governor in council, not being a nullity attaching to 
the substance, cannot be invoked as a defence to an action to 
recover taxes under the by-law. 

2. The description in a by-law levying an assessment, that its 
object is to make an assessment for general purposes, is sufficient- 
ly precise and determinate. 

3. A tax becomes due when the public notices i*equired by 
Art. 960, M. C, are given by the secretary-treasurer. A rate- 
payer is not entitled to a notice demanding payment of the taxes 
due with a statement in detail. 

4. The exemption from municipal taxation applicable to 
educational institutions, and to parsonage houses and their 
dependencies, under Art. 712, pars. 3, 4, M. C, does not extend 
to lots of land adjoining a private boarding school, kept by a 
rector of the Church of England in Canada in his rectory, the 
produce of which land is used by the family of the rector and his 
pupils.— Corporation of the Village of Frelighsburg v. R^. J, B, 
Davidson, C. C, Sweetsburg, Lynch, J., Nov. 15, 1892. 



THS LEGAL NEWS. 159 

Procedure — Actifm in forma pauperis, 
Seld, where leave has been granted to a party to institute a 
suit in forma pauperis^ and such action has been dismissed, the 
original oi-der granting leave to proceed in forma pauperis cannot 
be invoked to sustain a suit in renewal of the first suit. — Noel v. 
White, S. C, Montreal, Davidson, J., April 6, 1892. 



Insurance, Life— Insurance Money Payable to Widow — Party In- 
terested Joying Before Insured — Remarriage of Husband — 
Claim to Insurantie Money Deposited Under Quebec Judicial 
Deposits Act 

P. effected an insurance on his life for the benefit of his wife. 
The wife died firat, and by her will named P. her universal 
legatee. P. married again, the contract of marriage stipulating 
separation of property. There was never any assignment of the 
policy for the benefit of the second wife. P. predeceased his 
second wife, and by his will bequeathed all his property to his 
daughter by the first marriage. The amount of the policy being 
claimed both by the daughter and the second wife, the insurance 
company deposited the amount in court. 

Heldy that the daughter was entitled to the amount of the 
insurance.-7-In re JSfna Life Insurance Co,, Gaucher et al„ and 
OosseUn, petitioners, S. C, Montreal, Tair, J., December 28, 1892. 



Advocate — Withdrawal from Suit — Action for Fees — Disbursements, 

Held, 1. An advocate has no right of action for his fees until 
the cause wherein he claims them has been terminated by judg- 
ment, settlement, or discontinuance, or until his client has with- 
drawn his mandate from him. 

2. An advocate cannot withdraw from a cause without the per- 
mission of the court or judge, and even where such withdrawal is 
regularly made it does not give the advocate a right of action 
against his client for his fees before the termination of the cause. 

3. The fact that the client has employed another lawyer in an- 
other case in which he was concerned, and did not respond to a 
notice by his attorney to inform him what he intended to do in 
the case in which he represented him does not justify an advocate 
in withdrawing from a case, or give him a right of action for fees 
before the termination of the suit. 



160 THE LEGAL NTEWS. 

4. An advocate is not bound to advance moneys as disburse- 
ments in a cause, but where he does so he is not obliged to await 
the result of the suit before he is entitled to sue for the reim- 
bursement of such advances. — Loranger et al., v. Filiatrault et al.y 
S. C, Montreal, Doherty, J., January 12, 1892. 



ih/tir^ — Burning in effigy -^Minor — Responsibility, 

Heldy 1. Those who aid and abet, or take part in the hanging 
and burning of a person in effigy, with the object of bringing 
him into contempt, are jointly and severally liable in damages. 

2. The father of minor children, who, although aware that his 
children were planning and abetting a proceeding of the above 
nature, did not interfere to restrain them, but actually encour- 
aged them, is responsible for their acts. — Lortie v. Glaude et al., 
S.C, Montreal, Tait, J., April 2, 1892. 



Procedure — EnquUe — Foreclosure, 

Held, Where a case has been inscribed for enquHe, the plaintiff, 
on the day he closes his enquHe, is not entitled to call upon the 
defendant to proceed with his enqu^te the same day, but should 
fix a subsequent day for that purpose. A foreclosure of defend- 
ant, and inscription upon the merits by the plaintiff, on the same 
day he closed his enquete, will be set aside as irregular. — Com- 
pagnie de Prit dc Credit Fonder v. Normand, <f? Ouertin, S.C, Mont- 
real, Tait, J., April 30, 1892. 



Substitution — Powers of curator — Opposition to seizure. 

Held, The curator to a substitution, not being vested with the 
property of the substitution, has no quality or interest to make 
an opposition to the seizure thereof. — Montreal Loan and Mort- 
gage Co. V. Pilodeau, & Lavigne, esquaL, opposant, S.C, Montreal, 
Doherty, J., May 31, 1892. 



Jurisdiction — Incidental demand. 

Held, The Superior Court has no jurisdiction to dispose of an in- 
cidental demand made by the defendant in an action therein, for 
a sum less than $100, where said demand is separate and distinct 
from the principal action, and has no connection with the de- 



THE LEGAL NEWS. 161 

mand on which it is based. — Thompson v. White, S.C, Montreal, 
Doherty, J., March 12, 1892. 



Procedure — Summary Matters. 

Held, Where a case has proceeded to judgment as a summary 
case, it is not necessary that the writ of execution issued thereon 
should bear the words '* summary proceedings," which are re- 
quired on the writ of summons*. — La Banque Nationale v. Trudel 
et al.j <& Trudel et al., opposanis, S.C, Montreal, Davidson, J., 
February 23, 1892. 



Testament — Legs — Presomption — C. C. 890. 

Juge, 1^ La presomption stabile par Tart. 890 du C. C. s'ap- 
plique k tout legs fait au cr^ancier ou au domcstique du testateur, 
mime ^ un legs purement rdmundratoire. 

2. Gette presomption ne peut Itre d^truite que par une ^non- 
ciation ^ cette tin dans le testament m§me, ou par Taveu du cr^ 
anoier ou domestique poursuivant etabli suivant les regies de lu 
preuve. — Marmen v. Boyer es qual., C.S., Quebec. Casault, J., 24 
dec. 1892. 



Mori etfemme — Action personneVe — Autorisation a ester en justice, 

Jugi, Que sur le refus du mari d'autoriser sa femme h ester en 
justice pour pourauivre un tiers qui I'a assaillie, le jugepeut alors 
accorder cette autorisation. — Ex parte Dame Lemieux, C.S., Que- 
bec, Andrews, J., 30 aoClt, 1892. 



APPOINTMENT OF QUEEN'S COUNSEL. 

The following appointments of Queen's Counsel in the Province 
of Quebec, have appeared in the Canada Gazette : — 

Gazette, March 18 : — ^Jean Joseph Beauchamp, Montreal ; Frs. 
de Sales Alphonse Bastien, Montreal ; Joseph Alexandre Bonin, 
Montreal ; Selkirk Ci*oss, Montreal \ Henry John Kavanagh, 
Montreal; James Kirby, Montreal; J. Bto. Gustavo Lamothe, 
Montreal ; Frederick Dobart<zch Monk, Montreal ; Pierre Basile 
Mignault, Mjntreal ; Louis Conrad Pclletier, Montreal; Alfred 
JbtochoD, Hull; George Edwin Bampton, Lachute; Guillaume 



162 THB LBGAL NEWS. 

Amyot, Quebec; William Charles Languedoc, Quebec; C. B- 
Leooidas Dionne, Quebec ; Pierre Alphonse Boudreault, Three 
Bivers; Thomas Brossoit, Beauharnois; Louis Henri Archam- 
baulty Montreal ; William Guild Oruickshank, Montreal ; Fran- 
9018 Xavier Choquet, Montreal ; Joseph Adelard Descarries, Mon- 
treal; Hon. Louis Philippe Pellelier, Quebec ; Edward John 
Hemming, Drummondville. 

Gazette^ March 25 : — Hon. Pierre Laurent Damase Evariste 
LeBlanc, Montreal; Joseph Raymond Fournier Pr^fontaine, 
Montreal ; Peter Joseph Cooke, Montreal ; Alexander F. Mac- 
Intyre, Montreal ; Hormisdas Jeannotte, Montreal ; Philippe 
Arthur Olivier, Three Rivera ; Joseph-Edouard B^ard, Quebec. 

Gazette^ April 1 : — John Gleason, Bimouski ; Charles Henry 
Stephens, Montreal. 

Gazette, April 22 : — ^Thomas Jamea Doherty, Montreal ; 
Thomas Patrick Foi*an, Aylmer ; Edwin Botsford Busteed, Mon- 
treal ; Lawrence Stafford, Quebec. 

Gazette, April 29 : — John Malcolm McDougall, Aylmer; L. N. 
Duplessis, Three Rivera ; Louis Charles B^langer, Sherbi'ooke. 

Gazette, May 6 : — Eugene Lafontaine, Montreal ; Gerahom 
Joseph, Montreal. 

The above appointments all bear date March 7, 1893. 



THE LATE LORD SHERBROOKB. 

liord Sherbrooke's Memoirs, which have just been published, 
contain some incidents of legal interest. After an unsuccessfbl 
struggle for the Professorship of Greek in Glasgow Univereity, 
Lowe came to London, studied law, and was called to the Bar 
in 1842. I'hen came a crisis in his life. He resolved to take the 
best advice he could get as to the probability that if business 
came he should be able to do it : — 

loonsulted Lawrence, Travera, au'l Alexander. They said that I 
should become blind in seven years, recommended out-of-doors employ- 
ment, and spoke of Australia or New 2^aland as suitable places for the 
purposa Tins strange advice entirely subverted and demolished the 
whole plan of my life. It is not very difficult to imagine the bitterness 
of such a revelation. To be told at eight-and-twenty that I had only 
seven more years of sight, and to think of the long night that lay be- 



THE LEGAL NEWS. 163 

yond it, was bad enough ; but the reflection that the object which I had 
struggled through a thousand difficulties with such intense labour to 
attain was lost to me was almost as bitter. 

Lowe then sab sail for Aastralia. Sydney was reached in 
October, 1842, and he soon obtained a fair amount of business. 
He was nominated by Sir George Gipps, the governor, to the 
Legislative Council, and as a debater he achieved an immediate 
saccess. This fact added to Lowe's fame at the Bar, and his 
biographer traces with great detail the subsequent period of his 
career in Australia. — Law Journal. » 



A LADY IN COUET, 



The following piquant sketch of a first experience of the Old 
fiaiiey is from a letter to Miss Berry by Lady Dufiferin, grand- 
daughter of Sheridan and mother of Loi*d Dufferin, ex-Governor 
General of Canada. It is found in the life of Miss Berry and her 
sister by Lady Theresa Lewis, vol. iii, p. 497 \ and its humor is 
not unworthy of the wit of the " Critic,'* or the fun of the 
" Yacht Voyage to Iceland." 

Hampton Hall, Dorchester, 

Saturday (Oct. 14), 1846. 

Your kind little note followed me hither, dear Miss Berry. As 
you guessed, I was obliged to follow my things (as the maids 
always call their raiment) into the very jaws of the law 1 I 
think the Old Bailey is a very charming place. We were intro- 
duced to a live Lord Mayor, and I sat between two sheriffs. The 
Common Sergeant talked to me familiarly, and I am not sure 
that the Governor of Newgate did not call me ** Nelly." As for 
the Eov. Mr. Carver (the oixlinary), if the inherent vanity of my 
sex does not mislead me, I think I have made a deep impression 
there. Altogether my Old Bailey recollections are of the most 
pleasing and gratifying nature. It is true I have only got three 
pairs aiid a half of stockings, one gown, and two shawls; 
but that is b«t a trifling consideration in studying the glorious 
institutions of our country. We were treated with the greatest 
respect and ham sandwiches, and two magistrates handed 
US down to our carriage. 



164 THE LEGAL NEWS. 

Hampton Court, October 22nd. 

My mother and I have retarned to this place for a few days 
in order to make an inoffectaal grasp at any remaining property. 
Of courae you have heai*d that we wore i*obbed and murdered the 
other night by a certain soft-spoken cook who headed a storming- 
party of banditti thi*ough my mother's kitchen window ; if not, 
you will be see the full, true, and dreadful particulai*8 in the 
papers, as we are to be ^* had up " at the Old Bailey on Monday 
next for the trial. We have seen a good deal of life and learned 
a great deal of the criminal law of England this week, — 
knowledge cheaply purchased at the cost of all my wardrobe, 
and all my mother's plate. We have gone through two examina- 
tions in court ; they were very hurrying and agitating affairs, 
and I had to kiss either the bible or the magistrate, I don't 
know which, but it smelt of thumbs. 

I find that tho idea of personal property is a fascinating illusion, 
for our goods belong in fact to our country and not to us; and 
that tho petticoats and stockings which I fondly imagined mine 
are really the petticoats of Grout Biilain und Ireland. I am now 
and then indulged with a distant glimpse of my most necessary 
garments in the hands of different policemen ; but '' in this 
stage of the proceedings " may do no more than wistfully reeognizo 
them. Even on such occasions the words of justice are : *Tolice 
man B 25, produce your gowns ; " " Letter A 26, identify your 
lace ; " '^ Letter C, tie up your stockings." All this is harrowing 
to the feelings, but one cannot have everything in this life. We 
have obtained justice^ and can easily wait for a change of linen. 
Hopes are held out to us that at some vague period in the lapse 
of time we may be allowed to wear all of our raiment,-r&t least 
so much of it as may have resisted the wear and tear of justice ; 
and my poor mother looks confidently forward to being restoi'ed 
to the bosom of her silver teapot. But I don't know. I begin to 
look on all property with a philosophic eye as unstable in its 
nature \ moreover the police and I have had my clothes so in 
common that I shall never feel at home in them again. To a 
virtuous mind the idea that '^Inspector Dawsett " examined into 
all one's hooks and eyes, tapes and buttons, is inexpressibly 
painful. But I cannot puraue that view of the subject." — The 
Green Bag, 



THE 



LBGAL NEWS 



VOL. XVL JUNE 1, 1893. No. 11. 



CURRENT TOPICS AND CASES. 

In Carlill v. Carbolic Smoke Ball Co, is an example of a 
contract created by advertisement, and performance of 
condition stated therein. The defendants, proprietors of 
a medical preparation called ''Carbolic Smoke Ball," is- 
sued an advertisement in which they promised to pay 
<£100 reward to any person who contracted the disease 
known as "inQaenza," after having used one of the balls, 
in a certain specified manner and for a certain specified 
period; and that they had deposited «£1000 in a certain 
bank to show their sincerity in the matter. The plaintiff, 
upon the faith of the advertisement, purchased one of 
the balls, and used it in the manner and for the period 
specified, but nevertheless contracted the influenza. The 
English Court of Appeal (Dec. 7, 1892) held that the offer 
in the advertisement, coupled with the performance by 
the plaintiff of the conditions specified therein, created a 
valid contract. Lord Justice Lindley said: — "We are 
dealing with an express promise to pay <£100 in certain 
events. There can be no mistake about that at all. Read 
this how you will, and twist it about as you will, here 
18 a distinct promise, expressed in language which is un- 
mistakeable, that <£100 reward will be paid by the Car- 
bolic Smoke Ball Company to any person who contracts 
influenza after having used the ball three times daily, 
and so on. * * * The deposit is called in aid by the 
advertisers as proof of their sincerity in the matter.*' 



166 THE LEGAL NEWS. 

Failure to assist a sick passenger to alight from a train 
at the place of his destination led to serious consequences 
in Weighiman v. LimisvUle, N. O. 8f T, R, Co., decided by 
the Mississippi Supreme Court, March 20, 1893. The 
Court held that where a railway company received a sick 
passenger, with the consent of the conductor < f the train 
and the ticket agent, who were informed of his serious 
illness, and of the necessity of his having assistance 
when he should arrive at his destination, but the con- 
ductor failed t o have him aroused and put off there, but 
carried him thirty miles beyond, where he was put off, 
alone, at a small station, at 2 a.m., and allowed to remain 
there forty hours before being returned to his destination 
on one of the Company's trains, and his illness was so 
increased during his exposure that he died, the Company 
was liable. 



A notable event of the past month was the completion 
by Mr. Strachan Bethune, Q. C, of his fiftieth year at the 
bar. The tableau shews that Mr. Bethune was admitted 
in May, 1843, but were it not for this evidence few 
would suspect from the robust appearance and active 
habits of the gentleman referred to that half a century 
had flown. We are sure that his confrires all join hearti- 
ly in the wish that his familiar figure may long be seen 
in the usual haunts of active practitioners. 



SUPBBIOB COURT— DISTRICT OF OTTAWA. 

Aylmeb, February 24, 1887. 

Coram Wubtblb, J. 

EoAN at al. V. Thomson. 

Sale — Warranty — Constituted rents representing cens et rentes. 

Held : — 1. A vendor of real estate is not bound by law to warrant 
the purchaser against rentes constituies representing cens et rentes ; 
and therefore in the absence of a special warranty in the deed, a 
sale of lands situate within the limits of a seigniory is subject to 
such constituted rents, arrears excepted. 



THE LEGAL NEWS. 167 

2. Wards of warranty in a deed^ which say that the sale is made 
'* with promise of warranty against all gifts, dowers, debts, 
hypothecs, substitutionSf alienations and other hindrances what- 
soever,** are no more than an enunciation of the ordinary war- 
ranty of law, and do not imply any conventional warranty 
against a constituted rent representing cens et rentes. 

The judgment was as follows : — 

" The Court etc., 

" Seeing that the present action is brought to recover from the 
defendant the balance of $400 of the price of lots Nos. 21 and 22 of 
St. Am^J^e Range in the Parish of Ste Ang^liquc, sold by the 
plaintiffs or their authors to the defendant by deed of sale passed 
before Mtre. E. d'Odet d'Oraonnons, Notary, on the 22nd day of 
November, 1881, with interest accrued and to accrue thereon ; 

'* Seeing that the defendant pleads that the lots in question are 

situate in the Seigniory of Petite Nation and that they are 
charged under and by the cadastre of the seigniory with an 
annual constituted rent representing the cens et rentes of $11.80, 
on a capital of $196.67| and that certain arreara of such con- 
stituted rent and also certain arreara of bchool and municipal 
taxes were due at the time of the sale; that the defendant ten- 
dered and has since his tender deposited in court the balance of 
the plaintiffs' claim after deduction of the capital of the con- 
stituted rent and of the arreara above mentioned ; and that he 
prays by his dilatory exception to bo allowed to delay the pay- 
ment of the amount representing the capital of the constituted 
rent until the plaintiffs cause the same to be discharged or give 
security that he will not be disturbed thereby, and by his per- 
emptory exception that the action bo dismissed for the present 
to the extent of the amount of such capital ; 

*' Considering that by law a vendor was not bound to warrant 
a purchaser against seigniorial duties and charges when not 
declared, as no one was presumed to ignore the existence thereof, 
and that on the contrary lands situated in soii^niories wero ahvays 
presumed to be conveyed subject to such seigniorial duties and 
charges unless there was a special conventional warranty that 
such lands were free and discharged therefrom ; 

'* Considering that a constituted rent representing cens et rentes 
is a charge inherent to all lands situate within the limits of a 
seigniory, that every such constituted rent U substituted by the 
Consolidated Seigniorial Act for all seigniorial duties and charges 



168 THE LKQAL NEWS. 

to which the land charged therewith was sabject, and Ib secured 
by the same privileges as such duties and charget«, and is further 
assimilated to seigniorial duties and charges by being declared 
by legislation subsequent to the Consolidated Seigniorial Act 
(32 Vie, ch. 30, 8. 3,) to be imprescriptible as regai-ds the capital 
notwithstanding mutations of the land charged therewith, and 
that a Cadastre made in virtue of the said Consolidated Seig- 
niorial Act is a final title in favor of the seignior for all constituted 
rents establinhed thereby and is a public document, recognized 
moreover by subsequent legislative acts, of the existence of which 
all persons are bound to have cogniisanco ; 

*' Considering moreover that the principle, that lands charged 
with constituted rents created in the place of seigniorial rights 
are, in the absence of any express conventional warranty, con- 
veyed subject to such rents as being a charge inherent to all 
lands situate in seigniories, is recognized by article 659 of the 
Code of Civil pi*ocedure and by section 54 of the Consolidated 
Seigniorial Act, which section expressly declares that in the event 
of a sale under a writ of execution '* every such immoveable 
" property shall be considered as having been sold subject there- 
'* after to all such rights, charges, conditions or reservations, 
" without it being necessary for the seignior to make an opposi- 
'^ tion for the said purpose before the sale ; *' 

** Considering that in the present case the words of warranty 
contained in the deed of sale are simply the enunciation of the 
ordinary warranty of law and are purely a matter of style, and 
that they do not imply any conventional warranty against the 
constituted rent complained of; 

'^ Considering that the lots in question were sold to the defend- 
ant subject to the constituted rent established by the cadastre and 
that his dilatory and peremptory exceptions ai*e therefore un- 
founded ; and that his tender was and deposit is insufficient; 

'^ Considering, however, that the plaintiffs are liable for all 
arrears of such constituted rent and of school and municipal taxes 
due at the time of the sale ; 

^' Seeing that such arrears amounted to $35.40 for the con- 
stituted rent, $6 for school taxes and $1.60 for municipal taxes, 
forming in all $43, that tiio same being deducted from the said 
sum of $400, leaves a balance due lo the plaintiffs of $357, with 
interest at *J per centum per annum fi*om the 22nd day of 
November, 1881 ; 



THE LEGAL NEWS. 169 

'* Doth overrule and dismiss the dilatory exception pleaded in 
this cause, with costs, and doth adjadge and condemn the defend- 
ant to p^y to the plaintiffs the said balance or sum of $357, with 
interest thereon at the rate of 7 per centum per annum from the 
said 22nd day of November, 1881, until payment, with costs of 
suit" » 

J, R. Fleming, Q,C.^ for plaintiffs. 

Asa Gordon, for defendant. 



AUTHORITISS RBFIRBID TO. 

Pothier, Vente. 

No. 194. Les charges que I'acheteur est cens^ ne devoir pas 
ignorer, et dont en consequence le vendeur n*est pas tenu de ga- 
rantir Tacheteur, quoiqu'elles n'aient pas ^1^ express^ment d^cla- 
r^es par le contrat, sont, — lo. toutes celles qui sont de droit 
commun. 

No. 196. Les droits et devoira seignenriaux, tels qu'ils sont 
r^glto par les coutumes, sont aussi des chai*ges des b^ritiers, qui 
n'ont pas besoin d'etre ddclar^es par le contrat de vente, lorsque 
les heritages sont situds dans les provinces oh est dtablie la maxi- 
me, nulU terre sans seigneur; la pr^mption etant que Th^ritage 
relive de quelque seigneur ou & fief ou \ cens.- 

Consolidated Statutes of L. C, ch. 41. 

Section 33, par. 2. Fi*om and after the publication of such 
notice, with respect to any seigniory, every censitaire therein 
shall hold his land in frunc-aleu roturier, free and clear of all 
seigniorial rights and dues, except the rente consHtuie substituted 
for the cens et rentes. 

Consolidated Statutes of L. C, ch, 41. 

Section 54. No sale under Writ of Execution shall have the 
effect of liberating any immovable property theretofore held d 
litre de cens fi*om any rente constituie, payable thereon under the 
schedule of the seigniory, but shall be considered as having been 
sold subject thereto, without it being necessary for the seignior 
to make an opposition for the said purpose before the sale. 

Q) The above judgment was nnanimouMy confirmed by the Court of 
Review, Montreal, Johnson, Taachereau and Qill, JJ., April 30, 1887. 



no THB LEGAL NEWS. 

32 Victoria, cK 30. 

Section 1. The Schedule made and deposited for a seigniory i8 
a final title in favor of the seignior for the constituted rents es- 
tablished to represent the seigniorial rights. 

Section 3. The capital of constituted rents is not subject to 
prescription, whether the land charged has changed proprietor 
or not. 



COURT OF APPEAL ABSTRACT. 

Loi Seigneuriale — Droit de p^he. 

Jagi : — 1. Le droit de p§che sur les rives du St. Laurent, bor- 
nant les seigneurics, n'en ^tait pas un accessoire et n'appartenait 
pas au seigneur auquel il n'avait pas ^t^ sp^ciuleroent accord^. 

2. Ce di*oit, lorsquMl avait ^l^ accord^ an seigneur, n'^tait pas 
sous-inf(^od^ sans concession exprosse et sp^ciale ; et le seigneur, 
auquel lo donne son titre, pent erapdcher le censitaire riverain, 
qui n'en a pas, de tendre une p§che sur la grdve dii St. Lani'ent 4 
laquelle sa torro aboutit. — Fraser et aL db Fraser et al,, Quebec, 
Lacoste, J. C, Baby, Blanchet, Hall, Wurtele, JJ., 4 avril, 1893. 



Community — Continuation of— Art, 1323, C C. 

A community of property existed between husband and wife. 
There was one child, issue of the marriage. The husband dying, 
the surviving consort failed to have an inventory made of the 
common property, and (the child being then a minor) the sur- 
viving consort married a second time without marriage contract. 

Held: — ^In the absence of any demand on the part of the minor 
for continuation of community, a tripartite community did not 
exist between the surviving consort, her second husband, and the 
child by the first marriage ; and an option for continuation made 
by the child 45 years after the dissolution of the firat community 
had no effect. 

2. Where the consort commun en Mens who dies first has be- 
queathed all his property to a person or persons other than his 
children, the latter, being without interest, are not entitled to 
demand that an inventory be made, and default to make it can- 
not create any right in their favor. — Pearson & Spooner, 
Montreal, Lacoste, C.J., Baby, Boss^, Blanchet, Hall, JJ., Sep- 
tember 26, 1892. 



THE LEGAL NEWS. 171 

Expropriation — Award of arbitrators — When interfered with 

by the court. 
Held: — ^In the matter of a rbilway expropriation, an award of 
arbitratorri who have had the advantage of viewing and examin- 
ing the property taken and also the property affected by the 
constraction of the railway, should only be altered by the court 
when it is shown that the arbitrators were influenced by im- 
proper motives, or when the evidence clearly and conclusively 
establishes that they erred in fixing an amount undoubtedly too 
high or undoubtedly too low. — Compagnie du chanin defer de Mont- 
treat d: Ottawa, ds Bertrand, Montreal, Sir A. Lacoste, C. J., Boss^, 
Blanchet, Hall and Wurtele, JJ., April 26, 1893. 



Expropriation — Award — Interference with. 
Held : — In casesi of expi-opriation, where the arbitrators or 
commissioners are experienced in the valuation of real estate, 
and where in addition to hearing the pinion of the expert wit- 
nesses pi*oduced they have had the advantage of examining the 
pi*operty to be taken, the court, before making an increase or 
reduction of the award, will require either proof of improper 
motives on their part, or evidence showing conclusively that an 
error has been committed in fixing the amount of the compensa- 
tion. — La Compagnie du chemin de fer de Montreal ds Ottawa & 
Castonguay, Montreal, Lacoste, C.J., fioss^, Blanchet, Half and 
Wurtele, JJ., April 26, 1893. 



Conditions au dos de police — Courte prescription — (7. C 2184. 

Juge: — ^11 n'est pas n^cessaire que Tassur^ accepte ou signe les 
conditions qui se trouvent au dos de la police, lorsque cette der- 
nidt e contient une clause disant que ces conditions forment partie 
du contrat ; et si Tassur^, apr^s avoir i*eyu ce contrat, ne le r^pu- 
die pas, mais, au coutraire, en fait la base d'une action pour r^ 
clamer le montant qu'il couvre, it ne pent pas objecter ^ uce 
partie de Tinstrument et se servir de Tautre. 

La clause dans une police d'assurance que toute poursuite doit 
§tre intentde dans les trois mois du sinistre ou du rejet de la re- 
clamation, est licite, et ne viole pas les dispositions de I'art. 2184, 
C. C, qui defend de renoncer d*avance & une prescription non 
acquise. — Simpson & Caledonian Insurance Co., Quebec, Sir 
A. Lacoste, J. C, Baby, Boss^, Blanchet, Wui*tele, JJ., 10 Janvier 
1893. 



172 THE LEGAL NEWS. 

Bomage — Surveyor's line — Township lin^. 

The plaintiff's title gave him a lot of land in the township of 
Upton, and the defendant's title gave him one in the contignons 
township of Grantham. Both titles were posterior to the verifi- 
cation of the township line by a government surveyor, and to a 
statute confirming the line surveyed and marked out by him, 
and in each title the rear boundary (where the lots adjoined) was 
stated to be the township line. 

Held, that, in the absence of any right acquired by either of 
the parties by prescription beyond the township line, that line 
must be their boundary, without regard to measurements given 
in the titles. — Buguay & Vincent^ Quebec, Baby, Boss^, 
Blanchet, Hall, Wurtele, JJ., April 4, 1893. 



SUPERIOR COURT ABSTRACT. 

Procidure — Piece essentielle. 

Juge : — Du moment qu'di sa face ro§me une pi^ce essentielle aa 
soutien d'une cause n'appert avoir ^1^ produite qu'apr^s que la 
cause a 6t6 plaid^e, Taction — sur Revision,— doit Stre ■i'envoy^e 
sans reserve du droit de la i*ecommencer; et ce, alors mdme qu'il 
n'a M fait aucune demande pour faire mettre ce document hors 
du dossier, et que le jugement de premiere instance constate quo 
le juge qui I'a rendu s'est appuy^ sur la dite pi^co pour le rendi*o. 
^Corporation de St. Henri v. Gagnon^ C. R., Quebec, Routhier, 
Caron, et Andrews, JJ., 28 f<Svrier, 1893. 



Siduction — Dommages — Patemite — Aliments — C C. 241- -Prcs- 

cription-^C, C. 2261. 

Jugi : — ^L'action en declaration de paternity et pour des ali- 
ments estun droit ezclusif de I'enfant, qui no pent pas 6tre exerc^ 
par la m^re ni par le tuteur nomm^ a la m^re mineure, les droits 
de la mere n'^tant qu*aux dommages que lui a caus^ la adduc- 
tion. 

L'enfant naturel ne peut faire condamner & lui fournir des ali- 
ments Tauteur rdel ou suppose de la grossesse de sa mdre, qu'en 
le faisant declarer son p^re. 

Kingsborough dh Pownd^ 4 Q. L. R. 11 ; Bilodeau v. Tremblay, 3 
R. L. 445 ; Giroux v. Herbert, 5 R. L. 638, critiqudes. 



THE LEGAL NEWS. 178 

La fille sMaite n'a pas d^action en dommages avant son enfante- 
ment, et par consdquent la prescription de deax ans (C. C. 2261) 
ne commence k coorir qae de ce moment. 

La fille devenne m^re n'a de recoars en dommages contre son 
pr^tenda sMucteur que lorsqu'elle n'ax^^ qn'k une promesse de 
manage actnelle on pr^nm^e ; lorsque (comme dans Tesp^ce) 
Tapp&t de sa faate n*a pas ^t^ Tespoir d'un mariage, mais celni 
d'^happer & la grossesse, elle n'a pas d'action en dommages. — 
Mullin es qualite v. Bogie, C. R, Quebec, Casault, Caron, Andrews, 
JJ., 31 Janvier, 1893. 



Promissory note — Prescription — Interruption. 

Held: — A judgment obtained against the maker and first en- 
dorser of a promissory note interrupts prescription as against the 
other endorsei*8. — Thibaudeau v. Pauze^ S. C, Monti*ea], David- 
son, J., March 15, 1892. 



Locateur et locataire — RisiUation J'tin hail — Competence, 

Jagi^ que quand lademande de r^siliation d'un bail est intent^e 
au milieu du terroe de location, la competence du ti*ibunal se 
rdgle d'aprds la somme qui repr^sente, k ce moment, I'int^rdt des 
parties.— TAiWr^e v. Moineau, C. S., Montreal, Jett^, J., 2 avril 
1892. 



Action paulienne — ^omplicite du tiers acquereur — Firaude — Saisis- 
sabilite cPun montant adjugi pour libelle — Articles 1038 C, C, 
et 558 a P.O. 

Juge, 1. Que pour faire maintenir Paction paulienne contre nn 
tiers acquereur, par contrat ii titre on^roux, il faut all^guer et 
prouver la complicity de ce tiei-s-acqu^reur en la frande commise. 

2. Que le d^biteur, m^me ineolvable, conserve la libre disposi- 
tion de ses biens, et que rali^nation qu'il en fait de bonne foi et 
sans fraudo est valable m§me 4 I'encontre de ses crdanciers. 

3. Que'le montant adjugi pour libelle est saisissable (Archam- 
bault dh LaUmde, M. L. R., 3 Q. B. 486).— 2)e«ro5i«r5 v. Meilleur et 
al, <& Wurtele (mis en cause), C. S., Monti-dal, Jett^, J., 12 mars 
1892. 



174 THE LKGAL NKWS. 

Saisies cancurrentes^Art, 642, C P. C7. 

JugS : — Qae loi'sque plnsieurs brefa de Balsie, contre le mSmo 
d^biteur, soat remis aa sberif en mdme temps, il doit proc^- 
der d*abord sur le premier en date, ot B'ila sont tons do m6me 
date, il doit proc^er sur ,celui qai se trouve pour la somme la 
plus ^levee. — La Banque NatUmale v. Aubertin, & Aubertin, C. S., 
Montreal, Jett^, J., 2 avril, 1892. 



Transport (fun droit Utigieux—Hiussier-' Articles i486, 1583 C, C. 

Juge: — Qu'une convention en vortu de laqaello le d^fendenr 
R'^tait engage & paj^er la Hommo de $500 si un tableau attribu^ au 
Corr^ge, dont il avait acquis la propri^t^ pour un tiers, ^tait 
pronv^ antbentique, cr^e una crdance d*une natui*e litigteuse, et 
que Tacqutsition de cette creance par le demandeur, buissier de 
la cour sup^rieure, ^tait nulle. — Reed v. Helbronner^ C. S., Mont- 
real, Matbieu, J., 9 mai, 1892. 



Corporation mumcipale — Ruelle privie — Besponsabiliti. 

Juge : — Qu'une corporation municipale qui a permis au public 
de se servir d'une ruelle privde et j a construit un ^gout et nu- 
mdrotd las maisons qui s'y trouvaieut, est responsable d'un acci- 
dent arrive par suite du d^faut d'antratien du ti*ottoir de cette 
ruelle. — GiUigan et vir v. La citi de Maatrial^ C. S., Montreal^ 
Loranger, J., 5 mara, 1892. 



Occupation avec permission du proprietaire — CongS — Art. 1608, C, U, 

JugS : — Que le contrat on vertu duquel un proprietaire permet 
k une peraonne d*occupar un immeuble & cbarge d'ezercer una 
surveillance sur cet immeuble, d'administrer les moulins qui s'y 
trouvent et de pensionner et loger ce proprietaire et sa fiimille 
de temps k autre, oonstitua un contrat innome qui se rapprocbe 
plus du bail que de tout autre contrat, etqua les' regies du louage 
s'y appliquent. 

Que dans ces circonstances, Toccupant a droit & un conge de 
trois mois avant de pouvoir §tre ezpulse de cette propriete. — 
Brunei v. Berthiaume, C. S., Montreal, Jette, J., 23 avril, 1892. 



THE LEGAL NEWS. 175 

Oppasiticn — Frais. 

Jugi : — Qae le crtoicier qai saisit imprudemment des biens 
qni appartiennent 4 un tiers, sera, mal^ sa bonne foi, condamn^ 
^ payer les frais de Topposition faite par ce dernier. — McNamara 
▼. Gauthier, dh Carley opposant, C. S., Montreal, Jett^, J., 21 
mars, 1892. 



Quo tDarrant(h^MarguiUierf eleetion de — Enregistrement des votes — 

Inscription en faux — Dipdt en revision. 

Juge : — 1. Lorsqa'a une Election do marguillier, Tenregistre- 
ment des votes est demand^ par deux ou plasieurs ^lecteurs, le 
cur6 qui preside Tassembl^ doit j proc^er mdme si ia chose n'a 
jamais ^t^ faite dans la paroisse, et s'il a toajoars ^t^ d 'usage d'y 
constater la majority en divisant Tassemblde en deax partis ; le 
pr^ident de rnssembl^e doit ainsi enregistrer les votes m§me si 
la demande n'en est faite qu'api ^ quo Ton a divis^ I'assemblde, 
mais avant que le president ait proclame aacun candidat ; et s'il 
n'enregisti*e pas les votes lorsque la demande laien est ainsi faite, 
r^lection est nolle. 

2. Une Election nulle poar cette cause ne pent Stre ensuite va- 
lid^e k une assemble snbs^uente qui refuse d'accepter la demis- 
sion du candidat ainsi ^lu ill^galement, et I'^lection doit tombor 
ou §tre maintenue sur son propre m^rite d'apr^s ce qui s'est pass^ 
k Tassembl^e k laquelle elle a eu lieu d'abord. 

3. On ne pent prouver par t^moins, et sans le pr^liminaire 
d'une inscription en faux, contre ou outre le contenu du r^gistre 
do deliberations d'une fabrique. 

4. Un soul dep6t en revision suffit, mdme lorsque la revision 
porte et sur le merite de la cause et sur une inscription en faux, 
snrtout si les deux contestations ont M reunies en premidi*e in- 
stance. — Thampoux V. ParadiSt C. B., Quebec, Casault, Bouthier, 
Caron, J J., 30 septembre, 1890 



Vente d'immeuhles par femme siparee, sans autorisation — Action en 
declaration denulliti par mart — Inti'^Hneetactuel — C. C 183. 

Juge : — Le mari separe de corps n'a pas d'action pour faij'e 
prononcer la nullite de la vente faite par sa femme, sans son au- 
torisation ou celle de la justice, d'un immeuble qui lui appartient. 
s'il n'a pas un inter§t ne et actuel. 



176 THE LSOAL NEWS. 

L'int^rdt n4 et actael de Tarticle 183 da code civil est an in- 
t^rdt pdcaDiaii:e imm^iat. Tin simple int^r§t moral, comme 
celal de faire respecter son aatorit^ maritale, on an ini6i*6t 
p^cuniaire ^ventuol, comme celai r&altant da danger qae sa 
femme revienne plas taixl r^Iamer de lai une pension alimentaire, 
n'est pas on int^i*dt saffisant aax termes de Tart. 183. — LeUmmeau 
V. Blouin et al,C. S., Qa^beo, Andrews, J., 21 novembre 1892. 



Pledge-^Abuse of~C. C, 1 91^— Conditional obligations^. C. 1084. 

Held : ] . The pledgee who applies to his own oses a sum of 
money pledged as security for the payment of a note, is guilty 
of an abuse of the pledge, within the meaning of article 1975 G. 
C, sufficient to jastify the pledgor in demanding repayment of 
such money with interest. 

2. Where the return of money pledged as security for the pay- 
ment of a note is conditioned upon the collection by the pledgee 
of the amount of such note, the fact that he has been himself the 
means of preventing the collection of the note, (as by releasing 
one of the parties thereto, the othera being insolvent,) will make 
the conditional obligation (to return the money) absolute. — 
Pacaud v. La Banque du PeuplCy S. C, Quebec, Andrews, J., 17 
January, 1893. 



» ^^ ^^ 

Intervention — Lien de droit — Defense en droit — Exciper du 

droit d'autrvi. 

Jugi : — Le d^fendeur en garantie, qui se porte aussi interve- 
nant dans I'instance principale, a int^i*6t et droit de rester en 
cause et faire decider du m^rite de son intervention, mdme api*^ 
le renvoi de Taction en garantie. 

Le propri^taire riverain qui, en vertu de Facte d'incorporation 
de la cit^ de Quebec, est seul responsable de Tentretien du tt-ot^ 
toir devant sa propridt^, a int^r§t 4 intervonir dans une action 
port^e centre la citd pour des dommages causes par le mauvaid 
^tat de tel ti*ottoir, et n'excipe pasdu droit d'autrui on soalevant, 
par defense en droit, le manque de lien de droit eutre le deman- 
deur et la cit^. — Seguin v. Cite de Quebec, ct Drown, intervenant, 
C. S., Quebec, Routhier, J., 14 fiSvrier 1893. 



THB LEGAL NEWS. 177 

Dammages^Libelle dans un plaidoyer — Allegation de frauds — 

Bonne foi — Cause probable, 

Juge: — Un plaidoyer contenant ano accusation de frande peat 
former la base d'uno action en dommages pour Hbelle, si tel plai- 
doyer, quoiquo pertinent & Tissu, est produit avoc malice et in- 
tention de nuire. 11 en est uutrement d'un plaidoyer fait de 
bonne foi et oii la partie avait cause probable pour sa croyance 
que Tacte attaqa^ ^tait i*^ellement frauduleuz. — Matte v. Batte^ 
C. S., Quebec, Bouthier, J., U fdvrier 1893. 



Citi de Montreal — Licences de charretier — Non residents — 

Mandamus. 

Jut/e: — Qu'aux tcrmos de ses r^gloments actucllement en force 
et de sa charle, la cit^ de Montreal est tenue, sur paicment des 
droits fix^Sy d'accorder, tunt que les cadres ne sont pas I'emplis, 
des licences de charretiers aux non r^idents, comme & cenx qui 
sont domicilies dans les limites da la cit^. 

Qu'au cas dn refus d'octroyer telle licence, on pent se pour voir 
contro la cit^ par voie de mandamus pour la forcer d'accorder la 
licence demand^e. — Parmt v. La cite de Montreal, C.S., Montrtol, 
Gill, J., 1 juin 1892. 



Locateur et locataire — Dommages — Articles 1614, 1627 C, C. 

Juge: — Que bien que le locateur soit garant envers le locataire 
de tous les vices do la chose loude qui en emp^chent ou diminuent 
I'osage, soit que le locateur les connaisse on non, cela s'entend de 
la diminution du loyer ou de la r^siliation du bail, tnais que le 
locateur ne doit de dommages au locataire que lorsqu'il .connais- 
sait le vice de la chose lou^o. — Juteau et al. v. Magor, C.S., Mont- 
real, Pagnuelo, J., 19 avril 1892. 



Droit municipal — Cour de Commissaires — Recouorement de sommes 
imposeespour traoaux — Articles 398 et 1042 CM, 

Juge : — Que la cour des commissaires n*a pas juridiction pour le 
recouvrement de sommes pour travaux ox^cutds par Tinspecteur 
de voirie. — GautMer v. La Corporation de la Paroisse de Ste. 
Marthe, C.S., Montreal, Jett^, J., 14 juin 1892. 



178 THB LEGAL NEWS. 

PriviUge du locatewr — Pennonnaire-^Art. 1622 C (7. 

Jugi: — Qa'ane personnc qui pensionne ohez lo locataire d*ane 
maison et qui a notifi^ le locatenr de cotte inaisoD qa'il ^tait pro- 
pri^taire de certains effets qai la garniBsaient, peat faire distraire 
ces effets de la saisie-gagerie pmtiqa^e par le looatenr, ces cffets 
^tant ceoB^d ii*dtre sar les lieuz qa'en paasant, aux termes de 
Tart. 1622 C. G.— Clarke v. J. State, k W. State^ intervenant, G. 
S., Montreal, Tasobereau, J., 17 jaia 1892. 



CUSTODY OF CHILDREN— THE GOSSAQE AND 

QYNGALL CASES. 

Of the numerotis disputoB in which Dr. Barnardo has been en- 
gaged with the relations of children admitted into bis asylam, 
Gossago's is the most important from a lawyer's point of view. 
In that case the House of Loixls decided (61 Law J Bep. Q. B. 
728) that where u person charged with unlawfully detaining a 
child has absolutely ceased to have any conti-ol over it, a writ of 
haJbtas corpus ought not to issue, even though he gave up the 
child from the apprehension that by retaining it he might become 
liable to a writ. In so deciding, the House of Loixis overruled 
the decision of the Court of Appeal in Tye's case (^Hegina v. Bar- 
nardOj 58 Law J. Hep. Q. fi. 553), that it is no excuse for non- 
compliance with the writ that the defendant has wrongfully 
banded over the child to another, and that under such circum- 
staneos an attachment must issue for disobedience to the writ. 
The House of Lotxis said, however, that a mere colourable traus 
fer of the child to a person acting under the direction of the de- 
fendant will hot avail the latter. Furthermore, anyone parting 
with the possession of a child after being served with the process 
of the Court, and, perhaps, even after receiving notice that pro- 
ceed! ngs will be taken, is guilty of contempt. The case came 
again before a Divisional Court lust week for further investiga- 
tion of the facts. Lt appeared that the b jy Gossago, having been 
found destitute, was sent to Dr. fiarnarJo's Homo. Afterwui^s 
the mother of the lad demanded to have him given up to be 
placed in a Boman Catholic insuiution. Dr. Barnardo thereupon 
handed him over to a stranger, to be adopted by the latter and 
taken to Canada, but made no enquiries about the identity or the 
circumstances of this person. The Court thought that Di\ Bar- 



THE LEGAL NEWS. 179 

nardo had acted thus in order that all traces of the boy might be 
lost, and they came to the condasion that Dr. Barnardo did, in 
fact, not know where the boy was. They therefore held, in ac- 
cordance with the decision of the House of Loi-ds, that the return 
to the writ was sufficient. When one considers the length of 
time that this case has bpen before the Courts, one must regret 
that (as the House of Lords ruled) an appeal lies against an order 
for the issue of a writ of habeas corpus. The writ was issued on 
November 23, 1889, the matter came before the Court of Appeal 
in 1890, and was only disposed of by the House of Loixis in July, 
1892. Such a delay may sometimes defeat the purpose for which 
the writ has been obtained, and ought tp bo impossible. 

Another important case relating to the custody of a child was 
disposed of last week by the Court of Appeal. In Regina v. 
QyngaU the mother of a girl, aged fifteen, sought to compel a 
schoolmistress, who was training the child to be a schoolmistress, 
to give her up, against the child's wish. The mother, who was a 
lady's maid, and when out of employment a dressmaker, had been 
obliged, in earning her livelihood, to move about from one place 
or country to another, and, through no fault of her own, had 
been unable to bring up the girl personally. The case did not 
fall within the Custody of Children Act, 1891, for the mother had 
not abandoned nor deserted the child, nor proved herself un- 
mindful of her parental duties. On her behalf it was contended 
that a parent is absolutely entitled to the custody and guai-dian- 
ship of his or her children, unless this right U forfeited by mis- 
conduct, and the Court allowed (hut this right exists at common 
law, though it is subject to certain statutory limitations ; but 
they said, further, that the Court of Chancery had from time im- 
memorial exei*cised a parental jurisdiction, by virtue of which, 
even without any misconduct on the part of the parent, the rights 
of the latter are superseded, when in the opinion of the C^urt 
this is essential for the welfare of thechild. This being the case 
of an intelligent girl, who in another year would bo in a position 
to earn her living and choose where she would live, the Court 
thought that it would be almost cruel to take her away from 
her present sniroundings, especially as the mother would be 
obliged to place her with strangers. Therefore they affirmed the 
oi-der of a Divisional Court discharging the writ, on the respon- 
dent giving an undertaking to educate and maintain the girl. — 
Law Journal {London). 



180 THE LEGAL NEWS. 

EDITOR AND CONTRIBUTOR. 

In Macdanald v. The National Review^ his Honour Judge Lum* 
ley Smith (of the Westminster County Court) pronounced a de- 
cision which, if upheld on appeal, will materially, and as we 
think injuriously, affect the relations of editors and their con- 
tributors. The facts ai*e theno The plaintiff, Mr. W. A. Kac- 
donald, a Canadian journalist, sought to recover from the pro- 
prietors of The National Review the price of an article which he 
had written and submitted to the editor's consideration, ex propria 
motUi and which had been set up in type, sent to him for correc- 
tion, and returned revised. The arlicle was not published within 
what Mr. Macdonald deemed "a reasonable time;" he complained 
of its non-appearance, and got back the manuscript, with an im- 
plied refusal to insert it, by return of podt. The plaintiff con- 
tended that by putting his manuscript in type and sending him 
a proof for revision the editor had in law "accepted** his article, 
and was bound to publish or pay for it within a reasonable time. 
The defendants, on the other hand, maintained, and adduced 
what appears to us to have been strong evidence to prove, that 
this position was, according to journalistic custom, untenable. 
But his Ilonour Judge Lumlcy Smith agreed with the plaintitf, 
and held that to print a manuscript and (presumably) send the 
author a proof for correction is to exercise over it the donUmum 
which constitutes an acceptance in law. We are far from sa6i.s- 
fied that the judgment in this case is sound. The question at 
issue was one of custom, and his Honour's decision seems to us to 
have been against the weight of evidence. But if the learned 
judge is right, and if an article, ultroneously written and sent to 
a journal, is accepted whenever the editor puts it in type, and 
must be published or paid for within what a Court of law not 
endowed with journalistic instincts or guided by journalistic ex- 
perience considers a i-easonable time, we can only say that the 
difficulty which the free-lance or *'outside" contributor at present 
finds in penetrating the charmed circle of journalistic success' 
will be tenfold increased. It is stated that action in the case of 
Macdonald v. The National Review was taken at the instance of the 
Society of Authors. We doubt whether that excellent body has 
gained anything better than a Pyrrhic victory, in which the con- 
querors will ultimately lose more than the vanquished defendant. 
— Law Journal (Jjondan), 



THE 



LBGAL NBWS. 



VOL. XVI. JUNE 15, 1893. Na 12. 



CURRENT TOPICS AND CASES. 

Baron Courcel, the president of the Behring Sea Arbitra- 
tion, has not been sparing of compliments to the counsel 
who addressed the court. So eulogistic were his expres- 
sions to the United States counsel (as reported by cable) 
that it seemed as if words would fail him when the turn 
of the opposing counsel came. But the president, as 
reported, referred also in the highest terms to the rhetori- 
cal power of Attorney-General RusselPs ten days' speech, 
and at the close of Sir Richard Webster's address he de- 
clared that the court was deeply indebted to him for the 
elaborate study he had made of the case, and expressed 
his admiration of '^ the unrestricted and friendly 
cooperation of yesterday's attorney-general with to-day's 
attorney-general," adding that the country was indeed to 
be envied " where party spirit admits of such cordial 
brotherly association of political rivals when the national 
interest is at stake," — which seems to travel a little out- 
side of the spe.cial duty assigned to Baron Oourcel. 



In Mitchell v. Bradslreet Co., the Supreme Court of Mis- 
souri held. May 2, 1893, that a false publication by a 
commercial agency as to the solvency of a business firm 
is not privileged where the publication sheet is issued 
to all the subscribers of the agency without regard to 
their being creditors of the firm. 



182 THE LEGAL NEWS. 

• 

In Baltimore Sf Ohio R. Co. v. Baugh, the Supreme Court 
of the United States held, April 24, 1893, that a railroad 
company is not responsible for a personal injury to one 
of its firemen caused by the negligence of its locomotive 
engineer. 



At the Lord Mayor's banquet in London, on June 7, 
the Lord Chancellor, in reponse to the toast of " Her 
Majesty's Judges,'' rule red to some of the complaints 
which are commonly urged against the administration of 
the law, and the possibility of applying a remedy. The 
judges, he said, were alive to the fact that they could 
only discharge their functions so long as they deserved 
and enjoyed the confidence of their fellow-countrymen. 
There were none more conscious than the judges that the 
law and its administration were not all that could be 
desired. He wished on that occasion — as filling practi- 
cally the position of Minister of Justice — to recognise the 
co-operation of the Bench in his endeavours to improve 
the administration of the law. The judges had sacrificed 
no small amount of time and labour to pointing out the 
defects of the system. The remedy was, unhappily, less 
visible than the disease. There were two points to be 
kept in view — expense, which was to be strenuously 
avoided, and expedition, which was no less earnestly to 
be sought. But it was difficult to apply the remedy. 
Each class was keen to see the defects of the other, but 
the different classes were not so ready to recognise evils 
in which they were personally interested. It was said 
that the expense of litigation largely consisted in the fees 
of counsel. But the remedy was easy. There were abun- 
dance of counsel who would do the work cheaply. But 
the people insisted on particular counsel, and if they 
indulge in luxury they must expect to pay for it. If peo- 
ple complained of the dearness of champagne, let them 
drink bottled beer or cheap champagne. A great picture 
by an English artist had recently been sold for many 



THE LEGAL NEWS. 183 

thousands of pounds. The same canvas might have been 
brilliantly covered for as many thousand pence. Thus 
the remedy for this evil was ready i^t hand. If men were 
not content with this advice, he would say, ' Don't go to 
law.' At the same time he was desirous that every need- 
less step in litigation should be abolished. It was in that 
direction that the judges were working. In late years 
expedition had been achieved to a very large extent. He 
remembered in his early days when one had to wait a 
year for a trial in Middlesex, and two or three years for an 
appeal to the House of Lords. Now they were hearing 
appeals in the House of Lords which were set down only 
two or three mouths ago ; and there were no arrears in 
the Privy Council or the Court of Appeal, which was 
hearing appeals from decisions pronounced only three or 
four weeks ago. The solicitor-general added that he was 
firmly convinced, whatever was done to simplify the law, 
that it would never be a cheap luxury for the litigant. 
It would always be expounded at the expense of litigants 
for the benefit of those who were not litigants. A good 
deal of English litigation was due, not to a love of justice, 
but to the sporting instincts of the people, who loved to 
fight their battles out rather than adjust their differences. 



r 

Mr. F. K. Munton, in a lecture delivered in London, on 
** bogus concerns/' commenced by explaining what he 
meant by the term. Although the word "bogus " might 
sound unparliamentary, a little research had satisfied him 
that it was not inappropriate, as he found the origin of 
the term to be as follows : — Early in the present century 
a person named Borghese was convicted in America of a 
series of robberies founded on the issue of bills of exchange 
either in counterfeit names, or payable at imaginary banks, 
and the extraordinary success which attended these frauds 
before their exposure gave rise to the popular description 
of any counterfeit transaction as a " Borghese " one, the 
word being corrupted by easy transition to ** borgus," and 
ultimately into " bogus." 



184 THE LEGAL NEWS. 

The birthday honours conferred this year inclnde that 
of Knight Bachelor to Chief Justice Strong, the newly 
appointed chief justice of the Supreme Court of Canada. 
The same honour has been conferred on Mr. John Madden, 
Chief Justice of the Supreme Court of the colony of Vic- 
toria, and on Mr. Henry Bias, ex-puisne judge of the 
Supreme Court of the Island of Ceylon. Four English 
solicitors have been knighted, one member of the bar gets 
a peerage, and another a baronetcy. 



The Quebec Statutes of 1893, 56 Victoria, have been 
issued, and comprise 101 chapters, making a total of 419 
pages. A good deal of space is occupied with consolida- 
tions of town charters. Ihe city of Hull has a consolida- 
tion Act of 540 sections, covering 94 pages. The city of 
Ste. Cunegonde follows with an amendment Act of 47 
sections, filling 17 pages. The town of Cote St. Antoine 
has a consolidation Act of 135 sections, occupying 25 
pages. The town of Longueuil has an amendment Act 
which covers 45 pages. Among other Acts of interest are 
cap. 42, which requires an appeal from an interlocutory 
judgment to be first allowed by one of the judges of the 
Court, upon a summary petition ; and chap. 38 reduces 
the number of juridical holidays. 



COURT OF APPEAL AB STB ACT, 

Compagnie projetdfs — Mandat — ResponsahiUti — AvocaL 

Jugd: — Qae do8 individas qui permettont que Ton se serve do 
leurs noma comme directeurs provisoiros d'uDe compaguie proje- 
t6o, aux fins d*obtenir du parloment ud acte constituaDt cette 
compagnio en corp )ration, et qui signent les requites 4 cot effet, 
sent responsablos da paioraent des bonoraires du procureur reter.u 
par le promo teur do cctto corapagnie. — Augi et al., & ComelUer 
et aL, Monlrdal, Baby, Bo.>58e, Blanchet et Hall, JJ., 26 novembro 
1892. 



THE LEGAL NEWS. 185 

Droit municipal — Appel. 

Juge : — Qa'il n*y a pas d'appel da jugement de la cour de circait 
cassant une I'esolution d'an conseil municipal pour la nomination 
d'un consoiller. — La Corporation de St. Mathias dh Lussier^ Mont- 
real, LacoBte, J. C, Baby, Bosb^, Hall et Wartole, J J., 26 septem- 
bre 1892. 



Expropriation — Just indemnity — Country residence. 

Held: 1. Where part of a property occapied as a country 
rosidence is expropriated for railway purposes and its value as a 
country residence is thereby greatly diminished, the true test in 
estimating the indemnity to which the owner is entitled is, what 
was the commercial value of the property as an attractive coun- 
try i-esidence at the time of the expropriation, and what was the 
depreciation in the marketable value by reason of the expropria- 
tion of the strip of land by the railway company, and the intended 
working of its train service across it. 

2. While the court has the right, under the Dominion Railway 
Act, to reconsider the evidence of value, and to vary the decision 
of the arbitrators or a majority of them, this power was intended 
only as a check upon possible fraud, accidental error, or gross 
incompetence, and should never be exercised unless in correction 
of an awai*d which carries upon its face unmistakeable evidence 
of serious injustice. — Canada Atlantic Railway Co, d? Norris, Mon- 
ti*eal. Sir A. Lacoste, C. J., Baby, Boss^, Hall and Wurtele, JJ., 
December 23, 1892. 



Expropriation — City of Montreal — Just indemnity — Costs of witnesses 

and advocates — Art. 407, C, C. 

Held : That in expropriation proceedings under the charter of 
the city of Montreal, the production of witnesses and the retain- 
ing of counsel before the commissioner being a necessary proceed- 
ing by the expropriated party, the expenses of such witnesses 
and counsel form part of the just indemnity to which he is entitled 
under art. 407, C. C, and should be added by the commis8ionei*8 
to the price of the property taken. — Sentenne et al. <& La Cite de 
Montrialy Montreal, Sir A. Lacoste, C. J., Baby, Boss^, Hall and 
Wurtele, J J., February 28, 1893. 



186 THE LEGAL NEWS. 

Testament olographe — Mots ecriis cCunemain iirangere — NtdUti — 

Articles 850, 855 0.0. 

• 

En 1875, une dame Metzler fit venir d'Ottawa an de sea nevenx, 
le nomm^ John Jessie Beeves, qui domeura avec elle et en eat 
soin jasqu*!)^ sa mort, arriv^e en 1878. Avant cela, en 1868, Mme. 
Metzler avait fait an testament devant notaires en favear du dit 
John Jessie Beeves et de deux autres de ses neveux. Apr^s sa 
mort, J. J. Beeves produisit au greffe et fit pronver comme testa- 
ment olographe de Mme. Metzh^r, un dcrit sans date con9U tex- 
tuellement en ces termes : " Je donne k mon neveux John J. 
J. Beeves tou se quo je poH^de pour avoire hu soin de moi. (sign^ 
M. E. Y. B. Metzler." Dans la deposition qu'il fit, aux fins de la 
verification de ce testament, John Jessie Beeves afiirma que tout 
cet ecrit etait de Tecriture de la tostatrice. II fut cependant 
prouve que les mots '' John J. Beeves " avaient 616 ajout^s par 
une main etrang^re, mais tout le reste du testament etaii de V6' 
criture de Mme. Metzler. 

Jug6 : (infirmant le jugement de la cour de premidre instance, 
Baby et Boss^, JJ., dissentient ibus)^ que le testament olographe 
en question n'^tant pas en en tier de Tdcriture de la testatrice, les 
mots " John J. Beeves " ayant 6\6 ajout^s par une main etrangdre, 
le dit testament dtait nul, et que le testament devant notaires do 
1868 seul etait en vigueur. — Reeves dh Oameron et vir^ Montreal, 
Lacoste, J. C, Baby, Boss^,- Blanchet et Wurtele, JJ., 25 mars 
1893. 



ABSTRACT OF CRO WN OASES. 
Ocmmitment — Erreur — Vagabondage — " Night-walker.'' 

Juge: — 1. Qu*il est perm is de corriger une eri*eur dans une 
commitment, — dans Tesp^ce, Tabsence de date, — par la production 
d'une copie r^guli^re. 

2. Qu'une ofiense decrite comme suit : '' of being a loose, idle or 
" disorderly person or a vagrant within the meaning of the 
** statute, for that she, on the 23i*d day of March instant, at the 
'^ said city, being a night-walker, did unlawfully wander by night 
" between ten and eleven in the evening, in a public street of the 
*' said city, St Dominique street, and did not then and there 
" render a satisfactory account of herself when required to do so 
" by the constable Paul Hill, contrary to the statute in such case 



THE LEGAL NEWS. 18T 

^* made and provided/' satisfait aux exigences de la loi. — Ex parte 
Gagnon, Assises criminelles, Montreal, Hall et Wartele, JJ., 
mars 1893. 



Jury du Coroner — Plaidoyer cCautrefois acquit. 

Jugi : — Que le fait que le jury du coroner a rapports nn verdict 
de mort accidentclle dans i'affatro du prisonnier ne justifie pas nn 
plaidoyer d'autrefois acquit de la part de ce dernier. — La Eeine 
V. Begis LaheUe^ Assises Criminelles, Montreal, Sir A. Lacoste, J. 
C, juin 1892. 



Tribunal Stranger — Juridiction — Juge en cJiambre, 

Jugi : — Qu'un juge en charabre ne pent reviser, surune requ§te 
pour bref d'habeas corpus, la decision d'un tribunal stranger. — 
Exparte Lambert, requ^rant, Montreal, Hall et Wurtele, JJ., en 
chambre, 7 avi*il 1893. 



Droit criminel — Tentative dassauU 

Jugi : — Qu'un verdict de tentative d'assaut n'a rien d'irr^gulier. 
— Leblanc v. La Eeine, Monti*^al, Sir A. Lacoste, J. C, Boss^, 
BlanchetetHall, JJ., d^cembre 1892. 



SUPERIOR COURT ABSTRACT. 

Procedure — Inscription en rSvi^on par le rqnresentant de la partie 
dicidSe — Reprise d'instance — Portage — Art. *746, C. C. 

Jugi : Que le repr^sentant de la p^*tie d^cM^e a le droit d'in- 
scrire en revision sans au prdalable reprendre Tinstance. 

Que la vente par un co-propri^taire par indivis, k son co-pit)- 
pri^taire, de sa part indivise n'a pas les effets da pai*tage, et que 
partant Thypoth^ue consentie par le vendeur continue de grever 
la part vendue, malgrd cette vente.— Varin v. Guerin, C. K., 
Monti'^al, Jett^, Davidson et Pagnuelo, JJ., 31 Janvier 1893. 



Procidure — Preuve — Affaire commerciale — Timoignage de la partie — 

. Art. 251, C. P. a 

Jugi: 1. Qtt'un billet promissoire donnd par un cultivateur i)^ 
an autre cultlvateur, pour argent pr^t^, n'est pas une affaire com- 
merciale, et que la partie ne pent pas ^tre t^moin pour elle-m^me. 



188 THE LEGAL NEWS 

2. Qae la prenve da paiement faite par les deux d^fendears 
oomme t^moins I'un ponr Tantre, est insufisante si elle n^est coro- 
bor6e par une preuve ^trang^i'e. — Hamilton v. Perryy C. S., Mont- 
real, Pagnuelo, J., 2 ftvrier 1893. 



Capias — Personal indebtedness. 

Held: Where the action is by a partner praying for the disso- 
lution of the partnership and for the rendering of an account, the 
personal indebtedness in a sum amounting to or exceeding $40, 
which must be alleged in the affidavit for capias, cannot be con- 
sidered to exist until such account has been rendered and accepted 
or settled. — Phillips v. Kerr, S. C, Montreal, Wurtele, J., April 
2, 1892. 

Necessary deposit — Keeper of boarding-house— Negligence. 

Held : The keeper of a boai*ding-house who neglects to provide 
a lodger with a key to lock the room assigned to him is respon- 
sible for the value of effects stolen therefrom. — Falconer v. Pater- 
son, S. C, Monti*eal, Tait, J., April 29, 1892. 



Contract — Sale — Non-performance — Damages. 

Held : 1. Where a person has obtained a promise of sale of real 
estate, and, relying on that promise, has resold the property, he 
is entitled to recover from the vendor, by way of damages, the 
profit he would have derived from the resale, if the vendor refuses 
without valid grounds to execute a deed of sale to him. 

2. Where the pui*chaser of real estate was to make a cash pay- 
ment by accepted cheque, the fact that he did not at first appear 
at the office of the notary wiih the cheque accepted, but got it 
accepted by the bank the same day, was not a valid ground for 
the seller's refusal tj complete the sale. — Newman v. Kennedy^ 
S. C, Montreal, Gill, J., January 18, 1892. 



Droit eccUsiastique — Cwri — Avis d^action — Eefus des sacrements — 
SuppUment d la dime — Juridiction — Enregistrement des bap- 
times— Art. 22, C. P. C . 

Juge : Que le cure, poursuivi pour avoir refuse debaptiser Ten- 
fant du demandeur, n*a pas droit 4 un avis d'acLion aux termes 
de Particle 22 du C. P. C. 



Tine LEGAL NEWS. 189 

Qu'un demandear qui attache son hoooeur & la participation 
aux Bacrements, doit remplir les conditions impos^es par les lois 
et ordonnances dont il invoqne le b^n^fice. (II B'agiHsait dans 
Tespdce d'un supplement impost par oixlon nance ^piscopale.) 

Que si Tad ministration des sacrements est du ressort de Tauto- 
ritd eccl^siastiqne, la participation aux sacrements est un di*oit 
qui appartient H tous les membres de la communion oatholique et 
qui ne pent dtre soumis, dans son exercioe, a des conditions ou \ 
des exigences arbitraires ; que lorsqu*ii n'y a que le refus de sacre- 
mont, sans accompagnement d*injure articulde et personnelle, il 
n*y a lieu qu a Tappel simple dcvant Tautorit^ eccl^siastique com- 
p^tente, dans Tordre de la conscience et selon les regies et Tap- 
plication des canons, <^t que le pouvoir temporel ne deviont com- 
petent qu'autant que des injures, des outrages, TopyiresHion, le 
scandale se joignent ^ ce refus, lui donnent un caract^re qu'il n'a 
pas par lui-meme et font ^prouvor das dommages dans les biens 
et les droits civils. 

Que les cur^^, pr^trcs ou ministres desservant les ^glises, con- 
gregations ou societds religieuses autorisdes ii tenir les r6gi8tres 
de retat civil, ne sont tenus que d'enregistrer les baptdmes, etc., 
faits par eux, et qu*ils ne sont pas obliges d*enregistrer la nais* 
sance des onfants dont ils ne font pas le bapteme. — Davignon v. 
Rev. Messire C. Lesage^ C. S., Montreal, ToUier, J., 7 Janvier 1893. 



Procidure — Inscription de faux — Changement du jour du retour d'un 
href — Femme mariie autorisee par le juge — Designation de In 
demanderesse — Art, 49 C, P. G, 

Jagi : 1. Qu'il faut une inscription de faux pour pouvoir demon- 
.trer au tribunal que le bref d'assignation a ete alterd ou falsifie 
aprds son emanation. 

2. Que le jour du retour de bref pout Stre change, avant signi- 
fication, soit par le protonotaire lui-m^me, soit avec son assenti- 
ment. 

3. Que la femme maride, autorisee par un juge 4 ester en justice, 
au refus de son mari de I'autoriser, n^est pas tenu, au.x termes de 
Tarticle 49 C. P. C, de mentionner dans lo bref d'assignation la 
qualite ou Toccupation de son mari, lequel n'est pas en cause. — 

Vendette v. Bolduc dit Germain^ 0. S., Montreal, Taschereau, J., 
31 Janvier 1893. 



190 THE LEGAL NEWS. 

Droit tMmcipdL — Bisolution et riglement — Avis — Arts. 460, 475, 

489, 490, 493, 498, 0. M. 

JugS: 1. Qu'un conseil local peat utatuer la constraction d*iin 
canal d'aBsainisseroent par relation aossl bien que par rSgle- 
ment, mais que son entretien et la taxation voulue pour en 
defrayer le coiit doivent §tre d^termin^s par r^glement. 

2. Qu'un r^glement pent etre cousid^rd comme non avenu en 
ce qui concerne la construction de travaux ddj^ oixlonnds par 
Tautoritd compdtente, et maintenu quant ii la taxe qu'il Impose 
pour en payer le coiit. 

3. Que nul avis prdalable -X Tadoption d*un tel r^glement n'est 
requis, mais qu'il suffit que ce r^glement soit public en la manidre 
voulue par Tartide 693 C. M, — Archambault v. La Corporation de 
St. Francis d' Assize de la Longue Pointe^ C. C, Montreal, Loran- 
ger, J., 16 Janvier 1893. 



Voiturier — Paiement des frais de voiturage — Droit de retention — 

Art. 1679, a 0. 

Jugi : Que le voiturier ne pent rdclamer ses frais de voitui*age 
avant la livraison de tons les effets qu*il s^est engage de trans- 
porter. 

Que lorsque le voiturier a demands hos frais do transport avant 
d'avoir compldtd le voiturage des effets en question et qu*il n'a 
pas renouveld cette demand e depuis, en 6ffrant delivror ces effets, 
il ne pent opposer Hon droit de retention d. la saisie-revendicatioa 
du pi*opri6taire des eflbts. — Stout v. King^ S. C, Monti'dal, Loran- 
ger, J., 7 f(Svrier 1893. 



Sauvetage — Action par propriStaire seul — Exception a la forme. 

Jugi ;— Le propridtaire du vaisseau qui a opdrd le sauvetage he 
pent poursuivre en son nom seul que pour la part du dit sauve- 
tage qui lui serait due, et s'il n'all^gue pas en quoi consiste 
cette part, et ne fait pas connattre los noms et domiciles des autres 
intdressds, savoir le capitaine et I'dquipage, son action sera ren- 
voyde sur exception ^ la forme. — Chahot v. Quebec Steamship Co., 
C. S., Quebec, Bouthier, J., 30 ddcembre 1892. 



THB LBOAL NEWS. 191 

Vente — Clause de franc et quitte — Preuve iestimoniale. 



Jugi : — Qu'il incombe an vendear sons la clause de '' franc et 
quitte," qui reclame la balance du prix de vente, de faire voir 
qn'nne hypoth^ue qui parait ezister centre Timmeuble vendu a. 
^t^ r^ellement radi^, et qu'il ne remplit pas son obligation en 
produisant nne quittance enregisti'^e qui nientionne erron^ment 
une autre obligation et ne d^chargepas Timmeuble en question. 

Que dans ces circonstances le vendeur doit lui-m@me faire 
radim* Tinscription avant d'eziger la balance du prix de vente. 

Que la preuve testimoniale n'est pas admissible pour ddmontrer 
que malgr^ I'^nonciation erronde qu'elle renfermait, la quittance 
produite s'appliquo rdellement tl la cr^ance hypoth^caire dont 
Tacheteur so plaint. — Les cure et marguilUtrs de Vceuvre et fabri- 
que de Notre-Dame de Montrial v. Monarque et uxor, C. S., Mont- 
I'^^al, Taschereau, J., 17 novembre 1892. 



Bemande incidente^Bipdt pour la remsion — Frais—Arts. 151, 

497 a P. a 

Jugi : Que lorsqne le d^fendeur a fait une demande incidente 
qui d^conle de la mpme cause d'action que la demande principale, 
il n'y a lieu de faire qn'un seul d^pot en revision, bien que Tins- 
cription demande la revision du jugement rendu sur la demande 
principale et la demande incidente. — Mackay v. EvanSt S* ^-f 
Montreal, Davidson, J., 31 Janvier 1893. 



Mori et femme — Bequitepcur aliments — Becaurs au civil et au cri- 
minel — Mauvaise conduite de la requirante — Biponse en droit. 

Jugi: — Que le fait que la femme poursuivi en sdpai-ation de 
corps, qui demande, pendant Pinstance, une pension alimentaire 
a son mari, a d^jJL poursuivi ce dernier devant la cour criminelle 
pour refus de pourvoir ^ ses besoins, ne la prive pas da droit de 
demander une pension alimentaire devant le tribunal civil. 

Que des allegations de mauvaise conduite de la part de la 
requ^rante ne sent pas une r^ponse 4 une requdte pour aliment8, 
surtout lorsque la femme demande cette pension alimentaire tan t 
poar elle que pour Penfant n^ de son manage avec le d^fendeur. 
— Nunensynski v. Pilnik^ C. S., Montreal, Loranger, J., 8 f^vrier 
1893. 



192 THB LEGAL KEWS. 

Procidwre — Exception A la forme — DSsignation du demandeur — 

Art 49 a P. a 

Jug6: — Qu'un demandeur qui se d^signe comme ^'gentilhomme" 
«fta bref de sommation, se donne une qaalit^ safSsante an d^ir de 
la loi. — Stevens v. Biggins^ Loranger, J., C. S., Montreal, 8 fiSvrier 
1893. 



Imbiciliti^Dimence — Exception a la forme — C P. C. 116 — 

G C. 327, 987. 

Juge : — Une exception d. la forme 4 nne action prise par une 
peraonno internee dans un asile d'ali^n^^, mais non-interdite, ne 
doit pas etre renvoy^e sur r^ponse en droit, mais doit 6tre eonsi- 
d^rde comme une mise en demeure de la demanderesse de sefaire 
assister d*un curateur. — Herder v. Mercier, C. S., Quebec, Rou- 
thier, J., 5 mara 1892. 



Attachment by garnishment — C. C, P. 555, 614. 

Held: — The writ of saisie-arrH constitutes a new instance, and 
ought to be definite and complete in itself when issued. 

Article 614, C. C. P., which pix>yides that the writ must mention 
the amount of the judgment for the satisfaction of which it issues, 
is to bo construed as meaning the amount remaining unsatisfied 
on such judgment. 

Article 555 applie^i to the writ of fieri faciaSy and not to that of 
saisiearrity between which writs there is an essential difference. — 
Vezina v. Tousignant, df Paris, T. S., S. C, Quebec, Bouthier, 
Caron, Andrews, JJ., Feb. 28, 1893. 



Obligation a terme — Action before expiry of termyfor alleged diminu- 
tion of security— a C. 1092— a JV. 1188. 

Held : — ^The provisions of article 1092, C. C, which deprive the 
debtor of the benefit of delay in certain cases, are to be strictly 
construed, and a creditor seeking to enforce payment of a debt 
before maturity must formulate clearly and distinctly in his 
declaration the reasons upon which he bases his demand. 

As long as a debtor is not insolvent he has an absolute right to 
administer his estate and dispose of his asbcts, provided he does 
BO prudently and without fraud, and article 1092 has no applica- 
tion to such administration ; the security of which that ai*ticle 



THE LEGAL"^NEWS. 193 

forbids the diminution, meaning only securities specially given 
under contract. 

The maturity of a note during the pendency of an action 
prematurely bmught upon it, is no answer to the exception of 
the defendant that nuch note was not payable at the moment of 
the institution of the action. — Wark v. Perron^ S. C, Quebec, 
Routhier, Caron, Andrews, JJ., Feb. 28, 1893- 



Lessor and lessee — Damage by fire to premises leased — Dissolution of 

lease-- Arts. 1634, 1660, C. C. 

Premises leased for manufactuiing purposes were partially 
injured by a fire. The lessee visited the premises daily during* 
two or three weeks while repaii^s were in progress, and the repairs 
were fully completed about a month after the fire. The lessee 
did not protest for rosiliation of the lease until fourteen days 
after the fire. Heldy under these ci cumstancos, that the lessee 
was not entitled to obtain the dissolution of the lease, espe- 
cially as the legal presumption was that the fire was due to 
the carelessness of his wsLUibmskn,— Pinsonneault v. HoodetaL, 
S. C, Montreal, Davidson, J., December 9, 1892. 



Procedure — Incidental demand — Action pro socio — Arts, 18, 

149, C. G. P. 

Held : — In an action pro socio to account, an incidental de- 
mand by which the plaintiff claims damages for unfounded legal 
proceedings which, previous to the present suit, hud been in- 
stituted by his partner to obtain the liquidation of the partner- 
ship business, will be dismissed on demurrer, such demand not 
being founded on a right accrued since the service of the princi- 
pal suit nor connected with the right claimed by such suit, and 
not coming within the terms of Arts. 18, 149, C. C. P. — Gerhardt 
V. Davis et al, S. C, Montreal, Tait, J., April 2, 1892. (») 



Suretyship^Appealbond— Novation— Ohosejugee— Debt of succession. 

Held: — I. Where one of the sureties on an appeal bond became 
insolvent, and respondent's attorneys accepted S200 *' pour valoir 
comme cautionnement en appel, et en tenir lieu H I'aison de 
rinsolvabilitd d'une des cautions," that this did not operate a 
novation of the suretyship, but the same remained binding and 
elfective, 

(0 This decision has been since reversed in appeal 



194 THE bBOAL NEWS. 

2. A condemDation obtaiDed against odo of two coauretieB & 
chose jugie as regards the other surety and his representatives. — 
Truteau v. Fahey et vir^ S. C, Montreal, Davidson, J., June 27, 
1892. 



Procedure — Execution — Seizure of movables — Sale suspended by 

opposition-^ Art. 5*78, C. C, P. 

Held: — Where the seizure of movables by the first seizing 
creditor is suspended by reason of an opposition to his proceed- 
ings, the next seizing creditor is not thereby prevented from pro- 
ceeding to the sale of the effects, the preference giveii to thofirbt 
seizing creditor only subsisting so long as he is in a po>ilion to 
proceed to the sale of the effects seized and is not retarded by 
oppositions not affecting other creditors in a position to proceed. — 
Joseph V. Leblanc, & Marcotte, mis-en-causo, and Brown, opposant, 
S. C, Montreal, Doherty, J., June 24, 1892. 



Servitudes — Diviaion wall —Replacement of — Arts. 518, 519, C. C. 

Held : — Where a gable wall on the dividing line between two 
properties is not miioyen, the owner of the adjoining property has 
the right to convert it into amitoyen wall only after complying 
with the requirements of Arts. 518 and 519, C. C. Even where 
the wall in question is not straight nor adapted for a common 
wall, the neighbour is not entitled, without the consent of the 
owner or process of law, to take possession thereof land demolish 
it, with a view to rebuilding it as a common wall. — Bruchesi v. 
Besjardins, S. C, Montreal, Doherty J., March 10, 1892. 



Charte de la citi de MontrSal — Vente d'un immcuble grevi di' fiubsti- 

lution — Nulliti de dicreU 

Jugi : Que le decrot d'un immeublo, k la poui*suite de la cit^ de 
Montreal, en vertu des dispositions de sa charte et en recouvre- 
ment de taxes, no purge pas les substitutions non ouvertes qui 
gr^vent cet immeuble, et que Tadjudicataire d*un tel immeuble 
pent se pourvoir en nullity de d^cret. — Chaput v. La citi de Mont- 
rial^ db Guenette et al., C. S., Montreal, Jett^, J., 30 novembre 
1892. 



THB LEOAL NEWS. 195 

Exicuteur testamentaire — InscdsissahiUte — Consignation, 

Juge: 1. Qu'un exicuteur teBtamentaire qui a dt^ pourauivi 
par un h^ritier en debtitution de sa charge, et qui a fait d^bonter 
raction de cet h^ritier avec d^pens. peat charger 4 ce dernier, le 
montant des fraiB qa'il a ainsi paj^, malgr^ que les revenue 1^- 
gu^6 4 cet h^ri tier Boient, par le testament, ddclai-da ink^aiBiBsableB. 

2. Qu'un demandeur eet non recevable 4 se plaindre de Tirr^- 
gularit^ d'uno consignation faite par le ddfendeur lornqu'il a tou- 
ch^ le montant ainsi consign^. — Quintal et vir v. jRoberge, C. S,, 
Montr^l, de Lorimier, J., 30 novembre 1892. 



GENERAL NOTES. 

Divorce in France. — Dui-ing the last five years about 30,000 
couples have availed themselves of the French divorce law. The 
Chamber has just now read for tlie firet time (says the Paris cor- 
respondent of the Daily Telegraph) a law tending to make a 
severance of the matrimonial bonds as easy as buying a ticket 
for the opera. According to the new bill, a mere judicial separa- 
tion of the spouses can be changed to definite divorce after the 
lapse of three years, on the demand of cithei' of the parties — 
plaintiff or respondent. 

An Old Case. — The memory of Jamdyce v. Jamdyce and the 
actuality of Concha v. Concha have been eclipsed by a still more 
protracted litigation. Eecently a petition was presented to Mr. 
Justice Chitty in the case of Greenhill v. Chauncey for the pay- 
ment out of certain shares in the accumulation of a sum of 
money which was paid into Court under the order of the old 
Court of Chancery in 1747. The original Greenhill and Chauncey 
appear to have been partners in the Temple Mills Brass Works, 
and there were also other pei-sons interested in the firm. 
Squabbles took place over their respective shares in the business, 
and some time before 1747 they went to the Court of Chancery 
for a settlement of the dispute, little dreaming that * Greenhill v. 
Chauncey* would still figure in the Court list towards the end of the 
19th century. In the course of the litigation a sum of £1,221 
l2s. 7d. was paid into Court and invested in South Sea Annuities. 
That sum has grown to the considerable figure of £14,243 6b. 2d., 
and is now claimed by the legal personal representatives of cer- 
tain of the original partners in the Temple Mills Brass Works, 
on whose behalf the petition was presented. Mr. Justice Chitty 
intimated that * Government duties' would absorb a large part of 



196 THE LEOAI^ NEWS. 

the £14|000, that the claimaDts would have to pi'ove their title at 
their own expense, and that it was doubtful what they would 
receive. 

Diplomatic Immunities. — The suite of an)bas8adoi*s seem in 
some cuscs to presume unduly on the hospitable reception aecoid- 
ed to the principals in this country. On June 3 a magistrate was 
obliged to refuse a bastardy summons on the ground that the 
pei*son alleged to be the putative father was a valet to the Japa- 
nese Minister, and, as such, entitled to the benefit of the Diplo- 
matic Privileges Act, 1708 (7 Anne c. 12). Mr. Heard, in his 
'Curiosities of Legal Reporting' (Boston, Mass., 1881), records a 
somewhat different result to a similar application. In 1768 a 
woman appeared before justices to swear a child on the secretary 
to Count Bruhl, the Saxon Minister, but the Court interfered and 
the justices were afraid to proceed. The woman applied to Sir 
Fletcher Norton (8')on atlerwards Attorney-General), who advised 
application for a peremptory mandamus to proceed with the affili- 
ation. Lord Mansfield suggested application to the Attorney- 
General or the F'oreign Minister for redress; Avhereupon Sir Flet- 
cher Norton bearded the great judge and asserted his client's 
right as a subject to apply to the Court. Two of the judges were 
in favour of the grant of the motion ; but wo cannot trace the 
case further. So far as it goes, it is against the diplomatic im- 
munity of a putative father. Wo would suggest that it is doubt- 
ful whether the Actof Anne was intended to do more than protect 
diplomatists and their suite from arrest on mesne process in civil 
proceedings. But in practice, undoubtedly, they are excused 
from liability to any processor taxation. Cabmen who are bilked 
by attachia cannot get a summons, and a soi-disant diplomatist 
some yeai*s since successfully claimed immunity in answer to an 
offence against the llyde Park regulations, while the coroners 
have twice, been foiled in attempts to hold inquests, once on a 
Chinese baby, and in the other case on a member of the Chinese 
Embassy who killed himself outside its curtilage. In the last two 
cases no doubt the English law might have taken a barbarous 
view of Celestial ethics ; but in the preceding cases there seemed 
no violation of national independence in requiring a cab to be 
paid for or police regulations to be observed. We should not 
nowadays allow the retinue of the French and Spanish ambas- 
sadors (as Charles II. did) to have a pitched battle in the London 
streets for precedence of audience (Pepys, September 30, 1661). — 
Law Journal (London). 



THE 



LBGAL NEWS. 



VOL- XVL JULY Ist, 1893. No. 13. 



CURRENT TOPICS AND CASES, 

The Supreme Court of Alabama, in the case of Arp v. 
The Staie, Jan. 26, 1893, maintained a ruling of the 
court below which refused to charge that homicide, under 
threats of immediate peril to the prisoner's own life, was 
justifiable. Arp's defence was that two persons threat- 
ened to kill him unless he killed the deceased, and that it 
was through fear and to save his own life he struck 
deceased with an axe. The Alabama Supreme Court 
followed the principle laid down by the English Court of 
Queen's Bench in Reg, v. Dudley, L.R., 14 Q.B. Div. 278, 
560. An abridged report of the United States decision 
will appear in a future issue. 



A third edition of Mr. Justice Taschereau's work on the 
criminal statute law of Canada is now in press, and will 
appear shortly. This edition has been necessitated by the 
enactment of the Criminal Code, which is in force from 
July Ist, 1898, and the work will appear under the title 
of " The Criminal Code of the Dominion of Canada." The 
volume will contain, besides the text of the Code, under 
each section to which they severally apply : (1) The 
report of the Imperial commissioners on the draft code of 
18*79, submitted to the Imperial House of Commons in 
the form of a bill in 1880 ; (2) English and Canadian 
decisions to date ; (3) Beferences to the corresponding 



198 THE LEGAL NEWS. 

Imperial statutes in force in England ; (4) fieferences to 
unrepealed English statutes applying to Canada; (5) 
Citations from English text-books ; (6) Forms of indict- 
ments ; (t) Changes, extensions and additions to the law 
made by the new criminal code. 

A recent decision by the English Queen's Bench Division 
(June 7), in Bowyer v. The Percy Supper Club, will oblige 
proprietary clubs in England to apply for licenses to sell 
liquors. The company in this case was incorporated 
under the Companies Acts, and carried on the business of 
a proprietary club for its own profit. There was the usual 
book of rules, and on the first page was a memorandum 
to the effect that, the club being proprietary, neither 
members nor committee incurred any liability whatever 
beyond their annual subscription. The company did not 
hold any license authorizing them to sell any kind of 
alcoholic liquor. On a prosecution for selling spirits, etc., 
by retail without a license, the magistrate found that the 
club was a bond fide club, and carried on for the profit of 
the company, and that the profit from the sale went to 
the company. The magistrate refused to convict on the 
ground that the supplying of alcoholic liquor to a member 
of a genuine proprietary club was not a sale within the 
meaning of the Excise Acts. The Court (Mathew and 
Wright, JJ.) held on the facts proved that the supplying 
the alcoholic drink clearly amounted to a sale within the 
meaning of the Licensing Acts. The liquor belonged to 
the company, and the members of the club had no interest 
in it. It might be that a proprietary club could be so 
carried on as to give the members a proprietary interest 
in the alcoholic liquor of the club ; and in such a case the 
supplying them with liquor might not amount to a sale 
within the meaning of the Licensing Acts. That was not 
so here. The case was sent back to the magistrate with 
an intimation that in the opinion of the Court the facts 
proved constituted a sale within the meaning of the 
Licensing Acts. 



THE LEGAL NEWS. 199 

SUPBBME COUBT OF CANADA. 

Ottawa, May 1, 1893. 

WiLLiAVB V. Irvine. 
Qaebec] 

Right of appeal — f^4 and 55 Vic, ch, 25 — Canstructian of. 

By Boa 3, ch. 25 of 54-55 Yict, an appeal is given to the Sapreme 
Court of Canada from the jadgment of the Saperior Court in 
review (P. Q,), '* where, and bo long an no appeal lies frjm the 
'' jadgment of that court, when it confirms the judgment rendered 
" in the court appealed from, which by the law of the province 
'* of Qaebec is appealable to the judicial committee of the privy 
" council." 

The judgment in this case was delivered by the superior court 
on the 17th November, 1891, and was affirmed unanimously by 
the superior court in review on the 29th July, 1892, which latter 
judgment was, by the law of the province of Quebec, appealable 
to the judicial committee. The statute 54 and 55 Yic, ch. 25, 
was passed on the 30th September, 1891, but the plaintiff's action 
had been instituted on the 22nd November, 1890, and was stand- 
ing for judgment before the superior court in the month of June, 
1891, prior to the passing of 54 and 55 Yict., ch. 25. On an ap- 
peal from the judgment of the superior court in review to the 
supreme court of Canada, the respondent moved to quash the 
appeal for want of jurisdiction. 

JSield, per Strong, C.J., and Fournier and Sedgewick, JJ., that 
the right of appeal given by 54 and 55 Yict., ch. 25, does not 
extend to cases standing for judgment in the superior court prior 
to the passing of the said act. Couture v. Boucfiard followed; 
[21 S.C.E. 281.] Taschereau & Gwynno, .TJ., dissenting. 

Fournier, J. — ^That the statute is not applicable to cases already 
instituted or pending before the courts, no special words to that 
effect being used. 

Appeal quashed with costa. 

H. Abbott, Q.O.f for appellant. 
' St Jean for respondent. 



200 THE LEGAL NEWS. 

Brown v. Lbolxbo. 
Qaobec] 

Loading of steamer — Accident — Neglect of usual preeauium—' 

LiahilUy of employer. 

Where two stevedores are independently engaged in loading the 
same steamer, and, owing to the negligence of the employees of the 
one, an employee of the other is injured, the former stevedore is 
liable in damages for such injary. The failure to observe a pre- 
caution usually taken in and about such work is evidence of ne- 
gligence. Gwynne, J., dissenting. 

Appeal from judgment of Q. B., Montreal (1 B. E. 234) dis- 
missed with costs. 

Geoffrion, Q, C, for appellant. 

Boniny Q.C, for respondent. 



Mabtindalx v. Powxbs. 
Quebec] 

Quality of plaintiff — General denegation — Art. 144, C. (7. P. — Don 
mutuel — Property excluded^ but acquired after marriage. 

Held, 1. Affirming the judgment of the court of Q. B., Monti'eal 
(1 B. R 144), the quality assumed by the plaintiff in the writ 
and declaration is considered admitted, unless it be specially 
denied by the defendant. A defense aufond en fait is not a special 
denial within the meaning of aK. 144, C. C. P. 

2. Where by the terms of a dan mutuel by marriage contract, 
a farm in the possession of one of the sons of the husband under a 
deed of donation was excluded from the don mutuel, and subse- 
quently the farm in question became the absolute property of the 
father, the deed of donation having been resiliated for value, it 
was held that by reason of the resiliation the husband had ac- 
quired an independent title to the farm, and it thereby became 
charged for the amount due under the don mutuel by marriage 
conti*act, viz : $5,000, and that after the husband's death the wife 
(the respondent in this case) was entitled, until a proper inven- 
tory had been made of the deceased's estate, to i-etain possession 
of the farm. Taschereau & Gwynne, JJ., dissenting. 

Appeal dismissed with costs. 

Racicot, Q,C,, and Amyrauld for appellant. 
Baker, Q.G., for respondent. 



THE LEGAL NEWS. 201 

Stephxns v. Gordon. 
Ontario.] 

Agreement, Construction of — Way — Timber — Removal of. 

The plaintiff waa the owner of a farm of about a mile in breadth 
and tive-sixths of a mile in Jength. About two-thiitis of the farm 
was heavily wooded, and the rent of it was cleared and cultivated. 
The defendant became the purchaser of the trees and timber 
upon the land, under an agreement, which provided among other 
things, that the purchaser should have *'full liberty to enter into 
and upon the said lands for the pu]*pose of removing the trees and 
timber at such times and in such manner as he ma}' think pro- 
per,'* but reserved to the plaintiff the full enjoyment of the land, 
*' save and in so far as may be necessary for the cutting and re. 
moving of the trees and timber." To have removed the timber 
through the wooded land at the time it was removed would have 
involved an expenditure which would have probably amounted 
to a sacrifice of the greater portion of the timber. 

Held, afiSrming the judgment of the court below, that the de- 
fendants had a right to remove the timber by the most direct 
and available route, provided they acted in good faith and not 
unreasonably, and the reservation in favour of the plaintiff did 
not minimize or modify the defendant's right under the general 
grant of the trees, to remove the trees across the cleared land. 
6 Wynne, J., dissenting. 

Appeal dismissed with costs. 

M, Wilson, Q.V., for appellant. 

Z>. McCarthy, Q.C., for respondent. 



CoRBiTT V. Smith. 
Nova Scotia.] 

Deed — Action to set aside — Undue influence — Evidence. 

C, executrix under a will, brought an action to have a deed 
executed by testator some two months before the date of the 
will, set aside and cancelled for undue influence by the grantees, 
and incompetence of the grantor to execute it. C. alleged in 
her statement of claim that testator was eighty years old and a 
man of childlike simplicity ; that defendants, gi'antees under 
the deed, had kept him under their control and several times 
assaulted him when he wished to leave their house ; and that he 



202 THE LEGAL NEWS. 

• 
had requested C. to live with him and take cai*e of him until he 

died, which defendants would not permit her to do. The deed 
in question purported to be in oonsidemtion of grantees paying 
testator's debts and maintaining him for the rest of his life. 

&ld, afiSrming the decision of the supreme court of Nova 
Scotia, that the evidence showed that the deed was given for 
valuable consideration, and that undue influence was not estab- 
lished. C.y therefore, could not maintain her action. 

Appeal dismissed with costs. 
j^ng, Q.C., for appellant. 

Bussellj Q,C., for respondents. 

City op Toronto v. Gillispik. 
Ontario.] 

Municipal corporation — Local improvement — Notice to rate-payers — 

By-law — Variance from notice. 

The corporation of Toronto, wishing to construct, as a local im- 
pi*ovement, a stone roadway on one of the streets of the city, 
gave notice to the ownera of the properties thereby, as required 
by s. 622 (2) of the Municipal Act, of such intended improve- 
ment, in which notice the proposed work was the construction of 
a " n^acadam roadway '* on Bloor street, etc., and the payment 
of the cost was to be made by special assessment on the proper- 
ties benefited, payable *' in five and twenty *' equal payments. 
By the by-law passed for its construction the work was described 
as '* a macadam and granite set I'oadway and stone curbing," 
and the cost was to be paid in five year^. On an application to 
quash the by- law it was not shown that the work as described in 
the by-law was identical with that mentioned in the notice. 

Held, affirming the decision of the court of appeal (19 Ont. 
App. B. 713), that the by-law was invalid on account of the said 
variances from the notice, and it was properly quashed. 

Appeal dismissed with costs. 
Biggar, Q.C., for appellants. 

Aylevvorthj Q.C, for respondent. 



Davixs v. McMillan. 
British Columbia] 

Sheriff — Action against — Trespass — Sale of goods by insolvent — 
Intent — Bona fides — Judgment on interpleader issue — Estoppel. 

E., a trader in insolvent circumstances, sold all his stock in 



THE LEGAL NEWS. 203 

trade to I), who knew that two of K.'b creditors had recovered 
judgment against him. The goods so sold were afterwat*ds seized 
by the sheriff under executions issued on judgments recovered 
af\er the sale. On a trial of an interpleader issue in the county 
court the jury found that K. had sold the goods with intent to 
prefer the creditors who then hod judgments, but that D. did 
not know of such intent. The county court judge gave judgment 
against D., holding that the goods seized were not his goods, and 
that judgment was affirmed by the court in banc. D. afterwards 
brought an action against the sheriff for trespass in seizing the 
goods, and obtained a verdict which was set aside by the court 
in banc, the majority of the judges holding that the county court 
judgment was a complete bar to the action. On appeal to the 
supreme court of Canada : 

Held, reveraing the decision of the supreme court of British 
Columbia, that the evidence showed that D. purchased the goods 
from K. in good faith for his own benefit, and the statute against 
fraudulent preferences did not make the sale void. 

Held, also, that the county court judgment, being a decision of 
an inferior court of limited jurisdiction, could not operate as a bar 
in respect of a cause of action in the supreme court, and beyond 
the jurisdiction of the county court to entertain. 

Heldf further, that if such judgment could be set up as a bar it 
should have been specially pleaded by way of estoppel, in which 
plea all the facts necessary to constitute the estoppel must have 
been set out in detail, and from the evidence in the case no such 
estoppel could have been established. 

Appeal allowed with costs. 
MosSj Q.C., for appellant. 
Bobinsorij Q,C., for respondent. 



COURT OF APPEAL ABSTRAGI. 

Corporation municipale — Chemin public — Expropriation- - 

Action possessoire — Injonction. 

Jugi: — 1. Une corporation municipale ne pent pas prendre pos- 
session, en vertu de ses r^glements ou process- verbaux, du terrain 
n^essaire ^ I'ouverture d'un chemin, lors m§me que ce serait le 
premier chemin de front sur un lot dont la concession contient une 
reserve de terrain -X cette fin, sans, au pr^alable, accomplir les 



204 THE LEGAL NEWS. 

formality exig^es pour rexpropriation pour les finB municipales. 
(C. M. art. 902 et seq.} 

2. Le propri^taire da terrain peut, en pareil cas, recourir i 
Taction en complainte et a rinjonction, poar faire cegser le ti*oa- 
ble dans sa possession, et discontinner les travaux. — Kingtt al. dr 
La Corporation de la partie nord du township d^Irlande, Qa^bec, 
Lacoste, J.C, Baby, Boss^, Hall et Wurtele, JJ., 10 Janvier 1893. 



Possession-^ Action en complainte — Estacades — Art. 5551, 8, R. Q, 

Juge : — Celui qui relie une estacade (boom), sur une riviere flot- 
table, k un arbre et k un poteau pai* lui plants sur la rive, dans le 
terrain d'autrui, et sans n^cessit^ de le faire pour sauver son bois 
flotte, mais seulement pour I'j retenir, apporte un trouble i la 
possession du pi*opri^taire riveitiin et est passible d*une action 
en complainte de la part de ce dernier, k Tencontre de laquelle il 
ne saurait tirer une defense des dispositions de Tart. 5551, S. R 
Q. — La Compagnie de Pulpe des Laurentides <fh Clement j Quebec, 
Lacoste, J.C., Baby, Boss^, Hall et Wurtele, JJ., 10 janvier 1893. 



Powers of court — Questions not submitted in appeal. 

Held: — The court will not consider a law issue raised by de- 
murrer in the court below, and disposed of there by interlocutory 
judgment, when no reference is made to it in appeal on the 
merits, and when it does not show absence of jurisdiction or of 
right of action. — Larue & Kinghom, Quebec, Lacoste, C. J., Blan- 
chet, Hall and Wurtele, JJ., April 4, 1893. 



Interpretation de contrat. 

La compagnie "The Quebec Central Bailway Co.,*' intim^e, se 
trouvant en difficult^s financi^res, il fut convenu, par acte dat^ 
du 2 avril 1887, entre les directeurs provisoires de cette compa- 
gnie, d^sign^s par un acte de la legislature qui remettait le con- 
trdle de la compagnie entre les mains des porteurs de debentures 
d'une part, et Tappelant, de I'autre, que Tappelant, qui controlait 
le fonds capital do cette compagnie, dont il etait le president, en 
consideration du transport devant lui §tre fait de debentures re- 
presentant la somme de $250,000, paierait toutes les dettes enu- 
merees dans une cedule annexee k Tacte, sauf certaines dettes 
expressement exceptees, de maniere k ceque la nouvelle adminis- 
tration put obtenir le controle de cette compagnie,- liberee de 



THE LEGAL NEWS. 206 

touteB dettee, saufcelles except^es ; que les dites debentures se- 
raieDi^^pos^es entre les Tuains d'nn fid^i-coromissaire, lequel les 
tran^ASrerait k Tappelant i meBure que ce dernier justifierait de sea 
paiements. La cMule susdite ^Dum^rait, dana une premiere 
pariie, les dettes de la compagnie, et dans une t^econde pariie, les 
dettes des constructeurs du chemin. 

Juge : — (Infirmant la decision de la cour supdrieure, Brooks, J., 
14 L. N.y p. 354) : Que I'appelant avait le di-oit en vertu du cod- 
trat f^usdit, d'employer les revenus de la compagnie accrus avant 
la date de ce eontrat, ii acquitter les anciennes dettes de la com- 
pagnie, et que la somme ainsi employee ne devait pas 6tre d^uite 
de sa reclamation pour la remise des debentures en question. — 
Robertson & The Quebec Central Railway Co.y Montreal, Lacoste, 
J.C., Bow?e, Blanchet, Wurtele, J J., 26 avril 1893. 



SUPERIOR COURT ABSTRACT. 

Sale d, terme — Unpaid Vendor — Saim-conservatoire—CC,, 

1998, 2000. 

Defendant purchased fi-om plaintiff a ckrgo of coals, to be 
settled for by his promissory note at three months, deliverable 
to plaintiff on the unloading of the cargo on the wharf, but failed 
to give or oifer such note, and in spite of diligent search it could 
not be found, whereupon plaintiff took a saisie-conservatoire, and 
seized the coals, without, however, alleging secretion, abscond- 
ing or insolvency on the part of defendant, or asking the resilia- 
tion of the sale. 

&e^;~ Dismissing petition to quash, that defendant's default 
to give such note entitled plaintiff to demand immediate pay- 
ment in cash, and at the moment of resorting to his seizure he 
was in the position of an unpaid vendor for cash, having the right 
to protect his privilege by misie'Conservatoire. — JUaguire v. BaHe, 
C. R., Quebec, Bouthier, Garon, Andrews, JJ., March 30, 1893. 



Joint Stock Company — Companies' Act, 1862-83 (Imperial) — Wind- 
ing-up Act — Liquidator^ status of, before Canadian Courts — 
Intervention — Deposit — Saisie-arrH. 

Held .-—'Where Canadian creditors of a joiiit stock company in- 
corporated under the (Imperial) Companies' Act, 1862-83, are 
proceeding to execute a judgment obtained in the courts of this 
province upon assets of the company situated within the pro- 



20Q THE LKQAL NEWS. 

viDce, a liquidator Daoied in Great Britain to the voluntary wind- 
ing up of Baoh oompany cannot intervene and demand that the 
oompany*B assets be removed to Great Britain, to be there by 
him distributed in accoitlance with the provisions of the ^aid 
Companies' Act, Qwerty has such liquidator any standing before 
the Courts of this province ? — Quebec Bank v. Bryant tt al.^ A 
Hall tt al, T.8., S.C., Quebec, Andrews, J., April 15, 1893. 



Election — Note given for money lent candidate not recoverable — 

R. S, Q^ 426. 

Held : — A promissory note given by a candidate, for money 
loaned him during an election of a tnember of the legislature, 
the lender knowing that the money was obtained and destined for 
use by the borrower in such election, is not recoverable at law, in 
virtue of the provinions of Art. 425, R S. Q., as being a promise 
and contract arising out of an election. — Ritchie v. Vallety C.R., 
Quebec, Casault, Caron, Andi*ews, JJ., March 30, 1893. 



Salvage— Action by owner alone — Dilatory exception. 

Held : — The action accruing to the owner, master, and crew of 
a salving vessel is indivisible, and a suit brought by the owner 
alone will be stayed on dilatory exception until the master and 
crew have been made parties to the suit. — Ohabot v. Quebec 
SteamMp Co., S. C, Quebec, Routhier, J., April 4, 1893. 



Procedure — Plaidoyer — C. P. C. 138. 

Jugi : — ^1. Un ' plaidoyer all^guant que le demandeur a ^t^ 
membre d'une administration qui a commis des actes de corrup- 
tion et de mauvaise administration, est suffisamment libell^, mSme 
s'il ne donne aucun detail de cos actes, et se contente de r^fi^rer ik 
une volumineuse eiiqu§te produite avec ce plaidoyer ; 

2. Une motion qui demande de faire rayer d'un plaidoyer cer- 
taines allegations, parce qu'elles ne sont pas suffisamment libel- 
l^es, doit @tre faite dans les quatre jours de la production de tel 
plaidoyer, confoi'mtoent k Tart. 138 C. P. C. ; 

3. La cour peut d'office, et mSme lorsque ce moyen n*a pas M 
invoque par la partie adverse, se pr^valoir de ce que telle motion 
n'a pas ^t^ faite ainsi dans les quatre jours apr^s la production 
du plaidoyer. — Langelier v. Casgrain, C. S., Quebec, Oasault, J., 
15 avril 1893. 



THE lUgal news. 207 

LIABILITY OF A SLEEPING CAR COMPANY FOR 

LOSS OF BAGGAGE. 

An examination of the caseB relating to the obligationa and 
liabilitieB of sleeping ear companies for loss of goods and baggage 
ofpassengens will show agi*eat diversity of opinion and that no 
uniform rule has yet been agreed upon. This is not surprising 
when wo consider that the service is of so recent gi*owth, that 
some of the patents have not expired by which certain companies 
claim peculiar rights in the business. 

The business dates back but little more than a thii*d of a cen- 
tury, and the cara of that time were of every conceivable form, 
many of them in which the berths were open as in a canal 
packet. The accommodations were of the simplest character and 
the charges correspondingly light. As the various short lines of 
railroads became consolidated and operated under one manage- 
ment, the demand for better accommodations for night travel 
called into being the Wagner, Pullman and other sleeping cara. 
These offered superior accommodations and the charges were pro- 
portionately increased. These companies proposed to a traveller 
in effect to give him a safe and (Commodious car with a double 
berth to sleep in, and provide the necessary |K>rter8 to wait on 
him, for a fixed price paid in advance above the charge for his 
transportation. These companies claim that they are not com- 
mon earners and therefore are not liable as siich for a failure to 
carry those who have paid for the accommodation, and that they 
are not liable like innkeepers, and therefore not responsible for 
the safekeeping of the passenger's goods and baggage, and it 
must be said that a number of cases sustain their contention. 

The law upon this subject has not yet become crystallized, and 
must ultimately in the absence of statutory regulations be d^ 
termined h-^ the application of common law rules in analogous 
cases. It may be well to examine the character of the cases de- 
cided. In Pullman etc.y Co, v. Gaylord (23 Am. Law Reg. 788) 
the actiop was brought to recover the sum of $300, the value of a 
diamond scarf pin stolen from the defendant while asleep. 

In Scaling v. Pullman etc., Co., (24 Mo. App. 29) the action was 
bi-ought to recover $245, the value of a gold watch and pair of 
pantaloons stolen while the passenger was asleep. In Bevis 
V. B. <fe 0. By, Co , (26 Id, 19) the action was brought to recover 
$500, the value of a scarf pin, and $5, in money alleged to have 
been stolen while the passenger was asleep. In Woodruff etc. Co., 



208 THE LEQAL NEWS. 

V. Dahl (84 Ind. 474) the loes alleged was a gold watch of %he 
value of $172, and money amounting to $111.50. In Blum 
V. Southern etc., Co,, (Flippins* B. 500) the action was to recover 
$3,135, lost by the plaintiff while riding in a sleeping ear. In 
Pullman, etc., Co. v. Smith, (73 111. 360) the action was brought 
to recover the sum of $1,180, alleged to have been lost on one of 
the plaintiff's cars. In the case of Illinois, etc, Ry. Co,, v. Handy 
(63 Miss. 609) the defendant was riding in a chair car and claimed 
to have lost his pocket-book in the car. It was found by the 
officers of the company and retuined to him apparently unopened. 
On being delivered to the owner it appeared that it contained 
$57 in money. He took the book and its contents and stated 
'* it was all right/' but afterwards retumed and claimed that 
$308 had been abstracted from the book, and the action was 
brought to recover that amount 

In Lewis v. N.Y. Sleeping Car Co., (143 Mass. 267) the action 
was brought to recdver $200 claimed to have been stolen from 
the plaintiff while he wds asleep in the car. In Boot v. Sleeping 
Car Co., (28 Mo. App. 19'J) the action was brought to recover the 
sum of $464, which the plaintiff alleged was stolen from him by 
the fraud or negligence of the defendant while the plaintiff was a 
passenger on his car. 

In Pullman etc., Co. v. Matthews (74 Tex. 654) the defendant 
early in the morning, left his pocket-book, which contained, as 
he alleged, $165, lying on the bedding of his berth and went to 
the wash room and afterwards went forward sixty or seventy 
yards to a wrecking train, and the action was bi*OQght to re- 
cover the loss of the money. 

In the case of Pullman etc., Go. v. Gardiner, (16 Am. and Eng. 
Ry. cases) the defendant on retiring placed his gold waich, of the 
value of $250, and $55 in money, in an inside pocket'of his vest, 
and put the vest under the outside corner of the mattress of his 
berth and went to sleep, and they were stolen during the night, 
and the action was to recover their value. 

In Wilson v. B. & 0. B. Co., (32 Mo. App. 199) it was held that 
a passenger who had put $670 in his coat pocket and placed the 
poat under his pillow was guilty of gross negligence in leaving 
it there while he went to the water doset 
.:. In Hampton v. Pullman etc., Co.^ (42 Mo: Ajip. 134) the com- 
pany was held liable for a failure (o use reasonable diligence to 
protect ita patron^s baggage delivered to the company. In Car- 



THE LEGAL NEWS. 209 

penter v. N, Y., etc, By. Co., (124 N. Y. 53) money was stolen 
from a passenger while asleep in a sleeping car, and there was 
only one employee on the car who acted as conductor, porter and 
hootblack, and it was held that the company had not exercised 
due care. 

In a number of the cases cited, in addition to the proof of loss 
some act of negligence of the company was also required to be 
proved. One of the earliest cases decided was Plumm v. Pullman 
ete.y Co , (3 Cent. Law J., 592) by Judge Brown of the United 
States District Court of Tennessee, in which he held that the 
company was not liable either as an innkeeper or bailee for 
money stolen from a passenger's pocket. In all these cases it 
was held that the company was not liable as an innkeeper. The 
goods which were lost, so far as appears, were retained by the 
owners and were not delivered to the employees of the several 
sleeping car companies. In most cases the money cairied on the 
person exceeded the amount necessary for travelling expenses, 
while in all cases the jewellery was retained by the owner. 
Those cases, therefore, and others of a similar character, do not 
form a fair criterion to determine the liability of sleeping car 
companies. Judge Brown seems to have discnsssed several ques- 
tions not before the court, viz. : That while the company was 
not liable it was to take reasonable care of its guests and pro- 
perty, especially while said guests wei*e asleep. He also at- 
tempts to draw a supposed distinction between an innkeeper and 
sleeping car company. Some of the distinctions referred to will 
be noticed presently. 

Other nisi pi*ius cases of about the same date may be found, 
among which are Palmeter v. Wagner ^ (11 Alb. Law J., 149) in 
which the Marine Court of New York held that the company 
was neither an insurer, innkeeper, or transporter, but must never- 
theless keep a reasonable watch to protect a passenger and the 
' property about his person during sleep. 

That the two cases last cited have been taken as precedents 
and substantially followed without question is apparent to any 
person who will consider the reported cases. It may be well, 
therefore, to examine the grounds upon which these decisions 
are predicated. An innkeeper at common law is '* a person 
who makes it his business to entertain travellers and passengers 
and provide lodgings and necessaries for them and their horses 
and attendants.'' (Bacon's Abr. Inns and Innkeepers J?. Kistem v. 



210 THE LEGAL NEWS. 

Hildebrandy 9 B. Mon. 72.) In the case last cited it is said 
''that a man may be an innkeeper and liable as sach though he 
have no provision for horses. It is not necessary that he should 
have a sign indicating that he is an innkeeper, but it must be his 
business to entertain travellers and passengers." 

To constitute an inn at the present time it is not necessary 
that the guests be provided with food. Thus, where a public 
house is kept upon the European plan — meals being furnished to 
those who desire, paying only for what they receive, or taking 
their food at some other place, it is nevertheless an inn. Krohn 
V. Sweeney (2 Daly, 200) ; Bumstein v. Woodward, (33 N. Y. Sup. 
Ct., 271.) So where a general in the army of the United States 
with his family were guests at the restaurant of a hotel whei*o 
they paid only for what they received, and had lodgings at the 
hotel, they were held to be guests and not boardern. (Hancock v. 
Rand, 94 N. Y. 1.) In the case cited the judge says that hotels 
are conducted differently now from what they were formerly. 
'' Furnishing rooms at a fixed price and meals at prices depend- 
ing upon the orders given at the usual hotel rates constitutes «k 
material difference in the system of keeping hotels from iheL^ 
which formerly existed.*' To constitute an inn, thet*efore, it £0 
not necessary that it should furnish meals to the guests nor th^*^ 
it should have accommodation for horses and other animals 
traveller. But it is said that an innkeeper has a lien upon tb 
traveller's baggage for the amount of his bill, and that no sac 
lion exists in favor of the sleeping ear company. I am not awai" 
that this question has ever been presented to any court for th 
reason that the sleeping car companies in all cases, so far as I 
aware, transact all their business by selling tickets for berths 
sections and demand payment in advance. Hotelkeepers do th 
same in many cases where a doubt exists as to the responsibilit 
of the guest, and no doubt by rale might require prepayment i 
every case. There is no occasion, therefore, for a lien in th 
case of the sleeping car, and for that reason, none so far 
we know has been attempted. It is insisted, however, that ther^ 
is no contract with the hotelkeeper as to the length of time th^ 
guest will stay, and in this regard the contract differs i^om tha'i> 
of the sleeping car company, which is for definite service. 
'This distinction is-more technical than real. Suppose a traveller* 
should go to a hotel, and on registering should say to the land^ 
lord : " I will stay with you two, three or four days, as the casa 



/ 



I 



THE LEGAL NEWS. 211 

may be/' woald he thereby become a mere boarder and not a 
giieBt ? No one will so contend. He would be there temporarily 
until his business was completed, and the innkeeper would be 
liable to him for any dereliction of duty of himself or employees. 
Now, suppose a t raveller purchases a first class ticket and sleep- 
ing car ticket from St. Louis to Chicago, and enters the sleep- 
ing-car for the use of which he has paid in advance, will 
the fact that the contract is to continue until the car 
an'ives at Chicago, some ten or twelve hours thereafter, 
change the contract from that of the innkeeper ? If so, some 
good rcaron should be given for the exemption. 

Considerable stress is laid upon the fact thai the several berths 
are not separate rooms, and therefore the occupants cannot lock 
the door and exclude ail intruders. To some extent this is true, 
but has it ever been held that a hotel-keeper was excused be- 
cause he was compelled to put two or more guests, strangei's to 
each other, it may be, into the same room ? Scarcely a year 
passes in any city or town, but by i^eason of some convention or 
other meeting^ the hotels are filled and cots placed in the aisles, 
which are occupied by guests during the night, yet no landloi*d 
would claim exemption for loss upon the ground alone that his 
house was crowded, or that he did not have a separate room for 
each guest. Suppose a sleeping car to remain stationary at one 
point for months or yeara as a place for the entertainment of 
travellers, and patronized as such, would the fact that it was a 
car instead of a house, exempt it from the liabilities of an inn ? 
If so, then a car stationed beside an inn aud doing the same busi- 
ness would, without reason, be freed from liability, while the inn- 
keeper would be held ; but the law does not thus discriminate in 
favor of any one. Suppose the car was stationed at some point 
and in fact an inn, and its proprietor therefore responsible to his 
guests, would this liability cease because the car was daily moved 
from place to place ? If so, why ? 

We are told that the car differs from an inn in the character 
of its guests. That an inn must receive all who apply while the 
car can receive none but those who hold first class tickets or 
other means of transportation entitling them to ride in first class 
coaches. 

But this is not a valid objection. 

Every person by paying the price of a first class ticket may be- 
come entitled to purchase a ticket and travel in a sleeping car. 



212 THE LEGAL NEWS. 

/ 

It is merely a matter of expense. The same rule applies to inns. 
Thus the rates at a first class inn rate from three to five dollars a 
day, at a second class about one half as much, and third class 
from one thii*d to one half of the amount. As well complain that 
a traveller could not stop at a first class inn for the price charged 
at a second or third class inn. The truth is, the accommodations 
on a sleeping car are similar in kind to those supplied at an inn. 
In PuUman. Co. v. Lowe, (28 Neb. 248, 249) the defendant 
placed a valuable ovei*coat in the care of the porter, and it was 
stolen from the car, pi-obablj by an employee. The defendant 
recovered the valae of the coat. It is said : '' The liability of 
innkeepers is imposed from considerations of public policy as a 
means of protecting travellera against the negligence or dis- 
honest pi'actices of the innkeeper and his servants. Occasionally, 
no doubt, the innkeeper is subjected to losses without any fault on 
his part. This, however, is one of the burdens pertaining to the 
business, and the courts have deemed it necessary to enforce this 
wholesome rigor to insure the security of travellera. Besides, 
where loss is sustained, neither party being in fault it most be 
be borne by one of them, and it is no more unjust to place it on 
the innkeeper than on the guest. The liabilities incident to the 
business are to be considered in fixing the charges for the ser- 
vice." (Mason v. Thompson, 9 Pick., 280.) 

[Concluded in next issue.] 



ONTARIO DECISION, 
Bailment— Storage of wheat— Loss by fire — *' Owner's risk'' 

A quantity of wheat was delivered by the plaintiff to the 
defendant, a miller, under a receipt stating that the same was 
received in store at owner*s risk, and that the plaintiff was 
entitled to receive the curj*ent market price when he called for 
his money. The wheat, to the plaintiff's knowledge, was mixed 
with wheat of the same grade and ground into fionr. The mill, 
with all its contents, was subsequently destroyed by fire, but 
there had always been in store a sufiicient quantity of wheat to 
answer the plaintiff's receipt. 

Held, that the receipt and evidence in connection therewith, 
showed there was a bailment of the wheat and not a sale. 

Negligence on the part of defendant was attempted to be set 
up, but the evidence failed to establish it. — Clarke v. McClellan, 
Common Pleas Division, March 4, 1893. 



THE 



LKGAL NEWS. 



VOL. XVL JULY 15, 1893. No. 14, 



CURRENT TOPICS. 

In Canada the privilege accorded to members of the leg- 
islatures, of being supplied with letter paper and enve- 
lopes, was gradually extended to include costly trunks 
filled with valuable articles. Norway furnishes a more 
amusing illustration of elastic interpretation of members' 
privileges. In addition to their daily allowance, members 
are entitled to free nursing and medical attendance, " if ill 
during the session." This privilege has been extended 
by the members themselves to courses of gymnastics, 
massage, baths, wine for the sick (" medical comforts "), 
drawing and stopping teeth, etc. 



The facts of what has been termed a strike of the Span- 
ish bar, are given as follows in a communication from a 
distinguished member of the Madrid Bar to the London 
Law Journal: — " Spain was formerly divided, for juridical 
purposes, into fifteen great circuits, in each of which 
there was a Court of Appeal for the civil and criminal 
business of the district, disposed of by the judges of first 
instance. Each of these courts comprised the tribunals of 
first instance of several provinces. Subsequently a change 
was made in Spanish criminal jurisdiction. The judges 
of first instance were charged only with the administra- 
tion of civil justice ; and to the fifteen Courts of Appeal 



214 THE LEGAL NEWS. 

were added other courts for the trial of criminal cases — 
one at least being allotted to each province. In the past 
year the number of these courts has been diminished to 
thirty-four — ^being one for the capital of each province in 
which there was not a Court of Api)eal. The present 
Minister of Justice, however, was set upon effecting 
economies, and proposed to the Legislature to scbolish 
these thirty-four criminal courts, and to substitute for 
them the judges of first instance to whom I have referred. 
The advocates of twenty- three out of the thirty-four capi- 
tals which will thus be deprived of their Court of Crimi- 
nal Jurisdiction laid before the Minister of Justice a pro- 
jected reform which was as economical as his own — 
namely, to establish in each province a single court for 
civil and criminal affairs in lieu of the fifteen existing 
Courts of Appeal. The Minister of Justice not having 
received this proposal cordially, the advocates of twelve 
provincial capitals have struck work, as they declare, in 
the interests of justice ; but, according to the Minister, 
merely for the protection of their personal practice and 
privileges. Public opinion is far from regarding this 
strike with syn^pathy." 



In Dr. J. Dixon Mann's recently published work on 
Forensic Medicine and Toxicology, the author makes the 
following observations with reference to the position of 
medical men in the witness-box : — '* It is an honourable 
law of the medical profession that confidential statements 
made by a patient to a medical adviser are held to be in- 
violable secrets. In a Court of law this inviolability is 
overruled ; a medical witness, if asked, is bound to re- 
veal any secrets that have come to his knowledge whilst 
in attendance on a patient. However repugnant it may 
be to the feelings of a medical man to violate the confi- 
dences of the consulting-room, he has no option. If, 
when in the witness-box, he refuses to answer a question 
involving the betrayal of a secret which is really the pro- 



THE LEGAL NEWS. 215 

perty of his patient — it having been revealed to him in 
trust and nnder the conviction of absolute confidence — 
he renders himself liable to committal for contempt of 
Court. It is conceivable that a medical man might feel 
the obligation to secrecy so great as to compel him to de- 
cline to answer a question involving betrayal of the con- 
fidence of his patient. Such a step, however, should not 
be taken without a profound conviction of duty. A good 
citizen obeys the law, although he may have scruples in 
doing so ; therefore, a witness should not set his private 
judgment against authority without very searching self- 
inquiry ; an obstinate conviction must not be mistaken 
for a sense of duty. In the majority of cases it will pro- 
bably be compatible with his sense of duty if the witness 
enters a protest against answering the question and then 
bows to the requirements of the law." 



NEW PUBLICATION. 



The Criminal Code of the Dominion of Canada, as amended in 
1893, with Commentaries, Annotations, Precedents of Indict 
ment8, etc., by the Hon. Mr. Justice H. E. Taschereau, one 
of the Judges of the Supreme Court of Canada. Toronto, 
The Carswell Co., Publishers. 

This work» the preparation of which was referred to in our 
last istfue, has now been issued, and the first reflection which -it 
excites is one of admiration and surprise at the great industiy 
and ability of the learned editor in completing, within so short a 
lime, such a comprehensive review of the ci-iminal code, covering 
1080 pages, while engaged in the arduous business of our highest 
Canadian Court of Appeal. The preface points out the principal 
changes effected by the Criminal Code, which came into opera- 
tion on the 1st instant, — what has been abolished, what has been 
changed, and what has been added. This synopsis must prove 
extremely useful to the practitioner. It would have been desu*- 
able that these points should have been noted in an official report 
accompanying the Statute itself, but in default of this the learned 
judge's observations will be of great use in practice. The work 
proceeds to treat of each of the 983 ai*ticles of the Code, with 



216 THE LEOAL NEWS. 

copious citations from the standard text-writers and references to 
decisions. The mere list of cases cited occupies fifty pa^es. 
Those who are acquainted with the Iwo previous editions need 
not be informed that the work evinces throughout tlie great 
learning, ability and diligence of the author, and that it will be 
indispensable to all who have any share in the administration of 
the criminal law. The typographical execution of the book is 
excellent, and reflects credit upon the publisher, the Cai*swell 
Co., of Toi-onto. 

SUPERIOR COURT ABSTRACT, 

Juge: — A une action en dommages pour injures verbalen et 
diffamation, 1e d^fendeur peut plaider qu'il n'a jamais dit les 
paroles incrimin^es, mais qu'il en a dit d'autres, et que ces autres 
paroles ^taient justifi^es par les circonstances dans lesquelles 
elles ont ^t^ prononc^es. Langelier v. Casgrain, C. S., Quebec, 
Caron, J., 5 mai 1893. 

Vente simulee — Action en annulation par creancier posfSrieur — 

Deled— G. C. 1039, 1040. 

Jugi: — Une vente simul^e et frauduleuse ne fait pas sortir le 
bien vendu du palrimoine du vendeur, et peut §tre attaqu^e par 
les cr^anciers du vendeur, m@me plus d'un an apr^s qu'ils Tont 
connue, et par les cr^anciers post^rieurs aussi bien que par ceux 
ant^rieurs k cette vente. 

Dans I'esp^ce la vente attaqu^e est annul^e comme frauduleuse 
et simul^e, 4 la pourauite des demandeurs qui ne sont devenus 
er^anciers du vendeur qu'apres la passation de Tacte. Andrews, 
J., dissentiente. — Gendron et al, v. Labranchey Quebec, en revision* 
Casault, Bouthier, Andrews. J J., 30 mara 1893. 

Workmanship — Claim for value of — Destruction of object before 

acceptance of work. 

The plaintiff undertook to paint statues for the defendant at a 
fixed price for each statue, the defendant furnishing the unpaintod 
statues. A number of the statues, afler they had been painted, 
were destroyed by a fire which occurred in defendant's premises, 
before the statues had been accepted by him and before he had 
been put in default to receive them. 

Held: — ^That the plaintifl" was not entitled to recover fi'om the 
defendant the price stipulated for the painting. — Rozetsky v. 
Beullac, S.C., Montreal, Doherty, J., November 18, 1892, 



THE LEGAL NEWS. 2lT 

ONTARIO DECISION. 

Railway company — Carriers — Liability as, 

Tho plaintiff delivered a qaantity of apples to the defendants 
at their warehouse for the purpose of shipment by the defendants' 
railvraj, and, on sufficient being delivered to fill a car, applied 
for a car, and was promised one at a named date. Tho defendants 
failed to furnish the car at the date specified, and, a fire occurring, 
the apples were destroyed. 

Heldy Bose, J., dissenting, that the responsibility of the defen- 
dants was that of carriers and not of warehousemen, and there- 
fore the}' were liable for the loss sustained by the plaintiff. — 
Milloy V. Grand-Trunk R, Co., Divisional Court, March 4, 1893. 



CORONERS' INQUESTS. 

The C-ommittee of Management of the* SadclifPe Infirmary at 
Oxford has addressed a petition to the Lord Chancellor complain- 
ing of the action of the coroner for the city in ordering the 
riimoval of the bodies of patients who have died in the infirmary 
to the mortuary for the purpose of holding inquests. An opinion 
given by counsel as to the legality of these removals is appended 
to the petition, which suid that these removals were not justified. 
By the old law the inquest had to be held super visum corporis^ and 
though this has not been done (if it means actually in presence 
of the body) for more than two hundred years, there is said to 
be no trace of any alteration of the law that the coi'oner and 
jury must view the body where it lies, with the exception of a 
body moved to a mortuary for the purpose of a post-mortem 
examination. Accordingly, the committee beg the Loixi Chan- 
cellor to intervene to prevent a course which they believe to be 
illegal. The coroner, replying to the petition and opinion, says 
that no injury to the body is suggested and no complaint by the 
friends of the deceased. He says that the removal of a body 
from one place to another has been the practice from time 
immemorial, and the power now in question was discussed in 
1891 in a case at (canterbury, and the Loi*d Chancellor expressed 
no disapprobation of the practice of removal there. I^e asks 
whether the body is to remain at the spot where it falls at death, 
and, if bO, how if it be at the bottom of a river. If this be law, 
he points out that most of the mortuaries, the creation of modern 
statutes, would be useless, and it must be illegal to use them for. 



218 THE LEGAL NEWS. 

most of the purposes for which they have been provided through- 
out the country at the public expense. The seci*etary to the 
Lord Chancellor replies to the petitioners that ' his lordship has 
communicated with the coroner on the subject of your petition, 
and has informed him that, while his lordship thinks it desirable 
not to express an extra-jadicial opinion on the subject of the 
coroner's jui*isdiction in relation to the removal of a body, he 
regards it as of the highest importance that in assuming such a 
power, the coi*oner should be guided by the consideration whether 
grave public inconvenience would follow from any other course.' 
In this particular instance the difference between the committee 
and th^ coroner as to the legality of the removal appears to be 
of long standing, for the coroner, in his reply to the petition, 
refera to a remark of Mr. Secretary Cross to the committee when 
they solicited his intervention — ^that ' the officers of the infirmary 
should readily conform to all legal requirements of the coroner, 
and should render to him eveiy assistance in the conduct of his 
inquest.' — Law Journal (^London). 



EXTRAJUDICIAL CONFESSIONS. 

The common law has always been hostile to confessions or ad- 
missions of guilt not made with absolute free will. In this res- 
pect it differs from the doctrine of the civil law and the derived 
usage of continental jurisprudence, under which the normal 
method of trial was, and is, to extract from the accused by tor- 
ture or the ingenious interrogatories which form the staple of 
French detective literature, and led to the fall of the Star Cham- 
ber, such an admission of his guilt as would save the need of 
extrinsic evidence. Without stopping to trace out the origin of 
this distinction, we may suggest that it arose infavaremmtoe from 
the severity of the old punishments for felony, and from the right 
of the accused to select the mode of his trial, and the old theory 
that his guilt depended on the verdict of the vicinage — i.e. local 
public opinion — coupled with a well-grounded hostility to any 
method which would enable the Crown to work forfeitures by 
extracting admissions, and it is curious to observe that the one 
case in which confession, as distinguished from a plea of guilty, 
was essential was where the offender claimed benefit of clergy, 
and the consequent right to abjure the realm, as in a case where 
.the jurisdiction of the common law was declined by a privileged 



THE LEGAL NEWS. 219 

class. In m'^idern tiroes the circumstancea which rendei^ the 
admission or confession of a prisoner receivable in evidence against 
him have been again and again discussed, aad from time to time 
uncertainty has arisen in the administration of the law. But, by 
the decision in Regina v. Thompson, on April 29, those doubts and 
difficulties appear for the present to have been cleared away. In 
that case the prisoner was convicted of embezzlement upon evid- 
ence which included a confession by him. One Crewdson, at 
whose instance the warrant for the prisoner's arrest had been 
issued, had an interview with the prisoner's brother and brother- 
in-law, at which Crewdson suggested that it would be the right 
thing for the prisoner to make a clean breast of it, but made nei- 
ther threat nor promise. This interview was communicated to 
the prisoner, who subsequently made to Crewdson and a dii*ector 
of the company whose servant he was the admissions put in evid- 
ence. Upon these facts the Court of Criminal Appeal held that 
a confession, to be admissible, must be free and voluntary, and 
made without any inducement from any person in authority, and 
that where any doubt exists as to the free and voluntary char- 
acter of the confe:5sion, the burden of proof that it was voluntary 
rests upon the prosecution. The result of this judgment is to re- 
state clearly the common law rule, and to restrain any tendency 
to infringe it by throwing on the accused the duty of displacing 
any presumption in favour of the voluntary character of confes- 
sions of the kind in question. Of the cori*eetness of the decision 
there can be no doubt. It casts upon the party tendering the 
evidence the bui*den of satisfying the conditions which alone can 
render it admissible, and the views of the judges fall in with the 
enactments regulating admissions made in Court in criminal 
cases. This is clearly shown \)y the caution prescribed by II & 
12 Yict. c. 43; s. 18. to be given by the magistrate before a person 
accused of an indictable offence is called upon for his answer; 
' Yon have nothing to hope from any promise of favour and 
nothing to fear from any threat which may have been made to 
yon to induce you to make any admission or confession of guilt.' 
These words do not apply to statements made before the caution, 
and are meant to warn the accused that everything said in Court 
after the caution is admissible in evidence notwithstanding 
previous threats and promises. The last proviso of the section 
above cited provides that the admissibility of this statement in 
no way affects the right to put in evidence any extrajudicial ad- 



220 THE LEGAL NEWS, 

mission or confession by the accueed, the admissibility of which 
rests on the considerations stated io the judgment in Regina v. 
Thompson, — Law Journal (London), 



THE CUSTOM OF THE MUSIC HALL, 

In the Westminster County Court, (May 11) the case of io/^us 
V. Harris came before his Honour Judge Lumley Smith, Q. C, 
and a jury. The action was brought by Miss Marie Loftus, a 
burlesque actress^ agninst Sir Augustus Harris, as managing 
director of the Palace Theatre of Varieties (Limited), to recover 
the sum of 43/. 6s, 8d, which she alleged was due to her under 
an agreement. Mr. J. P. Grain was counsel for the plaintiff, and 
Ml*. H. Kisch for the defendant. Mr. Grain said that the plain- 
tiff was a popular burlesque and serio-comic actress. She claimed 
for one week's salary and a matinSe. She entered into a contract 
with the defendant to appear in the title-rdle io * Little Bo-peep,' 
the pantomime at Drury Lane Theatre, in 1892-93. She was to 
have 45/. a week, and in consideration of that she agreed that 
when she was in town she would perform only at the Palace 
Theatre. After the pantomime season she sang at the Palace, 
taking an early ' turnJ When she came off she was told that 
she would have to take another ^ turn ' about two hours later ; 
but she refused to do so, as it was against the custom of the 
music-hall profession as well as against the terms of the contract 
To show how much Sir Augustus Harris valued her services, he 
had entered into an agreement with her for her to perform in his 
next (1893-94) pantomime at a weekly salary of 75^. — The plain- 
tiff, on oath, bore out counsel's statement. In cross-examination, 
she said that she did object to being put on to sing to empty seats 
so early in the evening. The custom of the music-hall profession 
was * to do only one turn.* — ^The proprietor and managers of the 
Middlesex, Queen's, Canterbury, and other music-halls gave 
evidence as to the custom being for artistes to ^ do ' only one turn 
a night. — Sir Augustus Harris said that he engaged the plaintiff 
to do more than one turn. There was no question as to turns, 
but an engagement for whatever was required. Cross-examined : 
Several artistes performed several times a night. — Mr. Kisch con- 
tended that there was no music-hall question in the case, as the 
Palace had not yet received the music-hall license, although 
gi*anted. One * turn ' only would mean a matter of perhaps six 



THE LEGAL NEWS. 221 

or seven minutes, and the plaintiff' claimed that she was to have 
40Z. a week for that. — The jury found a verdict for the plaintiff 
for 40i., and bis Honour gave judgment, with costs. 



LIABILITY OF A SLEEPING CAR COMPANY FOR LOSS 

OF BAGGAGE. 

[OoDoluded from p. 212.] 

Except in the matter of furnishing meals, there seems to be no 
essential difference between the accommodations at an inn and 
those on a sleeping car, except that the latter are necessarily on 
a smaller scale than at an inn. 

In both cases the porter meets the traveller at the door and 
takes whatever portable articles he may have with him. He 
waits upon him and the other passengers in the car so long as 
they remain therein. The traveller is not required to sit in his 
seat during the day, but may if he so desire, go forward into the 
other cars on the train, and at stations may go out on the platform. 

A passenger in a sleeping-car need not avail himself of these 
privileges, but the fact that he may do so, and that many persons 
actually do avail themselves of the same, is well known to every 
traveller, and to the company, and is a circumstance in the case. 

If it is said that it would be unjust to hold the company to the 
same liability as an innkeeper, because thieves might engage one 
or more berths in a car, and at the fii*st opportunity leave the car 
carrying what articles they could steal before leaving, the same 
is true of an innkeeper. Thieves, in the garb of respectable 
people, may take i*oomsat an inn, and afterwards steal what they 
can and escape, yet no one could contend that the innkeeper 
would not be responsible for the property so stoh n, and this 
whether it is stolen at night or in the day time, yet in many of 
the large inns of this country at least, there are numerous dooi*s 
for ingress and egress, while in a sleeping car there are but two. 
Where meals are served on a sleeping car, no one would contend 
that it differed from an inn in its accommodations. 

An examination of the later cases will show a disposition on 
the part of the courts to hold the companies to a strict accounts 
and many of them require vigilance and attention of the em- 
ployees far beyond those required of mere bailees. {Tracy v. 
Pullman etc, Co.y 67 How. Pr., 154 ; Carpenter v iV. Y, etc, Ry, Co,, 
124 N. Y. 5.3; PMinan etc, Co. v. Pollock, 69 Tex. 120; R, R. 
Co, V. Wairath, 38 O. S. 461 ; LouUville etc, R. Co, v. Katzen- 



222 THE LEGAL NEWS. 

6m>CTi, 16 Lea. 380; Woodruff v. Buhl, 84 Ind. 474; Lewi y. 
N. Y. S, (7., Co. 143 Mii88. 269; III. etc. B. Go. v. Handy, 
63 Miss. 609. 

These chaDges in the decisions in favor of strict vigilance on 
the part of the employees show that the grounds on which the 
decisions were originally based are not regarded as satisfactory, 
and a degree of vigilance is insisted upon which is never required 
of a mere bailee. This brings us back to the questiop as to the 
nature of sleeping car companies. They are not common carriera 
because it is not their business to transport passengere. They 
Qifer them, however, while being carried to their destination, 
comfortable cars, well kept and ventilated, with all toilet con- 
veniences and good beds on which to rest, ^'ow the furnishing 
of food for guests and stables for their animals are incident to the 
busincsH of keeping an inn, yet neither is indispensable to con- 
stitute an innkeeper. The real business consists in the innkeeper 
inviting travellers to his house and providing for their comfort 
and safety while they stay, be it a day, week or month. The 
law implies a guarantee on the landlord's part that neither the 
gnest nor his property shall suffer harm while in the landloixi's 
care. Is there not the same implied guarantee on the part of the 
sleeping car companies ? One of the controlling reasons for im- 
posing a liability on the landloi*d is that guests cannot protect 
themselves during sleep, and therefore must rely on the honesty 
and good faith of the innkeeper. Do not all these reasons apply 
to sleeping cars ? We must bear in mind that it is their business 
to furnish beds to their patrons, and that these pati-ons are help- 
less during sleep and must rely on the honesty and good faith of 
the companies to protect them. This the companies have the 
means to do, which ordinarily the travellers have not. Suppose 
a traveller leaves Boston, New York, Philadelphia, Baltimore or 
Washington, over some of the leading railway lines, for San 
Francisco, and takes a sleeping-car and his meals on the train, 
the charges will average probably from five to six dollars per day 
while the average charges at first class hotels along the route 
will not exceed four dollars per day. In addition to these 
charges the porters are paid a considerable part of their wages by 
the passengers. 

In any event the sleeping car charges will considerably ex- 
ceed those at a first class hotel, on the same route. Now, can 
any valid reason be given why the traveller while stopping at an 



THE LEGAL NEWS. 223 

inn along this route should be protected but will be T^itlioiit pro- 
tection on the sleeping car? 

If the reasons given by the Maasachusettfl Sapremo Court in 
the case cited are sound, that the liability of innkeepers is im- 
posed from considerations of public policy as a meaub of protect- 
ing travellers fi*om the negligence or dishonest practices of the 
innkeeper and his servants, then the same reasons apply with 
equal force to sleeping car companies. — Samuel Maxwell in 
American Law Review. 



" MISSlJfG WORD " COMPETITIONS. 

An ingenious attempt to establish a form of *' missing word " 
competition which should not be an illegal game of chance within 
the meaning of the Lottery Acts was defeated by Mr. Justice 
Stiblino on Saturday last in the case of Rayner v. Answers, A 
paragraph was inserted in the columns of Answers to the effect that 
the origin of the old City charities could not be precisely deter- 
mined '' as they had grown so /' and then came the familiar 

blank which competitors were required to supply. The missing 
word was imperceptibly^ and it was contended on behalf of the 
newspaper that as this was, if not the only, at least the most 
appropriate term with which to fill the hiatus in the paragraph, 
its selection required skill, and therefore the competition was not 
a lottery. Mr. Justice Stirling, however, overruled this con- 
tention, and directed that portion of the proceeds of the competi- 
tion which had been paid into Court, to be repaid to the proprie- 
tors of Answers in order that they might meet the claims of the 
unsuccessful competitors. There can be no doubt that his lord- 
ship's decision was correct. Even if we make the large conces- 
sion that the growth of the City charities has, in fact, been im- 
perceptible, it is obvious that silently or invisibly would have 
brought out the meaning of the paragraph quite as clearly as the 
word which the promoters of the competition used. As between 
these, and possibly other, synonyms the determination of the 
question of priority was a matter of chance, and therefore the 
competition was a lottery within the well-ascertaiDcd meaning of 
the term. The result of this interesting case will eurely be to 
render the revival of the missing word competition in any form 
practically impossible. Eveiy point of which the nature of the 
subject admits has now, we should imagine, been taken and 
judicially considered. First, in the prosecution of Fick-Me-Vp, 



224 THE LEGAL NEWS. 

the purely arbitrary Belection of a 'missing word' before the 
competition was held illegal ; then, in the case of Barclay v. Pear- 
sen^ the deliberate choice of a woixl after the competition was 
judicialij condemned and ihe legal position of the sacccssful and 
unsuccessful competitors was defined ; and now the doctrine laid 
down in Barclay v. Pearson has been held by implication to apply 
to the case of arbitrary selection from a limited number of 
synonyms. It is a matter for congratulation that the Lottery 
Acts, in spite of their comparative antiquity, have been found 
strong enough to put down the very mischievous species of 
national gambling to which these missing word competitions 
were giving rise. — Law Journal (London). 



INTERNATIONAL ARBITRATION 

In the English House of Commons, June 15, Mr. Cremer moved 
on the oi-der for going into Committee of Supply, a resolucion 
declaring that this House had lournt with satisfaction that both 
Hou!«es of the United States Congress had authorised the Presi- 
dent to conclude a treaty of arbitration with any other country ; 
and expressing the hope of this House that Her Majesty's Govern- 
ment would, at the Hrst convenient opportunity, open up negotia- 
tions with the Govornrcent of the United States with a view to 
the conclusion of Kuch a treaty between the two nations, so that 
any differences or disputes arising between the two Governments 
which could not be adjusted by diplomacy should be referred to 
arbitration. 

Sir J. Lubbock seconded the rcHolution. 

Mr. Gladstone said that, although a treaty of arbitration was 
undoubtedly a novelty and an object which in former times it 
would have been wild to dream o(, yet ho did not think it was 
beyond the reach of a reasonable hope that such a treaty might 
before long, under favourable circumstances, be concluded be- 
tween this country and the United States. It was the complexity 
of the foreign relations on this side of the United States which 
imported the greatest difficulty into this case. Criticising the 
terms of the resolution, the right hon. gentleman pointed out 
that it was not strictly accurate to say that the two Houses of 
Congress had authorised the President to conclude treaties of 
arbitration. What Congress contemplated was that the initiative 
should be taken by the President, and as a matter of international 
courtesy we ought not to adopt words which would prevent that 



THE LEGAL NEWS. 225 

initiative from being taken. The object in view would, in his 
judgment, be completely gained if the following words were 
added : 'That this House, cordially sympathising with the pur- 
pose in view, expresses the hope that Her Majesty's Government 
will lend their ready co operation to the Government of the 
United States on the basis of the foregoing resolution.' After 
briefly explaining what had taken place between the two Govern- 
ments in order to enable the House to underetand the present 
situation, the right hon. gentleman dwelt on the value of these 
resolutions in favour of arbitration, and expressed a hope that a 
central nnd impartial tribunal might eventually be established 
for the settlement of international disputes. 
Mr. Gladstone's resolution was ultimately agreed to. 



CONTEMPT OF COVET. 

It is interesting to compare the opinions expressed in leading 
articles in the daily press on the subject of contempt of court as 
applied to them with the rulings, dicta, and decisions of reported 
cases. A writer in a morning paper recently attacked what he 
called a ' mischievous prerogative,' and stated that ' the whole 
of the jurisdiction claimed and exercised by the judges is utterly 
inconsistent with the freedom of the press and with the public 
interest in knowledge of the truth.' It is significant that the 
article containing these and other equally strong expressions, was 
afterwards copied in extenso into the columns of the Times, 

There is no doubt that the rules are strict, but it is equally 
certain that they are constantly infringed by papera of a certain 
class with the sole object of creating a paying sensation, and not 
by any means consistently with * the public interest in know- 
ledge of the truth.' Even interlocutory proceedings such as 
applications in chambers are now sometimes reported when they 
occur in cases of which the names are known to the reading 
public, notwithstanding that one of the judges has stated that 
this practice is new and improper, and such reports are of courae 
read by many people who, from being wholly unacquainted with 
the technicalities of procedure, are likely to mistake their mean- 
ing. The liberty of the press is, of course, a safeguard which 
ought to be preserved at any cost, and one of the highest judicial 
authorities on the Bench has expressed his conviction that even 
the action of Her Majesty's judges ought to be open to fair criti- 



226 THE LEGAL NEWS. 

C181D, bat all fiuch criticism and coiument ought to be impartial 
and, in its way, judicial, not impulsive or careless, and it is im- 
portant to recollect that the rules as to ' fair comment ' do not 
extend to matters still pending in the Courts, because, of course, 
such publications may exercise an unintended and indirect in- 
fluence on the minds of those who have to decide on the merits 
of some particular case. 

The fact is generally overlooked that an intention to pervert 
the courae of justice is not necessary to make a newspaper com- 
ment amount to a contempt of Coui't : ' Anything which will 
have that eflfect may be punished' all the same. What is to be 
considered is, as Lord Langdale said in Littler v. Thompson, 2 
Beav. 129, whether the matter complained of is calculated to, or 
likely to, disturb the free course of justice, and when this is to be 
fairly infeiTcd, denial of intention can only go in mitigation of 
punishment, and conversely the appearance of such an intention 
makes it ' a contempt of the highest o]*der.' It is a still further 
aggravation if it is proved that the publication called in question 
was instigated or authorised (even though secretly, as in Daw 
V. Elet/j L. R 7 Eq. 49) by a party to the suit or his solicitor. 
< The principle,' said Loi*d Romilly, ' is quite established in all 
these cases, that no person must do anything with a view to 
pervert the sources of justice, or the pi'oper flow of justice ; in 
fact, they ought not to make any publication or to write any- 
thing which would induce the (/ourt, or which might possibly 
induce the Court or the jury, the tnbunal that will have to try 
the matter, to come to any conclusion other than that which is 
to be derived from the evidence in the cause between the parties, 
and certainly they ought not to prejudice the minds of the public 
beforehand by mentioning circumstances relating to the case.* 

The Tichbome Case caused so much excitement throughout the 
country that comments were freely made upon it from the first 
appearance of the claimant until his conviction, and proceedings 
were taken by and against him and his partisans. In Tichbome 
V. MoBtyn, L. B. 7 Eq. 55, Vice-Chancellor Page- Wood quoted a 
judgment of Lord Hardwicke pointing out the necessity for 
preventing misrepresentation of proceediugs in Ck>urts of justice, 
and the * pernicious consequence' of prejudicing the public mind. 
In SkipwortKs Case, L. R, 9 Q. B. 230, Mr. Justice Blackburn em- 
phasised the danger of * appealing to the public,' and quoted Lord 
Cottenham's judgment in Lechmere CharltorCs Case^ 2 My. & Cr. 



THB LEGAL NEWS. 227 

342 ; and the principle to be followed was well expressed in 
another of these cases, Tichhorne v. Tichborne^ 39 Law J. Bep. 
Chanc. 328, by Vice-Chancelior Stuart, who said,' whatever tends 
to prejudice a cause, whatever matter is published to the world 
referring to the parties, to the litigation, and to the subject mat- 
ter of it in such a way as to excite a prejudice against them, or 
their litigation, is a contempt of Court/ The most recent case 
on the subject is O'Shea v. O'Shea and Pamell, in which Mr. Jus- 
tice Butt inflicted a heavy fine, after giving judgment in the sense 
of the previous decisions. Applications to commit have lately 
become more frequent, and, as a rule, they have simply been 
dismissed with or without costs against the defendant, who al- 
ways apologises in Court; but the strict rule remains, and is* 
likely to remain despite the efforts of those who say that ' con- 
tempt of Court ' should be confined to interruption of judicial 
proceedings and intimidation of witnesses.— Zrou; Journal (Lon- 
don). 



GENERAL NOTES. 



The Judges and the Law. — ^The law, according to the well- 
known legal maxim, is a thing quod quisque scire teneiur. We 
may admit that the presumption of knowledge is somewhat 
strained in the case of laymen ; but it is alarming to find an 
eminent Queen*s Counsel, who has held high legal office, casting 
a doubt on Her Majestjr's judges' knowledge of the law. ' The 
judges,' said Sir Henry James during the discussion on the fourth 
clause of the Home Bule Bill, ^ know the common law — more or 
less,' he added after a pause, amidst the laughter of an irreverent 
House of Commons. — Law Journal. 

Happily ended. — A pleasing incident, says the Westminster 
Gazette, occuiTcd some fifteen years ago, in a northern town, 
where Sir Henry Hawkins was trying a young man for, in a 
moment of jealousy, assaulting the girl with whom be was " keep- 
ing company." The prosecutrix broke down in floods of tears 
while giving evidence against him. * I love him still,' she cried, 
' and will marry him to-morrow if you will only release him, my 
lord.' The prisoner was found guilty, and ordered to be imprison- 
ed for one day. The banns had already been published, and on 



228 THE LEGAL NEWS. 

his release next morning the fortunate young man found that 
the judge and sheriff had between them provided a wedding-ring, 
a carriage to convey the couple from the churchy and marriage 
fees, and the wedding took place next day. 

The babbsd-wibk fences bill. — ^The language of this bill 
atfords a curious illustration of the purposeless looseness of ex- 
pression which may sometimes be found in Acta of Parliament. 
It is too clear for argument that a fence made of barbed wire 
which is dangerous to persons lawfully using a highway is a 
nuisance at common law. It may be the subject-matter of an 
indictment, or of an action by any peraon sustaining particular 
damage by i*eason of it If authority were necessary for this 
proposition, the case of Stewart v. Wrigh^^ decided on May 30 by 
Mr. Justice Mathew an 1 Mr. Justice Wright, is enough. The bill 
without creating any new liability, enables a local authority to 
require and enforce the removal of such fences in a summary 
way. 1 he language in the body of the bill rightly refers to land 
adjoining a * highway,* and to persons or animals properly using 
such * highway.* The marginal note, however, refere to the 
removal of barbed wire fi*om ' public thorough fare^,' though a 
highway need not be a thoi*o ugh fare, and barbed wire is surely 
neither more nor less dangerous in a cul-de-sac. The title of the 
bill further amplifies the expression into * roads, streets, lanes, 
and other thoroughfares ! ' Boads, streets, and lanes are not ne- 
cessarily thoroughfares, and the bill has no application to roads, 
streets, or lanes unless they are highways. The only operative 
word in the bill is ' highway.* That term is clear, simple, and 
sufficient These eccentric rhetorical variations are not only 
useless, but embarrassing. — Law Journal (London). 

The death sentenoeb of nine tears. — A return just isaued 
shows that during the years 1884-92, inclusive, 256 persons were 
sentenced to death for the crime of murder in England and 
Wales. Of these, 145 were executed in due course; one was 
pardoned; in ninety-iive CAses the sentence was commuted to 
penal servitude for life; eight were removed to Broadmoor, 
having been certified to be insane; and in seven cases the 
prisoners were let off with minor terms of penal servitude. 



THE 



LEGAL NBWS. 



VOL. XVI. AUGUST 1. 1893. No. 15. 

HOMICIDE B Y NECESSIT F. 

SUPREME COURT OP ALABA.MA. 

January 26, 1893. 
Abp v. The State. 

Arp waB convicted in July, 1892, at the Alabama Circuit Court, 
of murder in the first degree, and was, accordingly, sentenced to 
death. He had murdered one Payne, in oixier to prevent him 
from appearing against him and two other men, Buckhalter and 
Leith, charged with retailing whiskey without a licence. Arp's 
excuse for the homicide was ' that Buckhalter and Leith threat- 
ened to take his life unless he killed the deceased ; that they 
were present, armed with double-barrelled shot guns, and threat- 
ened to kill him unless he killed deceased, and that it was through 
fear and to save his own life he sti*uck deceased with an axe.' On 
this phase of the evidence the Circuit Court was asked to give 
the following charge : * If the jury believe from the evidence 
that the defendant killed Payne under duress, under compulsion 
from a necessity, under threats of immediate impending peril to 
his own life, such as to take away the free agency of the defen- 
dant, then he is not guilty.* The Court refused this charge, and 
the refusal was upheld by the Supreme Coui't in Error. In deliver- 
ing judgment, Mr. Justice Coleman said : — 

This brings up for consideration the question : What is the law 
when one person, under compulsion or fear of great bodily harm 
to himself, takes the life of an innocent person ; and what is his 
duty, when placed under such circumstances ? The fact that the 
defendant had been in the employment of Buckhalter is no 



230 THE LEGAL NEWS. 

excuse. The command of a superior to an inferior, of a parent 
to a child, of a master to a servant, of a principal to his agent, 
will not jur^tify a criminal act done in pursuance of such an act. 
(I Bish. Crira. Law, s. 355; Beese v. State, 73 Ala. 418 ; Bl. Com. 
s. 27.) In a learned discussion of the question to be found in 
Com. V. Neal, 1 Lead. Crim. Cas. 81, and note, p. 91, by Bennett 
and Heard, it is declared that * for certain crimes the wife is re- 
sponsible, although committed under the compulsion of her 
husband. Such are muixler,' &c. To the same effect is the text 
in 14 Am. & Eng. £nc. Law, 649, and this Court gave sanction 
to the rule in Bibb v. State, 95 Ala. 31. 

In Ohio a contrary rule prevails in regai*d to the wife. {Davis 
V. State, 15 Ohio, 72.) In Arkansas there is a statute specially 
exempting married women from liability when ^ acting under the 
threats, commands, or coercion of their husbands ' : but it was 
held under this Act there was no presumption in favour of the 
wife accused of murder, and that it was incumbent on her to 
show that the crime was done under the influence of sncb coer- 
cion, threats, or commands. (Edwards v. State, 27 Ark. 493, 
reported by Green in 1 Crim. Law, 741.) 

In the case of Seal v. State, 72 Ga. 200, and also in the case of 
People V. Miller, 66 Cai..468, the question arose upon the suffi- 
ciency of the testimony of a witness to authorise a conviction for 
a felony, it being contended that the witness was an accomplice. 
In both cases the witness was under fourteen yeara of age. It 
was held that if the witness acted under threats and compulsion 
he was not an accomplice. The defendants were convicted in 
both cases. 

The learned judge referred to Regina v. Grutchley, 5 C. & P. 
133 ; 1 Hawk. P. C. 28, s. 26 ; 1 Hale, P. C. c. 8, pp. 49-51 : 4 
Black. Com. s. 30; East, P. C. 294; and Regina v. Tyler, 8 C. & 
P. 616, and then proceeded : — 

In the case of Eespublica v. McOarty, 2 Dall. 86, when the de- 
fendant was on trial for high treason, the Court uses this language : 
' It must bo remembered that in the eye of the law nothing will 
excuse the act of joining an enemy but the fear of immediate 
death; not the fear of any inferior personal injury, nor the ap- 
prehension of any outrage on property.' The same rule in regard 
to persons charged with treason as that stated in Hale P. G. is 
declared in Hawkins (vol. i. chap. 17, s. 28, and note), and both 
authors hold that the question of the pmcticability of escape is 



THE LEGAL NEWS. 281 

to be considered, and that if the person thas acting under com- 
pulsion continued in the treasonable acts longer than was neces- 
Hary, the defence ]^to timore mortis will not be available. This 
principle find?* further support in the caae of U. 8. v. Grriner, 
tried for treason, reported in 4 Phila. 396 in the following lan- 
guage : * The only force which excuse:^ on the grounds of com- 
pulsion is force upon the peraon, and present fear of death, which 
force and fear must continue during all the time of military ser- 
vice; and that it is incumbent in such a case who makes force 
his defence to show an actual force, and that he quitted the ser- 
vice aa soon as he could.' 1 Whart. Grim. Law, s. 94, under the 
head of Persons under Compulsion,' says: ^ Compulsion may bo 
viewed in two aspects: (1) When the immediate agent is phy- 
sically foi*ccd to do the injury— as when his hand is seized by a 
person of superior strength, and is used against his will to strike 
a blow, in which case no guilt attaches to the person so coerced ; 
(2) when the force applied is that of authority or fear. Thus 
when a poi*son, not intending wi*ong, is swept along by a party 
of persons whom he cannot resist, he is not responsible if he is 
compelled to do wrong by threats on the part of the offenders 
instantly to kill him, or to do him grievous bodily harm, if he 
refuses ; but threats of future injury, or the command of any one 
not the husband of ihe offender, do not excuse any offence. Thus 
it is a defence to an indictment for treason that the defendant 
was acting in obedience to a de facto Grovernment, or to such con- 
curring and overbearing sense of the community in which he 
resided as to imperil his life in case of dissent.' In section 1,803a 
of the same author (Wharton) it is said : ' No matter what may 
be the shape compulsion takes, if it affects the person, and be 
yielded to bonafidey it is a legitimate defence.' 

We have examined the cases cited by Mr. Wharton to sustain 
the text, and find them to be cases of treason or fear from the 
party slain, and in none of them is there a rule different from 
that declared in the common law authorities cited by us. Bishop, 
Crira. Law, sections 346-348, treats of the rules of law applicable 
to acts done under necessity and compulsion. It is here declared 
' that always an act done from compulsion or necessity is not a 
crime. To this pi'oposition the law knows no exception. What- 
ever it is necessary for a man to do to save his life is, in general, 
to be considered as compelled.' The cases cited to these pi*oposi- 
tions show the facts to be different from those under consider- 



232 THE LSOAL NEWS. 

ation. The case refen-ed to in Beniger v. Fogossa, 1. Plow. 19, 
was where the defendant had thi'own overboard a part of hU cargo 
of green wood, during a severe tempe^^t, to save his vessel and the 
remainder of his cargo. The other (^Regina v. Bomber, L. B. 5 
Q. B. 270) was for the failure to keep up a highway, which the 
encroachments of the soa hal mode impossible; and that of 
Tate V. State^ 5 Blaclcf. 73, was also that of a supervisor of a 
public highway; and the others wore cases of treason, to which 
reference has been made. In section 348 the author cites the 
rule laid down by Russell, and also of Loixl Denman, and in 1 
East, P. C, to which reference has already beea made. In sec- 
tion 845 the same author (Bishop, ' Crim. Law.' 7th edit.) uses 
the following language : ' The cases in which a man is clearly 
justified in taking another's life to save his own are when the 
other has voluntarily placed himself in the wrong. And probably, 
as we have seen, it is never the right of one to deprive an innocent 
thix*d person of life for the preservation of his own. There are, 
it would seem, circumstances in which one is bound even to die 
for another.' The italics are ours, emphasised to call attention 
to the fact that the author is careful to content himself more with 
reference to the authorities which declare these principles of law 
than an adoption of them as hfs own. The authorities seem to 
be conclusive that at common law no man could excuse himself, 
under the plea of necessity or compulsion, for taking the life of 
an innocent person. 



TEE QUEBEC BUSINESS TAX. 

The following opinion, obtained some time ago from Messrs. 
Macmaster, Q. C, and Greenshields, Q. C, will be of interest on 
account of the cases to which reference is made ; but we repro- 
duce it without in any way concurring in the conclusion, the 
question of the power of the legislature to pass the Act, as it 
seems to us, having already been settled by the Privy Council in 
Bank of Toronto <& Lambe : — 

Our opinion is asked by a committee of the citizens of Mont- 
real, acting on behalf of a large number of manufacturers and 
tradei*s, as to the validity of *^ an act respecting certain licenses" 
(55 and 56 Victoria, cap. 10), obliging manufacturers and traders, 
on or before the first of October in each year, to take out a 
license for the transaction of their busines.^, and to pay in each 



THE LEGAL NEWS. 233 

case a BpeciBed sam of money therefor, under pain, in default, of 
penalty and imprisonment. 

In determining this question, it is not for us to consider 
whether the legislation in question is wise or unwise, necessary 
or unnecessary, reasonable or oppressive. These are ques^t ions 
for the legislator and the taxpayer, which do not fall within the 
domain of legal enquiry. 

That Parliament is supreme is a common saying; but it has 
reference to countries where there is but one parliament. In 
Canada we have a division of legislative power between the 
Federal or Dominion Parliament, and the Legislatures of the 
several provinces. Each of those law-m'i!cliig bodies is supreme 
within its own jurisdiction, and when the enquiry arises as to 
whether any piece of legislatio:! has been competently enacted 
or not, the first question is whether the principal subject matter 
and purpose of the act fall within the jurisdiction of the enacting 
body. 

Parliament or the legislature is therefore only supreme in 
Canada when the subject and objects of its enactment fall within 
its own jurisdiction. 

There are some subjects in respect of which the Parliament of 
Canada and the Legislatures of the provinces have concurrent 
power j but it is not necessary to consider these at present. 

Our statutory constitution is the British North America Act of 
1867, enacted by the Imperial Parliament, and declared in the 
preamble to be '' a constitution Himilar in principle to that of the 
United Kingdom." In truth, our constitution being federal in 
principle, and not legislative like that of Great Britain and 
Ireland, is entirely dissimilar in respect of legislation to that of 
Great Britain, so much so that Mr. Dicey, in his celebrated work 
on *' The Law of the Constitution,** has characterized the prefato- 
ry statement in the preamble of the British North America Act 
as an instance of ^' official mendacity." 

Our constitution resembles that of Great Britain more in the 
unwritten law of the constitution than in its statutory enact- 
ments. 

By sections 91 and 92 of the British North America Act, called 
for convenience the Confederation Act, a distribution of legislative 
powers is made between the Parliament of Canada and the 
Legislatures of the provinces. 



234 THE LEGAL NEWS. 

To the Canadian Parliament is assigned by section 91 plenary 
power to make laws for the peace, oi*der and good government of 
Canada, in relation to all maltera not coming within the classes 
of subjects assigned exclusively to the Legislatures of the pro- 
vinces. Then ** for greater certainty, but not so as to restrict 
the generality of the powers so conferred upon the Parliament 
of Canada, it is expressly declared that (notwithstanding anything 
in this act) the exclusive legislative authority of the Parliament 
of Canada extends to'' certain specified enumerated classes of 
subjects, among others " The Hognlation of Trade and Commerce," 
** Postal Service," "Militia," Banking," "Currency and Coinage.** 

Familiar instances are given, and in respect of all such matters 
the Parliament of Canada has, notwithstanding anything in the 
Confederation Act, exclusive legislative authority, and if the 
subject matter and purpose of the legislation falls under the 
description of anyone of those headings, the Legislature of the 
province has not a vestige of legislati7e authority over it. 

The legislature of Quebec, therefore, could not impose one 
cent's duty or tax on a bushel of beans going out or coming into 
the province, could not authorize the raising of a corporal's guard 
of soldiers wearing the Queen's uniform, and could not issue paper 
money or metal coin to the value of five cents. But while this 
is so, it will be found that the powers of legislation vested in the 
provinces are large and exceedingly important. 

The province may, by section 92 of the British North America 
act, exclusively make laws in relation to matters coming within 
the classes following : — " Direct taxation in the province in order 
to the raising of a revenue for provincial purposes," " the boiTOw- 
ing of money on the sole credit < f the .province," " municipal 
institutions in the province," " shop, saloon, tavern, auction- 
eer and other licenses, in oi'der to. the raising of a revenue 
for provincial, local or municipal purposes," "the solemn- 
ization of marriage in the pi'ovince," " property and civil rights 
in the province," ^* and generally all matters of merely local or 
private natui*e in the province." The legislature of Quebec could, 
therefore, repeal the Civil Code, and substitute for it the laws of 
the Modes and Persians, in so far as these laws concern property 
and civil rights. It cannot issue a penny piece of current coin, 
but it can sell the credit of the province — while the credit is 
saleable — to an extent sufficient to bankrupt the exchequer; 
and, though it cannot tax the incoming bushel of beans, it has, 



THE LEGAL NEWS. 285 

in fact, been judicially held on the highest authority that it can 
tax millions of money that never ventured across our boundaries, 
if the financial institution controlling these funds has an agency 
doing buniness within our confines. It mny exclusively make 
laws in i*eference to *^ municipal institutions/' and that apparently 
linrmloss expression, popularly associated with township and 
county government, has been judicially interpreted to embrace 
an imperium in imperio of wide dimensions. In virtue of these 
words, the province can competently authorize a city to say when 
its taverns shall be closed and opened, when the billiaixlist must 
put down his cue, and it is an open question whether it could 
not enact the houra for closing theatres and commencing divine 
service. It may make police regulations, and though it cannot 
uniform a single soldier under the colors of the Queen, it may 
engage an army as large as the Tzar's to enforce these regulations. 

Saving the office of lieutenant-governor, who is an integral 
paitof the Legislature, representing there the Queen and the 
Federal authority, it can amend its own constitution and, 
possibly, abolish itself, or put the Legislative Council and 
Assembly in commission for a number of years. We will not 
go so far as to say that it could appoint an official liquidator for 
provincial affairs, for under the British system there must be a 
Government, and 'Hhe Queen's Government must be carried 
on," come what will. 

Saving the restriction as to the office of Lieutenant-Governor, 
it could substitute for the present provincial constitution one 
exactly similar ]n terms to that of the Bulgarian Sobrange. 

No one cac therefore doubt that the powers of the local Legis- 
lature are large and important. 

The Judicial Committee of the Privy Council has tersely defined 
*' the true character and position of the provincial Legislatures " 
in the case of Hodge and the Queen, (Law reports, 9 Appeal 
Cases 132) as follows : — 

" They are in no sense delegates of, or acting under any mandate from, 
the Imperial Parliament. When the British North America act enacted 
that there should be a T..egislatare for Ontario, and that its Legislative 
Assembly should have exclusive authority to make laws for the province 
and for provincial purposes in relation to the matters enumerated in 
section 92, it conferred powers not in any Hense to be exercised by 
delegation from, or as agents of, the Imperial Parliament, but authority 
as plenary and as ample within the limits prescribed by section 92 
as the Imperial Parliament in the plenitude of its power possessed 



236 THE LEGAL NEWS. 

and could bestow. Within these limits of subjects and area the local 
Legislature is supreme, and has the same authority as the Imperial 
Parliament or the Parliament of the Dominion would have, under like 
circumstances, to confide to a municipal institution or body, of its own 
creation, authority to make by-laws or resolutions as to the subjects 
specified in the enactments, and with the object of carrying the enact- 
ment into operation and effect" 

The Judicial Committee has also put down a rule or method 
for dotermining whether legislation falls under section 91 (enu- 
merating the powers of the federal Parliament) or under section 
92 (enumerating the powers of the Local Legislatures). 

"The first question is whether the act impeached in the present 
appeal (providing that fire insurance policies in Ontario should be 
subject to certain statutory conditions) falls within any of the classes of 
subjects enumerated in section 92» and assigned exclusively to the 
Legislatures of the provinces ; for if it does not it can be of no validity, 
and no other question would then arise. It is only when an act of the 
provincial Legislature prima facie falls within one of tr.ese classes of 
subjects that the further questions arise, viz , whether, notwithstanding 
this is so, the subject of the act does not also fall, within one of the 
enumerated classes of subjects in section 91, and whether the power of 
the provincial Legislature is, or is not, thereby overborne.'' [Citigens 
Inmrance Co. v. ParsonSf Law Reports, 7 Appeal Cases 96 et seq.) 

Let us apply that tebt to this case. Admitting for the moment 
that the subject matter of the legislation here prima facie falls 
within the sub-section of section 92, which permits the local 
Legislature exclusively to make laws in relation to ''shop, 
taverp, saloon, auctioneer, and other licenses in order to the 
raising of a revenue for provincial, local or municipal purposes," 
does it also fall within one of the enumerated classes of subjects 
in section 91, and is the power of the provincial Legislatare 
thereby overborne? Does the provincial enactment in this case 
contravene the power not merely vested in the Parliament of Can- 
ada, but declared to be vested 'exclusively," notwithstanding any- 
thing in the act, to legislate in respect to ^' the regulation of 
trade and commerce ? " Can the Legislature of Quebec, con- 
sistently with the existence of exclusive power in the Parliament 
of Canada to legislate in respect to trade and commerce, say to 
a trader or manufacturer, doing business in the province of 
Quebec, *' You must pay an annual license fee of 950 or 9100 
per year on your business as a trader or manufacturer, and if 
you do not, you will be fined and sent to jail for one month ? " 
If it may do so it may increase the fee, penalty or imprisonment 
by twenty-fold or one hundred-fold. 



THE LEGAL NEWS. 287 

What would be the effect if the Legislatures of all the pro- 
vinces imposed at the same time a direct tax upon the banks 
similar to that imposed and collected in Quebec? The same 
capital woald be subject to taxation seven times, once in each 
province. 

Is the existence of such a power in the Legislaturn consistent 
with the existence of an exclusive power in the Dominion Parlia- 
ment to regulate trade and commerce ? If it is. a time may come 
when the exclusive authority of the Dominion Parliament would 
be reduced to a fiction, when there would bo no trade or commerce 
left to regulate. It is no answer to this to say that it is not to be 
assumed that the Legislature would tax trade and commerce out 
of existence, for, if it has the power to levy the tax it can make 
the levy small or large according to its caprice or necessities. 

The real question is not whether it may tax moderately or 
excessively, wisely or unwisely, but whether it cm tax trade and 
commerce indefinitely, consistently with the regulating power of 
the Dominion Parliament. If it can, Federal power over trade 
and commerce is reduced to a shadow. 

Suppose that each of the provinces taxed the business of manu- 
facturers and traders to the verge of annihilatio:i and that the 
Dominion Parliament, in order to preserve the nation from be- 
coming a purely .pastoral country, passed an act regulating trade 
and commerce throughout the Dominion, and providing that the 
business of a trader or of a manufacturer should be exempt from 
taxation of every kind, or that a bounty should be paid to eveiy 
person engaging in the business of manufacturing and trading, 
such act not touching in any way the rights of the provincial 
legislatures to tax property and all persons rateably and equally 
within the pi*ovinces, would such an act be ultra vires of the 
Federal Parliament ? We think not. And if not, what would be- 
come of the License act in question ? The supposed Federal act 
and the present License act could not exist concurrently. It is 
no answer to say that the Dominion Parliament has not passed 
such an act. The real question is, are the Federal powers trans- 
gressed now ? 

Begard must be had to the true confines of legislative jurisdic- 
tion between the legislature and parliament, according to the 
true intent and meaning of the imperial statute, whether colonial 
legislation, federal or provincial, may have supervened or not. 



238 THE LEGAL NEWS. 

In like manner the Federal Parliament mast not transgress the 
domain of the Provincial Legislature. 

If, for example, the Parliament of Canada should enaot that 
marriage throughout the Dominion of Canada might be solemnized 
'^ by jumping a broomstick," provided a fee of 950 were first paid 
to a collector of federal revenue, such legislation would be ultra 
vires as a transgression of the exclusive power of the local Legis- 
latures over "the solemnization of marriage,*' an 1 as not being an 
enactment coming within the general power vested in Parliament 
to legislate in respect to '* the peace, oi*der and good govern- 
ment " of the country. 

We have given extreme instances of legislation in order to 
illustrate principles that underlie the distribution of legislative 
power in our constitution, and the boltor to test their application. 
We have not failed to give due consi«leration to the cases that 
have already been decided in Canada and in England upon the 
construction of the two sections 91 and 92 of the British North 
America Act, We have not overlooked the decisions of the Privy 
Council in the cases of Parsons and the Citizens Insurance com- 
pany ; the Attorney General of Quebec and the Queen Insurance 
company ; the Attorney General of Quebec and Reid ; Eussell 
and the Queen ; the Bank of Toronto and Lambe, Hodge and the 
Queen, and other cases in the Privy Council and in our own Su- 
preme Court. 

We note that in one of the Privy Council cases their lordships 
observed that : 

*' Subjects which in one aspect, and for one purpose, fall within section 
92, may, in another aspect, and for another purpose, fall within section 

91." 

And in another case their lordships observed : 

" The two sections must be read together, and the language of the one 
interpreted, and where necessary, modified by that of the other. In 
performance of this difficult duty it will be a wise course for those on 
whom it is thrown to decide each case which arises as best they can ; 
without entering more largely upon the interpretation of the statute 
than is necessary for the decision of the particular case in hand." 

Upon this head, assuming prima facie that the Quebec License 
Act falls within the sub-section permitting the local legislature 
to make laws in respect of licenses for the raising of a revenue 
for provincial purposes, we incline to the view that the enact- 
ment now under consideration is a transgression of the powers 
exclusively and absDlutely vested in the Federal Parliament 
relating to ** the regulation of trade and commerce.*' 



THE LEGAL NEWS. 239 

Bat can it be said that the provittion requiring manafacturers 
and trndern to take ont a license, under pain of penalty or 
imprisonment, comes properly within sub-section of section 92, 
which authorizes the legislatures to make laws in respect of 
** shop, saloon, tavern, auctioneer and other licenses/' We are 
of opinion that the license upon traders and manufacture in? as 
provided for in the local statute, does not fairly come within the 
class of licenses referred to in the words '^ shop, tavern, saloon, 
auctioneer and other licenses/' The expression *^ other licenses '' 
in this sentence, it appeara to us, means " other licenses " of the 
same class or the same kind (ejusdem generis). The words ^^ other 
licenses** in the statute must have been used with reference to 
what could have been reasonably contemplated at the time of 
their enactment, and if it was intended that the legislature could 
issue licenses for any purpose, why was there :my specification 
of a class of licenses for shops, taverns, saloons and auctioneera ? 
If it was intended to confer upon the local Legislature the right 
to tax ad infinituTrij the Imperial Parliament would have expressed 
its intention in clearer terms. 

We find it difficult to conceive that when the Imperial Parlia- 
ment restricted the legislatures to ''direct taxation," and gave 
the most unlimited powers of taxation to the KcJeral Parliameno, 
it could also have intended that the restriction could be avoided 
b}'^ the adoption of a system of discriminating imposts in the form 
of, and under the name of, licenses. 

In rendering judgment in the Supreme Court of Canada, in the 
case of S-ivern v. The Queen, 2 Can. S.C.R 97, Chief Justice 
Richards said : — 

*' Looking at the stale of things existing in the provinces at the time of 
passing the British North America act and the legislation then in force in 
the different provinces on the subject, and the general scope and object 
of Confederation then about to take place, I think it was not intended by 
the words " other licenses " to enlarge the powers referred to beyond shop* 
saloon and tavern licenses in the direction of licenses to affect the general 
pnrpoees of trade and commerce and the levying of indirect taxes, but 
rather to limit them to the licenses which might be required for objects 
which were merely municipal or local in their character." 

Mr. Justice Fournier, in this case, said : 

"Without attaching more importance than is necessary to the applica- 
tion of the rule ejwdem generis, is it not more logical to suppose that the 
Imperial legislature, finding already in some of the laws these licenses 
treated as of the same kind as other licenses, did likewise, and dealt with 
' them as belonging to the one class ; and, therefore, should we not apply, 



240 THE LEGAL NEWS. 

in construiDf; this 9th paragraph, the rale of fjuidem generis f Otherwise 
we must come to the conclusion that the insertion of the word 'auctioneer/ 
which, no donbt, was put in to give the local government a further source 
of revenue, would have the effect of giving to the local legislature an un- 
limited power to tax by licenses. This cannot have been the intention 
of the Imperial Parliament They cannot, by the insertion of that word, 
have made a provision which would have the effect of destroy! ug the 
financial system of both the Dominion and the provinces established by 
the constitution. The intention was, no doubt, that tjiey should have a 
limited signification, in accordance with the distinct powers so carefully 
alloted to the Federal and local governments. 

'< Moreover, I am far from admitting that the word ' otheri' coming 
immediately after an enumeration, can always have that broad meaning. 
On the contrary, I am of opinion that it should nearly always be accepted 
in a restricted sense, and that the cases in which its signification is 
absolute and unlimited are exceptional." 

In the same case Mr. Justice Taschercau stated : — 

" From what I have read and heard, I think there is no difficulty in 
assuming that the tax imposed upon the brewer selling by wholesato in 
the present case is an indirect tax, and should not be further pressed 
against the defendant, Severn." 

The Judicial Committee of the Privy Council expressly held 
in the case of the Bank of Toronto & Lambe, L. R., 12 App. Cas., 
575, that a tax upon a bank, computable with reference to its 
paid-up capital and number of agencies in the province of Quebec, 
is a direct tax competently imposed by the Legislature. ''This 
bank/' said their lordships, '^ is found to be carrying on business 
there, and on that ground alone, it is taxed. . . . The bank 
itself is directly ordered to pay a sum of money." But in that 
case their lordships wero careful to observe with reference to the 
Ontario tax on brewers : — 

'* In Severn's case (2 Canada Sup. Ct. Rep. 70) the tax in question was 
one for licences, which, by a law of the Legislature of Ontario, were 
required to be taken for dealing in liquors. The Supreme Court held the 
law to be ultra vires, mainly on the grounds that such licences did not 
fall within class 9 of section 92, and that they were in conflict with the 
powers of Parliament under class 2 of section 91. It is true that all the 
judges expressed opinions that the tax, being a licence duty, was not a 
direct tax. Their reasons do not clearly appear, but, as the tax now in 
question (i.e., in the Bank of Toronto and Lambe,) is not either in 
substance or in form a licence duty, further examination on that point is 
unnecessary." 

It therefore appeara that, in deciding the Toronto Bank & 
Lambe^ their lordships did not pass upon that aspect of Severn & 
Th/t Queen that has reference to the ** license duty." They werd 



THE LEGAL NEWS. 241 

dealing with a "direct tax," and not with a "license duty." 
Their lordships, doubtle.'^h, parposely abstained from dealing with 
the question of how far the local legislature can competently 
impose taxes by "license duty " in adherence to the rule put 
down in Parsons <& The Queen Insurance Company, as follows : 

** Sections 91 and 92 of the British North America act, 1867, must, in 
regard to the classes of subject*) generally described in section 91, be read 
together, and the language of the one interpreted, and, where necessary, 
modified by that of the other, so as to reconcile the respective powers 
they contain, and give effect to all of them. Each question should be 
decided as best it can, without entering more largely than is necessary 
upon an interpretation of the statute." 

Their lordships have left thomselves untrammelled by the 
Bank of Toronto dh Lambe to consider the question submitted to 
UH for opinion. 

Since the decision of the Judicial Committee in the Bojik of 
Toronto & Lambe, in 1887, a most important judgment has been 
rendered in the United States — Leloup v. Port of Mobile, (126 
XT. S. Supreme Ct. Beps. 640)-, in which it was decided that the 
business of the Western Union Telegraph company could not be 
taxed under an enactment of the stale of Alabama on the ground 
that " telegraphic communications are commerce/' and the tax 
in this instance fell not upon the company's property in the state, 
but on the business throughout the United States, and therefore 
transgressed the provisions of the constitution, which vested 
Congress with power to " regulate commerce with foreign nations 
and among the states." In this important decision the judgment 
previously rendered in 1827 by Chief Justice Mai*shall for the 
Supreme Court in the case of Brown v. The State of Maryland (12 
Whoaton, 419), and the judgment rendered by Chief Justice 
Tanoy in the case o^ Almy v. California (24 Howard, 169), were 
reviewed and approved. 

In Brown v. State of Maryland, it was laid down as law, which 
has beeu'since consistently foilowoi in the United States, that 
the '* Act of a state legislature requiring alt importers of 
foreign goods by the bale or package, etc., and other peraons 
selling the same by wholesale, bale or package, etc., to take out a 
license, for which they shall pay 950, and, in case of neglect 
or refusal, subjecting them to certain forfeitures and penalties, is 
repugnant to that provision of the constitution of the United 
States which declares that '^ no state shall, wthont the consent of 



242 THK LEGAL NRW8. • 

Congress, lay any impost or duty on imports or exports, except 
what may be absolutely necessary for executing its inspection 
laws ; '' and to that which deblaros that Congress shall have 
power ** to regulate commerce with foreign nations, among the 
several states and with the Indian tribes." 

In Almy v. State of California (24 Howai-d, 169) it was decided 
that a state stamp tax on bills of lading was void. 

The decision in the recent case of Leloup v. The Port of AQ)- 
bile followed those cases, the court being unanimous. Mr. Justice 
Bradley, in delivering judgment said : — * 

*' Can a state prohibit such a company (the Western XJnioa Telegraph 
company) from doing such a business within its jurisdiction unless it pay 
a tax and procure a license for the privilege? If it can, it can exclude such 
companies, and prohibit such business altogether. We are not prepared 
to say that this can be done. But it is c^rged that a portion of the 
Telegraph company's business is internal to the state of Alabama, and 
therefore taxable by the state. But that fact does not reodove the diffi- 
culty. The tax affects the whole business without discrimination. There 
are sufficient modes in which the internal business, if not already taxed 
in some other way* may be subjected to taxation without the imposition 
of a tax which covers the entire operations of the company... In our 
opinion such a construction of the constitution leads to the conclusion 
that no state has the right to lay a tax on interstate commerce in any 
form, whether by way of duties laid on the tran<«portation of the subjects 
of that commerce, or on the receipts derived from that transportation, 
or on the occupation or business of carrying it on, and the reason is that 
such taxation is a burden on that commerce and amounts to a regulation 
of it, which belongs solely to Congress. . . We may here repeat what we 
have so often said before, that this exemption of interstate and foreign 
commerce from state regulation does not prevent the state from taxing 
the property of those engaged in such commerce located within the sta*e, 
as the property of other citizens is taxed, nor from regulating matters of 
local concern, which may incidentally affect commerce, such as wharfage, 
pilotage and the like.'' 

We have cited largely from this important case, as it has been 
decided since the Bank of Toronto & Lamhe in the Privy Council, 
and as the reasons for the decision are weighty and most 
convincing. 

The people of the United States have had an experience of 
Federal constitution for over one hundred years, and the opinions 
of the judges of their Supremo Court unanimously expressed, as 
in the Leloup case, are entitled to the highest consideration. 

The decisions of the Judicial Committee of the Privy Council 
and of our own Supreme Court of Canada are binding. authorities 



THE LBOAL NEWS. 243 

on nSy but noither coart would disrogard tho powerful reasoning 
of the Supremo Court of the United States in the like or ^similar 
eircumBtanceB. 

Ihe taxing power of a state of tho American Union is greater 
than that of a Canadian province, and if a state tax upon 
business is ultra vires there, a fortiori it would bo here. 

We think that the case of the Bank of Toronto & Lambe, which 
their lordships observed was a case of " great constitutional 
importance," is distinguishable from the case submitted for 
opinion. A great constitutional question is involved in this case 
as well as in that. The tax in their case was direct ; here it is 
a tax by license. The official report of the argument before the 
Privy Council. shows that iho imporUmt cases of Brotvn v. State 
of Maryland, and Almy v. California, adverted to by us, were not 
cited. The Leloup case was not cited because it was not then 
decided. 

Oar opinion does not involve any curtailment of the legislative 
power of tho province io impose "direct taxes" where it can 
competently impose such taxes, but, on the contrary, the whole 
field of direct taxation in the province is not trespassed upon. 
Tho distinction between a *^ license duty " and a '' direct tax " 
has not yet been made by the Judicial Committee. The last 
woixl upon that subject has not been said. 

In our opinion the Quebec statute of 1892, imposing the license 
in question is ultra vires of the Legislature, upon the true con- 
struction of the Britibh-North America act of 18<>7. 

(Signed) Donald Maom aster. 

J. N. GUEENSHIELDS. 

Montreal, November 26, 1892. 



NEW PUBLICATION. 



*' Lb Droit Paroissial," by P. B. MignauU, Esq., Q.C. Montreal : 
Beauchemin & Fils, publishers. 

The present work, comprising nearly 700 pages, is the first 
that has appeared in this province which treats fully the subject 
of parochial law. Tho work published by the late Mr. Justice 
Beaudry, " Le Code des Cui^s/* forms an interesting introduction 
to the subject, but since its appearance several cases of importance 
have come before the courts which have added largely to our 
knowledge of this branch of law. 



244 THE LEGAL NEWS. 

Mr. Mignanlt, Q.C., who has already made hiH mark as a legal 
author in his valuable commentary on the Code of Procedure and 
his Manual of Parliamentary Law, has treated the subjeot of 
parochial law with his customary clearness and ability. It may 
be observed that he discusses the subject with respect only to 
the Catholic parish, which in this province is governed by a 
special code of laws, many of them unwritten and founded on 
immemorial usage. 

Mr. Mignault has divided his work into four parts in what 
seems to be the natural classification. Beginning by the mission, 
which in this province is generally understood to be a settlement 
which has not yet been raised to the rank of parish, the author 
treats successively of the religious and civil pariah, showing the 
manner in which each is called into existence. 

The parish being erected, the next question is : How is it 
governed ? Four elements share in this government : the bishop, 
the curSy the fabrique and the parishionners. To define the powers 
of each so as to prevent clashing, is no doubt a very delicate 
question, and therein chiefly lies the extreme intricacy of our 
parochial law. This part of Mr. Mignault's work comprises some 
300 pages. 

The third part treats of parochial property and incidentally of 
the building of churches and of the administration of cemeteries. 
Here the author hsfd merely to explain a written law, the subject 
matter being governed by statutes of a most minute character. 

The fourth part of Mr. Mignault's book contains some statutory 
provisipns with respect to the maintenance of order in churches, 
etc. 

While merely a law book — and the author is very careful to 
explain that it has no other character, controversy of a non-legal 
nature being rigorously excluded — Mr. Mignault's new work con- 
tains much historical and statistical information. We would 
merely refer to the list of parishes which have no fabrique and to 
the inquiry as to the oiigin of ihe fabrique itself. 

An appendix to the work gives a large number of formulas as 
well as the text of chapter ix. of the Consolidated Statutes for 
the Province of Quebec. 

The printing and binding have been executed in a satisfactory 
manner, the work being presented in a form which adapts it to 
the library of the ecclesiastic as well as to the shelf of the practi> 
tioner. 



THE 



LBGAL NBWS 



VOL. XVI. AUGUST 15, 1893. No. l«. 



THE BEHRING SEA ARBITRATION. \ 

The result of the BehriDg Sea dispate is worthy of the means 
employed to settle it. It is based upon the soundest principles 
of international law, and is in accordance with the views express- 
ed by all competent authorities on the subject. Establishing, as 
it does, ' the freedom of the sea,* it places the comity of nations 
upon a fii*mer and broader foundation and it constitutes another 
historic precedent for the settlement of international questions by 
rational and peaceful means. * Fall, perfect, and final ' — to quote 
the words of the treaty — the award of the arbitratore may not be, 
inasmuch as circumstances are almost certain to arise which will 
render it necessary for some judicial intej*pretation to be placed 
upon the rules which have been framed with the object of 
preventing the extinction of the seal and of enabling Indians 
' not in the employment of other peraons ' to carry on their 
fishing operations in the way hitherto practised by them ; but 
this want of perfection in the regulations does not affect the 
extremely satisfactory character of the decision of the arbitrators 
on thebroad issues of the case. The chief claim of Great Britain, 
made not only in her own interests but in those of other nations, 
has been fully recognised, the essence of the award being an 
embodiment of ' the great principle lying at the root of the 
matter — the freedom of the sea ' — to use the words in which the 
Attorney-General summed up the matter. The simple origin of 
the dispute, concerning which so much erudition and ingenuity 
have been expended, was the seizure by the United States of a 
British ship engaged in fur-seal fishing seventy miles from the 
shore, the United States contending that they possessed exclusive 



246 THE LEGAL NEWS. 

jurisdiction over the Behring Sea. No doubt, in resisting this 
contention, Great Britain had a winning case, but none the lees 
are Sir Charles Eussell and Sir Bichard Webster entitled to 
the praise of the public for the masterly fashion in which they 
did their work in Paris, and to the gratitude of the pix>fession 
for having maintained so worthily, in the presence of eminent 
foreign jurists, the highest traditions of the English Bar. It is a 
matter for sincere congratulation that two men whose political 
opinions have absolutely nothing in common, and whose forensic 
conflicts have sometimes been fierce, should, when the interests 
of this country are concerned, join forces with readiness and ease, 
and conduct a complicated case in perfect unison. The manner 
in which the two leaders of the Bar presented Great Britain's 
claims has added not a little to the annals of the profession, of 
which for some years they have been most distinguished orna- 
ments. The incibiveness and eloquence with which the Attorney- 
Gbneral addressed the Court of Arbitration in a speech that 
occupied ten days have increased even his brilliant reputation as 
an advocate and orator, while not less worthy of admiration 
were the profound learning and keen reasoning power displayed 
by his predecessor in office in combating the ingenious arguments 
of the distinguished counsel for the United States. It cannot 
fail to be gratifying to the profession to know that the persons 
engaged in the peaceful settlement of the Behring Sea dispute 
were, for the most part, lawyers — that to the legal profession 
belongs the honour of being most closely connected with an 
event which is universally recognised as an important step 
towards the general adoption of the principle of international 
arbitratiour Lawyers, indeed, possess a special interest in all 
advances towards this great consummation. The spirit of law is 
utterly opposed to war. ' The flinty and steel couch of war* can 
never be the seat of justice, since the battle is to the strortg and 
not necessarily to the just. Arbitration is the triumph of law, 
and the progress of the one must mean the ennobling of the 
other. The position of law officer must inevitably acquii-e 
additional importance if the practice of submitting international 
questions to Courts of Arbitration grows. The lawyer will, in 
some measure, supplant the soldier, the man of woi'ds succeed 
the man of blows ; and although the black gown is never likely 
to catch the popular fancy as the red coat does, yet it is not 
unsafe to predict that when the coni^picuous part which lawyers 



THE LEGAL NEWS. 247 

have played, and must continue to play, in the progress of inter- 
national arbitration has been fully realised by the masvses, what- 
ever want of appreciation of the legal profession may still linger 
among them will disappear and its honourable traditions and 
important functions be universally acknowledged. — Law Journal 
{London,) 

COURT OF APPEAL ABSTRACT, 

Procedure — Procureur-G^neral^ Poursuiies cohtre des corporations 
qui excedent leurs pouvoirs — Lmstement — Mandamus — Inter- 
vention'- Suppression d'une rue — Qualiti pour s'en plaindre — 
Articles 15 \, 997, C. P. C. 
Jagi: — 1. Le procureur g^ndral pent, sous Tarticle 997 du code 
de proc^nre civile, permettre Tusage de son nom etdosa quality 
de procureur-gdn^ral pour des poursuites de la nature do cclles 
^num^rdes en cet article, mais il est le seul juge de PopportunitcS 
ou de rinopportunitd de la proc^dui*e ot de la question de savoir 
s'il convient ou non d'intervenir. 

2. MSme dans le cas oii le procureur g^ndral refuserait, sans 
cause valide apparente, d'intervonir et de prSter son • nom ^ la 
poursuite, les tribunaux ne peuvent pas le forcer de le faire. 

3. Le procureur-g^ndral est toujours libre de se ddsister d'unc 
semblable poursuite et do retirer Tautorisation de se servir de 
son nom. 

4. II n'y a pas do mandamus contre la couronne. 

5. L'intervention n'est qu'un appendice de I'action principale, 
et son sort est lide fatalement k celle-ci en ce sens que si la . 
demande a ^t^ irr^guli^rement formde soit qu*elle ne remplisse 
pas les formalitds voulues pour la validity des exploits, soit que les 
regies de la competence aient ^t^ m^connues, soit encore qu'elle 
soit accueillie par une fin de non recevoir tirde du d^faut de qua- 
lite du demandeur, d'autorisation, etc., Tintervention tombe avec 
Taction principale, quel que soit d'ailleurs le but de cette inter- 
vention. 

6. Des propri^taires riverains qui ont dte expropri^s de tout 
leur terrain sur une rue et qui ont re9U, en sus du prix du ter- 
rain et des constructions, une somme fixe pour leur tenir lieu dQ 
tout dommage leur resultant de I'expropriation, n'ont pas un 
inters t suffisant pour so plaindre de la suppression de cette rue. — 
Atlantic and North West Railway Co, & Turcotte, dh La citi de 
Montrialf Montreal, Baby, Boss^, Blanchet, Hall, Wurtele, J J., 23 
d^cembre 1892. 



*2i8 THE LSOAL NSV6* 

SUPERIOR COURT ABSTRACT. 

Procedure — Contestation cfilection munidpale — CumuL 

Juge: — Qn*on ne pent par un seal et in§me brefde quo warranto 
demaDder rannulation de T^lection de pluBienrs conseillers muni- 
cipaax. 

Que dans le cao d'ao tel cumul, il sera ordonn^ au demandeur 
de declarer contre leqiiel des d^fendears il entend proceder, et 
qne son action sera renvoy^ qaant aux autres di^fendears. — 
Bourbonnais v. Filiairault et al, Montr^l, Mathieu, J., 20 octobre 
1892. 



ProMbitionr^Dipdt—DechSance— Art. 1074, § 5, S. R. P. Q. 

Jugi: — Que Tarticle 1014, §5, S. R P. Q., ne pronon^ant aucune 
ddoheance ou nullity des proc^uree sur un brefde prohibition, pour 
le d^faut du I'equ^rant de d^poser pr^alablement la somme requise 
par cet article pour garantir le paiement des frais do la pai-tie 
adverse, ce d^p6t pourra, avec le consentement du tribunal, 6tre 
fait par le requ^rant subsequemment & T^manation du bref. sur 
paiement des fiais oocasionn^s par son d^faut. — Paquetie dc Des- 
noyere, dh Lambe, Montreal, de Lorimier, J., 19 aotLt 1892. 



Procedure —Examination of party — Art, 251a, C. C. P. 

Held : — ^Where the defendant, before the inscription of the case 
for enquite, has been served with a subpoena to appear for exami- 
ation on a day named therein, it must be presumed that it was 
the plnintifTs intention to examine defendant under the provisions 
of Art.251 a, C. C. P., before proceeding with his enquite under 
the inscription for enquHe filed by him two days later. The 
defendant, therefore, is not dispensed from attendance in obedi- 
ence to the subpoena, b3>^ the fact that he has moved to dismiss 
the inscription for em£U%te, — Polette v. Brown, S. C, Montreal, 
Tait, J., November 4, 1892. 



Procedure — AUenSummons — Art, 27, C. C. 

Held : — Where an alien, not resident in the province of Quebec^ 
is sued in its courts, for the fulfilment of an obligation contracted 
by him in a foreign country, the question is i.ot one of jurisdiction 
but of due bcrvice of process, and if the defendant appears and 
does not attack the service made ui)on him by exception to the 
form he must be held to be properly before the Court. — Baxter 
V. Sterling et al., Montreal, Wurtele, J., Sept, 19, 1892. 



THB LEGAL NEWS. 249 

Ltuor and lessee — Saisie-gagerie where no rent is due. 

Held : — ^Where the lessee is removing or has removed his effects 
fi'om the leased premises, the lessor has a right to issue a aatst>- 
gagerie to preserve his gage whether any rent be actually due at 
the time or not. — Bufaux et vir v. Morris, S. C, Montreal, David- 
son, J., January 29, 1892. 

Hypoth^ue — Enregistrement — 0, C. 2098 — Variante entre versions 

fran^ise et anglaise* 

Juge: — L'effet de Tenregistremont du titre de Tacqudreur fait 
avant celui du titre de son auteur n*est que sunpondn; reni*egis- 
trement subsequent de ce dernier titre donne & celui de Tacqud- 
reur son plein et entier effet, mdme ik Tencontre des di*oitM de 
Tauteur dont lo titre n'a 4i6 enregistrd que plus de trente jours 
apr^s sa date. 

Dans Fesp^ce, le demandeur ayant enregistid I'acte d'dchange 
lui donnant la garantie sur les lots possddds par h*H ddfendeurs, 
un an aprds Tenragistremont de Tacquisition des ditn lots par ces 
derniers, lui dit demandeur n'avait pas sur len dits lotn, pour la 
dite garantie, une hypoth^quequ'il put invoquer contro les ddfcn- 
deurs. (Andrews, J., diss.) Sylvain v. LabbS et aL, C. R, Quebec, 
Casault, Southier, Andrews, JJ., 30 sept. 1892. 

Registration— Art. 2098, (7. C. 
Held:— The eflfect of article 2098 of the Civil Code is simply 
to suspend the effect of the registration of a real right granted 
by the acquirer of an immovable ho long as the title of such 
acquirer has not been registered, but when the suspensive con- 
dition is fulfilled and the title of the acquirer registered, the 
priority as between real rights granted by him is governed by 
Art. 2130, C. C, and regulated by priority of registration. Huet 
dit Dulude v. Laporte dit Denis, N. J. Laporte dit -Denw, collocatied 
creditor, & Alex. Laporte dit Denis, creditor contestant, Montreal, 
Doherty, J., June U, 1892. 

Procedure — Action for rent and resiliation of lease accompanied by 

saisie-gagerie — Exception to the form. 
Held: — An action for rent and rc^iliation of lease, which is 
accompanied by a saisie-gagerie, cannot ho dismisssed on an excep- 
tion to the form baised solely on alleged irregularities in connec*- 
tion with the seizure. — Brewster v. Campbell, Montreal, Davidson, 
J., February 24, 1892. 



250 THE LEGAL NEWS. 

COLONIAL TITLES. 

The following despatch from the Marquis of Bipon to the Earl 
of Derby appears in the Canada Gazette: — 

Downing Strbbt, 15th June, 1893. 

My Lord, — The title of *' Honourable " as conferred by the 
Queen in the Duke of Buckingham's despatch No. 164 of the 24th 
of July, 1868, upon certain persons in the Dominion of Canada 
and as appertaining to members of Executive and Legislative 
Councils in other colonies possessing responsible government, 
has generally been understood not to run heyond the particular 
colony, but in these cases Her Majesty has now, on my recom- 
mendation, been graciously pleased to approve of its use and 
recognition throughout Her Dominions. 

In the Duke of Buckingham's despatch of the 24th of July, 

1868, there was no express confinement of the use of the title 

within the Dominion of Canada, and you will undei'stand that 

the pei^sons upon whom it was thereby conferred will enjoy it 

throughout Her Majesty's Dominions for so long as they may be 

entitled to it. 

I have, etc., 

(Signed,) EI PON. 

Governor General, 

etc., etc., etc. 



LAWYERS AND MARRIAGE, 

Marriage tends to get later and later, as the Eegistrar-General 
tells us. People who twenty years ago married at twenty-five, 
now put it off till thirty-five, and of all classes the latest to marry 
are lawyers. A doctor is bound to marry. Lady patients do not 
like an unmarried doctor. Clergymen, too, must marry, for a 
clergyman's wife is as esoential a part of the parish as her 
husband. Moreover, the persistent worship of curates by young 
lady devotees is sooner or later fatal to the most determined 
celibate. A lawyer, professionally speaking, is none the worse 
for being unmarried. Ambitious men, (and ambition is the 
besetting sin of lawyers) think themselves very much better 
without it. A variety of qualifications for getting on in that pro- 
fession have been enumerated, — influential connections, *' devil- 
ling," writing a book, and not possessing a shilling, — but marriage 



THE LEGAL NEWS. 251 

is not nambered among them, unless it be the pseudo marriage of 
the song, with a solicitor's "ugly elderly daughter." Hence 
marriage to an unrisen lawyer is a luxury, and an expensive one. 
We hear much of the uncertainty of the law, but its uncertainty as 
a source of income is undeniable. When Loixi Bacon spoke about 
giving hostages to fortune, he was probably thinking of his own 
profession. Certainly he did not commit the imprudence of early 
marriage himself, for he was forty-five before he found the 
'^ handsome maiden to my liking,*' whom he married, and who 
afterwards incurred his deep displeasure by fiirting with his 
gentleman usher, or whatever else was the '* great and just 
cause" for which he disinherited her. And the *' handsome 
maiden " he took care should be one with a handsome portion 
too. But Bacon was of a cold nature, and like many otbei*6 he 
waited too long. " I'm no for a man marrying," says Mi-s. Poyser 
in "Adam Bede," " before he's old enough to know the difference 
between a crab and an apple ; but he may wait ower long, and 
then he's like a man that goes past his dinner-time, and he turns 
bis meat ower and ower wi' his fork, and finds fault wi' the 
victual when the fault's wi* his own inside." There are many 
men who are predestined old bachelors, like the eminent lawyer 
mentioned in Sergeant Eobinson's Eeminisconces, who said '' he 
was born a bachelor, and in that persuasion he intended to 
remain." Selden, himself a great lawyer, was one of this type* 
In his *' Table Talk," he calls marriage "a desperate thing." 
" The frogs in iBsop," he says, ** were extremely wise. They 
had a great mind to some water, but they would not leap into 
the well because they knew they could not get out." This is 
rank misogyny. Even Lord Campbell contemplated a solitary 
old age with dismay. Over and above professional prudence or 
ambition, there may be a want of susceptibility on the part of 
lawyers to the tender passion. Their energies, to put it physiolo- 
gically, all run to brains, leaving the emotional or sentimental 
pai-t atrophied. Lawyers, at all events, are credited with hard 
hearts as well as hai-d heads. '* Gentlenien of your profession," 
said Mr, Pickwick to Sergeant Snubbin, " see the worse side of 
human natui*e. All its disputes, all its ill-will and bad blood, rise 
up before you," "You must admit," said a doctor, addressing 
Bobus Smith, Sidney's lawyer brother, " that your profession 
doesn't make angels of men." "No," replied Bobus; "your 
profession gives them the first chance of that." On the other 



252 THB LEGAL KSMHS. 

hand, there is a great deal of truth Id the saying that a man 
never settles down to work till he gets married ; — ranges himself, 
as the French say. Lady Hardwicke often humorously laid 
claim (as she had good right to do) to so much of the merit of 
Lord Hardwicke's being a good Chancellor, in that his thoughts 
and attention were never taken from the business of the court 
by the private concerns of his family, the care of which, the man- 
agement of his money matters, the settling all accounts with 
stewards and others, and above all, the education of his children, 
had been wholly her department and concern, without any inter- 
position of his, further thai^ Implicit acquiescence and entire 
approbation. 

If marriage, too, brings responsibility, it furnishes a new 
incentive. John Scott would never have become Lord Eldon, 
unless he had run away with '* his Newcastle beauty," Miss 
Sui*tees. "Ihave married rashly," he writes; but it is my 
determination to work hai*d for the woman I love." This was 
the right spirit ; and work hard he did, getting up at four o'clock 
to read law, and wrapping his head in wet towels Yet these 
laborious days in Cursitor street, when he slipped out at night to 
Fleet market to get six penny worth of sprats for supper, were 
among the happiest in his life. His labors were lightened by the 
constant companionship of his amiable and beautiful wife, who 
accustomed herself to his houi*s, and would sit up with him 
silently watching his studies. ^' There is nothing," he after- 
wards said, ^' does a young lawyer so much good as to be half- 
starved." When Erskine made his brilliant d^but in Bex v. Baillie, 
he was asked how he had courage to stand up so boldly against 
Loi'd Mansfield. He answered that he thought his little children 
were plucking his robe, and that ho hoard them saying, '^ Now, 
father, is the time to get us bi*ead.'' Marnage, too, had a good 
deal to do with the success of Loi'd Truro, not to speak of improv- 
ing the then over-convivial habits of the circuit bar. When 
Wilde (Lord Trm*o) joined the Western Circuit, he was an invalid, 
and travelled with his wife. He rarely dined at the cu'cuitmess, 
and devoted the entire evening to his briefs. This compelled a 
corresponding alteration of habits in others ; and a popular loader, 
afterwards a distinguished judge, is reported to have said to him, 
" PU tell you what it is, Wilde, you have spoiled the circuit. 
Before you joined us we lived like gentlemen, sat late at our 
wine, left our briefs to take care of themselves, and came into 



THE LEGAL NEWS. 253 

court on a perfect footing of equality. Now all this is at an end, 
and the assizes ai*e becoming a dradgery and a bore.'' 

Lord Campbell had a poor opinion of lawyei-s' matrimonial 
choice. " Generally speaking/' he says, " the wives and daughters 
of lawyei-8 are nothing by any means to boast of. Barristera do 
not marry their mistresses so frequently as they nsed to do, but 
they seldom can produce a woman that a man can take under his 
arm with any credit." This is certainly a monstrous libel. Lord 
Campbell might have remembered that the wife of the judge 
whose decisions he reported. Lord Ellenborough, had been a 
reigniug beauty and a toast ;' that the wife of his great rival, 
Lord Lyndhurat, was one of the chief ornaments of London 
society ; that the wife of his friend, Lord Tenterden, was.all that 
a wife could or should be; that it was despair for the death of an 
amiable and accomplished and too well-beloved wife which had 
caused Sir Samuel Bomilly, in a '- horrible dismay of soul," to 
take his own valuable life; to say nothing of Lady Abinger, 
Lady Denman, and Lady Hatherley. One of the most pleasing 
incidents in the life of the late Lord Hatherley is that which 
illustrates his attachment to his wife : — 

Some yeai-s before his death Lord Haiherley, having to attend 
the Queen as Lord Chancellor, was bidden to stay as her Majesty's 
guest afler the business for which he had come was finished. 
He betrayed some hesitation at this command, and being pressed 
to explain, told her Majesty that it was the first occasion in his 
married life on which he had passed twenty-four hours away from 
Lady Hatherley. The Queen allowed him to depart, and g]>a- 
cioudly commanded that the next time the Lord Chancellor 
visited her he should be accompanied by Lady Hatherley. 

" Hatherley," said Lord Westbury, *' is a mere bundle of virtues 
without one redeeming vice." — Law Gazette, 



COLLISION— RE'HEA RING. 

In the case of The Cynthia v. The Pol^^nesian, July 3, 1893, 
before Sir Francis Jeune, President of the Probate and Admiral- 
ty Division, Dr, Eaikes, on behalf of the owners of the Polynesian, 
made an application under peculiar cii*cumdtance8 which, in the 
report of the London Times are stated as follows: — Some years 
a^o a collision occurred in the Biver St. Lawrence between the 
Polynesian and the Cynthia. The latter sank, and the Polyne- 



254 THS LEGAL NEWS. 

Bian was considerably damaged. Proceedings were commenced 
in this country, bat before they bad proceeded far action was 
commenced in the Vice- Admiralty Court in Lower Canada, and 
there the case was tried. The decision of the Canadian Court 
was that the Polynesian was solely to blame. Her owners pi*o- 
posed to appeal to the Privy Council, but the case was settled on 
the Polynesian undertaking to pay 50 per cent, of the Cynthia's 
damage. The action pending in this country was thereupon i-e- 
vived, and the caae went to the Registrar and merchants in order 
that the amount of the damage might be ascertained. The own- 
ners of the Cynthia made an affidavit for this purpose, in which 
they stated that there was no salvage of the wreck ; that it was 
impossible to find anyone to attempt it, and that the underwriters 
had determined that the abandonment of the wreck was the only 
prudent course. No doubt that affidavit was bond fide, SLud the 
owners of the Cynthia were under the impression that there 
would bo no salvage. The Begistrar consequently made bis re- 
port on the basis that the vessel was a total loss. On that report 
the ownei*s of the Polynesian had made payment; but they 
had quite recently ascertained, first of all by means of the news- 
papers, that one of the owners of the Cynthia had since under- 
taken to give something for the wreck as it lay, and for what 
might be recovered from the cargo. There was no doubt there 
had since been a substantial salvage. Under these circumstances 
he applied that the i*eport of the Eegistrar might be re-opened, if 
necessary. 

The President obsei*ved that the report had been made on May 
13, 1891, and the money had been paid. Was there any decision 
showing in these circumstances that the matter could be re- 
opened ? 

Dr. Eaikes cited the Franconia (3 P. D.), the James Armstix>ng 
(4 L. R, A. and E., 380), and the Thyatira (6 Aspinall). 

Mr. Butler Aspinall, for the owners of the Cynthia, contended 
that the Court had no power to re-open the matter, that if such 
power existed it ought not to be exercised in the present case, 
and that by agreement between the parties, the owners of the 
Polynesian were estopped from this application. 

In the course of the argument it ti*anspired that the value of 
the property salved was about 160^. 

The Couil refused the application. 

The President, in giving judgment, said, I have no real doubt 



THE LEGAL NEWS. 255 

• 

in this case as to what I ought to do. It was suggested in the 
first instance that there might be a question whether this fund 
when recovered might not belong in part to the Cynthia and 
in part to tho other vessel, but I am unable to follow that. The 
reaKquestions appear to me to be — first, whether I have jurisdic- 
tion under the circumstances to re-open this matter, and, second- 
ly, whether I ought to do so. On the fii*st point I have the 
gravest possible doubt whether I have the right to re-open this 
matter. It is quite true that before the Judicature Act cases 
have been cited to me where the questions were re-opened, and 
isince the Judicature Act the case of the Thyatira, a case bearing 
a resemblance in some respects to this one, was re-opened, but in 
that case I don't think it could possibly be contended, and it is 
quite clear that Sir James Hannen did not think so, that the 
order was a perfected order. The principle seems to me clear 
that where an order has been perfected, the power of the Court 
to deal with it ceases. The question here of course is whether it 
has been pei*fected. If ever a proceeding of this kind came to an 
end, I should say this proceeding had come to an end. The Re- 
gistrar's report was as long ago as May 13, 1891, money was 
paid on the strength of it, and distributed amongst the under- 
writers, and the matter came absolutely to an end, and that 
being so I shoiild have no jurisdiction to interpose upon the other 
point The Registrar had the affidavits of the owners before 
him, and came to a conclusion. The claim was for 26,000/., 120/. 
for spare propellers, 231. 2s, for something else, and the Begistrar 
gave a suia of 20,000/. in round figures, and I very much doubt 
if he had known the facts, as we know them, whether that figure 
would have been substantially varied. But that is not the ques- 
tion I have to decide; the question I have to decide is whether, 
seeing the mistake was, in any way, a small one, that it was not 
discovered or thought of for a considerable time by either the 
owners of the Cynthia or by the owners of tho other vessel, I 
ought to set aside an award made so long ago. Under such cir- 
cumstances I am clearly of opinion that I ought not, and there- 
fore this motion must be refused with costs. 



256 THB LEGAL NEWS. 

THE LAWS DELAY IN ENGLAND AND FRANCE. 

A loDg-suffering Chancery jadge had on one occasion an oppor. 
tnnity of commenting, in the presence of Dickens, on the latter's 
Btrictares on delays in Chancery. J-^xiog his eye on the novelist 
in Court (who, of course, could not answer back), he informed 
irresponsible wnters in general that the troe cause of the pro- 
longation of suits in Chancery was to be found in the perverseness 
of a ' parsimonious public * — who, with a population ten times 
greater, and litigation increased in proportion, were content to pay 
only the same number of judges as in the time of Edward IIL 
There seems to be some show of reason in this judicial contention. 
It is not always mere wickedness of lawyere that causes the pro- 
longation of suits. A good deal of comment has been made in 
the daily press on the length of the Chancery suit dating from 
1740 which was the subject of an order recently. But this was . 
merely a case of revival of a suit long dormant, claimants coming 
forwai*d to piove their title to a fund in Court. It is not by any 
means the law's delay which is at the bottom of such proceed- 
ings as this. It is rather the exceeding, perhaps the excessive, 
scrupulousness with which the English law regards the sacred- 
ness of title by succession to property. In other countries the 
fund in Court would long since have escheated to the State as 
bona vacantia, if, indeed, it had not disappeared, with the Court 
itself and many other things, in a revolution. 

In France a Bepublican constitution and a written code and a 
prohibition to the judges to legislate do not prevent the institu- 
tion of suits based on claims dating centuries back. Not unusually, 
however, means arefound of preventing a claimant from establish- 
ing his title against the State, which no doubt, must be dis- 
heartening to litigants with a turn for antiquarian research. It 
will be somewhat surprising to those who think everything in 
France is new to see the decision in the case of Dame Raussel c. 
Gauvemement Franks (^succession Thiiry) rendered in the Conseil 
d'Etat in August, 18!)1. The claim was against the Bepublic to 
a fund estimated at 640 millions of francs, dating from 1676 — the 
days of the effulgence of the Eoi Soleil. 

A Frenchman, one Sieur Jean Thi^ry, died in Venice in 1676, 
having among his property the considerable sum of ' 800,000 ^cus 
d'or Venitien & la Croix,' securely invested in the National Bank 
of Venice at 3 per cent interest. This sum is estimated in pre- 



THK LEGAL NEWS. 257 

sent money at 9,920,000 francs. He made a will leaving this pro- 
perty to his relatives in France. These persons, however, conld 
not be ascertained, and meanwhile the fund and accruing interest 
continued to remain for over a century in the custody of the 
Venetian Bepublic. In 1791 the Constituent Assembly of France 
remitted the question of heirship to the Tribunal of the Seine. 
In 1796, Bonaparte, commending the French troops in Italy, was 
instructed by the Directory to demand the millions of the Thi^ry 
succession from the Venetian governnjent, and to apply them — 
temporarily, it is supposed — to replenishing his military chest. 
Before the demand was complied with, the French troops took 
possession of Venice and abolished its ancient constitution. They 
also, it needly hai-dly be said, took possession of the public funds. 
On June 6, 1797, an official letter was sent by the Directory to 
Bonaparte recapitulating their letter of the previous yeai* and 
adding : ' Tons ces fonds sont entre nos mains, FArsenal et la 
Banque sont en notre pouvoir ; et la Bipublique Fittngaise est en 
droit d'en disposer selon sa volont^ dt ses int^rdts.' 

Although the Republic ofSt. Mark had vanished, the undaunted 
claimants to the property of the de ci^jus of 1676 remained, and 
now proceeded against the French Bepublic,. as possessors of the 
Thi^ry fund reclaimed from Venice. The decision of August, 
1891, it is to be supposed, has ended this historic litigation. It 
is held by the Conseil d'lStat that the annexation of the Venetian 
Sepublic and the seizure of its public funds was an Act of State, 
giving rise to no recoui'se by pnvate individuals against the 
supreme authority of France. ' Ge fait de guerre ne saurait 
donner ouverture contre I'lStat frangaise ^ aucun retour ou action 
de la pai't des cr^anciera des dites caisses." This, no doubt, is the 
French way of saying that the Bepublic can do no wrong. 

And so, for Dame Boussel, no debtor no debt. Venice and its 
liabilities have vanished together. Even lawyers cannot fail to be 
impressed with a sense of disproportion when they see applied to 
the once glorious Queen of the Adriatic and bulwark of Europe 
the every day maxim of the civil law applicable to private mor- 
tals, * Actio personalis moritur cum person^.' — Law Journal (^JJonr 
don.) 



258 THE LEGAL NEWS. 

ME. JUSTICE BLATCHFORD. 

Samuel £iatchfoi*d, associate justice of the Sapreme Coui*t of 
the United States, died July 7, 1893. The deceased was appointed 
an associate justice of the Supreme Court of the United States, 
March 22, 1882, to fill the vacancy caused by the resignation of 
Justice Hunt. His grandfather, Samuel Blatchford, was an Eng- 
lish dissenting minister, who came from Devonshire to the United 
States in 1795. His father, Bichard Milford Blatchfoi-d, a native 
of Stratfield, Conn., was a school teacher, and still later counsel 
for the bank of the United States. 

Samuel Blatchford was born in New York city, March 9, 1820, 
was educated at a boarding school at Pittsfield, Mass., and at the 
school of William Fori-est, a well known teacher in New York, 
and at the grammar school of Columbia College. He entered 
Columbia College at the age of thirteen and was graduated in 
1837, at the age of seventeen. He then became private secretary 
to William H. Seward, who had been elected governor of New 
York, and held the position until his resignation in 1841, when 
he was appointed military secretary on the staif of the governor. 
In the following year he was admitted to the bar, and practiced 
law in New York with his fkther and his uncle, E. H. Blatchford, 
until November, 1845, when he removed to Auburn, and became 
the law partner of Governor Sewaixi and Christopher Morgan. 

In 1854, removing to the city of New York, he formed a co- 
partnership in connection with Clarence A. Seward and Burr W. 
Griswold, under the firm name of Blatchford, Seward & Griswold. 
May 8, 1867, he was appointed district judge of the United States 
for the' Southern District of New York, in the place of Samuel 
B. Betts, who had resigned. March 4th, following, he was ap- 
pointed circuit judge of the Second Judicial Circuit in the place of 
Alexander S. Johnson, deceased. In 1852 he commenced the 
publication of his series of reports of the Circuit Courts of the 
United States within the Second Circuit, and published 24 vo- 
lumes. 

As an admiralty judge, justice Blatchfoixl ranked among the 
foremost in the land. As a patent lawyer he was clearheaded 
and sensible, determining, among other notable cases, the validity 
of letters patent for insulating telegraph wires by gutta-percha, 
and the liability of a common carrier for infringing a patent, 
when it carried the infringing article, which was to be sold at its 



THE LEGAL NEWS. 259 

destination for use. Besides these he adjudicated numerous ques- 
tions in bankiniptcy, questions of copyright and libel, the power 
of the president to cancel a pardon before it had been delivered 
to the prisoner, the legality of the Brooklyn Bridge as a structure 
suspended over navigable waters, the validity of a statute of 
New York discriminating in rates of whai*fage in favor of canal 
boats of the State, and many kindred controversies. 

His appointment to the Supreme Bench by president Arthur 
was received with general approval. Justice Blatchford's ac- 
curacy,, care, impartiality and firmness were conspicuous. 

Chief Justice Fuller, when informed of his death, obsei*ved : 
" Justice Blatchford was a profound lawyer and judge. He was a 
man of indefatigable industry and of exact method. He was an 
especially able judge of admiralty and patent law, but was an 
able all-round jurist. He was greatly beloved by his associates, 
and the loss the Supreme Court sustains by his death is great.'' 



GENERAL NOTES. 

Photogbaphino the White City. — No man can estimate how 
much the financial affairs of the World's Exposition have been 
injured by the mistaken policy of the directors in refusing to allow 
the scientific and- artistic photographers of the world to take 
negatives of the beautiful buildings' of the White City, for the 
purpose of having them reproduced in the illustrated papers of 
the world, and by beautiful pictures and kind words making the 
people of every race not only familiar with the magnificent 
buildings, but creating a longing within their breasts to attend 
the Fair and behold its wonders for themselves; but no, the 
directors would not have it so. Had this been a private enter- 
prise the proprietor would have met Mr. Beach of the Scientific 
American (and all like him) at its gates and welcomed him with 
heart and hand, The photographers and the illustrated press of 
the world came to help save from financial ruin the finest and 
greatest exposition that has ever been upon the earth, and they 
were kicked from its doors. — Chicago Legal News^ 

Remarks After Yerdigt. — It has frequently been declared of 
late that the duties of a prosecuting counsel need to be defined, 
and the statement has been emphasised by the conduct of Mr. 
Charles Mathews at the conclusion of a murder trial at the Exetei* 
AssizcH. The prisoner, who was tried for murdering her illegi- 



260 THE USGAL NEWS. 

timate child, was acquitted, bat Mr. Mathews was not content tu 
let the matter rest with the verdict of the jury, and pix>ceeded to 
give an utterly irrelevant accoant of the dark incidents of the 
woman's career. He expressed his conviction that ' it shoald be 
known ' that the prisoner had given birth to three illegitimate 
children, that she had been charged with causing the death of 
her second child as well as of her thiixl, and that, being acquitted 
of the charge of murder, she had been sentenced to fifteen months' 
imprisonment for concealment of birth. With peifect accuracy 
Mr. Justice Grantham described Mr. Mathews' obsei'vations as 
' unusual/ but he made it clear that he thoroughly concurred in 
them, and that he was in some measure responsible for them, for 
he stated that ho ' was anxious that the statement shoald be made, 
so that the prisoner might leai'n that these facts were known, and 
that if any thing of the kind happened again the verdict of the 
jury would probably be very different.' These remai*ks are peril- 
ously near the famous verdict, ' Not guilty, but don't do it again.' 
But they may be strongly objected to on several more important 
gi*ounds. If trial by jury is to retain its value, neither prosecut- 
ing counsel nor judge ought to qualify a vei-dict of acquittal by 
any irrelevant references to the prisoner's past. When the jury 
fbund the prisoner innocent the trial was at an end, and the coun- 
sel for the prosecution was not entitled to address the Goui*t. 
The circumrstances of any particular case may be very suspicious, 
but in nowise do they justify a serious departure from the 
elementary principles of our criminal procedure. — Law Jcfunud 
{London,) 

Sport on the Thames. — A curious case of shooting arose on the 
August Bank Holiday. Thomas Wyborn, paperhanger, of Ful 
ham, went to Craven Steps, Hammersmith, with a shot-gun to 
seek sport on the river. There, he says, he. saw a snipe flying 
across the river and he fired, and shot four men in a passing 
boat, one so badly that he lost an eye. They maintain that no 
bird was flying by, and that he aimed at them. To find a snipe 
off Hammersmith Bridge on an August Bank Holiday is an event 
calling for much proof, and to shoot at it when found a deed 
worthy of a mad ornithologist, and it is not surprising that the 
sportsman is charged with shooting with intent to mmxler, and 
runs great risk, whatever his real intent, of falling within Regina 
V. Salman, 60 Law J. Bep. M. C. 25 ; L. R 6 Q. B. Div. 19.— Tb. 



.THE 



LBGAL NEWS. 



VOL. XVI. SEPTEMBER let. 1893. Na 17. 



CURRENT TOPICS. 

More than two and a half years ago reference was made 
in this journal (vol. 14, p. 65) to the extreme incon- 
venience caused to judges, counsel and others who had 
business to attend to in the Montreal Court House. On 
that occasion it was suggested that a short recess in the 
work of the Courts might be desirable, in order that some 
of the more difficult parts of the reconstruction might be 
accomplished without interruptioi] . It was hardly anti- 
cipated at that time that after the lapse of thirty months 
the chaos would be greater than ever. During all this 
time the necessary work of the Courts has been conduct- 
ed amidst the greatest confusion. Not only has the 
public business suffered by the fact that it had to be 
carried on while extensive alterations were in progress, 
but the cost of reconstruction has doubtless been largely 
increased. The judges have been compelled to shift about 
from room to room, and hold their courts in any hole or 
comer that chanced to be available from day to day. In 
the light of the past three years' experience it is clear 
that it would have been wiser to occupy other premises 
during the alterations. Even after three successive Long 
Vacations the access to the edifice at the time of writing 
is more difficult than ever, and the interior is far, very 
far, from completion. It would be unsafe to predict that 
the workmen will be out of the building before the lapse 
of another year. Fortunately, however, the work has 



262 THE LEGAL NEWS. 

been accomplished without serious accident, and it may 
be hoped that the increased accommodation obtained by 
the additional story will suffice for a good many years to 
come. 

Whether it be due to the condition oF the Court House 
or not, it is certain that legal business has been unusually 
stagnant during the Vacation. Little or nothing of special 
interest has come before the Judge in Ohambers. For 
more than thirty years there has not been so dull a Vaca- 
tion. Apparently, clients as well as lawyers are more out 
of town now than when the city was only one third the 
size, and when the proportion of its inhabitants who felt 
bound to absent themselves during the summer months 
was comparatively insignificant. The dullness of legal 
business is all the more remarkable this year, for even in 
Montreal there has been very little summer weather. It 
was cold in May and cool in August, and the intervening 
months brought little that could be described as sultry. 



Nevertheless, in spite of midsummer inactivity and 
Court House alterations, a considerable amount of business 
is, somehow or other, disposed of during the year. This 
fact has been recently pressed upon our attention in 
connection with work upon the reports. The registers of 
judgments rendered by the Superior Court in 1892 (ex- 
clusive of cases in Beview) fill six large folio volumes 
of nearly a thousand pages each, equal to about a dozen 
printed volumes of six hundred pages each. This little 
fact shows that a seat on the bench of the Superior 
Court is not a sinecure. 



The judges of the Supreme Court of Canada for a good 
many years seemed to bear a charmed life, for death touch- 
ed them not. Chief Justice Richards resigned some years 
before he passed away, and the place of Mr. Justice 
Henry in 1888 was the first vacancy created by death. 



THE LEGAL NEWS. 263 

Now, in quick succession to Chief Justice Bitchie, we 
have to record the death of Mr. Justice Patterson (July 24) . 
The deceased, Christopher Salmon Patterson, though only 
appointed a judge of the Supreme Court in 1888, had a 
long judicial career. He was bom in London, England, 
in 1828, and was called to the bar of Upper Canada in 
1851. He was a member of the Law Reform Commission 
in 1871, and was appointed to the Ontario Court of Appeal 
in 1874. His career was referred to by the Chancellor of 
Ontario in these words: — "Since the last session of the 
Vacation Court the death of Mr. Justice Patterson, of the 
Supreme Court , of Canada, has brought to a close the 
work of a good judge and a good man. He needs no . 
eulogium from the lips of his judicial brethren, for his 
life was lived openly so that all could see and value his 
devotion to the claims of his country and of his fellow- 
men His judgments will live after him, and will 

supply not a few landmarks for future practitioners and 
judges. Speaking for myself, I lament the loss of a much- 
loved friend ; but, apart from personal considerations, I 
now bear testimony to the assiduous and conscientious 
discharge of public duty which characterized his life as 
a judge. He was a friend of the student as well as of 
the solicitor and counsel who practised before him. He 
spared no pains to discharge that debt which every 
lawyer owes to his profession, by seeking to conform the 
practice and principles of jurisprudence to the advancing 
and developing needs of a more complex civilization. But 
I need not dwell longer on his merit — I would sum up 
all in words already used — he was a good judge and a 
good man." 

SUPERIOR COURT ABSTRACT, 

Suhrogi'tuteur — Action en destitution — Art, 282, C, C, 

Action demandant la destitution d'uu subrogd-tuteur pour les 
causes saivantes : 1. Parceqne le tuteur avait intents centre ce 
snbrog^-tntear une action lui demandant de rendre compte d'un 
certain nombre de billets ; 2. Parceque la m^re du subrog^- 



264 THS LEGAL NKWS. 

tuteur avait k la suggestion de ce dernier, intents une action 
contre le dit tuteur ; 3. Parceque le d^fendeur avait refuse de 
consentir d. une licitation volontaire des immeubles de son 
pupille ; 4. Parceque le d^fendeur ^tait anim^ de sentiments 
antipathiques d» r^ga:d de son pupille et avait refus^ de remplir 
les devoirs de ea charge ; 5. Parceque le d^fendeur ^tait snr le 
point de partir de la province de Quebec et de la Puissance du 
Canada. Le depart proj^t^ du defendeur et se^ sentiments anti- 
path iques ne furent pas prouv^s, et il fut d^montr^ que les 
immeubles qu*on voulait falre liciter ^talent substitu^s. 

Jug6: — Quo Ics causes de destitution invoqu^s ^taient insuffi- 
santes en loi pour justiticr lu destitution d*un subrog^-tuteur. — 
Fyfe V. BourdeaUf & Fyfe et vir, Montreal, Ouimet, J., 31 mai 
1892. 



Procidure — Piremption dUnstance — Requete civile. 

Juge : — Que la bimpio production de la requ&te civile n'ayant 
pas, comme Topposition & jugement, qui est un veritable plai- 
dojer, I'effet de mettre de coi^ le jugemont dont on se plaint, le 
defendeur requ^rant ne sei*a pas re9U, lorsqu'on n'a pas proc^^ 
sur la requite civile pendant plus de trois ans, h, demander la 
peremption de Paction du demandeur, ce dernier ayant ddjd un 
jugement en sa faveur, et que la seule instance qui pourrait 6tre 
d^clar^e p^rimde, c*est la requite civile du defendeur. — Lavigne 
et aL V. Dame & Dame, Montreal, Pagnuelo, J., 16 mai 1892. 



Action pour dommages contre un hdtellier qui vend des liqueurs eni- 
vrantes a une personne apres avoir regu avis cte ne point le faire 
—Art. 929 S. R. P. Q. 

Jugi: — 1. Lo recours mentionn^ k Tarticle 929 S. B. P. Q., 
contre un hdtellier qui vend des liqueurs enivrantes a une per- 
sonne aprds avoir re9U avis de ne point le faire, ne constitue ni 
une amende, ni une p^nalit^, mais un simple droit k des dom- 
mages personnels qui peuvent et qui doivent §tre recouvr^s 
devant les tribunaux ordinaires. 

2. Le fait d'avoir, dans une semblable action, alMgu^ que le 
defendeur avait agi contrairement au statut de Quebec, 41 Vic, 
ch. 3, sec. 96, au lieu de I'article 929 qui remplace cette disposi- 
tion, ne constitue pas une erreur fatale. — Willett v. Ftena, Mont- 
r^l, Jette, J., 30 juin 1892. 



THE LEGAL NEWS. 265 

Temain — PriviUge — Frais. 

Jage : — Lorsqae lee faits dont un t^moin depose sont relatifb k 
la cause dans laquelle il est examine, ct qn^ils sont articul^s de 
bonne foi et sans malice, il ne saiu-ait y avoir ouvertare k un re- 
cours en dommages k raison des paroles ainsiprononc^es. Cepen- 
dant, dans I'esp^ce, le d^fendeur ayant jur^ que la demanderesse 
n'^tait pas croyable sous serment, et ayant donn^, comme base 
de sa croyance, des motifs mal fond^s, et ayant de plus laiss^ 
percer une certaine prevention contre la demanderesse, il n'y 
avait pas lieu d*accorder au d^fendeur les frais d 'action. — Marquis 
V. Gaudreau, Jett^, J., 30 juin 1892. 



Liquidateur — Autorisationpour poursuivre--8. B. C, ch. 129, sec, 31. 

Juge: — Le liquidateur d'une compagm'e doit etre sp^cialement 
autorise k poursuivre une reclamation de cette compagnie, et 
one autorisation gen^rale de poui*suivre le recouvrement do tout 
Tactif de la compagnie ne suffit pas. — Freygang et al. v. Daveluy 
et al, Mathicu, J., 18 nov. 1892. 



Procedure — Capias — Septuag'enaire — Dommages a une proprieti 
hypothequie^Articks 800, 801, 805, C. P. 0, 

Juge : — 1. Le septuageoaire qui ddteriore une propriety hypo- 
thequ^e n'est pas exempt d'arrostation. 

2. Les dommages dont il est question en Particle 800 du code 
de procedure civile, sont des dommages non liquid^s ; en conse- 
quence le capias base sur cet article ne pent emaner que snr 
Tordre d*un juge conformement k I'article 801. — Ouimet v. Meunier 
dit Lapierre, C. S., StrHyacinthe, Tellier, J., 3 Janvier 1893. 



Bail — Privilege du locateur. 

Juge : — Lorsqu'un locateur a fait saisir-gager les meubles de 
son locataire pendant que ce dernier etait dans sa maison, le 
nouveau locateur n'acquiert aucon piivilege sur ces meubles au 
prejudice du saisissant, m§me si ce dernier ne Ta pas notifie ; 
en consequence, un bref de saisie-gagei'ie par droit de suite est 
inutile et doit @tre casse avec depens. — Chaussee v. Christin dit 8t- 
Anuntr, C. C, Montreal, Boherty, J., 13 fevrier 1893. 



266 THE LEGAL NEWS. ^ 

JHidmer — Demande de destitution — Riponse en droit. 

Jugi: — Qa'en loi, il est permis de demander la destitution d*Tiii 
huissier pour malversatiouB ou actes de fraude par iui connnis 
en dehors de Texercice de sa charge. — Desmarteau v. JZeed, Mont* 
r^al, Davidson, J., 6 f^vrier 1893. 



Denonciation cahmnieuse — Privilege — Timoin, 

Le d^fendeur, dont le mogasin avait souffert d'un incendie, 
apres que son t^moignage devant les commissaires des 
incendies fut clos, d^clara aux dits commissaires que certains 
effets avaient disparu de son magasin, pendant quo la police en 
avait la garde, et il consentit que rapport de cette accusation fUt 
fait au chef de police. La preuve d^mohtra que rien ne justifiait 
cette denonciation. 

Juge: — Que les declarations du d^fendeur devant les commis- 
saires des incendies n'^taient pas priviiegi^es et que chaque 
homme de police qui avait particip^ d. la garde du magasin du 
defendeur, avait droit d'action contre ce dernier k raison de cette 
accusation. — Prairie v. Vineherg^ Montreal, Jette, J., 28 juin 1892. 



Procidure — Production de pieces — Art. 103, C. P. C. 

Juge : — ^Bien quo Tarticle 103, C. P. C, prescrive que jusqa'i 

ce que les pieces du demandeur aient 616 produites, le dit deman- 
deur ne peut proc^der sur sa demande, le defendeur sera cepen - 
dant re9u k demander, par motion, a ce qu*il ne soit pas tenu 
de plaider, et les d^pens de cette motion Iui seront accord^s. — 
Haines v. Baxter^ Mathieu, J., Montreal, 8 nov. 1892. 



Contrainte par corps — Frais — Discretion dela cour — Articles 2272, 

2276, C. a 

Jugi: — 1. Un demandeur qui a obtenu un jugement pour in- 
jures personnelles, ne peut demander la contrainte par corpiB pour 
des frais distraits a son procureur. 

2. Les juges, en vertu dos termes de Tarticle 2 du titre 34 de 
Tordon nance do 1667, ont un pouvoir discretionnaire d'accordor 
ou de refuser la contrainte par corps, ou de fixer Tetendue et la 
dur6e de cette contrainte. — Quenneville v. St-Aubin^ Mathieu, J., 
Montreal, 2 dec. 1892. 



THE LEGAL NEWS. 26Y 

Insurance, Life — Amount payable to wife — Divorce, Effect cf. 

Meld : — ^Where an insurance is eflFected uoon the life of th e 
husband, the amount whereof is payable to his wife on a date 
named in the policy or on the previous death of the husband, 
and the parties are subsequently divorced, the wife ceases to have 
any claim to the amount of the policy, which reverts to the hus- 
band.— fior^ V. Tudor, Gill, J., Montreal, Doc. 12, 1892. 



Absence — Portage — Art, 104, C C, 

Juge : — Celui qui ^tait absent lorsqu*une succession testamon- 
taire s*est ouverte en sa faveur et en faveur d*autres co-hdri tiers, 
et qui est encore absent, doit @tre ^cartd du partage des biens de 
la succession. 

2. Dans ce cas, les h^ri tiers pr^somptifs de I'absent sont sans 
droit k pr^tendre concourir au partage pour la part de ce dernier. 
— Lawhr v. Lawlor et al, Gill, J., Montreal, 26 ddc. 1892. 



Partnership — Action against secret partner — Art, 1836, C, 0, 

Held: — Where a person though not a registered member of a 
firm, must nevertheless be deemed to be a partner by i*eason of a 
private agreement involving participation by him in the profits 
and contribution to the losses of the firm, such person may be 
sued for a debt of the firm jointly and severally with the 
registered partners. — Carter v. Grant, Taschereau, J., Montreal, 
Dec. 5, 1892. 



Procedure — Service — Person residing at hotel^Art. 67, C, C. P, 

Held : — When the defendant resides at a hotel, the servants 
and employees of the hotel are persons belonging to his family 
within the meaning of Art. 57, C. C. P., and service effected at 
the hotel, speaking to an employee, is a good service. — Bastien 
V. Kennedy, Montreal, Doherty, J., June 24, 1892. 



Promissory note — Warrantor — Protest. 

Held : — ^A warrantor (donneur d'aval) occupies the same posi- 
tion as an endorser, and is discharged by omission to protest. 
Hence a declaration in an action against a warrantor which does 
not allege that the note was protested is demurrable. 



268 THK LEGAL NEWS. 

2. An allog&tion in the declai*ation that the defendant acknow- 
ledged to owe and promised to pay the amount of the note, is 
dentroyed by an allegation also contained therein, that payment 
of the note was refused at the time of presentment, and had 
always since been refused. — Emard v. MarcilUy Montreal, Wurtele, 
J., September 19, 1892. 



Procidure — SMrif — Honoraires. 

Juge : — Les dispositions de la loi qui accordent au sh^rif une 
commission de deux et domie pour cent sent encore en viguenr. — 
Lambert v. JJarivi^e, et JJe dit demandeur^ cr^ancier coUoqa^, et 
La Banque de StSyacinthe, opposante, Montrtol, Mathieu, J., 
11 juinl892. 



Manage — Nullite. 

Juge : — Un mariage de deux catholiques minenrs c^l^br^ de- 
vant un ministre protestant sans I'observation d'aucune des for- 
malit^s requises par la loi, et notamment sans publication de 
bans, sera annuls k la demande d'tin des ipoux. — Valade v. Coa- 
sineau, Montreal, Mathieu, J., 12 novembre 1892. 



Procedure — Blmtement — iMcriptian. 

Juge: — 1. Un d^sistement fait sans Toffre de payer les fhiis, 
n'en constitue pas moins, de la part de la partie qui le fait, nne 
renonctation aux pretentions qu'elle a ^mises dans la procMure 
dont elle se d^siste, et un jugement peut ensuite intei*venii* snr ce 
d^istement et condaraner cette pai'tie aux d^pens s'il y a lieu. 
Par cons^uent, un tel de;iistement ne sera pas rejet^ da dossier 
sur motion de la partio advei*se. 

2. Eien n*emp§che qu'un d^sistement soit mis dans ane ins- 
cription. 

3. L*inscription d'une cause faite devant un juge de la cour 
sup^rieure au lieu de T^tre devant le tnbunal lui-m6me, est irr^ 
gulidre — Bausquet v. Duquette, Montreal, Mathieu, J., 5 novembre 
1892. 



/ 
I 



THB LEGAL NEWS. 269 

OFFENCES COMMITTED IN PARLIAMENT. 

The recent occnrrences in the BritiBh House of Commons 
when the membei*s came to blows and engaged in a general 
affray, have suggested the question whether offences committed 
by members in Parliament are punishable in any other place, 
and the London Law Times has devoted considerable time and 
space to the subject. The results of its research are not without 
interest to students of parliamentary law and history. It- is 
declared by the Bill of Bights " that the freedom of speech and 
debates or proceedings in Parliament ought not to be impeached 
or questioned in any place out of Parliament." It is however 
submitted, in accordance with the well-known rule of construc- 
tion, that the word '* pi'oceedings " must be governed in its 
meaning by the preceding words ''freedom of speech and de- 
bates," and would not apply to an affray — the category under 
which the recent fracas, had it taken place in public out8ide the 
walls of Parliament, must be placed. The legal definition of an 
'' affray " tallies with this scene in the House of Commons. An 
affray is an unpremeditated fighting between two or more per- 
sons in some public place to the terror of Her Majesty's subjects. 
Harris Crim. Law, 105. The declaration in the Bill of Bights is 
clearly inserted in repudiation of the conduct of King Jamos II, 
complained of in that measure, namely, his '' prosecutions in the 
Court of King's Bench for matters and causes cognizable only in 
Parliament/' The fact, too, that breaches of the peace have from 
time immemorial been regarded as disentitling members of Par- 
liament to freedom from arrest, would in itself go fnr to 
strengthen the surmise that offences against the pei^son, even 
when committed by members within the walls of Parliament, 
would not be regarded as " cognizable only in Parliament." By 
a resolution of the Commons, of the 20th of May, 1675, it was 
declared " that by the laws and usages of Parliament privilege 
of Parliament belongs to every member of the House of Com- 
mons in all cases except treason, felony and breach of the peace." 
It was again stated by the Commons, at a conference on the 17th 
of August, 1641, ''that no privilege is allowable in case of 
breaches of the peace betwixt private men, much more in the 
case of the peace of the kingdom ; '^ and on the 14th of April, 
1697, it was resolved that "no member of this House has any 
privilege in case of breach of the peace." May Pari. Prac. 145- 
146. These resolutions however refer solely to the question of 



270 THE LEGAL NEWS. 

the liability of members to arrest for breaches of the peace com- 
mitted oatside ParliameQt, aad cannot, of coui*se, be carried 
further than suggesting strong surmises of the probable aotion 
of either House with reference to breaches of the peace com- 
mitted by m«mbei*s within the walls of Parliament. The case of 
Holler V. Valentine in 1629 is the neare-it precedent, fix>m a con- 
stitutional point of view, to the late affray in the House of Com- 
mons. After the dissolution of the Parliament convened by 
Charles I, in 1628, the attorney-general exhibited an information 
against Sir John Eliot for woi*ds uttered in the House, namely, 
that the council and judges had conspired to trample under foot 
the liberties of the subject; and against Mr. Denzil Hollos and 
Mr. Yalentine for a tumult on the last day of the session, when 
the speaker, having attempted to adjourn the House by the 
king's command, had been forcibly held down in the chair by 
some of the membera while a remonstrance was voted. They 
pleaded to the court's jurisdiction, because their offences were 
supposed to be committed in Parliament, and consequently not 
punishable in any other place. The court were unanimous in 
holding that they had jurisdiction, though the alleged offences 
were committed in Parliament, and that the defendants were 
bound to answer. The privileges of Parliament, said one of the 
judges, did not extend to breaches of the peace, which was the 
present case ; and all offences against the crown, said another, 
were punishable in the Court of King's Bench. On the parties 
refusing to put in any other plea, judgment was given that they 
should be imprisoned during the king's pleasure, and not released 
without giving surety for good behavior, and making submission ; 
that Eliot, as the greatest offender and ringleader, should be 
fined £2,000, and Holies and Valentine a smaller amount. 3 
Bushworth State Trials ; 2 Hallam Cjnst. Hist. 4, 6. The great 
question of freedom of speech in Parliament, on the determination 
of which, according to Mr. Hallam, the power of the House of 
Commons, and consequently the character of the English Con- 
stitution, seemed to depend, was decided by this judgment in a 
sense clearly adverse to popular rights. In 1667 however the 
subject was again revived. It was then I'esolved by the House 
of Commons that an act of 4 Hen. YIII, which the judges had 
held at the trial of Eliot, Holies, and Valentine to beYnerely of a 
particular application, was a general law '^extending to indem- 
nify all and every the members of both Houses of Parliament in 



THK LEGAL NEWS. ' 2tl 

M Parliaments for and touching any bills, speaking, reasoning 
or declaring of any matter or matters in and concerning the 
Parliament to be commenced and treated of." They resolved 
also that the jad^ment given in the 5 th year of Charles I against 
Sir John Eliot, Denzll Holies, and Benjamin Valentine was an 
illegal judgment against the freedom and privilege of Parliament. 
To these resolutions the lords solemnly gave their concurrence, 
and Holies then became a peer ; having brought the record of 
the King's Bench by writ of error before thom, they solemnly 
reversed it. This decision has established beyond all controversy 
the great privilege of unlimited freedom of speech in Parliament; 
unlimited, that is to say, ^^ by any authority except that by 
which the House itself ought always to restrain indecent and 
disorderly language in its members." 2 Hallam Const. Hist. 6. 
But does the reversal of this judgment decide that offences com- 
mitted in Parliament by members, as indeed was argued in the 
case of Holies and Yatentine, are not punishable in any other 
place, and that, accordingly, the participators in the recent affray 
are not answerable in a court of justice for their conduct ? Mr. 
Hallam gives the following reply to this query. ** It does not 
however appear," he says, *^ to be a necessary consequence from 
the reversal of this judgment (in the case of Eliot, Hollos and 
Valentine) that no actions committed in the House by any of its 
members are punishable in a court of law. The argument on 
behalf of Holies and Valentine goes indeed to this length; but it 
was admitted in the debate on the subject, in 1667, that their 
plea to the junsdiciion of the King's Bench could not have been 
supported as to the imputed riot in detaining the speaker in the 
chair, though the judgment was erroneous in extending to words 
spoken in Parliament. And it is obvious that the House could 
inflict no adequate punishment in the possible case of treason or 
felony committed within its walls, nor if its power of imprison- 
ment be limited to the session, in that of many smaller offences." 
2 Const. Hist. 6, 1.— Albany Law JaumaL 



THE BEHRING SEA AWAED. 

The daily papers have announced the contents of the award of 
the Behring Sea arbitrators, and we have witnessed the unwonted 
sight of both parties applauding the decision. The English 
papers express their satisfaction, having read'the first part of the 
award ; the United States press is truly thankful, having read 



272 THE LEGAL NEWS. 

the rest. Lucky arbitrators I Rare judges be ye who satisfy 
both sides I 

Unfortunately we must to some extent play the pai'tof the wet 
blanket amid the joyful scene. The truth is that we are to a con- 
siderable extent losers in the action. We are winnei-s where we 
were certain to win, and we are pai'tly losers on the essential 
questions 

Our readers will find fully discussed in our former issues the 
matters with which the arbitrator had to deal. To enable them 
to understand the decision we must recapitulate the points. 

Art. 6 of the treaty i*equired a separate answer on the five fol- 
lowing questions; 

' 1. What exclusive jurisdiction in the sea now known as the 
Behnng Sea, and what exclusive rights in the seal fisheries thei*e- 
in, did Bussia assert and exercise prior and up to the time of the 
cession of Alaska to the United States ? 

' 2. How far were these claims of jurisdiction as to the seal 
fisheries recognised and conceded by Great Britain ? 

* 3. Was the body of water now known as the Behring Sea in- 
cluded in the phrase "Pacific Ocean," as used in the treaty of 
1825 between Great Britain and Bussia ? and what rights, if any, 
in the Behring Sea were held and exclusively exercised by Bussia 
after said treaty ? 

^ 4. Did not all the rights of Bussia as to jurisdiction and as to 
the seal fisheries in Behring Sea, east of the water boundary, in 
the treaty between the United States and Bussia of March 30, 1867, 
pass unimpaired to the United States under that treaty ? 

'5. Has the United States any right, and, if so, what right, of 
protection in the fur-seals frequenting the islands of the United 
States in Behring Sea when such seals are found outside the ordi- 
nary three-mile limit? ' 

In the alternative, Art. 7 pi^ovided : ' If the determination of 
the foregoing questions as to the exclusive jurisdiction of the 
United States shall leave the subject in such position that the 
concurrence of Great Britain is necessary to the establishment of 
regulations for the proper protection and preservation of the fur- 
seal in. or habitually resorting to, the Behring Sea, the arbitra- 
tors shall then determine what concurrent regulations outside 
the jurisdictional limits of the respective Gt)vernments are neces- 
sary, and over wliat watei*s buch regulations should extend, and 
to aid them in that determination, the report of a joint com mis- 



THE LEGAL NEWS. 273 

sion, to be appointed by the respective Governments, shall be 
laid before them, with such other evidence as either Grovemment 
may submit.' 

The answer to the first five points was practically a foregone 
conclusion. The court has decided upon all of them in favour of 
Great Britain. The answers to the first, second, and third were 
even concurred in by Judge Harlan, one of the two American 
arbitrators, and on the point that the Behring Sea is a part of the 
Pacific Ocean they were unanimous, the American denial of this 
being too much even for the patriotic Senator Morgan. On the 
fiftb point the two American arbitrators stood aloof, the British, 
French, Italian and Norwegian arbitrators being otherwise unani- 
mous. The decision on this question is a theoretically important 
one. It is that ' the United States has not any right of protec- 
tion or property in the fur-seals frequenting the iblands of the 
United States in Behring Sea when such seals are found outside 
the oi*dinary three-mile limit.' This is an authoritative state- 
ment in favour of the three-mile limit which has lately been 
exercising the minds of foreign international jurists. 

So far this is satisfactory enough, but the Americans presuma- 
bly do not care what the grounds are so long as what they get is 
what they want. 

The British Commissioners proposed that a close season should 
be provided, extending from September 15 to May 1, during 
which all killing of seals f-hould be prohibited, and that no seal- 
ing vessels should enter Behring Sea before July 1. They stated 
that, as a fact, Behring Sea is now usually entered by the pelagic 
sealers between June 20 and July 1, that the seals begin to travel 
towards Behring Sea about June 1. Now, it is only when the 
seals are on their way to Behring Sea that the Canadians have a 
chance of catching them. Great Britain has acquiesced all 
through in the principle of a measure for the preservation of seal 
life, but she contended that the measure should not be one-sided, 
and that they should include the regulations of the slaughter on 
the breeding islands, which are under the exclusive jurisdiction 
of the United States. 

The United States on their side contended that the entire sup- 
pression of pelagic sealing was the only measure by which the 
utter destruction of seal life in the North Pacific could be pre- 
vented. 

Let us now see how the tribunal has dealt with the question. 



2*74 THE LEGAL NEWS. 

It has laid down the law to govern the future of Noi'th-west 
American sealing in the following seven articles : 

'Art. 1. The Governments of the United States and Great 
Britain shall forbid their citizens and subjects respectively to kilL 
capture, or pursue at any time and in any manner whatever, the 
animals commonly called fur-seals, within a zone of sixty milea 
around the Pribiloff Islands, inclusive of the territorial waters.' 

The miles mentioned in the preceding paragraph are geo- 
graphical miles, of sixty to a degree of latitude. 

'Art. 2. The two Governments shall forbid their citizens and 
subjects respectively to kill, capture, or pui*sue, in any manner 
whatever, during the season extending, each year, from May 1 to 
July 31, both inclusive, the fur-seals on the high sea, in the part 
of the Pacific Ocean, inclusive of theBehring Sea, which is situ- 
ated to the north of the 35th degree of North latitude, and east- 
wai'd of the 180th degre^^ of longitude fi*om Greenwich, till it 
strikes the water boundary described in Art. 1 of the Treaty of 
1867 between the United States and Russia, and following that 
line up to Behring Straits. 

'Art. 3. During the period of time and in the waters in which 
the fur-seal fishing is allowed, only sailing vessels shall be per- 
mitted to carry on or take part in fur-seal fishing operations. 
They will, however, be at liberty to avail themselves of the use 
of such canoes or undecked boats, propelled by paddles, oars, or 
sails, as are in common use as fishing-boats. 

'Ai't. 4. Each sailing vessel authorised to fish for fur-seals must 
be provided with a special license issued for that purpose by it8 
Government, and shall be required to carry a distinguishing flag 
to be prescribed by its Government. 

'Art. 5. The masters of the vessels engaged in fur-seal fiBhing 
shall enter accurately in their official log-book the date and place 
of each fur-seal fishing operation, and also the number and sex of 
the seals captured upon each day. These entries shall be com- 
municated by each of the two Governments to the other at the 
end of each fishing season. 

'Art. 6. The use of nets, firearms, and explosives shall be for- 
bidden in the fur-seal fishing. This restriction shall not apply to 
shot-guns when such fishing takes place outside of Behring Sea, 
during the season when it may be lawfully carried on. 

'Art. T. The two Governments shall take measures to control 
the fitness of the men authorised to engage in fur-seal fishing ; 



THE LEGAL NEWS. 2*75 

these men shall have been proved fit to handle with sufficient 
skill the weapons by means of which this fishing may be cai*ried 
on. 

'Ai*t. 8. The regulations contained in the preceding articles 
shall not apply to Indians dwelling on the coasts of the territory 
of the United States or of Great Britain, and carrying on fur-seal 
fishing in canoes or undecked boats, not transported by, or used 
in connection with, other vessels, and propelled wholly by pad- 
dles, oars, or sails, and manned by not more than five persons 
each, in the way hitherto practised by the Indians, provided such 
Indians are not in the employment of other persons, and provided 
that, when so hunting in canoes or undecked boats, they shall not 
hunt fur-seals outside of territorial waters under contract for the 
deliveiy of the skins to any person. This exemption shall not 
be construed to affect the municipal law of either country, nor 
shall it extend to the waters of Behring ^qsl or the waters of the 
Aleutian passes. Nothing herein contained is intended to inter- 
fere with the employment of Indians, as hunters or otherwise, in 
connection with fur-sealing vessels as heretofore. 

'Art. 9. The concurrent regulations, hereby determined with a 
view to the protection and preservation of the fur-seals, shall re- 
main in force until they have been, in whole or in part, abolished 
or modified by common agreement between the Governments of 
the United States and of Great Britain.' 

The said concurrent regulations shall be submitted every five 
years to a new examination, so as to enable both interested Gov- 
ernments to consider whether, in the light of past experience, 
there is occasion for any modification thereof. 

Thus the United States ai*e given a zone of sixty miles' juris- 
diction round the Pribilotf Islands, of which the lessees of the 
islands will have the exclusive benefit. To this we have no 
objection. It is only right that they should be protected from 
raiding on the islands or in their immediate neighborhood. 

As regards the close time, the arbitrators appear to have 
divided the season when the seals are to be found on the high 
seas. They have left August, one of the best months, open to the 
pelagic sealers, but they have far from adopted the British pro- 
posals. 

Steam-vessels are excluded fr6m sealing operations, and inside 
r«ehring Sea even ordinary guns are forbidden. 

It is significant that these regulations were only carried by 



276 THE LKGAL NEWS. 

four arbitrators against three. The Americans and Sir J. 
Thompson dissented. If Lord Hannen had dissented too, there 
would have been no decision, as Sir Charles Russell had consented 
to the whole question forming one decision, though this is con- 
trary, as the writer believes, to the sense of Art. 7 of the Treaty 
of Submission. 

There is a difficulty of execution still to be dealt with. The 
arbitrators' decision applies only to Great Britain and the United 
States. The co-operation in the proposed measures of other 
States is indispensable, and this under the treaty both parties are 
to use their best efforts to secure. 

The work of the Court of Arbitration is concluded by the fol- 
lowing recommendations, to supplement the regulations they 
have decided upon, by concuiTcnt regulations applicable to with- 
in the limits of the sovereignty of the two powers interested. 
They also recommend that, ' in view of the critical condition to 
which it appears certain that the race of fur-seal is now reduced 
in consequence of circumstances not fully known,' both Govern- 
ments come to an understanding in order to ' prohibit any killing 
of fur-seals either on land or at sea for a period of two or three 
years, or, at least, one year, subject to such exceptions as the 
then two Governments might think proper to admit of.' 

Certain facts as to the claim for damages are found, but, as the 
agents of the two Governments submitted them jointly, this part 
of the decision is of no interest. 

Thus ends a cause calibre in international law, the full import- 
ance of which, as showing the efficacy of arbitration, cannot yet 
be judged. The weakness of the arrangement was in the case 
submitted being partly a legal and partly a technical one. For 
the legal part of the question no better court ever sat ; for the 
technical part of the case the court was reduced to the good old 
device of splitting the difference, the couree pursued by all those 
who, while wishing to be just, doubt their own powers too much 
to be emphatic. — Law Journal {London.) 



THE 

LBGAL NKWS. 

VOL. XVI. SEPTEMBER 15th, 1893. No. 18. 

SUPBEME COUBT OF CANADA. 

Ottawa, May 1, 1893. 

Maodonald v. Fsrdaib. 
Quebec] 

Action canfessoire — Beal servitude — Apparent — Registration — 44 and 

45 Vic, ch. 16, sees. 5 and 6, (P.Q.)— ilrt 1508, CO.— 

Procedure — Matters of, in appeal. 

By deed of sale dated 2nd April, 1860, the vendor of cadastral 
lot No. 369, in the Parish of Ste. Marguerite de Blaii*findie, dis- 
trict of Iberville, reserved for himself as owner of lot 370, a 
carriage road to be kept open and in order by the vendee. The 
respondent, as assignee of the owner of lot 370, continued to 
enjoy the use of said carriage road, which was sutficiently indi- 
cated by an open road, until 1887 when he was prevented by 
appellant Cully from using the said road. C. had purchased the 
lot 369 from one McD. without any mention of any servitude, 
and the original title deed created by the servitude was not regis- 
tered wilhin the delay prescribed by 44 and 45 Vic. (P.Q.) ch. 16, 
sees. 5 and 6. 

In an action brought by R against C, the latter filed a dilatory 
exception to enable him to call McD. in warranty, and McD. 
having intervened, pleaded to the action. C. never pleaded to 
the ments of the action. The judge who tried the case dismissed 
McD/s intervention and maintained the action. This judgment 
was affirmed by the Court of Queen's Bench. On appeal to the 
Supreme Court of Canada : 



278 THE LEGAL NEWS. 

Held, affirming the judgment of the court below, that the deed 
created a real apparent servitude, which need not be registered, 
theie being sufficient evidence of an open road having been used 
by F. and his predecessorn in title as owners of lot No. 370. 

Heldy also, that though it would appear by the procedure in the 
case that McD. and C. had been irregularly condemned jointly to 
pay the amount of the judgment, yet as McD. had pleaded to the 
merits of the action and had taken up /art et cause for C. with his 
knowledge, and both courts had held them jointly liable, this 
court would not interfere in such a matter of practice and pro- 
cedure. 

Appeal dismissed with costs. 

Paradis and Belcourt, for the appellants. . 
Geoff rion^ Q.C., for the I'espondent. 



May 1, 1893. 

Bury v. Murphy. 
Quebec] 

Partnership monies — Sequestration of — Contre let f re. 

In November, 1886, G. B., by means of a contre lettre, became 
interested in certain real estate trant^actions in the city of Mont- 
real, effected by one P. S. M. In December, 1886, G. B. brought 
an action against P. S M. to have a hale made by the latter to one 
Barsalou declared fraudulent, and the new purchaser restrained 
from paying the balance due to the parties named in the deed of 
sale. A plea of compensation was filed and, pending the action, 
a sequestrator was appointed. In September, 1887, another ac- 
tion was instituted by G. B. against P. S. M,, asking for an account 
of the different real estate transactions they had conformably to 
the terms of the contre lettre. The Superior Court dismissed the 
first action on the ground that G. B. had no right of action, but 
maintained the second action. The Court of Queen's Bench 
affirmed the judgment of the Superior Court, dismissing the first 
action, and P. S. M. acquiesced in the judgment of the Superior 
Court on the second action. On appeal to the Supreme Court of 
Canada it was 

ffeldy reversing the judgment of the court beloWj that the plea 
of compensation was unfounded, the appellant having the right 
to put an end to the i-espondent's mandate by a direct action, and 
therefore until the second action of account was finally disposed 



THE LEGAL NEWS. 2*79 

of, the monies should remain in the hands of the sequestrator 
appointed with the consent of the parties. 

Appeal allowed with costs. 

Barnard, Q,C., for the appellant. 

Monk^ Q'C.j for respondent. 



May 1, 1893. 

FOGABTY V. FOGARTY. 

Quebec] 

Will— Construction of — Division of estate — Bight to postpone, 

T. F. F., who, in partnership with his brother J. F., carried on 
business as manufacturers of boots and shoes in Montreal, by his 
last will left all his property and estate to be equally divided 
between his two brothers, M. W. F., the appellant, and J. F., the 
respondent. The will contained also the followinpj provision : 

But it is my express will and dcj^ire that nothing herein con 
tained shall have the effect of disturbing the business i)OW carried 
on by my t^aid bi*othor Jeremiah and myself, in co-partnership 
under the name and firm of Fogarty and Brother. Should a 
division be requested between the said Jeremiah Fogarty and 
Michael William Fogarty, should the latter not be a member of 
the firm for a period of five years, computed from the day of my 
death, in order that my brother, the said Jeremiah Fogarty, may 
have ample time to settle his business and make the division 
contemplated between them and the said M ichaei William F'ogarty, 
and in the event of the death of either of them, then the whole to 
go to the survivor. 

T. F. F. died on the 29th April, 1889. 

On the 30th April, 1889, a statement of the affairs of the firm 
was made up by the book-keeper, and J. F. and M. W. F. having 
agreed upon such statement, the balance shown wa^ equally 
divided between the parties, viz. : $24,146.34 being carried to the 
credit of M. W. F. in trust, and $24,146.34 being carried to J. F.'s 
general aicount in the books of the firm. At the foot of the 
statement a memorandum dated 12th June, 1889, wiis signed by 
both parties, declaring that the said amount ha;i that day been 
distributed to them. 

On the 6th March, 1890, M. W. F. brought an action against 
J. F., claiming that he was entitled to $24,164.34 with interest 
from the date of the division and distribution, viz. : 30th April, 



280 THE LEGAL NBW8. 

1889. J. F. pleaded that under the will he was entitled to post- 
pone payment until five years from the testator's death, and that 

the action was premature. 
Held^ affirming the judgment of the court below, that J. F. was 

entitled under the will to five yeai*s to make the division contem- 
plated, and that he had not renounced such right by signing the 
statement showing the amount due on the 30th April, 1889. 

Appeal dismissed with costs. 



June 24, 1893. 

MiLLEB V. PlUMMER. 

Ontario.] 

Promissory note — Accommodation — Bad faith of holder — Conspiracy, 

P. endorsed a note for the accommodation of the maker who 
did not pay it at maturity, but having been sued with P. he pro- 
cured the latter's endorsation to another note agreeing to settle 
the suit with the proceeds if it was dibcounted. He applied to 
a bill broker for the discount, who took it to M., a solicitor 
between whom and the broker there was an agreement by which 
they purebred notes for mutual profit. M. agreed to discount 
the note. M.'s firm had a judgment against the maker of the 
note, and an arrangement was made with the broker by which 
the latter was to delay paying over the money so that proceed- 
ings could be taken to garnishee it. This was carried out; the 
broker received the proceeds of the discounted note, and while 
pretending to pay it over was served with the garnishee process 
and forbidden to pay more than the balance after deduction of 
the amount of the judgment and coats ; and he offered this amount 
to the maker of the note which was refused. P., the endoraer, 
then brought an action to restmin M; and the broker from dealing 
with the discounted note, and for its delivery to himself. 

Held^ affirming the decision of the Court of Appeal, that the 
broker was aware that the note was endorsed by P. for the pur- 
pose of settling the suit on the former note ; that the broker and 
M were partners in the transaction of discounting the note, and 
the broker's knowledge was M.'s knowledge ; that the property 
in the note never passed to the broker, and M. could only take it 
subject to the conditions under which the broker held it; that 
the broker not being the holder of the note there was no debt 
duo from him to the maker, and the garnishee order had no 



THE LEGAL NEWS. 281 

effect as against P. ; and that the note was held by M. in bad 
faith, and P. was entitled to recover it back. 

Appeal dismissed with costs. 

Donovan^ for the appellant. 

Beckj for the respondent. 



June 24, 1893. 

WiSNBE V. COULTHAED. 

Ontario.] 

latent — Combination — Old elements — New and useftd result-- Pre- 
vious use. 

In an application for a patent the invention claimed was *^ in a 
seeding machine in which independent drag-bars are used, a 
c^urved spring tooth detachably connected to the drag-bar in com- 
bination with a locking device arranged to lock the bead block to 
^which the spring tooth is attached substantially as and for the 
jDurpose specified." In an action for infringement of the patent 
It was admitted that all the elements were old, but it was claimed 
t^hat the substitution of a curved spring tooth for a rigid tooth 
'^^as a new combination, and patentable as such. 

Heldj affirming the decision of the Court of Appeal, Gwynne, 
3~., disbenting, that the alleged invention being the mere insertion 
of one known article in the place of another known article was 
not a patentable matter. Smith v. Qoldie, (9 Can. 8.C.E. 46) and 
hunter v. Carrick (11 Can. S.C.R 300) referred to. 

Appeal dismissed with costs. 

Bidoutf for the appellants. 

AmoMi, Q.C., and Eoaf, for the respondents. 



May 1, 1893. 
HowLAND V. Dominion Bank. 
Ontai'io.] 

JPraciice — Renewal of writ — Setting aside order for — Statute of 

limitations. 

A writ issued from the High Court of Justice for Ontario in 
June, 1887, was renewed by order of a master in chambers three 
times, the last oi*der being made in May, 1890. In May, 1891, it 
was served on defendants, who thereupon applied to the master 
to have the service and last renewal sot aside, which application 
was granted, and the order setting aside said service and renewal 



282 THE LEGAL NEWS. 

was affirmed on appeal by a judge in Chambers and the DiviBional 
Court. Special leave to appeal from the decision of the Divisional 
Court was granted by the Court of Appeal which also affirmed 
the order of the Master. Mr. Justice Osier, who delivered the 
principal judgment, held that the master had jurisdiction to 
review his own order ; that he held that plaintiffs had not shown 
good reasons under rule 238 (a) for extending the time for ser- 
vice, and this holding had been approved by a judge in Chambers 
and a divisional court; and that the Court of Appeal could not 
say that all the tribunals below were wrong in so holding. On 
a])peal to the Supreme Court of Canada : 

Held, that for the reasons given by Mr. Justice Osier in the 
Court of Appeal, the appeal to this court must fail and be dis- 
missed with costs. 

Appeal 'dismissed with costs. 

Arnoldi, Q.C., for the appellants. 

Dr. McMichaely Q^C.y for the respondents. 



May 1, 1893. 
MooBE V. Jaokbon. 
Ontario.] 

]\/larried wmnarCs property ^Separate estate — Contract by married 

woman — Separate property exigible — (/. S. U. C, c. 73 — 35 F. 

c. 16 (0.)-^R.S.O. (1877) cc. 125 and 127—47 V.c. 19 (0.) 

By the Married Woman's Property Act, 1887, of Ontario, (47 
v., c. 19) a married woman is capable of acquiring, holding and 
disposing of real or personal property as if she were txfeme sole ; 
of entering into and rendering hensclf liable on any contract, and 
of suing or being sued alone in respect of such property ; the 
right of the husband as tenant by the curtesy is not to be pre- 
judiced by such enactment. 

Held, reversing the decision of the Court of Appeal, that the 
property held by a married woman under this act is ** separate 
property," and may bo taken in execution for her debts, notwith- 
standing the reservation in favour of her husband. 

Appeal allowed with costs. 

Moss, Q.C, for the appellant. 

Armour, Q.C, for the respondent. 



THB LEGAL NEWS. 288 

May 1, 1893. 

DUMOULIN V. BURPOOT. 

Ontario] 

^ Contract -Sale of land — Building restriction — Description— Street 

boundaries — Construction of covenant. 

The ownera of a block of land in Toronto, bounded on the north 
by Wellesley street, and west by Sumach street, entered into an 
agreement with B. whereby the latter agreed to purchase a part 
of said block which was vacant wild land, not divided into lots, 
and containing neither buildings nor .street, though a by-law had 
been passed for the construction of a street immediately south of 
it to be called Amelia street. The agreement contained certain 
re^strictions as to buildings to bo erected on the property pui^ 
chased, which fronted on the two streets north and we8t of it 
i'es])ectively, and the vendors agreed to make similar stipulations 
in any sale of land on the south side of Wellesley street pi*oduced. 

A deed was afterwards executed of said land pursuant to the 
agreement which contained the following covenant : " And the 
grantors .... covenant with the gmntees .... that in case 
they make sale of any lots fronting on Wellesley streetor Sumach 
street, on that part of lot 1 in the City of Toronto, situate on the 
south side of Wellesley street and east of Sumach street, now 
owned by them, that they will convey the same subject to the 
same building arrangements or conditions (as in the agreement). 

The vendors afterwards sold a portion of the remaining land 
fronting on Amelia street, and one hundred feet east of Sumach 
street, and the purchaser being about to erect thereon a building 
forbidden by the restrictive covenant in the deed, B. brought an 
action against his vendors for breach of said covenant, claiming 
that it extended to the whole block. 

Held^ affirming the decision of the Court of Appeal, Gwynne, J., 
dissenting, that the covenant included all the property south of 
Wellesley street ; that the land not being divided into lots any 
part of it was a portion of a lot of land fronting on Wellesley and 
Sumach streets, and so within the purview of the deed ; and that 
the vendors could not, by dividing the property as they saw fit, 
narrow the operation and benefit of their own deed. 

Ileld^ per Gwynne, J. The piece of land in question did not 
front or abut on either Wellesley or Sumach street, but on Amelia 



284 THE LEGAL NEWS. 

street tilone, and was not, therefore, literally within the covenant 
of the vendore. 

Appeal dismissed with costs. 

Amoldi, Q.C., and Bristol^ for the appellants. 

Nesbitt and Gait for the respondent. 



Jane 24, 1893. 
The Midland Rt. Co. v. Young. 

Ontario.] 

Title to land — Tenant far life — Conveyance to railway company by — 
Railway acts — C.S.C.y c.66y s, 11, ss. 1 — 24 F., c. 17, s. 1. 

By C.S.C., c. 66, s. 11 (Railway Act) all corporations and per- 
sons whatever, tenants in tail or for life, grevis de substitution, 
guaidians, etc., not only for and on behalf of themselves, their 
heir and successors, but also for and on behalf of those whom 
they represent .... seized, possessed of or interested in any 
lands, may contiact for, sell and convey unto the company (rail- 
way company) all or any part thereof; and any contract, etc., 
so made shall be valid and effectual in law. 

Held, affirming the decision of the Court of Appeal, that a ten- 
ant for life is not authorized by this act to convey to a railway 
company the interest of the remainderman in the land. 

Appeal dismissed with costs. 

Osier, Q.O., for the appellants. 

Kerr, Q,G., for the respondents. 



June 24, 1893. 

CUMMINQ v. LaNDSD BaNKINQ AND LOAN OOMPANT. 

Ontario.] 

Trustee — Will — Executors and trustees under — Breach of trust by 

one — Notice — Inquiry, 

W. and C. were executors and trustees of an estate under a will. 
W., without the concurrence of G., lent money of the estate on 
mortgage and afterwards assigned the mortgages, which were 
executed in favour of himself described as " trustee of the estate 
and ett'ects of" (the testator). In the assignment of the mort- 
gages he was described in the same way. W. was afteiwards 
removed from the trusteeship and an action was brought by the 
new trustees against the assignees of the mortgages to recover 
the proceeds of the same. 



THE LBOAL NSWS. 285 

Held, reveraing the judgment of the Court of Appeal, that in 
taking and assigning said mortgages W. acted as a trustee and as 
an executor ; that he was guilty of a breach of trust in taking 
and assigning them in his own name ; that his being described 

on the face of the instruments as a trustee was constrictive notice 

I 

to the assignees of the trusts which put them on inquiry; and 
that the asr«ignees were not relieved as persons rightfully and 
innocently dealing with trustees inasmuch as the breach of trust 
consisted in the dealing with the secunties themselves, and not 
in the use made of the proceeds. 

Appeal allowed with costs. 

Marshy Q. C. for the appellants. 

W. CaaselSy Q, C, and MacKelcariy Q. C, for the respondents. 

June 24, 1893. 
DwYBR V. Port Arthur. 

Ontario.] 

Mvnicipal corporation — By-law — Street Railway — Construction be- 
yond limits of municipality — Validating act — Construction of. 

The Corporation of the town of Port Arthur passed a by-law 
entitled, '* a by-law to raise the sum of $75,000 for street railway 
purposes, and to authorize the issue ofdebentures therefor,'* which 
recited, inter alia, that it was necessary to raise said sum for the 
purpose of building, etc., a street railway connecting the munici- 
pality of Keebing with the business centre of Port Arthur. At 
that time a municipality was not authorized to construct a street 
railway beyond its territorial limits. The by-law was voted upon 
by the rate-payei-s and passed, but none was submitted oi*dering 
the consti'uction of the work. Subsequently an act was passed 
by the legislature of Ontano in respect to the said by-law which 
enacted that the same " is hereby confirmed and declared to be 
valid, legal and binding on the town . . . And for all pui-poees, 
etc., relating to or affecting the said by-law, any and all amend- 
ments of the Municipal Act . . . shall be deemed and taken as 
having been complied with. 

Heliy revemng the decision of the Court of Appeal, that the 
said act did not dispense with the requirements of ss. 504 and 
505 of the Municipal Act, requiring a by-law providing for con- 
struction of the railway to be passed, but only confirmed the one 
that was passed as a money by-law. 



286 THE LEGAL NEWS. 

Held^ alRO, that an erroneous recital in the preamble to the act 
that the town council han passed a construction by-law had no 
effect on the question to be decided. 

Appeal allowed with costn. 

Aylesworth, Q.C., for the appellant. 

DeUtmere, Q.C, for the respondents. 

June 24, 1893. 
Halifax Street Kailway Co. v. Joyce. 

Nova Scotia.] 

Negligence — Street railway — Height of rails — Statutory obligation — 

Accident to horse. 

The charter of a street railway company required the road be- 
tween, and for two feet outside of, the rails to be kept constantly 
in good repair and level with the rails. A horse crossing the 
truck stepped on a grooved rail and the caulk of his shoe caught 
in the groove and he was injured. In an action by the owner 
against the compan}', it appeared that the rail, at the place where 
the accident occurred, was above the level of the I'oadway. 

Held, affirming the judgment of the Supreme Court of Nova 
Scotia, that as the rail was above the I'oad level, contrary to the 
requirements ot the charter, it was a street obstruction unau- 
thorized by statute, and, therefore, a nuisance, and the company 
was liable for the injury to the horse caused thereby. 

Appeal dismissed with costs. 

Moss^ Q.C, for the appellants. 

Netccombe^ for the respondent. 



June 24, 1893. 

O'Connor v. Nova Scotia Telephone Company. 
Nova Scotia,] 

Municipal corporation — Ownership of roads and streets — Rights of 

private prop* rty owners — Ownership ad medium filum via* — 

E.S.N.S. bthser, c, 45—50 Vict, c 23 (N.S.) 

The act of the Nova Scotia legislature, 50 V. c. 23, vesting the 
title to highways and the lands over which the same pass in the 
crown for a public highway, does not apply to the City of 
Halifax. 

The charter of the Nova Scotia Telephone Company authorized 
the construction and working of lines of telephone along the sides 



THE LEGAL NEWS. 28*7 

of and across and ander any public highway or street of the City 
of Halifax, provided that in working such lines the company 
should not cat down or mutilate any trees. 

Held^ Taschereau and Gwynne, JJ., dissenting, that, the owner 
of private property in the city could maintain an action for dam- 
ages against the company for injuring ornamental shade trees in 
front of his property in working the telephone lino. 

Appeal allowed with costs. 

Newcombe, for the appellant. 

Borden, Q.O., for the respondent. 



\ 



SUPERIOR COURT ABSTRACT, 

Joint stock company — Companies' Act 1862-83, (^imperial) — Winding- 
up Act — Liquidator, status of, before Canadian courts — Inter- 
vention — Deposit — Saisie- arret. 

Held: — Where Canadian creditors of a joint stock company 
incorporated under the (Imperial) Companies' Act 1862-83, are 
proceeding to execute a judgment obtained in the coui'ts of this 
province upon assets of the company situate within the province, 
a liquidator named in Great Britain to the voluntary winding-up 
of such company cannot intervene and demand that the company's 
assets be removed to Great Britain, to be thereby him distributed 
in accordance with the provisions of the said Compaiiies' Act. 

Quoere, has such liquidator any stiinding before the courts of 
this province ? 

In the present case, the garnishees ordered to deposit with the 
prothonotary a sum of $51,000 placed in their hands to meet a 
possible judgment in another case against the same defendants. — 
Quebec Bank v. Bryant et al., dh Hall et ai, T, S., Powis, inter- 
vening, & The Quebec Bank, contesting, Quebec, Andrews, J., 
April 15, 1893. 



Procedure — Execution — Opposition— Fi, fa, rapporte apres delai^ 
Venditioni exponas— Saisie, quand caduque — C. P. C, 578-589 
C. P, 172. 

Juge: — La prorogation du bref de fieri facias par le juge n'est 
requise quo lorsque la saisie n'est pas suspeudue par une opposi- 
tion; lorsqu'elle est ainsi suspendue elle subsiste, memo apr^s le 
d^lai pour le rapport du bref, si I'obstacle que I'opposition fait k 
la vente n'est pas ^cartd auparavant. 



288 THB LBOAL NBWS. 

Comme le code de proc^are ne fixe pas an d^lai pour )a pe- 
remption de la nai^ie, dans le eas ou Pobstacle n'est ^cart^ que 
subB^quemment au jour fixd pour le rapport du bref, on doit re- 
ooorir k la loi ant^rieure pour fixer sa dur^e, savoir, k Tarticlo 
172 de la Coatume de Paris, qui donne k la saisie une dur^e de 
deux mois apr^s que i'obstacle 4 la vente a disparu. 

Les mots ecarte subsiquemtnent de Tarticle 589, C. F. C, signi- 
fient *^ Ecarte subs^quemment k la saisie, roais avant le retour du 
bref." Lavoie v. Lacroix, R. O. Q,, 1 C. S. 57, renvers^e. 

Une opposition ba.*^ee sur le pr^tendu transport du jugement k 
un tiers, mais qui n'all^gue ni signification ni acceptation de ce 
transport, sera rejet^ sur defense en droit. 

Une composition entre ledemandeur et le d^fendeur, ant^rieai-e 
a la saisie, et non payde, ne justifie pas une opposition afin d'an- 
nuler par ce dernier. — Martineau v. Foumier, Quebec, C. R, Ca- 
sauit, Caron, Andrews, JJ., 31 mat 1893. 



Subslitution— Vente forcee (Tun bien substitui — Substitution creee 
par une donation onereuse — Articles 929, 953, (7. C 

Jugi: — Le substituant qui, par une donation errant une subs- 
titution, a impost certaines charges au grev^, assur^es par privi- 
lege de bailleur de fonds, quo ce dernier n'a pas remplics, peat 
faire eaisir et vendre Pimmeuble substitu^, ot cette vente a Teffet 
de purger la substitution. 

2. Une substitution ne pent etre cr^^ qu'autant qu'elle se rat- 
tache k une lib^ralitd, la substitution ne pouvant exister que 
loi*sque la personne qui en a 6i4 charg^e a 616 gratifi^e par Tacte 
errant la substitution. Ainsi, lorsque les charges stipul^es ^galent 
la valeur de Timmeuble qu'on a pr^tendue substituer, il n'y aura 
pas de substitution, Facte en question constituant une veritable 
vente. — Lalonde v. Daoust, Montreal, Taschereau, J., 22 d^cembre 
1892. 



Chemin defer — Co-proprietaires — Incendie cause par fiamineches 

d'engin — EesponsabiUte. 

Juge : — Une compagnie de chemin de fer qui a la direction 
d'une voio, dont elle est propri^taire par indivis avec une autre 
compagnie, est responsable du dommage resultant d'incendies 
causes par les feux d'engins de Tune ou de Tautre compagnie. 



THl LEGAL NEWS. 289 

sauf reconrs. — Lemieux et aL v. Cie. du chemin defer Quebec <& Lac 
St-Jean, C. B., Quebec, Casault, fiouthier, Andrews, JJ., 31 raai 
1893. 



Procedure — Timbres additiannelSj apposition de, a piece insuffisam' 
ment fimbree—S. R.Q., llTl. 1172, 1176, \Vn— Action pau- 
lienne — Preuve, 

Juge : — Une rdponse k un interrogatoire sur faits et articles qui 
contient une assertion ^trang^re aax faits demand^s, pent §tre 
divis^e. 

La preuve testiraoniale de Texistonce d'hypoth^ues sur nn 
immeable n'est pas legale. 

L'action paulienne ne pourauivant pas la declaration d'une 
nallite relative, mais d'une nullitd absolue, le montant des timbres 
^ apposer sur les procedures doit dtre r^gie, non par la sommo 
demandee, mais par la valeur des biens qu'on cherche a faire 
rentrer dans le patrimoine du debiteur. 

Lorsqu'une pi^ce du dossier est insuffisamment timbrde, comme 
la loi ne fixe pas le deiai ou la demands pour permission d'y ap- 
poser des timbres additionnels doit §tre faite apr^s la ddcouverto 
de Terreur, il suffit que celle-ci existe k la date de la procedure 
qui n'a pas 6t6 revltue des timbres reqais, pour que la partie en 
faate puisse obtenir permission de la r^parer. 

II n'est pas ndcetsaire que le dossier soit transmis au tribunal 
de premidre instance pour avoir cetto permission ; elle pent §tre 
accord^e, cour s^ante, par la cour do revision, lorsquo le d^faut 
n'est signals que devant ce tribunal. — Leclaire v. Coti et aL, C. R., 
Quebec, Casault, Bouthier. Caron, JJ., 31 mai 1893. 



Compagnie miniere responsable en dommages envers employe blesse 
par explosion de poudriere non-munie de paratonnerres — S. B. Q. 
876, 1011. 

Le demand eur,>emploje de la d^fenderesse, en s'en allant de 
son oavrage, s'est r^fugi^ pendant un orage dans une b&tisse ap- 
parteoant k la dtfendercsse, et pendant qu'il y ^tait la foadre est 
tomb^e sur une poudriere voisine, aussi appartenant k la d^fen- 
deresse, qui n'^tait ni construite suivant les proscriptions de la 
loi ni prot^gde par des paratonnerres, laquelle a fait explosion et 
a d^truit en partie la bdtisse oxi s'^tait r^fugi^ le demandeur, 
infligeant k celui-ci des blessures graves. 



290 THE LEGAL NEWS. 

Jugi : — Quo Tinobservation des piescriptions de la loi duns la 
construction dc la dite poudri^re ^tait une faute etuno negligence 
qui ont rendu la ddfenderesse responsable du dommagc que I'ex- 
plosion d*icelle a causd au demandeur. 

Les lois concernant les poudri^res, S. E. Q., 876, §6, 1011, et 
les r^glementH fails pai* le lieutenant-gouverneur en conseil con- 
form^mcnt k icelles, s*appliquent aux compagnies miniores — 
Garon v. Anglo-Oanadian Asbestos Co,, C. R, Quebec, Casault, 
Routhier, Andrews, JJ., 31 raai 1893. 



Bamages — Libel in pleading — Justification. 

A party who, in a pleading, accuses another of fraud and col- 
lusion, will bo held liable in damages, if the circumstances be not 
such as would produce on the mind of a cautious and prudent 
man an honest conviction of the guilt of the party he accuses. 

In the present case, t'le defendant having been cognizant of 
the loan made to his debtor by the phiintiff. and having himself 
received the greater part of it, a charge by him that plaintiff, in 
taking security ibr the loan, by wii}' of side a rim6r6 of all tbe 
debtor's property, had acted collusively with such debtor to de- 
fraud him, the defendaut, held libollous and actionable. — Casault, 
J., diss.) Matte v. Rati6, C. R,, Quebec, Casault, Caron, Andrews, 
JJ., 31 May, 1893. 

Procidure — Amende — Non-enregistrement de declaration par femme 
s6par6e de biens faisant rommerre—C. P, O, 981 — Affidavit — 
S, R. §. 5716 — Assignation — Exception a la forme — Contrainte 
par corps — Forclusion — Enquete — Serment du stenographe, 

Jugi: — 1. On ne peut pas objecter k unepartie qu'elle poursuit 
sous ses vrais pr^noms, quoiqu'elle Teui pu sous ceux sous lesquels 
elle a toujours 6[6 connue. 

2. Lorsque le mari n'est mis en cnnse que pour assister sa 
femme, la signification d'une seule copie. k la femme, des bref et 
declaration, est suflisante. 

3. Le demandeur dans son action qui tam, qui, dans son affidavit 
(S. R. Q. 571^), ndglige de jurer qu'il n'agit point "en vue de 
retarder ou de faire ^chouer Taction d'une autre personne," omet 
une formalitd essentielle a son droit de poursuit-e, et bien quo cette 
omission ne puisse etre attaqude par exception ^ la forme elle 
peut rsti^e sans plaidoyer aucun, et elle est fatale k la demande. 



THE LEGAL NEWS. 291 

4. Lorsque le demand eur. saiiB produire nno pi^co sur luquelle 
Taction est fondle, a forclos lo d^fondcur de plaider et a proc^ld 
ex parte jasqu'sl Taadition- au m^rite et la mise de la cause ou 
d^lib^r^, il ne peut plus produire ceite pidce sans renoncor (^ la 
forclusion et d toutcs Ich procedures subs^quentes et sans donner 
avis au ddfendeur de la production de la piSce en question. 

5. L'enqu^te prise 4 un jour subsequent ^ celui fixe, sans ajour- 
nement de la cause X tcl jour, et sans nouvel avis '\ Tautre pnrtie, 
est ilie^ale. 

6. Les stenographes officicis, etant des officiera de la com*, doi- 
vent prater un serment d'office, et n'ont pas besoin d'etre asser- 
mente dans chaque cause. 

*7. Dans une poursuite pour amende contre une femme s^par^e 
de biens qui fait le commerce sans avoir depose la dedai-ation 
voulue (C. P. C. 981), une condamnation par corps n*est pas auto- 
risee par la loi, et rend le jugement nul. 

8. Dans une action qui tarn le dcmandcur, tant que le jugement 
n'est pas prononce, est dominus litis et peut, si la couronne n'in- 
tervient pas, renoncer ^ des procedures de Finstance, mais apitis 
que le jugement a ete prononce il ne le peut plus, car ce jugement 
donne des droits ^ un tiers, ** la couronne," et il ne peut pas 3' 
renoncor ni pour le tout ni meme pour une partie. 

9. Lorsqu'une cause est inscrite k TenquSto et merito il doit, 
en Tabsence d'un consentement des parties, §tre procede ^ I'en- 
qu§te cour seante, et le jurat au bas des depositions doit le cons- 
tater. — Guay qui tarn v. Durand et vir^ C. R., Quebec, Casault, 
Routhier, Caron, JJ., 31 mai 1893. 



Procedure — Initial of name — Summary matters. 

Held: — 1. Where the \^rit of summons sets forth one of 
plaintiff's baptismal names and indicates the other by its initial 
letter, the action will not be dismissed on exception to the form. 

2. Where an action is brought by a trader on an account, 
although the articles the price whereof is sought to be recovered 
are not such as would form part of the merchandise dealt in by 
the plaintiff, yet if it be proved that the articles were received 
and sold hy him to the defendant in the ordinary course of his 
commercial operations, the case is- governed by the provisions of 
art. 887 et seq., C.C.P., regulating summary matters. 

3. It is not required by law that the days of delay between 



292 THE LEGAL NEWS. 

service of writ and i-eturn should be jaridical days. — Martin v. 
Martin^ Montreal. Doherty, J., May 25, 1892. 

Societe — Convention interdisant aux associes d'interesser un tiers d 

leur part dans la societe — Betrait social. 

^ Le 17 d^cembre 1888, le demandenr et MM J. L. Cassidy 
(depuis d^c^^), et Duraont Laviolette se mirent en soci^t^ pour 
acqu^rir la part de feu Claude Melangon dans la soci^t^ John L. 
Cassidy & Co., et convinrent de former une nouvelle soci^t^, 4 
I'ezpiration de celle qui exisiait d^j^, et qui se composait de MM. 
Cassidy, Laviolette, Aumond, Gariepy et des repr^sentants de 
feu M. Melangon. La socidt^ alora existante avait ^t^ form^e 
pour cinq ans, a compter du 5 Janvier 1886. Aux termos du 
pacto social, il dtait interdit 4 aucun associ^ d'int^resser un 
stranger k sa part dans la soci^t^, et il fut de plusconvenu que la 
mort d'un associ^ ne mettrait pas fin & la soci^t^, mais que les 
repr^sentants de cet associe resteraient associ^s commanditaires. 
Le 26 d^cembre, le demandeur et MM. Cassidy k Laviolette se 
firent donner, de la part des h^ritiei*B Melangon, une promesse de 
vente des droits de ceux-ci dans la soci^t^ John L. Cassidy k Co. 
Le 5 Janvier 1891, lo demandeur fit signifier cette promesse de 
vente aux membres de la dite soci^td, demandant le partage 
d'icelle, mais ceux-ci formdrent une nouvelle soci^t^ ^ Texclusion 
du demandeur. 

Jage: 1. Que les conventions du 17 et du 26 d^cembre ^talent 
l^gales, malgrd la clause du contrat de soci^t^ qui d^fendait aux 
asBOci^s d'int^resser un tiei*s d* leur part, et que, nonobstant cette 
clause, il ^tait loisible k quiconque, tiera ou associe, d'acqu^rir les 
droits que possMeraient Tun des associ^s & Texpiration de la 
soci^td. 

2. Que le retrait social, soit le droit, pour les associe, d'ac- 
qu^rir, & Texclusion des tiers, la part de leurs co-associds lors de 
la dissolution de la socidt^, n*existe pas dans noti*e droit en Tab- 
sence d'une convention expresse accoi*dant ce droit de pr^f^rence * 
aux associ^s. — De Martigny v. Laviolette et aLy & Gratton et al.^ 
mis-en-cause, Montreal, de Lorimier, J., 31 octobre 1892. 

Cour des commissaires — Commissaire illeitre — Certiorari. 
Juge: — Un jugement rendu k la cour des commispaires par un 
commissaire qui ne eait ni lire ni dcrire est nul et illegal, et sera 
cass^ sur certiorari. — Meloche db Brunette^ Montreal, Loranger, J., 
25 Janvier 1892. 



THE 



LBGAL NBWS. 



VOL. XVL OCTOBER 2nd. 1893. Na 19. 

CURRENT TOPICS AND CASES. 

The principal question decided by our Court of Appeal 
in Wotfd Sr Atlantic Sr N. W. Ry. Co. (Montreal, April 26, 
1893) is one of great importance, and it is well perhaps 
that the case should be taken to a higher court, as we be- 
lieve is about to be done. The Oourt of Appeal holds that 
where land is expropriated for railway purposes, the com- 
pany is bound to compensate the proprietor not only for 
the land actually taken, but also for the direct damage to 
the rest of his land and property, resulting from the con- 
struction of the railway or from the future operation of 
the road. In the case in question, a church was rendered 
all but useless by the construction and proximity of the 
railway. The company merely desired to expropriate an 
overhead passage over a lane. This however, was held 
sufficient to bring them under the Eailway Act, Mr. Justice 
Hall remarking, '* The court is agreed in thinking that 
the expropriation of an overhead passage gives the right to 
the enforcement of all the statutory rights which would 
follow from expropriation of subterranean or surface 
rights." The actual damage by construction and the 
value of the land taken were in this case comparatively 
insignificant, the court below awarding merely $1,86'7, 
instead of $16,808, the damages assessed by the arbitrator's 
award. The great question was whether damage from 
the future operation of the road could be considered. The 
general principle is that no one can use his own property 



294 THB LEGAL NEWS. 

to the detriment of his neighbour, even if the exercise of 
such right be under the authority of an act of Parliament. 
Applying that principle, the Court of Appeal came to 
the conclusion that the arbitrators were justified in taking 
into consideration the injurious effect upon the present 
occupation of the property, resulting from the noise and 
vibration caused by the train service in such close prox- 
imity to the church. The original award has therefore 
been maintained. It is difficult to see how the proprietor 
would receive the full compensation to which he is entitled 
unless the whole damage were included in the award. 
If, however, this overhead passage had not been required 
by the company the damage to the church would have 
been nearly the same. Would the court be equally ready 
to maintain an action for damages resulting from opera- 
tion of the road, brought by a person in the immediate 
vicinity, but whose property has not been actually touched 
by the railway line ? 



Another decision of importance is that delivered by the 
Court of Appeal at Montreal, Sept. 2*7, 1898, in Forget 4* 
Ostigny. The question was whether a broker could recover 
a balance due by a customer, on transactions in stocks 
upon margin, and without any intention to make a real 
purchase of the stocks. The question was very fully ex- 
amined both by the Chief Justice and by Mr. Justice Hall 
who delivered an elaborate dissentient opinion. The result 
is that by four to one the right of action of the broker is 
denied. In McDougcUl Sc Demers, M. L. R., 2 Q. B. 170, the 
Court of Appeal stood three to two, Justices Monk and 
Eamsay being the dissentient judges. The circumstances 
of the two cases are not quite similar, but the view taken 
by the majority in each case is nearly the same. The 
present case, it is expected, will be carried to the Privy 
Council, and the Chief Justice, it may be observed, ex- 
pressed the hope that it would be taken to the highest 



THE LEGAL NEWS. 295 

court, in order that a question of such moment might be 
finally settled. 



The bar of Montreal have apparently not shown much 
interest in the bill submitted to the legislature last session 
by the Attorney Greneral for the reorganization of the 
courts. On one occasion when a meeting was convened 
for its consideration, there was no quorum, and on another 
occasion the attendance was so small that the meeting 
was adjourned. It may be remarked, however, that in the 
latter part of September, immediately following the long 
vacation, it is not an easy matter for lawyers to get time 
for meetings. Cases have to be looked up and got ready 
for the Courts of first instance, for review, for appeal, and 
for the Supreme Court. It is probable, also, that the feel- 
ing that the bill was likely to fail in the legislature owing 
to the opposition of country members, had some effect in 
diminishing the interest in the measure. It must not be 
assumed, however, that the bill will not receive fair and 
candid consideration from all the lawyers in the legisla- 
ture, whether they represent country or city constituen- 
oies, and at all events it is worthy of the most careful 
o.ltention from a bar so large and important as that of 
ifidontreal. 



Some of the country judges seem to have been unneces- 
sarily sensitive to a supposed imputation upon their abil- 
i'tj and usefulness. The whole thing seems to have 
a^risen from a pure misunderstanding. It is evident that 
XX either the bar nor any section of it, formulated any com- 
plaint, or had any disposition to do so. Country judges 
a.xid judges appointed from the country sections have borne 
l^oo important a part in the work of the courts for many 
years past, to leave any room for cavil. We may take 
^liis opportunity to say that there is too much shallow 
^xid ignorant criticism of our superior judges. Very few 
Ixave so strong a light thrown upon tlieir daily acts as 



296 THB LEGAL NEWS. 

they. If they are weak, if they seriously fall short of 
their duty in any particular, it will soon be known. But 
they should be protected against groundless imputations. 
A daily journal remarks that there was a time when the 
conviction was universal with regard to Canadian judges 
that whatever their previous record they could be entirely 
trusted as judges, and asks " is this conviction as strong 
to-day ? " If it is not so, it is due chiefly to the habit of 
evil-speaking which is certainly strong enough in the 
present generation. 



The vacancy on the bench of the Supreme Court of 
Canada, has been filled by the appointment of Mr. Justice 
King, of the Supreme Court of New Brunswick. 

Mr. King was bom in St. John in 1839, and is a son of the lute 
George King, shipbuilder, and a graduate of the Weslejan Uni- 
versity, Connecticut. He studied law and was admitted an attor- 
ney in 1863, called to the Bar in 1865, and appointed Queen'f) 
Counsel in 1872. He was a partner of the law firm of Morrison 
& King from 1865 until the death of Mr. Morrison in 1875. In 
politics Mr. King was a strong supporter of the old Liberal partj, 
and an earnest advocate of Confederation. He was first elected 
to the New Brunswick Assembly in 1867 along with the late 
Joseph Coram, on the retirement of Messrs. Gra\' and Wilmot 
just after Confederation. He was returned at the cjeneral election 
in 1870 and again in 1874. In January, 1869, he entered the 
Government of Attorney-General Wetmore without office, and on 
Ml*. Wetmore's election to the bench of the Supreme Court suc- 
ceeded him as attorney-general, holding that office down to 1878, 
when he resigned it and left the Local Legislature. In that year 
he was an unsuccessful candidate for the Commons for the city 
and county of St. John. On December 10, 1880, Mr. King was 
appointed a judge of the Supreme Court of New Brunswick. 



SALE OF SHARES— DIVIDENDS. 

Whether the sale of stock shares carries with it declared divi- 
dends is the question that arose in the Supreme Court of this 
State in the case of Warner v. Watson, The National Corporation 



THB LEGAL NEWS. 297 

Reporter says the rule obtains that by the declaration of a divi- 
dend, it becomes separated from the stock, and after the declara- 
tion of a dividend, a transfer of the stock does not transfer the 
dividend. The general rule is qualified by the custom of the 
Stock Exchange, where dividends declared pass with the stock, 
before the books of the company close, but Stock Exchange rules 
only govern its members and not the general public. This ques- 
tion underwent full discussion and determination in the case of 
Hopper V. Bussell Sage, 112 N. Y. 530, where it was held that a 
dividend declared upon corporate stock, belongs to the owner of 
the stock at the time, althoogh the dividends are made payable 
at a future time ; hence, in the absence of any provision to the 
contrary, in a contract of sale and purchase of stock made out- 
side of and not subject to the rules of the Stock Exchange, divi- 
dends previously declared but made payable thereafter, belong 
to the seller and are not transferred by contract. The declaration 
of a dividend is in legal contemplation a separation of the amount 
from the assets of the corporation, which holds such amount 
thereafter as the trustee of the stockholder at the time of the de- 
claration of the dividend. In the principal case under considera- 
tion plaintiff's assignor had pledged stock for a loan with persons 
who, before the loan was due, fraudulently and without notice to 
the asHi'/nor sold the stock ^ dividend on " on the floor of the 
Stock Exchange. At the time of the sale dividends had been 
declared but were not then payable. It was held that though 
the custom of the Stock Exchange provided that dividends de- 
clared passed with the stock until the books of the company 
closed, such custom did not affect the plaintiff's assignor, he 
not being a member of the Exchange, and the dividend did not 
pass with the sale of stock. The dividend for which the action 
was brought, had been declared by the Delaware and Hudson 
Canal Co., out of the profits of the year 1891, payable quarterly 
during the year 1892, to stockholders of record at various pres- 
cribed times during that year. — Albany Law Journal. 



CROSS-EXAMINATION AS AN ART. 

Every lawyer of only five years' practice has discovered what 
an art cross-examination has become,— to rank with sculpture 
and painting. May not the tools of the expert cross-examiner be 
figuratively described as the mallet of manner giving the adroit 



\ 



298 THE LEGAL NEWS. 

stroke; the chisels of rhetoric or of tone of voice for delicate 
incisions ? Must not the touches of the cross-examiner be not 
less delicate than those of a Praxiteles or a Powers ? Does he 
not before exeroising his art of cross-examination and during 
the direct examination carefully scan and study the witness 
produced in the aspect of a model ? Has he not in such a study, 
rapid as it must necessarily be, borne in mind maxims of Lavater 
and Spurzheim, as the sculptor remembers many of Canova ? 
For like the chiselling sculptor, the cross-examiner knows that 
he must carefully bear in mind the features and form of the 
model's testimony, and carve thepe to his own end, especially 
the features of his own theories applied to the evidence given. 

During a dozen yeai's of continuous service as district attorney 
of New York City, and of a score yeai-s in civil actions as coun- 
sel for seven sheriffs in whose litigations fraud of debtors was 
examinable, I possessed very fair opportunities of studying the 
art of cross-examination as practised by bar-leaders, who as 
against the people or as retained by claimants against the 
sheriff were generally employed. This gave opportunity for 
testing the saying: " Fas est ab hoste doceri." Seven years of 
a subsequent residence in London, while frequently attending 
its courts, furnished further opportunity for studying cross- 
examination as an art and as practised by eminent solicitors 
before magistrates and by Q.C.'s in the Supreme Court of Judi- 
cature, and in that best court for testing the art, the Bankruptcy 
Court. 

Of those in England whom I found to be what I may term 
professors of the art, I mention George Lewis, who confessedly 
heads his profession as solicitor; Attorney-Generals Webster and 
Sir Charles Kussell ; Solicitor-General Sic Edwaiti Clark, and a 
battalion of Q. C.'s, who by promotion from the Lord Chancellor, 
cross-examine in what William Black the novelist in his popular 
romance entitles *' In Silk Attire," and who wear wigs such as 
covered — I can haixlly use the word " adorned " — the brows of 
two King Henries of the bar, Erskine and Brougham. 

While I was a student in the Harvard Law School under 
Greenleaf and Story, whose memories and learning have worthily 
graced brilliant successors, I often and in company with such 
classmates as Butherfurd B. Hayes and Geo. Hoadlcy, both of 
whom became eminent in public life, listened to and studied, in 
connection with Greenleuf s fitting chapter in his '' Evidence," 



THS LBQAL NBWS. 299 

the artful oroBs-examinatiocfs of Eufas Cboate, whose art is well 
•* kept green " by his nephew Joseph in Now York. 

While afterwards pursuing the study of civil law in New 
Orleans, I had occasion to hear cross-examinations of such 
advocates as John B. Grymes, Alfred Hennen, George Eustis, 
father of the Minister at Paris, and who was afterward Chief 
Justice of the State, Thomas Slidell, and Judah F. Benjamin, 
into whose brilliant eyes all suspicious witnesses found it diffi- 
cult to look when he practised upon them his art that he master 
fully knew, and which, when he became an English Q.C., stood 
him in great regard from bench and bar and at all the inns and 
Temples. 

At the New York Bar I had opportunities of studying the 
crobs examination arts of Charles O'Conor, Ogdon Hoffman, John 
Yan Buren, Edward Sandfoini, Daniel Lord, James T. Brady, David 
Dudley and Stephen J. Field, the brothers David and John Gra- 
ham, Henry L. Clinton, Louis B. Woodruff, who afterward died 
as Federal Circuit Judge, Attorney-General Ambrose L. Jordan, 
and Wiiliu;n Curtis Noyes, only three of whom survive. T^eir 
successors in the art at the New York City Bar were undoubtedly 
William Fullorton, Joseph H. Choate, Eobert J.Ingersotl, Clarence 
A. Seward, and Messrs. Root, Bollins, Coudert, James, Fellows, 
Cochran, Nicoll, Holmes, and Parsons. Of those in my list who 
have pat^sed away, my best representative of the art was, by all 
odds, David Graham, who can only be remembered by the later 
generation of the bar as author of a treatise on new trials. I 
select him as my model of a XX examiner. 

When he i^ose to cross-examine a hostile witness, he was like a 
duellist during the time when seconds were measuring the 
ground. Calm, suave, not exhibiting acerbity in look or tone, 
ready however, like a good surgeon, to use lancet or probe with 
full knowledge of the strength of the witness in muscles of pre- 
varication, or of the exact situation of the nerves of the witness, 
Mr. David Graham's furtive study of the witness during the 
direct, as well as of the judge and jurors, as determining what 
effect the adverse testimony was having upon them, presented a 
fine forensic picture. Nor did he, for a similar purpose, omit to 
scan auditors also. While the direct proceeded^ he was an actor, 
who could conceal emotion, express surprise, doubt or dissent, 
with a facial gesture in a timely glance at the jury. Like the 
duellist of the foregoing illustration, he was ever courtesy itself^ 



800 THE LEGAL NEWS. 

never losing temper or presence of miild. He never committed the 
average error of counsel In arguing with the witness, or over the 
witness forestall summing up to the jury through some question. 
He reserved his appreciation of a telling or of a random shot of 
evidence, and his comment of facial expression or of rhetoric, 
to his address to the jury. He never proposed to allow a witness 
to understand fully the motive of a question. If the witness was 
subtle, he fought him with suavity, and soon threw him ofT 
guard. The too willing or rapid witness he encouraged into 
quicksands of contradiction or a slough of mis-statement. He 
never assumed risks with questions that might bring hostile 
answers. He never threw bait or fly, as t'were into a stream of 
inquiry, unless he knew the. stone under which lay the pike, nor 
where he suspected that trout were absent. 

One of his maxims to students was, ^^ Never on cross-examin- 
ation ask a question the answer to which in any one possible 
way might aid the other side and place your own side in jeopardy 
of dangerous comment.'* Like a keen marksman, he accom- 
modated his aim of inquiry to the direction in which the 
wind was blowing. He did not waste time on immateriality for 
his client by cross-questions. 

He had studied the very bull's eye of his case, and tned to 
bury at times his own bullet in the very opening made by his 
adversary's bullet. Like the French swordsman, he sought his 
adverse witness while off guard. His whole play was a standing 
rebuke to Old Bailey practitioners, who bullied witnesses. He 
could be severe with hostile witnesses, but prefeiTed to strike 
them with the gloved rather than the mailed hand. Another 
Graham maxim was : *' If your adverse witness becomes fore- 
warned by your manner or address, he is likely to be aroused to 
greater antagonism of evidence." On one occasion a witness 
examined by David Graham, was heard to say, '^ if anyone testi- 
fying could be persuaded into perjury or contradiction or incon- 
sistency, David Graham is the lawyer to accomplish it." He 
was throughout cross-examination a master in realizing the 
maxim " ars celare artem." His especial aim was in the main to 
convert the hostile witness into a witness for his own client* 
This was a purpose even beyond the oi*dinary purpose of des- 
troying or weakening the direct. 

Above all, he knew when and where to refrain from cross- 
questions, a great incident in the art. He reminded one of the 



THE LEGAL NEWS. 801 

skater who never ventures on or near thin ice, although there 
were no visible signs of *^ dangerous.'' In this adroit refraining 
he probably remembered the anecdote accredited to Curran and 
his horse-stealing client. The latter said after acquittal: ''No 
thanks to you John Philpot, and I ought to have the fee returned, 
for you never cross-examined a witness nor made a speech in my 
favor." **If I had even opened my mouth under the circum- 
stances, the possibilities are, under the view judge ^and jury 
seemed evidently taking of your case, that you might then have 
been convicted." PlauKibio as David Graham was with the 
hostile witness, he was equally plausible in commenting to the 
jury upon the testimony of that witness. He was a thorough 
disciple of Henry Brougham's celebrated definition of an advo- 
cate's duty to his client, that was enunciated in his address to 
the Lords when defending Queen Caroline, the doctrine of which 
definition several strict ethical writers have impugned. 

It may be observed that the brother, John Graham, still in 
active practice, seemed to rival the elder by his own methods of 
adroit and succet^sful cross-esamination. 

At the New Orleans Bar, as far back as the year of the 
Mexican War, Jndah P. Benjamin seemed to possess and excel 
in most of the traits in the art of cross-examination already 
imputed to David Graham. Benjamin especially possessed 
celerity of thought and ready aptitude in dealing with the 
demeanor and expressions of a hostile witness. Like single- 
speech Hamilton in the traditions of the House of Commons, Mr. 
Benjamin knew when to quit talking; and like a good stage 
manager, he always arranged a good exit from the witness chair 
for his actor, who may have there endured forgetful n ess of his 
cues. 

Without attempting to distinguish, or to extinguish, by 
mention any of the barristers or Q.C.'s of the London Bar 
excelling in the art in question, beyond a passing tribute to the 
careful and^ meritorious cross-examinations of Messrs. Charles 
Mathews. Poland and Gill, it may be observed that in this 
art not one of those cross-examiners can equal the excellence in 
it of those best known at the American Bar, from Maine to San 
Francisco; and for the reason that the former are nationally 
slower and less elastic than the latter. Is not the cross-examiner 
who *' deliberates," like the woman commemorated by the Pope 
of poets, ' lost " ? The average American cross-examiner is in 



802 THE LEGAL NEWS. 

the battle of testimoDy like the Zouave, and the EDgliBhman like 
a heavy dragoon by comparison, the one alert in action and 
quick with rifle, while the other takes time for drawing his sabre. 
Moreover, the former thinks for himself, while the other is com- 
pelled to think more or less through a solicitor, and is fettered 
more or less by iron-clad instructions. 

It takes the lawyer who joins the bar as a fledgeling a long 
time often to acquire the art. He finds that he has to cultivate, 
for success in it, celerity of thought, close observation of human 
nature, and a study of its various phases, rapid exercise of judg- 
mcnt on the occasion sudden, command of feature and temper, 
and alx)ve all he must know when to stop cross-examination. 
Pla}' Wrights and actora learn how to value the good exit; and 
the lawyer who is adept in the art of cross-examination arranges 
an exit for his hostile witness that shall tell in favor of his own 
client. The young advocate's most frequent short-coming in 
cross-examination is avidity at it, and eageiness to pi'ess 
quentions. His self-sufficiency and indeed conceit will too often 
tempt to precarious questioning or too much detail in queries. 
Thci) how often at Nisi Prins one witnesses a rash although 
keen " encounter of wits " between cross-examiner and witness, 
wherein the latter gets the advantage as Beatrice did over 
Bene«iict? For cross-examination that makes much ado about 
nothing degrades the art of it. The lawyer, young or old, must 
nerer risk the fate of a client by attempts at merely showing off 
his art to bench, witness, jury, or audience. Yet how often such 
a spectacle is witnessed in courts ! 

Success in the art of cross-examination comes oftenest from 
happ3' possessors of a genius for it. Great lawyers have failed 
in the art, while mere '^ case lawyers" and those of mediocre 
learning have succeeded in it, quite as there is a difference 
between Thorwaldsen and the Italian constructor of plaster casts. 
Yet the art may be measurably acquired by observation of the 
ways and means and methods of masters at the Bar, and some- 
timcb from the bench itself, in the art of cross-examination, an 
alchemy for testing truth or falsehood. — A, Oakey Hall in the 
Green Bag. 



THE LEGAL NEWS. 803 

SUPERIOR COURT ABSTRACT. 

Procedure — SaiS'e-gagerie accompanied by saisie-arrit avant jugement 
en mains tierces — Service of writ on defendant — 

Endorsement of writ. 

Hell: — 1. Where the plaintiff has combined with a saine- 
gaqerie simple and saisie-gagerie par droit de suite a saisie-arrit en 
mains tierces, without producing an affidavit to justify the saisie- 
arritf the omission of the affidavit merely entails the nullity of 
the seizure as respects effects not gages for the rent, but does not 
affect the validity of the saisie-gagerie. 

2. The fact that a copy of the declaration was deposited for 
the defendant at the protho notary's office before the service of 
the writ of saisie-gagerie is immaterial, so long as the copy was 
in the office before the expiry of three days following the service 
of the writ. 

3. The bailiff charged with a writ authorizing him to seize, is 
not bound to serve the copy of such writ upon defendant before 
effecting the seizure. The seizure may be effected in the absence 
of defendant and the writ subsequently served upon him. 

4. The endorsement of its title or description upon the back of 
a writ is not an essential part thereof, and any difference in the 
title as endorsed upon the several copies served is not a ground 
of nullity. 

5. The plaintiff is not bound to specify, in the writ or 
declaration of saisie-gagerie, the effects he seeks to have seized 
par droit de suite. 

6. So long as the seizure of effects which have been removed 
from the premises is made within eight days after the date of 
their removal, it is not essential that the writ be served upon the 
defendant within eight days. — Beaulicu v. Phillips et aL, & 
Kimball et al, T. S., Montreal, Doherty J., June 17, 1892. 



Communauti^Clause de realisation — Propres conventionnelles — 

Art. 1386, C. C. 

Par le contra t de manage des intervenants, en date du 8 
i^vrier 1868, il fut stipule quil y aurait communaute d'acquSts 
entre les futui*s conjoints, et que tout ce qui poui*rait ^choir ^ la 
femme par succession, donation, legs ou autrement, lui sortirait 
nature de propre k elle et aux siens de son cdt^, estoc et ligne. 



804 THE LEGAL NEWS. 

Une Bomme d^argent dtaot ^chue ^ I'^pouse par le testament de 
Bon p^re, an cr^ancier du mari la fit saiBir entre les mains du 
tiei^B-saisi qui la d^posa en coar. 

Jugi : — (Fnfirmant le jngement de la cour inf^rieare, Davidson, 
J., dissentiente) : 1. Que cette stipulation de propre n*a pa:^ eu 
TefTct d'empSchei* les biens ainsi r^serv^s de tomber dans la eom- 
muna,ut^, mais qu*elle donne seulement ^ la femme le droit, loi*s 
de la dissolation de la commiinaat^, de pr^lever, avant pai*tage, 
la valour de ces biens, avec pr^P^rence sur ceux qui seraient 
trouv^s en nature. 

2. Que le mari, comme chef de la communaut^, pent disposer 
librement de tons les biens ainsi r^serv^s par la femme, comme 
biens de la communaut^, ct que partant ces biens peuvent §tre 
saisis pourdettes du mari ou de la communaut6. 

3. Que dans Tesp^ce, pour en lever au mari le contrdle de ces 
biens, la femme aurait dd stipulor le droit exclusif d'administrer 
ces biens ou d'en disposer. Veronneau v. Veronneau^ C. R., Mont- 
I'^al, Johnson, J.O., Davidson, Pagnuelo, JJ., 4 mars 1893. 



Prescription — Action for bodily injuries — Minor — Interruption by 
judicial demand— Arts. 2262, 2269, 2224, C. 0. 

Held: — 1. The prescription of the action for bodily injuries 
under Art. 2262, C.C, runs against minors as well as against 
persons of full age. (Art. 2269, C.C.) 

2. A judicial demand or action has no effect to interrupt pres- 
cription, unless it be served upon the peraon whose prescription 
it is sought to hinder, before the expiration of the time required 
to prescribe. — O'Connor et al. v. Scanlan^ S.C., lilontreal, Doherty, 
J., 10 December, 1892. 



Procedure — Signification de pieces, 

Le rapport de signification de Tinscription au m^rite ^tait fait 
non sur I'lnscription elle-m§me mais sur an papier qui fat ensuite 
annexe k cette inscription. De plus, Thuissier faisait rapport 
qu'il avait "sign^ dk Benin '' sans dire quelle ^tait la quality de la 
personne a qui il avait remis cette inscription. 

Jtig6: — Que ce rapport de signification ^tait irr^gulier et qae 
le jugcment rendu sur cette inscription devait €tre mis de c6t^. — 
McNamara v. GautMer et al.f dh Bernard et al, en revision, Mont- 
real, Johnson, C. J., Loranger, Davidson, JJ., 28 fi^vrier 1893. 



THE LEGAL NEWS. 305 

Abience — OurateUe a Vabsent — Nauvelles de Pabsent — Art 92 C, (7. 
Jugi : — Les mesures oixlonii^es par la juBtice pour la protection 
des interdtfi dee absents, et notamment nne caratelle k Tabsent, 
Bont de nature conservatoire et sont essentiellement favorables, 
et la connaissance de TexiBtence de Tabsent, qu'anrait pa avoir, 
lors de Tordonnance, un parent qui n'a pas assibt^ au conseil de 
famille, ne peat seule mettre fin a ces mesures. II appartient, 
au contraire, aux tribunaux de maintenii* ces mesures provisoire- 
ment lorsqu'ils jugent qu4I est de Tint^r^t de Tabsent qu'il en 
Boit ainsi. L'absent, d'ailleurs, peat toujours faire cesser les 
effets de ces mesures par son re tour ou sa procuration, mais tant 
qu*il ne juge pas a propos de le faire, elles penvent dtre maint- 
enues. — Chaput v. Chaput, & JJeclerc, es quaL, intervenant, en 
revision, Montreal, Johnson, J.C, Jett^, Matbieu, JJ., 28 f^vrier 
1893. 



Servitude — Transfer — Signification, 
Held: — 1. A clause in a deed of sale, by which the purchaser 
of a portion of an immovable obliges himself towards his vendor, 
who retains the rest of the land, to do a particular thing, as, for 
example, to erect a fence on the part acquired by him, near the 
river which separates their respective portions, does not consti- 
tute a servitude on the purchaser's property, but merely imposes 
a personal obligation to couBtruct a fence. 

2. Although the vendor's right to compel the purchaser to con- 
form to his obligation may be transferred by the vendor to any- 
one who subsequently acquires the portion of the land retained 
by him, the transferee has no right available against the pur- 
chaser above mentioned until a copy of the transfer has been 
duly served upon the latter. — McCuaig v. Chemer, Montreal, 
Doherty, J., November 14. 1 892. 



Libelle — Injure — Fuite et mauvaise reputation du <jtemandeur — Miti- 

gation de dommages. 
Jugi: — La fuite et la mauvaise reputation du demandeur, qui 
rtelame des dommages contre un journal, pour publication 
d'articles faux et diffamatoires, ne constituent pas une defense 
valable alors qu'il y a eu injure, et ne servent qu'& mitiger la 
condamnation que le tribunal aura k prononcer contre les pro- 
pri^taires de ce journal. — Brunet v. La Oie d' Imprimerie et de 
Publication du Canada, en revision, Montreal, Jett^, Gill, Lor- 
anger, JJ., 31 Janvier 1893. 



306 THE LEOAL NEWS. 

Begistration — Hypothec granted by purchaser before registration 

of Jds title — Priority. 

Meld : —Where a deed of sale of real property creating a bail- 
leur de fonds right for the balance of the price, is not registered 
until after thirty days from the sale, and a hypothec on the 
property granted by the purchaser in the interval is immediately 
registered, the baiUeur de fonds claim i*anks before that of the 
hypothecary creditor. — Boch v. Thouin^ C. B., Montreal, Johnson, 
C. J., Taitand Davidson, JJ., January 31, 1893. 



COURT OF APPEAL ABSTRACT. 

Diff amotion — JDrcit de defense — VSritS des proposdiffamatoires. 

Jugi : — 1. Le d^fendeur, dans une action en dommages pour 
diffamation, est admis & plaider la v^rit^ et la notori^t^ des 
faits dont Timputation constitue le pro]M>B diffamatoire, cause de 
Taction. 

2. II en estautrement du caract^re et de la conduite g^n^rale 
de celui 4 qui le propos diffamatoire se rapportait. lis ne peuvent 
§tre invoqu^s comme moyen de defense. — BeaiLchJhie i& Couillard, 
Baby, Boss^, Blanchet, Hall et Wurtele, JJ., Quebec, 4 avril 1893. 



Assurance centre lefeu — Droits et recours de Vassureur — Subrogation 
conventionnelle et legale aux droits de Vassuri — Responsabilit6 
deVauteurdu sinistre — Preuve—Arts. 1155, 1156, 2684, 1053j 
C.C. 

Juge : — 1. La preuve faite incldemment sur une inscription de 
faux forme partie du dossier ^ toutes fins, et le demandeur pent 
I'invoquer, au m^ritc, au soutien des allegations de son action. 

2. L'assureur qui a pay^ le montant de Tassurance en deux 
versements (dont le dernier au moyen d'un billet promissoire) a 
Tassur^, ne pent obtenir de ce dernier, au moment du deuxidme 
versement, une subrogation conventionnelle do ses droits centre 
Tauteur du sinistre, les termes de Tart. 1155, C. C, *^ cette subro* 
gation doit §tre expresse et faite en m§me temps que le paiement,*' 
s'y opposant. 

3. Get assureur ne pouvant @tro raiig^ sous aucun des cinq 
chefs de I'art. 1156, C. C, ne pout invoquer, non plus, la 
subrogation legale aux droits de rasoui-^ centre Tauteur du 
sinistre. 



THE LEGAL NEWS. 307 

4. Ancnne cession des droits de I'assar^ n'ayant ^t^ faite a 
Tassureur lors da paiement de rassnraDCO, ce dernier ne pent 
pas invoqaer contre Tan tear da sinistre le b^n^fice de Part. 2584, 
C. C. 

5. L'assareur qai a paj^ le montant de Tasearance k 1 'assart, 
a, poor se faire remboarser, contre Paatear da sinistre, le recoars 
en dommages de Tart. 1063, C. C. — Cedar Shingle Co, da La Com- 
pagnie dH Assurance^ etc., de Itimcuski, Baby, Boss^, Blanchet, Hall 
et Wartele, JJ., Quebec, 20 jain 1893. 



Testament — Forme de testament — Testament fait a Vetranger — Legs 

— Interpretation — Procedure — Droit d'inventim — Institution de 

charite. 

Juge : — 1. L'ancien droit fraTi9ais, en force dans la province 

avant la promulgation da code civil, ne reconnaiseaitle testament 

fait ^ r^trangerqu'aatant qu'il ^tait fait dans la forme pourvae 

par la loi du pays oii se troavait le testatear, sal van t la max i me, 

* locus regit actum,* 

2. Les lois de TEtat de New- York, en 1865, permettant aux 
strangers de disposer par testament, saivant les formes aaloris^es 
par les lois de lear domicile, le testament olograpbe fail alorapar 
one personne domicili^e ^ Qa^bec est valable. 

3. La disposition tcstamentaire con9ae en ces termee : ''I 
'* hereby will and bequeath all my property, assets and means 
" of any kind to my brother Frank who will use one half of them 
" for public Protestant charities in Cjnebec and Carluke, say, the 
" Protestant Hospital Home, French Canadian Missions, and 
*' amongst poor relations, as he may judge best," est valide et ne 
saurait §tre attaqo^e comme vague et incertaine, comme no 
d^signant pas suffisamment les b^neticiaires, ni comme laiss^e h, 
la discretion du l^gataire, Frank Boss. 

4. Dans une action intentde pour faire prononcer la nalUt^ 
d'un testament qui contient un legs en faveur d'individus, au 
choix du Mgataire universel, fippartenant k des classes ou cate- 
gories designees, tons ceux sur lesquels ce choix pouiTait legale- 
ment tomber ont un int^rSt suffisant pour €tre admis parties 
intervenantes. 

5. TTne maison d'^ducation est une institution de charite dans 
le sensde la di^porsition te^tamentaire ci-haut citee. — Ross ik Boss, 
Quebec, Sir A. Lacoste, J.C., Baby, Blahchet, Hall et Wurtele, 
JJ., 4 mai 1893. 



808 THE LEGAL KBWB. 

GENERAL NOTES. 

Scuttling Ship8.-Iii the High Court of Jasticiary in Edinburgh, 
before Lord Eyllachy, on August 8, David Hobbe, shipbroker in 
Dundee, and Joseph Severn, ship-captain, were indicted for 
scuttling four ships off the Scotch coast, and with setting fire to 
a fifth in Invorkeiihing Harbour — in each case with intent to 
defraud insurers. Hobbs pleaded guilty as to two vessels and 
Severn as to one. Severn appeal's to have been employed by 
Hobbs as his tool in effecting his frauds on underwriters, and in 
consideration of bis subordinate position only received five years' 
penal servitude, whereas Hobbs was sentenced to seven years. 
No serious danger to life seems to have been involved by their 
operations, or the punishments would bo inadequate. The modus 
operandi seems to have been the old-fashioned plan of boring holes 
in the ship's side, plugging them, and drawlnt; the plugs when 
out at sea. 

Mistaken Identification.— A very curious case has come 
under the notice of the Coroner for Bombay, Allan P. Turner. 
On Sunday week a police ramooseo doing duty at the Greaves 
Cotton Mills at De Lisle Roads, while going his ]*ounds discovered 
the body of a young Hindoo lying face downwai-ds in a pool of 
water and mu^i by the roadside. The police caused a battaki to 
be beaten in the usual way, and among others the family of a 
man who had been misning for some daj-s came forwaixi. A 
woman at once identified ihe body as that of her son Sakhia 
Mulhari, a mill hand, about twenty years of age, and two other 
sons also identified it. An inquest was held in due course, and 
evidence was tendered to the effect that the lad was a mill hand, 
but had been very sick for the past two or thiee months. He was 
discharged from the Jamsetjee Jojeebhoy Hospital about a fort- 
night before, and was then very feeble; and only able to walk 
with difficulty. On Saturda}' he was seen limping along in the 
direction of Curroy Road, and on the following day came the 
discovery made by the ramoosee. — A veixiict was returned in 
accordance with the testimony to the effect that Sakhia had come 
to his death by falling face downwards in a pool of mud while in 
a feeble state of health, and the body was then taken away to the 
burning ghats. Before the funeral party reached the ghat, 
however, a younger member of the family stopped it with the 
cry, *Sakhia's come home 1 ' And so it proved. The dead man, 
despite his identification by Sakhia's relatives, was not Sakhia at 
all ; and after a second inquest had been held, he was finally dis- 
posted of as unknown. 



THE 



LEGAL NEWS. 



VOL. XVL OCTOBER 16, 1893. No. 20. 



SUPREME COURT OP CANADA. 

Ottawa, 24 June, 1893. 

CowBN V. Evans. 



Qaebec.] 



Appeal — Amount in controversy — B, S. 0. ch, 135—64-55 Vic, ch, 25 

— Costs. 

0. brought an action against E. claiming lo. that a cei'tain 
building contract should be rescinded. 2o. $1900 damages 
3o. $545 for value of bricks in possession of E. but belonging to 
C. The case was en delibere before the Superior Court when 54-55 
Vic. ch. 25 amending ch. 135 R. S. C. was sanctioned, and the 
j ndgment of the Superior Court dismissed Cs claim for $1000 but 
granted the other conclusions. On appeal to the Court of Queen's 
Bench by E., the action was dismissed in 1893 . C. then appealed 
to the Supreme Court. 

Held, that the building for which a contract had been entered 
i nto having been completed over five years ago, there remained 
but the question of costs and the $545 claim for bricks in dispute 
between the parties, in the judgment appealed from, and that 
amount was not sufficient to give jurisdiction to the Supreme 
Court under R. S. C. ch. 135, sec. 29. (See Moir v. Corporation 
of Huntingdon, 19 Can. S. C. R. 363.) 

Appeal quashed with costs. 
Smith, for motion. 
Archibald, Q. C, contra. 



V 



810 THB LEOAL NSWS. 

CowBN V. Evans. 

24 June, 1893. 
Quebec] 

Jurisdiction — Amount in controversy — 54-56 Vic. ch, 25, sec. 4. — 

Appeal — Eight to. 

On the 30th September, 1891, when the Statute 54-55 Yic. ch. 
25, sec. 4, was passed, enacting that the amount demanded and 
not that recovered should determine the right to appeal when the 
right to appeal is dependent upon the amount in dispute, the 
Superior Court had en dilibere an action of damages bi-ougbt by 
the respondent against the appellant for $3050 of damages. 

The Superior Court on the 5th December, 1891, dismissed the 
respondent's action. 

On appeal to the Court of Queen*s Bench for Lower Canada 
(appeal side) the Court on the 23rd February, 1893, reveraing 
the judgment of the Superior Court, granted $880 damages to 
respondent with interest from the 16th June, 1887. 

On appeal to the Supreme Court of Canada : 

Meldf that the Statute 54-55 7ic. ch. 25, (lid not apply to cases 
pending, and as the amount of the judgment appealed from was 
under $2,000 the case was not appealable, following on the ques- 
tion of the non-retroactivity of the Statute, Williams v. Irvine, 
(22 Can. S. C. B. 108) and as to the amount in dispute, Monette 
V. Lefehvre, 16 Can. S. C. E. 357. 

Gwynne, J. dissenting. 

Appeal quashed with costs. Q) 

Mr. Smithf for motion. 
ArcJUbaldf Q. C, contra. 



24 June, 1893. 

MiTOHSLL V. TbSNHOLMS. 

Quebec] 

Jurisdiction — Appeal — Bight to — Amount in dispute — 54-55 Vic. ch. 

25, sec. 4. 

In an action brought by the respondents on the 25th July 
1889, claiming $5,000 damages alleged to have been sustained by 
them by the production of a plea and incidental demand by 

(^) The appeal of The Montreal Street Railway Co. v. Carritre^ argued at 
the October Session, 1893, was quashed on the same grounds. 



THE LEGAL NEWS. 811 

appellants in a case before the Superior Court for the district of 
Montreal, under number 528, the Superior Court on the 27th day 
of September, 1890, granted $300 damages to the respondents. * 

The appellants (defendants) then appealed to the Court of 
Queen's Bench and that Court on the 28th day of February 1893, 
confirmed the judgment of the Superior Court. 

On appeal to the Supreme Court of Canada : 

Held, following the decision in Williams v. Irvine^ 22 Can. S. 
C. B. 108, that 54-55 Vic. ch. 25, did not apply to cases en deliberi 
before the Superior Court on the 30th September, 1891, and the 
appeal should be quashed for want of jurisdiction. Gwynne, J., 
dissenting. 

Appeal quashed with costs. 

Buehany for motion. 

Delisle, contra. 



24 June, 1893. 

Mills et al. v. Limoges. 
Quebec] 

Right of appeal — 54-55 Vic. ch. 25, sec, 4 — Amount in dispute — 

Jurisdiction. 

In an action of damages for $5,000 brought for the death of a 
person by a consort, the Superior Court in April, 1891, granted 
$1,000 damages and the judgment was acquiesced in by the 
plaintiff, but defendant appealed to the Court of Queen's Bench 
and that Court affirmed the judgment of the Superior Court in 
December, 1892. 54-55 Vic. ch. 25, sec. 4, declaring that " when- 
ever the right to appeal is dependent upon the amount in dispute 
such amount shall be understood to be that demanded and not 
that recovered, if they are different," was sanctioned 30th Sep- 
tember, 1891. 

On appeal to the Supreme Court of Canada : 

Heldf that 54-55 Yic. did not apply to such a case, and that the 
case was not appealable. Monette v. Lefebvre, (16. Can. S. C. B. 
357) J Williams v. Irvine, (22 C. S. E. 108). 

Appeal quashed with costs. 

M. Abbott, Q. C, and E. Lafieur, for appellants. 
Demers, for respondent. 






812 THB LEGAL NBWS. 

24 June, 1893. 

LSFSUNTUN V. YeBONNBAU. 

Qdebec] 

Venditioni exponas — Order of Court or judge — Vacating of Sheriff's 
sale-Arts. 553, 662, 663, 714 C, P. C\— Jurisdiction. 

A petition en nulliti de dicrU has the same effect as an oppo- 
sition to a seizure, and under ai-ts. 662 and 663 C. C. P. the sheriff 
cannot proceed to the sale of property under a writ of venditioni 
exponas unless said writ is issued by an order of the Court or a 
judge. — Bissonnette v. JJaurent (15 Bev. Leg. 44) appi-oved. 

Per Pournier, J. — Where the text of the law is clear and 
positive, a practice even long established should not be followed. 

Taschoreau and Gwynne, JJ., dissented. 

On the question of want of jurisdiction raised by respondent it 
was held that a judgment in an action to vacate the sheriff's sale 
of an immovable is appealable to the Supreme Court under sec. 
29 (6). Dufresne v. Dixon (16 Can. S. C. R., 596) followed. 

Appeal allowed with costs. 

Mercier, Q, (7., and Gouin^ for appellant. 

Boniny for respondent. 



24 June, 1893. 

QuxBEG Central Bt. Co. v. Lobtii. 
Quebec] 

Railway accident to passenger — Damages — Negligence — 

Art 1675 C. a 

L. was a holder of a ticket, and passenger of the company's 
train from Levis to Ste. Marie Beauce. When the train stopped 
at Ste Marie Station, passengers alighted, but the car upon which 
L. had been travelling, being some distance from the station 
platform, and the time for stopping having nearly elapsed, L. got 
out at the end of the car, and, the distance to the ground from 
the steps being about two feet and half, in so doing he fell and 
broke his leg, which had to be amputated. 

The action was for $5,000 damages, alleging negligence and 
want of proper accommodation. The defence was contributory 
negligence. Upon the evidence the Superior Court, whose judg- 
ment was affirmed by the Court of Queen's Bench, gave judgment 



THB LEGAL NEWS. 313 

in favour of L. for the whole amoant. Oq appeal to the Sapreme 
Court of Canada, 

Held, reversing the judgments of the Courts below, that in the 
exercise of ordinary care, L. oould have safely gained the plat- 
form by passing through the car forward, and that the accident 
being wholly attributable to L*s own default in alighting as he 
did, he could not recover. Fournier, J., dissenting. 

Per Grwynne, J. — Every man travelling by rail in this country 
most have known that it was not the way he should have alighted, 
or by which there was any necessity for his so alighting, or was 
ever intended that he should alight. 

Appeal allowed with costs. 
Brown, Q, C, for appellants. 

JJavery, for respondent. 

24 June, 1893. 
Stewart v. Atkinson. 
Quebec.] 

Sale of deals — Contract — Breach of -^Delivery — Acceptance — Qual- 
ity^ Warranty as to— 'Damages— Arts. 1073, 1473, 1507 C.C. 

In a contract for the purchase of deals fV*om A. by S. et al, 
merchants in London, it was stipulated inter aUa, as follows: — 
''Quality — Sellera guai*antee quality to be equal to the usual 
Etchemin Stock and to be marked with the Beaver Brand/' and 
the mode of delivery was f. o. b. vessels at Quebec, and payment 
by drafts payable in London 120 days sight from date of ship- 
ment. The deals were shipped at Quebec on board vessels owned 
by P. & Bros, at the request of P. & P. intending purchasers of 
the deals. When the deals arrived in London they were in- 
spected by S. et al, and found to be of inferior quality, and S. et al, 
after protesting A. sold them at reduced rates. In an action of 
damages for breach of contract, 

Held, reversing the judgment of the Court below, that the 
delivery was to be at Quebec, subject to an acceptance in London, 
and that the purchasers were entitled to recover under the 
express warranty as to quality, there being abundant evidence 
that the deals were not of the agreed quality. Arts. 1507, 1473, 
1073 C. C. The Chief Justice and Sedgewick, J., dissenting. 

Appeal allowed with costs. 

Fitzpatrick, Q. (7., and Ferguson, Q. C, for appellants. 

Casgrain, Q. C, for respondent. 



314 THE LEGAL NEWS. 

1 May, 1893. 

C. P. B. Co. V. Cobban Mamitfaoturino Co. 

Ontario.] 

Practice — Trial — Disagreement ofjvry — Questions reserved by judge 

— Motion for judgment — Amendment of pleadings — New trial — 

Judicature Act., rule 199 — Jurisdiction — Final judgment. 

In an action brought to recover damages for the loss of certain 
glass delivered to defendants for carriage, the judge left to the 
jury the question of negligence only, reserving any other ques- 
tions to be decided subsequently by himself. On the question 
submitted the jury disagi*eed. Defendant then moved in the 
Divisional Court for judgment, but pending such motion the 
plaintiff's applied for and obtained an order of the Court amending 
the statement of claim, and charging other grounds of negligence. 
The defendants submitted to such order and pleaded to such 
amendments, and new and material issues were thereby raised 
for determination. The action as so amended was entered for 
trial but was not tried before the Divisional Coui*t pronounced 
judgment on the motion, dismissing plaintiffs* action. On appeal 
to the Court of Appeal from this judgment of the Divisional Court 
it was reversed. On appeal to the Supreme Court, 

ffeldf affirming the judgment of the Court of Appeal, that the 
action having been disposed of before the issues involved in the 
case, whether under the original or amended pleadings, had ever 
been passed upon or considered by the trial judge or the jury, a 
new trial should be ordered, and that this was not a case for 
invoking the power of the Court, under rule 799, to finally put 
an end to the action. 

Held, also, that the judgment of the Court of Appeal, ordering 
a new trial in this case was not a final judgment, nor did it come 
within any of the provisions of the Suprenje Court Act author- 
ising an appeal from judgments not final. 

Appeal dismissed with costs. 
Nesbitt, for appellants. 
<7. Osier, Q. C, and Molden, for respondents. 



THE LEOAL NEWS. 315 

24 June, 1893. 

Corporation of Tns Villagi of Niw-Hambubg v. County of 

Waterloo. 
Ontario,] 

Ontario Municipal Act — Construction of bridges — Inability for 
construction and maintenance — Width of stream — B, 8. Q. 

(1887) ch. 184 sec. 532, 534. 

By the Ontario Municipal Act, R. S. Q. (1887) p. 184 sec. 532, 
the council of any county has '* exclusive jurisdiction over all 
bridges ci-ossing sti'eams or rivers over one hundred feet in width 
within the limits of any incorporated village in the county and 
connecting any main highway leading through the county," and 
l>y sec. 534 the county council is obliged to erect and maintain 
bridges on rivers and streams of said width. On rivers or streams 
of one hundred feet or less in width bridges must be constructed 
and maintained by the respective villages through which they 
flow. 

The river Nith flows through the village of New-Hamburg and 
in dry seasons when the water is low the width of the river is 
less than one hundred feet, but after heavy rains and freshets, it 
exceeds that width. 

^e^ reversing the deci£>ion of the Court of Appeal (20 Out. 
App. R. 1) and of the Divisional Court (22 O. R. 193) that the 
width at the level attained after heavy rains and freshets in each 
year should be considered in determining the liability under the 
act to construct and maintain a bridge over the river ; the width 
at ordinary high water mark is not the test of such liability. 

Appeal allowed with costs. 

Meredith, Q, C, for the appellants. 

^if^9 Q- O.y for the respondents. 



24 June 1893. 
Citt of London v. Watt. 
Ontario.] 

Assessments and taxes — Ontario Assessments Act, R, 8. 0. (1887) cK 

19, S8, 15, 65 — Illegal assessment — Court of revision — 

Business carried on in two municipalities. 

Sec. 65 of the Ontario Assessment Act (R. S. O. 1887, oh. 193) 



816 THE LEGAL NEWS. 

does not enable the Court of Bevision to make valid an asseBS- 
ment which the statute does not authorize. 

Sec. 15 of the act provides that *' where any business is carried 
on by a pei*8on in a municipality in which he does not reside, or 
in two or more municipalities, the personal property belonging 
to such person shall be assessed in the municipality in which 
such personal property is situated." W., residing and doing busi- 
ness in Brantford, had certain merchandise in l^ndon stored in a 
public warehouse used by other persons as well as W. He kept 
no clerk or agent in charge of such merchandise, but when sales 
were made a delivery order was given upon which the warehouse 
keeper acted. Once a week a commercial traveller for W. residing 
in London, attended there to take orders for goods, including the 
kind so stored, but the sales of stock in the warehouse were not 
confined to transactions entered into at London. 

Heldy affirming the decision of the Court of Appeal, that W. did 
not carry on business in London within the meaning of the said 
section, and his merchandise in the warehouse was not liable to 
be assessed at London. 

Appeal dismissed with costs. 

Meredith, Q. C, for the appellaiits. 

Gibbons, Q. G., for the respondents. 



24 June, 1893. 
International Coal Co. v. County of Caps Breton. 
Nova Scotia.] 

Assessment and taxes — Tax an Railway — Nova Scotia Railway Act 
— Exemption — Mining Company — Construction of Railway by — 

R. S.N.S.^ Ser. ch. 63. 

By E. S. N. S. 5 ser. c. 58, sec. 9, sec. 30, the road-bed, etc., of 
all railway companies in the Province is exempt from local taxa- 
tion. By sec. 1 the first part of the act from sees. 1 to 33 inclu- 
sive applies to every railway constructed and in operation or 
thereafter to be constructed under the authority of any act of the 
legislature, and by sec. 4, part 2 applies to all railways constructed 
or to be constructed under authority of any special act, and to all 
companies incorporated for their construction and working. By 
sec. 5, subsec. 15, the expression '' the company " in the act means 
the company or party authorized by the special act to construct 
the railway. 



THE LEGAL NEWS. 817 

The Interoational Coal and By. Co. was incorporated by 27 Y ic. 
ch. 42 (II. S.) for the parpose of working coal mines in Cape 
Breton, and for the farther purpose '^ofconstructing and making 
such railroads and branch tracks as might be necessary for the 
transportation of coals from the mines to the place of shipment, 
and all other business necessary and usually performed on rail- 
roads," and with other powers connected with the working of 
mines " and operation on railways." Under these powers a rail- 
way twelve miles in length was built and used to carry coal fi*om 
Bridgeport to Sydney Harbour, and the Company having become 
involved its property, including said railway, was sold at sheriff's 
sale and the purchasers conveyed the same to the International 
Coal Co. 

By 48 and 49 Yic, ch. 20 (a) it was enacted that the Interna- 
tional Coal Co. might hold and work their railway for the pur- 
poses of their own mines and operations, and might hold and 
exercise such powera of working the railway for the transport of 
passengers and freight generally for others for hire as might be 
conferred on the company by the legislature of Nova Scotia, and 
by 49 Vic, ch. 146, sec. 1 (N. S.) the company were authorized 
to hold and work the railway '' for general trafiSc and the con- 
veyance of passengers and freight for hire, as well as for all pur- 
poses and operations connected with said mines in accordance 
with and subject to the provisions of part second of ch. 53, B. S. 
N. S., 6 ser., entitled " of railways." 

The municipality of Cape Breton having assessed the company 
for local taxes in respect of said Bail way, 

Held, reversing the decision of the Supreme Court of Nova 

Scotia, Gwynne, J., dissenting, that the company was exempt 

from such taxation ; that the railway was one constructed under 

authority of an act of the legislatui*e of Nova Scotia (27 Vic, ch. 

42) and in operation under the authority of another act (49 Yic. 

ch. l45) ; that the company was a " railway company '' within 

the meaning of sec. 9, subsec. 30 of c. 53 ; that part one of that 

chapter applies to railways constructed under any act of the 

legislatui*e and not only under acts exclusive of those to which 

paH two applies ; and that the reference in 49 Yic, ch. 145, sec 1 

to part two does not prevent said railway from coming under the 

operation of the first part of the act. 

Appeal allowed with costs. 
Harris^ Q. (7., for the appellants. 
Borden, Q, C, for the respondents. 



318 THB LBOAL NEWS. 

JuD6 24, 1893. 

York y. Canada Atlantic Steahship Co. 
Nova Scotia.] 

Negligence— Passenger vessel — Use of wharf— Invitation to public — 
Accident in using wharf— Proodmate cause — Uxcessive 

damages, 

A company owning a steamboat making weekly trips between 
Boston and Halifax occupied a wharf in the latter city leased to 
heir agent. For the purpose of getting to and from the steamer 
there was a plank sidewalk on one side part way down the 
wharf and pei^sons using it usually turned at the end and passed 
to the middle of the whai*f. Y. and his wife went to meet a 
passenger expected to arrive by the steamer between seven and 
eight o'clock one evening in November. They went down the 
plank sidewalk and instead of turning off at the end, there being 
no lights and the night being dark, they continued straight down 
the wharf, which narrowed after some distance and formed a jog, 
on reaching which Y's wife tripped and as her husband tried to 
catch her they both fell into the water. Forty-four days after- 
wards, Mi's. Y. died. 

In an action by Y. against the company to recover damages 
occasioned by the death of his wife, it appeared that the deceased 
had not had regular and continual medical treatment after the 
accident, and the doctora who gave evidence at the tiial differed 
as to whether or not the immeraion was the proximate cause of 
her death. The jury when asked : — Would the deceased have 
recovered, notwithstanding the accident, if she had had regular 
attendance ? replied, " very doubtful." A verdict was found for 
the plaintiff with $1,500 damages, which the Supreme Court of 
Nova Scotia set aside and ordered a new trial. On appeal from 
that decision : 

Heldf that Y. and his wife were lawfully upon the wharf at the 
time of the accident; that in view of the established practice 
they had a right to assume that they were invited by the com- 
pany to go on the wharf and assist their friends in disembarking 
from the steamer; and that they had a right to expect that the 
means of approach to the steamer were safe for persons using 
ordinary care, and the company was under an obligation to see 
that they were safe. 

Heldf further, that it having been proved that the wharf was 



THS LEQAL NEWS. 319 

only rented to the agent because the landlord prefeiTed to deal 
with him personally, and that it was rented for the use of the 
company whose ofiScers had sole control of it, the company was 
in possession of it at the time of the accident. 

Held, also, that the evidence and finding of the jury having 
left it in doubt that the accident was the proximate cause of Mrs. 
Y's death, the jury not having been properly instructed as to the 
liability of the company under the circumstances, and the dam- 
ages being excessive under the evidence, the oitier for a new 
trial should be affirmed. 

Appeal dismissed with costs. 

Newcomhe, for appellant. 

Borden, Q.C, for respondents. 



24th June, 1893. 

Town of P&rsoott v. Connrll. 
Ontaido.] i 

Negligence — Proximate cause — Danger voluntarily incurred. 

C. having driven his horses into a lumber yard adjoining a 
street on which blasting operations were being carried on, left 
them in charge of the owner of another team, while he inter- 
viewed the proprietor of the yard. Shortly after a blast went 
off, and stones thrown by the explosion fell on the roof of a shed 
in which C. was standing anti frightened the horses, which began 
to run. C. at once ran out in front of them and endeavoured to 
stop them, but could not, and in tiying to get away he was 
injured. He brought an action against the municipality 
conducting the blasting operations to recover damages for such 
injury. 

Held^ affirming the decision of the Court of Appeal (20 Ont. 

App. B. 49),Gwynne, J. dissenting, that the negligent manner in 

which the blast was set off was the proximate and direct cause of 

the injury to C; that such negligent act immediately pi*odttced 

in him the state of mind which instinctively impelled him to 

attempt to stop the horses ; and that he did no more tban any 

reasonable man would have done under the circumstances. 

Appeal dismissed with costs. 
Meredith, Q.(7., for appellants. 

Mwrchewn, Q.C, for respondent. 



820 THE LEQAL NEWS. 

INDIANA SUPREME COURT. 

June 13, 1893. 
Eberhart v. State. 

Rape — Resistance — Evidence. 

Drfendant, a quack, pretending to cure hy charms^ after teveral times visiUng 
a girl thirteen years Mf who had for two years had epileptic fits^ was 
placed in a room with her, at his instance, hy her ignorant and creduhus 
parents, where, on the fifth night, he called her to his bed, telling her he had 
something to tell her which would cure her. Her testimony that she tried 
to make him quit, but he would not^ was uncontradicted. Held, that 
there was not a failure to show sufficient resistance because she made no 
outcry, and concealed the crime committed on her. 

Appeal from Circuit Court, Clinton county ; S. TBE. Doyle, J. 
LewiB Eberhart was convicted of rape, and appeals. ( 

Howard, J. The appellant was indicted for the crime of 
rape, was tried therefor, and found and adjudged guilty. It is 
contended that the evidence does not sustain the verdict. The 
prosecuting witness, Lottie G. Mohler, was thirteen yeara of age, 
past, and for two or three years had been subject to epileptic fits. 
Her father was a day laborer, while both father and mother 
were ignorant and credulous to an extreme degree, though 
apparently well-minded persons. The girl herself bad not gone 
to school since she had been afflicted with epilepsy, and had 
gone out nowhere except when accompanied by her father. 

Appellant was a pretended travelling doctor, and about fifty 
yeara of age. He had travelled over parts of Illinois and Michi- 
gan, as well as in this State, professing to cure diseases by 
charms or spells, but not laying claim to any gt*eat medical 
knowledge. The parents of the prosecuting witness were advised 
to make trial of his powers to relieve her of her malady, and 
called him to treat her during one of his visits to the neighbor- 
hood. His first treatment was to take her to a private room 
and tie a string of woollen yarn around her person, charging her 
to tell no one what ho had done. She did not tell this to her 
mother, and the mother did not want to know what the doctor 
had done when she learned that he told the girl not to tell. This 
was in December, 1892. In Januai*y, and also in February, he 
came again, and the treatment was repeated. Before the Febru- 
ary visit he wrote the following letter to the mother : 



THE LEGAL NEWS. 821 

Perth, Ind., Feb. 1, 1893. 
" Mrs. Mattib Mohlbb: 

'* This night I received your letter, and would say it would be 
necessary for me to see her again, and sleep in the same room 
with her now and then. Tou will see the change, for I make it 
a point to operate on these cases the third time after night, and, 
if possible, when the spell is on. It is possible that I may see 
you before Saturday night, and have a room to ourselves. 

Yours truly, 

''Lewis Ebbbhart. 

'' Try and get out of her what makes her cry. I am of a 
notion that her disease is a curse. Does she make any religious 
profession, or not ? Look for me, and ask her if she is very 
anxious to see me, or not. I will use Latin phrases altogether 
on behalf of her. Yours, 

" L. E." 

The parents consented to this astounding pi*oposition. The 
prosecuting witness slept in a small room down stairs on a couch, 
while the doctor slept in the same room on a bed. The rest of 
the family slept upstairs. On the fifth night that they so slept 
in the same room, he waked her up, after she had been some 
time asleep, and called her to his bed, saying he had something 
to tell her that would cure her of her fits. As soon as she 
reached his bed, she testifies, he pulled her in, and committed 
the crime charged ; she tryicg, as she says, '' to make him quit) 
but he would not do it." Her mother and sister-in-law found 
evidence of the truth of her statement, although at first she 
refused to tell, because, as she says, the doctor forbade her to say 
anything about it. 

Appellant's counsel say that the crime is not proved, because 
there was no outcry at the time, and there was concealment for 
a few days afterward. In Anderson v. State, 104 Ind. 467, it is 
^aid : " The nature and extent of resistance which ought reason- 
ably to be expected in each particular case must necessarily 
depend very much upon the peculiar circumstances attending it ; 
and it is hence quite impracticable to lay down any rule upon 
that subject as applicable to all eases involving the necessity of 
showing a reasonable resistance. Ledley v. State, 4 Ind. 580 ; 
Pameroy v. State, 94 id. 96 ; Cam. v. McDonald, 110 Mass. 405 ; 2 
Bish. Grim. Law, §1122." In the case of Ledley v. State, supra, 
the court said : ** What seemed inconsistent in her conduct might 



822 THE LEGAL NEWS. 

have been accounted for, in the minds of the jury, by that species 
of moral daress which the evidence tends to show that the 
prisoner exercised over her. She was yoang — only sixteen — 
and seemingly artless, wholly inexperienced, and by no means 
intelligent. * * * Under such circumstances, his influence 
over her must have been grea(^ ♦ * * The jury saw the wit- 
nesses and the parties. They have come to a conclusion which 
in our view of the case, is perhaps supported by the evidence. * 
* * Unless we respect such verdicts, there would be little hope 
of bringing the guilty to punishment. Bish. Crim. Law, supra, 
says : '* Some of the cases, both old and modern, are quite too 
favorable to the ravish ers of female virtue, and ought not to be 
followed, on this question of resistance. * ^ ^ The better 
judicial doctrine reqaires only that the case shall be one in 
which the woman ' did not consent.' Her resistance must not be 
mere pretense but in good faith." In Huhtr v. State, 126 Ind. 
135, the court held that '' the rule does not require that the 
woman shall do more than her age, strength and the attendant 
cii*cumstances make it reasonable for her to do in order to mani- 
fest her opposition. 

Pcmeroy v. State, 94 Ind. 96, 7 h&g. News, 276, was a case in 
many respects similar to that before us. In that case the pro- 
secuting witness, who was twenty-one years of age, was afflicted 
with epileptic fits, and Pomeroy was an itinerant doctor, who 
said he could cure her, and in pretending to treat her as a phy- 
sician, accomplished her ruin. She too made no outcry at the 
time, but the court says : ^^ If the jury believe, as they might well 
have done, under the evidence, that the appellant, as a physician, 
obtained possession and control of Bebecca's peraon, under her 
mother's command * ^ * and that she never in fact gave her 
consent, through fraud or otherwise, * ^ ^ then it seems to us 
that the appellant was lawfully convicted of the crime of rape." 
Q^een v. Flattery, 2 Q. B. Div. 410, refen*ed to irt the same 
opinion, was also similar to the case before us. In the case at 
bar the prosecuting witness was a child but little over the age 
of consent, as then fixed by law, and under such age as now fixed 
by our more humane statute. She was an epileptic, and had 
been so afflicted for about two years. In obedience to the dir- 
ection of her parents, she was placed in the power of the charm 
doctor, who had wormed himself into her confidence, and into 
that of her almost equally feeble-minded parents. Her uncon- 



THE LEGAL NEWS. 828 

tTadicted statement shows that she did not give her consent, and 
that she ^' tried to make him quit, but he wouldn't." The appel- 
lant claimed to exercise great influence over her, and the evidence 
showed that she obeyed him implicitly, as one who was to cure 
her of her malady. Weak in intellect and credulous, as she was, 
both from disease and heredity, and subjected for months to the 
will of her pretended physician, it was rather a matter of sur- 
prise that she offered any resistance to him. The crime com- 
mitted by appellant was not only rape, as the jury found, but of 
a most aggravated character ; and the jury would have been 
justified, from the evidence, in inflicting t|ie most severe penalty. 

The eighth instruction asked by appellant was properly refused 
by the court. We think it clear, from what has been already 
said, that a charge would have been improper which assumed 
that, under the circumstances, the prosecuting witness ought to 
have made an outcry that would have waked her parents upstairs. 
Nor do we think the evidence would justify that part of the 
instruction which assume^ that appellant was received by the 
family on friendly terms on one occasion after the commission of 
his crime. What we have said before applies also to this last 
feiiture of the instruction refused. 

Appellant also contends that he should have been allowed to 
call and cross-examine the prosecuting witness after the case of 
appi'llee had been closed. The court permitted appellant to make 
the prosecuting witness his witness, for the purpose of eliciting 
any further evidence she might be able to give. This was all he 
was entitled to. Appellee^s witnesses could not be cross-exam- 
ined after appellee's case was closed, and without the consent of 
appellee and of the court. We have found no available error in 
the recoixi. 

The judgment is affirmed. 



GENERAL NOTES. 

KxGSNTRiciTiis OP Praotioi IN VIRGINIA. — A Lynchburg,Va., 
special, August 11, says : '' Yesterday afternoon, during the 
trial of Hugh J. Shott against the Norfolk and Western Eail road, 
the opposing counsel, J. C. Wysor and General James A. Walker, 
became involved in a difficulty by Walker accusing Wysor of 
appealing in his speech to the passion and the prejudice of the 



824 THE LEGAL NEWS. 

jury. Wysor gave Walker the lie. Walker asked for a knife, 
and Wysor drew his knife and handed it to him. Walker refused 
the proffer, and boiTOwed one from a bystander, and the fight 
commenced. Sereral blows were struck and Wysor was stabbed 
in his shoulder, and his face was slit from his mouth to his ear. 
Wysor then borrowed a gun and tried to force Walker's room 
door to shoot him, when both were arrested and put under a 
bond of $5,000. Wysor is badly hurt. Both men are among the 
most prominent lawj^ers in south-western Virginia." 

Offences Committed bt Minors. — A boy of sixteen has been 
sentenced to death at Leeds, in England, for the mmtier of his 
infant brother. Commenting on this sentence, the St. James 
Gazette observes that, " of coui*se " the young convict will not 
be hanged, but that equally of course, he will be kept in penal 
servitude for life. In some countries, e. ^., in Prassia, Spain, and 
parts of Switzerland, capital punishment is not inflicted on young 
persons, the ages of liability being sixteen, eighteen, and twenty 
respectively, and even in England, where any boy or girl above 
the age of seven can be capitally convicted and executed, if only 
malitia supplet oetatem, it is doubted whether any person under 
the age of seventeen has been hanged for the last fifty years. 
However this may be, the London Law Times says that the life 
sentence in cases of commutation is merely a nominal one, and 
that the culprit usually regains his liberty after a period of some 
twenty yeara, though the practice of the home office in this mat- 
ter is wisely not expressed in any general rules such as those 
which followed the passing of the Penal Servitude Act 1891, and 
apply to sentences of penal servitude for fixed periods, which are 
invariably less than the nominal periods if only the convict's 
behavior is good. 

Htpnotism. — Hypnotism has been brought to the notice of a 
court in the State of Washington, where, at Tacoma, the com- 
plainant in a suit for damages is accused of hypnotizing a witness 
in court. The plaintiff is said to have given evidence of mes- 
meric power on many previous occasions. The court at first 
declined to receive the complaint, but seems to have taken it 
under advisement and the case was adjourned. The witness 
showed a deficient memory, which was said to improve when 
some one stood between him and the alleged hypnotizer. 



THE 



LEGAL NEV/S 



VOL. XVr. NOVEMBER 1, 1893. Na 21. 



CURRENT TOPICS AND CASES. 

In England, if a question of interpretation of a statute 
be submitted to a court of appeal, and be decided unani- 
mously by that court, the judgment is, by usage, binding 
on all inferior tribunals. Here appellate decisions do not 
appear to be accepted as conclusive, and hence questions 
which after a good deal of debate have apparently been 
finally settled by a judgment of the court of appeal, are 
apt to be raised again a few years later, when the battle 
has to be fought over again. Roch v. Thouin, 3 C.S. 141, 
furnishes an illustration. The Court of Review at Mon- 
treal has gone very fully into a question which had ap- 
parently been settled for ever (unless changed by the 
legislature) in Pacaud v. Constant, 4 Q. L. U. 94, a dozen 
years ago. The judgment of the Court of Review in 
Pactud V. Constant was rendered after a very full examin- 
ation of the question, and is reported at length. That 
decision was unanimously affirmed in appeal by five 
judges. Probably the judges of the court of appeal did 
not think it necessary to express their views in writing, 
as they were simply affirming what had been decided by 
the Court of Review. At all events the decision in appeal 
does not appear in the reports. It is noted, however, 
under the title of Pacaud 8f Aikmauy in Mr. Justice Ram- 



326 THE LEGAL NEWS. 

say*6 digest, p. 598, as follows : ** Hodges sold land to 
defendant Constant, 30th May, 1871. The vendor failed to 
enregister till the 30th June. On the 28th June, Cons- 
tant gave a hypothec over the land to Pacaud who regis- 
tered the same day. Pacaud claimed to be entitled to 
rank on the proceeds of the land prior to the representa- 
tives of Hodges, but the court held, confirming the judg- 
ment of the Superior Court, that Constant could not give 
any hypothec over the land till his own title was regis- 
tered." A reference to the factums in appeal shows that 
this was the sole question submitted to the appellate 
court, and Chief Justice Meredith's opinion (4 Q. L. B. 
94) is printed in eztenso in the respondent's factum. We 
have referred to the collection of factums of the late Mr. 
Justice Samsay, to see whether they contained a written 
opinion, and we find the following note of the case : — 

"On the 30th May, 1871, James Hodges sold to the 
defendant a piece of real estate. He did not register till 
the 30th June, one day more than the thirty days allowed 
by law to preserve his hypothec. On the 28th June, 
Constant's title not being registered, Constant granted an 
hypothec in favor of opposant over the land in question, 
which was registered the same day. The question which 
arises in this case is whether the prior registration of ap- 
I)ellant's hypothec can prevail, Constant's title not being 
registered, in face of the last clause of Art. 2098, C. C. It 
would have been sufficient to have registered it by me- 
morial. See case at Quebec of security on land, title not 
registered. See also the case of Banque du Peuple 4* La- 
parte. (Confirmed, 4 Sept. 1878, Dorion, C.J., Monk, Ram- 
say, Tessier, Cross, JJ.) " 

This is quite conclusive that the Court of Appeal did 
unanimouslv decide in the same sense as the Court of 
Review, yet there have been several contrary decisions 
since by judges sitting alone. On a point like this, on which 
so much may be urged in favor of either conclusion, and 
which so deeply concerns civil rights, is it not better to 



THE LEQAL NEWS. 827 

have a fixed rule than to suffer uncertainty to continue, 
and is it not therefore a fair case for the legislature to de- 
clare the law, and to remove the ambiguity and difiiculty 
which judicial interpreters have found in the articles of 
the code ? 



In Central Vermont Ry. Co. Sf La Compagnie (TAssu- 
surance MtUuelte^ etc., the Court of Queen's Bench, Montreal, 
June 23, 1893, in reversing the judgment of the court 
below, laid down a rule of considerable importance with 
reference to actions en garantie. It was held that to give 
rise to an action en garantie simple, not only must there 
be connexity between it and the principal action, but the 
two actions must be identical in their nature and based 
upon similar legal principles. So, where, as in the case 
before the court, an insurance company is sued upon a 
policy of fire insurance for the amount of a loss, an action 
en garantie will not lie against a railway company through 
whose alleged fault and negligence the fire occurred, the 
liability on which the action is based in the two cases 
being entirely dissimilar in nature and principle. The 
action against the insurance company is based upon the 
contract of insurance, while the action against the rail- 
way company is not based upon any contract, but upon 
the liability established by Art. 1063 of the Civil Code. 



During the October term of the Court of Queen's Bench 
sitting in appeal at Quebec, twenty appeals were heard. 
On the 27th of the month the Court met to render judg- 
ments. Seventeen of the cases which had been heard a 
few days before were then disposed of, and only three 
remained en ddib&ri. 



THE LATE SIR J. J. C. ABBOTT, 

The late Sir John Abbott like another successfal and prominent 
member of the Montreal bar — the late Sir John Bose— was a na- 
tive of this province — the first who has attained the position of 



828 THB liEOAIi NEWS. 

premier of Canada since confederation. Great as were his attain- 
ments in the law he possessed most of the qunlities which would 
have made him equally snccessfal in any other profession — an 
acute intellect, 01 derly arrangement and lucid exposition of ideap, 
immense application and capacity for work, with careful atten- 
tion to the details of it. If he did not satisfy the popular notion 
of a brilliant orator it was rather that he cared little for that 
sort of popularity, or had no time to cultivate the flowers of 
rhetoric. But as an argumentative and persuasive speaker he 
was excelled by few either in this country or among the mem- 
bers of the English bar. His style of pleading was admirably 
clear and never failed to engage the attention of the Court he 
was addressing. With a jury he had perhaps less weight, though 
always making a favorable impression. We once had an oppor- 
tunity of contrasting bis style with that of the late Sir John Rose. 
It was a case tried with a special jury — the last occasion, we 
think, on which Mr. Rose appeared in a jury action. The case 
had no sensational feature whatever: the jurj' had merely to de- 
termine certain questions of fact. But Mr. Rose managed to 
develop consideiable enthuBiasm and to get into a warm struggle 
with the presiding judge over some of his rulings There was no 
responsive warmth on Mr. Abbott's side; he remained impassive — 
wi^ely considering perhaps that the case was better left in the • 
hands of the judge. The jury, however, gave the verdict to Mr. 
Hose. 

Aq mayor of Montreal a few years ago, and as leader for the 
Government in the Senate shortly afterwards, Mr. Abbott ac- 
quitted himself wonderfully well, showing a mastery of eveiy 
question that came up, however intricate or troublesome. Then, 
later, when the sudden removal of Sir John Macdonald left the 
conservative party for a time without an acknowledged leader, 
he accepted the difficult position of premier, and was marvel- 
lously successful in dealing with the problems which present 
themselves in the government of a rapidly growing country. 
His intense application to this task, at an ago when physical 
strength was on the decline, undoubtedly exhausted his remain- 
ing forces and probably shortened his life. 

When Mr. Abbott was elected mayor of Montreal half a dozen 
years ago we remarked (vol. 10, p. 73) that he would have been 
more appropriately placed as the chief justice of a high appellate 
court. Few anticipated at that time that he would yet be sum- 



THB LEGAL NEWS. 329 

moned to a higher and moro dilTicult presidoncy, and would hold 
the position of fir^t minister when the office of Chief Justice of 
the Court of Appeal had to be tilled. Nevertheless, we shall 
always hold that Mr. Abbott would have rendered invaluable 
service to the country had he obtained a high judicial position in 
the prime of life. There was a time in his career when it would 
not have been unacceptable; but it has tu be admitted that the 
niggardly salary accorded to our judges would not have attracted 
him after he had attained eminence as a commercial lawyer. 

Mr. Abbott was an old parliamentarian. Long before con- 
federation he had a seat in parliament. But his attention was 
given chiefly to such measures as wore connected with com- 
mercial law. The Insolvent Act of 186 ^ was his j^reatest achieve- 
ment and it also redounded to his professional advancement. 
Even before this time (in 1862) he was solicitor-general for 
Lower Canada, and it may be mentioned as an example of his 
thoroughness an a worker, that he at once assumed personally 
the conduct of the crown prosecutions, though not previously 
known in connection with criminal cases. 

A hard worker throughout his life, he probably would not have 
reached an age exceeding the three score and ten, had he not 
possessed that love of nature and of open air recreations which 
is usually found in those who have been born and brought up in 
rural scenes, and he made opportunity for these relaxations even 
when ocsupations pressed heavily upon every moment of his 
time. 



JDDICIAL RE-ORGANIZATION. 

The following is a report of remarks made at the recent inter- 
view of a delegation from the Montreal Bar with the Attorney- 
General : — 

Mr. John Dunlop, Q.C., b&tonnier, having been requested by 
the Attorney-General to state his views respecting the proposed 
Bill " Respecting the re-organization of the Law Courts," said 
that he was not favorable to the Bill for the following reasons : 

Ist. Because he saw no reason why the judicial business of 
this Province could not be effectually carried out, pi'ovided there 
was a fair distribution of work made among the thirty judges in 
the Province. 



830 THE LEGAL NEWS. 

That so fur as regards the district of Montreal, the Bar had 
two grievances to contend with : 

Firstly. The difficulty in getting cases heard in the Court of 
Appeals; and 

Secondly. The difficulty in getting cases heard at enquite and 
merits. He suggested as regaitis the first difficulty, that it 
might be provided that the Court of Appeals sit in two divisions, 
and that the quorum should be reduced to three. If this method 
were adopted, in a short time the arrears would be wiped off. 
Of course this would necessitate the appointment of additional 
Judges in Appeal. He suggested that the right of appeal to the 
Court of Queen's Bench, should be limited to cases over $400.00, 
except in special and exceptional cases when an appeal might be 
granted by the Court on application. As regards enquite and 
merits, he saw no reason why that Court should not sit in three 
divisions in the City of Montreal. 

He alluded, of course, to the great difficulty there had been in 
caiTying on the business of the Courts in Montreal, during the 
past two years, owing to the repaii*s being made to the Court 
House, but there was a prospect of these repairs being fin- 
ished, and he had been informed by the Prothonotary that there 
would be plenty of room in a short time for three divisions of the 
Court to sit at once. 

Mr. Dunlop also alluded to the work done in certain districts 
of the Province, and showed that, if a similar amount were done 
in the other districts of the Province there would be no arrears. 

He also stated that he was pei*sonally opposed to the appoint- 
ment of district judges ; and that, in his opinion, if the ten judges 
in Montreal had to attend to the Superior Court in Montreal, and 
also had to go on Circuit in the different dibtricts, and attend to 
the additional duties imposed upon them by the Bill, matters 
would not be improved. 

Mr. Dunlop also strongly placed before the Attoraey-General 
the advisability of increasing the salaries of the judges resident 
in Montreal ; and could see no reason why their salaries should 
not bo increased, while those of judges living in less expensive 
places in the Province should remain as they are. 

He also said he thought it would be better, before re-organiz- 
ing the Courts, to wait for the completion of the Code of Pix)- 
cedure, as he had been informed by the Attorney-6enei*al that it 
would be completed down to, and including executions, in time 



THE LEGAL NEWS. S31 

to be submitted to the Legislature at its next Session, which 
would commence on the 9th November, 1893, and that the Code, 
as a whole, would be submitted to the leii^islature for appi*ovaI in 
the Session to be held in 1894. 

Remarques de M. Lamotfu, G,R. : — (Sisumi.) 

" Le bill a pour but de rero^ier aux d^fectuosit^s du sjst^me 
jndiciaire actuel. Ces d^fectuosit^s ont produit dans Montreal un 
^tat de choses d^ploi-able. 

" Voici, en gros chiffres, oH nous en sommes 4 Monti*^al avec 
\e syst^me actuel : 

'* Nous avons plus de trois cents causes 4 la Cour Sup^rienre 
_c|^ni attendent leur tour pour @tre entendnes. A la Cour de 
CZJireuit, il y a six cents ou sept cents causes qui sont dans le 
Tugme cas. Le r6le de la Cour de B<$vision est consid^rablement 
c^harg^. Quant k la Cour d'Appel, il faut attendre deux ans 
environ avant de parvenir 4 Taudition d'une cause. C'est in- 
tiol^rable. Le bari'eau s'en plaint, le public s'en plaint etla presse 
cjui est r^cho du public ne cesse de murmurer ^ ce sujet. 

" Nous n'avons pas assez de juges. A la cour sup^rieure 

1« nombro des juges est de dix. Actuellement nous n'en 

Savons quo neuf et Tun des neuf est charge du district 

<ie Terrebonne. II est moralement impossible que neuf juges 

X^uissent sutisfaire k la besogne judiciaire de la Cour Sup^rieure k 

Htfontr^al. De temps k autres, nous avons une aide pr^cieuse de 

Xa part des juges des districts ruraux. Mais depuis quelques 

x^nn^es, ces juges sont de plus en plus retenus daus leur districts, 

i9oit par la multiplication des termes, soit par les affaires urgentes 

«t sommaires. 

'* II est impossible de laisser les choses dans I'^tat actuel. 
^'accumulation des causes augmente constamment. II faut un 
I'em^e ; je ne dis pas qu*il n'y en a qu'un, mais il en faut un." 

Plus tard, r^pondant k Tobservation que nos juges s'occupent 
d'affaires ext^rieures et ne donnent pas tout leur temps k la besogne 
judiciaire, M. Lamotho a dit & peu pr^s ce qui suit : 

" L'on se plaint que les juges de Montreal ne se donnent pas 
exclusivement k leur besogne judiciaire, qu'ils donnent des cours 
de droit, qu'ils administrent des successions, etc., et on d it que 
c'est 1^ la cause du mal. 

" Je ne puis, pour ma parjb,attribuer& cette cause Taccumulation 
des affaires judiciaires k Montreal. Je n'ai pas encore remarqu^ 



882 THE LEGAL NEWS. 

que les jages ^taient emp^ch^s do singer par suite des cours 
qu'ils donnent k TUnivereil^. On peut n)§me dire qu'il y a 
parmi ces profcss^urn, des juges que I'on trouve sur le banc 
aussi fr^quemment que leura coll^guefl et qui sont toujours pr§t8 
a se rendre aux d^sirs du barreau quand on a besoin d'eux. On 
ne peut exiger, d'ailleurs, que nos juges soient constamment bur 
le banc. lis sont sujets aux maladies commc les autres morlels. 
II survient dans leurs families des ^v^noments qui> les retiennent 
au foyer, tout comme dans les families des autres citoyens. fin- 
fin, il faut aussi leur laisser le temps do d^lib^ier. 

** Dans mon opinion, empScher les juges do donner des coui-s 
do droit dans les universit^s, do publier des ouvragcs do di-oit et 
d'administrer des successions ne derait qu'apporter un bien faible 
palliatif aux maux dont nous souffrons. Lc remede n'est pas 14. 
Vu le nombre d'affaires considerable et do tou^ genres qu'il a y 4 
juger k Montreal, le nombre des juges y est devenu insuffisant." 

Enfin, dans le cours des remarquos dchang^os entre les divers 
d^legu^B du barreau, M. Lamotho a plusieurs fois affirm^ son 
opinion que le bill projete de V Honorable M. Casgiain ^tait do 
nature h, rem^dier k notre ^tat do choses actuel k Montr^l, vu 
qu'il vanous donner imm^diatement seize jages r^sidnnt k Montreal 
au lieu do dix — sans compter les juges do la Cour d*Appel qui 
restent les m@mes. 

Observations de M. Globenskt, C. R 

Le soussigne, ayant eu Tbonneur d'§tre d^l^gu^ par le barreau 
de Montreal, aupr^s do THonorable Procureur-G^n^ral de cette 
Province, au sujet du bill de reorganisation des cours, lui a ex- 
pot e les raisons qui Tont porte k so prononcer centre le projet 
de loi dont il s'agit. Ces raisons sont les suivantes : 

lo. Farce que le systeme de judicature qui r^git aujourd'hui la 
Province de Quebec fonctionne depuis pr^s de quarante ans avec 
efScacite et k la satisfaction gen^rale. 

2o. Parce qu*aucune plainte de la part des justiciables des dis- 
tricts ruraux que le projet de reorganisation doit particuli^re- 
ment affecter n'a 4t6 faite centre le systeme actuel. 

3o. Parce que les plaintes concernant Tadministration de la jus- 
tice ne dependent pas du systeme de judicature auquel la Pro- 
vince est soumise, mais tiennent k des causes d'un oi*dre tout 
different dont quelques-unes sont les nominations aux fonctions 
judiciaires dans lesquelles les considerations politiques entrent 
plus que la competence des titalaires. 



THB LEGAL NEWS. 8SS 

4o. Pai*ce qae la mauvaise administration de la justice dont 
soaflfrent quelquos districts de cctte Province, depend surtout da 
mauvaJH syst^mc do procedure qui nous r6^it et d'une applica- 
tion de ce syst^me plus vicieuse encore. 

5o. Parcc que le^ justiciablcsdo nos tribunaux et ceux qui sont 
intimement lies 4 Tadminihtration de la justice dans les districts 
ruraux, los uvocats entr'autres, loin de so plaindro du syst^mo 
actnel le consid^rcnt au contraire tr^s avanlageux pour los plai- 
deurs, et au lieu de vouloir le faire disparaftre d^siront plutdt le 
conserver tel qu*il est. 

60. Parce que le sysl^mo de judicature que Ton vout introduire 
en opdrant la centralisation des juges touche k decentralisation 
judiciaire comme la forme de la justice touche au fond de la justice 
m§me. Or la decentralisation n'est qu'une forme, une mani^re, un 
moyen d'administrer la justice. 

En d*au(res termes, parce que la deceniralirtation des juges est 
si intimement li^e k la decentralisation de la justice, quo toucher 
k Tone c*est toucher & I'autrc. 

To. Parce que le salaire attache k la position de jnge de district 
et la clause du projet de loi qui permet d*y appeler des avocats 
de cinq ans de pratique, loin d'offrir une garantie d'administra- 
tion convenable de la justice ibnt craindre des inconvenients et 
un etat de choses pire encore que ceux dont on se plaint au- 
joard*hui. 

80. Parcoque d'apr^s hes calculs de Thonorable procureur-gen- 
ei«al tel qu'on les trouve exposes dans son discours snr le projet 
de loi en question, los quatre cinqui^mes des causes de cette 
province sont d'une somme de $400.00 et au-dessous. Or il ne 
serait ni juste ni raisonnable d'ofTrir d ces juges de district pour 
faire les quatre cinqui^mos de tout Touvrage des cours civiles de 
cette province, et de plus une grande partie de la besogne crim- 
inelle, un salaire de deux mi He on deux mille quatre cents par 
annee, tandis que les autres juges recevaient pour un cinqui^me 
seulement de Touvrage un salaire de cinq ou six mille piastres. 

9o. Parceque avec ce sysieme de judicature les quinze juges de 
la cour superieure seront souvent dissemines dans les vingt 
comtes oii ile devront administrer la justice, et que de cette man- 
i^re ils seront forces d*employer une grande partie de leur temps 
k voyager, en sorte que, les grands centres comme Montreal, 
Quebec et Sherbrooke oH la plus grande somme des affaires judic- 



384 THB LEOAL NEWS. 

iaires de cette province Bont jag^es, seront eouvent sans jage an 
grand detriment des int^ress^s. 

lOo. Farce qu'il faut bien conaiddrer que d'apr^s le syst^me 
que Ton vent introdaire, les juges seront appel^ anjoaixL'hui 
dans un district pour entendre une requite et le lendemain dans 
le mSme on dans an autre pour entendre une biraple motion. 
Peut-^tre y seront-ils retenus plusieurs jours cons^cutifs pour en- 
tendre les parties sur un simple incident; pendant ce temps les 
plaideurs des autres districts attendraiont le retour des jages pour 
obtenir justice. Quels inconv^nients ne r^ulterait-il pas pour les 
districts ruraux, de TappHcation des articles 801 et 835 du code 
de procedure concernant le capias et la saisie-arr@t, et des articles 
819 et 854 du mSme code se rapportant k la contestation de ces 
brefs. 

llo. Parce que dans la pens^e du grand homme d'Etat cana- 
dien dont le pays regrette encore la perte, Sir Greorge Etienne 
Cartier, lo principal auteur du syst^me actual, la decentralisation 
judiciaire dont a ^t^ dot^e notre province ne devait pas seulement 
comprendre les tribunaux, mais les joges m^mes, et cela non seule- 
ment afin de permettre k la justice d'etre coustamment au milieu 
des plaideurs, mais encore afin de donner auz villes des divers 
districts de cette province, le relief et le prestige que ne manque 
pas de donner la r^idence des juges d'une cour de Timportance 
de celle de la cour sup^rieure. 

12o. Parce que par le nouveau systdme de judicature on touche 
non seulement 4 la decentralisation judiciaire, mais encore au 
syst^me du jury en matidres civiles auquel beaucoup d'esprits 
s^rieuz sent encore profon dement attaches. 

II est vrai qu'on ne I'abolit pas, mais on le restreint de manidre 
k ne I'appliquer que dans les causes au-dessus de quatre cents pias- 
tres, tandis qu'd. present il existe dans les causes de deux cents 
piastres, dans certains cas definis par la foi. 

13o. Parce que si le nouveau projet de loi etait adopts, Tengorge- 
ment des causes devant la Cour de Revision qui olh*e une prime 
k la mauvaise foi des plaideurs et entrave le cours de la Justice 
serait considerablement augments par les nombreux appels que 
ne manquerait pas d'inspirer soit le d^sir d*obtenir du deiai. soit 
le manque de confiance dans le jugement des juges que I'on con- 
siddrera k tort ou k raison, comme des juges inferieure. 

14o. Parce que s'il faut porter remdde k T^tat de choses actuel, 
il y en a un qui s'offre k Tattention des l^gislateurs. 



THB LBQAL NEWS. 885 

Ou bien le Bystdme actuel est mauvaia oa bien il est bon. S41 
est mauvais, il doit dtre faoile de le pronver, ce que Ton n'a pas 
fait jusqu*^ present. S'il est bon, et en Tabsence de preuve aa 
contraire, il faut le croire bon, non seulement on aurait tort, mais 
il serait dangereox de le changer. 

Si done le syst^me actuel est boo, le malaise que Ton ^prouve 
et dont les intdress^s se plaignent doitStre le r^sultat d'une cause 
qui lui est ^trang^re, soit le nombre trop restreint des juges, soit 
la mauvaise distribution de Touvrage entre eux, soit le systdme 
de proe^ure. 

Si le nombre des juges est trop limits, rien n'est plus facile 
que de Taugmenter. Dans ce cas on pourrait nommer cinq nou- 
veaux juges de la cour sup^rieure, cc qui en porterait le nombre 
d. trente-cinq. Do ces trente-cinq juges, trois pourraient 6tre 
titulaires d*un tribunal de Bdvision. Et si tant est qu'un tribunal 
de Revision doive exister, un tribunal ind^pendant pent seul 6tre 
acceptable. 

Ce tribunal pourrait cr^er alors une jurisprudence de nature 
^ ^ciairer les plaideurs sur leurs droits, sur leur chance de succds 
quand lis songeront & demander la revision de jugements rendus 
conti'c eux. 

D*un autre cdt^ avec cinq juges de plus, I'id^e de Thonorable 
jnge T. J. J. Loranger et de Thonorablo juge Pagnuelo de faire 
decider Jes causes par trois juges, en premiere instance, id^e que 
j*ai Thonneur de partager avec ces magistrals savants et distin- 
gu^s, pourrait §tre mise & execution, ce qui ferait disparaitre en 
outi*e un degr^ de juridiction. 

II resterait encore deux juges qui pourraient tenir la cour de 
Circuit. 

Le systdme de Taudition et de la decision des causes contesl^es 
par trois juges serait d'une application facile. 

II suffit pour s'en convaincre de lire les etudes de MM. les 
juges T. J. J. Loranger et Pagnuelo sur la rtorganisation judi- 
ciaire. 

D*apr^B oe syst^me les districts pourraient etre subdivis^s et 
groups de mani^re & ce que la justice y soit administrdo par trois 
juges. 

II y aurait deux chambres. Dans la premiere, pr^id^e paries 
trois juges r^unis, seraient entendues et d^cid^es les causes con- 
test^es. Dans la deuxieme, pr^sid^e dans chacnn de ces districts 



486 THB LEGAL NBWS. 

par le juge resident, seraient entendues les causes par d^faut et 
seraient vid^s toas les incidents de procedure. 

Les terraes pour Taudition et la decision des causes contest^es 
seraient ten us h, certaines ^poques, dans chacun des districts, par 
rotation. 

Quunt a Montreal et & Quebec, les juges qui y rd^^idont au- 
jourd'hui continueraient d'y remplir leurs fonctions comme par 
le pasB^, sauf le changement que je viens d'indiquer. 

A Montreal, par excmple, oii nous avons dix juges, deux divi 
sions de la premiere chambre, compos^es de trois juges chacune, 
pourraient singer dans la premidre chambre une vingtaine de 
jours par mois, occupant ainsi six juges. 

Les quatre autres jages tiendraient la deuxidme chambre et 
remplacoraient ceux de leurs colidgaes qui, pour une cau^e ou 
pour une autre, seraient dans Tim possibility de singer. 

En Lupposant que les deux divisjiions de la premiere chambre 
n'entendraicntquesix causes par jour, el les n'auraient qu'^ sldger 
deux cents jours par ann^o pour decider douze cents causes, ce qui 
est plus que le chiffre des causes contest^es dans ce district. 

Comme il a d^ja 616 dit, les quatro autres juges videra ent tous 
les incidents qui naitraient de ces causes contest^es. 

La Cour de Circuit serait tenue par les deux juges dont la 
nomination est si impatiemment, ou plut6b si patiemment atton- 
due par le ban*eau et les plaideurs. 

Avec ce systdme, la cour d'enqu§te n'aurait plus sa raison 
d'etre, ce qui serait un embarras do moins dans le chemin de la 
justice. 

La cour de revision — un autre embarras dans le chemin de la 
justice — cesseiait d'exister. Le manque d'uniformit^ dans les 
decisions et Tisolement de^i juges— -deux choses qui ont contribu^ 
4 la naissance du nouveau projet— disparaitraient. La question 
des d^penses— si tant est qu'il faille parler de sous dans une 
mati^re qui int^ressiB Tordre social tout entier — la question des 
d^penses I'esterait la mSmc, quant 4 la province, que sous le 
regime actuel. Plus de longs d^lib^res. Ce serait V&ge d'or de la 
justice prompte et sommaire. Sans compter qu*aucun de ceuz 
qui administrent la justice aujourd'hui ne serait priv^ de sea 
fonctions. 

Je crois mSme qu'avec ce syst^me 32 juges suffiraient. 

De plus, I'appel ne devant Stre permis que dans les causes de 
cinq cents piasti'es et plus, la cour d'appel serait d^ohargd d'un 



THE LEGAL NEWS. 38t 

fardeau qu*elle porte all^grement du reste, mais qui ne laisse pas 
que de rendre plus lente la marche de la juBtice. 

Mais peutron dire quo ies juges ne sont pas aeeez nombrenz 
pour disposer de la besogne judiciairo ? 

Pour repondre h cctto question 11 faut recourir anx statistiqnes 
Judiciaires. Prenons par exemple le nombre des causes jug^es 
en 1891. 

En 1891, il y a eu devanl la cour sup^rieure et la cour de cir- 
cuit, dans toute la province de Quebec, 9,294 causes jug^es r^par- 
ties commo suit : 

4,792 devant la cour de circuit et 4,502 devttnt la cour 
sup^rieure. Si les causes avaient ^t^ ^quitablement distributes 
entre les trente juges de cette province, chaque juge en aurait 
jug^ 309, soit 150 4 la cour sup^rieuro et 159 a la cour de circuit. 

Est'Ce beaucoup, est-ce trop ? Mais ^tant odmis que la besogne 
n'est pas ^quitablement distribudo et que certains juges n*ont 
que peu de causes ^ juger, on conyoit que plusieui*s de nos juges 
ont beaucoup plus quo trois cents causes k decider. Ainsi, par 
exemple, dans le district de Saint Fran9ois, Thonorable juge 
Brooks qui y reside et qui exorce la magistrature avec une si 
grande distinction, a jug6, en 1891, 298 causes devant la cour de 
circuit et 231 causes devant la cour sup^rieure, ifoit en tout 529 
causes sans compter les jugements qu'il a din rendre sur les 
incidents qui se sont produits dans ces diverses causes, incidents 
dont il faut aussi tcnir compte dans le calcul des caubes des'autrcs 
districts. De plus M. le juge Brooks a pr^sid^ les assises oti 
de nombreux et importants proems se sont d^roul^s. 

En consid^rant le nombre des causes jug^es dans le district do 
StFranyois, on arrive k la conclusion que 15870 causes pourraient 
§tre jug^es annuclloment par nos trente juges en cette Province, 
et que dans le district de Montreal avec nos dix juges 5290 causes 
pourraient Stie d^eid^es annuellement, soit 2980 devant la cour 
de circuit et 2310 devant la cour sup^rieure. 

Or, d'aprds les statistiques il y a eu que 1074 causes contest^es 
k Montreal en lji91 devant la cour hupferieure, k cola il faut ajou- 
ter naturellement les brefs de certiorari, mandamus, quo war- 
ranto, de prohibition, los oppositions afin d*annuler, afin de dis- 
traii-e, afin de charge, afin de conserver, et les causes en revision 
dont 211 ont ^t^ jugdes. 

En supposantquecesderni^res procedures aient donn^ le chiffre 
de 500 contestations, il y aurait encore une marge considerable. 



838 THE LBGAL NEWS. 

Si le mal dont on souffre est le r^sultat de la mauvaite repar- 
tition entre les jngcs, des causes h, juger, il semble que Ton pour- 
rait trouver un remMe ^ cela sans toucher & la ddoentralisation 
judiciaire. 

Enfin, si la faute de tout oe dont on se plaint concernant Tad- 
ministration de la justice est dans le code de proc^ure, le remMe 
est trop facile & appliquer pour qu'il soit besoin de faire autre 
chose que le mentionner ; amendons le code. Mais ne touchons 
pas & un systeme qui a 6t6 le fruit de beaucoup de reflexion, d*une 
longue experience et qui a contribu^ peut-§tre plus qu'on ne le 
croit k donner aux populations rurales Timportance qu'elles ont 
acquise depuis qu'elles vivent sous le systeme do judicature qui 
les regit actuellement. 

De plus le projet de loi en question est de nature ^etouffer pen- 
dant quinze ou vingt ans les legitimes aspirations d'avocats que 
leurs talents destinent k rev6tir Thermine des juges de la cour 
Bupericure, etant donne que toute vacance creee dans un district 
rural ^erait remplie par un jugo de district et que toute vacance 
creee dans les districts de Montreal et de Quebec serait remplie par 
un juge des districts ruraux. Cette raison qui a peut-Stre moins 
dMmportance que les autres, roerite neanmoins d'§ti*e mentionnee. 

De tout ce qui vient d'etre dit il ne iaudrait pas conclure que 
le projet de loi en question est sans merite. Au contrairo ceux 
qui veuleut un changement radical, une organisation judiciaire 
nouvolle peuvent avec raison le trouver des plus acceptables. 
Toutefois ce ne peut Stre qu*^ la condition de renverser Tordre 
de choses etabli ou pour le moins d'entrer dans une voie qui y 
conduit. Mais il n'en peut §tre ainsi pour ceux qui ci*oient que 
le systeme actuel a dejd* produit et peut, bien applique, produire 
encore les meilleurs resultats. Tel qu'il est Ic projet de loi do 
rhonorable procureur general revile chez son auteur un esprit 
serieux et capable d'entreprendre de grandes choses dans Tinter^t 
de la justice. En cela le barreau de cotte province doit k Thono- 
rabte Monsieur Casgrain de reconnaitre publiquement ses merites 
et de ne pas lui menager Texpression de sa haute lippreciation 
des efforts qu'il fait pour raffermir la confiance des justiciables 
dans les tribunaux de cette province. 

On ne saurait lire ce projet de loi sans constater que Thonora- 
ble procureur general sentait qu'il cotoyait en le faisant, Pabime 
de la centralisation judiciaire. II semble n'y pas tomber en vou- 
lant creer des juges de district qui y resideraient permanemment, 



THE LEGAL NEWS. 389 

mais il y tombe r^ellement en voalant enlever aax distnots ru- 
raux les juges de la conr Bupdr'eure qui y resident. 

II y aurait bien en verta da projet de loi, decentralisation de 
la justice, mais elle n'ezisterait r^ellemeut que dans les causes de 
quatre cents piastres el au-dessous. 

Dans les causes d'un chiffre plus ^lev^ il y aarait centralisa- 
tion, car il ne faut pas oublier que le mot justice dans la phrase 
'^ decentralisation de la justice*' ne veut pas dire seulement cette 
vertu morale qui consiste k rendre k chacun ce qui lui est d<i. II 
veut dire dans ce cas la personne qui rend la justice autant que la 
justice, le tribunal m§me. 

Or si vous central isez les juges, vous centralisez la justice dans 
les causes de pins de quatre cents piastres. 

Les justiciables dans lee causes de plus de quatre cents piastres 
verraient-ils alors la justice venir les trouver a leur porte, suivant 
Texpression de Thonorablo procureur general ? Oui peut-Stre, 
mais apr^s avoir longtemps attendu que les juges se soient eioi- 
gn^s du centre d*oii ils devront n^cessairement partir pour se 
rendre jusqu'^ eux. 

La justice tardive est souvent pire que T injustice, par les com- 
plications nombreuses qu'elle entraine presque toujoura. 

Diffdrer la justice, c'est violor un des premiera principes de la 
Grande Charte— pieiTC angulaire do tout Toi-dre juridique — nuUi 
vendemus, aut negahimuSy aut differemus rectum vel justitiam. 

Differer la justice c'est, dans la plupart des cas, rendre illusoire 
le recours qu'elle offrait. 

Une etude conscienoieuse du projet de loi en question m*ayant 
determine k me prononcer centre son adoption, j'ai cru par res- 
pect pour I'homme distingue qui est k la tete du departement de 
Tadministiation de la justice de cette province, et pour ceuz qui 
no partagent pas ma mani^re de penser, devoir mettre par ecrit 
les raisons qui m'ont porte k conclure comme je le fais. 

SeformoDs ce qui doit dtre reforme, mais ne detruisons pas 
noire systdme de judicature. 

" La decentralisation judiciaire, ecrivait feu Thonoraole juge 
^' Loranger, est aujourd'hui un fait accompli, et ce serai t se per- 
'' dre dans de vaines utopies que de chercher des combinaisons 
" pour retablir Tancien systeme ou ronverser le nouveau." 

Je regrette de differer, au sujet de ce projet de loi, d'avec plu- 
Bieui*B do mes confreres dubarreaude cette province dontj'admire 



340 THE LEGAL NEWS. 

le talent ct pour TopinioD desqaols j'ai le plas grand respect. 
Mais mes regrets sont temp^r^s par Tesp^rnnco qu*iU voudront 
bien coire A nia sinc^rit^, comme je crois a la lear, et qu'ils ne 
m'attribaeront pas d'autre mobile que rint^rSb des justiciables et 
et du barreaa, et un ardent d^sir de voir la justice mieux admi- 
nistr^o. 

WOLMERHA USEN v. G ULLICK, 

The decision of Mr. Justice Wri^^ht in Wolmerhausen v. Gullick 
(Chancery Division), reported in the Times of May 2, raises a 
novel and important point in the \&w of suretyship. The ques- 
tion was whether a co-surety on a promissory note can sustain 
an action for contribution against another co-surety before he has 
actually paid mure than his own proportion of the joint liability 
— the principal creditor not being a party to the suit. 

It is an agreeable proof of the infinite variety of circumstances 
in legal cases, that no exact counterpart of this case is to be 
found. There are two wnys of secuiing justice in contributions. 
One is that adopted l>y the Roman law, that of compelling the 
' creditor to limit his claim against each surety to a proportional 
share. This method was followed by the ancient custom of the 
city of London. The other is to refrain from restraining his 
cjcditor, but to give the surety who is compelled to pay more 
than his share a remedy over against his co-surety. This is the 
method adopted in English law. 

Common Jjaw courts always insisted that a surety must have 
paid already more than his »hare before ho could institute an 
action for contribution, which they retrarded as an action for 
money paid. This is settled law since 1840 {Davies v. Humphreys, 
(> M. & W. 123). Chancery took a different view, but in only two 
cases were decrees actually made ordering the co-surety to pay 
direct to the creditor, the creditor being made a party to the suit 
{Dering v. Lord Winchelsea, VV. & T. L. C. ; Morgan v. Seymour^ 
1 Law J. Rep. Chanc. 120). Curiou^ly enough, the custom of the 
city of London, like Chancery, did not require excessive payment 
as a basis for action. 

In Ex parte Snowdon, 17 L. R. Chanc. Div. 41 (1881), the Court 
of Appeal annulled an adjudication in bankruptcy obtained by 
one surety against another, en the ground that no debt was due, 
us the tirst had not paid more than his share, and also that his 
proper remedy was to call for contribution. 

Mr. Justice Wright decided incidcntallj' that the Statute of 
Limitations did not run against the first surety until his liability 
was ascertained ; and decreed that, upon the plaintiff paying his 
own share, the defendant, by payment to the principal creditor 
or otherwise, should exonerate the plaintiff from further liability. 
Law Journal {^London). 



THE 



LKGAIv NBV/S 



VOL. XVI. NOVEMBER 15, 1893. No. 22. 



CURRENT TOPICS AND CASES. 

A case occurred very recently in Ontario where a 
burglar was shot in the act of plundering. It may be 
well for burglars as well as householders to know that 
there is good authority for such treatment of midnight 
depredators. Before the Manchester Assizes, a few weeks 
ago, one Higgins was tried for shooting a burglar. The 
facts were as follows : An innkeeper was charged with 
having at Manchester, on September 5, feloniously shot 
at Owen Kiley with intent to do him some grievous 
bodily harm. At 2.10 a.m. on the day in question a 
police-constable, hearing a whistle, went to the Victoria 
Hotel, kept by the prisoner, whom he found standing 
on the steps. He said he had shot Eiley, whom he had 
found in his house. On being charged, he stated that at 
1.50 a.m. he was awakened by his wife, and, after listen- 
ing for a time, heard a noise downstairs. He took his 
revolver, went downstairs, called * TV ho is there ? ' and 
getting no answer opened the door. Eiley was crouching 
down, the room being nearly dark. Being frightened, 
and not knowing how many burglars might be in the 
house, he fired and hit Riley in the chest. In a subse- 
quent statement he said that he had only intended to 
frighten the man he saw, and was very sorry for what 



342 THE LEGAL NEWS. 

had happened. Owen Riley was called as a witness, 
having previously pleaded * Guilty ' to the charge of 
burglary. He said that the defendant had shot him from 
inside the kitchen door, and that there was a light in the 
room. Counsel for the defence submitted that even on 
the, assumption that Higgins had shot Riley intentionally 
he could not be convicted, as he was acting reasonably 
in defence of his life and property when a felony had 
been committed. Mr. Justice G-rantham ruled that there 
was no evidence against the prisoner of shooting with a 
felonious intention. He said that the prosecutor, having, 
by his own account, broken into the house and searched 
it for what he could steal, the prisoner, coming into the 
room as he did, was entitled to shoot at him. He there- 
fore directed the jury to acquit the prisoner, who was 
thereupon discharged. 

We notice a statement that the Georgia House of Dele- 
gates has voted down a proposition to increase the salary 
of the judges of the Superior Court from $2,000 to $2,500. 
The motive for this misplaced economy does not appear. 
It can have no connection, we presume, with the fact 
that lynch law has so largely replaced the ordinary 
methods of justice in the Southern States. 



A peculiar question of the law of assault is before the 
Supreme Court of Massachusetts. The defendant is a 
milkman who had been accustomed to leave milk at an 
early hour at the plaintiffs house. At intervals he had 
entered the plaintiff's sleeping-room for the purpose of 
collecting his bill while his debtor was in bed. The 
evidence does not show that the plaintiff was reluctant 
to settle the claims against him. The method of collection 
was merely a usage to which he submitted. But after a 
while he grew tired of it, and notified the milkman to 
discontinue the practice. One morning, however, the 
defendant, wanting his money and not finding the 



THE LEGAL NEWS. 343 

plaintiff up, made his way again to the room, and aroused 
plaintiff by shaking his shoulder. Then the defendant 
presented his bill. It happened that the customer had 
just fallen asleep after a night of sickness, and he showed 
his resentment by bringing suit for assault against his 
creditor. The lower Court entered judgment for the 
defendant, but the plaintiff is not satisfied, and wishes it 
to be settled once for all whether a milkman can awaken 
a customer and demand his dues at an unseemly hour. 



A propos of lotteries and bazaars, Mr. Justice Monroe 
recently told a good story illustrative of the gambling 
spirit of the age. His lordship visited a bazaar. A little 
girl — ten or twelve years of age — asked him to buy a 
ticket. He said to her, *Do you know, my dear girl, 
were I to buy and you to sell a ticket we should bring 
ourselves within measurable distance of the law, and if 
we were brought before the magistrates we might be 
treated as rogues and vagabonds.' The little girl looked 
at the great lawyer for a moment, surveying him from 
the crown of his head to the sole of his foot, taking his 
measure, as he thought, and then, with sublime audacity, 
said : ** Well, sir, shall I say one ticket or two ? " The 
result of the appeal was not disclosed by the narrator of 
the incident. 



THE LATE MR. JUSTICE TASCHEBEAU. 

The late Hon. .Tean T. Taschereau, ex-judge of the Supreme 
Court of Canada, who died at Quebec, November 9, aged 78, was 
a son of the late Jean T. Tasohereau, Sr., in his lifetime one of 
the puisne judges of the Court of Queen's Bench of Lower 
Canada. His mother was Marie Panel, daughter of Hon. Jean 
Panet, first speaker of the House of Assembly for the province 
of Quebec, an office which he held for twenty consecutive years. 
The deceased wab born in the city of Quebec, on December 12, 
1814. He was educated at the Quebec Seminaiy, where he 
greatly distinguished himself in different branches, taking prizes 



344 THE LEGAIi NEWS. 

in roathematics, Latin, etc. He studied law in his native city 
with Messrs. Stuart and Black ; was called to the bar of Lower 
Canada in 1836, and subsequently followed several law courses 
in Paris, France. He practised his profession with great success 
for more than twenty years. He was created a Q. C. in 1860, 
and received the title of LL.D. from Laval University in 1855. 
On Septembers, of the last mentioned year, he was appointed 
an assistant judge of the Superior Court of Lower Canada, to 
replace a judge of the Superior Court at Quebec during the 
sittings of the Special Court appointed under the act for the 
abolition of feudal rights in Lower Canada. On June 8,1860, 
he was appointed an assistant judge of the Superior Court of 
Lower Canada, to replace the Hon. Justice Morin. who was 
appointed on the commission for codifying the laws. On 
August 11, 1865, he was appointed a puisne judge of the 
Superior Court of Lower Canada as successor to the Hon. A. N. 
Morin, deceased. On February 11, 1873, he was appointed a 
puisne judge of the Court of Queen's Bench, Lower Canada, and 
on October 8, 1875, was appointed a puisne judge of the Supreme 
Court of the Dominion. The latter office he resigned on account 
of ill-health, on October 19, 1878, after being on the bench for 
nineteen yearp.. 



EXCHEQUEE COUET OF CANADA. 

Ottawa, November 6, 1893. 

Coram Bubbidoe, J. 

The Quebec Skating Club, suppliants, and The Queen, 

respondent. 

Contract — Breach of — Promise to promote legislation by Minister of 
the Crown — Effect of — Ordnance land — Con iro I and disposition of. 

Held: — 1. No Minister or Officer of the Crown can bind it 
without the authority of law. 

2. An order of the Governor-General in Council pledging the 
government to promote legislation does not constitute a con- 
tract for the breach of which the Crown would be liable in 
damages. 

3. The Minister of the Interior cannot lease or authorize the 
use of ordnance lands without the authority of the Governor in 



THB LEGAL NEWS. 345 

Council. R S. C, c. 22, sec. 4 ; E. S. C, c. 55, sees. 4 & 5, dis- 
cussed. Wood V. The Queen, 1 Can. S. C. R 631 ; St John Water 
Commissioners v. The Queen, 19 Can. S. C. R. 125, and ffall v. The 
Queen, 6 Ex. C. R 373, referred to, 

G. C. Stuart, Q.C., for Huppliants. 
W. D, Hogg, Q.C, for respondent. 



June 26, 1893. 
Coram Burbidqe, J. 

Carter et al. v. £La.milton. 

Patent — ** The Paragon Black-leaf Cheque Book " — Validity — 

Want of novelty — Infringement. 

The plaintiffs obtained letters-patent on the 15th Februar}', 
1882 (registered in the patent office at Ottawa as No. 14182), for 
** The Paragon Black-leaf Cheque book composed of double leaves, 
one-half of which is bound together while the other half folds in 
as fly leaves, both being perforated across so that they can readily 
be torn out ; the combination of the black-leaf bound into the 
book next to the cover, and provided with the tape bound across 
its end, the said black-leaf having the transferring composition 
on one of its sides only." The objects of the invention, as stated 
in the specification, were to provide a check-book in which the 
black-leaf used for transferring writing from one page to another 
need not be handled and would not have a tendency to curl up 
after a number of leaves have been torn out. The first of such 
objects was to be obtained by the use of the tape which enabled 
^Hhe black-leaf to be folded back or raised ^without soiling the 
fingers,'' and the second by binding the black-leai in with the 
other leaves but next to the cover, in which position there 
** would be less likelihood of the black-leaf becoming crumpled 
up than if it were placed in the centre and the leaves removed 
from the stub on either side." 

The defendants had a patent for and manufactured a counter- 
check-book in which a margin was left on the carbon leaf by 
which it could be turned over without soiling the fingers. With 
the exception of the tape for turning the leaf it was established 
that the plaintiffs' patent had been anticipated, and it was also 
proved, that prior to the issue of the plaintiffs' patent, a patent 
had been granted in the United States for the process of manu- 



346 THE LEGAL NEWS. 

facturing carbon for ase in manifold writing with clean margins 
so that the paper could be handled without soiling the fingers. 

Held : — That if the plaintiffs' patent was constructed to include 
the use of clean margins on carbon paper, as applied to counter- 
check-books, it failed for want of no\*lty ; but that if the patent 
was limited, as it was thought it should be, to the means des- 
cribed therein for turning over such carbon leaves without soil- 
ing the fingei-s, that is, to the use of the tape, the defendants 
did not infringe the patent by using a clean margin for the like 
purpose. 

W, Cassels, Q.C., and Edgar for plaintiffs. 

Johnston for defendants. 



NOVA SCOTIA ADMIRALTY DISTRICT. 

March lt>, 1893. 
MacDonald (C. J.), L. J. A. 
The Santandbrino. 

Collision — Arts. 18 and 21 of the Navigation Act, R. S. C, c. 79, 
sec. 2 — Undue rate of speed for steamer in public road-stead — 
Negligence in taking precautions to avert collision — Responsibility 
for collision where such occurs. 

The steamship S. was proceeding up the harbour of Sydney, 
C. B., at a rate of speed of about 8 or 9 miles an hour. When 
entering a channel of the harbour which was about a mile in 
width, her steam steering-gear became disabled and she collided 
with the J., a sailing vessel lying at anchor in the i*oadstead, 
damaging the latter seriously. It was shown that the master of 
the S. had not acted as promptly as he might have done in taking 
steps to avoid the collision when it appeared likely to happen. 

JSeld, — that even if the breaking of the stearing-gear — the 
proximate cause of the collision — was an inevitable accident, the 
rate of speed at which the S. was being propelled while passing 
a vessel at anchor in a roadstead such as this, was excessive, 
and, in view of this and the further fact that the master of the S. 
was not prompt in taking measures to avert a collision when he 
became aware of the accident to his stearing-gear, the S. was 
in fault and liable under Article 18 of sec. 2 of R. S. C, c. 79. 

Held, — also, that the provisions of Article 21 of sec. 2, R. S. C, 
c. 79, should be applied to road-steads of this chai*acter, and that 



THE LEGAL NEWS. 347 

inasmach as the S. did not keep to that side of the fairway or 
mid-channel which lay on her starboard side, she was also at 
fault under this article, and responsible for the collision which 
occurred. 

W. B. A. Ritchie for plaintiffs. 
A. Drysdale for defendants. 



BRITLSH COLUMBIA ADMIRALTY DISTRICT. 

April 28, 1893. 

Sir Matthew B. Beobie, C. J. (L. J. A.) 
The Ship *' Cutch." 

Maritime law — Collision — Responsibility for j where uninjured ship de- 
clines to assist helpless one — The Navigation Act, R. S. C, c. 
79, sees. 3 and 10. 

Under the provisions of section 10 of the Navigation Act [R. 
S. C, c. 79) where a collision occurs, the ship neglecting to assist 
is to be deemed to blame for the collision in the absence of a 
reasonable excuse. 

Two steamships, the C, and the J. were leaving port together 
in broad daylight, and a collision occurred between them. The J. 
received such injury as to be rendered helpless. The C. did not 
assist, or otfer to assist, the disabled ship, but proceeded on her 
voyage. The excuse put forward by the master of the C. was 
that the J. did not whistle for assistance, although the evidence 
showed that he must have been aware of the serious character 
of the damage sustained by her. lie further attempted to justify 
his failure to assist by the fact that other ships were not far off; 
but it was shown that these ships were at anchor and idle. 

Held, — that the circumstances disclosed no reasonable excuse 
for failure to assist on the part of the C. and that the consequences 
of the collision were due to her default. 

Ileldj — al-o, that the C. was in fault under Art. 16 of sec. 2 of 
the Navigation Act for not keeping out of the way of the J., the 
latter being on the starboard side of the C. while they were cross- 
inir. 

Pooley^ Q.C.J for plaintiffs. 

E, V. Bodwell and P. jE, Irving for defendant. 



848 THE LEGAL NEWS. 

October 2, 1893. 
Coram Burbidoe, J. 

Hall v. The Queen. 

Parol contract between Crown and subject — R, S, C, c, 37, «. 23 — 
Effect of its provisions where contract executed — Quantum 
meruit. 

Held, — The provisions of the 23rd section of E. S. C, c. 37, do 
not apply to the case of an executed conti*act ; and where the 
Crown has received the benefit of work and labour done for it 
or of goods or materials supplied to it or services rendered to it, 
by the subject, at the instance and request of its officer, acting 
within the scope of his duties, the law implies a promise on the 
part of the Crown to pay the fair value of the same. 

A- P. Fousette, Q.C, for plaintiff. 

W. D. Hogg, Q.C, for defendant. 



LE BILL DE JUDICATURE. 

Un repr^sentant de VEvenement a eu avec M. Casgrain I'entre- 
vue suivante au sujet du bill de judicature : 

Q. — M. Casgrain, avez-vous lu I'article de M. A. Globensky, de 
Montreal, au sujet de votre bill sur la reorganisation des tribu- 
naux ? 

R — Oui ; et comme M. Globenoky parait avoir fait une ^tude 
profonde de la question, son ai*ticle m'a fort int^ressd, comme je 
I'avais ^t^ du reste par le rapport par lui fait au barreau de 
Montreal. 

Q. — ^Pouvez-vous donner une r^ponse aux derniers arguments 
de M. Globensky ? 

K. — Naturellement je ne puis, des maintenant, voUs faire I'ex- 
position complete de la question ni donner toutes les raisons qui 
mill tent en favour de mon projet. Lorsque je pr^senterai la 
mesure ^ la Chambre je les donnerai plus au long. 

Q. — La principale objection de M. Globensky parait Stre bas^e 
sur le fait que votre projet de loi tend a d^truire le syst^me de 
decentralisation judiciaire etabli en 1858 par sir George Cartier ? 

R — C*est Id. le principal cheval de bataille de tous ceux qui, 
pour une raison ou pour une autre, sont opposes ^ la mesux*e, mais 
je declare que personne ne pent lire le projet de bi sans §tre con- 



THE LEGAL NEWS. 349 

vainca qu'il ne louche aucunement an principe de la decentrali- 
sation judiciaire ; je vais pins loin, je dis que la decentralisation 
qui se fera en vertii de moii bill sera plus grande que celle qui 
existe maintenant. La decentralisation judiciaire ne depend pas 
de la residence des jugcs de la com* superieure dans chaque dis- 
tricty main elle depend de Taudition des causes, de la reddition des 
jugements, enfin, de Tad ministration de la justice dans chaque 
distnct. Avant 1857, la cour superieure ne siegeait que dans sept 
districts : k Montreal, Quebec, Sherbrooke, Trois-Ilivi6res, Ottawa, 
Kamouraska et Gaspe. En 1857,1a loi de sir Georges Garti^r 
crea dix-huit juges de la cour superieure, qui devaient exercer 
leurs fonctions dans les differents districts qui furent alors crees. 
Depuis ce temps, Ton a augnjente le nombro des districts, ainsi 
que le nombre des juges de la cour superieure, donnant k chaque 
district un jugc de la cour superieure qui y administre la justice. 
Je ferai remarquer, des maintenant, que la loi qui oblige les juges 
k resider dans les li mites de leur district est presque une lettre 
morte. Aujourd'hui il n'y a pas de juges residant dans les dis- 
tricts de Saguenaj, Eimouski, Joliette, Beauce, Eichelieu et Pon- 
tiac. Mon projet do loi ne change aucunement les limites des 
districts qui existent actuellement. Les causes qui y prennent 
naissance et qui y sont jugees maintenant, le seront encore. Pas 
une cause, pas une motion, m§me la moins importante, qui y est 
plaidee et jugee maintenant, sera plaidee ou jugee ailleui*s. La 
seule difference, c'est qu'au lieu d'avoir un seul tribunal poui* 
toutes les causes, il y en aura deux, divises d'aprds le montant en 
litige. 

Pour les causes de moins de $400, 11 y aura un tribunal qui 
s'appellera la cour de district, preside pai* un juge de district, 
residant au chef-lieu de chaque district ; pour les causes au-dessus 
de $400, il y aura la cour superieure composee de quinze juges ; 
il est vrai que la residence de ces deiniers juges sera fixee k Mont- 
real et k Quebec, mais ils iiont k tour de role, dans chaque district 
pour y entendre et juger les causes au-dessus de $400. Ainsi, 
comme vous le voyez, je ne touche en rien au principe de la decen- 
tralisation tel qu'etabli par sir George Cartier, et je le pousse 
m§me plus loin, car je donnerai des juges de district a des endroits 
com me la grande region au nord de Montreal, au nord de Quebec 
et k d'autres endroits qui n'ont pas encore cet avantage. 

Q. — Quel est I'avantage de divisor ainsi la cour superieure en 
deux, donnant une juridiction k certains juges dans les causes jus- 



350 THE LEGAL NEWS: 

qu'^ $400, et ii d'autres juridiction dans des causes au-dessas de 
cette somme ? 

R.- Les trois-cinquieines, a j>cu pi^s, des causes sont pour un 
montant au-dos:sous de $400. Toutes les causes, aujoui*d'hui, dans 
lesquelles le montant en litige d^passe $100 peuvent ^tre port^es 
en appol k la cour du Banc de la Heine; la consequence, c'est 
qu'aujourd'hui, le role de la [cour d'Appel est tellement charge 
que, si vous insci-ivez une cause en appel, vous ^tes oblige d*at- 
tendre deux ans avant de pouvoir la plaider. Je propose d'aro^- 
liorer ce systdme. Les jugeraents de la cour de district pourront 
§tre port^s en appel devant la cour de Revision, laquelle sera 
compos^e, comme elle Test maintenant, des juges de la cour sup4- 
rieure. (^e tribunal sera done un ti*ibunal d'appel proprement dit, 
et on ne Tappellera plus, comme on Tappelle maintenant, un tri- 
bunal de confirmation. Pour les causes ou le montant en litige 
excedera $400, appel sera port^ devant la cour du Banc de la 
Reine — on atteindra ainsi un double but — on diminuera le nom- 
bre des appels ^ la cour du Banc de la Reine, on diminuera ^gale- 
ment les frais, on donnera aux juges do la cour sup^rieure et de 
la cour de district, tout le temps n^cessaire pour entendre et ^ta- 
dier les causes qui leur sont soumlses, et on d^barrassera la cour 
du Banc de la Reine de T^norme fardeau qui p^se actuelloment 
sur elle, lui donnant ainsi une efficacit^ plus grande. 

Q. — Quels sont h peu pr6s les frais d'une cause pori)$e en appel 
devant la Cour du Banc de la Reine ? 

R. — Pour la moindre cause de $100 quand il y a bien peu do 
preuve k imprimer, les frais sont de $300. 

Q. — Quels seront les frais d'un appel d*un jugement de la Cour 
de district devant la Cour de Revision ? 

R. — Une cental ne de piastres au plus. 

Q. — Mais on objecte que pour les mati^res sommaires, les brefs 
de prerogatives, les decisions k TenquSte, etc., on sera oblige dans 
les districts ruraux, d'attendre dans les causes au-dessus de $400 
que le juge do la Cour Sup^rieure vionne pour le terrae ? 

R. — Ceci est une mati^re de procedure dont je n'ai pas parle 
dans le projet de loi tel que soumis k la derni^re session, mais 
pour qu*il n*y ait pas de malentendu, cette annee, j'ai inclus une 
clause donnant, sur toutes ces mati^res, juridiction aux juges de 
districts, sauf appel, soit a la Cour de Revision, soit k la Cour du 
Banc de la Reine, soit aux deux suecessivement. 

Q. — Yous dites que la loi, fixant la residence des juges est une 



THE LEGAL NEWS. 351 

lettre morte. Croyez-vous que left juges de district r^sideront 
dans leurs districts ? 

R — Oui. Aujourd'hui Touvra^o est in^galement distribu^ 
entre les jagcs et ceuxci, qui pour la plupart ont et^ cholsis 
parmi les avocats des villes, trouvent toojours, dans le surcroit 
de I'ouvrage dans les villes, un pr^texte d'y passer la plus grande 
partie de leur temps, et m§me d'y r^sider. Par mon bill 
Touvrage.est plus ^galement divis^, ce pr^texte n'existe plus, les 
juges de district <^tant choi^i plus particuli^rement parmi les 
avocats de la campagne, n'auront aucun int^r^t ni aucun pr^texte 
de resider ailleurs qu'& la compagne, et je puis vous dire, en 
passant, qu'il y a, dans presque tous les districts ruraux, des 
avocats ^minents qui figureront avec avantage ^ cdt^ de nos 
juges. 

Q. — Vous reraarquez, M. le Procureur, que M. Globensky et 
cenx qui combutteut votre projet de loi, disent que les avocats et 
les jufiticiables sont satlsfaits du syst^me ar*tuel ? 

R — Oui, et je suis de plus en plus ^tonn^ chaque fois que j'en- 
tendH faire cette assertion. Depuis que je suis au Barreau, 
j'entends des plaintes centre le syst^me qui existe actuellement. 
D^s 1880, M. le jugo Pagnuelo ^crivait sur la r^forme judiciaire 
des lettres rest^es c^ldbres, et dans lesquelles il disait que depuis 
dix ans ddjd. Topinion demandaitdeschangements radicaux. Vers 
le m§me tefnps, feu M. le juge Loranger ^crivait dans le m§me 
sens. L' honorable M. Laflamme qui est uno autorit^ sur la 
mati^re ^crivait la m§me chose : M. Lareau, Thon. M. Langelier 
et quelques autres dont j*ai Topinion k anon d^partoment. Voyez 
ce qui se passe k Montreal ; j'oserais dire que lamoiti^ des affaires 
judiciaires de toute la province sont faites 4 Montreal, par conse- 
quent Montreal, k ce point de vue, a une tr^s grande importance 
et raJrite d'attirer Fatten tion de celui qui veut rendre eflicace 
I'ad ministration de la justice dans la province; or, ce qui y arrive 
actuellement est intol^ralilc. 

Comme je Pai d^jji. dit. uno inscription en appel veut dire deux 
ans d'attente avant que Ton puisse avoir une decision. On m'in- 
forme positivement qu'uno cause inscrite aux enquetes et m^ritos 
ne peut 6tre entendue que neuf mois api*6s linscription ; cst-ce 1^ 
la c^l^rite que reclame les opinions modernes sur I'administ ration 
de la justice; on a beau dire que cela depend des juges, I'on a 
essay^ de toutes les fa90ns par une legislation morcel^e, de rem^- 
dier ii ces abus, Ton n'a pas rdussi ct les efforts que Ton a faits 



852 THB LEGAL NEWS. 

me prouvent qu'il n'y a qu*un changement radical qui puisse y 
porter remade. A Sherbrooke encore, le juge de la cour sup^- 
rieure est surcharge d'ouvrage, tandin qu'il y a 10 ou 12 juge» 
dans d'autres diatricta qui n'ont certainement pas trois molts 
d'ouvrage pendant toute I'ann^o. J'ai d^ja signals ia plainte que 
Pon fait entendre contre la cour de revision telle qu'actuelle- 
ment organis^e. Voilil des faits qui voas prouvent que le 
systeme qui existe actuellement, ne rencontre plus les besoins 
des justiciables. 

Q. — Les avocats sc plaignent-ils du systeme actuel ? 

E. — Un certain nombre, oui ; d'autres sont satisfaits. Mais jo 
pretends que Ton doit plutdt consid^ror les int^rets des justicia- 
bles que les int^rets des avocats. 



BREACH OF PROMISE OF MARRIAGE, 

The result of the case of Shepherd v. White — tried before Mr. 
Justice Hawkins and a special jury last week — is calculated to 
diminish the anxiety with which intelligent men have for some 
time regarded the abuses of actions for breach of promise of mar- 
riage. The injured plain tiif was a parlour-maid in the service of 
a lady at Finsbury Park, while the faithless Lothario was un old 
gentleman of feeble mental power, boarding under the roof and 
living under the practical tutelage of his inamorata's mistress 
(who was his sister) and her husband. There was no doubt that 
a promise of marriage (conditional on the consent of the defend- 
ant's sister being obtained) had been made; and although the 
defendant's gifts of conversation did not rise above the level of 
disjointed observations on the carts that were passing and repass- 
ing the window of his boarding-house, and although even on the 
momentous morning which was to determine the fate of the 
action against him, he talked of nothing but the family cat and 
the omnibus by which he was to be conveyed to the Law Courts, 
it is tolerably clear that he possessed the modest degree of 
capacity necessary in law to the formation of a valid contract of 
marriage. The plaintiff's technical right to relief was, therefore, 
complete — if we except the condition as to the consent of the 
defendant's sister. But the jury, taking into consideration the 
lightness of the defendant's mental calibre, and the possibility 
that his chief attractiveness in the eyes of the plaintiff lay in the 



THE LEGAL NEWS. 353 

fact that he was worth about 300Z. a year, awarded her one far- 
thing damages — a verdict to which Mr. Justice Hawkins 
promptly gave its legitimate effect by depriving her of costs. In 
spite of the doubt recently expressed by Loid Coleridge in the 
case of Austin v. Harding — a still more flagrant abuse of the action 
of breach of promise, happily defeated by the application of the 
rule laid down by the Court of Appeal in Finlay v. Chimey, L. R. 
20 Q. B. Div. 494— whether this legal remedy ought to be con- 
tinued, at least in itn present unrestricted form, there ai*e cases 
in which the heavy damages and the incidental exposure obtain- 
able hy a direct action for breach of promise are effective weap- 
ons in the hands of justice, and we are not quite convinced that 
they could with advantage be laid aside. The suggestion made 
in a contemporary that every promise of marriage should' be 
required to be in writing, and should be subject to a stamp duty 
of \L would not meet such cases as AMStin v. Harding SLud Shepherd 
V. White at all. We have more confidence in the eflScacy of a 
few veixiicts for the defendant, or for the plaintiff with a farthing 
damages, followed by the penalty of deprivation of costs. — Law 
Journal. 



BURNING AT THE STAKE. 

Lynching is bad «nough in any view ; but the lynching of a 
negro accused of mui*der, at Bardwell, Kentucky, recently, would 
have been woi-se than it was if the wretched man had been put to 
death by burning, as was at first seriously proposed, instead of 
by hanging. 

It is difficult to see what the community gained by the proceed- 
ing, even assuming that the person put to death was unquestion- 
ably the guilty man. He would undoubtedly have been executed 
in due season according to law if the populace had not interfered. 

A queer feature of the uprising which resulted in this lynching 
was the cool and comparatively calm way in which preparations 
were made to burn the accused man at the stake. There seems 
to have been in the minds of the people an idea that iheir deed, 
although lawless, would be less reprehensible if they proceeded 
with order and deliberation. 

But the legislature of Kentucky itself could not make burning 
at the stake a lawful punishment even for the most fiendish of 



354 THE LEGAL NEWS. 

crimes. The Constitution of that State would have to be changed 
first. That instrument expressly declares that excessive bail 
shall not be required, nor excessive fines or cruel punishments 
inflicted. 

It may not be generally known that oven in the colony of New 
York there was a time when criminals were burned at the stake. 
In the yeaj* 1707 an Indian slave and a negjo woman were (ried 
for murder by a special commission in this colon3^ Both were 
convicted, and the man was executed by hanging and the woman 
by burning. In 1712 twenty-one slaves were executed in the 
coloiiy for being concerned in an insurrection which resulted in 
the killing of a number of white persons, and some of the con- 
victs were put to death by burnini^. Still later, as a result of 
what was known as the negro plot of 1741 and 1742, thirteen 
negroes were burned at the ntake. Finally, in 1772, or in the 
following year, a black who had been convicted of an assault upon 
a woman was burned at the stake in Johnstown, which place was 
at that time the county seat of what was then Tyrou county, 
named after the ancestor of the admiral who recently lost his life 
in the Mediterranean. These and other examples of cruel punish- 
ments were given in an interesting opinion which was delivered 
thirty years ago in the General Term of the sixth judicial dis- 
trict, by Judge William W. Camj)bell, of the Supreme Court of 
this State, for the purpose of showing, as he s:iid, that there had 
been good cause for the prohibition in the Constitution against 
cruel and unusual punishments. 

Most people will probably be aB much surprised to learn that 
burning at the stake was ever a legal method of inflicting the 
death penalty in New York as they would be to learn that there 
was a time in England when poisonei-s were lawfully boiled to 
death. Such however is the fact. — New York Sun, 



JUSTICE IN FRANCE. 



There is no country where more extraordinary scenes are to bo 
witnessed in courts of justice than in France. The other day a 
military prisoner was being tried by court-martial upon a charge 
of theft, and in due course he was asked by the president whether 
he had anything to say in his defence. 

*^Yes, raon Colonel," he replied, and pointing to the captain 



THE LEGAL NEWS. 355 

who h:i(i boon conducting the prosecution, ** I ask that a truss of 
hay be voted for that donke}'-." The remark startled the mem- 
bers of the court to such a dcf^ree that it took them some 
moments to recover their equanimity, whereupon they sentenced 
the prisoner to six months* imprisonment for theft and to ten 
years' detention, with hard labor, for insulting a member of the 
court. 

A similar incident took place a few days previously at the 
Palais de Justice. A poor fellow, having just heard himself con- 
demned to tive months' imprisonment for an oftunce described as 
vagrancy, but which merely consisted in pursuing his calling as 
a street mubician, was wrought up to buch a pitch by the severity 
of his punishment, and by the prospect of his wife and children 
being left without support for so long a time, that he vociferated 
just as he was being led away : ** You are nothing but execu- 
tioners: it is abominable. The big judge has had his eyes closed 
during the whole trial." By order of the court the prisoner was 
brought back to the dock, and five minutes later the poor wretch 
heard himself sentenced to five years' penal servitude for having 
insulted the court. 

This recalls tn mind an incident in the career of Gambetta 
prior to the overthrow of the empire. Jle was in the act of 
addressing the court in behalf of a prisoner, when suddenly he 
pei-ceived that the presiding judge was visibly dozing. He 
paused for a moment, and then bringing down his fist with a ter- 
rible thump on the desk in front of him, he shouted in his most 
resonant and clarion-like voice: "As 1 was saying before the 
awakening of the court.'* This apostrophe was immediately 
punished by the indignant judge suspending the young lawyer 
from practising his profession for a period of two months. 

Less energetic, yet equally effective, was the well-known and 
popular academician and lawyer, Maitre Rousse, who, having 
likewise observed that the presiding magistrate was indulging in 
a nap, suddenly stopped talking. The prolonged silence, which 
lasted for four minutes, had the effect of awakening the judge, 
and as soon as he opened his eyes Maitre Rousse made a profound 
bow and resumed his sj)eech,jis follows: ** As I was saying, mes. 
sieurs de la cour, at your last audience," laying special stress on 
the word " last." The reproof was so delicate that everybody 
smiled, even including the judge himself — Boston Journal. 



356 THE LEGAL NEWS. 

GENERAL NOTES. 

Women at the Bab. — Eight of the 110 female lawyers of the 
United States have acquired the right to practise before the 
Supreme Court of that countiy. 

Why he Lost. — A learned judge, while at the bar, unexpect- 
edly lost a case for a client who was a justice of the peace, and 
in his own opinion a very learned one. The judge was at a loss 
how to explain the cause se^isfactorily to him when they met, 
but he did it as follows : "Squire, I could not exactly explain it 
to an ordinary man, but to an intelligent man like you, who are 
so well posted in law and law phrases, I need only say that the 
judge said that the case was coram non juffice.'* '* Ah ! " said the 
client, looking very wise and drawing^a long breath, ** if things 
got into that fix I think we did very well to get out of it as easy 
as we did/' 

Hints to Students. — The late Sir Andrew Clark, in address- 
ing his students on one occasion, said he presumed those present 
would like to know from him what conditions he thought were 
essential to make a man a successful physician. Here are the 
opinions he expressed on this point: "Firstly, I believe that 
every man's success is within himself, and must come out of 
himself No true, abiding and just success can come to any man 
in any other way. Secondly, a man must be seriously in earn- 
est. He must act with singleness of heart and purpose ; he must 
do with all his might and with all his concentration of thought 
the one thing at the one time which he is called upon to do. 
And if some of my young friends should say here, ' I cannot do 
that — I cannot love work,' then I answer that there is a certain 
remedy, and it is work. Work in spite of yourself, and make 
the habit of work, and when the habit of work is formed it will 
be transfigured into the love of work ; and at last you will not 
only abhor idleness, but you will have no happiness out of the 
work which then you are constrained from love to do. Thii-dly, 
the man must be charitable, not censorious — self-effacing, not 
self-seeking ; and he must try at once to think and to do the 
best for his rivals and antagonists that can be done. Fourthly, 
the man must believe that labor is life, that successful labor is 
life and gladness, and that successful labor, with high aims and 
just objects, will bring to him the fullest, truest and happiest 
life that can be lived upon the earth." 



THE 



LEGAL NBWS. 



\ 



VOL. XVL DECEMBER 1, 1893. No. 23. 

j 

CURRENT TOPICS AND CASES. 

Several judicial appointments have been made recently. 
The vacancy on the Superior Court bench at Montreal, 
caused by the appointment of Mr. Justice Wurtele to the 
Oourt of Appeal, has been filled by the appointment of 
Mr. J. S. Archibald, Q.O., and the new Circuit Court 
judgeships at Montreal by the appointment of the district 
magistrates, Messrs. Barry and Champagne. It is to be 
regretted that in each instance a long delay has occurred 
before the nominations were announced. It has fre- 
quently been pointed out in this journal that in England 
such appointments are made with the utmost prompti- 
tude, and the expediency of dispatch in this matter surely 
need not be insisted upon. It is about two years since 
Mr. Justice Wurtele was first appointed an assistant 
judge of the Queen's Bench, and more t^an a year since 
he was formally appointed one of the justices of that 
court. During all this time there has been a vacancy on 
the Superior Court bench, notwithstanding the pressure 
of work in that court. The delay is all the more singular 
since it was confidently stated two years ago that the 
gentleman now named would have the nomination. 
Then, in the case of the Circuit Court judgeships, the 
Magistrate's Court was abolished five months ago, and 



358 THE LEGAL NEWS. 

the work has since devolved upon the Superior Court 
judges in Montreal. After a lapse of five months, the 
district magistrates have somevs^hat unexpectedly been 
appointed judges of the Circuit Court. Here again it 
vsrould have been very desirable by prompt action to have 
prevented the names of other gentlemen from being dis- 
cussed in the i^ewspapers as candidatea for the vacant 
positions. 

As regards the Superior Court appointment, Mr. Archi- 
bald has been a hard-working and successful lawyer, 
and coming to the bench as he does with ripe experience, 
there is every reason to expect that he will be an efficient 
and capable judge. 

In Toupin v. The Montreal Harbour Cammissumers^ 
Superior Court, Davidson, J., Montreal, June SO, 1893, it 
was held that the Board of Harbour Commissioners, 
Montreal, constituting in its corporate character the 
"pilotage authority" of the pilotage district, has no 
power to delegate to a committee its functions with 
respect to the investigation of charges against pilots. 
This nullity cannot be covered by acquiescence on the 
part of the accused. It was also held that the law 
requires the evidence in such investigations to be taken 
upon oath. Three commissioners make a quorum for 
such investigations, so that no inconvenience need result 
from requiring the Board to sit as a Board. 



The attack made some time ago by one Norcross upon 
Eussell Sage has given rise to a peculiar claim for 
damages, which came recently before the N. T. Supreme 
CoTirt-^ Laidlaw v. Russell Sage. A letter had been handed 
to the defendant, Sage, by a visitor, containing a threat 
that if he did not give said visitor a large sum of money, 
the latter would immediately explode a package of dyna- 
mite then in his possession. Plaintiff, who was ignorant 



THE LEGAL NEWS. 859 

of the contents of the letter, and that any threat had 
been made, allowed defendant to gently draw him toward 
defendant and turn him round so as to bring plaintiflf 's 
body between defendant and the visitor. An explosion 
then occurred through which plaintiff sustained severe 
injuries. The Supreme Court held that such facts pre- 
sumptively established a cause of action in favour of 
plaintiff against defendant ; that the burden of proof wad 
not on plaintiff to show that he would have been less 
seriously injured or not injured at all if he had been let 
alone, but that the burden of proof was on defendant, if 
he wished to avail himself of such defence, to show that 
without defendant's act plaintiff would have been equally 
injured. The judgment of the lower court was reversed, 
and a new trial ordered. 



In Bastien v. Labrie, Superior Court, Pagnuelo, J., 
Montreal, Feb. 10, 1898, the action was for the recovery 
of the amount of several promissory notes made by the 
defendant to the order of a firm which had become 
insolvent. The notes had been sold by the curator, and 
had been endorsed by him. The court held that the 
endorsement constituted a valid transfer, and that it was 
sufficient for the plaintiff (the purchaser of the notes) to 
exhibit the endorsement to the maker, to notify him of 
the sale and prove the fact of the sale. 



In Mare v. Cleveland, Superior Court, Davidson, J., 
Montreal, May 10, 1893, it was held that the defendant 
filing a requite civile is in the position of a plaintiff in 
respect of the requite civile^ and, if a non-resident, is bound 
to satisfy the requirements of Article 29 of the Civil 
Code, as to giving security for costs and producing a 
power of attorney. 

A question interesting to lawyers was decided in the 
Superior Court by Mr. Justice de Lorimier, Montreal, 



860 THE LEGAL NEWS. 

June 27, 1893. Article 206 of the Code of Civil Procedure 
says : ** A party's revocation of the powers ol his attorney 
will not be received unless he pays him his fees and dis- 
bursements, taxed after hearing or notice given to the 
party.*' The question was whether the attorney revoked 
could claim disbursements not taxable in the bill, such 
as travelling expenses, etc., or payments for services 
rendered by other parties in connection with the suit, or 
a retainer promised him by his client. The article plainly 
points to a taxed bill, and the court held that the substi- 
tution could not be delayed by contestations which 
might arise upon other demands of the attorney uppn 
the client, even if perfectly legitimate in themselves. 



BEL AIR V. LA VILLE DE MAISONNEDVB— 
INJUNCTION-BRIGHT 8 OF RATEPAYER. 

The notes of Mr. Justice Doherty in this case were not received 
in time to be included in the report, E.J.Q., 1 C.S. 181. Mr. 
Justice Pagnuelo, however, had this written opinion before him, 
and referred to it and followed the holding, in /. G. Ross v. The 
Merchants Telephone Co., in which, on the 4th October, 1893, the 
issue of the writ was refused. 

DOHVBTT, J. : — 

This case together with two others, that of The Edison Elec- 
tric Co. V. BarsaloUy and Senical v. The Town of Maisonneuve df 
Edison Electric Company^ arise out of a decision amved at by the 
Council of the Town of Maisonneuve on the 2l8t September to 
light the town by the electric light. 

In pursuance of this decision they instructed their engineer, 
Mr. Vanier, to advertise for tenders for furnishing the appai*atus 
necessaiy for such lighting, in accordance with specifications pre- 
pai*ed by him and approved by the council. 

In response to his advertisements several tenders were re- 
ceived, and among others one from the company defendant and 
one fi'om the Edison Electric Company. The former offered to 



THE LEGAL NEWS. 861 

do the work required for $9,500, and the latter for the sam of 
$10,900. 

These tenders were opened on the 5th of Ootober, and the 
coancil by resolution then authorized the mayor, Mr. Barsalou, 
and the Light Committee, composed of Councillors Dudevoir, 
McQuade and Belair, to give the contract to whomsoever they 
should deem proper, after taking further information. 

These gentlemen appear to have made inquiries, and looked at 
different electric systems, but took no definite action. 

On the Tth October a regular meeting of the council was held, 
at which after the reading of the minutes it was resolved to hold 
the meeting with closed doors, and the council withdrew from 
the public hall into a small room at one corner of the platform. 
Here some discussion was had concerning the different tenders, 
and a letter was pi*oduced from the Edison Electric Co. offering 
to do the work in question for $9,400, being a deduction of $1,549 
off their original tender, and making their price $100 less than 
that of the Eoyal Electric Co. 

Thereupon a resolution was moved and seconded /' That the 
contract for the electric light be grantisd to the Edison General 
Electric Co., according to the plans and specifications prepared 
by the engineer, at the price of $9,400 mentioned in their amended 
tender of Tth October, 1891." 

To this motion it was proposed in amendment ^'That the con? 
tract be granted to the Royal Electric Co." 

The amendment being put to the vote was lost. Councillors 
McQuade and Bennett voting for it, and Councillors Dudevoir, 
Belair, Goyette and Champagne against it, and the main motion 
being then put was carried on a similar division, the four who 
had voted against the amendment voting for the motion, and 
vice versa, 

A motion was then carried, so far as the minutes show, without 
division, authorizing the Mayor to sign the contract for the elec- 
tric light. 

On coming out from the meeting the Mayor would appear to 
have stated in the presence of the persons in the public hall, 
among whom were the agents of both the Royal and Edison Elec- 
tric Companies, that the latter had got the contract. 

The next morning the manager of the Edison Co. sent to the 
secretary-treasurer of the manicipality and obtained from him 
a copy of the resolution nwarding the contract, sent also to the 



862 THE LEGAL NEWS. 

town eDgineer and obtained inBtraotions from him, and at onoe 
set to work to pat up its appai*atas. 

The mayor would appear not to have approved of such great 
haste, and on the 9th October caused the secretary to write a letter 
to the Edison Co., informing said company that he, the secretary, 
had no authority to deliver copy of the resolution of the 7th, 
granting the contract for electric plant to the Edison Co., and 
requesting said company not to take any action on said resolu- 
tion (Plaintiffs' Exhibit A«). Prior to this, on the 8th, the man- 
ager of the company had written the secretary of the munici- 
pality, informing him that in aceordance with the resolution 
they had commeuced work, and would have it completed within 
the time specified (Plaintiffs' Exhibit 3). It appears also that on 
the 8th the mayor telephoned the town engineer to tell the 
Edison Co. to stop work, and that he, the engineer, communicated 
the message to the company — and that on the 10th the mayor 
wrote them to the same effect, but the latter did not recognize 
the authority of the mayor to stop them. 

On the 12th of October a motion was made to reconsider the 
motion of the 7th granting the contract to the Edison Co., and a 
counter motion, called an amendment, to the effect that *' seeing 
the opinion of the attorney of the corporation on the question of 
the electi*ic light, saying that the resolutions of the last meeting 
are regular^ the resolution of the last meeting granting the con- 
tract of the electric light to the Edison General Electric Co. 
be reconsidered. 

This so-called amendment being put to the vote was lost, three 
councillors, Dudevoir, Goyette and Belair voting for it, and three, 
McQuade, Bennett and Champagne voting against it, and the 
mayor giving his casting vote against it. The motion for recon- 
sideration would appear to have been then put and carried on a 
similar division. The minutes of the meeting do not show this 
motion to have been so put, but by a correction ordered before 
adoption of such minutes at the subsequent meeting it is made 
to appeal. 

A motion was then made that the contract be given to the 
Boyal Electric Co., to which it was moved in amendment that 
" the conti*act being granted to the Edison General Electric Co., 
it be not resolved to grant it to the Boyal Electric Co., because 
opinions of lawyers have been furnished us declaring regular the 
resolution of the last meeting, granting the contract to the 



THE LEGAL. NEWS. 368 

Edison Greneral Bleotrio Co." This amendment was carried by a 
vote of 4 to 2, Councillor Champagne, who had voted for the re- 
consideration, voting in favor of the amendment. It was then 
resolved that the council generally take the opinions of the fol- 
lowing counsel on the question of the contract for electric light 
granted the Edison General Electric Co., to wit, MM. Beauchamp, 
Boy, Laflamme and Aug^, and that for that purpose the meeting 
be adjourned to Thursday the 15th. 

On the latter date, after the council had heard the opinions of 
the counsel above-named, and taken communication of a letter 
from the Boyal Company offering to provide the required system 
of electric lighting for $9,300, and another letter from the same 
company binding itself to hold the corpoi*ation indemnified of any 
claim in damages that might result from the granting by the 
town to the Hoyal Company of the contract, and a letter from 
the attorneys of the Edison Company threatening legal proceed- 
logs in the event of the corporation's rescinding or violating the 
contract made with that company, it was moved by Wm. Ben- 
nett and seconded by D. McQuade '^ that the contract for the elec- 
tric lighting be granted to the Hoyal Company for $9,300 as 
mentioned in its tender of that date." To this motion an amend- 
ment was proposed to the effect " that seeing the contract had 
been granted on the ?th to the Edison Company, and everything 
had been legally done, it be not resolved to withdraw the con- 
tittct f]x>m that company and give it to another." On this 
amendment the councillors divided equally. Councillors McQuade, 
Bennett and Champagne voting against it, and Councillors Dude- 
voir, Belair and Goyette for it. The mayor gave his casting vote 
against the amendment, and the main motion was carried on a 
similar division — ^and the meeting adjourned. 

At the regular meeting held on the 2l8t, it was resolved, on a 
vote of three to two, that the engineer be instructed to give all 
necessary instructions to the JRoyal Co. to proceed with the 
work. 

Meanwhile, on the 16th, the mayor had signed the notarial 
contract for the work with the Eoyal Company. 

The latter company then set to work to perform its contract — 
the Edison being already, as has been stated, engaged in doing 
the same, although the Mayor, when called upon by them to sign, 
and tendered for signature on the 9th of October a draft of a 



864 THE LEGAL NEWS. 

notarial contract for said work in accordance with the resolation 
of the ?th, had refused to sign it. 

The foregoing facts have given rise to the three suits above 
mentioned. 

By the first of these, directed against the Koyal Electric Com- 
pany and the town of Maisonneuve, and instituted on the 23rd of 
October last, Dolphis Belair, a ratepayer and voter of the town of 
Maisonneuve, seeks to have the resolution of the council of the 
15th October, accepting the tender of the Boyal Company of 
that date, declared to have been and to be illegal, irregulai*, null, 
void and of no force and effect, and to have the contract between 
said town and said company, passed as above recited, declared 
null and void, and cancelled and set af>ide, to have the said com- 
pany oi*dered to suspend all works under said contract pending 
the tuit, and that by the final judgment it be ordered that all 
works done by the said company be destroyed and demolished 
at the expense of the company. 

On the same date, and by a petition to which is annexed a 
copy of his declaration, plaintiff set forth that all the allegations 
of his declaration were true, that it was necessary in his interest 
and that of the municipality of Maisonneuve that an oi*der should 
be given or a writ should issue restraining and preventing defen- 
dants from continuing any work under the aforesaid contract ; 
that the company defendant were carrying out the work 
under said contract and resolution to the great damage and 
injury of said municipality and plaintiff, and were moreover des- 
troying and preventing the work being carried on by the Edison 
Company, which action on the part of the said company he 
alleged would do iirepaiable damage to said municipality and 
cauFe great loss, and prayed for an order or writ such as by him 
declared to be necessary. 

Upon this petition, supported by an affidavit of petitioner 
affirming the truth of the allegations of his declaration and peti- 
tion, and subject to the plaintifi's giving $600 security for conts, 
a writ was ordered to issue and ishued restraining defendants 
from doing any work under the contract mentioned in the 
petition till further ordered. 

Upon service of this writ of injunction defendant, the Boyal 
Electric Company, petitioned to have the same returned at once, 
and to have the oi der therein contained suttpended pending the 
final adjudication upon said writ of injunction. The writ was 



THE LEGAL NEWS. 365 

ordered to be returned at once, bat the other conclasiona of the 
petition were rejected. 

Defendant, the Hoyal Electric Company, then by an answer or 
defence to the declaration and petition for said writ of injunc- 
tion, contested the right to said writ, and it is upon the issue 
upon the contestation of said writ of injunction, not upon the 
merits of the action to annul the resolution and contract and 
order the demolition of works done under it, that the case is 
before this court. 

As has been said, the plaintiff embodies in or rather annexes to 
his petition for the injunction his declaration in the principal 
action, and relies upon its allegations as forming part of his 
petition. 

This declaration recites in detail the proceedings of the council 
as above set forth, and claims that the resolution of the 15th 
October granting the contract to the Soyal Company was and is 
null, for the following reasons : 

lo. Because it was carried at an irregularly called meeting. 

2o. Because it was passed without any motion having been 
adopted for the reconsideration of the resolution of the 7th accept- 
ing the tender of the Edison Company for the same work, and 
after the council had reaffirmed said resolution of the 7th. 

3o. Because one of the councillors, Louis Champagne, who 
voted for the resolution attacked, was interested in the question, 
fearing to lose his employment with the St. Lawrence Sugar Ee- 
fining Company unless he voted for said resolution — such fear on 
his part being induced by parties interested with and for said 
Boyal Electric Company. 

4o. Because on said date there was a legal and valid contract 
in force between said corporation and the Edison Company for 
the only work authorized or sanctioned by the council for the 
lighting of the said town. 

5o. Because the time had expired for receiving tenders. 

The contract is claimed to be null by reason of the nullity of 
the iCHolution upon which it was based. 

The declaration then goes on to allege that the Royal Company 
is proceeding with the work, that the Edison system is the best, 
that the tender of the Edison Company was legal and regular, 
and lei^ally and regularly affirmed by the council ; that the 
mayor illegally refused to sign the contract with the Edison 
Ci>mpany; that the said refusal of the mayor, the pretended ac- 



866 THE LEGAL NEWS. 

ceptance of the tender of the Boyal Company and the work done 
thereunder, will injare and cause harm to the municipality, and 
injure and destroy its property, and expose it to actions of dam- 
ages, and that plaintiff as a rate-payer has a right to demand the 
nullity of said contract and the resolution whereon it was based, 
and concludes as ali*eady stated. 

By its defence or answer to this petition and declaration the 
defendant, the Boyal Electric Company, after generally denying 
the allegations of the petition, and more especially, 

lo. That any notice of the resolution of the 7th was given the 
Edison Company. 

2o. That the motion to reconsider the said resolution of the 
7th was not carried. 

3o. That there ever was any contract between the Edison 
Company and the municipality. 

4o. That Councillor Champagne was interested in the contract, 
or acted under influence of fear, or that he was threatened by the 
company or any person for it, or in its interest. 

5o. That the company's works cauae any damage to the 
municipality or its pi*operty — 

goes on to allege : 

" That the plaintiff is without right on the face of the allega- 
tions of his declaration to ask and obtain a writ of injunction, and 
that he is also without interest to take this suit ; 

" That plaintiff is not a proprietor of real estate in the munici- 
pality, that he pays no taxes, is neither elector nor rate-payer, 
that he is not and will not be called upon to contribute anything 
to the cost of the electric plant in question, and the defendant's 
works have caused, cause, and can cause him no damage ; 

That plaintiff is a mere prete-nom for the Edison Company ; 

That defendant's woiks cause no damage to plaintiff, nor to 
any rate-payer of the municipality or the municipality itself, and 
that even were the latter exposed to any difficnlty, inconvenience 
or damage resulting therefrom, it would have ample recourse at 
common law, without recourse to the writ of injunction ; 

That the municipality is protected by the guarantee of the 
Boyal Company ; 

That the suspension of the work will cause immense damage 
to the company ; 

That in reconsidering the first resolution granting the contract 
to the Edison, and even in resiliating a contract made with them 



THE LSOAIi NEWS. 86*7 

had there been a contract, and making one with another company, 
the council acted within its rights, and that the courts have no 
power to interfere, the matter being in the discretion and within 
the jurisdiction of the council ; 

That a valid contract having been signed and executed, plain- 
tiff cannot by a writ of injunction ask that it be not carried out, 
BO long as it has not been annulled. 

The plea then proceeds to attack the contract claimed to have 
been made with the Edison Company, claiming that the latter 
company had no right to take possession of the streets of Maison- 
neuve, or do any work therein ; that it had no contract with the 
town ; that all proceedings at the meeting of the 7th were null, 
said meeting having been held with closed doors, and not publicly 
as required by law ; that said resolution was irregular and null, 
the council being bound to accept the lowest tender, which the 
Edison*8 first tender was not, and having no right to allow any 
tender to be changed without notice to other tenderer, which was 
done by collusion between the Edison Company and certain 
members and employees of the council ; that said resolution was 
to be followed by a contract, and until such contract was passed 
there was no engagement between the parties, and the resolution 
remained the property of the corporation, and was reconsidered 
before any effect had been given to it, the Edison Company be- 
ing notified by the mayor to do no work in virtue of it, and noti- 
fied of its reconsideration ; 

That the only conti*act in existence was that with the Eoyal, 
which was valid and binding. 

The plea concludes by asking that the resolution of the 7th be 
declared null as against public order, and the writ of injunction 
quashed. 

By his answer to this defense plaintiff redeclares the allegations 
of his declaration, reaffirms his being a rate-payer of the munici- 
pality, and as such having an interest to bring the suit, but does 
not allege that he suffers or is exposed to suffer any special dam- 
age by reason of the works sought to be restrained, and which as 
he alleges cause damage to and impede the streets of the muni- 
cipality. He then cuntiadicts in detail the allegations of the 
defence, and sets up efforts made since the institution of the 
action to obtain a meeting of the council and the repeal of the 
resolution complained of, and their non-success by reason of the 
Mayor, McQuade, Bennett and Champagne absenting themselves, 



368 THE IiEOAL NEWS. 

CoQncillor Champagne being prevented from attending by per- 
sons interested for defendants, and that at the regular meeting of 
the 4th November a motion in effect repealing the resolution of 
the 15th was proposed, and an amendment negativing the same, 
and Champagne*8 vote thereon challenged on the ground of his 
being interested, which question the mayor illegally refused to 
put — and adds that the town of Maisonneuve does not contest be- 
cause it is well aware that plaintiff's pretensions are well 
founded. 

Upon the issues so joined a vast amount of evidence was taken, 
and the numerous important and interesting questions ably and 
exhaustively argued by the counsel of the parties. 

The firat question which the court is called upon to decide is 
that raised by the allegations of defendant's plea, putting in issue 
plaintiff's right to demand a wnt of injunction. 

It is to be remarked that the declaration and the petition con- 
tain no averment that any special damage will be suffered by 
Dolphis Belair, the plaintiff, by reason of the works sought to be 
enjoined. The declaration speaks solely of damage to be suffered 
by the municipality, and by its rate-payei*s generally, and 
though the petition of which this declaration is made to form 
part, alleges that the company defendant is carrying on its works 
to the great damage and injury of the said municipality and of 
plaintiff, this can hardly be said to amount to an allegation that 
plaintiff thereby Huffers or is exposed to suffer any special damage 
particular to himself, and different from that which may result 
to every rate-payer from an injury done the corporation as a 
body. 

The declaration and petition also make no special mention of 
the nature of the damage to be suffered by the municipality be- 
yond speaking of it as damage to its property, and injury i*esult- 
ing from its being exposed to actions of damages. 

The answer to the plea goes a step further, and specifies as one 
cause of damage that the works impede the streets of the muni- 
cipality. 

The evidence shows that the works sought to be enjoined con- 
sist in the main in the digging of holes for the planting of poles, 
the erection of such poles in the streets of Maisonneuve, the 
stringing of electric wires upon such poles— and the immediate 
injury resulting consists in the obstruction of such streets, and 
the ultimate damage apprehended is that of the responsibility in 



THB LEGAL NEWS. 869 

damages of the corporation towards the Edison Company for 
injury resulting to it, should it be ultimately decided that that 
company had a valid contract for doing the work, by such work 
being interfered with by the operations of the defendant com- 
pany. It is also contended that the putting up of both systems 
in the town may cause what is described as '^ electrical perturba- 
tions," a calamity the precise nature of which is not described. 

It is to be said, also, that plaintiff 's quality of elector is proven. 

This being the general nature of the evidence, it clearly can- 
not for a moment be pretended that — ^^vhatever may be said as to 
there being any allegation of special damage suffered or appre- 
hended by plaintiff — he either suffers or is exposed to suffer any 
special damage peculiar to himself as distinct from the general 
body of rate-payei*6, resulting from the works of defendant. 

Indeed, at the argument the court did not understand it to be 
pretended that any such damage had been suffered or was appre- 
hended by him — the contention being that as a rate-payer, he 
was entitled to an injunction to restrain the doing of works in- 
jurious to the municipality— or to an order in the nature of an 
injunction to suspend soch works pending the decision of his 
action to annul the resolution in vii*tue of which the contract for 
said works was given. 

Plaintiff claims to be entitled to the writ of injunction under 
subsections 1 and 3 of art. 1033a C.C.P. 

The first of these sections provides for the issue of an injunc- 
tion where a corporation, without right and without having com- 
plied with the formalities prescribed by law or by its charter, 
takes possession, or causes to be taken for it, possession of lands 
belonging to another, or makes or causes to be made upon lands 
belonging to another excavations or works of demolition or con- 
struction, and subsection 3 gives the same remedy where a per- 
son does anything in violation of a written conti*act or agreement. 

It does not appeai* to the court that either of these subsections 
applies to the case here. 

The first subsection is clearly meant to apply to the case 
of a corporate body, as such, taking possession of lands or caus- 
ing possession to be taken of lands, or doing or causing works 
to be done upon lands belonging to another, and this without hav- 
ing complied with the formalities prescribed by law or its charter, 
to enable it so to do, which is not the case here, the complaint 
not being that the Eoyal Company is, as a corporate body, taking 



8*70 THE LEGAL NEWS. 

possession of or doing works upon lands which the law would 
permit it to take or do, provided only it complied with cei*tain 
formalities prescribed as a condition precedent to such action on 
its part, as would be, for example, the taking possession by a 
railway company or mnnioipal corporation of lands it was author- 
ized to expropriate, but without compliance with the formalities 
imposed upon it in order to the exercise of such right. What is 
sought to be restrained here is an alleged unlawful act being done 
by an incorporated company it is true, but not in virtue of any 
particular right claimed to belong to it qua corporation, but as 
claiming to be party to a particular conti*aot alleged to be illegal 
and null, a contract which might be undertaken by a private in- 
dividual as well as by a body corporate. 

It would seem equally clear that subsection 3 is meant to apply 
to a person doing something in violation of a written agreement 
to which he is a party, and binding upon him. And here it is 
not contended that the fioyal Company is under any contract, 
written or unwritten, binding it not to do the works in question, 
but at most that it should not be allowed to do them, because 
another company has a contract with the municipality, author- 
izing such latter company to do said works. 

[To be ooneladed in next inne.] 

CORONERS* INQUESTS IN ENGLAND. 

A select committee of Parliament has been enquiring into the 
law and practice of coroners' inquests in England. Among others 
who gave evidence was Mr. George Collier, deputy coroner for 
Southwest Middlesex and secretary of the Coroners' society, who, 
among other things, thought that the public safety required that 
no deaths should be registered, unless the informant produced to 
the registrar a certificate of a certified medical practitioner 
stating the cause, and that no oi-der for burial should be issued 
by the registrar, unless such death certificate was produced. It 
would, in witness' view, be an advantage to the coroner to have 
an independent medical man to examine into the cause of death 
in doubtful cases. 

Dr. H. Nelson Hardy, police surgeon at Dulwich, was fre- 
quently called to deaths of a suspicious nature. Five per cent of 
the deaths were not certified, or, if certified, the true cause of 
death was not given. Wliilst the coi*oner*s enquiry might be 
satisfactorv to the jury and coi*oner, the verdict of '* death from 



THE LEGAL NBWS. Sll 

Dataral oauses " or " by the visitation of God " did not give the 
real cause of death. Coroners' enquiries were often nothing but 
a farce. To show the loose way in which certificates were 
granted, witness q noted cases attended by him in which he 
refused to give certificates, but where certificates had been 
obtained fi*om persons who had not been in attendance for a long 
time and were accepted by the i*egistrar. Witness would sug- 
gest that in all cases where death was not certified by a qualified 
medical man, the matter should be referred to the police surgeon 
of the district for investigation. 



WOMEN AT THJ^ BAR. 

Just at present the principal topic of professional interest seems 
to be the position of women at the bar. Chief Justice Bleckley, 
of Greorgia, has recently delivered an address on " The Future of 
Women at the Georgia Bar/' which was printed in the Atlanta 
fieroZd for July 9th, and is certainly deserving of publication in 
more permanent form. The address exhibits the characteristic 
qualities of the learned and gifted jurist's style — a style in which 
wit and wisdom go always hand in hand. His wisdom never 
becomes dry or unpalatable, but one never misses Judge Bleck- 
ley's thoughtfulness and serious purpose through his veiy 
attractive way of putting things. Perhaps we can discern an 
underlying pi*otest of the seuHibilities of one educated in an 
earlier generation than ours, against the full recognition of female 
lawyers ; but the peroration evinces a sufficiently clear perception 
'of the probabilities of the future. 

'' My prediction is that there will some time be a career for 
women on the bench and at the bar of Georgia, and even in 
legislation, but when, this deponent saith not. Until the public 
mind is prepared for such a delicate innovation, Georgia law must 
continue in its present state of half orphanage, and forego the 
care of any but the one parent from whom it has descended. It 
has no mother." 

The Bench and Bar column of last Sunday's Trilnine contained 
a graceful and well deserved tribute to Mrs. Myra Brad well, the 
editress of the Chicago Legal News. We are glaid to join in the 
appreciation there expressed of the great ability with which that 
periodical is uniformly conducted. 

It appeal's that there is to be a convention of female lawyers at 
an eany date at Chicago. These ure some of the circumstances 
that have brought women's professional interests under special 
consideration at the present time. 



872 THE LEGAL NEWS. 

For our own part, we resent theoretically at least, any speciali- 
zation of " woman's position." The long hintory of injustice and 
oppression to which the female half of mankind has been subjected, 
has been largely due to just this pi*ocess of specialization. We 
believe the traditional distinction between the male and female 
intellect is purely fanciful. Women are popularly supposed to 
rely principally on their intuitions and men on their reasoning 
faculties. Sober experience shows that the power of instantaneous 
apprehension of an actual state of facts is just as apt to exist m 
men as in women, and often to a greater degree in the former 
than in the latter. This is the faculty which explains the great 
practical success of rude and ignorant men in gigantic business 
entei'prises. On the other hand, who has not met many 
apparently ill assorted couples, in which from a purely logical 
standpoint the grey mare was by all odds the better ho)*se, the 
husband being the slave of prejudice and ^* intuition,** and the 
wife capable of reasoning from known facts to their legitimate 
consequences ? Such difference as exists between the male and 
female mind is not so much one of kind as of degree. The greatest 
achievements in all departments of human effort have as a rale 
been made by men, and we do not believe that the dependent and 
inferior position to which the female sex has been condemned in 
the past entirely accounts for the phenomenon. In art, in music, 
and in literature, women have practically stood on a fair footing 
of competition with men for many generations, and only in the 
single department of prose fiction have they produced anything 
of the first rank. 

But the probable fact that women will not attain the highest 
places in the different departments of work ofi^ers not the slightest 
excuse for withholding fi*om them by law equal property rights, 
equal political rights and an equal chance of success in any field 
they choose to enter. In the medical profession they have already 
made a decided mark largely because ot the very circumstance of 
sex. Whether or not women are ever to be numbered among the 
greatest physicians and surgeons, there is no doubt but that in 
ordinary attendance upon females their services will often be more 
acceptable than those of male practitioners of equal ability. We 
do not anticipate anything like the same progress for women at 
the bar, principally on account of excessive competition. No 
doubt, women are mentally capable of rendering as valuable legal 
services as the average of male lawyers. But there are many 
motives outside of express talent for the law, which contribute to 
make our profession perhaps the most over-crowded of callings. 
For a woman of extraordinary legal capacity there is an opening 
at any time, although on account of prejudice and custom, her 
struggle will be a harder one than that of an equally gifted man. 
But the ranks of the profession are already HUi*charged with 
average ability, and from prudential motives we would counsel a 
woman merely bent on making a livilihood to choose some othe^^ 
sphere of effort.— JWsu; York Law Journal, 



THE 



LEGAL NEWS. 



VOL. XVI. DECEMBER 15, 1893. No. 24. 



CURRENT TOPICS AND CASES. 

The interpretation of Art. 2090, C. C, by the Court of 
Appeal, in Tfudtl &c Pafent (Montreal, April 26, 1898), is 
interesting. The court below maintained an action 
brought by a chirographary creditor of an insolvent, to 
set aside the registration of a hypothec granted by him 
within thirty days of his insolvency. The Court of 
Appeal, reversing this decision, held that the declaration 
contained in Art. 2090, C. C, that '' the registration of a title 
conferring real rights in or upon the immovable property 
of a person, made within the thirty days previous to his 
bankruptcy, is without effect,'* is not to be interpreted as 
making such registration an absolute nullity in any 
event, but only relatively to anyone having an estab- 
lished adverse interest and who has actually sustained 
prejudice or loss in consequence of such registration. As 
a result of this interpretation it follows that other cre- 
ditors have no legal right to criticise such registration 
until it has been demonstrated by a judgment of distribu- 
tion, or other equivalent legal procedure, that their claims 
remain unpaid, in whole or in part, as a direct conse- 
quence of such registration. In the present case a chiro- 
graphary creditor of the insolvent, without waiting to 
see the result of the division of the debtor's estate, 



\ 



374 THE LEGAL NEWS. 

attacked a transaction to which he was not a party, and 
asked, not that the obligation should be annulled, but 
that its registration should be cancelled. " "What interest 
or right," asked Mr. Justice Hall, *' has he to make that 
demand unless and until it is legally established that he 
is a real, not an imaginary sufferer by it ? His only jus- 
tification would be the assumption that the registration 
of the mortgage was an absolute nullity." His Honor 
referred to Art. 1033, 0. 0. : ** A contract cannot be avoided 
unless it is made by the debtor (1) with intent to 
defraud, and (2) will have the effect of injuring the cre- 
ditor." And Art. 2023 says : " Hypothec cannot be 
acquired, to the prejudice of existing creditors^ upon the 
immovables of persons notoriously insolvent, or of traders 
within the thirty days previous to their bankruptcy." 
That is, as the present judgment holds, the hypothec is 
valid as between the parties, and even other creditors 
cannot attack it unless they are prejudiced by it. 



In Darling v. City of Montreal^ the Superior Court, 
Montreal, Doherty, J., May 4, 1893, held that a special 
assessment to defray the cost of an improvement in the 
city of Montreal, must be based upon the values of the 
properties declared to be benefited. An assessment roll 
not based on the values of the respective properties 
subject to the assessment, but made on the principle of 
dividing the whole area into sub-divisions and assessing 
each sub-division at a fixed rate per superficial foot, 
entirely irrespective of the values of the properties 
therein contained, is, it was held, contrary to the pro- 
visions of section 228 of the Montreal City Charter, (62 
Vict., ch. 79), and will be annulled. As the assessment 
rolls in several cases have been based upon the same 
principle of superficial area instead of values, th6 decision 
affects a number of expropriations, and will, it is under- 
stood, be brought before the Court of Appeal. 



THE LEGAL NEWS. 375 

Far the second time within the year the bar of Montreal 
has sustained a very serious loss. During four and forty 
years the Hon. Mr. Laflamme, whose death occurred on 
the 7th instant, after a short illness, has been one of its 
busiest members. Speaking from personal observation 
during thirty- four of these years, we are inclined to be- 
lieve that no voice has been more frequently heard in the 
courts, no face and form more constantly met in the legal 
orbit, than those of the brilliant advocate who will now 
be seen there no more. Mr. Laflamme was an excellent 
illustration of a type of lawyer unfortunately too rare. 
He possessed a firm grasp of the great principles of the 
law ; he selected and applied with unerring promptness 
ihe principle which must control the case before him, 
and his judgment was sound and keen. In the difficult 
and important casps concerning successions, wills, and 
civil rights generally, he not only enjoyed a large practice 
in his own office, but his services were constantly in re- 
quisition as counsel by his confreres. With rheerful 
assiduity ho supported an intellectual strain and accom- 
plished an amount of work which, looked at in the total, 
set'ms enormous. Yet such was his devotion to his call- 
ing that he did not appear to feel the toil as much as 
younger men around him. About two years ago, for the 
first time, we heard him remark that the work of the 
lawyer is hard. Like other able men who have passed 
away within the last twenty years, he no doubt began to 
feel, when past the age of sixty, the physical exhaustion 
which often follows the exciting conflicts of the courts. 
Mr. Laflamme, however, to the last held his ground. He 
appeared recently in cases before the Privy Council and 
the Supreme Court, and in the last term of the Court of 
Appeal acted as counsel in a complicated case. Though 
confined to the house for a week only before his death, 
his health and strength had been perceptibly failing for 
two years previously. Mr. Laflamme was specially loved 
by the younger members of the profession. To many of 



376 THE LEGAL NEWS. 

them he was well known as a lecturer in the law faculty 
of McQ-ill University, and ta>all he was uniformly kind 
and considerate. In all his professional relations he was 
a shining example of courtesy and generosity. His death 
is keenly regretted by the whole bar, and among those of 
equal years leaves a void which cannot be filled. 



It is a striking illustration of the wildness of popular 
impressions as to the gains of advocacy that Mr. Laflamme, 
like most of the able lawyers who have departed in recent 
years, seems to have died a poor man. Messrs. Carter, 
Doutre, Kerr, and others v^ho might be mentioned, were 
all successful lawyers and fully occupied with important 
business during thirty or forty years. Yet in no case did 
the toil of the law bring them much more than the 
modest income which sufficed for the needs of their 
families. 



Judges in England are not always remarkable for cour- 
tesy to counsel, but it is so short a time since Lord Jus- 
tice Davey quitted the ranks of the profession that we 
are somewhat surprised to read in the Law Journal, of 
London, the following : ** Lord Justice Davey to Mr. 
Oswald, Q.O. : ' What is the exact point of law which 
you are obscuring by your eloquence ? ' " 



BE LAIR V. LA VILLE BE MAISONNEUVE-- 
INJUNCTION— EIGHTS OF RATEPAYER. 

[Conoladed from p. 370.] 

But it was further contended that the article wa8 not limitative, 
that the court might issue injunctions in other cases not therein 
specified, or that at all events the court at common law and iiTe- 
spoctive of the speciul provisions regarding injunctions, had 
power to issue a provisional order, pending any suit, to ensure 
the parties being maintained in the respective positions occupied 
bjr tbem at the time of its institution until final judgment. 



THE LEGAL NEWS. 377 

That such power exists in the court irrespective of the Injunc- 
tion Act would seem to be established by the jurisprudence of the 
country. It was so held in Bourgoin v. M, N. C, Railway Co., 19 
Jurist, p. 57, by the Court of Appeal, and by the Superior Court 
in Carter v. Breakeu, 2 i). L. R, p. 232. 

But it is perhaps premature to decide whether or *not such an 
injunction or suspensory order can issue at all, until it be first 
ascertained whether or not the party applying for it is in a posi- 
tion to urtk for it, assuming the court to have the power to issue 
it, whether under the Injunction Act or at common law. 

It is not pretended here that the works complained of are being 
done upon the property or lauds of the petitioner, neither is it 
claimed that they are being so done in violation of any contract 
made with him, nor that from them results or will result any 
special damage to him. The defendant, the Boyal Company, is 
sought to be restrained from doing work upon the property of 
the municipality, alleged to be in violation of a contract of said 
municipality wilh an outside party, and which, it is said, will 
result in damages to the said municipality. 

Now, if we take these pretensions as being proven, and assume 
that they constitute a case where, at the instance of the party 
having a right to ask for it, the court has a right to issue an in- 
junction or suspensory order, who is it that has a right to restrain 
such works, or to ask for the writ or oixier restraining them ? 
Clearly the municipality has that right, should it choose to exer- 
cise it. Here it does not do so. Has the rate-payer or elector of 
the municipality the right to do so in his own name, merely as a 
rate-pajer, and without showing any interest personal to himself, 
Le.y that the works are injurious to him m anj sense other than 
that in which what is injurious to the municipality may be said 
to injure every one of its rate-payers ? 

This is the question which must first of all be decided, for if it 
should appear that even assuming plaintiff to be entitled to the 
other conclusions of his action on the merits, i,e., to have annulled 
the resolution of the 15th October last, and the contract based 
upon it, or assuming such resolution and contract to be absolutely 
null and non-existent, he has not the right to restrain the doing 
of the works complained of, then clearly he cannot have a right 
to suspend pendente lite, works which he would not have a right 
to permanently enjoin, or cause to be demolished had he suc- 
ceeded in his action on the merits. 



878 THE LEGAL NEWS. 

Now it appearR by the evidence and is matter not disputed by 
either party, that the works sought to be restrained are being 
carried on upon the public streets of the town of Maisonneuve, 
and consist in the digging of holes in the said streets, planting 
of posts therein, stringing of wires on such poles — all of which 
it is claimed is being done without right or authorization by the 
company defendant, and injures and impedes said streets, causing 
damage to said municipality, both by the obstruction of said 
streets, and by exposing it to claims in damages on the part of 
a rival company claiming a right to do these works. 

Assuming this to be established, assuming the resolution 
granting the contract to the company defendant, and the con- 
tract itself to be null, the position of that company would then 
be that of a person unlawfully trespassing upon the public streets, 
placing obstructions thereon and carrying on work thereon 
which would probably amount to a public nuisance. 

Has a rate-payer, as such merely, the right to restrain such 
assumed unlawful action on the pail of the company ? To whom 
belongs the right of action to restrain or remove obstructions 
upon property in the public domain, as in this case upon the 
public highway ? 

The question is not a new one in our jurisprudence. It has 
presented itself a number of times for decision, though not 
so far as the court has been able to ascertain, in cases where an 
injunction was applied for before the works were completed, but 
in cases where the demolition of works already done, and which 
were alleged to obstruct public highways, either roads, or naviga- 
ble rivers, was sought. 

And it would seem safe to say that it has been uniformly de- 
cided that, save where the obstruction complained of, caused 
some special damage lo the party complaining distinguishable 
from that suffered by the public generally, he had no right of 
action to abate the nuisance; that such action belonged to the 
public generally, and should be instituted by a public officer 
qualified to speak for the public generally, (who might be moved 
thereto by private persons acting as relators) or, under our 
municipal system, in the case of obstructions in roads, might also 
be taken by the municipality, which is declared proprietor of 
the roads, and is such for certain defined purposes. 

Thus the Privy Council in the xase of Broum v. Gugy (14 
L.C.R, p. 220) lays down the law of Lower Canada as to 



THE LEGAL NEWS. 3^9 

the right of action for demolition of any work erected without 
license on the public domain : '^ An officer suing on behalf of the 
public has a right, at his own instance or on the application of 
any person interested, to cull for the demolition of any work 
erected without license on the public domain, and he is no more 
required to prove that the erection has occasioned actual damage 
to the public than a private person who complains of a wrongful 
invasion of his property is obliged to prove that it haw occasioned 
actual damage to him. J^ut although such officer may, if he 
thinks proper, take proceedings to abate the nuisance, he is not 
obliged, nor is it in all cases his duty to interfere 

'^ If the public officer refuse to interfere, an individual whosuf- 
fQv» injury is not prejudiced ; he has still his action privie, by 
which he may recover damages for injury already sustained, and 
the abatement of the cause of such injury for the future. The 
public and private action are said to be not only independent of 
each other, but essentially distinct^in their object. The fact 
that the place where the work is erected is public property, is of 
course very important in both cases, in regai*d to the right of the 
defendant to do what he has done, but it does not, according to 
the law as we can collect it from the authorities, supersede the 
necessity of the plaintiff in a private action proving that he has 
sustained injury by the work special to himself, and beyond that 
which is common to the public at large, and this, as we have 
already stated, the plaintiff in this case has failed to do." 

The case was one en denonciatian de nouvel ceuvre, seeking the 
demolition of an alleged obstruction to a navigable river, the 
plaintiif being a riparian proprietor, and claiming, but not prov- 
ing, special damage resulting from the alleged obstruction. 

This judgment was followed by the Court of Appeal in a case 
oi' Bourdon k Benard et aL, (15 L.C.J , p. 60) where it was held 
" Que le droit de faire disparaitre les obstructions et empi^te- 
ments sur les chcmins et rues publiques appartient exclmivement 
aux municipalit^s, et que les particuliers ne po<<sMent pas ce 
droit d'action ii moins qu'il ne leur en r^sulte des dommages rdels 
et sp^ciaux.'' This was the case of two proprietors, resident in 
Boucherville, complaining of an encroachment by defendant upon 
the public street of the municipality, and asking its removal. 
The encroachment was not denied and the case turned entirely 
on the question to whom belonged the right of action. 



380 THE LEGAL NEWS. 

In rendering the judgment Caron, J., (p. 62) says : '* Lee 
autorit^s additionnelles prodaites depuis qae la cause est en 
d^lib^r^ et surtout la decision de Brown v. Gugy me font croire 
que les demandeui*s n'avaient pas Taction qu'ils ont port^e ; que 
ne soaffrant personnelleraent pas autremcnt que le reste du public, 
c'^tait a Tautorit^ charg^e de ddfendre les droits de ce public 4 
prendre les d-marches ndcessaires pour le prot^ger des empiMe- 
ments qui pouvaient @tre commis k i<on prejudice." 

And Badgley, J., concurring, says, (p. 64) (after expressing a 
strong opinion that had it not been for the effect of the 
municipal law vesting the roads in the municipal corporation, 
such an action might have been taken as a popular action by a 
private individual,) '^ but the municipal law has taken its street 
authority into the power of the municipality alone, and the popu- 
lar action can no longer avail to individuals; they may compel 
the municipal authorities to enforce the removal of encroach- 
ments on the public thoroughfare, but they cannot, any longer, 
themselves enforce the removal/' The main considirant of ihe 
judgment I'ests on the absence of right in an individual to bring 
an action of this kind. 

In Bellv. The Corporation of Quebec, 7 Q.L.R, p. 103, another 
case of an obstruction in an alleged navigable river, their Lord- 
ships of the Privy Council reaffirm the doctrine laid down in 
Brown v. Grugy^ and after assimilating the position of riparian 
proprietors on a navigable river to that of proprietors of land ad- 
joining a highway, hold that no action lies by such a proprietor 
foi* the removal of obstructions in such navigable river, in the 
absence of proof of special damage. 

The doctrine seems likewise to be fully recognized as being in 
accordance as well with English law, as with our own by the 
different text-books on the subject of injunctions. 

It would seem from these decisions abundantly clear that an 
individual showing himself to eufl^er no greater injui-y fiom an 
obstruction to the public highway than that common to the 
public generally, has no right of action to cause the removal of 
such obstruction, or the abatement of the nuisance thereby 
created. And there seems to be no good reason for holding that 
what he would not have a right to cause to be removed if placed 
on the public property, he has a right to prevent being placed 
there. 






THE LEGAL NEWS. 881 

But it was argued that inasmuch as under sections 100 and 
698 of the JJfunicipal Code, (and 4H89 Revised Statutes) plaintift^ 
as an elector had a right to demand the annulment of the resolu- 
tion on which the contract under which the works in question 
were being done is based, it necessarily follows that, as such 
elector, he must of coui-se have the right of having the contract 
based on such resolution also annulled, and the works being dono 
thereunder arrested, and those already done demolished. 

No authority was cited bearing out this extension of the rights 
conferred upon a municipal elector by the sections referred to. 

The court sitting here is not called upon to deal with the 
question whether or not the sections cited give to an elector the 
right, not only of demanding as against the members of the 
council; his representatives, the annulment of an illegal resolu- 
tion, but the further right of exercising the righi of aciion of the 
municipality against a third pei*son to have annulled a contract 
entered into by said municipality with sueh third person in 
virtue of an illegally passed resolution. 

This question will present itself for decision upon the trial of 
the principal case upon its merits — which ease is not now 
before the court. 

For the present what is to be dealt with is the pretension that 
because the law gives an elector a right to demand the annul- 
ment of a resolution, it also gives him a ri;;ht to demand that 
any works being done by a third person claiming to act under 
such resolution be arrested, and those done, de.-troyed. 

Wow, having reached, as the coui-t has, the conclusion that 
were defendant, the Eoyal Company, without an}' pretence of a 
resolution or contract authorizing them so to do, placing their 
poles and wires in the streets of Maisonncuve, plaintiff would 
have no right to restrain them by injunction, it would be an ex- 
traordinary position if he should have greater rights against a 
party acting under, at all events, the color of right given him by 
a resolution and a contract, both binding on the municipality till 
annulled, than he would have had against a person acting with- 
out any pretence of right and in open defiance of municipal 
authority. 

This is a conclusion which it is impossible to arrive at, and yet 
it 18 the logical consequence of adopting the position in this re- 
spect contended for by plaintiff. 



382 THE LEOAIi NEWS. 

The reasoning which leads to such a conclusion cannot but be 
faulty. And, in fact, in this case it is based entirely upon the 
iissumption that the law must have intended, in allowing the 
right of an elector to obtain the annulment of a resolution of a 
council, to give him, once that annulment obtained, the right to 
exercise all the actions which might result therefrom in favor of 
the municipality. Now the law certainly does not say that it so 
intends, and surely if such hal been the design of the legislator 
he would have said so clearly and distinctly. Nor is the court 
aware of any system of logic, in which it is i ecognized ar* an 
axiom, that because one has a right to what may serve as the 
means to many ends, one is therefore entitled to all those ends 
to which it may be a means. Because I, as an elector, am given 
by the law the right to have annulled the illegal resolution passed 
by the councillors, and because such annulment relieves the 
municipality from the obligations purporting to be imposed upon 
it by such resolution, it by no means follows — in the absence of 
express legislation to that effect, that 1 have the right to exercise 
against third parties all the actions which the municipality so 
freed may have to exercise. On the contrary, once the resolu- 
tion is annulled^ and the municipality discharged in consequence 
from any responsibility, liability or obligation in virtue of it, 
my right of action would seem to be at an end, and it would then 
devolve upon the officers of the municipality charged with that 
duty to prevent encroachments on its property in virtue of any 
pretended rights under such annulled resolution. As said by 
Judge Badgley in Bourdon & Benard sibovo cited, "individuals 
may compel the municipal authorities to enforce the removal of 
encroachments upon the public thoroughfare," (we might add, 
and other municipal properties or rightn) ** but they cannot 
themselves enforce the removal." 

For these reasons the court is of opinion that the plaintitf has 
shown no sufficient interest, and consequently no right to obtain 
the writ of injunction prayed for by him, that neither suffering 
nor even pretending to suffer or apprehend any damage whatso- 
ever peculiar to himself, and different from that common to all 
the public by the alleged unlawful works of defendant in the 
streets of Maisonneuve, he is, in asking for a writ of injunction, 
taking upon himself, without authorization, the protection of the 
public rights and those of the municipality, and in reality en- 



THE LEGAL NEWS. 388 

deavoriDg to exercise a right which, if it exist at all in this par- 
ticalar case, beloni^n exclusively to and can alone be exercised 
by the municipal authorities of Maisonneure, and, in their de- 
fault, if at all, solely by a public officer properly nuthorized to 
represent and act for the general public, and not in any cane by 
a private individual in plaintitT's ponition, and in consequence 
the injunction is dissolved. 

This case being before the court only on the writ of injunction, 
and evidence and argument on the questions raised by the 
principal action having been gone into only for the purjjose of 
establishing whether or not plaintiff's case was prima facie suf- 
ficiently strong on the merits to justify the issue of the writ of 
injunction", and the court having reached the above conclusion as 
regards the absence of the right to the injunction, however strong 
plaintiff's case on the merits, the court is not merely not called 
upon in this case, but has no ritrht to pronounce any opinion 
upon the numerous other iraportsint questions raised by the 
pleadings. 



EFFECT OF CULTURE ON VITALITY. 

So far from intellectual work diminishing vitalit}', ihc chiefs 
of all intellectual professions are, and in recent times have 
been, men who have passed the ordinary term of yenrs with un- 
diminished powers. In politics, the principal leaders whom this 
generation have known, have been Karl Ilussell, L »jd Palraer- 
ston, Lord Beaconsfield and Mr. Gladstone, and every one of the 
•three was at seventy in full vigor, while the last, at eighty-three, 
is coercing a reluctant party to endoi*sc a policy which the people 
of England dcterminatoly reject. The great statesman of the 
continent. Prince Bismarck, remains at seventy-eight a force with 
which his government has to reckon ; while the will of Leo XIII, 
an exceptionally intellectual pope, at eighty-three, is felt in every 
corner of the world. The most intellectual and successful soldier 
of our time, the man who has really thought out victories, Mar- 
shal von Moltke, was an unbroken man at ninety and more years. 
No men dare compare themselves in literary power with Tenny- 
son or Carlyle, Victor Hugo or Von Hanke. and they all reached 
the age which the author of Eeclesiastes declared to be marked 
only by labour and sorrow, as also did Pj'ofessor Owen, whose 



384 THE LEGAL NEWS. 

life was one long labor in Hcientific- inquiry; and so has Sir 
William Grove, one of the most strenuoas thinkers whom 
even this age has produced. We might lengthen the list indefi- 
ni'ely, but to what use, when we all know that the most 
intellectual among lawyers, historians, novelists, theologians, 
physicists, politicians and naturalists survive their contempoi*- 
aries, usually with undiminished powei*s. In statistical ac- 
counts the clergy, whose occupation is wholly intellectual, 
rank first among the long-lived. A little lower down in the 
scale, the most hale men among us are those who have been doing 
intellectual work, often extremely hard work, through all their 
lives, and who are still so strong that all the professions are 
affected by their resolution not to retire, and the inability of the 
younger men to invent a reason for making their retirement 
compulsory. To say that they are picked lives is false, for they 
are so numerous that the intense vitality of the old and intel- 
lectual actually aftects the organization of society; and to say 
that the uninteilectual flourish equally well is not provably true. 
— London Spectator. 



THE LATE HON. R. LAFLAMME. 

The following notice of some of the principal incidents in Mr. 
Laflamme's career, condensed chiefly from the biographical work 
of Mr. J. C. Dent, is believed to be substantially coj-rect. 

On the 15th May, 1827, Toussaint A. Bodolphe Laflamme, was born at 
Montreal. His father was Toussaint Laflamme, a merchant in good 
standing in the commercial capital of Canada, and his mother was Mar- 
guerite Suzanne Thibaudean, of Pointe Claire — a lady who traced her 
descent from one of the best families of France. Her father had lived at 
Grand Pr^ at the time of the expulsion of the Acadians, and he in 
common with his compatriots, was forced to leave the land of his birth 
for reasons which are familiar to all students of the history of the French 
domination in America. He wss educated at St. Sulpice College, and 
while there exhibited remarkable powers of study and love for the 
classics. When the time came for him to make choice of a profession, 
he selected that of the law. He entered the office of the Hon. L. T. 
Drummond, Q.C., afterwards a judge of the Court of Queen's Bench. 
Here he made rapid progress, and in 1H49 was called to the Bar of Lower 
Canada. Two years before this, however, and while barely in liis twen- 
tietli year, }ouug Laflateme was elected to the responsible {)ost of presi- 
dent of the InstitutCanadien of Montreal, a society which he had been 



THB LEGAL NEWS. 385 

xnaioly instrumental in founding;, and which, in its time, exercised con- 
siderable influence on the mental activity of the Province of Lower Can- 
ada. He was afterwards one of the founders of VAvmir newspaper, and 
a leader of the Rouge party. 

In 1852 the Fay^ was started as the organ of the moderates, while 
VAvenir continued its advocacy of ultra-Liberal views. Mr. Laflamme 
was very active as the professional adviser of the Seigneurs who claimed 
their indemnity in virtue of the Seigniorial Act, 1857-8. While one of 
the editors of VAvenir, he had done much to bring about a settlement of 
the vexed seigniorial question. He had thus for a long time made the 
Subject a special study and was well qualified to act in the capacity of 
counsel for the Seigneurs, a position which he filled with great ability and 
judgment. On several occasions he appeared before the Judicial Com- 
mittee of the Privy Council in England. In 1856 McGill College, Mon- 
treal, conferred on him the honorary degree of B.C.L., and in 1873, that 
of D.C.L. In 1863, he was created a Queen's Counsel. In 1875 he was 
offered a puisne judgeship in the Supreme Court~-an honor which he 
declined. 

Though Mr. Lailamme for many years interested himself in politics and 
intimately associated himself with the marked public events of his time, 
it was not until the general elections of 1872 that he was returned to 
Parliament He was elected the representative in the Commons for 
Jacques Cartier, and in 1874, he was chosen by acclamation. In Novem- 
ber, 1876, he was sworn of the Privy Council, as Minister of Inland Rev- 
enue, vice the Hon. Mr. Geoffrion, and was re-elected on November 28. 
On the 8th of June, 1877, Mr. Latiamme became Minister of Justice, a 
position which he continued to hold until September, 1878. He also 
introduced a bill for further securing the independence of Parliament. 
His scheme for the abolition of the office of Receiver-General and the 
creation of an Attorney- General who should be a Cabinet Minister and 
preside over the law department along with the Minister of Justice wus 
rejected by the Senate. During the session of 1878 an act was passed 
under his advice, amending the Supreme Court Act, so as to increase the 
number of the terms of the court from two to four, also to regulate appeals 
from the lower provinces. A bill to amend the Election Act was also 
introduced by the deceased at this time and became Uw. During his 
long professional career he was regarded by his professional brethren 
with respect and confidence. 

For forty years he txjcupied a very high position at the Montreal Bar, 
and there were very few important cases in which he was not consulted. 
He gave up the whole of his time to civil law and many of his opinions 
will stand the test of time. He was an eloquent and forcible speaker in 
French as well as in English. He WiiK a man of very pronounced views 
on religious, social as well as legal questions. Undoubtedly the greatest 
case he was connected with was the famous Guibord case, in which he 
^cted as counsel for the Instiiut Canadien, along with his friend? the lata 



386 THE LEGAL NEWS. 

Joseph Doutre, QC. The success achieved in this case made their 
names famous in legal circles throughout the Empire and beyond it. 

Since the overthrow of the Mackenzie administration in J878, and Mr- 
Laflammt's defeat in .lacques Cartier county by Mr. D. Girouard, M. P., 
the deceased gave up the whole of his time to his practice, which was a 
large one. A libel suit against the Toronto Mail, in which he recovered 
large damages, attracted a great deal of attention some yean ago. Mr. 
Laflamnie, among other things, had been accused of being a party to the 
famous ballot box stuffing case of St Anne*6, generally known as " La 
trappe de Ste. Anne." This event occurred during the last election of Mr. 
Laflamme in Jacques Cartier county, when some of his over-zealous par- 
tisans, without his knowledge, tampered witli the ballot box in one of the 
polls, substituting a large number of voles in his favor, thereby ciianging 
the result of the election. In the (celebrated case of the Jesuits against 
the Afail for libel, Mr. Lailamme acted as counsel for the latter. Last 
year he went over to England to plead before the Privy Council. Mr. 
Laflamme in 1865 acted along with Messrs. Abbott and Kerr in the 
defence of tlie St A 1 ban's raiders. He was twice elected batonnier of the 
Montreal « Bar. 

Mr. Laflamme died at Montreal, Dec- 7th, after a very short illness. 



JUDICIAL PENSIONS. 

Until 186i< (says a U. S. contemporary,) there was no provis- 
ion in the Statutes of the United States for peDsioning Judges 
who had grown old in its service. In that year a statute was 
passed b}' Congress providing that : "When any Judge of any 
Court of the United States resigns his office, after having held 
his commisbion as such at least 10 years, and having attained 
the age of 70 years, he shall, daring the residue of his natural 
life, receive the same salary which was by law payable to him at 
the time of his resignation." (Rev. Stat. U. S., § 714.) 

Although Congresfci deemed it wise to pension the Judges of the 
United States, few of the States have followed in its lead in pro- 
viding retiring pensions for their Judges. In New York the 
Constitution provides : " But no person shall hold the office of 
Justice or Judge of any Court lunger than until and including the 
last day of December next after he shall be 70 years of age. The 
compensation of every Judge of the Court of Appeal, and of every 
Justice of the Supreme Court, whose term of office shall be 
abi'idgcd purauant to this provision, and who shall have served as 
such Judge or Justice M» years or more, shall be continued dur- 
ing the remainder of the term for which he was elected." (Sect. 



THE LEGAL NEWS. 387 

13, Art. 6, of Cons. Stat, of N. Y., Revised Stat., &c., fi38.) 
This falls far short of a penHion for life. In 1885 the Legislature 
of Massachusetts passed ** An Act to provide for the retirement 
of Justices of the Supreme Judicial Court, and for their compen- 
sation in certain cases,*' which provided as follows: **Any Jus- 
tice of the Supreme Judicial Court, having held his commission 
as such at least ten consecutive years, and having attained the 
age of 70 years, who shall resign office, shall, during the residue 
of his natural life, receive three-fourths of the salarj^ which was 
by law payable to him at the time of his resignation, to be paid 
from the Treasury of the Commonwealth, in the same manner as 
the salaries of acting Justices are paid." (Supp. to Pnb. Statu, of 
Mass., 82-88; Chap. 162, page 287.) Excepting these two pro- 
visions, there seem to be no laws providing pen^iun8 for retiring 
Judges throughout the different States. 

In Pennsylvania, there is no provision, but rumor says an Act 
is to be introduced at the pi'csent session of the Legislature to 
provide pensions for Common Pleas Judges who have served 30 
years. Some pension law is much needed, but it should not 
provide alone for one set of Judges. The Justice-* of the Supreme 
Court serve for one term of 21 years, and cannot be re-elected, 
(Sect. 2, Art. V. Cons. Penna. Purd. 34) and man}' of them, after 
giving up large and lucrative practices at the Bar, find them- 
selves, if, indeed, they live through the hardships of their term, 
at a period of life when their labors should be done, forced to 
enter the arena again. 



RESPONSABILITJ^ DU PROPRIETAIRE D'UN 

CHIEN ENRAGA 

Une d^pSche de Nimos dit: — En casde morsure par un chien 
enrage, le propii^taire de Taniroal est-il responsable vis-^-visde la 
personne mordue? Si oui, dansquelles proportions? 

Les jugCH de Nimes viennent de se prononcer sur ces deux 
points dans une affaire as^ez singulidre. En 1891, M. Guiot, 
entrepreneur k Marguerittes, fut mordue par un chien apparten- 
^nt k M. Jalaguier, riche pi*opri^taire ; il n'y attach^ d'abord 



388 THB LEGAL NEWS. 

aucune importance ; mais au bout d'un certain temps ii ressentit 
des doulcurs qui n'^taient autres que les premiei's ^ymptdmes de 
la rage. M. Guiot caut^risa la morsure, s'embarqua pour Paris 
et arriva a Tlnstitut Pasteur. 

L^, en d^pit du traitement, il fut en prote ^ des crises violentes, 
qui ^branlk*ent fortement son syst^me nerveux. * M. Guiot ne 
succomba pas, mais ii sortit de I'institut avec une roaladio ner-> 
veuse doilt il ressent encore les effets. 

A son retour, n'ayant pu s'entendre sur la question des dom- 
mages-int^r^ts avec M. Jalaguier, il lui intenta un proems. Le 
tribunal condamna M. Julaguier cb payer au plaignant la somme 
de 11,000 francs. 

Dans son audience d'bier la cour confirmait cette decision. 



GENERAL NOTES, 

Appointment : — J. L. Teirill, Q.C., of Shorbrooke, has been 
appointed sheriff of the district of St. Francis, in the place of 
E. R. Johnson, deceased. 

The Judges and Contemporary Plats : — We entirely concur 
in the licenser of plays* objection to personal allusions to judges 
on the stage. The occasion of his condemnation was the produc- 
tion of a comic opera at the Prince of Wales/ in which *Sir 
Alfred May,' a Divorce Court judge, is a leading character. 
Originally his name was ' Sir Francis Ma}',' which,of course, waK 
a pointed hit but not very witty allusion to Sir Francis Jeune. 
Mr. Piggott did quite right in insisting upon this and other per- 
sonal allusions being struck out of the piece, for while there is 
no reason whatever why judicial institutions should be placed 
beyond the reach of satire, it is consistent neither with the 
dignity of the Bench nor of the stage that living judges should be 
caricatured. There is need to emphasise this truth at the present 
time, because in several plays of late stage judges have ' made 
up' in obvious imitation of a distinguished occupant of the Bench. 
r—Lavo Journal, {London.^ 



INDEX TO REPORTS 



AND 



ABSTRACTS OF OASES. 



Pagb. 
Absencb 

Caratorship to abeentee 305 

Partition— Art. 104,0. 267 

Action Confesboirb. 

Real servitude— Registration— Procedure 277 

Action bn Compj aintb. 

Possession— Art. 5551 R. S. Q 204 

Actio Pauuana. 

Complicity of purchaser — Fraud 17.*> 

Real rights— Fraud— Setting aside sale— C. C. 1032 et aeq 123 

Action, Possessory. 

Plea — Possession by sufferance 126 

Adoitbd Child. 

Removal by parents — Claim for maintenance 147 

Act of Pabliament. 

Statement contained therein — Force of— Schedule under Seign- 
iorial Act— Seigniory of Mingan 67 

Agquiescbnob. 

Judgment — Negotiation as to execution 91 

Agkbbmbnt. 

Construction of— Way —Timber— Removal of 201 

Alimbntaby Allowancb. 

Artl69C.C 147 

Appeal. 

Contempt of court — Criminal proceeding 134 

Court, powers of— Interlocutory judgment 204 

Jurisdiction — Trial by jury— Disposal of questions of fact by 
court 130 

Municipal matters— 53 Vic. (Q.), ch. 71, s. 699 — Exemption 
from taxes as consideration for services to be rendered. . . • . 120 

To Privy Council— Delay 91 

To Privy Council— " Future rights" 106 



390 INDEX TO CASES. 

Page. 
To Supreme Court — Amount in controversy — Jurisdiction. . . . 

3()9, 310, 311 
To Supreme Court — Limitation of time — Final judgment .... 117 
To Supremo Court— Right of 199 

ASSBBSMBNTS AND TaZES. 

Insurance Compauy — Net profits— Deposit with Government 

— Statement to assessors 131 

Ontario Assessments Act 315 

Taxation of railway — Powers of assessors 132 

Attorney and Client. 

Revocation of powers of attorney — Claim of attorney for costs 

/ (The case referred to is McClanaghan v. Gauthier) 360 

Right to remuneration in excess of official tariff 161 

Withdrawal from suit — Action for fees — Disbursements 159 

Baiuff. 

Demand for removal of— Fraud 266 

Bailment. 

Storage of wheat— Loss by fire — Owner's risk. . . • 212 

Bank. 

Rate of interest — Recovery of amount paid in excess of legal 

rate 86 

Boundaries. 

Surveyor's line— Township line 172 

Breach of Promise 352 

Builder's Privilege. 

Arts. 1695, 2013, 2103, C. C— Expert— Duties of— Proc^-verbal 

Burning in effigy. 

Minor — Responsibility , 160 

Capias. 

Personal indebtedness 188 

Secretion— Chose jug^'e — Costs i 88 

Carrier. ^ 

Payment of freight — Right of retention 190 

Right of retention for payment of carriage— Art 1679, C. C. . 91 
Certiorari. 

Summary Convictions Act — Vagrancy — Costs— Amended con- 
viction— R. S. C, c. 157, s. 8 124 

Chattel mortgage (Ontario). 

Preference 116 

Children, Custody of. 

Unlawful detention — Habeas Corpus 178 

Church-warden. 

Election of— (Juo warranto — Inscription en faux 1 76 



INDEX TO OASES. 891 

^ ,^ Page. 

CiBcuiT Court. 

Jarisdiction 

Clubs. 

License to sell liquors '"" 

Costs— Discretion of Court -^^* 

Damages — Distraction of costs • ^^" 

Judgment granting damages for slander ^^ 

Commissioners Court. 

Commissioner unable to read or write— Certiorari ^^ 

Community. * 

Clause of realization— Art UWo, C. C 30^ 

Continuation of— Art. 1323, C. C ; ^^0 

Succession— Renunciation to succession— Registration H6 

Company. 

Liquidator— Status ^"'^ 

Provisional directors — Responsibility ^°^ 

Winding up Act — Liquidator, Status of, before (Janaxiian 

courts 

CONDICTIO INDBBITI. 

Lien de droit— Demurrer— C. C. 1047 1 1 1 

Constitutional law. 

Administration of Justice— Constitution of Provincial Courts 
—Powers of Federal Government— Appointment and pay- 
ment of judges— B. N. A. Act, s 92, s.s. 14 49 

Forgery— Summary trial by police magistrates — Ultra vires . . Sq 

Contract. 

Created by advertisement 165 

Fraud and simulation 56 

Interpretation 204 

Option under contract— Interference by court 142 

Sale— Error— Nullity 54 

Sale — Non jperformance— Damages 188 

Sale of land — Building restriction 283 

Specific performance — Time — Extension — Waiver — Rescis- 
sion 5 

Contraintb par oorpb. See Cobrcivb Imprisonment. 

Costs. 

Discretion of Court « 54 

See Pbocedurb. 

Criminal law. 

Attempt to commit an assault 187 

Commitment— Error- Vagrancy 186 

Conspiracy 9 

Coroner's jury- Plea of * * autrefois acquit " 1 87 

Extrajudicial confessions 219 

Grand jury— Challenge to the array— C'hallenge to the polls . . 85 

Homicide by necessity 231 



892 INDEX TO CASES. 

Cbown. Paob. 

Prerogative of 32 

Cbown and Subjbot. 

Parol contract between— R. & C, c. 37, 8. 23 348 

Crown Domain. 

Disputed territory — License to cut timber — Implied warranty 
of title — Breach of contract — Damages 26 

Damages. 

Granted for libel are seizable 173 

Deed. 

Action to set aside — Undue influence — Evidence 201 

Delegation of payment. 

Acceptance — Evidence • 122 

Deposit. 

Necessary deposit— Keeper of boarding house — Negligence. • • 1S5 
Dog. 

Responsibility of owner of mad dog 387 

DOVATION. 

Don mutuel— Property excluded but acquired after marriage. 200 

Ecclesiastical law. 

Cur^ — Notice of action — Refusal of sacraments — Registration 
of baptism— Art. 22, C. C. P 188 

Elbotion law. 

Election expenses — Action for 145 

Election petition — Separate trials — R. S. C, ch. 9, ss. 30 and 50 

— Jurisdiction 115 

Note given for money lent candidate 206 

Nullity of contract— R. 8. Q. 425 — Evidence 83 

Personal expenses of candidate 108 

EviDBNOBi 

Admission of party— Divisibility— Art. 231, { 3, C C. P 146 

Commercial case— 54 Vic. (Q.), ch. 45— Interrupted employ- 
ment-Resumption of— Salary — Presumption 144 

Exchange. 

Nullity — Damages- Costs 143 

EXBCUTOB. 

Costs of action to remove 195 

Testamentary executor— Inventory 152 

Experts. 

Recovery of fees 155 

Expropriation. 

Award of arbitrators — When interfered with by the court ... 171 
City of Montreal — Just indemnity^Costs of witnesses and 

advocates 185 

Just indemnity— Country residence 185 

Quality of appellant— Street dedicated to public use 143 



INDEX TO CASES. 898 

J'edsral asd Pbovincial rights. Pags. 

Title to lands in British Ck>lumbia 138 

Gaming Transactions. ^ 

Action for money paid in payment of lost bets upon request 

of losers 93 

" Missing word " competitions 223 

Pledge — Money deposited with broker as margin on speculative 
stock transactions — Action to recover balance of deposit — 

Interest 56 

Action by broker for balance due by customer speculating on 

margin 294 

Garantte. 

Action en garantie iimple 327 

Gift, Conditional. 

Expropriation -Acquiescence— Forfeiture for breach of con- 
dition — Abandonment by Crown •• 136 

Husband and wife. 

Alimentary allowance — Separation de corps 153 

Claim of wife for aliment 108 

Personal action — Authorization to ester en justice 161 

Petition for alimony 191 

Separation from bed and board — Alimentary allowance — Re- 
conciliation 121 

Transactions between— Endorsement of notes by wife— In-. 

terest— Arts. 1301, 1483 C. C 142 

Wife binding herself for husband — Note — Holder in good 
faith— Art 1301 C. C 112 

HYPOTHSa 

Payment of hypothecary claim by purchaser 53 

Registration — Art 2098 C- C— Variance between English and 
French versions 249 

Information of intrusion. 

Appropriate remedy — Injunction to reconvey 134 

Insolvbnoy. 

Abandonment— Curator's costs— Landlord's pri vilege 107 

Knowledge of by creditor — Fraudulent preference — Pledge- 
Warehouse receipt — Novation 113 

Sale of notes by curator— Transfer 359 

Insurance, Firb. 

Short prescription— Art 2184 C. C 171 

Recourse of insurer— Subrogation in rights of assured 306 

Insurancb, Guarantee. 

Notice to insurer of defalcation ^Diligence , 119 



894 INDEX TO CASES. 

Insubancb, Lifil Pagb. 

iDsnrauce money payable to widow— Party interested dying 

before insured — Re-marriage of husband 159 

Insurance payable to wife— Divorce^JBffect of 267 

Intkrbst. See Bank 86 

Jurisdiction. 

Cause of action — Intervention — Arls. 114, 157 C. C. P 55 

Incidental demand 16(» 

Judge in Chambers— Decision of foreign court 189 

Jury trial. 

Absence of jurymen — Postponement — Alias venire facias. • . . 8K 

Misdirection — Verdict against evidence — New trial 152 

' Verdict against evidence — Non suit 85 

Lessor and Lessee. 

Action for resiliation of lease — Jurisdiction 17o 

Alterations in leased premises**. 139 

Capias — Secretion 146 

Clause prohibiting sub- letting — Assignment of lease 83 

Damage by fire to premises leased — Resiliation of lease 193 

Damages— Art*. 1614, 1627 C. C 177 

Occupation iiith permission of owner — Nature of contract. . . 174 

Privilege of lessor 26-3 

Privilege of lessor— Boarder— Art. 1622 C. C 178 

Responsibility of lessor to the lessee of the lower story for 

damage caused by water from the upper story 88 

Saisie-gagerie where no rent is due 249 

Stipulation of lessor ^hat he shall not be bound to make re- 
pairs 160 

Libel and Slander. 

Allegations in petition — Justification 89 

Damages— Criticism of conduct of public man 124 

Jurisdiction 8;> 

l^ersonal attack on Attorney General— Pleading — Rejection 

of evidence — Fair comment — (reneral verdict — New trial . . 97 

Flight and bad reputation of plaintiff— Mitigation of damages. 305 

Pleading 21<i 

Plea to action 306 

Privilege of defendant examined before fire commissioners . * 266 

Libel in plea — Allegation of fraud — Probable cause 177 

liibel in plea— Malice and want of probable cause— Attorneys 139 

Libel in plea— Damages— Justification 294 

License law. 

Intoxicating liquors — Action agAiost hotel-keeper for sale to 

person after noUce— Art. 929, R.aQ 260 



INDEX TO OASES. 895 

LlTBRARY CONTRIBUTOR. PaQB. 

Article accepted and revised in type 180 

LmOIOUS RIGHT. 

TrangfiBr of— Arte. 1486,1683 C. C 174 

Location tiokbt. 

Conditions not fulfilled— Delay granted by departjnent — Can- 
cellation by error 84 

N 

Malicious prosecution. 

Reasonable and probable cause — Inference from facts proved 
— Functions of judge and jury 50 

MANDAMU& 

Against magistrate 110 

To compel mayor of municipality to sign contract^ResoIn- 
tion of council 92 

MARrriMB LAW. 

Collision— Re-hearing 253 

Masters' lien— Inland waters— R. S. C-. c. 74 and 75 — Colonial 
Courts of Admiralty Act. 1890 -Admiralty Act, 1891— Con- 
struction 29 

Marriage. 

Minors— NuUiOy 268 

Marribd W0MKN*8 propbrty. 

Separate estate 282 

Married Woman. See Husband and Wife. 

MAflTTER AND SERVANT. 

Defective system in using machinery — Injury to workman— 
Liability of master —Notice to master 102 

Dismissal of employee— Damages 53 

Mbchanicb* ijbn. 

Suspension — Waiver Taking promissory note for amount . . 6 
Mbrcantile agency. 

False report as to solvency of firm 181 

Minister of the Crown. 

Promise to promote legislation 344 

Music hall. 

Custom of music hall profession 220 

MONTRBAL, Cmr OF. 

Carters' licenses — Non-residents 177 

Charter — Change of street level — Juriediction 150 

Expropriation — Powers of commissioners— Statement filed by 

city 86 

Sale of substituted immovable 194 

Special assessment to defray cost of improvement— Basis of. • 374 
Mortgage. 

Railway bonds — Second mortgagee — Purchase by 98 



396 INDEX TO CISES. 

Municipal oobporation. Pagb. 

By-law— Street railway '. 286 

By-law — Submission to rate-payers t 118 

Confirmation of odrtificate for sale of intoxicating liqnon — 

Counctllors interested— Arte. 135, 136 M. C 138 

Contract onder seal — By-law — £zecatory oontract — Enforce- 
ment 99 

EzecutioD of by-laws — Mandamus 155 

Local improvement — Notice to rate-payers — By-law 202 

Negligence — Responsibility 146 

Ownership of roads and streets 286 

Private street— Responsibility 174 

Public road— Expropriation — Possessory action 203 

Responsibility— Negligence— Dangerous sidewalk 157 

Sidewalk— Responsibility 157 

Sidewalk — Accident — Damages — Warranty 1 43 

Water rates — Diacount by prompt payment — Property exempt 

from municipal taxation 129 

Municipal sLscnoN. 

Petition to annul— Preliminary objections— Amendment- 
Delays Ill 

Municipal law. 

Appeal from judgment quashing resolution of council ^ . 185 

By-law — Invalidity— Action for assessment — Exemption 158 

Commissioners Court — Recovery of monies levied for works 
—Jurisdiction— Arts. 898 and 1042, M. C 177 

MuNiciPALrr^'. 

Injunction by rate-payer — Amended declaration — Service. . . 108 
Resolution and by-law— Notice 190 

Nkgliqbncb. 

Passenger ^vessel- Accident in using wharf— Proximate cause 318 

Proximate cause— Danger voluntarily incorred 319 

Street railway — Height of rails • 286 

See Municipal Corporation : Rb8)*on8ibility. 

Nbw trial. 

Verdict against evidence 9t> 

Notarial deed. 

Signed in absence of notary —Nullity 84 

Obugation with term. 

Action before expiry of term for alleged diminution of secur- 
ity— Art 1092 C. C 192 

Ontario municipal act. 

Construction of bridges 315 

Qrdnanob lands, Lbasb of • 344 



lEDBX TO CASES. 397 

Pabochial law. Page. 
Election and resignation of churchwatdens — Notice of meet- 
ings — Ciuitom '. •• 120 

Parishes. 

Canonical and civil erection and division — Jurisdiction of the 
courts— R S. Q. 3371-3381 85 

Patent. 

Want of novelty — Infringement 345 

Combination — Old elements—New and useful result — 
Previous use 281 

Patbrnity. 

Action in declaration of — Alimentary allowance — Seduc- 
tion — Prescription 172 

Partnership. 

Agreement prohibiting partners from giving a thiid party an 

interest in the business 292 

Action against secret partner 2^7 

Participation in profits — Liability to third parties 150 

Partnership monies. 

Sequestration of— Con(r« tettre '. 278 

Penalty. 

Literary and artistic property — Action for penalty — Allega- 
tions '. .••• 153 

ParmoN op right. 

Damages sustained by an accident on a government rail- 
way — Burden of proof— Latent defect in axle of car — Undue 
speed in passing sharp curve • 28 

Physicians and surgeons, College op. 

R. S, Q. 3977— Construction of— Discretion of Medical Board. 53 

Pilotage AUTHonrrY. 

Investigation of charges against pilots 358 

Pleading. 

Action to set aside deed— Demurrer 145 

Pledge. 

Abuse of— Art 1975, C. C—Conditional obligation— Art 1084 

CC 176 

Bank — Commercial matter — Knowledge of insolvency — 
Articles 1036, 1488, 1966a., C. C 55 

Practice (Ontario). 

Master's office — Reference to assess damages 103 

Renewal of writ— Setting aside order for 281 

Trial— Disagreement of jury— Questions reserved by judge . . 314 

Prescription. 

Action for bodily injuries — Minor — Interruption by judicial 
demand 304 



398 INDEX TO OASES. 

Principal and agbnt. Pagb. 

Provisional directors of projected company 184 

Pkitilbob. 

Hypothec— Non-registration — Effect of 52 

Prochdure. 

Action brought by inmate of lunatic asylum, but not inter- 
dicted 192 

Action for rent and resiliation of lease accompanied by 

saisie-gagerie — Exception to the form 249 

Action informd pauperis 159 

Actions against corporations which exceed their powers — 

Attorney-General— Mandamus — Intervention 247 

Additional stamps on document insufficiently stamped 289 

Alien— Summons— Art. 27, C C. 248 

Alimentary allowance — Alimentary debt — Art 658, C.C.P. . 125 

Attachment by garnishment 192 

Attorney — Distraction of costs 123 

Capias— Septuagenarian — Damages to hypothecated property 265 

Company — Liquidator — Authorization to sue 265 

Contestation of municipal election — Cumulation 248 

Costs — Distraction of— Opposition — Interest of party when 

distraction of costs has been awarded to bis attorney 122 

Deposit in review 175 

Description of plaintiff in the summons 192 

DlmUment — Inscription 268 

Enqu^te — Foreclosure 160 

Essential document of record — Filing of 172 

Evidence— Commercial matter 187 

Examination of party— Art. 251a, C. C. P 248 

Exception to the form — Summons of absentee -- Bailiff's 

return — Nullity 144 

Execution — Concurrent seizures 174 

Execution — Guardian — Rule against — Option 153 

Execution — OppoMtion — Venditioni exponas 287 

Execution — Seizure of movables— Sale suspended by opposi- 
tion— Art. 578 C. C. P. 194 

Folle enchtire — Defective description — Art 71 7 C C. P. 156 

Filing of exhibits— Arti 103 C.C.P 266 

Incidental demand — Action pro toc^o 193 

Incidental demand — Deposit for review 191 

Inscription en faux— Change of return day of a writ — Action 

by married woman authorized by judge • 189 

Inscription in review by the representative of the party de- 
ceased 187 

Initial of name— Summary matters 291 

Intervention — Lien de droit 176 

Judgment quashing municipal by-law — Appeal 151 



INDEX TO CASES. 399 

Paob. 

Lioenae law— Circuit Court 156 

Opposition-- Costs 175 

Opposition — Effects exempt from seizure — Option of debtor — 

Description of effects— Arts. 556, 560 C. C. P Ill 

Opposition a fin de charge — Pledge — Art 419, C. C— Agree- 
ment— Effect of— Arts. 1977, 2015 and 2094, C. C 4 

Peremption of suit — Interruption 154 

Peremption of suit— Requite civile 264 

Plea— Art. 138. C. C. P 206 

Quality afesumed by plaintiff in writ 200 

Requite civile — D^sistement — Costs 147 

Revision of taxation of bill of costs 148 

Saisie-arr^t before judgment— Petition to annul seizure — In- 
scription 110 

Saisie-gagerie accompanied by saisie-ari:6t before judgment 

— Service of writ on defendant — Endorsement of writ 303 

Security for costs — Defendant filing requite civile, 359 

Security for costs — Revision of order condemniug plaintiff to 

furnish security 87 

Service— Exception to the form 157 

Service — Person residing at hotel — Art 57 C. C. P 207 

Service of documents 304 

Service — Action qui tarn 290 

Sheriff— Fees 268 

Summary matters 161 

Summary matters — ArtS99aC. C. P 148 

Summary matters— Curator — Exception to the form — Sig- 
nature of attorney — Arts. 5(5, 8S7 C. C. P 152 

Summons— Exception to the form— Standard time 58 

Summons— Foreign Company 88 

Venditioni exponas — Order of court or judge — Vacating of 

sheriff's sale 312 

PKOUIBITION. 

Deposit of security 248 

Promissory note. 

Accommodation — Bad faith of holder — Conspiracy 280 

Form of—** Sixty days after date we promise to pay " and 

signed by manager of company — Liability of company on. 51 

Parties to — Dilatory exception 144 

Pr6te-nom — Compensation 119 

Prescription — Insolvency of maker 145 

Prescription — Interruption 173 

Relation between parties to — Prescription 107 

Warrantor— Protest 267 

PUBUO OFFICK. 

Usurpation-C. C. P. 1016 108 

Tax imposed by article 1213 RS. Q 57 



400 INDEX TO CASES. 

PUBUC WOKK. PaGB. 

Constniction of— Interference with public rights — Damage to 
individaal enjoyment thereof 135 

Injury to property on— Negligence of Crown's officer — Liability 
—Remedy 27 

Quebec, City of. 

Municipal by-law 105 

Railway. 

Accident to passenger— Damages — Negligence. 312 

Cattle killed on track while straying — Absence of cattle- 
guards — Liability of company 158 

Damage to animals— 53 Vic. (D.), ch. 28, s. 2 > . .. 59 

Farm crossing — Obligation to construct — Future rights — 

Appeal 106 

Fire caused by sparks from engine — Responsibility 288 

Tax on— Nova Scotia Railway Act 316 

Railway Company. 

Bonus to— Bond — Condition — Breach 118 

Carriers— Liability as 217 

Damages — Limitations 30 

Failure to assist sick passenger to alight 166 

Ticket — Contract— Condition— Damages— " Via direct line". . 29 
Railway carrying goods through other railways as agents- 
Loss of goods on agent line— Liability of principal Railway 
company 30 

Railway expropriation. 

Compensation for damage resulting from operation of railway 293 

Rape. 

Resistance-»-Evidence 320 

Ratepayer. 

Right to complain of street obstruction — Injunction 360 

Registration. 

Art20i>8, C. C 249 

Hypothec granted by purchaser before registration of his UUe 

—Priority 306 

Registration of title within thirty days previous to bank- 
ruptcy—Art. 2090, C.C 373 

Saisie-arr^t — Transfer 153 

Rentes constitu^bb. 

Representing cerm ei rentes. 166 

Responsibility. 

Error of name — Unfounded arrest — Damages 125 

Explosion of powder 289 

Loading of steamer — Accident — Neglect of usual precaution. . 200 

Negligence • 146 

See Municipal Corporation ; Negligence. 



INDEX TO OASES. 401 

Rkvibw, Court of. Page. 

i^ower to modify amount of damages allowed by court below. 87 

Revocation of judgment. 

Prescription^-Diaayowal of attorney ad litem 145 

River. 

Floatable— Dam— Slide 107 

Sale of nfMOVABLBB. 

By joint proprietor of bis sbare to oo-proprietor— Partition . ... 187 
By wife separated as to property without authorization- 
Action by hnsbaud to annul — Art 183, C. C 175 

Clause of ** franc et quitte "—Verbal evidence 191 

Licitation— Setting aside of 105 

Mining rights — Non-apparent servitude 58 

Sale— Obligation— Registration 88 

Sale d rimSri — Simulation 57 

Sale by Sheriff— Description of immovable 91 

Sale for manicipal taxes wper non domino — Nullity — Prescrip- 
tion 151 

Sale— Simulation 216 

Wairanty— Copstituted rents representing cens et rentes. — 166 
Warranty of acts and promisee of vendor only — Knowledge 

of cause of eviction 109 

Sale of movables. 

Apparent defect— Examination of goods by buyer— Reason- 
able diligence 90 

Conditional sale — Right to retake possession for non-payment 

of price — Abusive exercise of this power. 104 

Contract— Delivery— Acceptance 313 

Contract in writing — Modification — Parol evidence 125 

Delivery— Possession 91 

Malicious seizure — Damages 87 

Sale of seed grain— Warranty 141 

Sale with term — Unpaid vendor— 8aisie conservatoire 205 

Seigniorial Act. 

Schedule made under „ ()7 

Seigniorial Law. 

Fishing rights 110,170 

SBRvrruDB. 

Division wall— Replacement of 194 

Not declared or apparent — Action for diminution of price .... 141 

Transfer— Signification 305 

Shares of Stock. 

Sale— Declared dividends 296 

Sheriff. 

Action against— Trespass— Sale of goods by insolvent 202 



402 INDEX TO OASES. 

Shipping. Page. 

Bill of lading—Freight— Art. 2454 C.C 156 

Charter party — Date fixed for sailing— Breach 90 

Collision— Negligence 346, 347 

Saine conservatoire of vessel — Last voyage- Privilege of the 

dernier iquipeur — Art 2383, ? 5, C. C 57 

Salvage — Action by owner alone 190, 20(> 

Simulation. 

Seizure against party— Not registered owner— Procedure 55 

See Sale. 

Sleeping ( -ar Company. 

Liability for loss of baggage • • 207 

Statute. 

Application of— Maintenance of road — Injunction 98 

Construction of— 54 Vic. (Q.), ch. 9()— " Is authorized to pay " 
—Preamble .^ 106 

See Act of Parliament. 
Street. 

Effacement of— Quality to complain C -47 

Substitution. 

A cceptance — Revocation before acceptance — Trust 121 

Forced sale of substituted property 288 

Institutes— Community — Arts. 947, 949, C. C •'>4 

Powers of curator— Opposition to seizure 1 60 

Succession. 

Possession of universal legatee — Dilatory exception to stay 
action during delays for making inventory and deliberating 
— Continuation of action — Costs of dilatory exception 140 

Supreme Court. See Appeal. 

SURFIYSHIP. 

Appeal bond— Novation — Chose jug6e— Debt of succession ... 193 
Promissory note— Action by co-surety against another co- 
surety 340 

Telegraph Company. 

Power to cut over-hanging boughs — Trespass 112 

Title to land. (Ontario ). 

Purchase at tax sale— Cloud upon title 101 

Tenant for life 284 

TOLIi- BRIDGE. 

Franchise of— Free bridge— Interference by — Injunction 47 

TRANSACriON. 

Error in law — Rescission 148 



INDEX TO CASES. 403 

Trespass. Pa(ie. 

By subtenanean sqaeezing Ha 

Trees on neighbour's land — Art. 529 C C 1 54 

Wood cut illegally on the land of otheis and converted into 

building material — Saisie revendication 1 40 

Trust. 

Void for uncertainty 2 

Trustbb. 

Will— Executors and trustees under 284 

Turnpike tbustbbb. 

Seizure of tolls 107 

Tutor 

Sub-tutor—Action for re^aoval— Art 282 C. C 26:5 

Tutor aitd minor. 

Sale by a minor after coming of age, to his tutor — Account of 
tutorship— Distribution of money —Art 31 1 C. G 124 

Wages. 

Exemption from seizure — Workman and labourer — Engineer 
— R. 8. Q., 6931— ArL 628, par. 5 C C. P 52 

Warranty in deed. 

When without implying any conventional warranty 167 

Warranty op Assignor. 

Garantie de fournir et de faire valoir — Recourse of assignee 
—Insolvency of debtor 125 

Wedding Presents. 

Engagement rings r>2 

Will. 

Captation — Suggestion 89 

Construction of— Usufruct— Sheriff's sale— Effect of— Art. 711 

C. C. P 46 

Construction of— Divisi6n of estate 279 

Form of— Legacy — Vagueness and uncertainty 92 

Form of— Will made abroad— Legacy — Interpretation 307 

Holograph — Words written by a different hand — Nullity 186 

Legacy —Presumption— Art. 890 C. C 161 

Legacy — Vagueness and uncertainty— Trusts— Intervention- 
Procedure 122 

" Sound mind "—Captation 82 

Winding up Acnr. (Dominion). 

Dominion and Provincial laws — Claim under Quebec law — 30 
Liquidator— Status 205 

Witness. 

Privilege— Costs 265 

Workmanship. 

Claim for value of— Destruction of object before acceptance of 
work 216 



GENERAL INDEX. 



Page. 
Appointments. 

King, Mr. Jastice 296 

Sedgewick, Mr. Ju8tio& 95 

Terrill, Q. C, J, L., gheriflf of St Francis 388 

Bbhrino 8ba ARBrrnATiONi Thb 245 

Bbhring 8ba Awabd 271 

Breach of Promise of Marriage 352 

Bl'rmiko at the Stake ";• 353 

Canadian Criminal Code. 

Comments of Mr. Justice H. E. Tascherean , 45 

Collision— He- hearing 253 

Colonial Titles « 250 

Contempt of Court 225 

Coroners' Inquests 217 

Coroners' Inquests IN England 370 

Cross-examination as an Art. 297 

I Current Topics. 

' AcXioTiB en garantU rimj^ 827 

Administration of the law, The Lord Chancellor on the. 182 

Advocates, Action for professional services 33 

Appeal business at Quebec. ! 327 

Archibald, Mr. Jastice, Appointment of 358 

Assault, A curious case of. 342 

Bebring Sea Arbitration 181 

Bethune, Q. C, Mr. Strachan — Fiftieth anniversary 166 

Birthday honours 184 

« Bogus concerns *' 183 

Business during vacation 262 

Carrier's neglect of sick paaseoger 166 

Contract by advertisement— Advertised promise of roward on 

I conditions 165' 

Country judges and the Bar. 295 

Criminal Code of Canada, Mr. Justice Taschereau on the. .... 65 

Gains of advocacy 376 

i Gambling stock speculation 294 

Holidays, Suppression of 65 

L. N. Index. 2 



406 QENEBAL INDEX. 

Pagb. 

Homicide by necessity 197 

Impertinenoe of a judge • 376 

Inquiry offices, Liability of 149 

Intoxication as an excuse for crime S 

Judgments of one year 262 

Judicial appointments in Montreal 357 

Judicial Re-oiganization Bill. • . - 66| 296 

Judicial Salaries in Qeoiigia 342 

King, Mr. Justice, Appointment of. 296 

Laflamme, The late Hon. R 376,384 

Lotteries and bazaars • 843 

Medical men in tbe witness box 214 

Members of Legislatures, Privileges of 213 

Mercantile agency, False publication by 181 

Mingan case, Tbe 65 

Montreal Court House 261 

Montreal Harbour Commissioners — Delegation of functions. • 358 

Official Law Reports of Quebec 1, 36 

Parishes, Canonical and civil erection of 3 

Partnership, Tbe law of. 34 

Promissory notes purchased from the curator to an insolvent. 369 

Proprietary clubs ^ 198 

Queen's Counsel, Appointment oL 149 

Quebec legislation of 1893 184 

Railway company, Responsibility of 182 

Railway expropriation — Damages caused by operation of 

railway 293 

Registration, A Question of— Roch v. Thouin 326 

Registration of hypothec— Interpretation of Art 2090 C. C • • • 373 

Revised English Statutes • 4 

Russell Sage case, The.. ..' 358 

Security for costs 369 

Shooting buiiglars 341 

Spanishbar, Strike of the 213 

Special assessments for improvements in Montreal 374 

Substitution of attorneys— Costs 359 

Taschereau's Criminal Law, Third Edition • 197 

Trust void for uncertainty 2 

Women, Admission of, to the legal profession 1 

Custody of Children— Thb Gtossaob and Gyngall gasxs 178 

Custom OF THB MusioHall.....^ 220 

Editob and Contributor • 180 

Effbotof Culturb on Vitality • 383 

Enoubh Tbstamentary Law ••• 61 

Extra judicial Confessions • 218 



> 



GENERAL INDEX. 407 

Paob. 

Gaming 93 

Genbral Notes. 

Appeals from interlocutory judgments 112 

Barbed wire fences bill 228 

Death sentences of nine years in England 228 

Diplomatic immunities 196 

Disposal of convicts' estates in England. 32 

Divorce in France 195 

Eccentricities of practice in Virginia 323 

Engagement rings 32 

Happily ended 227 

Hints to students f. 356 

Hypnotism 324 

Judge Advocate General 31 

Judges and the Law 227 

Law Journal, London, Enlargement of. 96 

Long pending case, A 195 

Mesmerism 64 

Mistaken identity 308 

Offences committed by minors 324 

Personal statistics 64 

Photographing the White City 259" 

Prerogative of the Crown 32 

Publicans' Parlours and Music 31 

Remarks after verdict 259^ 

Scuttling ships 308 

Security of debenture-holders 31 

Sport on the Thames 260 

Trespass by subterranean squeezing 63 

Verdict set aside as being against weight of evidence 96 

Why the case was lost 356 

Women at the Bar 356 

H0MICDa)BBY NBCBSSTFY 229 

iNJUNcnoN— RioHTB OF Ratbpayeb 360,376 

InTBRNATIONAL ABBriRATIOM 224 

JuDioiAL Pbnsions 386 

Judicial Kboboanization 329,348 

JusTiCB IN Franob 354 

Ladtin Coubt, a 163 

Law of Conspibaoy — Rbgina v. Mbbcibb and Pagaud 9 

Law's (Thb) Dblat in England and Frangb 256 

Lawybbs AND Marriaok 250 

LiABiLrnr of Slbbping Cab Compant fob loss of bagoagb. 207, 221 



408 GENERAL INDEX. 

Paob. 

Mad Dog, Rbbponsibiuty of Ownbb 387 

^'MiflfiiNa WosD^CoMPSTinoNB 223 

Obituary. 

Abbott, Q. C, The late Sir J. J. C 327 

Blatchford, Mr. Justice 258 

Laflamme, Q. C, The late Hon. R 375, 384 

Patterson, Mr. Jostice, The late 262 

Taschereao, Mr. Justice, The late 343 

Williams, Montago, The late 3 

Qffkncbs commttted in Pabuambnt 269 

PuBUCATIOKa 

Mignault, Q. C, P. B., on *• Le Droit Paroissial " 243 

Taschereau, Mr. Justice, on the Criminal Code of Canada. . . . 215 

QuBBio BusiKBSS Tax, Thb 232 

QUBBM'sCoUNBBLyAPPOIMTHBNTOr 161 

8aLB OF 8HABBB— DlYIDENDS 296 

Shbebrookb^ Thb latb Lobd 162 

BuBETYBHiP, Thb Law OF 340 

WoMBN AT THB Bab. • 371 



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