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On the 12th October, in the morning, a petition was presented in Chambers to Mr. Justice Monk, for a writ of Habeas Corpus to bring up Coote in order that he might be liberated on bail. Mr. Justice Monk referred the petition to Mr. Justice Badgley, and it was then and there determined by the two judges to grant the prayer of the petition and they fixed the bail, Coote in the sum of $2,000 and two sureties in $1,000 each, exactly the same amount of bail as before trial. Mr. Justice Badgley signed the order for the writ, the bond was acknowledged before him, and Coote was thereupon discharged.
The wording of our Statute regulating Reserved Cases upon the subject of retaining the accused in custody or discharging him upon bail is as follows: "and in either case the court before which the case trial was had in its discretion shall commit the person convicted to prison, or shall take a recognizance of bail with one or two sufficient sureties, and in such sum as the court thinks fit, conditioned to appear at such time or times as the court shall direct, and receive judgment or render himself in execution, as the case may be." (C.S.L.C. c. 77, s. 57).
The Habeas Corpus Act thus provides for the issue of the writ of Habeas Corpus in vacation "and if any person is committed or detained as aforesaid, for any crime (unless for felony or treason, plainly expressed in the warrant of commitment) in the vacation time, and out of term or sessions such person (not being convicted or in execution by legal process) or any one on his behalf may complain to one of the Judges of the Court of Queen's Bench who .... shall upon request, made in writing by such person, or any one on his behalf .... award and grant a writ of Habeas Corpus under the seal of the court of which such judge is a member directed to the officer or person in whose custody the party so committed or detained is returnable immediate before the said Judge." *
It will thus be seen that in the Court reserving a case, is alone vested the power of admitting to bail the criminal whose case is so reserved. Further no Judge in vacation has the power of discharging on bail a criminal convicted of felony. In this case the Court of Queen's Bench, Crown Side, did not order Coote to be admitted to bail; and yet a Judge in. Chambers, with the approval of one of his brethren discharged Coote after he had been convicted of felony.
* C. S. L. C. c. 95, s. 4.
Apart from the want of jurisdiction apparent in this matter and. in these illegal proceedings, a want of discretion, to use the mildest term possible, was manifested by the Judges of the Court of Queen's Bench in the affair. No one knew better than Mr. Justice Badgley that there was nothing in the grounds of the motion reserved to disturb the verdict. A lawyer of six months standing who is not aware of the fact that the improper reception of evidence on a trial is not a ground for arrest of judgment, is ignorant of one of the first principles of his profession, as for the other reasons urged in the motion, they were merely put in as padding and not argued by Coote"s counsel. Mr. Justice Badgley must therefore have been intimately convinced that the result of his reserved case would be the rejection of Coote's motion in arrest of judgment and yet he admitted him to bail. To save an unfortunate criminal, who had been convicted of a felony for which he might be condemned to fourteen years Penitentiary, from an imprisonment of two months in gaol, two of the Judges of the highest Court in the Province agree that it is expedient and proper to discharge him upon a bail-bond, which, in all probability, is not worth the paper on which it is written.
For more than ten years bills have been found against many persons for arson, but no case has within that time, save Coote's resulted in a conviction; yet, thanks to the judges of the land, the terror with which incendiaries had been stricken is immediately dissipated, and arson is regarded as an innocent diversion in which any one possessing influence to obtain a reserved case may indulge with perfect impunity.
William H. Kerr.
DIGEST OF RECENT DECISIONS.
Montreal, 29th April, 1871.
Burnett vs. Monaghan, et al.—With reference to Monaghan's note maturing on the 11th February, Lanctot, the endorser, gave 10 the holder the following memorandum: "My note maturing the 10th instant, good for ten days after date." The note referred to was maturing on the eleventh. No other note existed. No protest was made except on the 24th February. Held by the Circuit Court, St. Hyacinthe, that the endorser was liable, and-this judgment confirmed in Review. Mondelet J. diss.
Kingley vs. Dunlop.—A special replication (rfplique) is. admissible without the permission of the Court. Mackay and Torrance, JJ. Mondelet, J. dissenting.
Wicksteed et Corporation of North Ham.—lo. A front road cannot be less than 36 feet wide, French measure. 2o. At a sale made under the Municipal Act by a Secretary-Treasurer, he is incompetent to buy for himself. Sale set aside. Mondelet, Mackay and Torrance, JJ.
Montreal, 30th June, 1871. Adams vs. McCready.—A purchaser of real estate on which exist mortgages which are prescribed, cannot plead fear of trouble by reason of these mortgages. Mondelet, Torrance and Beaudry, JJ.
Conlan vs Clarke.—A wife has no action against her husband for alimentary allowance on the ground that she cannot be comfortable in the house of her husband. She must reside with him. Mondelet, Mackay and Beaudry, JJ.
Corporation of Montreal vs Donigani.—Mrs. Selby and her brother made a donation of the usufruct of certain real estate to their father. Held that they did not thereby relieve themselves from the obligation to pay the city assessments. Mackay, Torrance and Beaudry, JJ.
Martineau vs. Beliveau.—The proprietor of a horse and carriage may be liable for the damages caused by the negligence or fault of the lessee or borrower driving the said horse. Mackay and Beaudry JJ. Torrance, diss.
Montreal, Sept. 30th, 1871. In re Morison and Dame Ann Simpson, claimant vs. Henry Thomas, Contg. Party.—The decision of Mr. Justice Torrance, recorded at page 243 of La Revue was reversed in Review, Mackay J. dissenting. Messrs. Justices Mondelet and Berthelot were of opinion that section 57 of the Insolvent Act of 18C9 did not apply to dower and other gains de survie dependent upon the contingency or condition of survivorship to the husband, these special rights of our civil laws not being expressly mentioned in the provision of the Act. Mr. Justice Mondelet further remarked that even if they had been so mentioned, the provision of the Act would be unconstitutional, the Parliament of Canada having no control over the civil laws of the Province. Mr. Justice Mackay was in favour of Mrs. Morison's claim, because it was founded upon our Insolvent law, interpreted in the way in which the English Courts had interpreted a similar section in the English Statute, the way in which the Courts in Ontario, or New Brunswick, would interpret it.*
Lacombe vs. Ste. Marie <y al.—An information for perjury contained in three depositions prepared by counsel was laid before two justices of the peace before arrest.. After the arrest no examinations were made of witnesses, nor did the accused confess; yet he was committed to jail, there to be kept till discharged by course of law. The accused was discharged on Habeas Corpus, and afterwards for want of prosecution. Action in damages against the Justices for $5,000. Held, reversing the judgment oi Superior Court, that the commitment not being based upon information reduced to writing before the magistrates, was null, and that the magistrates were responsible for the false arrest. Judgment for $ 100 and costs. Mackay, Berthelot, Beaudry, JJ.
Whyte vs Bisson <$• al.—A guardian under a writ of compulsory liquidation in Insolvency matters has a right to take out a saisie revendication against a seizing bailiff and the creditor, who, although well aware of the issuing of the compulsory writ, persist in holding the estate of the Insolvent under an ordinary writ of execution—in this case a writ of saisie gagerie. The bailiff, Mercier, was condemned, jointly and severally with the landlord, to deliver the estate to the guardian and to pay the costs. Mercier was further ordered by the Court, suo et propria motu, to be struck off the list of bailiffs of the Superior Court. Mackay, Torrance and Beaudry, JJ.
Montreal, 29th April, 1871. Lafondvs. Rankin.—The purchaser of the book debts of an Insolvent Estate cannot complain that some of these debts have been collected
* In the case of Morison, the assignment had been made under the Insolvent Act of 18G-1; but the claim was not fvled till 1870.
by the assignee previously to the auction sale, although the list of debts shewed no such collection when the sale was made. Mondelet J.
Lavoie vs. Lavoie.—Plaintiff being aware that the Defendant was a married man sued him in damages for seduction. Held that no action then lies. Berthelot, J.
Laini vs Clarke.—The word "months" which had been omitted in a note after the word " three " had been inserted by the holder without the knowledge of the indorser. Held, that this was not alteration, and that the indorser was liable. Torrance, J.
Exparte Lalonde for certiorari.—Under the Agricultural Act, the right of certiorari was taken away; but still the writ does lie if the conviction mention no reason for which it was made. Torrance, J.
Montreal, 31st May, 1871. Matthews vs. The Northern Assurance Co.—Introducing into the insured premises a gasoline machine of a dangerous character without the consent of the insurer is a violation of the policy. Mondelet, J.
Maguire vs. The Corporation of Montreal.—A corporation is not responsible for the negligence of others in leaving obstructions in the street, when it appears that the driver might have avoided the obstructions. Mondelet, J.
ValUe vs. Kennedy.—A simple clause in a lease against subletting without the consent of the landlord does not give rise to the immediate resiilation of the lease; the court will first grant to the Defendant a delay to re-establish things as before the sub-lease. In this case the sub-tenant vacated the premises before judgment, and the defendant was only condemned to pay the costs. Mackay, J.
Montreal, 30th Sept. 1871. Massawippi Valley R.R. Co. vs. Walker.—No stock of an incorporated Company can be called for, unless the conditions antecedent to such call have been complied with. Mondelet, J.
Brown vs. The Corporation of Montreal.—Action in damages for libel. The defendants demurred upon the ground that an action for libel did not lie against a corporation. Held that civil corporations are governed by the laws affecting individuals. Demurrer dismissed. Beaudry, J.
Montreal, 30th Sept. 1871. Dumaine vs. The Corporation of Montreal.—Held that a City Treasurer had no authority to take a note for City assessments. Mackay, J.
Campbell vs. The Grand Trunk Railway.—Notwithstanding notice of special conditions given by common carriers, limiting their liability