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and their knowledge thereof, they are responsible for the damage caused by their fault or the fault of those for whom they are responsible. Torrance, J.
COURT OF QUEEN'S BENCH.
Montreal, 9th June, 1871. Shaw vs. Laframboise.—Under a clause in a lease the tenant had promised to pay all the taxes on the premises, ordinary and extraordinary, foreseen and unforeseen during the lease. Held, that this clause did not comprize taxes for the widening of streets, for which compensation had been paid to the landlord. Badgley, Monk, Drummond, JJ. Dissenting, Duval, C. J. and Caron, J.
Proulx $ Dorion.—A intervened in a deed and agreed to pay a debt due to B, not a party to the document. B brings his action for the amount against A, without previous acceptance of the delegation. Held that B had no right of action. Duval, C.J., Badgley and Drummond, JJ. Dissenting, Caron and Monk, JJ.
Montreal, September 6th.
The Corporation of Montreal $ Doolan.—Rights of individuals against a corporation are governed by the French law, and according to that law a corporation is liable for the damage cansed by the assault and battery of one of its officers when on duty. In this cause, two policemen had illegally arrested and ill-treated a cab driver:
Held . That the Corporporation was liable in damages. Caron, Monk and Drummond.—Dissenting; Duval and Badgley.
Brown $ Lemicux.—That a lease of moveable property containing at the same time a promise of sale, dependent on the payment of certain instalments is a conditional sale, and therefore on non-payment-of the balance of the same, the vendor cannot proceed by saisie revendication against the purchaser. The action should be for resiliation of the sale. Caron, Badgley, Monk, Drummond, JJ. Dissenting; Duval, C.J. Messrs. JJ. Caron, Badgley and Drummond, would not, however, dismiss Plaintiffs demand for a condemnation against the' purchaser to pay the instalments due. Action maintained pro tanto, but saisie revendicalion set aside. Mr. Justice Monk, with the Court of Review, thought that in a saisie revendication no such condemnation could be made.
Corporation of Eton and Sogers.—Municipal corporations are responsible for injuries sustained by an accident at a certain bridge, which was not a public one, but was regarded as such.
Aitorney-Gtntral Ommet $ Hon. J. H. Gray et al. Held: That with preliminary pleas fyled in time, the fyling of pleas to the merits without demand is not a waiver by Defendant of the benefit of a preliminary plea, v. g. an exception cUclinatoire. Duval, C.J., Caron, Drummond, Badgley, J.J. Dissenting; Monk, J.
Montreal, 8th Sept., 1871. Grand Trunk Railway .J- Outman.—Notice of arrival of goods being given by the Company to the owners or consignees that they "remain here entirely at the owner's risk, and that this Company will not hold themselves responsible for damage by fire, the act of God. civil commotion, vermin or deterioration of quantity or quality, by storage or otherwise, but if stored, that a certain rate of storage would be charged for the storage of the goods," and which was paid to the Company by the owners.
Held: That though the liability of the Company as common carriers had ceased, by the arrival of the goods, the Company was still liable for damage as warehousemen and bailees for hire; but that in this cause the evidence did not show any negligence on the part of the railway company. Duval C.J., Monk and Stuart (ad hoc) 33. Contra, Badgley and Drummond, who held that by law negligence was presumed if damage shewn, and the onus of proof of care was on the Company, who had made no proof whatever to rebut the presumption against the Company.
Papineau $ Guy.—Monies deposited with the Prothonotary are held under judicial authority, and recourse can be had to the survivor of the then Joint Prothonotaries by a rule or summary petition to enforce payment, even by imprisonment or contrainte par corps. Per Duval, Caron and Polette ad hoc, 33. Contra, Badgley and Drummond, who contended that recourse should be by action only.
Brown $ La Fabrique de Montreal, or the Guibord case.
Mr. Justice Badgley: A mandamus or requele libellee attached to it, will be quashed and set aside if more than one duty or right, complete in itself, is demanded from the same party, who is not bound oi held in law to perform more than one of those demanded, and consequently as widow Guibord demanded civil burial—which duty was within the province of the Fabrique to perform—and also the registration of the burial—which duty belongs to the Curt alone— the proceedings are bad and informal, and must be quashed. The learned Judge was of opinion, however, that the writ of summons speaially ordered by the Judge to issue with requite libellie attached thereto and the order indorsed on the writ of summons, was sufficient.
Mr. Justice Caron: 1. That under article 1022 of the Code of Civil Procedure a writ of mandamus must be specific as in England. A simple writ of summons annexed to Petition containing all the necessary avernments, is not sufficient. 2. In this case the proceedings were illegally directed against the Fabrique; the burial as well as its entry in the register of deaths being within the province of the Curi alone, who was not in this cause. 3. That civil burial only was
Vol. I. " No. 4. demanded, and that the immemorial usage prevailing with respect td Montreal Catholic cemetery, and in all the Catholic cemeteries of this Province, under which civil burial was only made in that part of the cemetery reserved for the burials of non Catholics, known as le cimeHere del en/ans marts sans bapte'ne—was law, and should be enforced as such.
Mr. Chief Justice Duval: The proceedings were bad; 1. Because the writ was a writ of summons and not a writ of mandamus in the English form. 2. Because they were directed against the Fabrique alone, and not at the same time against the Cure of the parish. 3. Because the demand of burial in the Petition, conformement a Vusage ct a la lot, is vague and uncertain, it being known that there are two modes of interments recognized by law and usage, the civil and ecclesiastical.
Mr. Justice Monk: Interment in the Roman Catholic cemetery, conformiment a l'usage et a la lot, is an act partaking partly of ecclesiastical and partly of civil function. Courts of justice have no jurisdiction over the ecclesiastical part. The burial of Guibord being asked in that part of the ^emetery destined by ancient usage to the interment of those who alone are entitled to ecclesiastical burial, courts of justice therefore have no jurisdiction to order the same. As to civil burial it has been offered.
Mr. Justice Drummond was of opinion that as the demand was of an ecclesiastical or spiritual nature, courts of justice in this country, governed by a Protestant Sovereign, could not interfere, as they would have done before the cession to the British Crown, especially in face of the Treaty of Paris assuring the free exercise of the Church of Rome in Canada.
In fine, MM. Justices Drumm?nd and Monk were of opinion that the form of the proceedings was correct.
We are indebted to Mr. Colston for the following digest of cases lately decided in the City of Quebec:—
COURT OF QUEEN'S BEXCH
Quebec, 19th June, 1871.
l)e la Gorgendiire vs Thibodcau.—The 4th Vic. c. 3, s. 36, does not prohibit a wife from renouncing to the exercise of her hypothec for matrimonial rights in property sold by her husband, and such renunciation is valid and binding though subsequently she obtains a separation de biens from her husband. Dissenting, Duval C.J., and Drummond, J.
Harris $ Schowb et al.—The declaration herein alleged that on the 27th day of August, 1870, C. & J. Lortie made their draft at 3 days oa
J. Redpathi Son, Montreal, which they handed to Harris, who on tho 29th endorsed it over to Schowb et al ; that the latter presented it for acceptance on the 1st of September following, which was refused, and that said draft was protested for non-acceptance on the 8th day of September.
Held : That plaintiffs did not use legal and sufficient diligence in and about presentment and protest of the draft,and action dismissed. Dissenting, Badgley J.
Poulin Jf WurtHe.—The appellant, defendant in Superior Court, was served with the writ of summons on the 4th of November, the 15th of that month being the day of return, and his domicile being distant 19} miles from the Court House at Quebec, where he was ordered to appear.
Held: That the service was good, the delay between service and return being sufficient. There must be full five leagues in excess of the first five to give a defendant the right to an additional day.
Villeneuve .j' Bidard.—Juge: Que la demence, la folic et la fureur du mari ne sont pas des motifs qui peuvent justifier une demande en separation de corps de la part de la femme. Dissenting, Duval C.J., and Drummoud J.
COURT OF REVIEW.
Quebec, 4th May, 1871.
Mall vi Devany, 1360.—Payment on account of interest or principal interrupts prescription, and in commercial matters before the Code parol testimony of such payment was admissible. The payment, however, must be accompanied by such circumstances as would warrant a jury in inferring a promise to pay the balance.
A payment on account, therefore, by a person claiming a further credit of £20 is at most an acknowledgement of the debt less £20.
Bilanger vs Blais, 931.—The plaintiff held, without title, part of the unconceded lands of the Crown and made thereon considerable improvements. He subsequently ceded the same by donation duly enregistered to one Sans-Souci, subject to a life rent, for securing which Sans-Souci mortgaged the property in question. Sans-Souci obtained from the government a location ticket and subsequently sold to the defendant, who knew of the donation. The defendant afterwards obtained Letters Patent from the Crown in his own name. Action by Plaintiff en declaration d'hypotheque against Blais. Judgment for Plaintiff. Meredith C.J. dissenting.
28th June, 1871. Present:—Meredith C. J., Stuart and Taschereau JJ.
Joseph v, Turcotte, 641.—Prior to the proclamation declaring American silver uncurrent the Defendant made his note in favour of the Plaintiff, payable in silver at par. The note matured after such proclamation.
Held: That the proclamation did not affect subsisting contracts, and that a tender, which would have been accepted before it, was valid thereafter. Stuart, diss.
Pacaud vs. Provencher, 362.—Held: That a hypothecary action will not lie on a transfer which has not been notified to the original debtor.
Milot vs. Chagnon, 426.—Held: That where there was reasonable and probable cause for issuing a capias no damages will be granted though the capias had been quashed for defect in form.
Basin vs. The School Commissioners of St. Anselme, 456.—Notice of action must be given to School Commissioners before an action of damages can be brought against them.
5th October, 1871.
Sheppard vs. Dawson, and Dawson, oppt.—Under Art. 453, C. P. C, a party to a suit must after discontinuing any proceedings actually pay the costs incurred thereon by his adversary, before he can begin again. The obligation to pay costs in this case can only be extinguished by payment, and not v. g. by compensation. Stuart, dis.
Phillipsthal vs. Duval.—This case, an action of damages for slander, came before a jury and at the trial the defendant having examined no witnesses, the Court (Stuart J.) held that the Plaintiff had no right to address the jury in reply. On motion for new trial based on this and other grounds it was held, by Stuart J.: That under the circumstances no right of reply existed; by Meredith C. J.: That the refusal of the right to reply was no ground for a new trial, where, as in this case, no injustice had resulted from it. Motion dismissed. Taschereau, dis.
Quebec, 8th April, 1871. Hunt vs. Home Ins. Co., 1130.—A chirographic creditor has no insurable interest in the stock-in-trade of his debtor, and cannot hold an insurance against fire thereon. Stuart J.
6th May, 1871. Tardif vs. Gingras ^ Jobin contest., 658.—A supplementary distribution will be ordered, after homologation of a report, upon proof of error in the certificate of registrar, and that no hypothec exists in favour of the person collocated. Taschereau J.
Evanturel vs. Evanturel.—The clause in a will depriving a legatee of his legacy in case he contests the will, is contrary to public order, illegal and null, and will be regarded as comminatoire only. Taschereau J.