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7th October. Lemesurier vs. Ritchie, l.r>44.—The defendant pleaded to the action herein that the notes in which the action was based were not stamped as required by law. Motion by the Plaintiff for leave to affix the necessary stamps. Granted on payment of costs, and with privilege to defendant to plead <le novo. Stuart J,
Paquet vs. McKab, 820.—Held: that the reason assigned by the Plaintiff in his affidavit for a capias, for believing that the defendant— a person domiciled without the Province—was about to leave the Province with intent, &c, " que le defendeur est prut de partir dans son dit batiment pour faire voile pour l'Europe on autres parties du monde," is insufficient. Capias quashed. Stuart J.
A manuscript written nearly forty years ago, by L. Adams, advocate of the City of Montreal, now in the hands of our friend - Mr. Girouard, contains the following unreported decisions. We quote verbatim.
Ricard vs. St. Denis.—On an opposition claiming a privilege for rent the Court held that the opposant could only have a lien by verbal lease for three terms expired and the current one. 20th Oct., 1826.
Wilson vs. Spencer <$• Smith opp.—Judgment for rent on saisie gagerie. Execution issued, sale of goods advertised, but money paid before sale or on the day lixed, and returned into Court: opposant claimed a dividend on the ground of defendant's insolvency, and founded her demand on the circumstance of the goods not having been sold, but the debt paid, and there being no privilege upon money paid upon an execution for rent, but only on the proceeds of the sale of goods seized upon the premise's and sold. J'er curiam: Judgment must go for the plaintiff, and the opposition dismissed, on the ground that the money levied or paid represented the goods which had been seized, they having been given up and discharged in consequence. 20th Feb. 1828.
Gates $ al. vs. another.—Judge Pyke: an assignment by bankrupt estate vests in the assignees, who may bring action thereon in their own name without notice. No notice of assignment necessary, when debt remains due and not attached by other creditors, even on common assignments.
Olivier vs. BUanger.—On opposition afin de distraire on the ground that only bidders were the crier and bailiff. Per curiam: Sale must have been made or a new writ issued. The plaintiff had a right to bid either for himself or another, and the saisi had no right to complain if there are no bidders; he should have procured them. There is no necessity that there should be three, two, or more than one, if no friend appears. Opposition dismissed.
Stein vs. Seath Action for obstructing a navigable river. Per
curiam: No person can obstruct a navigable river with impunity, and award plaintiff £50 for injury done his raft. The removal not ordered, as the obstruction became more properly the object of public prosecution, and that part of demand dismissed.
McKenzie and Quebec Bank.—Hvld that when a trader in business ceases, and his debts remain unpaid, this is a/aillite which would exclude all preference. In Appeal, April, 1830.
Frost ir al. and Cameron and Gray § al., T. S.—On attachment by saisie arret of monies of the defendant in the hands of the tiers saisis. Judgment of the Court below reversed. The Court were of opinion that the delay was stipulated in favour of the tiers saisii, that they should not be held to pay what they owed to the respondent, until after six months' notice had been given to them, could not affect the rights of the respondent's creditors, who were entitled under their judgment to attach all the debts and property of their debtor, however held, or in whatever manner due. That here the money in the hands of the tiers saisi was a debt they owed to the respondent, the nature of which could not be varied by the delay allowed for the payment of it; and as all that the tiers saisi could demand was a six months' notice before they were bound to pay, the appellants here were entitled to obtain the money on giving that notice. In this there could be no injustice—a contrary principle might lead to it. In Appeal, April, 1830.
Montgomery 4' Price.—On declaration made by Alexander C. Montgomery, as Garnishee—which was contested in the Court below. Judgment of Court below affirmed. The Court were of opinion that the possession taken by the appellant of the debtor's property was a matter which migut be brought into discussion by the contestation raised on the declaration made by the appellant in the Court below, and as this possession was in fraud of the creditors, that he was liable to pay to those creditors the full value of that property. That this value having been ascertained, and it appearing that the appellant had disposed of the goods as his own property, the Court had rightly directed that value to be paid by the appellant and to be secured for the benefit of the creditors. In Appeal, April, 1830.
Gerrard $ Hays $ al.—Action brought by residuary legatees of the late David David for .£10,090 l6s. 5d., amount of promissory note in his favour. The defendant Gerrard denied that the respondents were the legal represensatives of the late David David. A trial by jury was asked and granted. In appeal. Mr. Justice Kerr said that on the first question, namely, whether this case should be submitted to a jury, the Court were unanimous that this was one of the cases that should go before a jury. The actioii was brought by persons who were the representatives of a merchant—based upon a promissory note given by one merchant to another. We must look to the contract at its inception—it was evidently mercantile—and as to any questions ot law that may arise during its investigation, the judge will direct the jury as to what is the law, or they may return a special verdict, and the point of law be reserved for argument. Chief Justice Sewell fully agreed as to this being a proper jury case; and repeated the same reasons urged by Mr. Justice Kerr on that subject. It would be very dangerous to refer the facts of any case to two different tribunals, because the Court might be of opinion pro, and the jury contra. That decision therefore must be confirmed. In Appeal, Nov. 1830.
1'atterson vs. Usboinr.—-As far back us 18011, the premises in question, situated in Hope street, Quebec, were sold by Usborne to Patterson, and were described as 131 feet towards Hope street. It turned out, however, that there was only 100 feet front, but the back of the premises extended to 175 feet, aud the lot contained even more than was intended to be conveyed. Finally, the deed of sale contained a full description of the boundaries on each side, beginning at one described spot, and going round to that spot again. Hence the present action in damages for the deficiency. Mr. Justice Bowcn considered that the question was whether the deed of sale was a sale by measurement or not; if by measurement, natural guarantee of the original seller remained; here the bounds were not only described, but the measurement, to a single foot, was stated in the deed This question has already been twice adjudged, and must be determined the same way now as then. Mr. Chief Justice Sewell .said, that departure from a former judgment, if an erroneous one, was no impeachment of justice; in this instance he thought it could not be said that the Court had formerly done wrong. The sale could not be denied to be one by admeasurement, and no one who sells 100 feet as 131 feet, can be allowed to take money for that which he does not deliver. Judgment for plaintiff. In Appeal, 13th June. June term.*
Fraise vs. Ilarvicker.—Action in damages for seduction. Sewell, C. J. It was with great reluctance the Court was called on to decide similar cases, and could not, in any way encourage or protect such connections as had been proved to exist in this instance. It was therefore impossible that anything could be given in the way of damages for seduction. A woman who submits to evil in the way of a kept mistress can claim none: damages for seduction in the first instance are always claimable, but a woman who consents to live in an unmarried state with a man, is entitled to none. It was quite different, however, with regard to the issue of such connection; the court was bound when called on, to interfere and protect them; to see that they were duly supported and taken care of, according to the circumstances of the parties. K. B., 7th June.*
* N.B.—1830 or 1831.
Gibson vs. Heney.—Action for Je96 10s. 8d. for goods sold and delivered to defendant's wife, 1829. Plea that they were bought without his authorization and knowledge and that the articles were of lnxury and extravagance. At enquete, it appeared that Mrs. Heney was the daughter of the late Hon. Judge Foucher, and the wife of an Alderman of the City of Montreal—that articles of dress of similar description as those bought by Mrs. Heney, both as to quantity and quality, were worn by ladies in a society below that in which Mr. H. allowed his lady to move. That they lived happily together, and had entertained and were entertained by the Governor—that Mr. H. generally saw the articles worn by his lady, and especially a rich embroidered robe and thread lace trimming to receive the Governor at her house, and a satin slip and turban, with ostrich feathers, to attend his Levee. In the court below, K. B. reduced the account to £21 lis. 5d. and rejected 4-5th's of the account as extravagant and luxurious. In appeal, this judgment was confirmed, the appellants (milliners) being condemned to pay the costs of appeal, the court citing two cases from Dallas and 5 Taunton, p. 356; Bentley v. Griffin. July term. *
Si/mard vs. Lynch.—Judgment was this day rendered in this cause by the Chief Justice and Mr. Justice Pyke. maintaining the principle that application should be made of payments on account of principal and not on account of interest till after the principal was paid. J. Rolland, dissenting. 20th April, 1831.
Dunn vs. Campbell and Campbell.—Per curiam: Application of payments should be made on account of principal. Instructions sur les Conventions, 331 ; Poth. No. 544; Argou, 398, 399; Old. 1667.
Parker vs. Richard.—P. C. Monies paid must be applied to the payment of the principal, when no application is made. Rep. v. Imputation; Argou: Denizart, N.; Pigeau, 608.
Pew vs. Lefferty.—A bequest was made to the son of the testatrix, payable on his attaining twenty-one, provided he continued a steady boy and remained in some respectable family until that time, with a bequest over if he did not do so. Without any reason being assigned therefor, the legatee enlisted and served as a private soldier in the army of the United States during the time hostilities were carried on against the then Confederate States.
Held: That the son by such conduct had not performed the condition upon which alone he was to be paid the legacy given by his mothers will.—U. C. C. C. (or Court of Chancery Reports) vol. xvi, p. 408.
Allan vs. Clarkson.—In 1869, C lent money to X, on an express agreement that it was to be secured by mortgage on certain property,
and on the 3rd July, following, the mortgage was given accordingly, and on the 2nd August the mortgagor became insolvent. Held: That the morgago was valid. C. C, vol. xvii, p. 570.
Buchanan vs. Smith.—An insolvent compounded with his creditors and had his goods restored to him; lie thereupon resumed his business with the knowledge of his assignees and creditors, and contracted new debts. It was subsequently discovered that he had been guilty of a fraud which avoided his discharge, whereupon he absconded, and an attachment was sued out against him by his subsequent creditors.
Held: That they were entitled to be paid out of bis assets in priority to the former creditors.
In such a case the assignee, as representing the former creditors, was ordered to pay the costs of a suit brought by the subsequent creditors to enforce their rights. C. C, vol. xviii, p. 41.
Kirby vs. Hall.—In an action on a promissory note, by a subsequent holder, the only question raised by the plea was, whether or not, when he became the holder or received the note, the Plaintiff had complied with the Stamp Act by availing himself of the privilege of affixing the double stamps, the note having been formerly held to have been insufficiently stamped in the hands of a previous holder, who had, in consequence, failed to recover upon it.
The evidence, however, clearly shewed that when the note was received by the Plaintiff, which he swore it was in good faith and for value, he did affix the double stamps, which were also duly cancelled, but that he was aware, when he. took it, of the former difficulty about the stamps.
Held: That the Defendant could not avail himself, under the pleadings of this fact, if a defence, but that, as the record stood, plaintiff came within the protection of sec. 9 of 27 & 28 Vic. chap. 4. U. C. C. P., vol. xxi, p. 377.
Royal Canadian Bank vs. Shaw el al.
Held: That the Plaintiffs, a banking institution, having stipulated for and retained, in discounting a note, interest at a larger rate than 7 per cent., were not entitled to avail themselves of the provisions of their Act of Incorporation (27 & 28 Vic, ch. 85, sec. 21), allowing them to charge the same rate after maturity that they had charged on discounting the note, supposing the original charge to have been not more than 7 per cent., which was held to be the meaning of the Act, and that therefore, the note bearing no rate of interest on its face, they were not entitled to more than 6 per cent, from its maturity. C. P., vol. xxi, p. 455.
Maunder vs. Royal Canadian Bank.—Plaintiff deposited with Defendants a sum of money and received from them the usual deposit receipts, stipulating for payment of interest provided the money remained not less than three months from date of deposit, and providing for fifteen day's notice to be given of its withdrawal, on which notice