XIII.] SUPREKE CANAbA.
their contract was to furnish the vessel with a fall and complete cargo as fast as it could be received on board in fine weather, of which contract their neglect to furnish a sufficient quantity of grain on the sixteenth, Gwe J. seve-r.teenth and eighteenth November, constituted a clear breach, and they cannot be relieved from their responsibility for the natural consequence of this breach by reason of default in the captain to supply a sufficient number of baggers on the twentieth.
The learned judges in both of the courts below who have pronounced their judgment in favor of the plaintiff were of opinion that, as matter of fact, the vessel might have been completely loaded long before the morning of the twenty-first November, when she left port, but for the default of the defendants on the sixteenth, seventeenth and eighteenth November, and I cannot undertake to say that this is an erroneous conclusion. I must concur, therefore, in dismissing the Solicitors for appellants: Kerr, Carter 4 Goldstein.
Solicitors for respondents: Abbott, Tait 8 Abbott.
PIERRE ACHILLE ADMLARD DOR- ION, (Plaintiff 6s-qualit6 and Intervenant in the Superior Court) ..........
JEAN-BAPTISTE THPOPHILE DOR- ION, (Defendant and contesting party
Marh 8. in the Superior Court)............ ......
to-Rights irregular-Art. C.C.P.-ross- Beld, latter the'institutes be-n APPEAL and cross-appeal from a judgment of the Court ofQueen's Bench for Lower Canada (appeal side)(1). One Moreau, as curator to the substitution created by the will of the late Jacques Dorion, brought an action against the respondent, who had ceased to be curator to the substitution created by the said will, alleging that the respondent r tained in his possession large sums of money belonging to the estate, and prayed for an account, and that, should the respondent fail to render the account, he be condemned personally to pay to the said plaintiff in his said capacity the sum of $12,000 and interest.
The respondent by his pleas acknowledged his indebtedness to the estate in a certain sum which he declared he was willing to pay to plaintiff if he had authority to receive it.
On 4th January, 1865, ddbats de comple were filed by Moreau and subsequently the present appellant took Moreau's place as curator to the substitution, and took up the instance as curator to the substitution.
On the 14th September, 1881, he moved that the respondent should be compelled to constitute new attornies On the 11th September, 1881, the appellant in his quality of curator produced the following declaration : " Le dit Demandeur 6s-qualit6 par reprise d'instance " demandant acte de la d6claration faite par le dit J. B. " T, ])orion, en sa reddition de compte qu'il est d6biteur 1) 4 Dor. q. B.
" de la succession de la somme de huit mille quatre "cent vingt-sept piastres et soixante-treize centins "d6clare qu'il accepte la reddition de compte telle que "produite par le dit d6fendeur ainsi que les conclusions de sa d6fense, et en demande acte."
This was preparatory to an inscription for final hearing on the merits for the 13th December, 1881.
On the 12th a motion was presented to ask delay to plead-(a) that defendant was not obliged to account (b) new facts. The court granted defendant leave to plead new facts, and refused leave to replead as to the right of plaintiff to demand an account, inasmuch as defendant " ne peut revenir sur cette admission et reconnaissance de sa part" i. e., contained in his first plea. The present respondent then asked for leave to appeal from this judgment because of the limitation as to the re-pleader, but leave was refused.
The defendant then filed a plea containing a variety of allegations.
To this, a special answer was made, and the case was inscribed for hearing and was heard. When the record was en ddlibdrd, the appellant filed, an intervention as the representative of all the gr6vs, setting up a right to the balance of the money in the hands of the respondent as representative by cession and otherwise of all the gr6vis.
The respondent pleaded to this intervention and prayed for its dismissal.
Judgment was rendered on this intervention by the Superior Court inter alia condemning the respondent to pay the appellant a sum of $14,282.72.
On appeal to the Court of Queen's Bench (appeal side) brought by the present respondent, that court reversed the judgment of the Superior Court and condemned the respondent to pay. to the appellant, as representing C. Dorion, E. Dorion, F. Dorion and J. B. T. Dorion, the grdv6s, the said sum of $525.87 with interest thereon from the 27th June, 1882, and to pay costs to appellant upon the intervention and the contestation thereon.
The said court condemning the appellant to pay the costs of the The Court of Queen's Bench ordered also the record to be sent down to the Superior Court to invest in the name of the said substitution the sum that the respondent acknowledged he had in his possession, and as it may be ordered by the court of the first instance; reserving to the appellant whatever rights he may have to claim the money paid for the respondent; reserving likewise to respondent the right to claim the sum that he is condemned to pay to the appellant by this .judgment, in the event the respondent gets the deed of transfer of the 25th April, 1862, annulled; reserving also to the appelds of the said substitution whatever right they may have to contest the account rendered by the said respondent, or to ask another account; reserving also to the superior court to decide about the costs other than the costs of intervention and contestation thereof.
Madore for appellant and respondent on cross-appeal. The judgment of the Superior Court should be confirmed in full and the amount increased according to the conclusions of the intervention.
J.-You did not appeal from the judgment of the superior court and how can you ask this court to allow you more than the amount granted by the superior court ?]
I submit the whole case is open on the appeal to this court. The first question on this appeal is whether the appellant, as curator, had a right in law to have the defendant, who was a debtor of the substitution, condemned to pay the capital sum he had in his possession, belonging to the substitution, without any security, particularly when the appellant represents as cessionnaire all the grevds of the substitution. The article 945, 0. 0. and the amendment of the same by 38 Victoria chap. 13, which amendment makes no change as far as the power of the curator is concerned, say that the curator " attends to the substitute's interest, " in all inventories and partitions and other circum- " stances in which his intervention is requisite or " proper."
The -article 947, C. C. says:
He makes all payments, he receives moneys due and reimbursements, invests "capital sums" and exercise before the court all powers necessary for these purposes. The court below having confirmed the right of the appellant as cessionnaire of all the grevds de substitution, as well as the Superior Court on that point, it follows that under the above articles 947 and 945 C. the appellant, as intervenant, had full power to receive the capital the respondent had in his possession.
But, moreover, in the present case, the appellant, as curator to the said substitution, had also the legal capacity under the said article 945 0. C. to sue the respondent on behalf of the substitutes, for the money the respondent had in his possession unsecured, as being the legal representative of the substitutes. See Thevenot d'Essaule on Substitution (1); Pothier, Substitution ; G-uyot Vo. Substitution (3) ; Dortion v. Jones (4).
On the question of prescription the learned counsel relied on Philipp v. Joseph McKenzie v. Taylor (6). Arts. 1043, 1714, 295, 296, C. C.
The learned counsel also contended that the appellant was entitled to the interest the respondent had offered [VOL. Xm. to pay on $8,427.63, from the 14th of August, 1858, which he has not paid or was not prescribed by law. Pagnuelo Q.C. for respondent and appellant on cross The curator to a substitution has no right of action to claim the capital or the interest belonging to the substitutes.
His duty is to watch the acts of the institutes, Arts 945, 916, 959 0. C.
The respondent in this case can only be asked to render an account as a negotiorun gestor, and this he has been willing to do.
He oould not be sued in the capacity of curator, for as such he had no right to administer the estate. Had the intervention not been allowed there can be no doubt the appellant's action would have been dismissed.
I contend that the intervention should not have been admitted, but that judgment should have been given on the merits.
Arts 413, 435, 200, 1119, 0. 0. P.; Dalloz, Rep. (1); Carter v. Molson On the question of interest the learned counsel referred to art. 295, 1714 0.0. Denizart (3); Troplong (4); Aubry & Rau (5); Pothier (6); Dalloz (7) ; Sirey (8).
Madore, in reply, contended that the pleadings admitted the right of the appellant to intervene. Art. 1245 0. C.
Sir W. J. 0. J. and and JJ. concurred in the conclusion arrived at by FOURNIER and JJ.
J.-Daus ses notes sur cette cause qu'il a eu l'obligeance de me communiquer, l'honorable Juge Taschereau ayant d6ji fait un expos6 complet non seulement des faits qui ont donn6 lieu au pr6sent litige, mais aussi des questions de droit A r6soudre, je crois devoir me borner A quelques observations pour exprimer mon concours dans ses conclusions
Deux questions principales s'616vent en cette cause: la premibre est de savoir si un curateur A la substitution a droit de porter une action pour se faire rendre compte par le possesseur des biens substitu6s; ]a deuxibme, si une telle action ne lui appartient pas, 6tait-il en son pouvoir, par une intervention fond6e sur des cessions des droits des grev6s, obtenues pendant P'instance de 1'action en reddition de compte, d'ambliorer sa position en changeant la cause d'action pour emp8cher le renvoi de sa demande.
Les conclusions de laction sont A l'effet d'obtenir un compte de la gestion et administration que 1'intim6 a eue en sa qualit6 de curateur A la substitution cr66e par le testament de feu Jacques Dorion et des biens d'icelui, avec les int6r8ts et les int6rts des 6pargns, A compter du jour du paiement des diff6rent. s sommes d'argent reques par le dit intim6, en sa dite qualit6, en outre A produire avec le dit compte et A son soutien toutes les pikces justificatives d'icelui, comme aussi et A mettre le dit demandeur (pr6sent appelant) en sa dite qualit6, (curateur A la m~me substitution) en possession de tons les titres, papiers, pi~ces et renseignements qui regardent la dite succession, etc., etc, etc., que le dit demandeur a en sa dite qualit6, droit d'avoir du d6fendeur, sinon et A d6faut par le dit d6fendeur (intim6) de satisfaire imm6diatement A tout ce que dessus, pour se voir condamner personnellement A payer an dit demandeur, en sa dite qualit6, une somme de douze mille livres du cours actuel, pour tenir lieu du dit compte, de la remise des titres, piices et renseignements, etc
L'appelant avait 6t6 nomm6 lui-mame curateur A cette substitution on remplacement de l'iutim6, et c'est en cette qualit6 qu'il a repris l'instance introduite par M. Pierre Moreau qui avait aussi 6t6 nomm6 curateur A la mome substitution en 1859.
Comme curateur A une substitution l'intim6 avait-il Fournier J.. le droit de porter une action de la nature de celle dont les conclusions sont rapport6es ci-haut ? Il est certain que non. Une telle action n'a jamais 6t6 donn6e au curateur A une substitution, ni dans 1'ancien droit, ni sous le Code Civil de la province de Quebec.
L'art. 945 C. C. qui n'a rien chang6 A 1'ancien droit sous ce rapport ne donne au curatear A la substitution que des fonctions tras limit~es.
Elles se bornent A repr6senter les appel6s non n6s lors de la mort du substituant, A veiller A leur interst en tons inventaires et partages et dans les autres cas son intervention est requise ou peut avoir lieu.
L'amendement fait plus tard A cet article par le 38me Vic. ch. 13, n'affecte aucunement la question en cette cause.
Les appel6s n6s et incapables sont repr6sent6s comme dans les cas ordinaires.
Ce curateur n'ayant aucun droit ni A la possession ni a 1'administration des biens de la substitution ne peut en cons6quence avoir droit d'action pour s'en faire rendre compte on s'en faire mettre en possession.
Il en 6tait de mtne sous 1'ancien droit. " L'ordon- " nance, dit Merlin (1), n'exige la nomination d'un tuteur "ou curateur A la substitution, que dans deux cas, savoir: "Pour assister A l'inventaire des biens du substituant, "quand le premier substitu6 n'est pas n6; et pour assister "dans le m~me cas, A l'emploi des deniers. VoilA done, "conclut Thevenot, toute la charge'du tuteur, suivant "l'ordonnance."
Lors de la nomination de
1'appelant comme curateur tous les grev6s de substitution 6taient n6s et capables de se repr6senter eux-mimes, de sorte que l'appelant n'avait aucun droit de s'immiscer dans les affaires de la substitution.
Son action n'ayant d'autre but que de s'en faire rendre compte, elle doit nkcessairement 6tre renvoy~e. est vrai que l'intim6 a Faurier J. reconnu, par une reddition de compte qu'il a pr6sent6e en r6ponse A l'action, devoir la somme do £2, 106.18.2, mais ce n'est pas envers l'appelant qu'il s'est reconnu d6biteur, c'est envers ceux qui sont avec lui les grev6s de substitution.
Cette reconnaissance ne pent done lui servir pour obtenir ses conclusions, car la cour ne peut rien statuer sur les conclusions d'une action que la loi ne reconnait pas.
L'intervention est-elle mieux fond6e quo 1'action principale ? est 6vident d'aprbs les faits de la cause que ce n'est que dans l'espoir de soutenir l'action dans laquelle il devait n~cessairement succomber, que lintim6 a en recours A 1'exp6dient de cette intervention qui, d'ailleurs, a 6t6 produite trbs irr6gulibrement. n'est pas n~cessaire d'insister sur les irr6gularit6s quoiqu'elles soient certainement suffisantes pour faire d6clarer 1'intervention inadmissible, mais il y a encore une raison plus forte pour la faire rejeter.
C'est que 1'on ne pout pas avoir droit d'intervenir dans une action dont la 10i ne reconnait pas 1'existence. Aucune partie ne pent avoir d'intbrit A intervenir dans un semblable cas. Pour exercer ce droit il faut, suivant Part. 154 0. P. C., avoir des int~rsts A faire valoir. L'intervenant, telle que l'a fait clairement voir 1'hon. Juge Taschereau dans ses notes sur cette cause, manque de l'616ment essentiel pour avoir droit d'intervenir, c'est-A-dire d'un int~rt qui aurait pu souffrir quelque pr6judice r6sultant de l'adjudication sur ce qui faisait 1'objet de la demande principale.
La d6finition de cet interst vient d'stre donn6e dans la cause de Carter v. 1Molson (1) cit6e par 1'intim6, dans et laquelle le Conseil Priv6 de Sa !Wajest6 s'est exprim6 comme suit:
J. that Cette autorit6 qui est d'une 6vidente application aux faits de la cause doit suffire pour faire decider que 'intervention doit subir le meme sort que l'action principale.
J.-In March, 1821, Jacques Dorion by his will, bequeathed his estate to his brother Charles, with substitution in favor of the said Charles' children, and the children of his children, so long as there would be any of the name.
Jacques Dorion died, Charles then came into possession of the estate.
He, sometime after, also died. J. B. J. Dorion, the present respondent, appears then to have been named curator to the substitution created by the will of Jacques Dorion, and to have been in that quality, as alleged by the appellant in his declaration, in possession of the said estate from the 20 ;h of August, 1840, to the 14th of August, 1858.
IL is evident that, as curator, the respondent had no right whatever to the possession of this estate
However, he was allowed to take and hold it.
In August, 1858, one Pierre Moreau was appointed to replace the said respondent as curator to the said substitution, and, as such, in June, 1839, brought the present action against the respondent.
The present appellant having subsequently replaced the said Moreau as curator, the action now stands in his name.
The declaration alleging that the said resp indent had in his hands large sums of money belonging to the said estate claims an account of his administration of the said estate from August, 1840, to August, 1858, and o . concludes as follows:- "That the defendant (now respondent) be con- " demned to render an exact and faithful accouht under " oath of his gestion and administration in his capacity "of curator to the said substitution and of all the prop- "erty thereof with the interests and the interest of the "savings from the day the said sums of money were "paid to the said defendant in his said quality, and moreover to produce with the said account all "vouchers in support thereof, and that, should the said "defendant fail to do so, he be condemned personally "to pay to the said plaintiff in his said capacity the "sum of twelve thousand pounds."
The respondent, in answer to this action, appears to have rendered an account in which he acknowledged his indebtedness to the said estate in certain amounts which he declared himself ready and willing to pay to the said plaintiff provided the said plaintiff had authority to receive them.
The appellant's first contention is that, by such a plea, the respondent has acknowledged his indebtedness to him and is now debarred from questioning his right.
This objection cannot be sustained. The respondent acknowledged his indebtedness to the estate, not to the plaintiff, and has declared himself ready to pay the plaintiff if the plaintiff can establish his right to these moneys, and in that case only. So that the first question submitted for our determination is as to the authority of the plaintiff, in his said quality of curator to this substitution, to receive and the right to claim the payment into -his hands of what the respondent may owe to this estate.
The solution of this question presents no difficulty. The plaintiff, as curator, has no such right. At the death of Charles Dorion the whole of this estate reverted .
to his sons as institutes under Jacques Dorion's will, the revenues thereof to be used or abused of at their will and pleasure, the capital sums to be held by them subject to transmission to their children. The curator, as such, has no right whatever either to one or the other. This action is consequently unfounded in law, and must be dismissed.
Now, as to the intervention.
This intervention was filed under the following circumstances. The case had been argued on the merits, and was standing for judgment.
The appellant then, evidently to prevent a judgment being given and, it may fairly be assumed., not expecting a favourable one, went to another judge of the same court and obtained leave to file an intervention in his own personal name as assignee of the institutes, Charles Dorion's children, in virtue of certain deeds of assignment or transfer by which the said institutes had assigned to . him all the rights accruing to them under the will of Jacques Dorion.
The intervention's conclusions are:- " Therefore the said intervening party prays that he "may be allowed to intervene in this case, to agree as "the only representative of the grevis de substitution "and to unite with the plaintiff, is qualitd, inasmuch "as it might be useful, to accept defendant's account and his confession of judgment, and give to the said "plaintiff, es qualiti, all authorization and the approba- "tion wanted from the grevis de substitution; that the "said petitioner may be received as intervening party, "and the said defendant condemned to pay to the said "Achille Adelard Dorion, as well in his capacity of "curator and administrator of the said estate, as the "only representative of all the grevis de substitution, "the amount he has confessed to owe in his account VOL. XrTI] SUPREME COURT OF CANADA.
and plea, with interest as, alleged, amounting this day "to $26,403.08, the whole according to the conclusions of the declaration and costs."
A more irregular proceeding I have never heard of. Tuirau Here is a party who, it is evident, to prevent his adver- J. sary from getting a judgment to which he has an acquired right from the judge before whom the case has been argued, goes to another judge and obtains leave to file an intervention in which he virtually says, " Well, " my original action is unfounded in law and must be "dismissed, but I personally have rights against the "defendant under other titled, as assignee of certain "third parties, and I claim the right to intervene in "this case not only to prevent the defendant from ob- "taining the dismissal of my action, unfounded though "it be, but also to get for myself personally, as such "assignee, a judgment against the defendant."
Had the appellant the right to so intervene in this case ? I pass over to the question- of procedure raised before us, as to the period of the case and the way in which this intervention was filed. Though the Chief Justice and Mr. Justice Ramsay in the Court of Queen's Bench were of opinion, and I fully agree with them, that the filing of it was totally irregular, yet the court did not feel authorized to dismiss it on that ground. The right in law of the appellant so to intervene is, however, denied by the respondent, and has to be determined.
It appears to me that, under the circumstances of this case, the appellant had no right to this intervention. That it was nothing else but a new action against the defendant is undeniable.
That it was filed to prevent the dismissal of the principal action and so snatch away from his adversary a judgment he had an acquired right to is plain.
For this purpose, and for this pur pose alone, does Mr. P. A. A. Dorion, the assignee, come to the rescue of Mr. P. A.
Article 154 of the Code of Civil Proo o cedure enacts the rule on the subject : "Every person," says this article, " interested in the event of a pending "suit is entitled to be admitted a party thereto in order "to maintain his rights."
These are clear terms
To be allowed to intervene a party must be interested in the event of the suit, and it can only be to maintain his rights, not anybody else's rights, that he can be allowed to intervene.
Or to put it on the highest possible authority:
Now, here, it appears on the very face of the proceedings that no final judgment could possibly be obtained in this suit which could have enabled the plaintiff to possess himself of this estate, or would otherwise impair the legal rights of the institutes or of their assignee.
Where, then, is the assignee's interest in the event of the suit, and it is his own suit, it must not be lost sight of ? The only interest, it is plain, is the curator's, the principal plaintiff's interest, not the assignee's, the intervening interest. The very allegation of the intervention shows that the principal action must be dismissed, and that it is to prevent such judgment that the intervention is filed.
That is to say, the institute, or in their name Dorion, their assignee, intervene, not to protect their rights, which the dismissal of the action would leave intact and unimpaired, but to protect Dorion's, the curator's rights. (1) v. 8