Majority
"Dec.
ALEXANDER MOLSON (DEFENDANT
CONTESTING THE OPPOSITION IN THE
RESPONDENT. COURT BELOW)..............................(
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Fournier and Gwynne JJ. (dissenting)
, on the ground that as the moneys were still subject to the control of the court at the time the opposition en sous ordre was filed, such opposition was not too late.
APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) (1), affirming two judgments of the Superior Court (2), which dismissed an opposition en sous ordre of the appellant fyled in the original case of T. T. Carter v. Alexander Molson.
On the 11th September, 1885, the respondent, without giving notice to the appellant, who had been his attorney in the case of Carter v. 1Molson and Freeman, tiers-saisi, applied through new attorneys to the Superior Court for an order upon the prothonotary to pay * PREser-Sir W.
(1) M. L R. 3 q A. 348,
(2) M. L. R. 2 5. 9, 144, him the moneys deposited in court by Freeman, and a judgment was rendered accordingly, the prothonotary, however, being directed by the judgment to retain the . court house tax and the poundage.
By an opposition, dated 22nd September, 1885, the appellant alleged that in cause No. 1135 Carter v. Molson and Freeman, tiers-saisi, the said tiers-saisi deposited certain moneys in court, and that the moneys in question were the proceeds of a legacy made by the late Hon. John Molson in favor of the defendant, his wife and children, and were declared by a judgment of the Privy Council alimentary and insaisissable. He also alleged the insolvency of the defendant and claimed $3,932.17, by special privilege en sous ordre, for professional services incurred in the proceedings for the protection of the legacy. The opposition was supported by an affidavit stating that all the facts alleged in the opposition were true.
The respondent began by moving that the opposition should be dismissed as irregular and illegal, but the motion was dismissed.
The respondent, on 26th October, demurred to the opposition on the following grounds:- 1. Because the opposition en sous ordre is on its face a proceeding by way of execution, and there is nothing to show that opposant's claim carries execution. 2. Because the moneys are declared in the opposition to be exempt from seizure.
Because the opposition, though styled an opposition en sous ordre, is on its face not such an opposition, but an attempt to attach moneys of a defendant in the hands of third parties, beforejudgment, without issuing a writ of attachment, and without compliance with the requirements of law necessary to entitle opposant to such a writ.
4. Because the affidavit forming part of the opposition is illegal and insufficient.
5. Because the moneys attached are in the hands the prothonotary merely as a conservatory process between the parties in the original suit, and are not moneys levied subject to an opposition as made. Opposant answered generally.
There was also a motion presented on behalf of the respondent in the Superior Court for an order to the prothonotary of said court, notwithstanding the said opposition to pay to respondent contesting the sum of $9,572.65, with costs, being the balance between the amount in his hand ($13,504.10) after deduction of the amount claimed by opposant:- 1st. By the judgment Mr. Justice Mathieu (20th January, 1886), maintained the demurrer to the opposition en sous ordre filed by the appellant.
2nd. By the judgment (rendered at the same time) the motion of respondent was granted.
The Court of Queen's Bench for Lower Canada (appeal side) affirmed the judgments of Mr. Justice Mathieu, but resting the decision on the ground that after the 11th of September, 1885, there was no longer any case pending wherein an opposition en sous ordre could be fyled, and that in consequence the appellant could only proceed by saisie-arrdt before judgment, accompanied by an affidavit of secretion.
On appeal to the Supreme Court of Canada.
Lacoste Q.C. and Beique for appellant contended:- 1st. That appellant has, under the French law, a privilege for his costs of the nature of a solicitor's lien under the English law, which necessarily involves the right to stop the moneys without an affidavit;
2nd. That even if he had no solicitor's privilege or lien, the respondent's insolvency alone, under article 753 C.C.P., gave him the right, by means of an opposition en sous ordre, to stop the moneys without an affidavit, and referred to Arts. 602, 603, 604, 612, 616, [VOL. IV. 622, 629 and 630 C. C. P. Martin v. Labelle (1); Doutre v. Leblanc es-qual (2) ;
3rd. That his opposition en sons ordre was equally M regular whether it came after or before the judgment of the 11th September, 1885, so long as the moneys were still in the hands of the prothonotary.
Citing Jousse Ordonnance 1667 (3); Ferribre Grand Coutumier (4); McDonnell v. Buntin (5); .Molleur 4- Marchand v. The Atty. Gen. (6); Pigeau
Laflamme Q.C. and Robertbon Q.0., for respondent, contended :
That Art. 753 C. C. P. governed oppositions en sous ordre. At the time of the present opposition there were no moneys which could be distributed, and as the respondents had not been collocated therein under Art. 724 C. C. P., the appellant could not claim by a sub-opposition.
Moreover, the moneys which were in the hands of the prothonotary at the time of the oppo- 8ition were not moneys levied.
The deposit in the hands of the prothonotary was a mere substitution of one garnishee under the control of the court for another. The final judgment, as alleged, having declared the money to be the property of defendant, respondent, he immediately became entitled to withdraw it, and any creditor wishing to attach it before obtaining a judgment must do so in the usual way by a saisie-arrdt, supported by a legal affidavit, and third parties can have no greater rights to interfere with respondent's enjoyment and possession of his property, because it has been placed temporarily in -the hands of the prothonetary, than they could have were it in the respondent's personal possession. The attachment, in fact, by the effects of the judgment set up in the opposition, became of no effect, and was declared null. There is no pretence that respondent was collocated for any sum.
The money in question was his from the beginning, and held by the prothonotary only to abide a judgment on a claim made on it, but subsequently declared to be unfounded.
It is also necessary to make a claim by means of a sub-opposition, as laid down in Art. 153, that the debtor be insolvent, or the creditor's claim must carry execution. There is no pretence that the latter is the case; but there is an allegation of insolvency. Respondent submits, however, that the insolvency contemplated by the article is such insolvency as would be sufficient for a writ of seizure before judgment.
A sub-opposition is really of the nature of a saisie-arrit before judgment, and therefore should be accompanied with an affidavit, as required by Art. 834 and 855 C. P.
This was the view taken in Sterling v. Darling & Fowler (1) by three judges of the Superior Court, and which has never been over-ruled.
The fact is, that the appellant, considering that he has a claim against respondent, is desirous of attaching his debtor's property before obtaining a judgment against him. This the law gives him a right to do, but only in certain cases, viz. :-those specified in Arts. 834 and 855 of the Code of. Civil Procedure To avail himself of this remedy he must bring his case within the provisions of the law and also comply with the formalities the law requires.
He must allege not insolvency only, but fraud. If appellant found the respondent attempting to defraud him out of a just debt he might easily have attached the money by a writ in the usual way; but evidently knowing that he could not take the affidavit necessary for an attachment before judgment, he styles his opposition an opposition en sous ordre, and endeavors to evade the law and accomplish his object in an indirect way. Secondly,-As to the appeal from the judgment ordering the payment to defendant of balance after holding $3,932.17 to secure appellant's claim.
If the judgment on the demurrer is maintained, the judgment on the motion will be maintained at the same time; but even should the demurrer be overruled, respondent submits that it is contrary to all law and equity that opposant's pretension with regard to this balance should be upheld.
On his own showing opposant claims $3,932.17. He asks, in addition to this, a further sum of $9,572.65 to be held,-for what purpose, unless it be to harass the respondent by keeping him out of his money, it is hard to tell. He can have no interest, save as security for costs in case he succeeds, and respondent being a resident in Lower Canada and a defendant, it is difficult to see on what grounds such security can be demanded; and the amount the opposant attempts to hold as security is $9,572.65.
The proposition carries its own condemnation.
SiR W. J. C.J.-I think the appeal must be dismissed, agreeing, as I do, with the reasons which Mr. Justice Taschereau will state.
J. was also of opinion that the appeal should be dismissed.
J.-Le prsent appel est d'un jugement de la cour du Banc de la Reine, en date du 17 septembre dernier, confirmant pour d'autres raisons, un jugement de la cour Sup~rieure du district de Montreal, renvoyant une opposition en sous-ordre, produite par 1'appelante dans une cause entre John T. Carter v. Alexander .Molson, et Freeman, tiers-saisi.
L'instance entre ces derniers avait t6 commenc6e par un bref de saisiearrat entre les mains de Freeman en ex&cution du jugement obtenu par Carter contre Molson. La contestation fUt soulev6e sur le caractbre d'insaisissabilit6 des .
deniers saisis, entre les mains de Freeman, d6pos6s plus tard en cour.
Fournier J.
Ce prochs qui a dur6 plusieurs ann6es et a 6t6 mgme port6 deux fois en appel au Conseil Priv6, avait pour but de faire d6clarer saisissables certains biens de Molson et d'en amener le produit devant la cour pour en faire la distribution entre ses cr~anciers.
L'appelant Bernard, dans tout le cours de cette longue contestation et de ses nombreux incidents, a repr~sent6 comme avocat et procureur, non seulement les int&ftts de Molson, mais aussi ceux de sa femme et de ses enfants, int6ress6s comme lui A faire d6clarer que les biens qui lui avaient 6t6 16gu6s par l'honorable John Molson, son pore, avec clause d'aliment et d'insaisissabilitd ne pouvaient pas 4tre saisis et ex6cut6s pour ses dettes. Les frais qu'il a ainsi encourus se montaient & la somme de $3,932.67.
Le tiers-saisi Freeman ayant d6pos6 entre les mains du Protonotaire de la cour Sup6rieure, district de Montr6al, une forte somme d'argent provenant des revenus des biens de Molson, l'appelant a produit une opposition en sous-ordre sur ces deniers, pour Atre pay6 du montant de ses frais. Loraque cette oppotition a t produite, le 22 septembre 1885, le protonotaire avait le 11 du mAme mois, sur la demande de 1'intim6, et sans avis A 1'appelant, ordonn6 de remettre & Molson les argents d6pos6s en cour par Freeman, sous la d6duction des taxes judiciaires. Cependant, les deniers 6taient encore entre les mains du protonotaire lorsque l'opposition fut reque. Le paiement s'est en consequence trouv6 arrit6.
Une premiere motion de l'intimb demandant le renvoi de cette opposition a 6t6 rejetie. I a ensuite invoqu6 les m~mes moyens par des plaidoyers au m6rite et en droit. Ces moyens sont :
[YOL. XV. lo. Que 1'appelant ne peut saisir les argents sans faire un affidavit que 1'intim6 cache ses effets on se soustrait i 1'action de ses cr6anciers. 2o. Que les argents d6pos6s en cour n'ont pas t pr61evds en vertu d'une F e ex~cution et ne peuvent 6tre af*-ts par une opposition . en sous-ordre.
So. Que ces deniers 6tant exempts de saisie, 1'insolvabilit6 de 1'intim6 n'est pas un motif suffisant pour les arrter par opposition en sous-ordre. Il fit aussi une autre motion pour que 1'exc6dant du montant de la cr6ance de l'appelant lui fut remis en attendant la fin de la contestation. La cour Sup6rieure a renvoy6 1'opposition pour les deux premires raisons, et accord& la motion pour paiement d'une partie des deniers d6pos6s.
Sur appel, ]a cour du Banc de la Reine a confirm6 le jugement sur le principe qu'apr~s le 11 septembre 1885, il n'y avait pas alors de cause pendante dans laquelle une opposition en sous-ordre p-xt 6tre produite, et que 1'appelant ne pouvait alors procbder que par voie de saisie-arrat avant jugement, en produisant 1'affidavit ordinaire. Toutefois la cour intima qu'il en eeit t6 autrement si l'opposition ext 6t6 produite avant 1'ordre du 11 septembre 1885.
La raison qu'il ne pouvait pas Atre produit d'opposition, parce que 1'instance avait 6t6 6teinte par le jugement du 11 septembre, n'a pas 6 invoqu~e par 1'intim6 dans sa d6fense ni mentionn6e dans le jugement de la cour Sup6rieure.
C'est un nouveau moyen soulev6 par la cour du Banc de la Reine elle-mime.
L'appelant demande 1infirmation du jugement en s'appuyant sur les trois propositions suivantes: lo. Qu'il a en vertu de la loi de la province de Qu6bec un privil~ge sur les deniers en question pour les frais de justice qu'il a encourus pour leur conservation dans 1'intir~t des parties int&ress~es; 2o. Qu'ind6pendamment de ce privilege, son d6biteur Molson tant insolvable, Pappelant a droit en vertu de l'art. 753, C. P. d'arriter ces deniers par une opposition en sous-ordre et sans affidavit; 3o. Que son opposition en sous-ordre ait 6t produite avant on aprbs le 11 septembre, elle 1'a 6t6 toutefois en temps utilt puisque les deniers 6taient encore entre les mains du protonotaire.
La premibre de ces trois propositions relative an privil~ge de 1'appelant pour les frais de justice qu'il a encourus pour la conservation des deniers dans 1'intrst des parties int~ress6s, ne semble pas avoir kt s&rieusement contest~e. Elle avait dji 6t6 amplement d6battue et plusieurs fois d6cid6e par les cours- qui,. apr~s quelques diff6rences d'opinions ont fini par s'accorder sur la manidre de donndr effet A un pr6vildge qui ne peut certainement plus Atre contest6 en face de Particle 2007, C. C. Il suffit maintenant de rTf6rer aux principales d6cisions sur ce point. Au 29 vol. de L. C. Jurist. (1), on trouve la cause de Normandin v. Normandin, ofi cette question a 6t0 savamment discut6e par feu l'honorable juge Loranger en s'appuyant sur les principales autorit6s de notre droit. Le mime principe a 6t6 soutenu dans la cause de Wilson v. Leblanc et Doutre et al, cr~anciers colloqu6s, et Leblanc isqualitM (2).
Dans cette dernibre cause comme dans la prsente, I'avocat repr6sentant le pro. pri6taire d'un bien qu'il avait fait d6clarer alimentaire et insaisissable, se voyait contester son droit aux frais sur ces m6mes biens qu'il avait conserv6s A son client, mais la cour d~cida que 1'avocat avait acquis contre son client une cr6ance alimentaire pour la r6p6tition de ses d6bours6s et honoraires, conform6ment A Particle 558 C. P. C.
L'appelant dont presque tons les frais ont &6 encourus pour soutenir dans l'int~rft de l'intim6 le caractbre de biens alimentaires et insaisissables aux biens qui lai avaient e
14gubs, vent maintenant se pr6valoir A 1'encontre de son avocat du caractbre particulier de ces biens pour refuser de le payer. La loi s'oppose A ce qu'il con amette un acte aussi injuste que le serait celui-14. Par ses proc6d6s pour la conservation des biens 16gu6s, 1'avocat J. a acquis contre ces m~mes biens une cr6ance alimentaire pour assurer le paiement de ses frais et honoraires.
Le jugement cit6 plus haut l'a d6cid6e formellement en conformit6 de 1'art. 558 C. P. C., qui a consacr6 un principe depuis longtemps reconnu dans le droit franpais.
Je crois qu'il serait inutile d'insister davantage sur
1'existence du privil6ge pour les frais de justice. Dans le cas dont il s'agit il ne peut Stre contest6.
L'instance encre Carter v. Molson 6tait sans doute termin6e. Barnard n'avait rien A y voir et n'6met aucune pr6tention d'y prendre part. Mais la cour ayant encore sous son contr6le, comme Molson le reconmalt, les deniers soumis A son pr~vilige l'appelant me se pr~sentait-il pas en temps utile pour le faire valoir. Il lui 6tait indiff6rent qu'il existit une instance entre Carter et Molson, ce qui importait A l'appelant c'6tait de pouvoir en soulever une entre Molson et lui. Puisque son privilge n'est pas contest6, que peut lui faire le jugement du 11 septembre 1885, ordonnant de remettre les deniers d6pos6s A Molson ?
Est-ce que ce jugement a pu an6anfir le privilige de l'appelant on le transformer en aucune manibre? Personne n'a pr6tendu cela. Les deniers sont tonjours restbs sonmis au privilge qui ne pouvait cesser que par leur remise actuelle entre les mains de Moleon.
Mme, en passant par les mains d'un tiers pour arriver
A lui, ils restent toujours soumis au privilige.
Cette raison que l'instance 6tait termin6e aurait sans doute toute sa force s'il s'agissait d'une intervention dans le d6bat entre Carter et Molson,
Mais ce n'est pas le but de 1'opposition de 1'appelant. I trouve des deniers r6alis6s et d6pos6s en cour en vertu de pro- M oN c6d6s judiciaires, en ex6cution d'un jugement, sur lesquels il a un privil~ge r6el, et il demande A le faire Fournier J. ' valoir; c'est une nouvelle instance qu'il introduit, il n'a A d6battre ses pr6tentions qu'avec celui qui r6clame ces deniers. Celles qu'avait avanc6es Carter out finalement rejet6es.
Il est maintenant tout-A-fait sans int6r6t. Le fait que 1'instance Carter est termin6e est done sans importance, et ne pent nullement influer sur la nouvelle instance soulev6e entre Barnard et Molson.
Admettre dans le cas actiiel que 1'opposition est venue trop tard, ce serait presque dirg que les cr6anciers d'un d6fendeur dont la propri6t6 a 6t6 vendue en justice et le prix d6pos6 en cour, ne peuvent pas faire valoir leurs cr6ances sur ces deniers, parce qu'ils se pr6sentent aprbs la contestation principale termin6e, entre le demandeur et le d6fendeur.
I est 6vident qu'on ne pourrait pas plus leur faire cette objection qu'on ne peut 1'opposer & 1'appelant, car dans 'un et 1'autre cas les deniers sont apport6s en cour et pr6lev6s en vertu de 1'ex6cution d'un jugement rendu le 20 Mars 1883, par la cour Sup6rieure, A Montr6al, et d'un autre, rendu par la meme cour, le 31 octobre 1884; que c'est ex- 6cution de ces jugements que la saisie-arr6t a 6mau6e entre les mains de Freeman qui a fait en cour le d6p6t des deniers saisis. Contrairement 6 la pr6tention de l'intim6 que ces deniers n'ont pas pr6lev6s par le shrif ni par aucune autre autorit6 judiciaire, il est 6vident qu'ils n'ont td mis sous le contr6le de la justice que par la seule voie admise, lorsque les deniers on effets du d6biteur sont en mains tierces-la voie de la saisie-arr~t aprbs jugement. C'est le mode indiqu6 par 1'art. 612 C. P. 0.
L'ex6cution des effets mobiliers du d6biteur qui sont en possession d'un tiers peut, dans tous les cas, et doit, lorsque ce tiers ne consent pas 1 leur saisie imm6diate, se faire par la voie de la saisie- BeRnn arrAt.
L'art. 613 indique la proc6dure A suivre pour oN op6rer cette saisie, et 1'article 616 en d6clare les effets - 16gaux, comme suit *et et On voit par ces articles que o'est par saisie en ex6cution d'un jugement que les deniers se trouvent en cour et qu'ils y sont, sous la main de la justice comme le. dit l'art. 616.
L'intim6 1'a lui-mame reconnu dans sa d6fense en droit il s'exprime ainsi:
Puisque les deniers mis sous le contrdle de la cour en vertu d'une ex6cution y sont encore, le droit de 1'appelant de se presenter comme opposant ne pent Atre contest6, pourvu qu'il soit dans l'une ou 1'autre des deux conditions requises par l'art. 753 C. P. C., savoir, que son d6biteur soit insolvable ou qu'll ait un titre ex6cutoire contre lui. Il n'a pas de titre ex6cutoire, mais 1'insolvabilit6 incontestable et notoire de son d6biteur lui donne le droit de se porter opposant sur les deniers lui appartenant, et qui, malgr6 l'opinion contraire exprim6e par 1'hon. juge Mathieu, sont des deniers prdlev6s en ex6cution d'un jugement et cons6quemment soumis A la distribution et i l'opposition en sous-ordre.
est vrai que la saisie qui a amen6 ces deniers en cour a t6 d6clar6e nulle, mais pour une raison qui n'affectait nullement la validit6 de la saisie. Elle 6tait r6gulire de tons points. Mais comme elle ne portait que sur des deniers et des effets qui, sur une contestation entre Molson et Carter, port6e jusqu'au Conseil Priv6, avaient t6 d~clar6s insaisissables, la saisie en fut d6clar6e sans effet.
Cette raison d'insaisissabilit6 affectait Carter qui n'avait pas fait preuve d'une J.
creance alimentaire lui donnant droit d'6tre pay6 sur ces deniers, mais elle ne pouvait 6tre oppos6e A 1'appelant dont la cr6ance est reconnue par la loi comme ayant le mgme caracibre que les deniers saisis et se trouvait privilgi6e sur ces m~mes deniers. Quoique 16galement annull6e par rapport A Carter, cette saisie n'en a pas moins valablement amen6 les deniers saisis devant la cour en vertu d'une execution, et les parties int6ress~es -peuvent y faire valoir leurs droits. Ce principe est consacr6 par 1'ordonnance de 1667, voir Jousse (1).
titre sit
Ce principe ne saurait recevoir d'application plus juste et plus 6quitable que dans le cas actuel, ofi les deniers encore sous le contrle de la cour sont soumis A un privilge reconnu qui serait invitablement frustr6, s ils 6taient remis an d6biteur, puisqu'il est insolvable. I'ailleurs, tant que les deniers ne sont pas actuellement remis A la partie colloqu6e, et qu'ils sont encore entre les mains de la cour, ils sont toujours sons son contr6le et le cr~ancier qui arrive A la dernibre heure n'arrive pas trop tard, s'il arrive avant que les deniers aient Wt pay6s, ainsi qu'il est 6tabli par 1'autorit6 suivante (2) :
arrt tout A Coutumier, p.
in fine, dit tant et et dit procs.
J. Rien dans le code de proc6d.ure n'autorise A dire que l'opposition a t produite trop tard. L'art. 755 semble indiquer que l'opposition en sous-ordre ne sera produite qu'apr~s le rapport de distribution lorsque le droit A une collocation a 6t constat6, la distribution en sous-ordre pent 6tre faite A la suite de 1'ordre et dans le m6me rapport on par un rapport s~par&. Dans le code de proc6dure frangais le sons-ordre n'a lieu qu'apris la, collocation.
est d~fini par Bioche la repartition d'une somme colloqude dans un ordre. Le mme auteur au 580, dit:
cette
Aprs clture Je crois avec l'hon. Sir A. A. Dorion que 1'ordre du 11 septembre, peut dans les circonstances, 6tre consicomme un rapport de distribution on du moins comme 1'6quivalent.
En effet, les derniers avaient 6t6 d6pos~s en cour en cons6quence de l'excution d'un jugement par voie force, et 6taient sujets 6 la distribution, si les crbanciers s'6taient pr6sentis Ce n'est qn'en cons6quence de leur absence, due sons doute, A leur connaissance du caractbre d'insaisissabilit6 de ces deniers, que Molson s'est trouv6 seul et qu'un ordre de lui remettre les deniers a t6 prononc6.
Mais ce fait ne change pas le caractbre de l'ordre rendu. Les deniers dans ce cas pas plus que dans celui d'un rapport de distribution, n'taient paVables qu'd l'expiration de quinze jours en vertu de
'art. 757 0. P. C. et se trouvaient encore sons le contr6le de la Cour 72a comme 'admet Molson dans sa d6fense.
Il y a cependant une diffrence essentielle entre cet ordre et une collocation dans un rapport de distribution. Par la cl6ture de l'ordre il s'ophre an profit du cr6ancier un transport des deniers pour lesquels il est colloqu6, il en devient propri6taire; l'ordre dont il s'agit n'a pu avoir un semblable effet A l'6gard de Molson qui en 6tait le propri6taire avant et en est rest6 le propritaire apras. L'ordre n'a produit aucun transport des deniers qui 6taient toujours sa propri6t6 quoique sons le contr6le de la justice. Son seul effet 16gal se bornait A autoriser le d6positaire A se dessaisir apres le d6lai de quinze jours, des deniers alors sons le contr6le de la justice. L'appelant trouvant encore les deniers entre les mains de cet officier, a pu, vu l'insolvabilit6 de Molson, faire son opposition de mime qu'il aurait pu le faire entre les mains d'un syndic A la faillite de Molson. J'aurais t6 d'opinion de confirmer le jugement de la cour Sup6rieure sur la motion pour paiement d'une 6tant d'avis de renvoyer l'appel en entier, cette opinion ne pent plus avoir d'effet.
Par tons ces motifs je suis d'opinion que l'appel devrait 4tre accord6 avec d6pens.
J.-This appears to be a very simple case.
One Carter, having obtained a judgment against Molson, the present respondent, issued a saidfe-arrdt in the hands of one Freeman. Freeman declared to have in his hands as belonging to Molson a sum of $13,712.50, which sum he, afterwards, was allowed by consent to deposit into court to abide the final judgment.
Molson fyled a contestation of this saisiearret, and by a judgment of the Court of Appeal (1), confirmed in the Privy Council obtained the I30O
[701, IV. quashing of the seizure and inain-levee thereof.
Subsequently, before the said monies were paid over to Molson, Barnard, the present appellant, fyled, as a creditor of Molson, an opposition en sous ordre, claiming to be paid on these monies the sum of $3,932 by privilege.
To this opposition Molson demurred, and by a judgment of the Superior Court his demurrer was allowed and the opposition was dismissed. The Court of Appeal confirmed this judgment, and Barnard now appeals to this court. I am of opinion that the appeal should be dismissed. The conclusions reached in the court below are clearly right. When a saisie-arre? has been quashed by a final judgment, the garnishee's hands are freed instanter, and he becomes liable towards his original creditor, as he was before the seizure. A saisie-arrit is a provisional order, and a conservatory process, attaching monies or movables in the garnishee's hands till otherwise ordered by the court, till the final judgment the attachment. This garnishee is a mere sequestrator.
Arts. 612, 613, 616 C. 0. P.
If the attachment is declared valid he then pays over to the seizing party, or if he has declared to have in his possession movables belonging to the defendant, they are sold en justice.
Arts. 629, 680 C.C.P. If the attachment is quashed he has to pay his original creditor, or hand him over whatever movables belonging to him he has in his hands. There is then no distribution de deniers, no collocation, and it is clear that it is only in the case of such a distribution de deniers and collocation that an opposition en sous ordre lies.
Art. 753 0.C.P.
& saisie-arrat
It is evident here that what this appellant under this guise of an opposition en sous ordre has attempted oLon. was to seize before judgment these monies belonging to Molson, without the affidavit and formalities required jr.
for that proceeding.
Mais aussi m~me cette opposition est subordonnde A la validitS de la saisie-arrbt, says (Roger, Sa.-ar., page 24,)si celle-ci n'est pas d6clar6e valable, lea oppositions au prix de la vente resteront sans effets.... S'ils (lea opposants) craignent que la saisie-exzoution ne soit d6clar6e nulle, la prudence exige qu'ils pratiquent sur les objets saisis une saisie-arr~t suivie d'une demande en validit6 dans toutes les formes voulues pour les modes d'ex6cution de ce nom.
In the same sense, an arrit of 30th August, 1811, 1)alloz (1), declares that:
Attendu que lea saisies-arrbts ne peuvent avoir de suites et d'effets qu'aprbs avoir 6t jugbes valables contra lea parties saisies.
Jousse, Ordonn, 1667 (2), has been cited by the appellant, but a reference to it will show that the passage referred to herein is probably not at all applicable to our system for procedure on the matter, has.reference to a fierifacias and not to a saisie-arril. I refer on the same question to Bioche (3).
Lorsque la saisie-arrbt a Wt dbclar6e valable, (says this author under No. 251,) et que lea deniers arratis sur les prix des effets ne suffisent pas pour disintbresser les crbanciers, il y a lieu A distribution par contribution.
Only where the attachment has been declared valid.
Same author (4), Ordre entre crdanciers (5). Not a single case has been cited by the appellant to support the proposition that when a saisie-arrit has been quashed, there can be had a distribution de deniers or an opposition en sous ordre, for any creditor, privileged or not. A reference to many of these authorities he has cited leaves me under the impression that he may have been misled by the confusion of the two words saisie-arrit and opposition, which in many books, specially under (1) Rep. Vo. Sa.-Ar. No. 249.
(3) Vo.Sa.-Ar. No. 3,130,245,251. (2) P. 464.
(4) No. 736 and 2 Barret. (5) Proc. page 583.
the old system, are used as meaning the same proceedings.
Bioche Vo. Sa.-Ar. No. 1. This author himself entitles oo his article on the subject: Saisie-arret ou opposition. As to the motion ordering the payment to the respon- J. dent of $9,572.72, not only must the appeal be dismissed, but as the case now stands it seems to me that the respondent is entitled to the whole of the monies deposited, in accordance with the judgment of the 11th September, 1885.
The appellant admits this in his factum when he says: " If the opposition be dismissed there is no need of a judgment on the motion." I am of opinion that this appeal should be dismissed with costs, distraits to Messrs. Robertson, Fleet & Falconer, attorneys for respondent.
GWYNNE J.-I do not feel competent to form a decided opinion in this case, but as the justice and equity of the case seems to me to be in favor of the appellant, Barnard, I concur in the opinion of my brother Fournier, that the appeal should be allowed.
Appeal dismissed with costs. Solicitor for appellant: F. L. Beique.
Solicitors for respondent: Robertson, Fleet 4- Falconer. XV.]
ABANDONMENT-Of insured vessel-Agent insure-Authority of, to give notice
- ACTION-On policy of insurance-Limitation timefor-Art.
2-for deceit-Evidence-Setting aside ance-firepresentation
3-On marine policy-Limitation of time-To runjrom deposit . clam-Defective proof- 706
ADJOURNMENT-Of trial of election petitiontrial
AGREEMENT-Construction street railway
-By-law-Notice-Arbitrator-App ointmentof court.] The Quebec Street Railway pany were authorized under a by-law passed the Corporation the city of and agreement executed in pursuance thereof to struct and operate in certain streets of the city a street railway for period of forty years, but it was also provided that at the expiration twenty years (from the 9th February, the corporation might, after notice months to the said company, to given within the twelve months immediately preceding the ration of the said twenty years, assume the ownership said railway upon payment, &c., its value, to determined arbitration, together with ten per cent. additional. Held, reversing the judgments of the courts below,
Fournier J. (dissenting)
, that the company were entitled to full months notice prior to the
9th February, to given within the twelve months preceding the 9th February, and therefore notice given in November, to the company that the corporation would take the railway in months thereafter was bad.-Per Strong and Henry JJ.-That the court had no power to appoint an arbitrator valuator to make the valuation provided for the agreement after the refusal the company to appoint their arbitrator. Fournier contra.
2- Parol-Collateral with written instrument
3--To furnish work contracted to implied-Jmpossibilsty (fperformance-311
APPEAL-Capias-Petition to discharged- Judgment on-Appealable under ch. R.S.C., Arts. C.C.P.]
writ capias having been issued against under the provisions of art. of C. P. (P. he petitioned to discharged under art. 0. P., and issue having been joined on the pleadings under art.
P., the petition was dismissed the Superior Court. From that judment appealed to the Court of Bench Lower Canada (appeal side), and that court maintained the judgment of the Superior Court. Thereupon appealed the Supreme Court of Canada. motion to quash for want ofjurisdiction: Held, that the judgment was a final judgment in judicial proceeding within the meaning and therefore appealable. Taschereau J. dissenting. Stanton Canada Atlantic Ry. (Cassels's Direct from Divisional Court of Ontario- Special circumstances-Decision of Court of Appeal abstract question of law.] It not a sufficient ground for allowing an appeal direct the decision of the trial judge further consideration or of a Divisional Court the High Court of Justice of Ontario, that the Court of Appeal that province had already, a similar case before it, given a decision on the abstract question of law involved the which the appeal was sought, though it might sufficient If such decision had given the same state of facts and the same evidence. 3-Notice-Rules Maritime Court-Effect -R.
and 19-Judgment Surrogate- Pronouncing of-Entry trar.] Rule of the rules of the Court of Ontario requires notice of appeal from decision of that court to the Supreme Court of Canada given within days the pronouncing of such decision.
judgment of the Court was handed the surrogate to the registrar, but not open court, August and was. not drawn up and tered the registrar time after. Held Taschereau, J. dubitante, that notice of appeal within days the entry of judgment was sufficient under the said rule;-Quaere '-Is such rule intra vires the Maritime Court? V.
[S. 0. R. VOL. XVt APPEAL-Continued.
4-In case from Province Quebec-Future rights-Proces verbal of Municipal Council- Improvement of road-it. ch. 29
Cross-appeal--Action for damages-To restore judgment ofcourt offirst instance - ARBITRATION
AWARD - Award - Valsaity of-Faits articles-43-44
(P.Q.)-Art. 0. P.] al.
joint owners of land situate the city awarded under for a portion of said land appropriated the North Shore Railway Company. the al. instituted an action against the North Shore Railway Company, based the award.
The company not having pleaded foreclosure was granted, and on the
April process for interrogatories upon faizs articles was issued, and returned on the
April.
The company made default. the
June the faits articles were declared taken pro confessis. the at.
consented that the defendants allowed to plead, but it was only the July that a plea was alleging that the arbitration irregular and was against the weight evidence the 2nd September, al.
inscribed the case for hearing the merits, which day the railway company moved to authorized to answer the fails articles and the motion was refused.
The notice of expropriation and the award both described the land propriated 1, the plan of the railway comrany deposited according to law, but another part of the notice it described it as forming part cadastral lot and in the award forming part of lots
On
5th judgment was rendered in favor al, for the amount of the award.
From this judgment the railway company pealed to the Court of Queen's Bench (appeal and that court reversed the judgment
Superior Court, holding inter alia the award bad for uncertainty, and that the should sent back to the Superior Court to allow the defendants to answer the fails articles.
appeal to the Supreme Court of Canada, was-Held, 1, reversing the judgment the
Court Queen's Bench (appeal side) that there no uncertainty in the award as the words of the award and notice were sufficient of them.
to describe the property intended to expropriated and which was valued arbitrators. That the motion leave answer faits articles properly refused the
Superior Court.
Taschereau
J. dissenting.
et al.
- - - - - 2.- Appointment arbitrator-Refusal to appoint-Appointment
ASSAULT-With intent to commit rape-Conviction for on indictmentfor rape-R. 183-Punishment
ASSESSMENT TAXES-By-law-City of Montreat-Tazation Jerry boats- Validity by-law-Jurisdiction Harbor Commission 566 ASSIGNMENT-In trustfor Creditors-Creditor attacking-Efect qf-Right to participate in after.] creditor not debarred participating in the benefits an assignment in trust general creditors, an unsuccessful attempt to have such set aside 2-For of creditors-Obtained Dures -Improper use criminal process-Stifling criminal charge.]
trader in Yarmouth, had a number ofcreditors in Montreal. J., one of such creditors, preferred a criminal charge against sent a detective to Yarmouth with a warrant, caused such warrant to indorsed a local magistrate and had brought to treal, when the other creditors there issued writs of capias for their respective claims.
The father of came to Montreal and in consideration the release of both the civil and criminal charges, transferred all his property for the benefit of the Montreal creditors, and was released gaol having given his recognizance to appear the criminal charge. the settlement to the claims of the creditors was added the costs of both the civil and criminal suits. In a suit to set aside the transfer being obtained duress and to the criminal prosecution, the evidence showed that the creditors, taking the proceedings they expected to obtain the security the friends Held, affirming judgment ofthe court below, that the nature the proceedings and the evidence clearly showed that the criminal process was only used the purpose of getting to treal to enable the creditors to put pressure him, in order to get their claims paid or secured, and the transfer made the father under snch circumstances was void. BALLOT - Secrecy of- Dominion election- Waiver of secrecy - Rejection of ballot papers - -- BANK-Taking security from customer-Mortgage surety-Indebtedness principal-Commercial paper - Forged renewals-Release surety
- --- - - BRIBERY--At election-By agent-Abandonment of seat-Recriminatory charges-Refusal to prowith- - - -- BY-LAW-Of City Corporation-Authority to
Street Railway
Agreement under
No- 2-City of Taxation offerry boats- Validity of-Harbor Comm!ssion
Of municipality- otinq on-Tie vote-Returning officer-Casting
Bee
CAPIAS-Petition for discharge from-Judgment on-Appeal-Final judgment-R.S.C.
1358.28
- - - - - See 1.
CASES-Parent Corporation St. Sauveur (2.
2-Stanton Canada Atlantic Railway Co.
Dig. reviewed
3-Porter Flintoff U.C.C.P. distinguished
- - - - - CHATTEL MORTGAGE-Chattel mortgage- Possession of goods under-Right of mortgagor sell-Proviso as to-Ordinary course of trade- Seizure of goodi under execution-Justfication for.] In a chattel mortgage containing no redemise clause there an implied contract that the mortgagor shall remain in possession until default, of equal with an express clause to that effect; and such an implied tract necessarily arises from the nature of the instrument, unless it very expressly excluded by its terms. Porter 4* Flintof U.C.C.P.335)
distinguished -In a chattel mortgage of the stock trade and business of a trader there was a proviso to the that if the mortgagor should attempt to sell or dispose the said goods the mortgagee might take sion of the same as in case of default of payment. Held, that this proviso only prohibited the sale of the goods other than in the ordinary course of business.
(Ritchie C.J. contra.)-The mortgagee of the chattels seized the mortgaged goods under an execution in a suit the debt secured the mortgage.
The execution was set aside as being against good faith. In an action for the wrongful seizure and conversion of the goods-Held, that the mortgagee could not justify the seizure under the mortgage.
1- Arts.
945-Minor- Substitution- Tutor-Right
SUBSTITUTION.
4'7
CIVIL CODE-Continued.
2-Art.
1301-Sale of land-By wife-Debts husband-Simulated
3-Art.
1504-Negligence-Elevator for use tenants-Liability of landlordfor damage 379 4-Art.
1582-84-Litigious rights- Sale of- Practice
- ----- 5-Art.
2184-Marine insurance-Condition in policy-Action-Limitation of time
- CIVIL OF PROCEDURE-Art. Practice-Service of election petition - 2-Art.
225-Validity of award-Faits et articles
- - - - - - 3-Arts. 1953-Secretion goods-Fraudulent
CONDITION-Of policy of insurance-Timefor payment los-Statutory condition-Extension oftime --- - marine policy-Limitation of time for action-Validity of condition- Waiver-Art. C.C.
------ 3-Of marine policy-TWarranty-Time of sailing-Action-Limitation of
CONSTITUTIONAL LAW-Licensedbrewers- License Act-41 (P. Q.)-Conatitutionality of-43 V. ch. (D).)
The inspector of license for the revenue district of Montreal charged a drayman in the employ J. M. & Bros., duly licensed brewers under the minion Statutes, the court Special Sessions of the Peace at Montreal, with having sold beer outside the business premises of J. H. M. & but within the said revenue district in contravention of the License Act, and its amendments, and asked a condemnation of and costs against R. for said
Thereupon J. & and claiming inter alia that licensed brewers under the Dominion Statute, they had a right of selling beer and through their employees and draymen without a provincial license, and that and its amendments were ultra vires, and if constitutional did not authorize his complaint against R, caused a writ of prohibition to issued of the
Court enjoining the court CONSTITUTIONAL LAW-Continued.
Special Sessions the Peace further proceeding with the complaint against Held, per Ritchie and Strong, Fournier
Henry JJ., that the License Act and its intra vires, and that the court of Special the Peace of Montreal having jurisdiction to.try the and being the proper tribunal to decide the question of facts and of law involved, writ of prohibition not lie.-Per Taschereau and Gwynne
JJ., that the was which it was proper for the Superior Court to deal with proceedings prohibition.-Per Gwynne J.-The
License Act of imposes no obligation upon brewers to take out provincial license.to enable them to sell their beer, and therefore the court Special Sessions the Peace had no jurisdiction and prohibition should absolutely.
. (P.Q.)-Constitutionality q'- By-law- Ultra vires-Taxation ferry boats- Jurisdiction of Harbor Commissioners-Injunction.] 1 3 the city of Montreal authorized to an annual tax " ferrymen steamboat ferries; " under the authority of the said statute the corporation the city Montreal passed a by-law imposing an annual tax the proprietor proprietors of each and every steamboat ferry conveying to Montreal for hire travellers any place not than nine distance from the and obtained from the Recorders
Court for the city warrant tress to levy upon the appellant company the said tax each steamboat employed them during the year ferry-boats between
Longueuil and Montreal.
In an action brought the appellant company, claiming that the provincial statute was tra vires of the Provincial Legislature and that the by-law was ultra vires corporation, and asking an injunction, it was Held, affirming the judgment the court Queen's that the
Provincial Legislation was intra vires. 2.
versing the judgment the court below, that the by-law was ultra vires, the words used the statute only authorize single tax the owner of each ferry, irrespective the number.
of boats means which the ferry should worked. the judgment of the court that the jurisdiction the harbor Montreal within certain limits not exclude the right the city to tax and control ferries within limits.
3-Act of incorporation-Provincial Company
Executory contract-Non-fulfilof-Action for price-Temporary exception
-Incidental demand-Damages-Cross-appeal.]
the delivery an engine accordance with
CONTRACT-Continued.
the Herreshoff system to placed the yacht "Ninie"
then in course construction. engine was built placed the yacht, and upon trial was found defective.
the August al. took saisie conservatoire of the yacht and claimed $2 for. the work and materials furnished.
B. petitioned to annul the attachment and pleaded that the amount was not yet 0. al. had not performed their contract, and incidental mand claimed large amount. After various proceedings the saisse conservatoire was abandoned and the Court an from a judgment of the Superior Court favor of both the principal action and incidental demand, ordered that experts named to ascertain whether the engine was built in accordance with the contract and report on the defects.
report was made which it declared that 0. al.'s contract was not carried out and that work and materials of the value of$225 was still necessary to complete the contract. motion to homologate the experts' report, the Superior Court was again called upon to adjudicate upon the merits demand chief and the incidental demand, and that court held that al. had built an engine covenanted them, plea should maintained, but to the incidental demand held the evidence insufficient to warrant a judgment in favor of appeal the Courtot Queen's Bench that court, taking into consideration the fact, that the yacht " Ninie " had, since the institution the action, sold in another suit at the instance of B.'s creditors, and purchased 0. al, the proceeds being deposited in court to distributed amongst B.'s creditors, credited with necessary to complete the engine, allowed damages B's. incidental demand, and gave judgment in favor of C. et at for the balance, viz., with costs. The fact of the sale and purchase of ,the yacht subsequent to the institution the action did not appear the pleadings.
appeal to the Supreme Court of Canada and cross-appeal as to amount al. lowed incidental demand
Court Queen's it was Held, reversing the judgment the Court of Queen's Sir J. Ritchie C.J. J. dissenting, that it was shown that at the time of the institual.'s construction that the engine and machinery therewith connected could not work according to the Herreshoff system, on which system al. covenanted to build it, their action was premature.-Beld also that the evidence in the fully warranted the of allowed the Court Queen's B.'s incidental demand and therefore was entitled to a judgment for that amount on said incidental demand with costs.-Taschereau J. opinion cross-appeal, that B.'s incidental mand should have been dismissed with costs. 738 .
S. C. I. Vot. XV.]
CONTRACT-Continued.
2--Fritten instrument - Collateral parol agreement-Admissibility of of-Work and labor-Security-Lien.] agreement in writing contracted cut for quantity of wood and haul and deliver the at time and to a place mentioned, to pay the same on delivery. The agreement made provision for securing the payment of labor, but when it was drawn up there a verbal agreement between the parties that default payment the as security and for the amount his claim. Held, reversing the judgment of the court below, Henry J. dissenting, that evidence of this verbal agreement admissible the trial of an action of replevin for the assignee and that its a lien on the wood the amount him.
3--Failure of consideration-Impossibility of performance.] When contracts work another the preparation for which involves outlay and expense, a corresponding agreement, in the absence any provision, will implied on the part of the person with he contracts to furnish the work; but implication will be made where, circumstances known to, and in the contemplation of, both parties at the date the agreement to the work it was, and continned beyond the power of the party to carry out agreement.
Henry J. (dissenting)
.
--- - - - - 4-Reacision of-Setting aside of land-Alisrepresentation-Matters oftitle-Fraud
-Action for deceit-Evidence.] party who seeks to set aside conveyance of land executed in pursuance of contract misrepresentation relating to matter title, bound to establish fraud the extent and degree a plaintiff in an action for deceit.-B. bought land described as " parcels containing 18 acres more or less," and afterwards brought action for rescission of his contract, the grounds that believed was buying the whole lot for being acres, and that the vendor had falsely represented the land sold extending the river front. The evidence on the trial showed that had knowledge, before his purchase that portion of the lot had been sold. Hell, atfirming judgment of the court below, that even if was not fully aware that the portion so sold was that bordering the river front, the knowledge he had was sufficient put inquiry as to its situation, and could not recover on the ground of misrepresentation.
5-In chattel fortgagor to remain in possession
CONTRACT-Continued.
By agent firms-Excess of authorit
- - - - - - ELECTIONS-Service Election Petition-Defective-It S. 11-Art. C. P.-Preliminary Province at the defendant's law situated the ground and having separate entrance, delivering thereof defendant's law partner nor with, defendant's family not service within C.,and art. 0. C. P. and preliminary setting maintained the election petition
J. dissenting.) 2- Election petition-Commencement trial- Order efjudge staying proceedings during the session Parliament-Power adjourn-Recrimanatory charges-R. 9, 2 ; and and Bribery agent.] After trial ofan petition trial judge adjourn to convenient.-Where the the trial stayed during parliament of a judge, and a day the trial within statutory period months so extended, day the petitioners with their and witafter hearing adjourned to day beyond statutory to another particulars, already declared inmencement of trial within the and the future proceedings Controverted Elections C. 9,-In petition claiming the seat for the candidate, recriminatory charges brought against didate and the trial judge, after having that the election sitting set corrupt practices, day the evidence the recriminatory Thereupon petitioners withdrew to seat and the judge judgment the election.
That chapter 9 R. longer applied and judge right in refusing tory charges.-Per J, that it competent for trial the recriminatory but his refusal to not a ground reversing the judgment avoiding 3-Sertineer, agency of-Wilfully inducing a voter to take false oath-Corrupt practice-Qualification ofvoters-Farmers' sons-Oath T-Secs. and and and ofch. C.- INDE.
[S. C. R. YoL; XV. CONTROVERTED ELECTIONS-Continted.
Ballot papers rejected-Finding f trialjudge.]
A scrutineer appointed for polling place at an election under the written authority of a candidate is an agent for whose illegal acts at the polling place the candidate will answerable.
-The insisting such scrutineer of the taking of the farmer's son's oath a hesitating voter whose vote objected to and who is registered on the list as a farmer's son and not as owner, when, matter of fact, the voter's father had died previous to the final revision of the list leaving the son owner the property, a wilful inducing or endeavoring to induce the voter to take a false oath as to amount to corrupt practice within and of ch. R. 0., and such corrupt practice will avoid the election under
Strong and Gwynne JJ.
dissenting.-Per Strong J.-1. That reading in conjunction with sub-sec. 2, and the oath T in schedule of R.
an enquiry a scrutiny as to the qualification of a farmer's son at the time of voting admissible, and if it shown that a larger number unqualified farmer's sons votes than the majority were admitted the election will void. (Taschereau J. conra.) Secrecy the ballot is an absolute rule of public policy and it cannot waived.
See. R. A. 0.-On this.appeal, certain ballot papers being objected to, that it will require clear case to reverse the decision of the trial judge who has found a question of fact whether there was or was not evidence that the slight pencil marks or dots objected to had been made designedly by the voter. Also, that where the is not unmistakably above or below the line separating the names of the candidates the ballot bad.
CONVERSION- Ofgoods-Sale under execution
-Goods secured chattel mortgage-Against goodfaith - -- ...- CONVICTION-For assault with intent-Indictmentforrape-B. - PRACTICES-At election8--Bribery agent-Abandonment of seat-Rectiminatory charges-Refusal on
2-At election-Wilfully inducing voter to false oath-Scrutineer, agency of-Farmer'
-- - - - 0OTIRRTED
COUNCIL.- - - - - - COVENANT-To pay rent-MJfixing lease-Conditioisal toenant-Quantity of ore raised - See LEsau 2.
CREDITOR-Attacking assignmentfor benefit of -Right participate after
-See 1.
2-Assignmentfor benefit of-Obtained ress-Improper of criminal process] - CRIMINAL LAW-Criminal appeal-Inlictment for perjury-Eidence ef special facts- Admissibility in answering to faits articles on the contestation of a saisie arrit, attachment, stated among other things "1 st. that owed nothing for his board- 2nd. that he, from about the beginning of to towards the end of the year had paid the board of one the rent of his room, and furnished him all the necessaries of with scarcely any exception;
3rd. that he, F., during all that time, and had no means of support whatever."
D.being charged with perjury, in the assignments of perjury the negative averments the facts sworn to in his answers were distinctly negatived, the terms in which they were made. Held, that under the general terms of the negative averments it was competent for the prosecution to prove special facts to establish the falsity of the answers given by in his answers on fails art-ctes, and the conviction could not aside because of the admission of such proof. Even if the evidence was inadmissible there being other charges in the same count which were pleaded to, a judgment given general verdict of guilty on that count would sustained. Tis
Procedure-Indictment for rape-Convictimfor assault with intent-Attempt-R. s. 183-Punishment.) An assault with intent to commit a felony an attempt to such felony within the meaning of R. 174.-On an indictment for rape a conviction for an assault with intent to rape valid.-On such conviction the prisoner was held properly sentenced to imprisonment under 8.
. c. a.
Jogs Tas Criminal law- Felony -Jury attending church-Preacher's remarks-Infuence jury -Expert testimony
Admissibility.] In the course of a trial for murder shooting the jury attended church in charge of a constable and the clergyman directly addressed them, referring to the of a man hung for murder in P. and urging them, if they had the slightest doubt of the guilt of the prisoner they were trying, to temper justice with equity. The risoner was convicted
Held affirming the ju gment of the Court of Grown bases reserved in Nova Scotia, that although the remarks of the clergyman were highly improper it could not said that the jury were influenced them as to their verdict.-A witness was called at the trial to give evidence a medical expert and in answer to the, crown prosecutor he said, "there indicia in medical science which it can be said at what distancesmall shot CRIMINAL LAW-Continued.
were at the body. have this--not personal experience, but was not cross-examined to the grounds this statement and medical witnesses were called the prisoner confute it. witness then stated the distance the man at which the shot must have the case the court, and on what opinion to it, giving the result amination of the body.
Strong J.
Fournier J. (dissenting)
, that his preliminary statement the witness had establigbed canacity to speak medical expert, and it having been shown cross-examination.
other testimony, that there were indicia as stated, his eyidence to the distance which the shot was was properly
4-Crown ease reserved-Ch. 1'4 and
R.S C.-Construction of-Juror-Personation of-Irreqularity-Cured verdict.]
having been found guilty feloniously having administered poison with intent to murder moved to arrest the judgment the ground that of the jurors tried the had not been returned such. The general ofjurors contained the of Joseph reux and Lamoureux. The special for the term the court, at which the prisoner was tried, contained the of Joseph Lamonreux.
The sheriff served Joseph Lamoureux's summons on Lamoureux, and returned
Joseph Lamoureux as the party summoned.
Lamoureux appeared court and answered to the name of Joseph and was a juror without challenge when was tried.
a reserved case it was Held, per Ritchie O.J.
and Taschereau and Gwynne JJ., that the point should not have reserved the judge at the trial, it not being question arising at the trial within the meaning of
R. C.-Held also, per Taschereau and
Gwynne JJ. affirming the judgment of the
Court of Queen's that assuming the point could be reserved R. S. 0.
clearly covered the irregularity complained
Strong and Fournier JJ. (dissenting)
.
BisEuoiS
Improper use ol criminal process-Obtaining transfer of
CROWN CASE RESERVED 358, 384,401,421
See 1, 2,
DAMAGES
Contract- Non-fulfilof-Actionfor price
2-Action against landlordf-Elevator for of tenants-Negligence of in charge of
-Yindictive
DECErT-Aetionfor-Setting aside conetyance-- DEVISE-Re will
Absolute
Subsequent re- DURESS-Obtaining transfer by-Improper ELECTION PETITION-Service of-Defectivq -Prelminary objections-R. c. S. Art.
2-Commencement of trial of-Rtaying' ceedings-Session of Parliament-Power adfourn-Recriminatnry charges-R. e. . ss. and 2 and as. and 42-Bribery
3- Scrutineer, agency of-Taking false oath- Wilfully inducing-Qualificition vnter-Farmen' sons-R.
.
C. and -Ballot papers rejected-Findings of trialjudqe -Appealfrom
-- --- ESTOPPEL -Judgment in licitation-Eect - - ----- EVIDENCE-Of parol agreement-Collateral with written instrument-Admissibility - 2-Sale of land-Misrepresentation--Eidenee 3-Criminal trial-Pedjury-Spoecial facts- 4--riminal trial-Murder-Expert testimony 5-eiht of-Purchase of land-Joint tiations for - Deed to only - Resulting trust - - - - - - LARDm
6-0oficers of corp'wation-Examination for discovery-R. cA. faith-Seizure goods under-Instifeation seizure under a mortgage
- - - - - EXPERT-Eidene admissibilit--Criminal tridlt-Murder
CarxxA.
EXPROPRIATION-Of land - Arbitration - FRAUD-Setting land for- FRAUDlULENT PREFERENCE---Capias-Petition to discharged--Judgment on-Appealable under ci. R. Arts 0.
P.-Fraudulent preference- Secrecy-Art.
P.-Promissory note desdounte '-Arts
C. P (P.Q.)]
writ of capias having been issued against under the provisions of art. of 0. P.
etitioned to discharged under art. C.
P., and issue having joined the pleadings under art. 0. P., the petition was dismissed by the Superior Court.
From that judgment appealed to the CourtofQueen's
Bench for Lower Canada (appeal side) and that court maintained the judgment of the Superior
Court. Thereupon appealed to the Supreme
Court of Canada.
motion quash for ofjurisdiction.
Reld, that the judgment was a final judgment in a judicial proceeding within the meaning of ch. and therefore appealable-Taschereau J. dissenting.
,Stant.n v. Canada Allan (Cassell s
Dig. reviewed.-On the merits it was :
Held, per Ritchie Fournier and Taschereau
JJ. that a fraudulent preference to one or more creditors is a secretion within the meaning art. C.P. Also, that endorser of a note discounted bank has the right under art. 19530. to avail him self the remedy provided art. 0. P. if the maker fraudulently disposes of property.
(Strong,
Henry, Gwynne JJ. contra.)-The court equally divided the appeal was dismissed with- INSURANCE, FIRE-Description propertycompany in an application for insurance on a building built of boards and the premium at the rate demanded brick buildings, there being no tariff value for board buildings.
The words "boards " was badly written that it was difficult to decipher it, but the character of the building was designated diagram the back of the application which the agents were instructed to mark with red in case of a brick, and black case of frame building. In this case it was in black. At the head the word intended for boards was read " brick," and the policy issued as on brick building. A having occurred the company, under a clause the policy, caused an arbitration to had, but afterwards refused to pay the amount awarded to the insured, claiming that reason of the error in the policy there was existing contract of insurance. Held, affirming the judgment the court below, that as there had been no representation by the assured, and no mutual
INSURANCE--Continued.
mistake, the parties were ad idem and the tract was complete, and even if it were otherwise the company could not set up this defence after treating the contract as existing the reference to arbitration under the policy.-By the condition in 0. a loss not payable until days after the proofs of are put unless otherwise provided statute or agreement of the parties. f1eld, per Ritehie C.J. and Fournier, Henry and Gwynne JJ. that this privilege accorded to company, and while the time may further limited agreement it cannot extended.-Per Strong, J.-That a variation the condition inserting a clause the policy extending the time to days not a variation agreement of the parties, nor such varied condition just reasonable
MARINE-Insurable interest- Not disclosed when policy issued-Notice abandonment-Authority agen'.] The part of may insure the shares of otherowners with without disclosing the interest really insured, under policy issued to himself insuring the vessel " for whom it may concern." agent effecting insurance under authority for that purpose only, may, in case give notice abandonment the underwriters without any other special authority. MAIs
Condtion ofpolicy-Validity of-Claim made within stipulatea policy-Art. U.-Waiver.] condition a marine policy that all claims under the policy shall void unless prosecuted within one year date of loss, a valid condition not contrary to art. and all claims under policy will barred if not sued on within one year from the date of the loss.-The plaintiff cannot rely appeal on waiver of the condition, unless such waiver has properly pleaded.-Per Taschereau, J.-The debtor cannot stipulate to enlarge the day to prescribe, but the creditor may stipulate to shorten that delay.
INS. Co.
3-Warranty in policy- of sailing-Action on Volicy-Limitatioa of time-Defective proof-il hether time runsfrom filing ef A sel insured a voyage from Charlottetown to St. Johns, left the wharfat Charlottetown on December with the fide intention commencing her voyage. After proceeding a short distance was obliged, stress weather, to anchor within the limits of the harbor Charlottetown and remained there until December when proceeded on her voyage. 11eli, that this was a compliance with a warranty in the policy of insurance to sail not later than December but breach of warranty to sailfrom the port of Charlottetown not later than December 3.-A in a marine policy required action to brought on it within twelve INSURANCE-Continued.
months from the date of depositing claim loss or damage at the of the assurers.
protest was deposited, accompanied a demand for the insurance.
The protest was defective and months later an amended claim was deposited. Held, affirming the judgment of the court below, that an action begun more than twelve months after the original, but less than twelve months after the amended claim was deposited, was too late.
- --- JUDGMENT-of Divisional Court-Or trial
Judge on Jurther consideration-Appeal from- Direct
Maritime Court-Appealfrom-Time appealing-Pronouncing or entry
JURY-on criminal trial-Attending church- Preacher's remarke-Efect of
2-Personation of juror-Irregularity- Case
LAND-Expropriation of-Arbitration-Validity of award-Faits et articles-Art. C.C.P.
Sle of-Misrepresentation-Setting aside conveyance
- - - TENANT-Elevator-For use of tenants-Negligence in charge of-Lbamage to tenant-Liability of landlord- Vsndictive
LEASE- Written instrument-Construction of- Lease or license-Authority to work-8 Anne ch.
an indenture describing the parties as lessor and lessees respectiiely the granting part as follows: " Doth give, grant, demise and lease unto the said (lessees) the exclusive right, liberty and privilege of entering at times for and during the term often years from
1st January, in and upon (describing the land) and with agents, laborers and teams to search for, dig, excavate, mine and carry away the iron in, upon or under said premises, and of making all necessary roads, also the right, liberty and privilege to erect on the premises the buildings, machinery and dwelling houses required in the business of mining and shipping the said iron ores, and to deposit said promises all refuse material taken out mining said ores."
There was a covenant the grantees not to do unnecessary damage and a provision for taking away the erections made and for the use of timber the such of the surface as might needed.
LEASE-Continued.
The grantees agreed to pay twenty-five cents for every of mined, in quarterly payments certain days, and it was provided how the quantity should ascertained. It was also agreed that the royalty should not less than certain sum in any year.
The grantees also agreed to pay all taxes and not to allow intoxicating drinks to manufactured on the premises or carry on any business that might There terminating the lease the expiration the term and covenant the lessor for quiet enjoyment. In an interpleader issue, where the lessor claimed a lien on the goods of the lessees for a year's rent due under the said indenturs virtue of Anne 1, Held, Ritchie O.J. and Henry and Taschereau JJ. that this instrument was not a lease but a mere license to the grantee to mine and ship the iron ores, and the grantor had no lien for rent under the statute. Strong, Fournier and Gwynne JJ. 2-Mining lease-Covenants-Liability pay rent-Quantity and quality ore found-Right terminate lease.] In a lease of mining lands the reddendum was as follows: " Yielding and paying therefor unto the party of the first part one dollar per gross ton of twenty-two hundred and forty pounds of the said iron stone or ore for every ton mined and raised from the said lands and payable quarterly the first days of June, September and December in each year."
The lease contained, also, the following covenants the lessee:- " The parties of the second part for themselves, their executors, covenant and agree to and with the party of the first part, her heirs, that they will dig up and mine and carry away, in each and every year during the said term, a quantity of not less than two thousand tons such stone or iron for the first year, and a quantity not than thousand tons a year every subsequent year of the said term, and that they will pay quarterly the sum of one dollar per ton aforesaid for the quantity agreed to taken during each year for the term aforesaid."
"And the said parties ofthe second part covenant and agree to and with the party ofthe first part that they will pay the said quarterly rent or royalty each year, and if the same shall then exceed the quantity actually taken, such excess shall applied towards payment of the first quarter thereafter in which more than the said quantity shall taken, and that they will protect such openings as they shall make to insure the same against accident, and will indemnify the party of the first part in the event of the same happening and against all costs of prosecution and defence thereof." There was provision that the lessor should be at liberty to terminate the lease in nonpayment of rent a certain period, and if the iron or iron stone should exhausted, and not found or obtained proper and reason- LEASE-Continued.
able paying quantities, then the should at liberty determine the lease.
Held, affirming the judgment of the court below,
Ritchie C.J. and Pournier J. (dissenting)
, that this lease contained an absolute covenant the to pay the rent in any event, and having terminated the lease under the above proviso, was not relieved from such payment in consequence of ore not being found in paying
LESSOR LESSEE-Minin1 lease-Covenant-topay rent-Conditional-Quantity of raised-light terminate
LICENSE-To brewer-Quebec License Act-41
V. (P.Q.)-Constitutionality of-43 V. 19
- - - - ----- 2-Written instrument-Lease or license - Au- LICITATION-Tudgment in-Efect of-Estop- -48
LIEN-Work and Labor-Written contract- Collateral parol agreement-Security
- 2-or rent-Construction of instrument- LITIGIOUS RIGHTS-Litigiouarights, sale of- Arts. § 0. (P.Q.)]
holder shares upon transfers from al., the capital stock of the St. Gabriel
Mutual Building Society. At the time of the transfers the shares in question had declarforfeited for non-payment of dues.
Subsequently Superior Court judgment rendered in a suit of one other shares, which had confiscated for similar reasons, were declared to valid and to have illegally forfeited.
Thereupon a petition for writ mandamns asked that recognized a member the society and paid the amount dividendd already declared in favor of and paid to other shareholders.
B.'s action was met, amongst other pleas, one setting forth that had acquired under the transfers in question litigious rights and that, law, was only entitled to recover the respondents the amount actually paid for the together with legal interest thereon, and cost transfers. Held, the judgment of the court below,
Fournier and Henry JJ. (dissenting)
, that at the time of the purchase of said shares, was a buyer litigious rights within the provisions
Art. 0., and under Art. could recover the liquidators the price paid with interest thereon.-Also, that the ception Art. § of only applies to
E .
EhS
C. R. VOL. XV. LITIGIOUS RIGHTS-Continued the partidular demand in litigation which has confirmed a judgment of a court, which having been made clear evidence ready judgment.
MARITIME COURT-Rules of-Appeal to Su- Court from-Validity of rule regulatingfor
MINE-Authority work-Lease or license- 2-Mining lease-Covenanis-Constructson of -Liability to pay rent-Conditional covenant for
- ---- - MINOR-Tutor ad to-Right of intervention -Trustee estate-Action for removal of- MISREPRESENTATION-A party who seeks to set aside a conveyance land executed pursuance of contract of sale, for misrepresentation relating a matter title, bound to establish fraud to the extent and degree as a plaintiff in an action for deceit. MORTGAGOR MORTGAGEE - Chattel mortgage-No redemise clause-Implied contract -Possession mortgagor-Sale of good by mortgagor-Ordinary course business-Seizure under execution-Against good faith-Justifica- Collateral security for mortgage-Promissory note-Accommodation-Partnership-New mortgage-Dissolution of partnership- Retirement of borrower note-Liability remaining partner - -- -- Mortgage surety-Collateral security- Indebtedness principal-Commercial paper- Forged renewal-Release surety
- MUNICIPAL CODE-Arts.
Municipal Council-Procas-verbal homologated -setting aside-Practice
MUNICIPAL CORPORATION-Municipal corporation-By-law--Voting ratepayers Casting by returinq ,fficer-R. S. O. sub-sc.
In case of tie voting a municipal by-law there no authority to the returning to give casting vote of S. O.
not applying to vote.
MUNICIPAL COUNCIL-Powers of-Improveof roads-Procas verbal homologated- MUNICIPAL COUNCIL-Continued.
Efect of M. U. (P.Q.)-Appeal-R. Where verbal a Council directing improvements to made portion road situated within the municipality has duly gated, it cannot subsequently set aside incidental procedure, but, like a by-law, it only attacked direct procedure indicated in the Municipal (P. Arts.
Parent v. Corporation Sauveur Q.
approved.-By procs verbal made the Council Ste. Anne
L'Isle a portion the road fronting the land of was ordered improved raising and widening it.
R.'s refusal to the work the council hadit paid it and subsequently sued the said
The Court of Queen's appeal judgment favor the
Council for that amount. appeal to the
Supreme Court it was : Held, per Fournier,
Henry and JJ. (Strong and Taschereau
JJ. (dissenting)
, and Ritchie C.J. expressing opinion the point) that although the matter controversy did not amount yet, it related charge the appellant's land whereby rights future might bound, the appealable.
CORPORATION DE
*
MTURDER-By shooting-Trial-Empert testimony-Admissibility of-Distance which fired
- --- NEGLIGENCE-Elevator-Negligence ees-Liability of landlord-Damages-Art.
0. C damages-Cross-appeal the April, an architect, had his the third flat of building the city Montreal, in which landlord had placed elevator for the the tenants, desiringto his went towards the admitting to the elevator and seeing it entered, but the elevator not being there, into the cellar and was seriously injured.
In an action brought C. against the landlord, claiming damages the injury it was proved at the trial that the boy, charge elevator, at the time the accident had left the elevator with the door to lunch leaving substitute charge. Itswas shown also that had seriously fracture to skull, had obliged follow many months expensive medical treatment and bad almost incapacitated the his profession.
had in the habit using the elevator during the absence the boy. trial judge awarded $5 damages. and on appeal to the Court
(appeal side), that amount was duced to on the ground that was not entitled to vindictive damages.
appeal to
NEGLIGENCE-Continued.
.
the Supreme Court Canada; Heid, the judgment the court below, that R. was liable for the fault, negligence and carelessand that the amount awarded not unreasonable.-Held also, that the of awarded Superior Court was not an unreasonable amount and could said include vindictive damages, but cross-appeal had taken the judgment the Superior Court could not restored. v. -3---railway company-Sparks from engine fire adjoining land-Presumption of fire-bapse of ------ NOTICE-To Street Railway Co.-Agreement 2-O/ appeal-Tudgment Maritime Time for
OPPOSITION-En ordre-Moneys deposited court-A't.
PARTNERSHIP-Liability partner for prior debt of co-partner-PromissorY note-Collateralfor partnership debt-Release of maker.] P. lent an accommodation note which deposited with as collateral security a mortgage debt. and afterwards went into partnership and new mortgage partnership property was given to N.'s debt, the note being still left with
The partnership being dissolved, B. agreed to pay all debts of the including the mortgage, and settling the accounts between himself and the mortgagees, was given credit for the amount of the note which P. had paid the mortgagees. P. sought to recover the amount paid. Beld, reversing the judgment of the court below, Ritchie C.J. and Fournier dissenting, that having authority to deal with the note as pleased, and having it collateral rity for the joint debt of himself and such security being realized the mortgagees the amount credited the joint debt, P., the surety, could recover it either of the debtors ;-Smble,-Assuming P. not to have liable to pay the note the mortgagees and that it was voluntary payment, it having credited the mortgage debt, and having adopted the payment the settlement of the accounts between and the mortgagee, was liable repay it. PERJTURY-Indictment for-Evidence trial- 8pecialfacts-Admissibility
1NDMX.
rS. 0. R. VOL. XV. PERSONATION-Of juror-Criminal trial- Irregularity-Verdict-Case reserved - PETITION-for discharye from capias-Art.
C. P.-Judgment on-Appea-R. 3.
135s.
- - - - - POLICY-of insurance against fre-Description of property-Error in-Mutuality - Statutory condition-Time of payment-Extension of- 69
2-Marine policy-Part owner of vessel-Insurance "for it may concern "-Disclosure ofinteret-Agent insurance-Notice
3-Marine policy-Condition in-Limitation of action-Validity of condition- Waiver - 4-Marine policy- Warranty in-Time of sailing-Action-Limitation time for - PRACTICE-Continued.
right of setting aside the deed sale, for which her mother had received good and valuable 2-Opposition en sous ordre-Moneys deposited in hands of prothonotary-C. P. Art. per Ritchie C.J., Strong and Taschereau JJ., affirming the judgment of the Court Queen's Montreal, that where moneys have voluntarily deposited garnishee in the hands of the prothonotary, and the attachment of such moneys subsequently quashed a judgment of the court, there being then no longer any moneys subject distribution or collocation) such moneys cannot claimed an opposition sous ordre.
Fournier and Gwynne JJ. (dissenting)
, the ground that the moneys still subject to the control the court at the time the opposition sous ordre was such opposition was not too late. 3-Election petition- Defective service of-R. 11-Art. P.
4-Trial of election petition-Commencement of-Power adjourn-Staying proceedings- Session of Parliament
PRACTICE-Judgment in licitation-Binding parties it-Contitutionality of an act of incorporation- When its validity can ques- Proc s verbal of municipal council tionedand whom.] The Island of Anticosti, gated-Improvement road-Setting aside-Inheld a number of people, cidental procedure-Arts. was licitation for
The report of distribution allotted to (plaintiff)
for his share, as owner of one-sixth of
Action for damages-Damages reduced the island acquired Island of Anticosti provincial court of appeal-Resring original Company, had previously acquired onejudgment-Cros-appeasixth from Langan, widow of
Forsyth.
respondent's claim was disputed
7-Evidence-Examination far discoveryappellant, the daughter and legal repre- O'cers Corporation-H. S. 0. sale her through her attorney, L. F., the one-sixth to the Anticosti Company was nullity, because the act incorporating the
8-Sae of litigious rights-Art. and pany ultra vires of the Dominion Government, and that the sale L. F., as attorney for mother, himsel , representing the
Anticosti Company, was not valid.
The Anti- PREFERENCE-To creditors- Fraudulent- Secretion ofgoods-Art.
party;
the appellant prior judgment, attacking either
PRELIMINARY OBJECTIONS election the constitutionality of the Island of Anticosti petitign-Defective servece-l. C. c. 9 s. 11- Company's charter or the status of the plaintiff,
Art. C.C.P-- - - - now respondent. Held, affirming the judgment
C.J.
dissenting, that as Dame 0. Langan her- PRINCIPAL AGENT-Contract agent self recognized the existence of the company, oftwofirms-Sale ofgoodsfor sum-Excess and the appellant, her legal representative, authority.)
agent two independent was a party the suit ordering the licitation of and unconnected principals has authority the property, the appellant, could not now hind principals or either them the a report of distribution, raise the constituthe ofboth lot when articles tional question as to the validity the act of included sale are dikerent kind the Dominion Parliament constituting the are for a single lump price not susceptible pany, and was now estopped claiming the ratable apportionment except the arbitrary will the agent.-There can no ratification of such a contract unless the parties whom it sought to bind have, either expressly or impliedly conduct, with a full knowledge
6f all the terms the agreement to the agent, assented to the terms and agreed to bound the contract undertaken their behalf.
2-Candidate at Election- Bribery by-Abandonment of seat-Recriminatory charges-Refusal
3-Of candidate at election - Scrutineer- Agency of- Wilully inducing voter take false oath------ -- 4-To efect marine insurance-Notice of abanby-Authority
PROHIBITION-Writ of-Sessions of the Peace
-Proceeding against licensed brewers-48 V. c.
(D)-Quebec
PROMISSORY NOTE-Discounted Bank- Right of indorser-Fraudulent secretion of goods maker-Art.
2-Accommodation - Collateral security for mortgage debt of indorser-Payment maker- Recourse against partner and Co-mortgagor indorser
- - - - - PUNISHMENT-Indictment for rape-Conviction for assault with intent-It. S.
-3-- -Sparks from engine-Lapse of time discovery of fire-Presumption as cause of fire- Defective engine-Negligence-Examination for discovery-Oifficers ofCorporation-R. S.0.
Railway Company passed the plaintiff's farm about a.m. and another train passed about noon.
time after the second train it was discovered that the timber and wood plaintiff's land was which spread rapidly after being discovered and destroyed a quantity of the standing timber said land. In an action against the company it was shown that the engine which passed at jury that
RAILWAY RAILWAYS COMPANIES -Continued.
the engine first passing, that it arose through negligence the part of the company, and that such negligence consisted in running the engine when she was a bad thrower and dangerous.
Held, affirming the judgment the Court of Appeal, that there being evidence to justify the jury finding that the engine which passed first was out of order, and it being admitted that the second engine was good repair, the fair inference, in the absence any evidence that the came from the latter, was that it came from the engine out of order, and the verdict should not disturbed.-Held also, Henry J. dissenting, that the locomotive superintendent and locomotive foreman of a railway company are of the corpora- " tion " who may be examined as provided R. 0.
and the evidence of such to the conditions of the respective engines and the difference to danger between wood burning and coal burning engine, taken under said section, was properly admitted the trial of this cause; and certain books the company containing statements of repairs required, on these engines among others, were also properly admitted evidence without calling the persons whom the entries were made.
Ry. RAPE-Indictment for-Conviction for assault with intent-Attempt-R. S. Punishment - --- - RENT-Mining lease-Covenant to pay-Conditional--Quantity of raised
- OFFICER-At -Vote by-law-Tie-Casting
- SALE OF GOODS-Under execution-Against good faith-Eecution set aside-Justification under mortgage - - - - - 2-By agent oftwo firms-Goods of both principals-Single price-Excess of authority - OF LAND-Purchase of land-Joint gotiations-Deed only- Evidence-Resulting trust.]
& jointly negotiated for the purchase land, and was given to alone, a portion the purchase money being secured the joint notes of &
In an action 8. to have it declared that had no interest the property; Held, versing the judgment of the court below, and confirming the judgment of the trial judge, Henry J. dissenting, that the evidence greatly that the purchase was a joint one himself and [8. 0 i. VoL, XV. SALE OF LAND-Continued.
that tained portion of the purchase money there trust
2-By to debts due her band-8imulated deeds-Art.1301 0.0.1 Where the sale of real estate the wife, duly separated as to property her husband, to her husband's creditor shown to have intended to operate a security only for the ayment of her husband's debts, such sale will e set aside a contravention of art.
(P.Q).-Per Strong J. dissenting.
trial judge's finding the present suit that the of sale were not simulated should
SCRUTINEER-At election-Agency of- Wilfully inducing voter take false oath-Farmers' sons-- - - SIMCRETION-Of goods-Fraudulent preference-Art. C.C.P.
SESSION OF PARLIAMENT-Staying proceedinqs election trial during-Commencement of trial- --- -- STATUTES-8 Anne 1 (Imp.) - R.S.C. ch. and45 495
9sec.
4-R..C.
and
---- - R..O.
6-R.S.C. (b)
7-R.S.C.
R.S.C. ch. 384
9-R.S.C.
ch.
12-R.S.O. ch.
STATUTES-Continued.
15-43-44 (P.Q.) And CONDITION-in policy of insurfor payment of loss- Extension - - - ----- SUBSTITUTION-Minors-Tutor ad hoc-Infervention-Status-Arts. 0. C ] In an ship instituted the party who had appointed the defendant trustee and curator to a substitution created marriage contract, a tutor ad to the minor children and appells to the substitution has not sufficient quality intersaid suit to represent the minors. Art. Mortgage security-Present indebtedns principal- Commercial paper-Mode of dealing bank.) gave a mortgage the M. Bank security for the present indebtedness of, and future advances a customer of the bank. the terms of the mortgage was to liable, amongst other things, th6 promissory notes, the customer outstanding at the date the mortgage, and all renewals, alterations, and substitutions thereof. Held, per Ritchie J., Fournier and Taschereau JJ. That the bank having given up the said promissory notes, etc., and accepted, as renewals thereof, forged and worthless paper, was to the extent of such worthless paper, relieved from liability as such surety.-el, per Strong J.- That the bank having accepted the renewals the ordinary course banking business, and not being shown that they were guilty of negligence, the surety was not relieved.-11eld, Gwynne J.-That there was a reference ordered take an account of the notes alleged to the consideration of the surety's liability should postponed until the account was TITLE-To land-Mirepresentation as to-Setting
TRIAL-For perjury -Evidence of specialfacts TRIAL-Continued.
For rape-Conviction /or assault with intent-Validity of-Punihment
3-For murder-Shooting-Expert testimony- Admisibility-Jury attending church-Preacher's remarks-Influence on jury
- 4- Criminal trial-Peronation of juror- Effect of verdict-Irregularity-R.S. V.
- - - - - - Of election petition-Commencement of- Power adjourn
TRUST TRUSTEE-Purchase of land- Joint negotiationa-Deed only-Evidence
-Resuling trust
2-Removal of trustee-Curator to substitution
-Minors-Right tutor ad to intervene
TUTOR-Ad hoc-Minor-Action to accountftemovalfrom trusteeship-Right qf tutor to intervene
- - - - - ULTRA VIRES-Rule of Maritime Court- Appeal Supreme Court of Canada
2-By-law-City of Montreal-Tazation ferry-boate
- - - - - 3--Quebec License Act-Licensed brewers-41
V. (P.)
VARIATION-In statutory condition of policy of insurance-Just
VERDICT-rn criminil trial-Effect of-R. C. c. a. 246-Personation ofiuror - VOTE-On municipal by-law--ie-Returning VOTER-At election for Rouse of Commons- -Qual cation of-Farmers' sons-Taking false WAIVER-Of condition in policy insurance- Necesstyfor
WILL-Devise under - Absolute-Subsequent re. airsctson-Repugnancy.] testator directed his real estate to and the proceeds, after payment of debts and certain legacies, to divided into twelve equal parts, of which I give and devise to beloved daughter four which I give and devise to F. (daughter), and three of which, subject to the conditions and provisions hereinafter set forth, I reserve my son M. But in no shall any creditor of either my children, any husband of either of children, daughters, have any claim or demand upon the said executrices, but their respective shares shall be kept and the interest, rents, and profits thereof shall paid and allowed to them annually * *
* during their respective lives." In an action by the daughters to have their shares paid over to them untrammelled any trust-Held, the judgment of the court below, that it was clearly the intention of the testator that the daughters should only receive the income from the shares during their - - - - - -
Statutes and regulations cited
-
Unresolved citations
- s. 183
- s. 11