52. And if the defendant pleads defense en fait he will be condemned in the costs. Ib. 53. And the surveyor in his report is not obliged to state that the parties have signed or have been requested to sign. Ib. 54. In an action en bornage a surveyor must first be appointed to visit the properties and make a report, pointing out the separation lines between the parties; and an interlocutory judg ment which pretends to order the fixing of boundaries between the parties without occasion being had to be heard on the report of the surveyor is irregular and will be set aside." Brown & Perkins, 6 Q. L. R. 143, Q. B. 1880. 55. The proceedings of a surveyor in obedience to such an interlocutory order cannot be validated without subsequent homologation of the report. Ib. 56. And when the case has been reported to a surveyor before enquete, and with power to the surveyor to hear witnesses, it is not competent to the parties, without the special permission of the court, to adduce evidence before the court of the same facts as those concerning which the surveyor himself heard witnesses. Plante v. Legendre, 6 Q. L. R. 201, S. C. 1880. 57. And where a person brings an action en bornage, without previous demand, and joins with it a claim for damages, of which no proof is made, he will be condemned to pay the costs of suit. Rochon v. Coté, 21 L. C. J. 273, S. C. 1877. X. EN COMPLAINTE. 58. The adjudicataire of an immoveable sold by licitation, who takes possession of the immoveable, cannot be sued en complainte by the possessor of the property, especially if he has been a party to the action. Hus v. Joseph, 7 R. L. 90, S. C. 1875, & 9 R. L. 56, Q. B. 1879. XI. EN DECLARATION DE PATERNITÉ. 59. Action by plaintiff, a minor, assisted by his tutor in declaration of his paternity. Plaintiff was the illegitimate child of one Martha Dawson, by whom he was born in January, 1865, according to her story; but, according to a Doctor Lawrence, in January, 1874. In order to corroborate the statement of the mother, a pretended certificate of baptism was produced, which stated that the child was baptized in May, 1875, by a Rev. M. Woodrich, but did not state of what church, parish or congregation, nor as to the register in which it was entered, *If the parties do not agree the court names a sworn surveyor, whom it charges with making a plan of the locality, shewing the respective pretensions of the parties, and with making such other operations as it may deem necessary. 942 C. C. P. The surveyor thus named is bound under his oath of office to proceed in the same manner as experts. 943 C. C. P. If the parties desire it, more than one surveyor may be appointed. 944 C. C. P. The fixing of bounds, the verifying of ancient boundaries, or rectifying of division lines is ordered in conformity with the rights and titles of the parties, and is done by the person named by the court, who proceeds in accordance with the judgment, and, if necessary, places boundary marks in presence of witnesses. in accordance with the provisions contained in chap. 77 of the C. S. C., and must draw up a statement of his operations, and return the original of such statement into court. C. C. P. 945 | nor whether any was kept by the minister, nor as to his official character. The paper was not signed by the minister, but by one Chapman. Such was not an extrait de baptême according to Art. 45 of the Civil Code.* Action dismissed sauf à se pourvoir et sans frais. Osgood & Goodenough, 7 R. L. 719, S. C. 1877. 60. An action in declaration of paternity and for maintenance for the child may be joined with an action of damages for the mother resulting from the seduction. Kingsborough & Pownd, 4 Q. L. R. 11, Q. B. 1878. And held, also, that such action may be brought by the mother in her own name. Ib. XII. EN DESTITUTION DE CURATELLE. 61. To an action to set aside the appointment of a curator to an interdict on the ground that he lived in Ontario, and that plaintiff was dependent on her father and unable to compel the defendant to contribute thereto, defendant pleaded that he was known to be living in Ontario at the time of his appointment, and moreover plaintiff had since married and was not now dependent on her father for support. The plea was dismissed on demurrer. Legge v. Legge & Simpson, 3 L. N. 160, & 24 L. C. J. 83, S. C. 1880. XIV. EN REDDITION DE COMPTE, see ACCOUNT. 63. Action was brought by appellants en reddition de compte of the respondent's administration of Mrs. H.'s estate. The respondent produced an account, and notified the appellants to file any contestation which they might have to make to the account produced within a delay stated. No contestation was made, and appellants were foreclosed from contesting-Held, that the foreclosure must be maintained. Hart & Hart, 3 L. N. 24, & 24 L. C. J. 161, Q. B. 1879; 527 & 530 C. C. P. *Acts of Civil Status are inscribed in two registers of the same tenor kept for each Roman Catholic parish church, each Protestant church or congregation or other religious community entitled by law to keep such registers, each of which is authentic, and has in law equal authority. 42 C. C. The duplicate register so kept must, at the instance of the party keeping it, be presented to one of the judges of the Superior Court, or to the prothonotary of the district, or to the clerk of the Circuit Court instead of the prothonotary in the case specified in the Statute 25 Vic. cap. 16, to be by such judge, prothonotary or clerk numbered or initialed in the manner prescribed by the Code of Civil Procedure. 45 C. C. & see Note to Art. 15, page vi, C. C. 64. Proceedings between partners en reddition de compte of the partnership. Bourgoin & Plante, 9 R. L. 461, Q. B. 1876. 65. The appellant brought suit against the respondent, alleging a purchase by them jointly of certain promissory notes and securities which the respondent collected for their common profit, the appellant's share acknowledged by the respondent being $713.75. The appellant added the common assumpsit counts, and prayed for an account in the usual form with vouchers, and that in default the respondent should be condemned to pay the said sum of $713.75--Held, on demurrer, that the demand for an account was not warranted by the allegations of the plaintiff's declaration, and was not the proper remedy for the cause of complaint therein stated. Michaud & Vézina, 6 Q. L. R. 353, Q. B. 1880. XV. EN REINTEGRANDE. 66. In an action en reintegrande the plaintiff alleged a public and peaceable possession of more than a year and a day à titre deproprietaire, and generally a possession of upwards of twenty years prior to the 1st May, 1876,but in his answer to the defendant's plea that his possession up to 1856 was for his son, and from 1856 was as usufructuary only, and no interversion was proved-Held, that the action was properly dismissed. Rhicard v. Chicoine, 24 L. C. J. 47, S. C. R. 1879. XVI. EN REMÉRÉ. 67. Action en reméré under a deed of sale. The court at Sorel dismissed the action on the ground that the plaintiff had not tendered the price, and besides that the action had been instituted too late, being returned after the expiration of the delay fixed for the exercise of the privilege of reméré. Judgment confirmed. XVII. EN REPÉTITION, see PRESCRIPTION. 68. Plaintiff having brought an action in the Superior Court, which was dismissed, wished to appeal, but in order to avoid giving security for costs paid the taxed costs of the opposite party to the attorney who had obtained distraction, but under reserve of their rights in case the judgment should be reversed. The judgment was reversed, and the plaintiff then sued the attorney to whom he had paid to get his money back on the ground of having paid in errorHeld, there was no error, and that the attorneys having obtained distraction he had no right to recover. Holton v. Andrews, 3 Q. L. R. 19, S. C. 1876. 69. The husband of the plaintiff in order to raise money mortgaged her property without her knowledge or consent. Having thereby rendered himself liable to imprisonment, his wife in order to secure his liberty became bail for him, and the bail being in time forfeit, sold a portion of the property and with the proceeds paid off the amount. This transaction being as invalid as the first, the wife sometime afterwards brought action to recover the money with interest. In the court of first instance, she | obtained judgment according to her demand, but in revision, the defendant being held to have been in good faith, interest was only allowed from date of service of process, and this judgment was confirmed unanimously in appeal.* Buckley v. Brunelle et vir., 21 L. C. J. 133, Q. B. 1873; 1051 & 1301 C. C. 70. Respondent purchased from appellant his rights and pretensions in a certain lot of land in Westchester, which he had occupied for several years, and which belonged to one C in Upper Canada. He paid $50 cash, and gave two notes for the balance. After he had been in possession a year, C, the proprietor, turned up to sell the property he owned there. Appellant, who occupied the lots adjoining, entered into a lease with the proprietor, and respondent's lot with his consent was included in the lease, and he continued in possession without trouble or fear of trouble. He afterwards brought action to recover his money from appellant, on the ground that the latter had guaranteed his possession. In appeal, reversing judgment of Court of Review, action dismissed. Dubois v. Croteau, 8 R. L. 245, Q. B. 1876. 71. Taxes paid under an existing by-law of a Corporation cannot be recovered until the bylaw has been set aside. Calmel v. City of Montreal, 1 L. N. 64, S. C, 1877. 72. Where action is brought to recover taxes paid under an illegal assessment roll, if the assessment roll is admitted by the plea it is not necessary for the plaintiff to produce it in court. Baylis v. The City of Montreal, 2 L. N. 340, & 23 L. C. J. 301, Q. B. 1879. 73. Where a person borrowed $50, and the lender got him to sign a note for $58, supposing it to be for $50, not having read it, and nothing having been said about the $8-Held, that having paid the amount of the note to a third holder, he was entitled to an action en repétition of the eight dollars against the lender. Lemire & Gelinas, 10 R. L. 20, C. C. 1879. XVIII. EN RESOLUTION De Vente. 74. Under the Coutume de Paris the transferree pure and simple of a prix de vente may exercise the action en resolution de vente for default of payment either total or partial. The action may also be brought for defaut de prestation of a constituted rent, price of an immoveable, even by the seller who has sued for the payment of the price. St. Cyr v. Millette, 3 Q. L. R. 369, S. C. R. 1877. XIX. EN SÉPARATION DE BIENS. 75. There is no community of property between persons married in a foreign country and who afterwards come to Quebec to live, unless there is proof that they married with the intention of coming there to live, and therefore an action of separation of property in such case will not lie. Wiggins v. Morgan, 9 R. L. 546, S. C. 1879; & Dalton & King, 9 R. L. 548, S. C. 1879. If the person receiving be in good faith he is not ed to restore the profits of the thing received. 1047 oblige XX. EN SÉPARATION DE CORPS. 76. An action in separation from bed and board may be settled by a reconciliation, and where such had taken place, and the attorneys continued for their costs-Held, that the plaintiff had a right to disavow them. Gerard & Lemire & St. Pierre, 2 L. N. 255, S. C. R. 1879. XXI. FOR FEES FOR MEASURING TIMBER. 77. A suit for fees for the measuring of timber by licensed cullers, acting under the supervisor of cullers at Quebec, pursuant to C. S. C. cap. 46, is properly brought in the name of the Crown. Laflamme v. Prendergast, 4 Q. L. R. 285, S. C. 1878. 79. Respondent by a verbal agreement undertook to repair a house for the appellant, and he made several repairs to another building. He sued the appellant on a simple account. The plea was that the repairs to the first house were made under a verbal contract, and that the plaintiff should have set out this contract. But the plaintiff asked just what the defendant acknowledged to owe, except that he said the repairs were not all done as they ought to have been. The court below reduced the account some $13. It would be too technical to reverse the judgment upon the ground that the plaintiff ought to have alleged the contract in his action. Judgment confirmed. Springle & Genereux, Q. B. 1876. XXVIII. HYPOTHECARY, see HYPOTHEC. 83. In a hypothecary action the plaintiff may pray that the defendant be condemned to pay unless he prefers to abandon, although Art. 2061 of the Civil Code says that the hypothecary action is to have the defendant condemned to abandon unless he prefers to pay. Leclair & Filion, 7 R. L. 428, C. C. 1875. 84. And where the plaintiff had been a party to an exchange of properties between the donee of the plaintiff and the defendant, and had declared that he accepted the defendant as his personal debtor, as if the donation had been made to him, and in consequence that he discharged the donee personally without novation or derogation-Held, that the plaintiff had not thereby deprived himself of his hypothecary recourse against the defendant. Ib. 85. One "C" granted a hypothec to the plaintiff and also undertook to keep certain property insured by way of collateral security. Plaintiff sued defendant, a third holder, under said hypothec for a balance due, and in computing the balance included four items of six dollars each for premiums paid for said insurance, and six dollars and fifty cents cost of deed and registration-Held, that there was no hypothec for such amounts, and therefore no action against defendant, who was a mere holder and never undertook to pay them. Michon & Morency, 6 Q. L. R. 238, S. C. 1877. 86. A third party in whose favor charges are made in a deed of donation of real estate may bring hypothecary action against the detenteur of the immoveable, although there be no stipulation to that effect in the deed. Dufresne & Dubord, 1 L. N. 43, Q. B. 1877. 87. An action in declaration of a hypothec for a sum of $36 cannot be brought in the Circuit Court. Massé & Coté, 3 Q. L. R. 322, C. C. 1877. 88. The ordinary hypothecary action cannot be exercised against an assignee who is in possession of immoveable property of an estate in his quality as such. Dawes & Fulton, 1 L. N. XXIV. FOR RENT, see LESSOR AND 243, S. C. 1878. LESSEE. 80. An action for so much rent due and to become due under a lease, where the lessee has abandoned the premises, and left nothing to secure the rent, is good without mention of damages. Theroux v. Blanchard, 2 L. N. 331, S. C. R. 1879. XXVI. FOR TAXES, see TAXES. 81. A lessor has no right to an action for taxes due under the lease until he has himself paid to the Corporation. Maillé & Richler, 2 L. N. 414, S. C. 1879. 89 Right to in hands of immediate debtor.The plaintiff having taken a mortgage from his debtor in security of his debt afterwards brought hypothecary action to recover the amount. Defendant pleaded that the hypothecary action could only be brought against a tiers detenteur, and not against the original personal debtor. Simultaneously with the filing of the plea plaintiff filed a desistement of the hypothecary conclusions, and adhered merely to the demand for a personal condemnation-Ħeld, that under the terms of Art. 2058 of the Civil Code the plaintiff had a perfect right to the hypothecary conclusions; but that, having given the defendant the option of paying the amount or abandoning the XXVII. FOR WAGES, see MASTER AND property, he could not withdraw that option as SERVANT. 82. In action by a discharged servant for wages, the amount claimed can only be the amount of wages accrued and not that to become due. Beauchemin & Simon, 1 L. N. 40, Q. B. 1877. he had done, and thereby deprive the defendant of his choice. Lebrun v. Bedard, 21 L. C. J. 157, S. C. 1877. 90. A hypothecary creditor, whatever the amount of his claim, may take an hypothecary action against his debtor, holder of the immoveable hypothecated, although he has already a judgment against the said debtor personally for the same claim. Dorval & Boucher, 6 Q. L. R. 197, S. C. 1879. XXX. IN EJECTMENT. 91. Defendant was employed as a schoolteacher by plaintiffs, with the privilege of occupying the school-house as her residence. Her engagement having been declared at an end by a resolution of the plaintiffs, she persisted, against their will, in occupying the school-house -Held, that an action to eject her under Art. 887 of the Code of Procedure would have to be dismissed for want of jurisdiction, there being no lease and no occupation with the consent of the proprietors of the premises. School Commissioners of St David v. Devarennes, 4 Q. L. R. 206, C. Č. 1878. 92. But an action in ejectment may bə brought by a sub-tenant against his immediate lessor under a lease, to obtain possession of the premises. Jaeger v. Sauvé, 1 L. N. 139, S. C. 1878. XXXI. INTEREST IN, see RIGHT OF. | before a Court of Justice. Browne & Pinson | neault, 3 S. C. Rep. 102, Su. Ct. 1879. 96. Action to recover the value of a cargo of peas lost on the scow Marie Joseph, in consequence of a collision with a steamboat belonging to defendants in Lachine Canal. Plea that plaintiff had been paid the value of the peas by the insurers, for whom plaintiffs were a mere prête nom and had no interest-Held, confirming the judgment of the Court below, that, notwithstanding the payment by the insurers, the latter had no right to sue until notice of the transfer and subrogation, and the action was properly brought. Richelieu & Ontario Navigation Co. & Lafrenière, 2 L. N. 204, Q. B. 1879. XXXII. NATURE OF. 97. The plaintiff, a judgment creditor of one of the defendants, brought action in the district of Montreal to set aside a deed of sale of real estate situated in the district of Iberville, from the judgment debtor to the other defendantHeld, on declinatory exception, that such action was a purely personal one, and did not require to be brought where the real estate was situated.f Scriver v. Stapleton, 2 L. N. 190, S. C. 1879. 93. The appellant was collocated on the proceeds of the estate of one Lemieux, insolvent, 98. An action by which the plaintiff alleges for the amount of a mortgage. The respondent that defendant collusively made and registered contested the collocation, on the ground that a mortgage before the mortgage given to plainthe mortgage was given in fraud of the rights tiff, and asks that the order of registration be of the creditors of the mortgagor, who was changed, or defendant be condemned to pay the insolvent at the time the mortgage was given-indebtedness, is a mixed action. Faucher & Held, overruling the decision of the Court Painchaud, 3 L. N. 316, S. C. 1880. below, that as the contestants were not shown to have been creditors of the mortgagor at the time the mortgage was given that they were without right and interest to contest on that ground, and the collocation was maintained.† Dufresne & Mechanics' Bank, 3 L. N. 26, Q. B. 1879. 94. The appellant brought opposition in his quality of tutor to his minor son, to the seizure of an immoveable in his possession on the ground, inter alia, that the immoveable in question formed part of the community between himself and his wife deceased-Held, that he was without interest to oppose the seizure. Lefebvre v. Turgeon, 3 L. N. 20, Q. B. 1880. 95. And where one S. transferred his interest under a certain lease and in certain furniture to appellants, "acting as trustees for and on behalf "of divers persons and firms, creditors of the "said S., under a certain paper-writing or "memorandum of agreement made and entered "into by and between the said S. and his credi"tors and hereunto annexed "--Held in an action by appellants,in their quality of" trustees duly named of the creditors of S.," that they had no right or standing to appear as such * Actions to annul or rescind a lease or to recover damages resulting from the contravention of any of the stipulations of the lease, or the nonfulfilment of any of the obligations which the law attaches to it, or arising from the relations of lessor and lessee, are instituted either in the Superior Court or in the Circuit Court, according to the value or the amount of the rent or the amount of damages alleged. No person can bring a suit at law unless he has an interest therein. 18 C. C. P. Lessee Act. Plaintiff had leased to defendant 99. Action in ejectment under the Lessor and premises at Calumet, in the district of Terrebonne. The lease contained a promise of sale. Plea, declinatory exception, on the grounds: 1st, that she was in possession under a promise of sale, and could not be impleaded in the Lessor Court. 2nd, that her right was a real right and she could only be impleaded where the property was. Exception dismissed on both grounds. Menzies v. Bell, 3 L. N. 159, S. C. 1880. XXXIV. OF DAMAGES, see DAMAGES. 100. For Death of Relative.-Action by relatives for death caused by carelessness of appellant. The action was brought by parents of deceased and by his brother and sister. The appellant demurred on the ground that no such action would lie. The demurrer was maintained as to the collateral relatives and dismissed as to the others. The defendant moved for leave to appeal, on the ground that if the action was bad as to one plaintiff it was bad as to all-Held, that as the action was allowed to certain relations by special statute, only one *No person can use the name of another to_plead, except the Crown through its recognized officers. Tutors, curators and others representing persons who have not the free exercise of their rights, plead in their own name in their respective qualities, Corporations plead in their corporate name. 19 C. C. P. † In every real or mixed action, the defendant may be summoned before the court of his domicile or before that of the place where the object in dispute is situated. 37 C. C. P. action could be instituted, and it was the duty of the court in awarding damages to distribute the share coming, to each person. Leave to appeal refused. Grand Trunk Railway Co. & Ruel, 1 L. N. 129, Q. B. 1878. XXXV. ON BETS. 101. Action to recover $100 amount of a bet on a batteau race. One G, the master of a batteau, having inserted a challenge in the Morning Chronicle to run his batteau against any other batteau for $100 a side, the defendant accepted the challenge through the same paper. Among other conditions the race was to be run by the batteaux in working order, which the evidence showed to mean in the condition in which up to that time the batteaux were employed to work. A previous race between the same batteaux had been run shortly before for a bet between the same parties, and the money, $100 a side, was deposited in the hands of the Company defendant. Shortly before the race, but after the bet, the sail of G.'s batteau was enlarged, and the condition in which it had been used to work with changed in this particular-Held, that batteau races do not come within the exception of the law, and that no action would lie for the recovery of a bet made on such a race; that in fact there was no bet between the plaintiff and defendant, and that the action, whether brought in the name of plaintiff or of G, should fail for unfairness in enlarging the sail of the plaintiff's batteau. Wagner v. L'Hastie, 3 Q. L. R. 373, S. C. 1877. of changing the jurisdiction on it and bringing the other parties into a district different from that in which they could otherwise have been summoned. Wilkes & Marchand, 21 L. C. J. 118, S. C. 1876. 105. A defense en fait to an action on a promissory note if unsupported by affidavit will be rejected on motion. Laprise & Methot, 4 Q. L. R. 328, S. C. 1877. 106. In an action on a promissory note the court may, on motion of the plaintiff, strike out subsequent endorsements not recited in the declaration. Fisher v. McKnight, 22 L. C. J. 146, S. C. 1878. 107. The bearer of two promissory notes against the same maker may sue on them separately by two different actions. Laliberté v. Chenard, 6 Q. L. R. 12, S. C. 1879. XXXVII. ON FOREIGN JUDGMENT. 108. Where the plaintiff sued on a foreign judgment, and in the declaration added counts in assumpsit without filing any statement a stayed until a statement of account was filed. motion was granted asking that proceedings be Holme v. Cassils et al., 21 L. C. J. 28, S. C. 1877. 109. In a suit on a judgment obtained in Ontario where it was admitted that the summons in the original suit had been served personally upon defendant in Quebec-Held, that he was not entitled to raise any objection which he might have urged to the original suit. Alcock et al. v. Howie, 22 L. C. J. 145, & 1 L. N. 78, S. C. R. 1878. 110. The plaintiff obtained judgment against defendant in the Common Pleas, Ont., on the 22nd September, 1877, for $255.25 for debt and costs, and on the 17th October of the same year he brought action in the district of Ottawa, Quebec, on the judgment-Held, that where in such cases a defendant is served personally, or where he appears even if not so served, he cannot be allowed to repeat in the Province in which an action is brought to enforce such judgment what he might have pleaded in the first Bates & Lauzon, 2 L. N. 117, 102. In a case in the Circuit Court action was brought on a cheque for $25 given for a wager on the result of an election of a member for the House of Commons, but which the loser had countermanded, on the ground that the winner knew the result of the election (which was already over) when the wager was made. The winner denied this, but transferred the cheque to the plaintiff who brought action. At the trial it was shown that the bank to whom it had been transferred had paid nothing for it and was in fact a mere prêt nom for the winner of the bet-Held, that considering the circum-instance stances of the bet the action would be dismissed. Banque Ville Marie & Maclean, C. C. 1876. XXXVI. ON BILLS AND NOTES, see BILLS AND NOTES. 103. An action on a promissory note not filed and not in possession of the plaintiff will be dismissed. Hudon & Girouard, 21 L. C. J. 15, Q. B. 1875. 104. After the maturity of a note the holder cannot add an endorser simply for the purpose * There is no action for the recovery of money or any other thing claimed under a gaming contract or bet. But if the money or thing have been paid by the losing party he cannot recover it back unless fraud be proved. 1927 C. C. The denial of the right of action declared in the preceding article is subject to exception in favor of exercises for promoting skill in arms and of horse and foot races and other lawful games which require bodily activity and address; nevertheless, the court may in its dis retion reject the action when the sum demanded appears to be excessive. 1928 C. C. S. C. R. 1879. TORNEY. 111. Appellant sued respondent for the amount of an authentic obligation executed by one of the respondents as attorney of his wife and mentioned the nature of the power of the other respondent. The obligation was filed, attorney, its date and its registration. The defendants failed to appear and default was entered against them. The plaintiff then inscribed for judgment by default when his action was dismissed by the court suo motu, on the ground that the power of attorney was not produced in the record and this judgment was sustained in appeal. Forneret & Lavallée, 7 R. L. 611, Q. B. 1876. XXXIX. ON PENALTY IN CONTRACTS. 112. The parties in the cause having been some time in commercial partnership and wish |