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RAPPORTS JUDICIAIRES REVISÉS

DE LA

PROVINCE DE QUÉBEC.

VENTE A LA FOLLE ENCHERE.

SUPERIOR COURT, Quebec, 5 mai 1851.

Before BOWEN, Chief Justice, DUVAL, and MEREDITH, Justices.

MEATH & al., Plaintiffs, vs. FITZGERALD, Defendant, and

MONAGHAN, Adjudicataire, and CHARLTON, Intervenant. La cour ne permettra pas la revente d'un immeuble à la folle enchère d'un adjudicataire, durant la litispendance d'une intervention, au moyen de laquelle un tiers demande que le décret soit annulé; et sous les mêmes circonstances, elle n'accordera point la contrainte par corps pour défaut de paiement du prix d'acquisition. (1)

By virtue of a writ of fieri facias de terris issued out of the Leeds Circuit Court, on the 8th March, 1850, at the instance of the Plaintiffs, the sheriff of the district of Quebec seized, as belonging to Defendant, certain lands which in the advertisement, were stated to be situate in the seigniory of Beaurivage, in the parish of St. Giles, and announced the same for sale at the church door of the parish of St. Sylvestre, on the 30th July, 1850.

On the last mentioned day, the sheriff adjudged these lands to Monaghan, for the sum of £30 currency; and the writ of execution was filed in the prothonotary's office, at Quebec, on the 6th August following, with the sheriff's return that the Adjudicataire had neglected to pay that amount into his hands.

On the 4th September, 1850, Charlton filed an intervention, alleging, that no such immoveable property as that described in the advertisement existed at the time of the seizure, or of the sale thereof; that the said lands were, on the con

(1) Vaart. 690 C. P. C.

TOME III.

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trary, situate in the parish of St. Sylvestre; and that the description thereof given by the sheriff

, was erroneous; that the said lands were not, at the time of the seizure and sale thereof, and for a long time previously thereto, had not been the property of the Defendant, nor were in his possession, but, on the contrary, were the property of him, the Intervenant (Charlton), having acquired the same from James Fitzgerald and wife, by deed of sale executed before notaries, on the 18th November, 1843, which deed had been registered on the 28th November, 1844.

The intervention further alleged that, in consequence of the discrepancy that existed between the sheriff's description of the property seized, and that belonging to the Intervenant, the Intervenant was unable to discover, and did not know that by virtue of the sheriff's advertisement, it was intended to sell the property of the Intervenant, situate in the parish of St. Sylvestre; and that, he could not file, within the delay prescribed by law, his opposition à fin d'annuler.

The intervention concluded by praying that the seizinġ of the said lands, and the sale thereof should be declared null.

The case remained in this position until the 21st April, 1851, when the plaintiffs obtained a rule against the Adjudicataire to shew cause why the sheriff should not proceed de novo to the sale of the said lands, at his folle enchère.

The Adjudicataire contended that he was not bound to pay the price of the sale, until the intervention filed by Charlton had been disposed of; that by it the Plaintiffs' right to seize the property was denied, and the act of seizure characterised as illegal; that he had never been put in possession of the property, and that, were he to pay the amount claimed, Plaintiffs would obtain money from him without being able to procure a valid title, or legal possession; and that, in the event of the intervention being maintained, the property would still remain in Charlton's possession, and the Adjudicataire would have been deprived of his money and the interest thereof, as well as of the lands; and this, through the fault of the Plaintiffs themselves, who were bound to contest or admit the facts alleged in the intervention, and obtain a decision on the points therein raised, before they could compel him to pay any sum whatever.

The Plaintiffs argued that they were not bound to wait till the intervention was disposed of; and stated that the discrepancy alleged could not be substantiated by proof. Judgment the 5th May, as follows:

The court seeing the intervention of Richard Charlton, praying, for the causes therein stated and set forth, that the sale made to the Adjudicataire by the sheriff be declared

null and void, which intervention is still pending and undetermined, doth discharge the said rule, with costs. (1 D. T. B. C., p. 241.)

PENTLAND, for Plaintiffs.
Pops, for the Adjudicataire.

BILLETS PROMISSOIRES.-PROTET.

SUPERIOR COURT, Montreal, 16 avril 1851. Before SMITH, VANFELSON, and MONDELET, Justices. JESSE JOSEPH, vs. CHARLES M. DELISLE and al.

Juge: Que sous la 14' sec. de la 12e Vic., chap. xxii, relative aux billets promissoires, l'omission d'énoncer dans un protêt notarié, que tel protét a été fait dans l'après-midi du jour de sa signification, est fatale, et que l'endosseur de tel billet est libéré.

This was an action against the maker and endorser of a promissory note, for £60, protested. The Plaintiff proceeded ex parte against Delisle, the maker; the other Defendant, Ross, the endorser, appeared, and pleaded that the note was not executed and delivered, and endorsed as alleged in the Plaintiff's declaration; that no demand of payment had been made within the period prescribed by law, and that it did not appear that the note was legally protested ; also that no notice of non-payment and protest had been sent to the endorser.

The Counsel for Ross contended that there was no proof of legal presentment and protest, and cited the 14th clause of the promissory note act, 12th Vict., ch. 22nd, which enacts : “ That,

if at the expiration of the forenoon of the last day of grace, any bill or note shall be unpaid, the holder thereof may "cause the same to be duly presented for payment, and, in " default thereof, to be protested for non-payment: provided “ always, that no presentment and protest for non-payment of "any bill or note shall be sufficient to charge the parties “ liable on such bill or note, unless such presentment and protest be made in the afternoon of the last day of grace; and, further, provided always that the liability of such acceptor or maker towards the holder, shall continue in full force and “ effect, although the liability of the other parties may be dis“charged from the want or illegality of protest or of notice " of protest.” (1) That there was nothing in this case to show

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(1) Par la s. 51 du ch. XXXIII des statuts du Canada de 1890, 53 Vict., il est décrété que tout protêt pour refus d'acceptation ou de paiement peut être fait le jour même du refus, en tout temps après le refus d'acceptation, ou, dans le cas de refus de paiement, en tout temps après trois heures de l'après-midi.

a presentment and protest on the afternoon of the last day of grace; that the mere mentioning of the day, without stating the precise time was not sufficient, inasmuch as it might have been in the forenoon; that the words of the statute were absolute on this point, and that the endorser must be discharged for want of legal protest.

David, contra, argued that the form provided by the Legislature had been strictly followed, and that, inasmuch as the notice of the notary to the endorser was that the note had been duly protested, the court would not be justified, in the absence of any proof by the endorser, in coming to the conclusion, that the presentment and protest were made in the forenoon.

The court, declared that Ross, the endorser, must be discharged from his liability, for the want of a protest duly made. This protest does not show whether it was made in the forenoon or afternoon, as required by the 14th section of 12th Vict., ch. XXII, and the objection is fatal. The note did not become due till noon, and therefore no protest could be made until the afternoon.

Action maintained against Delisle, and dismissed, as to Ross. (1 D. T. B. C., p. 244.)

DAVID, for Plaintiff.
MACRAE and Wood, for Ross.

PROCEDURE.-BREFS DE PREROGATIVE.

SUPERIOR COURT, Montreal, 16 avril 1851.

Before Day, SMITH, and VANFELSON. JEAN CREBASSA et al., vs. OLIVIER PELOQUIN.

Juge : Que les formalités requises d'après les lois anglaises en matières ayant rapport à la protection et à la régie des corps incorporés, et aux urits appelés Prerogative writs, ont été abolies par la 12e Vic., ch. XLI (1); et aussi, que certaines personnes se qualifiant citoyens notables, sans prendre la qualité de fabriciens ou paroissiens, ne peuvent maintenir une application pour expulser un individu qui a usurpé l'office de marguillier de l'auvre et fabrique.

This was a requéte libellée, made by certain parties describing themselves as citoyens notables, residing in the parish of St. Pierre de Sorel, in the district of Montreal, against the

(1) Ce statut est intitulé "acte pour définir le mode des procédures à adop. ter dans les cours de justice du Bas-Canada dans les matières relatives à la protection et à la régie du droit de corporation et aux brefs de prérogative, et pour d'autres tins y mentionnées.” Les principales dispositions de ce statut sont reproduites dans les articles 997 à 1030 C. P. C.

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Defendant, as exercising the office of marguillier de l'oeuvre et fabrique of the said parish.

The petition set forth the usurpation of the office of marguillier by the Defendant, and his illegal exercise of the same; that the petitioners were all interested in the said office "en autant qu'ils sont intéressés à l'administration des “affaires de la dite charge de marguillier de l'ouvre et fabri

que de la dite paroisse, et se considèrent lésés et injuriés par cette usurpation et détention de la part du dit Olivier Peloquin, et, en conséquence, sont bien fondés à se plaindre et à se pourvoir, comme ils le font par la présente requête libellée,” and concluded for his expulsion, with a penalty of £100.

The Defendant pleaded : 1° an exeeption à la forme, in which he alleged that the writ of summons, and requête libellée of the Plaintiffs were illégalement et irrégulièrement émanées, inasmuch as neither the requête, nor the accompanying affidavits, contained. any formal and substantial allegations, or set forth any specific circumstances from which it might be inferred, in fact or in law, that the Defendant had usurped the office; such special enunciation of facts and circumstances being absolutely required à peine de nullité, to constitute a requête libellée, au désir de la loi ; 2° défense au fonds en droit, embodying substantially the same reason.

The parties were heard on the exception à la forme. The Defendant's counsel contended that the act 12th Vict., ch. XLI, in prescribing the practice to be observed on proceedings of this nature, made it imperative on the Petitioners to show, on the face of their petition, the nature of their title, and of the intrusion complained of, in order that the court might see whether they were entitled to the specific remedy asked for : that it was not sufficient for the Plaintiffs to say that there was an intrusion, but that the court was to decide this from the specific facts alleged in the requéte libellée ; that, without this, the court would be left in uncertainty as to the necessary proceedings to be adopted, and whether these proceedings ought to be by mandamus or quo warranto; that the language of the 11th section of the act, which speaks of “ all cases in which a writ of mandamus will be and may be legally issued in England,” confirmed this view of the case, and proved that there was no intention to abolish the rule observed in England, that the nature of the intrusion must be suggested in the writ itself.

Judgment, 4th March, dismissing the exception. VANFELSON, Justice, observing that the court must be governed by the statute itself, which had swept away the rules applied in England in similar cases, in order to afford a summary process

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