le tout à l'insu des cautions; que, par là, il était intervenu entre les Demandeurs et Brown, un contrat nouveau et différent, et par lequel la position des cautions se trouvait empirée, et qu'à compter du 1" décembre 1848, le cautionnement et engagement du 4 octobre 1847, se trouvait innové, et remplacé par le dernier engagement et que Brown ne devait aucune somme au 1" décembre 1848, assurée par leur cautionnement, et qu'ils ne pouvaient être responsables des défalcations survenues depuis cette époque.

Les Demandeurs, en réponse, nièrent la novation des contrats, et invoquaient contre les cautions le fait que l'un était directeur et l'autre actionnaire de la banque, et en induisait la conclusion qu'ils connaissaient la réduction du salaire de Brown, qu'ils y asquiesçaient, ainsi qu'à la continuation de leur cautionnement.

La cour maintint l'exception des cautions, en observant qu'il n'est pas permis de déroger aux conditions de semblables conventions sans le consentement formel de toutes les parties. Le juge DAY, qui prononça le jugement, cita au soutien de la décision : Répertoire de Merlin, verbo novation, pp. 633-5-6.

JUGEMENT: "The court, proceeding to adjudge upon the "issues raised between the Plaintiffs and said Defendants, Wm. Lyman, John A. Perkins and Christian Julius Brown, "sureties of said Francis Brown, considering that said Lyman, "Perkins and C. J. Brown were parties to the said bond and agreement, and, as such, therein and thereby, became the "sureties of said Francis Brown, as in the said declaration is alleged, and that said Plaintiffs and said Francis Brown did, "afterwards, by mutual agreement, on the 21st September, "1848, without the intervention or consent of said Lyman, "Perkins and C. J. Brown, change certain of the terms and "stipulations in the said bond and agreement contained, by agreeing upon and substituting the sum of £225, as the yearly salary of said Francis Brown, for and in the place of the sum of £300, as stipulated in the said bond and agreement, and that, by reason of such change and new agreement, and by law, said Lyman, Perkins and C. J. Brown "were and are discharged and released from all liability, for "or by reason of any debt, defalcation, matter or thing by "him incurred, made or done after the time of said change "and new agreement, doth dismiss the action of said Plaintiffs, "in so far as said Lyman, Perkins and C. J. Brown, are concerned." (2 D. T. B. C., p. 246.)

ROSE et MONK, pour les Demandeurs.

MACKAY et AUSTIN, pour Perkins.

MACK et MUIR, pour les autres Défendeurs.

CAUTIONNEMENT.-CHOSE JUGEE.

SUPERIOR COURT, Quebec, 7 avril 1852.

Before DUVAL and MEREDITH, Justices.

BRUSH et al. vs. WILSON et al.

Juge: Qu'un jugement rendu contre un débiteur principal sur une contestation élevée par lui, a force de chose jugée contre la caution, qui n'était pas partie à l'action originaire. (1)

Plaintiffs brought their action against Defendants for the sum of £3000, under the following circumstances. On the 6th of September, 1844, Plaintiffs had agreed to construct a steam engine for John Ryan; the price to be £6000. For the payment of the balance due upon this sum, to wit, £3000, Ryan had procured two cautions solidaires, Andrew Watson and Thomas White, and four certificateurs de cautions, Wilson, Patterson, Connolly and White, the Defendants in this

cause.

Plaintiffs alleged, in their declaration, that they had impleaded Ryan, their principal debtor, and Andrew Watson and Thomas White, as cautions, and obtained judgment against them, which judgment remained unpaid and unsatisfied. They also alleged the insolvency of Ryan and his sureties, and now brought their action against the certificateurs de cautions.

Defendants pleaded that the work had been badly done; to which Plaintiffs answered that this plea had already been raised by the principal debtor, and had been dismissed, and that this judgment had the force de chose jugée against Defendants, the certificateurs de cautions.

To this answer Defendants demurred, and alleged that the judgment invoked by Plaintiffs was not rendered against them, nor were Defendants parties in any manner to the suit or action wherein said judgment had been rendered, and that the same had not the effect of res judicata against Defendants, but were wholly res inter alios acta.

The court maintained the special answer of Plaintiffs, and dismissed the demurrer. In rendering judgment, DUVAL, Justice, observed: There is a distinction to be made, which is, that, if the matter pleaded by the caution, is peculiar and personal to the caution, the plea is good, but if it has been pleaded by the principal debtor, the judgment rendered thereupon has the force de chose jugée against the cautions.(1)

(1) V. art. 1241 C. C.

(1) Pothier, Oblig., no 908.

JUDGMENT: “The court considering that the allegations in the special answer contained, are sufficient in law, if proved, to enable Plaintiffs to have and obtain the conclusions by them in their said special answer taken, and more particularly that the judgment mentioned and set forth by Plaintiffs in the said special answer, has the force de chose jugée against Defendants, doth dismiss the said demeurrer. (2 D. T. B. C., p. 249.)

STUART and VANNOVOUS, for Plaintiffs.
Ross and McCORD, for Defendants.

PROCEDURE. ENQUETE.

SUPERIOR COURT, Quebec, 1854.

Before BOWEN, Chief Justice, DUVAL and MEREDITH, Justices. BRUSH et al. vs. WILSON et al.

Jugé Que s'il y a plusieurs contestations, telles qu'une exception à la demande, et une réponse spéciale à telle exception, et une inscription générale aux enquêtes pour production de la preuve, quoique la réponse spéciale, alléguant chose jugée quant aux moyens contenus en l'exception, si elle était prouvée, serait une fin de non recevoir quant à telle excep tion, un seul juge en chambre n'a pas le pouvoir de restreindre la preuve à la réponse spéciale, et qu'il n'y a que la cour qui puisse ainsi restreindre la preuve.

La déclaration, les plaidoyers et les réponses sont résumés à la cause précédente, rapportés à la page 163.

Issue being joined, as well upon the exception of Defendants that the work had been badly done, as upon the special answer of Plaintiffs that this point had already been decided with the principal debtor, and that this decision had the force de chose jugée as against Defendants, Plaintiffs inscribed the cause generally for the adduction of proof upon the issues raised and perfected between the parties.

Plaintiff's having made proof upon their special answer, Defendants brought witnesses to prove their plea that the work had been badly done, to which Plaintiffs objected, upon the ground that they were entitled to have a decision in the first instance, upon their plea of chose jugée, which would be a bar to any further proceedings, if maintained. The point was submitted in chambers to the presiding judge at enquêtes, Mr. Justice DUVAL, who decided that the inscription being general, he had no right to restrict the proof to one of the pleas, although it were desirable to do so; but that he alone had no jurisdiction to order that the proof should be restricted to the plea of chose jugée.

This decision was then carried before the whole Bench, for revision, and there maintained, upon the ground that a single judge, presiding at enquêtes, has no power and no jurisdiction to restrict the proof to one of several issues, and that this can only be done by the court on special application. The court intimated that, in this particular case, such an application might be granted.

BOWEN, Chief Justice, differed from the majority of the court, and thought that one judge in chamber had the right to order that the proof should be in the first instance restricted to the plea of chose jugée, which plea the court had by a previous judgment declared to be well founded.

MEREDITH, Justice: What Plaintiffs say, is, in effect, this : If we have proved our special answer, as we contend we have; then the truth of the allegations of Defendant's exception, becomes utterly immaterial; and, we, therefore, want the court to hear and determine the issue upon the special answer, before, the adduction of evidence on Defendant's peremptory exception.

The order required from the judge at enquete, was, in effect, an order that the one issue should be proceeded upon, heard and determined before the other, and this although the case had been inscribed by Plaintiffs themselves for the adduction of evidence on all the issues; and although in the event of the court being against Plaintiffs, as to the sufficiency of the proof adduced in support of the special exception, a second enquete, and a second hearing, would be necessary on the issue raised upon the peremptory exception.

Now although a Judge at enquête has full power to regulate every thing connected with the enquête, yet he is bound by the issues joined between the parties, and has no power to make any order respecting the hearing of the cause, or any other proceeding subsequent to the enquête. For these reasons the majority of the court are of opinion, that if the order required can be made, and we do not say that it cannot, it ought to come from the court, and not from a Judge at enquête, and we therefore confirm the judgment appealed

from.

Adopting the suggestion of the court, Plaintiffs then applied to the court for an order restricting, in the first instance the evidence to the plea of chose jugée, which was granted. (4 D. T. B. C., p. 454.)

STUART and VANNOVOUS, for Plaintiffs.
Ross, D. for Defendants.

EXECUTION.-APPEL.

SUPERIOR COURT, Quebec, 15 décembre 1856.

Before BOWEN, Chief Justice, MORIN and BADGLEY, Justices. BRUSH et al., Plaintiffs, vs. WILSON et al., Defendants.

Jugé: Qu'on ne peut prendre exécution sur un jugement rendu contre quatre Défendeurs, si l'un d'eux a interjeté appel de ce jugement, et si cet appel est encore pendant.

On the ninth day of April, 1855, Plaintiff's recovered judgment against John Wilson, William Paterson, Michael Connolly and Michael White for the sum of £1000 each, with interest. From this judgment, John Wilson, one of the Defendants, instituted an appeal to the Court of Queen's Bench, appeal side; the other Defendants did not appeal. On the 25th of July, 1856, while Wilson's appeal was still pending, Plaintiffs sued out a writ of execution against William Paterson, who, by an opposition à fin d'annuler, contended that this execution had been illegally issued, on the following grounds: Because there is no judgment now of record in this court in the suit between the parties above named, to which it can give effect by execution or otherwise, this court having been divested of all jurisdiction, in such suit, all the papers and documents, and in fact the whole record being under the exclusive control of the Court of Queen's Bench, to which an appeal has been instituted from the said judgment, and in which appeal, William Paterson has an interest; because, by the judgment to be rendered by the Court of Queen's Bench, the judgment of this honorable court, upon which the said execution purports to have issued, may be altogether altered, and set aside, and, in that case, the monies to be levied under said writ, before the termination of said appeal, will be illegally levied, if said writ be executed; because, if said judgment be revised, the extent of liability of said William Paterson, under the same, may be diminished, or such liability altogether removed;

JUDGMENT: The court seeing that the record and proceedings in this cause had are now before the Court of Queen's Bench, upon the appeal instituted by John Wilson, one of the Defendants, against the judgment rendered in this cause, on the ninth day of April, one thousand eight hundred and fiftyfive, and that the said appeal is still pending therein, and that the record was not in the possession of this court, when the writ of fieri facias or execution issued therefrom against the goods and chattels, lands and tenements of the above