well and faithfully perform and fulfil all the obligations by him to be performed and fulfilled, under and by virtue of the agreement between him and James John Lowndes, bearing date the 12th day of December, 1844, and that he Plaintiff did pay to James John Lowndes the full price by him payable for the fourteen thousand feet of birch timber, mentioned in said agreement, but that James John Lowndes failed to deliver said quantity of fourteen thousand feet of birch timber, or any part thereof to Plaintiff, on the 15th day of July, 1845, when Plaintiff had a right to demand, and did demand delivery of the same, and considering that, on the said 15th day of July, 1845, the said 14,000 feet birch timber, at the place where the same ought to have been delivered, was reasonably worth the sum of £787 10 0 currency. It is, in consequence, considered and adjudged that Plaintiff do recover from Mary Anne Skitt, Defendant par reprise d'instance, in her capacity as such universal legatee as aforesaid, the said sum of £787100 currency, with interest thereon, from the 15th day of September, 1845, until paid.

The case was taken to appeal.

Sir JAMES STUART, Baronet, Chief Justice: The action contains two distinct heads of demand, the first is for a restitution of the monies paid in advance on account of the contract, and the second is a claim for damages for the non-execution of the contract by Lowndes. To this action, Defendant has pleaded the general issue, and also an exception by which he alleges that the timber in question had been duly delivered to Plaintiff, and that, after such delivery, it had been destroyed by fire and lost to Plaintiff.

An important distinction must be made between the restitution of the monies paid in advance, and the claim for damages.

On the first point, we are of opinion that there was no legal delivery of the timber, so as to fasten the loss upon Plaintiff, and that, consequently, there was no completion of the contract.

As to the second point, the claim of damages, the sale was not a sale of birch timber generally, but of a specific determined quality of timber, to be collected north of Quebec, to be piled on a wharf during the winter, measured and delivered according to contract; and, it having been destroyed by fire, it could not be replaced by any other description of timber. Now this timber was destroyed by vis major, without any fault or neglect on behalf of Defendant Lowndes, who was thereby prevented from fulfilling his contract, and, in such a case, no liability attaches by law upon the party for damages, by reason of the non-execution of the contract.

TOME III.

12

In consequence of this distinction, we confirm the judgment. of the court below, for the restitution of the monies paid in advance, and reverse it, in relation to the damages awarded by the said court.

ROLLAND, Justice: We all agree that there has been no delivery of the timber, but as to the damages, there is more difficulty. To be exempted from damages, for non-execution. of a contract, there must have been an absolute impossibility; now this impossibility is hardly alleged in the exception, which had principally in view the delivery of the timber. However, Plaintiff has not claimed any special damages, but merely general damages by the loss of the profits; and finding in the books that, in such case, and in that of impossibility of the execution of a contract, the matter is left to the discretion of the judge, and the rules of equity ought to be extended; I concur in this judgment.

Sir JAMES STUART: We have considered the exception as sufficient to base the judgment we render. The judgment is as follows:

The Court of Queen's Bench, considering that the sale of the birch timber in question in this cause, by James John Lowndes to Respondent, never received its completion; and that James John Lowndes, at the time of the destruction of the said timber by fire, continued to be, and was owner thereof; considering also that it is established by the evidence in this cause, that James John Lowndes, during the winter which followed the making of the agreement declared upon, had collected a larger quantity of birch timber of the kind, quality and description mentioned in said agreement then necessary for the fulfilment of said agreement, and had piled the same, during the winter, on his wharves, as required by said agreement, of which quantity the timber in question in this cause made part; and, considering also that all said timber collected and piled as aforesaid, was destroyed by a vis major, which prevented James John Lowndes from delivering the timber in question in this cause, in pursuance and in execution of said agreement, without any laches, neglect or default on his part; and, considering also, that, by reason of the destruction of all said timber collected and piled as aforesaid, by a is major as aforesaid, it became and was impossible for James John Lowndes to deliver the timber in question in this cause, and that the obligation of James John Lowndes to deliver the same, in execution of the said agreement, became and was thereby extinguished; and, considering, therefore, that for the causes mentioned in said declaration, Respondent was and is entitled to the restitution of the price by him paid to James John Lowndes, for said last mentioned timber, and nothing

more.

It is adjudged, that the judgment appealed from, namely: the judgment in this cause rendered by the court below, on the first day of July, 1851, be and the same is hereby reversed, annulled and made void; and proceeding to render such judgment in the premises, as by the court below ought to have been rendered, it is, further adjudged that Respondent, for the causes set forth in his declaration, do recover from and against Appellant the sum of four hundred and eighty-eight pounds ten shillings and ten pence, current money of Canada, as and for the price by him paid to James John Lowndes, for the said birch timber, with interest on the said sum, from the fifteenth day of September, 1845, the date of service of process in this cause, until perfect payment; and that the action of Respondent in the court below, in so far as the same relates to any demand of damages, sum, or sums of money, over and above the said sum of four hundred and eighty-eight pounds ten shillings and ten pence, currency aforesaid, be and the same is hereby dismissed. (2 D. T. B. C., p. 257 et 457.) STUART, O., for Appellants. PRIMROSE, for Respondent.

DEPENS.-DISTRACTION.

COUR SUPÉRIEURE, Québec, 14 avril 1852.

Présents: BOWEN, Juge en Chef, DUVAL et MEREDITH, Juges. GAUTHIER vs. LEMIEUX.

Jugé: Que les frais dans une cause ne peuvent être saisis et arrêtés, pendant l'instance, comme appartenant à la partie, par un tiers, son créancier, au préjudice du procureur. (1)

Pendant la litispendance, un tiers, créancier du Demandeur, avait fait saisir-arrêter entre les mains du Défendeur le montant dû au Demandeur. ·

Le Défendeur paya au créancier saisissant le montant qu'il reconnaissait devoir, ainsi que les frais encourus dans la cause, jusqu'au jour où la saisie-arrêt avait été signifiée, et plaida ce paiement.

La cour, par son jugement, déclara ce paiement valable quant au principal et intérêts, mais condamina le Défendeur à payer de nouveau les frais qu'il avait payés au créancier saisissant, et condamna le Demandeur à payer tous les autres frais subséquents.

DUVAL, juge: "Les frais appartiennent à l'avocat, et ils

(1) V. art. 482 C. P. C.

n'ont pu être saisis et arrêtés comme appartenant au Demandeur, avant que l'avocat ait eu l'occasion d'en demander la distraction."

Les procureurs du Demandeur firent alors une motion pour distraction de frais, qui leur fut accordée. (2 D.T.B.C., p. 273.) GAUTHIER et LEMIEUX, pour le Demandeur. CASAULT et LANGLOIS, pour le Défendeur.

MANDAMUS.-LICENCES.

SUPERIOR COURT, Quebec, 8 juin 1852.

Before DUVAL and MEREDITH, Justices.

EX PARTE PATRICK LAWLOR, Petitioner.

Le maire et les conseillers de la cité de Québec, en vertu de la 14e et 15e Vic., chap.. 100, sec. 5ème et 6ème, ont un pouvoir discrétionnaire quant à la confirmation ou au refus de confirmer les certificats pour licences d'auberge; et, dans l'exercice du pouvoir discrétionnaire qui leur est confié, ils ne sont pas sujets au contrôle de la Cour Supérieure ou des juges de cette cour en vacance. (1)

In his petition for a writ of mandamus, Applicant alleged that he had been a licensed tavernkeeper in the St. Roch ward of the city of Quebec, for the last 7 years; That, on the 4th March last, he applied for a renewal of his license to the municipal council of the corporation of the mayor and councillors of the city of Quebec, and presented, at the same time, the necessary certificate and affidavit, in that behalf required by the statute, and required the council, after due deliberation thereon, to approve the same, so that the Petitioner might be enabled to present the same to the revenue inspector, and obtain his license; That Petitioner's application, together with several others from persons residing in the same ward, and from other residents in the other wards of the city, was referred, by the council, to the police committee for enquiring into the merits of each case, which latter body, on the 5th April last, recommended the confirmation thereof; that on the 23d April, a petition, praying that no certificate or application for a tavern license in the said St. Roch ward, should be approved or allowed by the council, was presented to the latter by certain inhabitants of St. Roch, to the number of five hundred and upwards, who appeared en masse before the council, for the purpose, by intimidation, of coercing the members of the council then present to grant the prayer of

(1) V. art. 1022 C. P. C.

their petition; That the council, neglected and refused to deliberate upon the merits of Lawlor's application, as they were enjoined to do by the Statute, but, on the contrary, granted the prayer of the petition of the inhabitants of St. Roch ward, to the effect that no certificate for a tavern license in that Ward should be confirmed by the council, and the council then rejected Law'or's application, as well as those of the other applicants simultaneousley and indiscriminately, without any deliberation whatever on the respective qualifications and fitness of the several applicants, and ordered that the same should not be confirmed; That the council had granted licenses to persons residing in the other Wards of Quebec, St. Roch ward alone excepted; That the council were bound to grant licenses to fit and proper persons by law duly qualified, and that the council could not in the proper discharge of their duty, refuse to deliberate upon and approve the necessary certificates of applicants to that effect, except upon good and sufficient legal grounds to be set forth. That the petition from the inhabitants of St. Roch ward was illegal, and repugnant to the provisions of the Statute:

Wherefore, it was prayed that a writ of mandamus, directed to the the mayor and councillors of the city of Quebec, should issue, commanding and enjoining them duly to deliberate upon the Petitioner's application for a license to keep a house, of public entertainment in the St. Roch ward of Quebec, and, thereupon, after such due deliberation, to approve and grant the same, unless upon good and sufficient legal cause to the contrary to be set forth by the council, and to make such order, in reference to the same, as might be in accordance with justice and the Statute of the Province.

ROSS, DUNBAR, appeared for the Petitioner, and said: The municipal council has, by the Prov. Stat. 14 & 15 Vic., chap. c, sec. 5, been invested with certain attributions in relation to the confirmation of certificates of parties applying for tavern licenses. That section enacts:" That no license shall "be granted to any person for keeping an inn, tavern, or "place of public entertainment, in any part of Lower Canada, "unless the person applying for the same shall produce to "the revenue inspector a certificate signed by fifty municipal electors of the ward of the city, in which such house of entertainment is situated, and approved after due deliberation "by the municipal council of the incorporated city, within the limits of which such inn, tavern, or place of public entertainment, is intended to be kept, in the form expressed "in schedule (B) annexed to this act, and signed by the mayor and secretary of such council,"

The schedule B referred to is a certificate to be signed by