the Defendant, as testamentary executor of the will of one Patrick O'Reilly, to render an account.

The declaration alleged the appointment of the Plaintiff as tutor on the 25th April, 1848, but there was no allegation that the appointment had been enregistered.

The Defendant thereupon demurred, on the ground that the declaration contained no allegation, either that the appointment of the Plaintiff as tutor, or a memorial of such appointment, had been enregistered in the manner prescribed by the 24th section of the registry ordinance.

JUDGMENT:"Considering that, in and by the 24th section of the ordinance 4 Vict., ch. XXX, no action can be brought or maintained in the courts of this country, in the name, or on the part of any tutor or guardian to a minor or minors, until after a memorial of the appointment of such tutor shall have been registered in the manner prescribed by the said ordinance; considering that it is essential that the registration of the appointment of such tutor should be alleged in the said tutor's declaration, and, namely,, should have, but hath not been so alleged in this cause: considering, therefore, that the Plaintiff as such tutor hath not shewn, in and by his said declaration, that he hath such right of action, as aforesaid, the court maintains the said Defendant's défense en droit, and doth dismiss the Plaintiff's action, saving to the Plaintiff his recourse as he may be advised." (2 D. T. B. C., p. 3.) DRUMMOND and LORANGER, for Plaintiff. DAY, for Defendant.

TESTAMENT.—PREUVE.

SUPERIOR COURT, Montreal, 13 octobre 1851.

Before SMITH, VANFELSON and MONDELET, Justices.

CLARKE US. CLARKE et al.

Jugé Que le certificat d'un notaire, quant à l'état mental d'une personne à l'instant où elle fait son testament, qu'elle était saine d'entendement, est purement de style, et que cet énoncé peut être contredit par témoignage verbal: le notaire qui exécute un testament n'est pas tenu d'écrire l'original ou la minute de tel testament de sa propre main. (1)

This case came before the court upon a motion to revise a ruling given at the enquote.

The action was brought to set aside a will, on the ground

(1) V. art. 831 et 1234 C. C.

of suggestion, and, as being made by the testatrix, at a time when she was not saine d'entendement,

At the enquête, the two notaries by whom the will was executed were brought up by the Plaintiff, and questions put to them as to the state of mind of the testatrix at the time of making her will whether she was assisted by any and what papers or writtings, and as to who wrote the original or minute of the will. These questions were objected to, and the objection maintained by the presiding judge.

MCKAY, for Plaintiff: The words saine d'entendement which the notaries have used in the will, are merely de style, and may be disproved by parol evidence; the ordinance of 1667 does not exclude notaries from being witnesses; by the question, who wrote the original of the will?" the Plaintiff does not attack any declaration of the notaries; the law does not require either of the notaries to write the will: according to the best authorities, where fraud is alleged, or, as, in this case, fraud and suggestion, a great latitude is allowed, and even notaries may be examined as witnesses, (1)

SMITH, Justice: One proposition in this case is, whether the certificate of a notary as to the state of mind of a party, can be contradicted by parol evidence. The court is of opinion that it can. Then, if evidence is admissible on this fact, the question comes up, are the notaries themselves competent as witnesses? This question will be found fully discussed in 9 Toullier, nos 312, 313. From the time of Danty, up to the time of Toullier, the declaration of the notaries as to the state of mind of a party was regarded as mere matter of style, and susceptible of being disproved by verbal evidence. All the authorities concur on this point. It is true that the chancellor d'Aguesseau, took a different view, based on what he supposed to be public policy, but Toullier has taken up the arguments of the chancellor, and conclusively shewn them to be unfounded. The rule, as established by Toullier, Merlin, and other jurists is, that notaries are competent to give evidence where what they testify does not fall within the scope of what they are bound to do by law. Here they were not bound by law to make the declaration in the will touching the sanity of the testatrix, nor were they, nor either of them, bound actually to write the original will, and the judgment pronounced at enquête, must be overruled.

VANFELSON and MONDELET, Justices, concurred, the latter remarking that the result of a close examination of the autho

(1) Dénizart, rerbo notaire; 9 Toullier, no 312 et 313; Article 289, Custom of Paris.

rithies, had led him to change the opinions formerly expressed by him, in this case, at the enquête. (1) (2 D. T. B. C., p. 11.) MCKAY, of Counsel for Plaintiff. CROSS, Attorney, for Defendants.

PREUVE.—ENQUETE.

SUPERIOR COURT, Quebec, 1851

Before MEREDITH, Justice.

THE CITY BANK, Plaintiff, vs. COLES, Defendant, and THE CITY BANK, Opposant, and BosWELL, Opposant.

Un témoin peut se servir d'une déposition par lui déjà faite, ou cette déposition peut lui être lue, sur son examen subséquent, même dans une procédure différente, pour lui rafraichir la mémoire.

At the enquête, upon the contestation of the City Bank's Opposition, by the Opposant Boswell, a witness was called to prove the delivery of a parcel to the Defendant upon a particular day. He stated that he delivered the parcel in question either to the Defendant, or to Mr. Gethings, the cashier, but could not say positively to which; he thought it was most likely he had delivered it to the Defendant Coles himself; and the witness added, that it was on account of the lapse of time that he could not then speak positively upon the subject.

Holt, on the part of the Bank, then proposed, by way of refreshing the witness' memory, to place in his hands his deposition, relative to the same matter, taken upwards of a year previously, and about six weeks after the delivery of the parcel.

Ahern, on behalf of the Opposant Boswell, objected.

MEREDITH, J., ruled, referring to 1 Greenleaf, on Evid. 436 seq., and to 1 Esp. N. P. Rep. 439, Vaughan vs. Martin, that the deposition might be read to the witness.

et

Lord Kenyon (in Vaughan vs. Martin) said that "he "would take the deposition to be in the nature of a memorandum made at the time, which would be evidence to which "the witness might recur to refresh his memory; and that he therefore would allow the deposition to be read to the witness, and him to be asked, if the matters there stated were true." (2 D. T. B. C., p. 16.)

HOLT & IRVINE, for the City Bank.
AHERN, for Opposant Boswell.

(1) V. la cause de Clarke vs. Clarke & al., 2 R. J. R. Q., p. 345m

SHERIF.-RESPONSABILITE.

SUPERIOR COURT, Montreal, 13 October, 1851.

Before DAY, SMITH and MONDELET, Justices.

STEVENSON et al vs. BOSTON et al.

Dans une action intentée par l'imprimeur de la Gazette de Québec, publiée par autorité, contre le shérif, pour le coût des avertissements de décrets publiés dans la dite Gazette, jugé, que le shérif seul est responsable, et qu'il n'existe aucun contrat entre l'imprimeur et les parties à la poursuite desquelles les immeubles saisis sont décrétés. (1).

This was an action brought by the representatives of the Queen's printer, against the Defendants, joint sheriff of the district of Montreal, to recover the sum of £500, for printing and publishing notices and official advertisements in the Quebec Gazette, by authority.

Defendants pleaded, in effect, that, in their capacity of sheriff, they were bound to cause all notifications and advertisements, respecting sales of real estate, to be printed and published in the Quebec Gazette, by authority, and that the Queen's printer was bound to print and publish therein all such notifications and advertisements during the period required by law that, in the present instance, the advertisements for the price of which they were sued, were such advertisements as they were bound by law to insert in the Official Gazette; and, as the Queen's printer was bound to print and publish, and that they in no wise contracted with or employed him, the Queen's printer, as touching the same, but that the same was, in fact, done by the Queen's printer in performance of his official obligations and not for the use or benefit of the Defendants, but solely for the use and benefit of the parties to the causes wherein such sales were to take place, and who were alone liable to pay therefore: that they had paid over to the Plaintiff, on account of his fees for the insertion of the said advertisements, the sum of £83-2-6, and that, since the institution of the present action, there had come into their hands, on account of the same, a further sum of £96-3-3, which they had always been willing to pay over to the Plaintiffs that, making deduction of these two amounts, there still remained due a balance of £135-14-8, which had never come into their hands, and which they were not liable to pay.

DAY, Justice, in rendering judgment, observed: At the argument of this case it was suggested, that the sheriff acted in these matters merely as the huissier acted in France, as the

(1) V. art. 648 C. P. C.

mandataire of the parties to the causes wherein the sales took place, who are substantially the debtors, and to whom the printer must look. On looking into the whole of the proceedings by which land is brought to sale in this country, however, and comparing them with the system in France, it is plain that there is no analogy between the two, and that we must look to our own statute law for the general reasons which govern this case. By the ordinance, 25 Geo. III, ch. II, sec. 23, the mode is pointed out by which the sheriff is to proceed to sell lands taken in execution, and the duties, there made imperative on the sheriff, include the advertising of the property. This would seem to make it a contract between the sheriff and the printer, since the sheriff could alone call on the printer to perform that duty. But, on referring to the statute, 6 Will. IV, ch. XV, sec. 25, we find the law stated in very clear terms, it being declared that the sheriff, on the receipt of any writ of fieri facius de terris, venditioni exponas, or alias writ of fieri facias, is entitled to demand from the person presenting the same the sum of 20s. in advance, to defray the expenses of publication. This shows the intention of the Legislature to make the sheriff liable. Moreover, the universal practice of the sheriff indicates that the contract is between him and the printer, as he has always, after deducting the sum from the amount levied, put it among his own particular charges. If the law were not so, great injustice, as well as inconvenience, might result, as the sheriff has the means to cover himself from loss, whereas the printer has none: there is no privity of contract between the printer and the Plaintiff, and if the law were to deny the printer a remedy against the sheriff, it would deny him all remedy whatever. It is true that this may seem hard on the sheriff, but it is one of the contingencies of his office, and he must look to the Legislature to relieve him from it.

Judgment for Plaintiff for balance sought to be recovered. (2 D. T. B. C., p. 17.)

ROSE & MONK for Plaintiff.

BETHUNE & DUNKIN for Defendant.

PROCEDURE.-SAISIE D'IMMEUBLE.

COUR SUPÉRIEURE, Montréal, 13 janvier 1852. Présents: DAY, SMITH et MONDELET, Juges.

BOYER VS. SLOWN et al.

Jugé: Que sur saisie réelle, l'absence de recors, d'élection de domicile du saisissant et de l'huissier, de mention de l'avant ou de l'après-midi,