"nent hath been credibly informed and verily believes that " said Alex. G. Cochrane has withdrawn himself from his "creditors; and that said Defendant, in addition to the "amount of said note on which he is liable, is indebted also in "the said sum of £34 currency; that the deponent hath "been credibly informed by divers credible persons that, in "their opinion, the Defendant aforesaid was likely to clear "out and leave this province."

Defendant moved to quash, on the ground of insufficiency of the affidavit in not setting forth special grounds to justify the belief of Plaintiff.

The court granted the motion, DAY, Justice, observing that the statute recently passed (12th Vic., ch. XLII) for the relief of persons liable to arrest, contemplates the necessity of an absolute precision in the statement of the grounds of arrest, so as to enable the Defendant to meet and, if possible, disprove them. If information from these parties was alleged, the names of these parties should be given. (1 D. T. B. C., p. 352.) A. and G. ROBERTSON, for Plaintiff. DEVELIN, for Defendant.

CAUTIONNEMENT.—SUBROGATION.

SUPERIOR COURT, Montreal, 5 May, 1851.

Before DAY, SMITH and MONDELET, Justices.

JOHN REDPATH et al., vs. GEORGE MCDOUGALL et al.

Jugé Que l'existence de plusieurs sûretés et la perte de l'une d'icelles, ne libère pas les autres, et que la clause de subrogation, dans un acte d'obligation, n'est qu'un énoncé du droit commun.

This was an action brought by the Montreal Provident and Savings Bank, on an obligation for £300, and interest.

The declaration alleged the making of the obligation, on the 6th February, 1844, by George McDougall and John Morrison, as principal debtors, and the other Defendants as sureties, the failure of the principals to pay the obligation, after notice given, and the liability of the whole of the Defendants.

McDougall and Morrison, the principals, made default the other Defendants appeared, and pleaded that, by the obligation, in which they intervened and became bail and surety for the said George McDougall and John Morrison, a certain lot of ground was specially hypothecated for securing the payment of the sum of money mentioned in the obligation; that, by the said obligation, it was expressly stipulated between the said

parties, Plaintiffs, and the said sureties, " that, in the event of "the sureties being called on for the payment of the whole or any part of the said £300, then and in such case, the said "surety or sureties paying the same, shall be substituted and subrogated in all and every the claims, privileges, and mortgages, hereby created in favor of the bank, for the amount "which the surety or sureties may pay. " That, afterwards, on the 2nd February, 1846, McDougall and Morrison sold the lot of land so mortgaged to Charles Churchill, who, afterwards, on the 29th July, 1846, obtained a judgment of ratification, without any opposition having been filed by the bank, that, in consequence, Plaintiffs are unable to substitute and subrogate, Defendants in their rights, as created by said mortgage, and, in consideration of which contingent substitution, Defendants consented to become such sureties.

By a second plea, Defendants prayed, that, in the event of their being condemned to pay the said £300, such judgment be conditional on their being substituted by Plaintiffs in their rights on the said real estate under the obligation.

To these pleas, Plaintiffs filed special answers alleging that if no opposition had been filed, it was from the neglect of Defendants, in whose interest the said opposition was required; that, in requiring the security of Defendants, the object of the Bank was to insure the perfect safety of their claim, so that they would not require to rely on the mortgage, but, in case this should fail, that they might look to the sureties, who were always regarded as chief and principal guarantees; that they were and always had been ready, in so far as they have the power, to subrogate the sureties in all their rights against McDougall and Morrison, but that, in fact, such subrogation was unnecessary, since it was already given by the obligation.

The following authorities were cited at the hearing: Pothier, on Oblig., n° 280 and 557 7 Toullier, 172; Troplong, Cautionnement, n° 530, 531 et 532; do., de la Vente, n° 941 et seq.; 2 Duvergier, no 276 et seq.

DAY, Justice, in rendering judgment, said: The question now raised has been decided in the case of Morris vs. Harrison, October Term 1849, and the court need only refer to the doctrine laid down by Toullier and Pothier, against the opinions, however, of some other authors of high reputation, viz. that when a creditor takes a variety of different securities, and thinks proper to be still in respect to some of them, so that they are lost, that does not effect his right to recover against the others; but it is pretended that the present case is taken out of the general rule by the clause in the deed, which says, that the sureties are to be subrogated in the claims of the Plaintiffs for the amount they may pay. On carefully reading this clause,

the court is against this pretension. The clause does not create any new right it is, in fact, nothing more than the enunciation of the common law right, as it existed before. If more was meant, the parties should have said so, and should have stated expressly that they only became security on the ground that all other collateral securities were to be held for them. Although the clause is somewhat ambiguous, the court are unanimous as to the interpretation which ought to be given to it.

Exception dismissed, and judgment in favor of the Plaintiffs for the amount sought to be recovered. (1 D. T. B. C., p. 354.). CROSS, for Plaintiffs.

ROSE and MONK, for Defendants.

CAPIAS.

SUPERIOR COURT, Montreal, 10 juin 1851.
Before DAY and SMITH, Justices.

EDWIN CORNELL vs. JONATHAN MERRILL.

Jugé Que l'allégué, que le Demandeur a été informé d'une manière croyable que le Défendeur a secrètement emporté ses effets, pendant la nuit, dans l'intention de laisser la province, n'est pas suffisant pour soutenir l'émanation d'un writ de capias ad respondendum, si le nom de la personne qui a informé le déposant de tel fait n'est point déclaré.

A writ of capias ad respondendum had been issued on the Plaintiff's own affidavit, which was as follows: "That this "deponent is credibly informed, hath every reason to believe, " and doth verily and in his conscience believe, that the said "Jonathan Merrill is immediately about to leave this province "of Canada, with intent to defraud this deponent and his cre"ditors generally, whereby, etc., (as in ordinary form); and "for special grounds of the belief set forth and contained in "this affidavit, this deponent saith, that he hath been credibly "informed, and hath every reason to believe, that the said J. M., on the 15th April instant, and, on divers other days, between that day and the date of these presents, hath secretly " removed, and is still removing his personal property, furniture and effects, from his dwelling-house, in Stanbridge aforesaid, in the night-time, with an intent suddenly to depart this province, and to defraud this deponent and his "creditors generally."

The Defendant moved to quash on the ground, that the affidavit set forth no special grounds, as by law required, to justify the belief, on the part of the Plaintiff, of the allegations

therein contained, and because it did not disclose the name of the party from whom the information had been obtained.

At the argument, it was contended by the Plaintiff's counsel, that the disclosure of the names of the party giving the information, and all the facts respecting that information were matters of evidence, to be determined hereafter, and could not be raised on a simple motion to quash.

The court granted the motion to quash, DAY, Justice, observing: The court has already established the rule that, when the party making an affidavit for a capias, does so on the information of others, he must disclose the name of his informant. It would be making a mere mockery of the late statute, if the affidavit could be made in the same terms as before that statute was passed. It is important for the debtor to be able to contradict the assertions of the affidavit, and he may not be able to do this unless he knows from whom they proceed. This is the rule in England, and it is a rule the court intends to observe here. It may be made a question whether a motion to quash is the proper mode of proceeding, but as that has been the course hitherto observed, the court does not feel called upon to depart from it, and, therefore, grants the motion. (1 D. T. B. C., p. 357.)

MACK and MUIR, for Plaintiff.
DEVLIN, for Defendant.

PROCEDURE.-PLAIDOYERS.

SUPERIOR COURT, Montreal, 17 June, 1851.

Before DAY, SMITH, and MONDELET, Justices.

MARIE A. DUBÉ, Plaintiff, vs. ISIDORE PROULX, Defendant, and FÉLIX PAQUIN et al., T.-S.

Jugé : Que d'après l'interprétation de la 25e sec. de la 12e Vic., ch. XXXVIII, une exception à la forme et un plaidoyer de paiement ne peuvent être plaidés conjointement et en un seul et en même temps.

In this case, a writ of saisie-arret had been sued out after judgment. The Defendant appeared, and pleaded: 1° an exception péremptoire à la forme; 2° a plea to the merits, alleging payment. The Plaintiff moved to reject the exception à la forme, because the Defendant had, by the same plea, pleaded to the merits, and had thus covered the pretended nullity of which he complained.

DAY, Justice, in delivering the judgment, said: The court is with the Plaintiff. The uniform practice of the court has

been, that all preliminary exceptions should be disposed of first. Under the old rules of practice, exceptions déclinatoire, dilatoire, and à la forme, were required to be pleaded together, and under that rule and the practice prevailing in this court, they could not be pleaded at the same time with those to the merits. This is the rule which was uniformly acted upon up to the time of the passing of the last judicature act. The question now raised is concerning the interpretation to be put upon the 25th section of that act. The court is not disposed to give this clause such an interpretation as would admit the correctness of what has been done by the Defendant in this case. We cannot depart from what has been the uniform practice of the court, until directed to do so by a superior tribunal. In saying this, it has not escaped our attention that a judgment rendered in the court of Appeals, in the case of The British Fire and Life Insurance Company vs. McCuaig et al., seems to establish a different rule; but, as this particular question was not before the Court of Appeals in the case in which this decision is reported to be given the decision must be regarded as an obiter dictum, and cannot have the force of a judgment so as to make this court depart from what has been its uniform practice.

JUDGMENT: The court considering that said exception à la forme and the exception of payment cannot be conjoined and pleaded at one and the same time, and that, by pleading the said exception of payment, the Defendant hath necessarily covered and waived all vices of form in the process and declaration in the said cause, doth maintain the said motion, and reject the said exception à la forme. (1 D. T. B. C., p. 364.) DE BLEURY, for Plaintiff.

LAFONTAINE and BERTHELOT, for Defendant.

COMPAGNIE INCORPOREE.—ACTIONNAIRE.

IN THE CIRCUIT COURT, Quebec, 30 June, 1851.

Before DUVAL, Justice.

THE QUEBEC AND RICHMOND RAILROAD COMPANY 28. DAWSON.

Jugé Qu'un actionnaire dans une compagnie incorporée, peut opposer à l'action d'une telle compagnie qu'elle ne s'est pas conformée à son acte d'incorporation, et qu'en conséquence elle n'est pas légalement en existence.

This was an action brought by the Quebec and Richmond Railroad Company against a shareholder, to enforce payment of the amount of the first instalment, duly called in, on two