a difference of opinion in the courts in Canada, and to some extent between the Judges of the court from which this appeal comes, they will humbly recommend that the dismissal be without costs.

A petition was afterwards presented (1) by the Appellant for a re-hearing of the appeal on the ground that the judgment of Their Lordships was founded on documents which were not properly before the court. The petition alleged, that the judgment of Their Lordships was founded upon certain interrogatories and answers which had been, at the instance of the Respondent, and in conformity with the practice of the courts of Lower Canada, excluded from being used as evidence in the cause. That by the practice of the courts of Lower Canada when interrogatories were administered to one of the parties to a suit, the party administering such interrogatories could elect to use or not the interrogatories and answers as evidence in the suit, and that in the event of the party administering such interrogatories electing not to use the same, such party moves for an acte of the court of not using such interrogatories and answers, which is a matter of course, and that thereupon the interrogatories and answers are excluded from being used or referred to as evidence in the suit, but that the acte of the court was laid before the court with the other documents. That the Respondent had administered interrogatories to the Appellant which had been answered, but had afterwards elected to withdraw them, and had on the 4th of April, 1855, moved for and obtained an acte for that purpose. That the clerk of Appeals of the Court of Queen's Bench, in Canada, omitted to transcribe the Respondent's declaration of not using the answers to such interrogatories in the record transmitted to Her Majesty's Privy Council, in consequence of which the Petitioner submitted, that there had been a miscarriage of justice; for had the Respondent elected to make use of the answers and interrogatories as evidence in the court below, the Petitioner knowing the incorrectness of the inventory to which they referred, would have adduced further evidence to show the information to which they referred, that was in most part recently acquired, but that as the Respondent had elected not to use the answers to interrogatories, but to stand upon the alleged correctness of the inventory, taken and admitted in the cause, it was unnecessary and improper for him to adduce further evidence, an he submitted that the Respondent should be held bound by his election, or that

(1) 6th February, 1861; Present: The Right Hon. Lord Kingsdown, the Right Hon the Lord Justice Knight Bruce, the Right Hon. The Lord Justice Turner, and the Right Hon. Sir John Taylor Coleridge.

he should be allowed to give further evidence before the appeal was finally adjudicated.

In support of this petition, the Appellant filed an office copy in the Superior Court in Lower Canada of the motion made on the 4th of April, 1855, which purported to be "pour acte de ce que la Défenderese, ne se sert pas des réponses du Demandeur aux interrogatories sur fuits et articles; " with an affidavit setting forth the practice of the court in Lower Canada, and stating that it appeared from the list of documents sent to England annexed to the printed record in the appeal, that the clerk of Appeals had omitted to send to England the above acte of court, but that its title was inserted in the list of documents, and that the interrogatories and answers were marked as omitted."

Upon this petition and affidavits, Mr. R. Palmer, Q. C., moved for a re-hearing.

He submitted, that it clearly appeared, that Their Lordships' judgment proceeded on the interrogatories and answers, which were not in evidence in the action, although upon the file of the court, and was improperly included in the printed transcript sent from Canada, while from a further error of the clerk of Appeals, the acte made on the 4th of April, 1855, of the Respondent's declaration not to use the interrogatories and answers, was omitted. That no reference had been made in the printed cases by either side to those documents, as both parties were aware that they could not be used. Upon the question of allowing a re-hearing of an appeal, he referred to Rajundernarain Rae vs. Bijia Govind Sing (a), Sedgwick vs. Hitchcock (b), and as to correcting by a bill of review a decree obtained fraudulently, or in error, he cited the Earl of Brandon vs. Becher (c), Tommey vs. White (d).

The Lord Justice TURNER.

Their Lordships are of opinion, that it is impossible for them now to give relief in this case. No doubt the Appellant thought it for his advantage to have the interrogatories, and the answers inserted in the transcript of the appeal and treated as part of the case, on account of the statements being favourable to his case; and intended to take the opinion of the court upon that evidence, and to take the benefit of it if it should turn out to his advantage. Now, we are of opinion, upon that ground alone, irrespective of the question of law and practice, the allegations in the petition in this respect is insufficient. We do not think there is any hardship in this case, looking at what the Appellant had himself shown in his ans

(a) 1 Moore's P. C. Cases, 117.

(c) 3 Clk. & Fin., 479,

(b) Lord's Journ., 14 Vol., 601.

(d) I H. L. Cases, 160.

wers to interrogatories. But Their Lordships have, we apprehend, no power, in a case of this description to recommend to Her Majesty a re-hearing without directing some inquiry as to what knowledge the Appellant had of the facts at the time of the hearing. (13 Moores' Privy Council Rep., p. 376.)

APPEL.-CAUTIONNEMENT.—AVOCAT.

SUPERIOR COURT, Quebec, 6 décembre 1852.

Before BOWEN, Chief Justice, and MEREDITH, Justice.

ROUTIER, Appellant, and GINGRAS, Respondent.

Jugé Qu'un avocat ou procureur pratiquant ne peut pas être caution judiciaire dans une procédure du ressort de la Cour Supérieure.

This was an appeal from the Circuit Court. Appellant had given the security required by the Statute; but one of his bail was a Barrister practising before the Superior Court.

Respondent moved that the appeal should be dismissed, inasmuch as the bail-bond was illegal, it being entered into by a person in direct contravention to a rule of practice. The rule (6th rule of the S. C. L. C.) is as follows: "No barrister or attorney, prothonotary, sheriff, crier, bailiff or sheriff's officer, shall be bail or surety in any action or proceedings cognizable by this court, or by any judge thereof."

PER CURIAM: This is a long established rule, in English jurisprudence, as well as in the jurisprudence of this country. It existed in the former rules of practice, and we think it a beneficial one, which ought to be enforced; it has been found to be salutary, as well on public ground, as for the protection of the Bar itself. Rule absolute and appeal dismissed. (3 D. T. B. C., p. 57.)

STUART and VANNOVOUS, for Appellant.
TESSIER, U. J., for Respondent.

ENQUETE.-TEMOIN.

SUPERIOR COURT, Québec, 22 décembre 1852.

Before DUVAL and MEREDITH, Justices.

ROE vs. JONES.

Si un témoin est en dehors de la juridiction de la cour, sa déposition faite dans une cause précédente pourra être produite dans une cause subséquente, les matières en litige étant les mêmes.

Action for a malicious arrest.

Defendant had issued a cap. ad res. against Plaintiff, on the ground that he was indebted to Defendant in a large sum of money, and was about to leave the Province, with intent to defraud Defendant. The main question in the suit was the existence or non-existence of the debt for which Plaintiff had been arrested. At the former trial, one Thomas E. Jones was examined, touching the account between the parties, upon which the demand of Defendant was based, and, soon after giving his testimony, left the Province, to reside in the State of New York.

At the enquete, Plaintiff having established, by affidavits, the witness Jones' departure from the Province, and actual residence in New York, proposed to place on the record his deposition in the former suit (1).

STUART, OKILL, for Defendant: The deposition cannot be read or produced, until after Plaintiff has shewn that he cannot obtain the attendance of the witness; Plaintiff may issue a commission, and without difficulty procure his evidence in New York, and, therefore, the deposition offered is not the best evidence in the Plaintiff's power to give; although the parties in the present and former suit are the same, the points at issue are not identical; and, if the witness himself were produced or examined by commission now, Defendant might bring out other and important facts material to this issue and not to the former.

HOLT, in reply: Plaintiff is not bound to call up witnesses for Defendant, and, if Defendant wishes to give in evidence other facts, within the knowledge of this witness, to which he has not testified on the former pecasion, Defendant should have called him as a witness himself; Plaintiff has no means of compelling the attendance of the witness, and to entitle Plaintiff to produce and file the former deposition of the witness, he

(1) Authorities cited on behalf of the Plaintiff : 1 Greenleaf on Evid., § 553; 2 Starkie on Evid., P. II, pp. 261, 262; 3 Taunton, 262, Doncaster (Mayor of) vs. Day Buller's N. P., 242; 3 Cond. Louis. Repts, 350, Hennen v8, Monro; 4 Cond. Louis. Repts., 237, Miller vs. Russell.

is only bound to establish that he is residing in a place beyond the jurisdiction of the court.

Plaintiff's application was supported by authentic copies of the pleadings and exhibits in the former suit: DUVAL and MEREDITH, Justices, ruled that, inasmuch as it was shewn that the residence of the witness was beyond the jurisdiction of the court, and that the same matter (the indebtedness of Plaintiff) was in issue, the former deposition might be produced. (1) (3 D. T. B. C., p. 58.)

HOLT and IRVINE, for Plaintiff.
STUART, for Defendant.

CERTIORARI.-CONTRAINTE PAR CORPS.

COUR SUPÉRIEURE, Québec, 11 janvier 1853.

Présents: BOWEN, Juge en Chef, DUVAL et MEREDITH, Juges Ex parte DAVIES, Requérant pour un writ de certiorari.

Un magistrat n'a pas droit de refuser de faire un retour à un writ de certiorari, parce que les honoraires du greffier de la paix sur tel procédé n'ont pas été payés, mais une demande pour contrainte contre lui ne sera point reçue de suite et sans avis préalable. (2)

Dans cette instance, Davies est condamné à une amende (pour avoir vendu sans licence) par John Maguire, magistrat de police; il obtient un writ de certiorari, le place entre les mains du magistrat, et néglige de payer la somme de vingt chelins, dus au greffier de la paix, pour préparer la conviction et le retour, en vertu d'un tarif fait par les magistrats pour; quoi, le magistrat refuse d'obtempérer au writ de certiorari. De là, une procédure de la part de Davies, pour une contrainte par corps contre le magistrat.

La cour est d'opinion que la doctrine émise par Lord Mansfield, dans Rex vs. Bury, T. T. 1778, 1 Doug. 194, savoir que le magistrat ne peut refuser de rapporter le writ de certiorari, parce que les honoraires du greffier n'ont pas été payés, n'a jamais été mise de côté, et doit être suivie; mais elle est aussi d'opinion que le magistrat devait être mis en demeure de faire rapport du writ; et qu'avis devait lui être donné qu'une demande pour contrainte par corps serait faite contre lui, et qu'une règle à cet effet n'aurait pas dû être octroyée de plano ; pour ces raisons la règle pour contrainte est déboutée, quant à

(1) 2 Evans Pothier, 229; Harrison's Digest, Evidence, 2870. (2) V. art. 1229 C. P. C.