year. Can that be an action created in the Province of Canada? If it should be found that the defendant is bound, then the foreign contract is vindicated by awarding damages. I think that the present action is to enforce a foreign contract, and that no capias can issue in such. Reference has been made to the decisions of our Courts on the question of cause of action, and they are uniform that cause of action is combined of the promise and of the breach, hence when the promise was in one district and the breach in another the Court has been held to be without jurisdiction in either district, and the plaintiff was referred to the domicile of the defendant. Applying these decisions as far as they have any application to the present case, was not the promise and undertaking to serve made in Norway, and did not the breach occur here? Then the cause of action has not arisen in this Province if the decisions adverted to are based on reason and law. I am irresistibly drawn to the conclusion that not in one essential particular only, but in every essential particular the affidavit in this case is faulty and insufficient, it was not made by the book-keeper, clerk or legal attorney of the plaintiff, it does not swear that the defendant is about immediately to leave the Province of Canada-it does not contain sufficient reasons for swearing that the defendant was about leaving and lastly it shows clearly that the debt sought to be recovered was not created in the Province of Canada, but was created in Norway. The principal technical objections are: That the Prothonotary had no authority to issue the writ; That the arrest was made on a Sunday, without there appearing any authority to justify this; That no order for the issuing of the writ was ever granted by any Judge, and without such the writ could not legally issue. I am far from thinking all of these objections without any foundation, but as I am with the defendant upon other grounds I shall not express an opinion upon these. The questions submitted are in my apprehension neither complicated nor difficult of solution. The law governing the matter is one prescribing forms of procedure, and in regard to these the maxim is non observata forma infertur adnullatio actus-the procedure, whatever it is, required by law, it is our duty rigidly to exact, the restriction strictly to insist on, without regard to the facts or the hardship of the The intention of the Legislature controls absolutely the action of the judiciary, and if such intention is clearly shown, as in this case, the Courts have no other duty to perform than to execute the Legislative will. No rule is more firmly established and acted upon than that which declares when a law is plain and unambiguous, whether it is expressed in general or limited terms, the Legislature shall be intended.

case.

to mean what they have plainly expressed, and the Judges should not arrogate to themselves a dispensing power where the Legislature has spoken. Assuming the power of extending the meaning of a statute beyond its words, and deciding by the equity and not by the language, is exercising legislative functions, it is virtually repealing the law and enacting another. There exists no such power in the judiciary. I am called upon, with a law before me prescribing who shall make oath and what shall be sworn to, to say whether the affidavit in this cause contains these requirements. I find it impossible to say that it does, and I must, as a necessary consequence, order the enlargement of the defendant. The following was the written judgment in the Superior Court: "The Court, having heard the parties upon defendant's motion, for that the writ of capias ad respondendum issued be declared null and void, and set aside with costs distraits; doth grant said motion, and, thereupon, the writ of capias ad respondendum is declared illegal, null and void, and set aside and quashed." The judgment in Review was as follows: La Cour, considérant que la déposition sous serment, sur la production de laquelle a été obtenu le bref de capias ad respondendum ne contient pas l'énonciation que le défendeur était sur le point de quitter immédiatement la partie de la Puissance du Canada formant ci-devant la Province du Canada, et que les termes dont on s'y est servi ne comportent pas l'affirmation de ce fait, le jugement en première instance, savoir, le jugement susdit rendu par la Cour Supérieure siégeant à Québec, annulant le bref de capias ad respondendum émané en cette cause, est confirmé. Dissensiente, l'honorable juge TESSIER."

TESSIER, J. (In Review), dissentiens. The facts disclosed by the affidavit of William Markland Molson, President of this Company, a body politic and corporate, are: that, on the 15th April, last, at Christiana, in Norway, it was agreed between defendant and the company, that defendant should serve the Company for the term of one year, from the date of his arrival at the works, to wit, at "Moisic: that defen"dant, then and there, acknowledged that he was indebted "to the Company for the sum of $133.00 advanced him for the payment of his passage, and for the purchase of provisions for the voyage." It is further stated, in the affidavit, that defendant proceeded to Moisic, and there entered the "service of the Company, on or about the 29th May last, in the capacity of workman, and that defendant did not, nor "would on his part perform the said agreement, or continue "his services to the Company, but, without reasonable cause, " left the service of the Company, on or about the 9th June "then instant, to the damage of the Company of $333." The

deponent further stated that he had reason to believe, and verily believed, that defendant "is about to leave immediately "the Dominion of Canada, with intent to defraud the Company; That he joined with others, at Moisic in resisting. "the lawful commands of the manager and officers of the Company, and, with menaces, demanded his discharge, and "struck work, and afterwords left Moisic in a schooner, with a great number of others, the party so leaving declaring that they were going to join their friends in Chicago, in the United States; that, by so leaving, with the others, defen"dant has caused stoppage of the works of the Company." The defendant has moved to quash this writ of capias for several reasons. 1st. That the debt upon which the capias is issued is a foreign debt, and, if it is so, by article 806 of our Code of Procedure, the writ of capias does not lie. To decide this question, it is necessary for defendant to establish that the whole cause of action has originated in a foreign country, or that the debt which is claimed has been created in a foreign country; because the principle laid down in this article is an exception to the general rule. The performance of the contract was to be in Canada, and it must be presumed that for this purpose the parties intended to submit themselves to the laws of the country where the performance of the contract was to take place. The defendant has fulfilled that part of the contract by which he was to leave Norway and come to Canada; once in Canada, he began to perform the essential part of the contract, which was to work at Moisic for the Moisic Iron Company: and it is the performance, or non-performance, or bad performance, of this contract in Canada, that has given rise to the claim of the plaintiff, for which he seeks a remedy allowed by the laws of this country where the contract had to be performed. The passage money and purchase of provisions was not money lent, but money advanced to be credited on account of the work to be performed by the defendant; the affidavit states, "that the defendant then and there acknowledged to owe that sum;" the other sum is for direct damages on account of leaving the works, but the whole is claimed in this affidavit as of damage to the plaintiffs to the amount of $333.00. By order of the Judge, the amount for which bail could be given by the defendant was reduced to $183.00. This rule, that the debt is created in the country where the performance of a contract is to take place, and that the remedy is governed by the laws of that country, appears to be generally admitted. Bonjean, Traité des actions, vol. 1, page 6" Toute action suppose la violation consommée ou imminente d'un droit. Idem, page 12" Le droit, etc." Story, "Conflict of laws, n° 280." "The rules already considered

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"suppose that the performance of the contract is to be in the place where it is made, either expressly or by tacit implication. But where the contract is, either expressly or tacitly, to be performed in any other place, there the general rule "is in conformity to the presumed intention of the parties "that the contract, as to its validity, nature, obligation, and "interpretation, is to be governed by the law of the place of performance This would seem to be a result of natural "justice; and the Roman law his adopted it, as a maxim : Contraxisse unusquisque in eo loco intelligitur, in quo “ut solveret, se obligavit,' and again, in the law, aut ubi quisque contraxerit contractum autem non utique eo loco intelligitur, quo negotium gestum sit; sed quo solvenda est pecunia. The rule was fully recognized and acted on in a "recent case by the Supreme Court of the United States, "where the Court said that the general principle in relation to contricts made in one place to be executed in another was well settled, that they are to be governed by the laws of the place of performance." Pothier, Traité du change, n° 155. This principle has been recognized in our jurisprudence. In the Superior Court, at Montreal, Macdougall vs Torrance, 5 L C. J., p. 148; 8 R. J. R. Q., p. 137. et 20 R. J. R. Q, p. 145. Held by Mr Justice MONK: That a debt arising out a of contract made in Scotland to deliver passengers' luggage in the port of Montreal, and where delivery failed to be made, is not a cause of civil action which has arisen in a foreign country, and in this case a capias ad respondendum issued against the body of the defendant was maintained. The other rule is that the whole cause of action must have been created in Norway. In the case of Warren vs Kay, 6 L. C. Reports, page 492; 5 R. J. R. Q., p. 153, et 12 R. J. R. Q., p. 246, it has been held, (Justices MEREDITH and BADGLEY,) that cause of action means the whole cause of action. And, in Rousseau vs Hughes, 8 L. C. Rapports, page 187; 6 R. J. R. Q., p. 203, et 12 R. J. R. Q., p. 246, the same rule was maintaine by Judges MEREDITH, MORIN and BADGLEY. In that case, the learned Chief Justice MEREDITH cited an English case, 29 Eng. Law and Equity Reports, 269, in which Judge MAULE observed "Everything that is requisite to show the action to be maintainable is part of the cause of action. Although the question mooted in these cases was in reference to the jurisdiction of the County Court in England, it bears analogy to the present rule, which is also an exception to the common law; therefore the whole cause of action, or the whole debt, must be created in a foreign country, to give the benefit of the exception to the defendant; it appears to me clear that the whole debt was not in the present case created in Norway.

2. The other objections are more technical than substantial; among them is the objection that the affidavit is made by Wm. M. Molson, President of the Company; it is admitted that a single clerk of the plaintiff could make legally this affidavit; a fortiori, the President who is one of the Members and Directors of this Incorporated Company. 3. Upon the other technical objections, I believe the members of the Court are unanimously of opinion to reject them; I will, therefore, now limit myself to one upon which I differ from the other learned members of the Court. The objection is that the deponent swears that the defendant is about to leave the Dominion of Canada, instead of swearing that the defendant is about to leave the Province of Canada, or what formerly constituted that Province, Lower and Upper Canada. This objection appears to me to be purely technical, and unless the words" Province of Canada" are essential (sacramentels) the term "Dominion of Canada," clearly comprises the old Province of Canada; and the writ issued cannot be executed but within the limits of the Province of Quebec. How can the defendant complain if the plaintiff alleges on his oath more than is necessary? How is it prejudicial to the defendant? The whole context of the affidavit must be considered, and is it not a necessary conclusion from the facts therein sworn to, that the defendant is about to leave that part of the Dominion of Canada, formerly known as the Province of Canada? It is stated in this affidavit: 1. That the defendant was lately residing at Moisic, District of Saguenay, (judicially known as being within the old Province of Canada. 2. That on the 29th May, last the defendant entered the service of the plaintiffs at Moisic. 3. That on the 9th June, without reasonable cause, he left the service of the Company, joined with others "at Moisic, struck work, and afterwards left Moisic in a schooner with a great number of others, the said party so leaving declaring that they were going to join their friends in Chicago, in the United States;" this affidavit is sworn to on the 21st June, that is to say 12 days after the departure of defendant from Moisic in a schooner. Can there be any doubt that he was leaving the old Province of Canada, and even the Dominion of Canada, to go to the United States? What other idea can be conveyed to the mind of any one then, that there he intended to go: But it may be said that swearing that the defendant was about to leave the " Continent of America" would be insufficient; this may be, but it would then be so only because the Contient of America, although well known to us historically, is not judicially, known to us, while Dominion of Canada are the words used in our laws; and in the same way as the old