and acted upon, and, upon this point, our law and jurisprudence are clear and invariable. Even had the Whites had knowledge of the May order to Workman, they could legally take payment from the Grand Trunk Railway Company, under the notarial cession of October. Certainly so, in the absence of fraud, and none is even alleged. See p. 327, Marcadé, and No. 2 and 3, p. 328. The judgment is as follows: "The Court, considering that the sum of $566.67 sought to be recovered by plaintiffs, was received by defendants from the Grand Trunk Railway Company, in their, (defendants') right, under the notarial transfer to them of seventh October, 1870; that said money was paid by the Grand Trunk Railway Company, in payment of an amount previously due to the Montreal Printing and Publishing Company, as per an account rendered in May, 1870, for printing, after the rendering of which account the said amount had never been claimed from the Grand Trunk Railway Company, till defendants got it paid to them, in October, under and by virtue of the notarial transfer aforesaid, previously to the time of which payment the Grand Trunk Railway Company had no kind of notification of, and defendants had no knowledge of the paper, plaintiffs' exhibit No. One, or of the alleged cession by the Montreal Printing and Publishing Company to Workman, or to plaintiffs, of said $566.67; Considering that the Montreal Printing and Publishing Company had not, by said paper, plaintiffs' exhibit No. One, divested themselves of the said créance against the Grand Trunk Railway Company, so that they might not, at date seventh October, 1870, transfer the said créance, $566.67 to defendants so that the Grand Trunk Railway Company could validly pay it to defendants, and that defendants doing the diligence they did (the said Wm. Workman) and plaintiffs doing none, might and can hold the said $566.67, gotten from said Grand Trunk Railway Company; Considering that fraud is not alleged against defendants, and that defendants, cessionaires, by aforesaid transfer notarial, of the créance that once belonged to the Montreal Printing and Publishing Company, against the Grand Trunk Railway Company, got paid the said $566.67, before the Grand Trunk Railway Company had notice of the plaintiffs' exhibit No. One, and that defendants, by law, are entitled to keep what they had gotten, and are not bound to account for it, or for anything in respect of it, even, supposing plaintiffs to be in the right of Workman, president of the Montreal Printing and Publishing Company, and that that exhibit was or is a transfer valid to Workman, president of the Montreal Printing and Publishing Company of the amount referred to in it; Considering that nothing, subro gation clause or anything else, stipulated in and by said notarial transfer of seventh October, can prevent defendants. from maintaining their defence against plaintiffs; Considering, finally, that plaintiffs had failed to prove that defendants are indebted to or liable towards them as alleged, doth dismiss plaintiffs' action." MONK, J., dissented from the majority of the Court, on questions of fact. His Honor considered that the transfer to the City Bank, from the Printing and Publishing Company, though of the most informal nature, it was possible to imagine, was, nevertheless, good and valid; and respondents, by their subsequent purchase of the debts en bloc, acquired no right whatever to the particular sum so transferred to the City Bank. In receiving this sum, from the Grand Trunk Company, though in good faith, they were receiving money belonging to the City Bank, and were bound to account for it. BADGLEY, J.: The matters of fact upon which the action is founded are simple and few. It seems that Workman was president of the Printing Company, and from the course of business between that Company and the Grand Trunk Railway Company, the printing account, for work done by them, for the Grand Trunk, was made up monthly, and sent in to the Grand Trunk, and, for each account, an order was officially made by the Company in favor of their president, Workman, as such, to receive the amount of the account. Several of these orders, with the corresponding official receipts of the president upon them, are filed of record, which, so far, only show that monthly settlements and payments were made by the Grand Trunk, with the Printing Company, acting by its authorized president. This was plainly a matter between the debtor and the creditor alone, and, in itself, shows no connection between appellant and the Grand Trunk, who paid to the person authorized to receive the amount, and who had, therefore, no concern or interest in the manner in which the receiver applied it. Moreover, these orders were not transfers beyond the Companyself; they were mere authorities to their chief recognized officer, as such president, to receive the debt, without any authority to transfer it beyond himself, by order to that effect. Up to this stage of the proceedings, there is nothing to connect respondents with the matter. But it seems that the Printing Company had an account at the City Bank, of which institution Workman was also president, as well as of the Printing Company, and his practice was to have these orders deposited to the credit of the Printing Company, and to have the amount collected from the Grand Trunk Company. Even, in this Bank account, there is nothing to connect either the Grand Trunk or respondents with it, so that the banking connection between appellant and any of the parties mentioned must be limited especially to the Printing Company alone. The Grand Trunk, in the course of their business with respondents, paid their debt to respondents, authorized to receive it when presented, and that was the extent of their privity, whilst, as between respondents and appellants, there was no privity whatever. The appellants were unknown to respondents, who collected the debt transferred to them, and which was not excepted out of the general mass of debts transferred under the deed of purchase, and who, under the deed of sale by the Company, of which Workmin was president, were therefore entitled to receive it, no steps having been taken by Workman or appellants to have it secured for or paid by the Grand Trunk, either to the President of the Company, or to appellants, who could have no direct claim on respondents, under the order and no authority to receive it. All the other receipts and orders shewing the President of the Company alone to be authorized and actually receiving as by his official receipts, his deposit in the Bank of the amount received, did not make the Bank a privy to the debt as between the Grand Trunk and the Company, and could not affect respondents. Of the two alleged claimants, appellants, had a merely inchoate right which could only be perfected by payment, whilst respondents, under an absolute right over the unpaid and unclaimed debt transferred to them, used due diligence, and, therefore, have a right to be protected. The appellants have shown no legal obligation by respondents to repay the amount claimed of thein, and the judgment should be confirmed. Judgment confirmed. (17 J., p. 141, et 335) TRENHOLME & MCLAREN, for the appellants. ABBOTT, TAIT & WOTHERSPOON, for the respondents. MEDECIN.-PREUVE.-PRESCRIPTION. COUR DE CIRCUIT, Montréal, 10 mars 1873. BARCELO vs LEBEAU. Coram TORRANCE, J. Jugé-lo. Que, d'après l'art. 2260 du Code Civil, tel qu'amendé par l'Acte provincial 32 Vic., ch. 32, le médecin est cru à son serment, quant à la nature et la durée des soins, pour tout ce qu'il réclame en justice, et qui n'est pas prescrit. 20. Que la loi telle que conçue dispense le médecin de prouver la réquisition de ses services; il lui suffit d'en prouver lui-même la nature et la durée, et d'en justifier la valeur par un autre médecin. 30. Que, partant, il y a en sa faveur présomption que, s'il a donné des soins, c'est qu'il en a été requis, ou qu'on a permis ou souffert qu'il en donnât. Le demandeur, qui est médecin, a réclamé par son action, le prix des soins par lui donnés au défendeur et à sa famille, depuis le 14 février 1867 jusqu'au 4 juillet 1870. Le défendeur a plaidé que le compte du demandeur, moins le dernier item ($1.25), était prescrit lors de l'institution de l'action; quant au dernier item, il s'est contenté de le nier. Le demandeur a répondu spécialement que le défendeur ne pouvait invoquer la prescription, parce qu'il y a eu continuation de services et reconnaissance de la dette réclamée : ce qu'il a en vain essayé de prouver par le défendeur. Il ne restait donc plus au demandeur, pour éviter le rejet de sou action, qu'à prouver le dernier item de son compte, le seul qui ne fut pas encore prescrit. Il fut assermenté comme témoin, prouva la nature et la durée des soins en question, et ajouta qu'il avait été requis de les donner par le défendeur lui-même. Quant à la valeur, le défendeur déclara Cour tenante, n'en pas exiger d'autre preuve. J. DUHAMEL, pour le défendeur, prétend que la preuve offerte par le demandeur est insuffisante et illégale. La loi ne lui permet de prouver la nature et la durée de ses soins, que lorsqu'ils ont été requis. Dans le cas actuel, le demandeur n'a prouvé aucune réquisition, et le défendeur vient de jurer qu'il n'a jamais requis les services en question, et que le demandeur n'a donné aucun soin dans sa famil'e depuis le 14 février 1867. J. G. D'AMOUR, pour le demandeur, soutient, au contraire, que la preuve de la réquisition des soins donnés par un médecin, n'est pas nécessaire; la loi a régié la question d'une manière péremptoire, en décrétant que le médecin a le droit de prouver la nature et la durée de ses services. Si la loi, telle que conçue, signifie quelque chose, c'est que le médecin, qui jure avoir rendu des services de telle ou telle nature, est dispensé de prouver qu'il en a été requis; la preuve des soins donnés, et de la nature et durée de ces soins, comporte évidemment celle de la réquisition; car il y a, jusqu'à preuve du contraire, présomption en faveur du médecin, que, s'il a donné des soins, c'est qu'il en a été requis, ou qu'on a au moins permis, ou souffert, qu'il en donnât. Il ne restait done plus au demandeur qu'à prouver la valeur de ses services, par un autre médecin, et, s'il n'a pas fait cette preuve, c'est qu'il en a été dispensé par la partie adverse. La Cour a donné raison au demandeur, et condamne le défendeur à lui payer $1.25 (1). (17 J., p. 157) D'AMOUR et BERTRAND, pour le demandeur. CAPIAS. COURT OF REVIEW, Montreal, 30th December, 1872. Coram JOHNSON, J., TORRANCE, J., BEAUDRY, J. MILLIGAN vs MASON. Held:-19 That, in an affidavit for capias, on the ground of intention to depart, though the omission to disclose the names of deponent's informants, as to his grounds of belief, would be fatal, if his belief rested on information only, yet, the affidavit is good, if deponent swears directly to another of his grounds of belief, which is in itself sufficient. 29 That it is sufficient that deponent, as one of his grounds, swears directly that defendant is master of a ship, and that said ship is cleared at Custom House, though, without saying that this is done by defendant, or that he is going with her, or naming the destination. 30 That, in the circumstances, plaintiff was not limited to the remedy by revendication, but was entitled to capias. 4o That, though, since the Confederation, there has been no " Province of Canada," when such affidavit states that defendant is leaving "the Province of Canada," it is sufficient, and the Court will understand that thereby "the heretofore Province of Canada" is meant. This was a petition to quash a capias, on ground of insufficiency of the affidavit. The plaintiff's affidavit stated that Wm. E. Mason, at present, in the city and district of Montreal, captain of the ship" Eliza Alice" now in this port of Montreal, is personnally indebted to this deponent, in a sum of $80, being as and for the price and value of 400 new bags, &c.; that said Mason obtained possession of said bags, by false pretences; that the same had been, by plaintiff (deponent), hired to another party than said Mason, and that the same were, by deponent, sent by his carters, for delivery, to this other person, the captain of the ship "Grafwedel," also in the port of Montreal; that Mason, by falsely pretending, to deponent's said carters, that said bags were to be delivered to him, and that he was the party to whom said carters had been instructed to deliver said bags, deceitfully persuaded said carters to deliver to him said bags, and doth now refuse to deliver the same to deponent, owner thereof; that this (1) Un jugement en ce sens fut rendu, le 15 octobre 1869, dans la cause de White vs De Bonald, TORRANCE, J., 14 L. C. J., p. 133; 20 R. J. R. Q., p. 39 et 550. |