sœurs, qui prouvent les allégations de sa réponse. Le défendeur s'est objecté à cette preuve comme illégale, s'appuyant sur la première partie de l'article déjà cité, lequel se lit comme suit: Dans toute action pour salaire par les domestiques ou "serviteurs de ferme, le maître peut, à défaut de preuve écrite, offrir son serment quant aux conditions de l'engagement et "aussi sur le fait du paiement, en l'accompagnant d'un état détaillé. Si le serment n'est pas offert par le maître, "il peut lui être déféré, et il est de nature décisoire quant aux matières auxquelles il est restreint." Cette objection réservée par la Cour, renferme toute la difficulté de la cause. Le texte de la loi est formel, et, appuyé sur l'autorité de plusieurs anciens auteurs cités par les codificateurs, et la Cour, après mûr examen de la question, prononce en faveur du défendeur et déboute l'action du demandeur. Action déboutée. (1) (17 J., p. 173; 4 R. L., p. 681) LORANGER et LORANGER, pour le demandeur. ALDÉRIC QUIMET, pour le défendeur.

INTERDICTION POUR IVROGNERIE.

SUPERIOR COURT, Sainte-Scholastique, 20th March, 1873.

Coram TORRANCE, J.

Ex parte ISIDORE THÉRIEN, Petitioner, and GÉDÉON LAUZON, Opposant.

Held:-Than an interdiction, for habitual drunkenness, under 33 Vic., cap. 26 (Quebec), cannot be pronounced by the prothonotary of the Superior Court, in the absence of the judge, under C. C. P. 465.

A petition was presented to the prothonotary of the Superior Court, District of Terrebonne, on the 15th October, 1872, in the absence of the judge, under C. C. P. 465, praying for the interdiction of Gédéon Lauzon, as being an habitual drunkard, according to the provisions of 33 Vic., Cap. 26 (Quebec). An assembly of the relatives was held, on the 26th October, at which, Lauzon was present, and, after evidence taken by the prothonotary, and advice, under oath, of the relatives, the prothonotary, the same day, pronounced the interdiction. Gedéon Lauzon, in the terms of C. C. P. 465, on the 28th October, fyled an exception to the order of the prothonotary on two grounds: 1st. That the prothonotary

(1) Vide Pothier, Louage, no 175; Ancien Denisart, v° Gages, no 6, Actes de Notoriété, p. 304; Nouv. Den., Gages, p. 143.

had no jurisdiction, but only the judge. 2nd. That the service of the petition had not been made upon the opposant in the terms of the statute.

The case was argued before the Court in the February term (1873).

PER CURIAM: The objection of the opposant as to the insufficiency of the service of the petition upon him has not occupied the Court from the record of proceedings shewing that the opposant was present at the assembly, but not shewing that he then took exception to the insufficiency of the service. There remains the other question as to the jurisdiction of the prothonotary in the absence of the judge. Admitting for the sake of argument that the prothonotary had jurisdiction in the absence of the judge by C. C. P. 465 at the time when that article of the Code of Procedure took effect as law in 1867, we have to look at the provisions of 33 Vic., C. 26, providing for the interdiction of drunkards. This mode of interdiction was created by the Act which came into force on the 1st February, 1870.

The first clause reads: "On petition, under oath, presented to any one of the judges of the Superior Court for Lower Canada, who alone shall have power to act, &c., &c."

This clause gives exclusive jurisdiction to the judge, and the exception fyled by the opposant to the order of the prothonotary must be maintained, and the order set aside and annulled. Exception maintained. (17 J., p. 174; 4 R. L., p. 681)

DE MONTIGNY, for opposant.

PRÉVOST and ROCHON, for petitioner.

SURVEY.-COSTS.-NULLITY.

CIRCUIT COURT, Sainte-Scholastique, 20th March, 1873.

Coram TORRANCE, J.

BEAUDRY US TOMALTY et al.

Held:-1. That where a surveyor commits a notable fault in the making of a survey, and his report is in consequence set aside by the Court, he is not entitled to claim fees for his work.

2. That a failure to give the requisite notice to the parties before proceeding, is such notable fault.

The plaintiff's action was to recover from defendants, jointly and severally, $43.50, costs of a survey made by him, in an action en bornage between the two defendants.

The defendants pleaded separately that the survey made by plaintiff had been of no avail or advantage to them, in consequence of plaintiff's neglect to comply with requisite formalities, and, among others, to give the parties due notice of his proceedings, in consequence of which neglect, the Court had set aside the report made by him of the survey. The evidence of record showed that plaintiff, by judgment of the Circuit Court, for the County of Argenteuil, at Lachute, on the 30th May, 1868, in the cause No. 173, Tomalty vs Broadfoot (Aimé Lafontaine, J.), was appointed to run the line between the properties of the then plaintiff and then defendant, and "to establish the said line, in presence of the respective parties, or after due notification to them, &c." The plaintiff made a survey and report to the Court, fyled 11th January, 1869, which, by judgment of the same Court, on the 16th Sept., 1869, was set aside, "considering that defendant (Broadfoot) was not duly notified of the survey to be performed by the surveyor, and that defendant, was not duly represented at the survey." The notice, by plaintiff, that he would proceed, under the order appointing him, to make the survey, was served on the two defendants on the 2nd September, 1868, requesting them to be on the spot, on the third of the same nionth. The plaintiff's report to the Court states, "after due notification of the parties, as it appears by the return of the bailiff, dated the second day of September, 1868, the parties appeared, Tomalty personally, "and Broadfoot represented by his son, David Broadfoot." BURROUGHS and FILION, for defendants cited C. C. P. 943 and 333.

W. PRÉVOST, for plaintiff, contended that the proceedings, in the other case of Tomalty and Broadfoot, setting aside the report was res inter alios acta, and that his client should not lose his fees and disbursements, without crassa negligentia, which did not appear.

PER CURIAM: C. C. P. 333 requires the expert to give three days notice of his proceedings, in any case, unless there is a distinct waiver, which does not appear here. By C. C. P. 943, the same rule is to be observed by the surveyor en bornage. Was David Broadfoot authorized to represent his father? It does not appear, and the Court, at Lachute, has not given an unreasonable judgment. The plaintiff was certainly required to give due notice, without which his proceedings were of no avail. It was an indispensable preliminary and condition. An arrêt of the Cour de Rennes, 16th July, 1812, decides that the experts must support the cost resulting from the annulling of a report, as a consequence of a notable fauit on their part. (Journal des Avoués: T. 12, p. 709.) Carré, by

Chauveau, says, t. 3. p. 134, No. 1216, A.D. 1862: "Cette décision nous paraît fort équitable." This Court holds that the omission to give the notice in time is a notable fault, and that the plaintiff, in consequence, is not entitled to his bill. The action is dismissed. (17 J., p. 175; 4 R. L., p. 681.) PRÉVOST and ROCHON, for plaintiff.

J. H. FILION, for Broadfoot.
C. S. BURROUGHS, fo Tomalty.

DEPENSES A UNE ELECTION.

CIRCUIT COURT, Montreal, 1st April, 1873.

Coram TORRANCE, J.

JOHNSON et vir vs DRUMMOND.

Held:-That the supply of refreshments, to a gang of men collected, during an election of a representative to the Commons of Canada, to be used in case of an emergency, gives rise to no action at law for payment of the refreshments.

The action of plaintiff was to recover $72. The declaration alleged that, in the month of August last, defendant was a candidate, for the representation, in the Commons of Canada, of the electoral division of Montreal West, the voting, at which election, took place at the city of Montreal, on Wednesday, the 28th day of August last; that defendant, and the committee representing and working for him, hired a large number of men, to be ready in case of emergency, during the said election, and sent fifty of them to the place of business of the female plaintiff, where they remained during the 24th, 26th, 27th and 28th days of the month of August, and were furnished with refreshments, by the female plaintiff, at the instance and solicitation of defendant, and his committee, and, for the benefit and on the account of defendant; that the said gang of hired men was visited, at intervals, during the said days, by members of the said committee, and by their and defendant's employees, for the purpose of calling the roll, and paying the wages of the said hired men, and the said roll was called, and the said wages were paid, to the said hired men, in the female plaintiff's establishment. Then followed the "quantum meruit." The defendant demurred to the declaration, on the ground that the expenses sought to be recovered arose out of a parliamentary election, and, as such, were not recoverable.

KERR, Q. C., for defendant, cited C. S. C. chap. 6, s. s. 82, 83; 23 Vic., chap. 17, s. 6 (A. D., 1860); Confederation Act (1867), s. 41; 34 Vic., C. 20, s. 2, 9 [Canada].

66

PER CURIAM: The Act of 1860 enacts that every execuItory contract or promise or undertaking, in any way re"ferring to, or arising out of, or depending upon any Parliamentary Election, even for the payment of lawful expenses, "or the doing of some lawful act, shall be void in law." The plaintiff contends that this provision has not been kept alive by the Confederation Act of 1867, which makes certain provisions for elections, by s. 41, and they think that 34 Vict., C. 20, s. 9, shows this, by re-enacting the clauses of the Act of 1860. The defendant, on the other hand, contends that s. 41 of the Confederation Act kept alive the provision of 1860, and that the enactment of 34 Vic. was only made, in order to extend the provision over the Provinces of the Dominion. The Court is with defendant on these questions. But another grave consideration may be suggested. Art. 990 of our Civil Code enacts that contracts are illegal which are contrary to good morals, or to public order. Here, we have plaintiffs alleging that they supplied refreshments to a gang of 50 men collected by defendant, to be ready in case of an emergency. Against whom were these men to be used? Was it in support of public order, or otherwise? We are not informed. They were certainly organized as an "imperium in imperio," and the Court has no hesitation, in deciding that the cause of action disclosed by the declaration is unlawful, and the action must be dismissed. Action dismissed. (17 J., p. 176; 4 R. L. 682).

D. BROWNE, for plaintiff.

W. H. KERR, Q. C., for defendant.

OBLIGATION SOLIDAIRE.-CONCORDAT.

SUPERIOR COURT, Montreal, 30th September, 1872.

Coram BEAUDRY, J.

The MOLSONS BANK vs CONNOLLY.

Held. That, when a creditor agrees to a composition with one of two members of an insolvent firm, (without discharging the other) and obtains security for such composition, and, afterwards, releases the compounding debtor (without the consent of the other debtor) for a less amount than the composition, and surrenders the security, the other member of the firm, in an action against him, by such creditor, to recover the balance of his claim, may successfully resist the action, by an exceptio cedendarum actionum.