intent and purpose whatever of said writ. Dissentientibus, Mr Justice CARON and Mr Justice LORANGER." (17 J., p. 229.) E. L. PACAUD, pour l'appelante.

L. P. E. CRÉPEAU, pour les inti més.

TUTOR.-ACTION TO ACCOUNT.

SUPERIOR COURT, Montreal, 20th September, 1872.

BUREAU vs MOORE.

Coram TORRANCE, J.

Held: 1° That it is not competent to a minor become major, or his assignee, to bring an action against his tutor, for a specific sum of money which appeared by the tutor's account, pending his administration as tutor, to be a reliquat due by the tutor at a specified date during the administration.

2o That until the rendering of the account as tutor, the only action by the minor become major against his tutor arising out of the administration was the actio tutelæ directæ.

The plaintiff brought his action, to recover £227.4.7, alleged to be due him by defendant, on a transfer of a reliquat de compte, due by defendant, as tutor to his son, Terence Moore, junior, according to an account made by defendant before J. O. Bureau, N.P., on the 27th May, 1867. The defendant met the action by an exception, to the effect that he did not, on the 27th May, 1867, render a definitive account of his administration, as tutor to his son, Terence Moore, who was then a minor, and remained a minor until the 15th June, 1870, when only the administration ceased; that, until a definitive account has been rendered to Terence Moore, junior, now become of age, and duly accepted by him or adjusted, it was impossible to establish the sum really due. That the only action, therefore, which lay against defendant, by reason of his administration, as tutor to Terence Moore, junior, was one of account, and the present action was wrongly brought.

PER CURIAM: The relation of defendant to his son was that of mandataire to mandant. That relation existed until the majority of the son, on the 16th June, 1870, and the action arising out of the relation was the actio tutelae directae. Pothier, Mandat, No. 37: Le mandataire contracte par le contrat de mandat l'obligation:-lo de faire l'affaire qui en est l'objet, et dont il s'est chargé; 20 d'y apporter tout le soin qu'elle exige; 30 d'en rendre compte." No 61: De l'obligation que contracte le mandataire par le contrat de

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mandat, naît l'action mandati directa, qu'a le mandant contre le mandataire." 3. Troplong, Exécuteur Testam., n° 2028: "On sait que le mandat produit deux actions: l'une directe, qui compète au mandant pour lui faire rendre compte; l'autre contraire, qui compète au mandataire, pour se faire rembourser des dépenses qu'il a faites." 2 Pigeau, p. 27: 'Lorsque la tutelle finit, le tuteur doit un compte de l'administration des biens du mineur." Meslé, Minorité, p. 289: "La tutelle ou la curatelle étant finies, le tuteur ou le curateur, ou leurs héritiers, doivent rendre compte de leur gestion au mineur ou à ses héritiers, et en payer le reliquat; &c... le mineur après que la tutelle est finie, peut demander compte au tuteur ou curateur et se faire payer le reliquat, etc. L'action de tutelle ou demande en reddition de compte contre le tuteur, ne peut être formée qu'après la tutelle finie, etc." C.C. Canada, 308: "Every tutor is accountable for his administration when it has terminated." C. C. Can., 1713: “The mandatory is bound to render an account of his administration, etc." (This is under head of obligations of the mandatory.) C. C. 309 also gives a right to periodical accounts. Ces comptes ne sont que pour instruire les parents de l'état de la tutelle et pour les assurer de la fidélité du tuteur; ils ne doivent être qu'un bref état de la recette et de la dépense." Meslé, Part 1., cap. 12, p. 372, no 2. C. C. 311: “Every settlement between a minor become of age and his tutor, relating to the a lininistration and account of the latter, is null, unless it is preceded by a detailed account, and the delivery of vouchers in support thereof." Ferrière, Dict. de droit: Reliquat de compte est le reste ou débit dont le rendant compte se trouve débiteur par la clôture et arrêté de son compte, toutes déductions faites. Ainsi par reliquat l'on entend ce que le comptable doit par l'arrêté et clôture de son compte, quand la mise doit à la recette, pour avoir été moins mis et dépensé que reçu." The judgment of the Court was as follows: "The Court, considering that defendant became tutor to his son Terence Moore, then aged nine years, by acte of appointment of date 4th April, 1859, and his administration as tutor continued until the 16th June, 1870, when Terence Moore, the son, attained his majority; Considering that the act of date the 27th May, 1867, J. O. Bureau, Notary Public, was not a final account between the defendant and his said son, being then still a minor, and was not accepted by his son or by any person on behalf of his son; Considering that the said acte did not establish any indebtedness on the part of defen lant towards his said son at a later date or on the 28th April, 1871, date of the transfer by Terence Moore, the son, to plaintiff; Considering that the

only action competent to the son arising out of the defendant's said administration was an action for an account, actio tutelae directae, against defendant; doth dismiss plaintiff's action, with costs." (17 J., p. 235)

DORION, DORION & GEOFFRION, for plaintiff.
J. S. C. WURTELE, for defendant.

ASSURANCE.

SUPERIOR COURT, IN REVIEW,

Montreal, 28th February, 1873.

Coram MACKAY, J., TORRANCE, J., BEAUDRY, J.

LAFARGE US THE LIVERPOOL, LONDON AND GLOBE INSURANCE CO.

Held-That the preliminary proofs, under a fire policy, made after the 15 days within which the conditions endorsed thereon required the same to be furnished, are sufficient, and specially so when the conditions state, after the provision as to the 15 days, that until" such proofs are made no right of action shall accrue.

MACKAY, J.: On the 17th June, 1871, plaintiff insured, at defendants' office, a house at Upton, for $2,000, and a stable, for $200. The policy was granted upon a written application, in which the cash value of the house was stated to be $3,000, and of the stable $300. On the 10th October, 1871, the house was destroyed by fire, and plaintiff is suing for the insurance money. The defendants plead fraudulent over-valuation by plaintiff of the subjects insured; fraudulent false representations of value in the application that, in September, 1871, plaintiff, by deed, bound himself to sell the buildings and land to one Boisvert, for $2,000, and plaintiff was to disinterest the tenant, by paying him $200; that, shortly before the fire, plaintiff made use of language indicating a fixed purpose to burn the property, to realize the insurance money. Another plea sets up the tenth condition of policy, requiring notice, by the insured, in writing, forthwith after a fire, and delivery within fifteen days of a particular account of loss, verified by his oath, and, in case of buildings and machinery, by certificates under oath of practical architects or builders, and says that plaintiff never complied with this condition, and the policy stipulated against any waivers, and none were. Another plea sets up the same condition n° 10, and its provisions against false swearing upon claims, and says that plaintiff did make fraudulent claim. The plaintiff answers by denying the

imputations against himself and his claim, says that defendants knew all about the buildings before assuming risk, &c., that due notices were given of tire and loss, &c. The case was tried before Mr. Justice Beaudry and a jury. Fifteen questions were put to the jury; these are not such as I would have settled, had I had time allowed me; they were put before me, at the last minute, while I was on the Bench, on judgment day, the parties declaring to have arranged them to their mutual satisfaction, and praying me to accept them, and fix, then and there, a day for the trial. The questions now calling for attention, particular'y, are the following: "3rd. At the date of the application, what was the actual cash value of the several buildings mentioned in the application?" The jury answered: "The testimony, on this point, is contradictory, but the jury are of opinion, upon what appeared to them the most reliable evidence, that a cash value is established of $3,000, for the house destroyed, and $300, for the stable; and this estimate was accepted by the insurers when issuing the policy as the cash value of the insured property, and the jury consider this conclusion as the correct cash value at the application." "6th. Did plaintiff, after the insurance, at any time before the fire, use expressions indicating an intention to destroy, by fire, the said premises, or to avoid the payment of the $200, meaning to the tenant?" A.-"No.' "7th. Was notice of the fire given to defendants, by plaintiff, within the delay required by the policy, and when, and in what manner?" A.-" Yes on 10th October, 1871, to the sub-agent Thurber, as per document C, receipt of which was acknowledged by Smith, the manager, on 13th October, 1871; and also by document D transmitted by said sub-agent to Smith, on or about the 19th October, 1871." "8. Did plaintiff deliver, within fifteen days after the fire, to defendants or their secretary, an accurate and particular account of the loss caused by the fire, supported by vouchers and certificates of practical architects or builders and mechanics, verified by solemn oath or affirmation, and if not within 15 days, state in what manner and when?" A." Yes, as by document D." "9. Were the affidavits required by the policy furnished to, and received by defendants, and state when and whose the affidavits?" A.- The affidavits were in due form as per document D." 14. "Were any of the conditions of the policy waived by defendants, by any writing, &c?" A-"No." 15. “Amount of plaintiff's loss?" A. "$3,000 (less $250 value of foundation) $2,750." The defendants have moved for a new trial, and we will take up their material reasons in order: 1st. The cash values found by the jury are unsupported by the evidence, and, in fact,

contrary to the evidence, and the jury, "without any evidence," found that plaintiff's estimates had been accepted by defendants. All must admit that the question of value of the subjects insured is one of fact. In this case, there was evidence on both sides, conflicting evidence, upon this question. The jury find, upon these contradictions, that it appears to them that the values were $3,000, for house, and $300, for stable (ie., they support plaintiff). Courts and judges might differ as to this upon the same evidence. I have great difficulty, considering the sale to Boisvert, and plaintiff's obligation to disinterest the tenant by paying him $200, to see that the house burnt was worth $3,000, or over $2,000. I would probably have told the jury to reflect upon it with care. Yet, the defendants must submit to the jury's finding about it. Were we to hold otherwise, we would violate the principles governing jury trials. (See Hilliard, on New Trials, pages 340,341,345.) We cannot say that the verdict upon the point of value is unsupported by evidence. The jury report that the evidence is contradictory, but that so and so appeared to them, from what they considered, the most reliable evidence, &c. Why did defendants take plaintiff's premium? Why did they not examine the buildings before taking the risk? It is said that they did, and it is proved that plaintiff had insured before with defendants these very buildings. After the loss, why did they not make option to rebuild? They had a right to do this by a condition of their policy. The second reason in the defendants' motion is that the jury ought to have answered the sixth question in the affirmative. That question was as to whether plaintiff, before the fire, used expressions indicating intention to destroy his house by fire. The jury have answered in the negative. Upon this point, two witnesses have sworn that plaintiff did use the language attributed to him; but they will not say that he meant it seriously, in the bad sense that defendants would have it. It is to be observed that the question referred to is not pertinent to any issue. There is no allegation that plaintiff set fire to his house, or that he gave defendants reason to suspect it. Supposing that speech proved, and that the jury were to find so; int he absence of the plea that the assured set fire to the house, or that defendants suspect so, what pertinence would the finding have? In the absence of an appropriate plea, all presumptions are to be of plaintiff's innocence. The plea states, among other things, bearing only upon the plaintiff's representations of value, that plaintiff said so and so, and it breaks off, leaving that allegation there, naked and alone. Under these circumstances, we are against defendants upon this part of the case. The third reason