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say that 417 32-45 bushels were sent, and more could not be, for want of bags; that the seed fell in price, and, afterwards, defendant would only offer $2.35 per minot for what he had received. The conclusions are for $1091.53. The defendant's plea sets up the memorandum of the sale and denies that plaintiffs fulfilled their contract, or that defendant accepted the seed; it says that the seed was not up to the sample, but very inferior; that defendant refused it, stored it for plaintiffs' account, notifying them of the facts. The judgment a quo has found that what was sent to defendant was inferior to the sample, and that no perfected sale has been; so the action has been dismissed. The plaintiffs appeal. At the argument before us, one point insisted upon was that the seed certainly was not all bad, that defendant ought to have been condemned to pay for so much of it as was good, and that, at most, only 70 bags are proved inferior. Authorities were cited. Our Civil Code, it was contended, supported the proposition that deficiency of quality being only as regarded a small part of what had been sold, as the purchaser would, probably, have bought without this part, he ought not to be allowed to rescind the sale in totality. I notice that, in the course of the proceedings, the sale is sometimes called sale of 225 bags of timothy seed, and sometimes sale of about 450 minots, while the contract reads as sale of one car load, say 450 bushels. The declaration alleges that defendant's agent declined, or did not think fit to examine the bulk; but the proofs establish that the bulk was not possessed by plaintiffs at the time of the contract; plaintiffs had to make it up afterwards by buying; they bought in lots of two to twenty minots to complete it. In March, the seed was sent to Hamilton in one lot, 225 bags, 70 of which were very inferior to the sample. Is plaintiffs' proposition that defendant can be charged with so much of the seed as was not inferior to the sample, sound? Can the seller of a large named quantity charge the purchaser upon a delivery of a lesser quantity, acceptation of what has been delivered having been refused? Suppose a contract for 1,000 bushels; seller sells 900, of which 200 are bad. The nine hundred are refused. Can the purchaser, nevertheless, be charged with the 700 admitted to be good? A car load of seed being sold, can the purchaser be held to accept a half or a quarter of a load? In the case in hand, defendant has right to say that his contract was one, and that entire performance of it had to be. See Champion vs Short, 1 Camp. Story, on Sales, sect. 376, says: "Where goods are sold by sample." The exhibition of a sample is equivalent to an affirmation that all the goods sold are similar to it, and, if they be not, the vendee may rescind the

contract." Another argument of plaintiffs was that, possibly, the sample had been tampered with by defendant. This we do not see. It was argued also that the proofs for plaintiffs are stronger than those for defendant. Plaintiffs' witnesses

look somewhat interested; the strongest of them are those who bought the seed for plaintiffs to make up the bulk with. They do say that the seed is good, but others prove the contrary. There is evidence pro and con. That for defendant is strong. The Judge a quo has passed upon all, and not unreasonably; so his judgment is confirmed. S. C. confirmed. (17 J., p. 244; 3 R. C., p. 64) JETTÉ, ARCHAMBAULT & BÉIQUE, for plaintiffs. CARTER & HATTON, for defendant.

Judgment of

FAITS ET ARTICLES.

SUPERIOR COURT, Montreal, 28th February, 1873.

Coram JOHNSON, J.

WALTERS vs LYMAN et al.

Held:-That when faits et articles are served on the attorney of one of the parties who is absent, the simple indication by such attorney of the place of residence of his client is a sufficient compliance with the provisions of Art. 223 of the Code of C. P., and that he is not bound to take steps to have his client examined under a Commission. (1)

PER CURIAM: This was a point which arose at enquête under 223 C. P. A party was absent, and his attorney thought it sufficient to indicate where his client was, without taking steps to have him examined. The Court thought the meaning of the Code was that when an attorney has indicated where his client is, it is at the diligence of the other party to have him served with the faits et articles. If the locality indicated were in the midst of the ocean or other place not easily accessible, that would be a case in which delay might be granted by the judge for the service of interrogatories. Acte granted to defendant of his designation of residence of Elisha S. Lyman. Acte granted. (17 J., p. 246).

DORION, DORION & GEOFFRION, for plaintiff.
JOHN DUNLOP, for defendants.

(1) Vide art. 361 C. P. C. de 1897.

PUBLIC ROADS.-RESPONSIBILITY OF MUNICIPAL CORPORATIONS.

COURT OF REVIEW, Montreal, 30th November, 1872.

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

HIGGINS et vir vs THE CORPORATION OF THE VILLAGE OF RICHMOND.

Held:-That defendants were liable for damages suffered by the female plaintiff, by the upsetting of a sleigh on the highway under control of defendants, caused by the natural bank on such highway, notwithstanding that the roadway opposite the bank was wide enough for two teams to pass, and notwithstanding that the accident was more immediately caused by the horse taking fright at the sound of a railway whistle; the horse itself also being at the time driven by a female only 12 years of age.

This was a review of a judgment rendered by the Superior Court, at Sherbrooke, condemning defendants to pay plaintiffs $120, besides interest and costs. The action was brought to recover the sum of $5,310, for damages alleged to have been incurred by the female plaintiff, in consequence of the upsetting of a sleigh, in which she was being driven by a girl only 12 years of age, on the public road under the defendants' control. It was in evidence that, where the accident occurred, there was a natural mound round which it was necessary to drive, and that the level roadway opposite this mound was about 23 feet wide, and wide enough for two teams to pass. The upsetting was said to have been caused by the sleigh striking this mound, and that the horse was a skittish one, and had been frightened by the sound of a railway whistle. The defendants contended that there was negligence on the part of the female plaintiff, in suffering herself to be driven by a girl of only 12 years of age, the horse too being a skittish one, and that the immediate cause of the accident was the sounding of the railway whistle, which had frightened the horse, and that, under the circumstances, they were not liable. Reference was made to Sleigh, Personal Wrongs, p. 103. Moffette vs. The G. T. R., 16th L. C. Rep., p. 231, 15 R. J. R. Q., p. 88 (1); Hilliard, on Torts, vol. 1, p. 140-142.

(1) C'est un principe général que celui qui réclame des dommages causés par la faute grossière ou par la négligence du défendeur, soit à l'abri de toute imputation de négligence ou de manque de soin ordinaire, et qu'il n'a aucun droit d'action dans le cas où les dommages soufferts seraient le résultat de la faute commune, plus particulièrement en l'absence de voies de fait ou de tort prémédité. (Moffette vs Grand Trunk Railway Company of Canada, C. S. R., Québec, 5 mars 1866, BADGLEY, J., STUART. J., et TASCHEREAU, J., confir mant le jugement de C. C., Québec, 16 D. T. B. C., p. 231, et 15 R. J. R. Q., p. 88.)

BEAUDRY, J., dissentiens: The action is for the recovery of damages caused by the upsetting of a sleigh. It is stated that the road is not level, that a mound exists, which it was the duty of the Corporation to have removed. Had that been done, the accident by which the female plaintiff and child were thrown from the vehicle would not have happened. As I read the evidence, defendants are not to blame. The road has existed in its present state for forty or fifty years, and the accident appears to have been caused, not by any obstruction in the road, but by the proximity of the railway, the whistle of which frightened the horse. I have therefore to dissent from the judgment of the majority.

MACKAY, J.: The suit was brought for special damages, alleged to have been suffered by Mrs. Higgins or Steers. Her husband also sued for damages, but he has waived that claim, and he now stands in the suit simply for the purpose of authorizing his wife who is séparée de biens. The damages are charged as having been caused to Mrs. Steers by an obstacle in the roadway, near the railway station, a mound being permitted to exist, which, it is charged, it was the duty of the Corporation to have removed. It was alleged further that the Corporation had been warned to abate this mound, but they had neglected to do so. The defendants plead that the road is a good natural road; that no negligence of theirs contributed to the accident; that there was no obstruction except a natural inequality of the road. There was a further plea imputing negligence to the person driving the vehicle. In February, 1872, judgment went against defendants, finding that this imperfection in the roadway did exist, and awarding the sum of $120 damages. If the defendants are liable, the condemnation must be considered very moderate, because the woman was seriously injured, and was

Celui qui réclame des dommages doit non-seulement prouver que les dommages réclamés ont été causés par la faute ou la négligence du défendeur, mais aussi qu'il n'y a pas eu manque de soin de sa part, ou que, s'il y a négligence de sa part, elle n'a pas contribué au tort dont il se plaint. Il doit aussi faire preuve qu'il y a eu de sa part précautions suffisantes au moment de l'accident. (Moffette rs Grand Trunk Railway Company of Canada, C. S. R., Québec, 5 mars 1866, Badgley, J., STUART, J, et TASCHEREAU, J., confirmant le jugement de C. C., Québec, 16 D. T. B. C., p. 231, et 15 R. J. R. Q., p. 88.) Lorsque les dommages réclamés ont été causés par une personne dans l'exercice de ses droits légaux, celui qui les réclame doit prouver qu'il n'y a pas eu faute de sa part et qu'il y a eu négligence de la part du défendeur. Le demandeur n'a pas droit d'action, lors même que le défendeur aurait été coupable de négligence grossière, si lui-même a montré un manque de soins ordinaires et a ainsi essentiellement contribué au tort dont il se plaint. (Moffette vs Grand Trunk Railway Company of Canada, C. S. R., Québec, 5 mars 1866, BADGLEY, J., STUART, J., et TASCHEREAU, J., confirmant le jugement de C. C., Québec, 16 D. T. B. C., p. 231, et 15 R. J. R. Q., p. 88.)

confined to her house for a long time. The majority of the Court think the judgment is right in holding defendants liable. We do not say that municipalities are obliged to reduce all their roads to levels, but we say this is a particular case. Other accidents had taken place at the same spot. There had been numerous upsets there, and notice had been given to the defendants to remove this mound out of the roadway. It is proved that the mound is a very peculiar feature in the roadway, and a manifest obstruction. The fright of the horse, caused by the whistle of the train, is said to have been the primary cause of the accident, but we do not find it so. Other accidents happened at the same place without the railway having anything to do with them. There was a slight upset there about a week after the accident to the plaintiff. Suppose the horse was a little skittish at the whistle of the railway, we do not think that was the primary cause of the accident, or that it can be considered there was fault or contribution by the plaintiff, so that she is to lose her damages. In many cases, even where there is contribution by the plaintiff to the accident, and the contribution is very small, plaintiff is not to lose his damages. Under the circumstances, therefore, the judgment ought to be confirmed. Judgment of S.C. confirmed. (17 J., p. 246; 2 R. C., 476)

W. BROOKE, for plaintiffs.

HALL and WHITE, for defendants.

SUBROGATION LEGALE.

COUR SUPÉRIEURE, St-Hyacinthe, 27 février, 1873.

Coram SICOTTE, J.

LAVALLÉE VS TÉTREAU, et Roy, opposant et colloqué, et LAVALLÉE, Contestant.

Jugé:-1. Qu'avant le code, la subrogation légale, sans demande, était accordée à l'acquéreur qui employait son prix au paiement des créanciers auxquels cet héritage était hypothéqué, et qui était ensuite évincé pour cause non dérivant de lui, et ce, quand même il aurait été chargé par son acte d'acquisition de payer tels créanciers.

2. Que la revente volontaire par le premier acquéreur, après avoir ainsi payer les créanciers inscrits, et l'éviction par vente judiciaire sur le second acquéreur, à la demande de créanciers hypothécaires antérieurs à l'acquisition du premier acheteur n'ont pas eu pour conséquence de nullifier la subrogation.

PER CURIAM: Le jugement dépend de la solution des deux questions suivantes: 1 Avant le code, la subrogation légale

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