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of deponent, had been in Nova Scotia, or in British Columbia, and about to go to the United States, he could have sworn as he did, that the defendant is immediately about to leave the Dominion of Canada,' and yet, it is equally plain that, in the case supposed, the plaintiffs would not have had a right to sue out a writ of capias ad respondendum. If, in addition to the allegation that the defendant is immediately about to leave the Dominion of Canada,' it clearly appeared upon the face of the affidavit that at the time it was made the defendant was in the province of Quebec, I would deem that sufficient, because in that case the defendant could not leave the Dominion of Canada without leaving the late Province of Canada; and these allegations would justify the further statement that such departure will deprive the plaintiff of his recourse.' But it does not appear by the affidavit, that when it was made, the defendant was in the province of Quebec, or even in the late Province of Canada; on the contrary, the affidavit was made on the 21st June, and all we know from the affidavit about the defendant, in this respect, is that some time after the 9th of June, the defendant 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.' Indeed, if the allegation that a defendant is about to leave immediately 'the Dominion of Canada,' be declared to be good, I do not see how the allegation, the defendant is about to leave immediately the Continent of America,' could be held to be bad. The Dominion of Canada, it is true, includes the late Province of Canada; but so does the Continent of America. Either of the two allegations already mentioned would, in this respect, probably suffice if accompanied by the statement that, at the time of the making of the affidavit, the defendant was within the limits of the province of Quebec; but without that statement, it appears to me that the two allegations would be equally insufficient. It has been contended that if the defendant had not been in the province of Quebec, he could not have suffered from the issuing of the writ, but that contention admits of two answers: Firstly: We are not now called upon to decide whether the defendant was or was not exposed to be arrested under the writ-what we have to determine is simply whether under the affidavit in question the plaintiff was entitled to the writ sued out. The second answer that may be given to the contention now being considered, is that, if at the time of the making of the affidavit, the defendant had been in Manitoba and had immediately returned to this province, with the intention to remain, he would have been liable to be arrested under a writ, which in

the case supposed certainly ought not to have issued. The rule by which we ought to be guided in cases such as the present, was laid down by Lord Ellenborough, in the words: The strictness required in these affidavits, is not only to guard the defendants against perjury, but also against any misconception of the law by those who make the affidavit,' and the learned Chief Justice added: The leaning of my mind is always to great strictness of construction where one party is to be deprived of his liberty by the act of another.' 11 East 315. This rule has been frequently acted upon by our Courts, but I can hardly say I deem its application necessary in the present instance; because it appears to me that, even according to the ordinary rules of construction, it is impossible to say that an affidavit that a defendant is about to leave the Dominion of Canada,' which would be true if the defendant were about to leave Nova Scotia, New Brunswick, Prince Edward Island, Manitoba or British Columbia, in order to go to the United States, is of itself equivalent to an affidavit that the defendant is about to leave the late Province of Canada, which would not be true if the defendant was about to leave any of the said five Provinces."

RAMSAY, J., dissentiens (In appeal): This case comes before us on a motion to quash a writ of capias ad respondendum. There are a variety of grounds alleged on which it is sought to have the capias set aside. On all of these save one I believe the Court is agreed, and that they are deemed to be insufficient, I shall therefore only allude to the one reason in which I, with my brother Monk, dissent from the majority of the Court. The ground to which I refer is the absence of any substantial allegation that the defendant was about to leave that part of the Dominion of Canada heretofore representing the Province of Canada. Before explaining my views on the merits of this question I must dispose of two preliminary objections raised by the Counsel for the appellant.

He says that this writ was issued on the authority of a judge, and that consequently we cannot go behind his order. It is said that he had a discretion to exercise, that he has exercised it, and that there is an end of the matter. I think this is a misapprehension which will be cleared away if we look at the history of the law. Originally, in cases of unliquidated damages, the plaintiff got his writ on affidavit exactly as in ordinary cases of debt. It was felt that this was a hardship, and that it put parties, whose affairs led them to leave the country, at the mercy of unscrupulous claimants, and the law was modified so as to render it necessary, before issuing the writ for a debt arising out of damages, then unliquidated to obtain the order of a judge. This was an

amendment of the law clearly in favor of the defendant; but if we were to hold that this order, obtained exparte, were to preclude a contradictory revision then we should be converting what was intended to be an advantage into a disadvantage. The discretion of the judge who gives the order is as to the expediency of allowing the writ to issue at all; it does not extend to absolving the plaintiff from making the necessary affidavit. The other preliminary question is that the motion does not sufficiently set forth the objection taken to the affidavit. I am of opinion that the grounds are sufficiently assigned 15thly and 17thly. The latter of these grounds distinctly says that the allegations required by law are not to be found in the affidavit. This covers very amply the defect insisted upon now. These preliminary questions being disposed of, it appears to me that the whole question is in a nutshell. If there is any principle consecrated by a constant and unvarying jurisprudence it is this, that the affidavit for a capias must be precise, and that everything required by the Statute must be formally alleged-i. e., sworn to-leaving nothing to he inferred. I remember that this was distinctly laid down in Nye vs Macalister nearly twenty years ago (1). I never heard of this doctrine being overruled, and I do not think even now the ruling will be called in question. Let us then look at the precise case. The Code requires that the plaintiff should allege that defendant "is about to leave immediately the Province of Canada." Of course these words cannot now be used, and consequently plaintiff was obliged to substitute other words of a similar meaning. The words he has chosen are that defendant "is about to leave immediately the Dominion of Canada." It will not be seriously contended that these words are equivalent. The former Province of Canada. is not co-extensive with the Dominion of Canada; and it is a mere fallacy to say that the Dominion of Canada being greater includes the Province of Canada, as the greater includes the less. It is precisely because the Dominion includes the Province, and something more that it is a bad definition of the defendant's movements, which it was necessary to circumscribe. But the real test is this, the plaintiff might have sworn all he did, with truth and not be entitled to his writ. It is not, however, squarely maintained that this allegation

(1) L'affidavit pour capias doit contenir tout ce qu'il est nécessaire d'alléguer pour le faire maintenir. Ainsi dans une poursuite accompagnée d'un capias basé sur une créance qu'un tiers avait contre le défendeur et qui a été transportée au demandeur, la signification au défendeur du transport fait au demandeur, doit être alléguée dans l'affidavit. (Nye vs Macalister, C. S., Montréal, février 1854, DAY, J., SMITH, J., et C. MONDELET, J., P. D. T. M., p. 27 et 2 R. J. R. Q., p. 347.)

of itself is enough, and stress is laid upon the fact that the defendant left the District of Saguenay on the 9th June, and that he or some one or more of his associates said they were going to Chicago in the United States. This it is said helps the allegation and narrows the Dominion of Canada to the size of the late Province of Canada. If this is not the pretention, then it must be said that it was unnecessary to mention the Dominion of Canada at all in the affidavit, and that it would have been sufficient for plaintiff to say that defendant left the District of Saguenay on the 9th June saying he was going to Chicago in the United States. But the answer to this sort of reasoning is that the conclusion arrived at by the Court is an inference from facts sworn to and not a fact absolutely sworn to. What plaintiff had to do was to swear his belief and not to swear to facts which might induce others to believe what he ought to have sworn to. I am therefore of opinion that the affidavit is insufficient, and that the judgment of the Court of Review should be confirmed.

MONK, J., also dissentiens, relied on the reasoning of his brother Ramsay and the Chief Justice in the Court below.

TASCHEREAU, J.: The only question which should seriously engage our attention is this: Had the plaintiffs the right of issuing a capias against the defendants by virtue of the affidavit made by the President of the Company, in which affidavit the President has not sworn that the defendants were immediately about to leave that part of the Dominion of Canada heretofore known as the Province of Canada, but has contented himself with swearing that they were about to leave the Dominion of Canada? A number of objections have been taken against the affidavit, and to the Judge's order, but as all these objections appear to have been set aside by the honorable Judge of the Superior Court, who. in the Court of Review, pronounced the judgment from which the present appeal has been instituted, viz., the judgment quashing the writ of capias, and as I do not attach any importance to these first objections, I shall confine myself to the discussion of the single question to which I have adverted. The respondents say that the affidavit of the President of the Company is insufficient, and does not set forth sufficient facts to warrant the Company in issuing a capias; that there is nothing to shew that at the time when the affidavit was made the defendants were in the heretofore Province of Canada. I admit that, from the first moment that objection was submitted to us, I found no real weight in it. In fact, if that strictness be exacted, an affidavit made by an inhabitant of the city of Quebec against one of his

townsmen living in the same city, without saying that at the moment when the affidavit is made the latter is still in the Province of Canada, but is upon the point of leaving for Europe, or of leaving the Dominion of Canada, would be null, and the capias, even if executed at Quebec an instant after the making of the affidavit, would be well and duly set aside! I think that such a capias would be unassailable. But if one reads attentively the affidavits made in the present cases, it is seen that it is there positively sworn, on the 21st of June, that the defendants had left the service of the plaintiffs on the 9th of June, and had then embarked on board of a schooner at Moisic, where they then were, in order, with others, to proceed to Chicago, in the American Union; and, in fact, they arrive at Point Levi about the 21st and are arrested on the 22nd and 23rd of June. Doubtless the affidavit might have been more explicit, but it seems to me sufficient for all the requirements of law, and establishes a legal presumption of the presence of the defendants within the limits of the former Province of Canada, at the time when Mr. Molson made his affidavit. He swears that the defendants were, on the 9th of June, at the place called Moisic, that they embarked there, on or after the 9th June, with the intention of leaving the Dominion of Canada, and, in fact, without leaving the Province of Quebec, they proceeded from Moisic direct to Quebec, where they were arrested. I accede to the proposition of the respondents that the affidavit should show, upon its face, the right of capias, and if I cite the patent fact that these defendants have not for one instant left the Province of Canada, it is not to help the plaintiffs, but in order to show that if the President, in his affidavit, has given a narration of the facts to obtain a capias, not only he is not contradicted by the subsequent events, but he is entirely corroborated. His language is not the verbose language of an old Procureur du Chatelet, but that of a business man, who only says what is necessary and nothing more. He has complied with the requirements of Art. 20 of the Code of Procedure, which declares that:-" In any judicial proceeding it is sufficient that the facts and conclusions be distinctly and fairly stated, without any particular form being necessary." His affidavit is simply this:-These men whom I left at Moisic, about the 9th of June, embarked on a schooner for the purpose of going to Chicago, and on the 22nd of June, they are arrested on their way from Quebec to Chicago. Unless we return to those ancient formalities, which ridicule has driven out of the courts of justice, I do not see how, taking altogether all the circumstances of the case, we can