of building and keeping in repair said road is imposed upon the local corporations of the Township of Stanstead and the village of Stanstead Plain, in proportion to the length of the road, in each of said municipalities, to be established by repartition. Many objections are urged against this decision of the Council, and I am asked not only to consider the legality of the proceedings of the Council, but exercise discretionary power as to the propriety and justice of establishing the road. It is true that the power given to this Court, in appeal, is unlimited, but, as the Code refers to decisions of the Council, and the appeal is the same as that given from judgments rendered by Magistrates, under the Municipal Code, I think the object of the appeal was mainly to determine whether the Council has acted within its powers and observed the essential formalities required by the Code. I cannot think the Legislature intended to place the Circuit Court above the Municipal Council, in the discretion to be exercised in Municipal legislation on the subjects, from which there is an appeal, but rather to determine when and to what extent their decisions in such subjects are in conformity with the powers conferred upon them. By Art. 755 of the Municipal Code, "every municipal road or every part thereof wholly situate in one local municipality, is a local road." "Every municipal road, or every part thereof between two local municipalities lying is a county road." This proposed road coming within the first, and not within the second, definition, is not a County road. By Article 758, the Municipal Council of the County can, by resolution or procès-verbal, declare a local to be a County road. I consider that, before establishing this road, or, by the procèsverbal establishing it, the County Council should have declared this to be a County road, and, not having done so, it had no power to homologate the procès-verbal ordering the road to be opened. Again, under Article 1080 of said Municipal Code, all works in the County of Stanstead, as well as in several other counties therein mentioned on municipal roads, are executed, at the expense of the Corporation, in the same manner as if a by-law were passed under Art. 535. In such case, no procès-verbal is necessary, but the works are regulated and determined by the Council which orders the same. See Art. 529. By articles 452, 757, and 785, it will appear that every Council 'whether County or Local', is required to maintain the roads under its control. If this road were established as a County road, it would be incumbent upon the County Council to provide for its maintenance. By articles 491, 760, and 938, it will appear that taxes imposed by a County Council must be levied on all the local corporations of the County, except in the case mentioned in articles 490

and 491. The exception referred to in these last mentioned articles, as respect a County, confers powers to levy upon a part of the municipality, on a petition by the majority of the rate- payers liable to such tax, and under the conditions set forth in such petitions. In this case, there is no such petition answering the requirements of these sections, and, consequently, the procès-verbal imposing the burden of making and maintaining the road upon two of the local municipalities, when the County comprises several others, is illegal. The law comes to the aid of these local corporations, and appears to me to prevent an injustice, for these two local municipalities, on which the whole burden is laid, are not the most interested in having the road In fact, to one it is a disparagement, that is, the village of Stanstead Plain. For these reasons, the decision of said County Council in homologating said procèsverbal is reversed and said procès-verbal is declared void. (17 J., p. 312)

TERRILL & TERRILL, for appellants.

E. R. JOHNSON, counsel.

H. M. HOVEY, for respondents.

EXCEPTION TO THE FORM.

SUPERIOR COURT, Montreal, 27th May, 1873.

Coram JOHNSON, J.

THOS. S. BROWN, ès-qualité, vs THE IMPERIAL FIRE INSURANCE COMPANY.

Hold :--1. Than an Exception à la forme can be fyled to an amended declaration.

2. That such Exception was not waived by subsequent pleas to merits of amended declaration.

The action was on two policies of insurance. Defendants, in the first instance, pleaded to the merits. After fyling of plea, plaintiff moved to amend his declaration, which was granted by the Court (MACKAY, J.) with liberty to defendants, within eight days, to amend their pleas, or plead de novo, if they thought fit. Within the four days from the amendment, defendants fyled an exception à la forme to the amended declaration, on the ground that it was ambiguous and unintelligible, and, within eight days, fyled supplementary pleas to the merits, with special reserve of the exception à la forme. ROBERTSON W., thereupon, moved, on behalf of plaintiff, to reject the exception à la forme, because: 1st. no such excep

tion lay to the amended declaration, the same not being fyled within the four days from the return of the action, and the interlocutory judgment permitting the amendment only allowing defendants to plead de novo, pleas of a similar nature to those already fyled by them, i. e., pleas to the merits. 2ndly because defendants, by fyling supplementary pleas to the merits of amended declaration, had waived their preliminary pleas, and cited a decision under the Lessor and Lessee's Act, holding that pleading to the merits waived preliminary pleas.

CRAMP, G. B., for defendants, argued that, in the present instance, there was no waiver of the exception, because defendants were under compulsion, by the terms of the judgment allowing the amendment, to fyle all their pleas within eight days and that defendants have specially reserved their exception and could not be held to have waived it. He cited Attorney General vs Gray et al., 15 L. C. Jurist, p. 255, and 22 R. J. R. Q., p. 555, Pigeau, Procedure, vol. I, p. 201.

Per CURIAM: It is not necessary to enter into any details in this case. It is enough to state that the exception à la forme is pleaded altogether to the amended declaration, and is founded upon the vagueness and insufficiency of its allegations. This takes the matter out of the ordinary rule, and the motion must be dismissed. Motion dismissed. (17 J., p. 323; 20 J., p. 179)

A. & W. ROBERTSON, for plaintiff.

G. B. CRAMP, for defendants.

TRIAL BY JURY.

COURT OF QUEEN'S BENCH, Montreal, 14 December, 1875.

Coram DORION, CH. J., MONK, J., RAMSAY, J., SANBORN, J.

BROWN, Appellant, and THE IMPERIAL FIRE INSURANCE CO., Respondent.

Held--That the service, within four days after issue joined on amended pleadings, of a notice of motion praying acte of the option of the mover to have a trial by jury and the making of such motion subsequently, are a sufficient compliance with the requirements of Art. 350 of the Code of C. P.

This was an appeal from two interlocutory judgments of the Superior Court, at Montreal, one of them rendered 20th June, 1873 (BEAUDRY, J.), and the other, on the 18th September 1874 (BERTHELOT, J.). The former judgment dis

missed the motion made by plaintiff; "that, inasmuch as "plaintiff has, in due course of law, declared his option for "a trial by jury, that the inscription for enquête made by "defendant be declared to be irregular, and that it be held and ordered that plaintiff is not obliged to proceed with his enquête under said inscription, but may, in due course, pro"ceed to trial by jury, as he hath elected in this cause, the "whole with costs." The latter judgment rejected plaintiff's motion for acte "of the declaration hereby made of his option " for the trial by jury, and that it be declared that plaintiff is "entitled to such trial." The option referred to in the first motion had been made in plaintiff's answers to defendant's pleas, and the latter was contained in a motion presented to the Court, on the 17th of September, 1874, of which notice had been previously given on the 9th of that month. The plaintiff had, with the permission of the Court, amended his declaration, and defendant filed his pleas to the declaration as amended on the 25th October, 1873, and plaintiff having failed to answer these pleas, defendant inscribed the case for enquête on the 27th may, 1874. On the 9th July, 1874, plaintiff was allowed by the Court to file answers to said pleas, and, on the 8th September, 1874, defendant filed a replication to these answers.

DORION, CH. J.: The question raised by this appeal is twofold in character. Can the option to have the case tried by a jury be made in the answers to pleas, and was the option contained in the notice of motion a sufficient compliance with the terms of the article of the Code? There seems to be no reason why the option for a jury trial could not be made by plaintiff in his answers to the defendant's pleas, yet, art. 350 says it is done by the declaration, or in the pleas, or by special application. We are not, however, required to decide that question in this case, as we are all agreed that the issue was only joined on the 8th September, 1874, and, consequently, that the option declared in the notice of motion for the nearest day in Term (the 17th) which was served within four days after issue joined, namely, on the 9th of September, was a complete compliance with the requirements of the article of the Code. We are under the necessity, therefore, of reversing the judgment which dismissed plaintiff's motion.

"The Court, considering that appellant, plaintiff in the Court below, has, by his answer to respondent's pleas, before issue joined, and also by motion made on the 17th of September, 1874, of which motion notice was given within four days after issue joined, declared his option to have said issue tried by a jury; And, considering that this case is one susceptible of a trial by jury, under article 348 of the Code of Procedure,

that acte should have been granted of his declaration, as prayed for by his motion of the 17th of September, 1874; And, considering that there is error in the judgment rendered by the Superior Court, on the 18th day of September, 1874, rejecting said motion, this Court doth quash and annul the judgment of the 18th of September, 1874; and, proceeding to render the judgment which the Court should have rendered, doth adjudge and declare that appellant is entitled to a trial by jury and doth grant acte to appellant of the declaration made by his motion of his option to have this cause tried by a jury, and doth condemn respondents to pay the costs on the present appeal." (20 J., p. 179)

A. & W. ROBERTSON, for appellant.

G. B. CRAMP, for respondent.

CASSATION DE MARIAGE POUR IMPUISSANCE.

COUR PROVINCIALE D'APPEL, Québec, 15 janvier 1843.

Coram SIR JAMES STUART, J. C., BOWEN, J., STEWART, J., HENEY, J., et BEDARD, J.

MARIE HÉLÈNE DORION, appellante, et ALBERT LAURENT, intimé.

Jugé :-Que si la preuve de l'impuissance est incomplète, l'époux poursuivi devra se soumettre à l'examen de médecins experts, et qu'à son refus de le faire les causes invoquées dans l'action seront considérées pro confessis et le mariage cassé.

La déclaration, après avoir allégué qu'à l'époque du contrat et de la célébration du mariage, intervenu entre la demanderesse et le défendeur, le 13 octobre 1841, le défendeur était et est encore dans un état complet d'impuissance, conclut "à ce que le contrat de mariage n'étant qu'un fait sans exister en droit, soit déclaré et adjugé, par la sentence de cette Cour (savoir la Cour du Bane du Roi) nul et d'aucun effet civil, et ne pouvant lier ou obliger en aucune manière quelconque Marie H. Dorion, laquelle se réserve son recours pour tous autres droits, actions et prétentions qu'elle justifiera en temps et lieu lui appartenir. Le défendeur ayant fait défaut, la demanderesse fit sa preuve ex parte, et inscrivit sa cause pour jugement. Le 20 avril, 1842, la Cour du Bane du Roi (PYKE, ROLLAND et GALE, JJ. siégeant) débouta l'action, sans assigner aucun motif, mais évidemment pour la raison que la preuve était insuffisante. La cause ayant été portée devant la