come to any other conclusion than to say that the affidavit, without stating it ipsissimis verbis, sets out in a sufficient manner the presence of the defendants within the limits of the former Province of Canada at the time of the affidavit. In fact, the affidavit is made on the 21st of June, and they are arrested on the 22nd, at Levis. Would they have had the time to go to the United States and between the 21st and 22nd return to Canada, in a sailing schooner, on which they had embarked? Evidently not, and on the 21st they were, therefore, in the former Province of Canada. I have reasoned, for the validity of the affidavit, that the defendants should be within the limits of the Province of Canada at the time of the making of the affidavit. I deny any such necessity. For, suppose the case of a plaintiff, ignorant of his debtor being for a moment beyond the frontier of the Province of Canada, and swearing that the latter was upon the point of leaving Canada. It would require, in my opinion, a large amount of argument to convince any one of the illegality of a capias executed after the return of the debtor to Canada. Now, that would be the consequence of the judgment which the Court below has rendered, and, in future, it would be a matter of absolute necessity to ascertain, before taking out a capias, whether the defendant is concealing himself in Canada, or out of the country. It seeins to me that good faith in an affidavit, with a narrative not clothed in the verbose language of the palais, but giving a faithful exposition of the thought of the person who swears, is all that the law requires in such İremark that since the origination of our judicial reports of Canada, we have got rid, with great advantage, of all these technical objections. To cite but one example: it will be recollected that the Courts formerly exacted, on pain of nullity, that an affidavit to hold to bail should use the words "personally indebted," and many a capias has been quashed by reason of the omission of these words, the signification of which many persons did not understand, and yet we have come to the adoption of a form, from which the sacramentel word "personally" has been entirely omitted, and writs of capias have been maintained, provided the statement of the cause of debt disclosed the existence of a personal contract between the plaintiff and the defendant, and that, without using the word "personal" or "personally." It was not without an arduous struggle that this first victory of ordinary language, intelligible as well by the educated as by the ignorant, over the verbose and supposed sacramentel language of bygone years, was obtained. It will be so in future as to the objection of the respondent in relation to the necessity of the plaintiff's swearing to the

actual presence of the defendant in Canada, at the very moment of the making of the affidavit, provided that, according to the language employed and the circumstances attending the issue of the writ and its execution, as in the present case, the conclusion may be reasonably arrived at that the defendant is in a position to be arrested. I will cite the opinion of Lord Mansfield, in the cause of Bristow vs Wright, 2 Douglas Rep., p. 666, and that of Taylor (on Evid.) as to the choice to make between a rigid and restricted interpretation and the liberality with which Courts of Justice should interpret language, and he expresses himself by saying that Judges are beginning to discover that substantial justice is of much greater importance than technical precision. 1 Taylor, § 227: Lord Campbell's act has been in operation for too short a time to justify the expression of any confident opinion as to the amount of liberality with which its language will eventually be construed by the Courts. The narrow rules of interpretation which have been promulgated by one or two of the Judges with reference to the prior statute, 9 Geo. 4, c. 15, are calculated to excite a rational fear lest an equally strict construction should be applied to the amendment clauses of this act; but, on the other hand, it cannot be denied that the subject is now far better understood than it formerly was, and that even Judges are beginning to discover that substantial justice is of more real importance than mere technical precision. Wise men should ever bear in mind that the object of the acts which authorize amendments in criminal proceedings is to render punishment more certain by neutralizing the effect of trivial variances, which have constantly protected the wrong-doer. So long as the least rational doubt exists respecting the guilt of a prisoner, it is only fair that the ample shield of justice should screen him from injury; that juries should weigh with jealousy the evidence against him, and that Judges should see most clearly that the act with which he is charged is an offence against the law. But when courts of justice go further than this, and permit the law to be defeated by technical errors, which cannot by any possibility mislead a defendant, and which have nothing to do with the substantial merits of the case, they take the most effectual means of rendering the administration of the criminal law a fitting subject for contempt and ridicule. The language of Lord Mansfield, in Bristow vs Wright, 2 Doug. 666, should never be forgotten: "I am very free to own," said his Lordship, that the strong bias of my mind has always leaned to prevent the manifest justice of a cause from being defeated or delayed by formal slips, which arise from the inadvertence of gentlemen of the profession; because it is

extremely hard on the party to be turned round, and put to expense, from such mistakes of the counsel or attorney he employs. It is hard also on the profession." In conclusion, I find that the plaintiffs have produced, to obtain their different writs of capias, sufficient affidavits, justifying the Honorable Judge before whom they were presented, and who ordered the issuing of the writ of capias in question, to act as he did. I am for reversing the judgments pronounced in the Superior Court and in Review. But another question is presented, which seems to have had no weight with the Judges of the Superior Court, but which appears to me to be important enough. Although at first sight, it may be regarded as an exception to the form, it is not the less substantial, inasmuch as it has the express sanction of the Rule of Practice, no 57, which imperatively requires that "every motion founded on special matters shall contain the grounds on which such motion is made, and no party shall be permitted to urge any grounds in support of a motion not set forth in such motion." Now, the defendants complained at the argument that the plaintiff's have not shewn by their affidavit that they were in the heretofore Province of Canada or that they were immediately upon the point of leaving the heretofore Province of Canada; and on reading their twenty-one objections, or grounds, invoked in support of their motion to quash the capias, one looks in vain for any such special ground. There are many generalities, banales expressions of irregularities and nullities, but nothing special in relation to the ground which they have invoked in their oral pleading. The object of the rule adverted to is to particularize the ground of objection, and to restrict the discussion to such ground or grounds; and this object is not attained in losing one's self in an interminable kyrielle of objections(to the number of twenty-one)of a general character, and not special. The defendants have drawn attention to ground no 15, as coming to their rescue; but far from producing the effect which they desire, this very ground no 15 establishes the position taken by the plaintiffs, inasmuch as they, the defendants, by this ground of objection, cause it to be understood that they have interpreted the allegation in the affidavit," Dominion of Canada," as a substitute for, and signifying for all legal purposes, the heretofore Province of Canada, and that their only objection on this score is that the plaintiffs do not give sufficient reasons to justify their belief in the immediate departure of the defendants from this province. Now, all the judges before whom this objection has been presented, have come, or at least appear to have come, to the conclusion that the plaintiffs have stated in their affidavit sufficient reasons to justify their belief in the imme

diate departure of the defendants. In a case of capias, where the liberty of the subject is at stake, a doubt should be interpreted in favor of the prisoner, but when the prisoner, with a knowledge of what he has wished to do, and actually does, will not, within the time specified by the Rules of Procedure take advantage of a pretended irregularity, and more, seems to waive or renounce it, he should not be permitted to conplain, at the last moment, of an omission which, at the outset, he did not deem worthy of notice. If, in reality, the defendants were not about to leave the former Province of Canada, they had, under Art. 819 of the Code of Procedure, the right to be discharged from custody, and that without delay, long before they could make their motion before the Superior Court. They did not consider it their interest to do so, and if they have in consequence suffered a long imprisonment, they have themselves to blame for it. This last observation is not made to justify my judgment on the merits of the motion of the defendants to set aside the capias, but merely to show that defendants have only themselves to blame if they have suffered a long incarceration.

The following was the judgment in appeal: "The Court, considering that there is error in the judgments appealed from, and that the motion made by the defendant in the Court below, on the thirtieth day of June last, to quash the writ of capias ad respondendum issued, should have been rejected with costs; the affidavit upon which the said writ issued and the proceedings thereupon had been in all things regular and sufficient: This Court, proceeding to render the judgment which the said Superior Court should have pronounced upon the said motion, annuls and makes void the said two judgments of the second day of July and of the nineteenth day of September, one thousand eight hundred and seventy-three, and rejects and overrules the said motion to quash, with costs against the said respondent in favor of the said appellant as well in this Court as in the Court below; and it is further ordered that the record be remitted to the said Superior Court at Quebec. (18 J., p. 29.)

HOLT, IRVINE & PAMBERTON, for appellant.
WM. COOK, for respondent.

COSTS IN APPEAL.

COURT OF QUEEN'S BENCH, APPEAL SIDE, IN CHAMBERS, Montreal, September, 1872.

Coram MONK, J.

O'GILVIE et al., appellants, and JONES, respondent.

Held:-A party is entitled to have his costs for printing in appeal taxed at the rate of two dollars per page, even although he may have paid a less sum per page to his printer.

In this case, the clerk of appeals having taxed respondent's bill, allowing him at the rate of two dollars per page, for his factum, appellants petitioned to revise, asking that the sum of $92.00, allowed for " printer's bill," be reduced to $69.00, being the amount paid by respondent to his printer, as proved by an affidavit produced with the petition. Petition rejected. (17 J., p. 25.)

GEORGE MACRAE, for appellants and petitioners.
L. N. BENJAMIN, for respondent.

VOITURIERS.--RESPONSABILITE.

COUR SUPÉRIEURE, Montréal, 19 avril 1872.

Coram MAKAY, J.

EUTROPE CHARTIER et al. vs LA COMPAGNIE DU GRAND-TRONC DE CHEMIN DE FER DU CANADA.

Jugé :-Qu'une Compagnie de chemin de fer n'est pas responsable pour la perte des effets ou marchandises qu'elle a entrepris de transporter, lorsque ces effets ou marchandises ont été égarés sur un parcours étranger à sa ligne et hors les limites de sa dernière station.

2o Qu'une lettre de voiture, sur le dos de laquelle se trouve une clause conditionnelle limitant de cette manière la responsabilité d'une Compagnie de chemin de fer a pour effet de lier l'expéditeur si ce dernier a signé sans réserve la lettre de voiture.

Dans le courant de janvier (1871), les demandeurs vendent à Patrick Corrigan, curé de Jersey-City, dans l'Etat de New Jersey, E. U., deux statues en plâtre, de la valeur de $45.00. Dans le courant de février (1871), ces deux statues sont déposées à la station de la défenderesse, à Montréal, pour être, par cette dernière, expédiées au lieu de leur destination. Le reçu constatant le départ des deux statues, porte, par inad