caused to be seized a raft of logs. The affidavit contained, inter alia, the following averments: "And the deponent saith further that, by writing sous seing privé, made and passed at Sauit au Recollet, on the twenty-fifth day of June last past, the defendant sold to the plaintiff, and agreed to deliver to him, in Tailfour's Bay, in Little River, a raft of logs containing many thousand feet of timber, and, upon such delivery, the plaintiff agreed and promised to pay to the defendant the sum of $1500, and, in ten days after said delivery, the sum of $1000, and, in forty days from date of delivery, the sum of $1370, and, in seventy days from said delivery, another sum of $1370, as the balance of said price of said logs, if the same on measurement should amount to so much, the whole of the last payments to be made by notes at said delays; that, relying on the good faith of defendant, the plaintiff paid and advanced to defendant the said sum of $2350, on account of the price of the said logs, trusting that defendant would deliver the logs as he had agreed to do, but defendant, having obtained said advance fraudulently refused and refuses to deliver any part thereof or to restore said sum or any part thereof. And deponent saith further that he has done all in his power, and all he was bound to do, to recover delivery of the logs, and hath tendered to defendant the sums he had agreed to pay and the notes for the other different sums, at the stipulated delays, and yet, defendant, as deponent is informed and believes, is now immediately about to remove, sell and make away with the said logs, with intent to defraud the plaintiff and others, his creditors, and the defendant hath himself declared that he would sell and dispose of the logs to other parties, and would not deliver the same or any part thereof to plaintiff and would not refund the money so advanced that part of the logs have been removed, and the remainder is being removed by the defendant, from the place where they now are, at St. Laurent out of the jurisdiction of the Court, with intent to defraud plaintiff; and he saith that, without the benefit of a writ of seizure, saisie-arrêt, before judgment, to seize and attach the same, the plaintiff will be deprived of his remedy, will lose his debt and sustain damage, and he hath signed." The defendant moved the Court, on the 17th of September, 1873: that the writ of attachment and all proceedings had thereunder be set aside, because plaintiff did not, in his affidavit, aver secretion by defendant, or intention to secrete." The parties having been heard upon the motion, the following judgment was rendered.

66

TORRANCE, J.: Defendant makes a motion that the writ of attachment, saisie-arrêt before judgment, be set aside, because

you must

the affidavit does not comply with the words of the Code. The charge against defendant is that he was "making away" with his property. The words of the Code are that charge the defendant with "secreting" his property. The plaintiff contends that the words "making away with" and "secreting" are synonymous, but that, through some scruple, he would not use the word "secreting," but "making away with." Now, it is doubtful if there are any two words precisely synonymous. The attachment is not in the words of the Statute, and it must be set aside.

The Court, considering that the affidavit upon which said saisie-arrêt is founded, doth not establish that defendant is secreting, or is about to secrete his estate, debts and effects, doth grant the motion, and doth, in consequence, quash and set aside the writ of attachment and all the proceedings had thereunder, with costs." (18 J., p. 70.)

A. & W. ROBERTSON, for plaintiff.

PERKINS, MACMASTER & PRÉFONTAINE, for defendant.

ARBITRATORS.-COSTS.

SUPERIOR COURT, Montreal, 31st March, 1873.

URQUHART vs MOORE.

Coram MACKAY, J.

Plaintiff claimed $334.00 for goods sold, which defendant refused, upon the ground that they were not as represented. Upon a reference to arbitrators they found for the plaintiff, less $20 for broken packages and ordered each party to pay his own costs.

Held-1st Arbitrators have no right to pass upon costs.

2nd. As the defendant had no right to refuse the goods, but should have simply claimed a reduction, the award will be homologated, except as to costs, and defendant condemned to pay all costs.

PER CURIAM: At a trade sale of groceries, here, in October, 1870, defendant, a Toronto merchant, bought a lot of groceries. Among the articles purchased, were a lot of mixed pickles, sold for $333.06. Moore paid for the rest of the goods, but claimed that the pickles were not mixed at all, being nothing but red cabbage. On their arriving at Toronto, Moore held an ex parte survey, and gave notice to plaintiff that they were at his risk. The matter was referred to arbitration, and the arbitrators found in favor of plaintiff, only deducting some $20 for broken bottles. They, however, ordered that each party should pay his own costs. This was

altogether beyond their province; they had no power to pass upon the costs. All the equities of the case are with plaintiff, as defendant had no right to refuse so large a quantity, for so small a deficiency, but should simply have asked for a reduction. The award is homologated, except as to costs, and defendant condemned to pay $313.06 and all costs.

"The Court, having heard the parties, as well upon the motion of plaintiff, that the award of arbitrators, in so far as the arbitrators thereby find and award that plaintiff is entitled to recover from defendant the sum of $313.06, and interest, be homologated, with costs; and that that portion of said award, whereby the arbitrators assume to adjudicate as to costs, and award "that each party do pay their own costs," be declared to be inadmissible, and void, and be disregarded and set aside with costs, as on the motion of defendants, that said award be homologated, and that judgment be entered up accordingly; and, on the merits; having examined the proceedings, and seen and examined the award of the arbitrators and, on the whole, duly deliberated, doth reject defendants' motion, with costs; and doth grant plaintiff's motion that that portion of said award that adjudicated upon costs be held null, and be rejected, and that the rest of it be homologated, with costs; doth homologate and confirm the report or award of arbitration, save and except that part which adjudges as to costs; and, in consequence, doth condemn defendants, jointly and severally, to pay and satisfy to plaintiff the sum $313 06, being the balance of the price of the goods bought by defendants from plaintiff, with interest thereon from the 17th of July, 1872, until paid, and costs of suit." (18 J., p. 71.)

S. W. DORMAN, for plaintiff.

J. J. C. ABBOTT, Q. C., for defendant.

JURISDICTION.-CAPIAS.

SUPERIOR COURT, Montreal, 18th March, 1874.

Coram TORRANCE, J.

PRÉVOST et al. vs RITCHOT.

Held:-That in an action for $72.65, commenced by capias ad respondendum, the Superior Court has jurisdiction to condemn the defendant to pay the amount, notwithstanding that the writ of capias has been quashed.

TORRANCE, J.: This is an action for $72.65, an amount below that for which an action can be brought in this Court.

The suit, however, was begun by a capias ad respondendum which has been since quashed by a judgment of this Court The question has been raised by defendant's plea whether under the circumstances, the Court has jurisdiction to condemn defendant to pay the amount demanded. After due consideration, I am of opinion that it has, and I, therefore, give judgment for plaintiff accordingly. (18 J., p. 72.) DORION, DORION & GEOFFRION, for plaintiff.

S. PAGNUELO, for defendant.

VENTE PAR LE SHERIF D'UN VAISSEAU ENREGISTRE.

COUR DU BANC DE LA REINE, EN APPEL,

Montréal, 9 mars 1871.

Présents: DUVAL, J. en C., CARON, J., BADGLEY, J., et
MONK, J.

JAMES BENNING et al., défendeurs en cour inférieure, appelants, et JAMES WILLIAM COOK, demandeur en cour inférieure, intimé.

Jugé :-Que, par la loi de la province d'Ontario, la vente faite par le shérif, dans ladite province, d'un vaisseau enregistré dans un port de la province de Québec, et son adjudication à un créancier hypothécaire n'ont pas l'effet de purger ce vaisseau des hypothèques qui ont été consenties sur icelui, quoiqu'elles soient postérieures à celle de l'adjudica taire.

Le jugement de la Cour Supérieure à Montréal, TORRANCE, J., a été rendu le 20 octobre 1869, dans les termes suivants : The Court, considering that defendants, Benning and Barsalou, purchased the barge attached by public sale, at auction, from the sheriff of the United Counties of Stormont, Dundas and Glengarry, to wit, in the province of Ontario, as appears by the deed from the said sheriff, of date the 3rd day of April, 1865, produced by defendants Benning and Barsalou, under a writ of fieri facias de bonis, under a judgment obtained by them against defendant Brouse, and from that time Benning and Barsalou have had possession of the barge, as the proprietors thereof; considering that it is proved that, by the law of the province of Ontario, where said purchase was made, by Benning and Barsalou, the effect of the said purchase by them was to merge the inferior title of mortgages theretofore held by them in said barge under the deed of sale by way of mortgage by defendant Brouse to Augustin Cantin, of date the 14th November, 1861, before Gibb, notary, transferred by

Cantin to Benning and Barsalou, by transfer of date the 7th December, 1864, in the superior title of sale made to them, as aforesaid, from said sheriff of said United Counties; considering that, by the law of said province of Ontario, the said purchase by Benning and Barsalou was subject to the mortgages and charges theretofore existing on the said barge, of which they had notice, and especially subject to the claim of plaintiff on the deed of sale by way of mortgage declared upon by him and duly recorded on the 9th July, 1862, in the book of registry at the custom-house, at the port of Montreal, and that said purchase, by Benning and Barsalou, from said sheriff, had not the effect, by the law of said province of Ontario, of purging the said mortgage of the plaintiff, which continued to have full force and effect notwithstanding said purchase; considering that the law of the province of Ontario must govern the parties, as regards the effect of the purchase by Benning and Barsalou from said sheriff of said United Counties, doth overrule the pleas of defendants Benning and Barsalou, and considering that defendants have partly proved their pleas of payment, to wit, save and except the amount of $592.42, with interest, at the rate of 10 ojo, as specified in plaintiff's mortgage, from the 6th February, 1868; the court doth declare the saisie revendication made in this cause of barge or vessel "Canada Maid," with all and every her boats, anchors, ropes, tackle, gear and appurtenances, good and valid, and doth adjudge and condemn defendant Brouse to pay and satisfy to plaintiff the sum of $592.42, with interest thereon from the 6th day of February, 1868, at the rate of 10 91% per annum until paid, and costs of suit; and the court doth declare plaintiff to have a special lien and mortgage upon said barge or vessel for the payment of said debt, interest and costs, and said defendants are hereby ordered within fifty days after the service of the present judgment upon them to deliver up possession of said barge or vessel, with her appurtenances, to said plaintiff, in order that the same may be sold in due course of law, and the court doth hereby order the said barge or vessel, with her appurtenances, to be sold in due course of law, and the proceeds thereof applied, by special privilege, to the payment of said debt, interest and costs; and, in default of said defendants to deliver up possession of said barge or vessel and her appurtenances to said plaintiff, said defendants are hereby adjuged and condemned jointly and severally to pay and satisfy to plaintiff the aforesaid sum of $592.42, with interest thereon as aforesaid, with costs."

Ce jugement a été unanimement confirmé par la Cour d'Appel. (2 R. L., p. 733, et 1 R. C., p. 241.)