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EFFET DES OBLIGATIONS.

SUPERIOR COURT, Montreal, 28th February, 1874.

Coram TORRANCE, J.

PELLETIER vs RATELLE.

Held:-That the allegations of a declaration, founded upon notarial deeds of sale, seeking to fasten a personal liability upon defendant towards plaintiff,will not be proved by a declaration made by defendant in another deed to a third party; no lien de droit is thereby created between plaintiff and defendant.

PER CURIAM: The declaration of plaintiff sets forth a deed of sale, 24th July, 1860, Hétu, notary, by which plaintiff sold to Alexis Wolfe a piece of land, on Beaudry street, in the city of Montreal, for $200, à constitution de rente, being an annual and perpetual rent of $12, payable to plaintiff in advance on the 24th July; that, on the 9th March, 1863, Wolf sold the land to defendant for the same rent which he undertook to pay to plaintiff, and promised to furnish to plaintiff a copy of his deed of sale duly registered. The land was mortgaged in the usual terms, for the payment of the rent and capital: that defendant has never supplied the copy of said deed for which plaintiff has been obliged to pay $2, and 70 cents for the certificate of registration; that defendant has never paid to plaintiff the rent falling due on 24th July, 1872, or that due on 24th July, 1873, forming, with the cost of the registered deed, $26.70; that, by deed 26th August, 1867, Mathieu, N.P., defendant sold the land to Jean-Jte Rivet and Pierre Malo for $600, and defendant declared by said deed, that he had created in favor of plaintiff a rente constituée of $12.00, payable annually, and, further, that, in case of sale, exchange or other alienation of said land, plaintiff would have the right to exact, in one payment, the capital sum of $200, and arrears of said rent; that, later, the land was sold, by the sheriff of Montreal, for a nominal sum, without preservation of the claim of plaintiff, for which defendant was personally respon sible; that plaintiff, being deprived of her right of bailleur de fonds, by the acts and negligence of defendant, has a right to claim from him the capital and arrears of said rent. Plaintiff accordingly makes a claim against defendant, for $22670 less $69.85 received by her from the Sheriff. The defendant pleads the general issue; and, also, that there is no lien de droit between plaintiff and him. The Court does not see that, by the deed from defendant to Rivet and Malo, 26th August, 1867, there was established any lien de droit between plain

tiff and defendant, allowing the Court to enter judgment against defendant for the balance of $156.85, claimed by the action. The action is dismissed. (18 J., p. 75.)

ROCHON, for plaintiff.
AUGE, for defendant.

COURT OF APPEALS.-CONSTITUTION.

COURT OF QUEEN'S BENCH, Montreal, 17th March, 1874.

Coram TASCHEREAU, J., RAMSAY, J., SANBORN, J.,
LORANGER, A. J.

THE MAYOR, &c. OF MONTREAL, Appellant, and DRUMMOND, Respondent.

Held :-That an appeal, of which two Judges ad hoc (under article 1161 and 1162 of the Code of Civil Procedure) have "taken judicial cognizance," by having heard the case and ordered a rehearing, must be reargued before such two judges as part of the Court, notwithstanding that one of the Judges of the Court, who was replaced by one of such Judges ad hoc, has ceased to be a Judge of the Court and has been replaced by another permanent Judge, and notwithstanding that the other Judge, originally replaced by a Judge ad hoc, has been replaced by an Assistant Judge.

TASCHEREAU, J.: When this case was called for argument, the counsel of appellants contended that Justices MACKAY and TORRANCE, who had been appointed Judges ad hoc, in place of Justices DRUMMOND and MONK, who were incompetent, should form part of the Court, notwithstanding that Judge DRUMMOND had ceased to be a Judge of this Court, and had been replaced by M. Justice RAMSAY, as a permanent Judge of the Court, and, notwithstanding that M. Justice LORANGER is now Assistant Judge of this Court, in place of Judge MONK. After taking time to consider, we are all of opinion, inasmuch as Justices MACKAY and TORRANCE heard the case, and joined in the order for a re-hearing, that they have "taken judicial cognizance" of the case, and, consequently, that under the provisions of Article 1163 of the Code of Civil Procedure, they must continue to form part of the Court at the present re-hearing.

RAMSAY, J: Called Counsel's attention to the fact that, if a fifth Judge be required, he must, in terms of the Code, be a Judge of the Superior Court, and therefore, that he would

seem to be incompetent to sit in the case at all. (1) Suggestion of appellant's Counsel sustained. (18 J., p. 76, et 5 R. L., p. 298.)

ROUER ROY, Q. C., for Appellants.

LACOSTE & DRUMMOND, for Respondent.

Expropriation.-Action of Indemnity.-Compensation.-Closing one End of a Street not an Interference with the Rights of the Owners of Houses adjoining thereto.-Art. 407 of the Civil Code of Canada27 and 28 Vict., c. 60 (Canada.)

PRIVY COUNCIL, 16th MAY, 1876.

On Appeal from the Court of Queen's Bench for Lower Canada, in the Province of Quebec.

Present: Sir JAMES W. COLVILE, sir BARNES PEACOCK, sir MONTAGUE E. SMITH and sir ROBERT P. COLLIER.

THE MAYOR, ALDERMEN, and Citizens of THE CITY OF MONTREAL, Defendants, and THE HONORABLE LEWIS THOMAS DRUMMOND, Plaintiff.

Declaration that Plaintiff had built eight houses fronting on St. F. Street which at one end opened into B. Street, and at the other into St. J. Street and that these houses, being in immediate proximity to the B Station of the Grand Trunk Railway Company, had acquired great value as boarding houses and shops; that, the Defendant municipal corporation of the city, "without any previous notice to the Plaintiff, and without any indemnity previously offered to him, forcibly, illegally, wrongfully, et par voie de fait closed up St. F. Street, and built from the south end of his houses to the opposite side of the street a close wooden fence about fifteen feet in height;" that in consequence the street had become a cul-de-sac, and the occupants of the houses had lost their natural means of egress and ingress."

Pleas, that the Defendant corporation in closing the street had not committed un acte de violence et illégalité ou une voie de fait, that they had only exercised a privilege and used a power conferred upon them by their charter of incorporation, et qu'en exerçant ce privilège ils n'ont pas empiété sur la propriété du demandeur; that in the several Acts of Incorporation of the city the Legislature had specially disignated the cases in which they were liable to indemnify individuals from the damages resulting from the exercise of their powers, that is to say: I. L'expropriation forcée; 2. Le changement de site des marchés; 3. Le changement de niveau des trottoirs; that whilst acting within the limits of their powers they were not responsible for damage; and that the street n'a pas été obstruée en face des maisons ou de la propriété du demandeur, et ses locataires ont actuellement entrée et sortie par la dite rue.

It appeared that the corporation closed the street under the authority of a by-law made in pursuance of 23 Vic., c. 72; that the only effect of ma

(1) The Court subsequently assembled, composed of TASCHEREAU, J., RAMSAY, J., SANBORN, J., MACKAY, J., ad hoc, TORRANCE, J., ad hoc, and ruled, (RAMSAY & MACKAY, JJ., dissenting) that Judge RAMSAY was competent to sit.

king the street a cul-de-sac, so far as the rights of access and passage are concerned (apart from the loss of customers), is that the Plaintiff's tenants have to go by other streets and further to reach the southern part of the city. There was no evidence of special damage by reason of the loss of customers; nor of deprivation of light to an actionable degree :

Held, that assuming the Plaintiff to have rights in St. F. Street which had sustained damage, his property had not been invaded in a way to constitute une expropriation, nor had he established an injury which would give him a right to a previous indemnity under Art. 407 of the Civil Code, so as to make the corporation wrong doers, and their act in closing the street a trespass and une voie de fait because such indemnity had not been paid. His claim (if any) should be prosecuted under the provisions of the Act relating to expropriations by the corporation (27 & 28 Vict. c. 60.)

By the law of France the closing one end only of a street is not such an interference with the rights possessed by the owner of houses adjoining thereto of access and passage as will give a claim to compensation.

The special Acts relating to this corporation must be read in connection with 27 & 28 Vict. c 60, which prescribes the particular mode in which the compensation payable to any party "by reason of any act of the council for which they are bound to make compensation " should be ascertained. But actions of indemnity for damage in respect of such acts are excluded by necessary implication; for they assume that the acts in respect of which they are brought are unlawful whilst the claim for compensation under the statute supposes that the acts are rightfully done under statutable authority.

Jones v. Stanstead Railway Company (1) approved.

This was an appeal from a judgment (June 20, 1874) of the Court of Queen's Bench (appeal side) for Lower Canada confirming with costs in favour of the Respondent above named a judgment of the Superior Court (September 30, 1872), also in favour of the respondent. The action in which the judgments were passed was brought on the 27th of July, 1868, by the Respondent, to recover from the Appellants compensation for injury caused to several houses belonging to the Respondent, by the acts of the Appellants in stopping up a street called St. Felix street, under the following circumstances: The respondent had been for many years the owner of a plot of land in the city of Montreal, in the form of a parallelogram, bounded at the two ends respectively by Mountain street and St. Felix street, and on one side by Bonaventure street and on the other side by the railway station of the Grand Trunk Railway of Canada. St. Felix Street, until the events hereinafter mentioned, after passing the property of the Respondent, crossed the railway of the Grand Trunk Railway Company, close to the platform at which most of the passengers from the passenger trains alighted, and joined the street on the other side of the railway.

(1) Law Rep. 4 P. C., 98, et 23 R. J. R. Q.,
p. 51.

In 1854 and 1855 the Respondent built upon his plot of land certain tenements, some of which fronted on St. Felix street, one of which in the south west corner, abutting on the railway, was in 1866 converted into a small hotel; the houses in St. Felix street, were greatly enhanced in value by reason of their proximity to the station, though passengers, in order to reach the street from the platform, were obliged to pass along some yards of railway and cross the switches and sidings, which was contrary to the regulations of the company. Down to 1862, St. Felix street ran from St. Joseph street, on the south side of Bonaventure street to Bonaventure street, but in that year it was continued and opened out on the north side of Bonaventure street, and the Respondent paid the Appellants $103.70 as his share of the expenses incurred in opening out the street. In the year 1863, the Grand Trunk Railway Company obtained an Act of Parliament empowering them to construct in the neighbourhood of Chaboillez square a station for the city of Montreal, in pursuance of which they greatly enlarged the old passenger station of the Lachine line abutting upon Bonaventure street, and in the same year removed their passenger traffic from some distance outside Montreal to the new station. On the 14th of January, 1864, they entered into an agreement with the Appellants to enlarge the station, and transfer thither their goods traffic also, the Appellants undertaking on their part to close St. Felix street, and to open a new street to the south of the station, to be called Albert street. On the 11th of september, 1866, the following by-law to discontinue a portion of St. Felix street was passed by the council of the city: Whereas it is deemed expedient, in the interest of the public, to open a new street from Chaboillez square to Mountain street, and to discontinue a portion of St. Felix street, "It is ordained and enacted by the sad council, and the said council do hereby ordain and enact: "That a street to be called Albert street be opened from Chaboillez square to Mountain street at a width of 80 feet English measure; and that that section of St Felix street, tinted red on the plan hereunto annexed, extending from the line of the said Albert street towards Bonaventure street and measuring 171 feet 6 inches, on the south-west line of St. Felix street, and 176 feet on the north-east line thereof be henceforth discontinued." The transfer of the business of the railway to Bonaventure station was carried out by the end of 1866; it necessitated the laying of a large number of rails from the station to Mountain street, and the construction of sidings for the shunting and marshalling of trains; and the level crossing at St. Felix street was thereby rendered very dangerous. Thereafter the Appellants, the corporation

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