ground, it is totally without precedent. There is no case to be found which ever permitted the contradiction of a matter of record, that is of what took place in face of the court, on affidavit. Besides this, it is proper to add that the affidavits do not cover the transaction, even if they were admissible, and they do not relate what passed according to my recollection. After the facts referred to in the affidavits, the Clerk of the Crown put the question, in French and English, and received the verdict, which was enregistered, and the record is to all intents and purposes, in accordance with fact. One could hardly have any better evidence of the danger of admitting testimony of this kind, against the record, than the affidavits produced. The motion is therefore rejected.

Mr DOUTRE handed in the following motion: "The defendants respectfully request the Court to reserve, for the consideration of the Court of Queen's Bench, sitting in Error and Appeal, the questions involved in their motion for a new trial; and also the question as to their right to be heard on said motion before this Court, and as to the jurisdiction of this Court in the said matter; the said Court having declared that it has no jurisdiction to intertain the said motion no matter how well founded.

Judge RAMSAY, then addressing the defendants, said: — I am very sorry to be obliged to pass sentence in this case, but my duty is clear. It is perhaps unnecessary that I should make any suggestion as to the course you might have adopted. There is a case recently decided in England which would suggest to any body the proper course to pursue in such a case as yours. A great deal has been said about the verdict of the jury, but my impression is that it is the only verdict which men under oath could give. I think the jury could have brought in no other verdict. There was room, then, for you to have taken a different course from what you did. Had you submitted affidavits to the Court, attesting your good faith and want of malice, I should have been at liberty to accept bail from you and dismiss you, but you saw fit to take a different course, and I am, therefore, obliged to pass a sentence which will not be merely formal. At the same time I am perfectly well aware that the habits of this country have been to use the press in the most reckless manner, and, consequently, as yours is the first case that comes up in this form, it is necessary that I should take into consideration the habits of the country, which are very unfortunate. However, I would draw your attention to ne fact. An idea has gone abroad that the recent changes in the libel law are of a nature to render prosecutions of this kind less likely to succeed, I entirely differ from those who think so. In my judgment, the changes

TOME XXIII.

32

render the law much more stringent. I make a distinction between John Redpath Dougall, who wrote part of the article and James Duncan Dougall, the other defendant. The sentence of the Court is that you, John Redpath Dougall, shall pay a fine of $60, and, in default of payment, to remain in prison till it is paid; and that you, James Duncan Dougall, pay a fine of $40, under a like alternative." (6 R. L., p. 578.) DOUTRE & Co., for plaintiffs.

CARTER & KERR, for the Crown.

CERTIORARI.

COURT OF QUEEN'S BENCH, IN CHAMBERS,

Montreal, 11th March, 1874.

Coram RAMSAY, J.

REGINA VS C. J. BRYDGES.

Held-An order having been granted, under 32 and 33 Vict., c. 29, s. 11 (1869), changing the place of trial from Quebec to Montreal, and ordering that the inquest and all the proceedings had before a coroner should be transmitted to the Court of Queen's Bench at Montreal, and such order for transmission of inquest having been obeyed, a writ of certiorari to produce the return of proceedings before a judge of the Court of Q. B. in Chambers, in order that the inquest may be quashed for illegality, is unnecessary, and a petition presented in Chambers praying for the issue of such writ of certiorari, will not be granted.

RAMSAY, J. The coroner of the District of Quebec held an inquest on the body of a man called Pierre Cauchon, who was killed by a train of the Grand Trunk Railway in that district. It appears that the jury found that he came to his death by the culpable negligence of the Managing Director of the Grand Trunk Railway Company of Canada, and, thereupon, the coroner issued his warrant. In virtue of this warrant, Brydges was arrested, and brought before Mr Justice BADGLEY, who bailed him. On Brydges' own affidavit, declaring that he could not have a fair trial in the District of Quebec, Mr Justice BADGLEY ordered that the trial should take place in Montreal, and that the inquest and all the proceedings should be transmitted to the Court of Queen's Bench, at Montreal. The order was given under the authority of the 32 & 33 Vict., cap. 29, sec. 11, (1869). The 27th of last month, a petition setting forth these facts was presented to me in Chambers, alleging, moreover, that the coroner had returned the inquest before the Court, in Montreal, and praying for the issue of a writ of certiorari, to produce the coroner's inquest before me,

in order that the same should be quashed, inasmuch as it does not appear, by the said inquest, that any offence had been committed by the accused. The further hearing of this petition was deferred till the 9th instant, and, in the meantime, notice was served on the solicitor general, and on the coroner. The Crown was represented by Mr Mousseau; the latter did not appear. On the part of the petitioner it was held, first, that a judge, in Chambers, out of term, may, by his fiat, order a writ of certiorari to issue; second, that an inquest may be quashed for illegality, and that even in chambers; and, 3d, that it is the constant practice, in England, to issue a certiorari, either by order of the Court or under the judge's hand, that is by fiat in vacation. The English practice referred to has no application in the present case. In all the cases cited, where a writ of certiorari was granted, in England, it will be seen that it was used to transfer a record from one Court to another, and not to make a record, as was suggested. Thus, take the practice as to inquest. In England, they are returned to the Assizes, and, if it is required to amend one, to quash it, or to refer to it, in any way, in the Queen's Bench, it can only be brought up by certiorari, issued on the order of the Court, or by judge's fiat in vacation. The order or fiat requires the " clerk, in Court," to issue the writ addressed to the custodian of the record, enjoining him to certify the same into the Queen's Bench. There is no instance of a certiorari being issued, at the Assizes, to bring up the record, when the coroner has actually returned it, although it is the usage to quash illegal inquests at the Assizes. See Patteson, J., in re Culley, 5 B. & A., p. 232. In the present case, the record is in a position similar to an inquest returned to the assizes. It is already within my reach, and it is neither necessary, nor possible for me, to proceed as a judge of the Court of Queen's Bench would do sitting in Chambers, in London. The writ of certiorari is not necessary to enable me to see the record, and, if I desired to issue such a writ, there is no one to whom I could order it to be addressed. This will appear clear by following out the proceedings I am invited to enter upon. If I were now to make my fiut, I must address it to the clerk of the Crown, and enjoin that officer to issue a writ of certiorari addressed to himself ordering himself to give himself the record. What would be gained by this circumlocution? It is due to the organization of our Courts that the writ of certiorari is not in use in this Province. I am not, however, prepared to say that there are not many cases in which it should be used and is not, owing to a very loose practice, but evidently, this is not one of those cases. The prayer of the petition is only

that a certiorari should issue, and, therefore, it might be sufficient symply to order that the petitioner should take nothing by his petition; but, as the ruling goes no further than to say that the certiorari is not necessary, I may as well intimate to counsel, in order to save the accused trouble and expense, that I should not feel disposed to entertain any application to quash the inquest, in Chambers, so near the opening of the term on the Crown side. In speaking thus, I wish it to be distinctly understood that I express no opinion as to whether a judge in Chambers has or not the power to quash an inquest. (18 J., p. 94.)

CARTER, Q. C., and MACRAE, for petitioner.
MOUSSEAU, Q, C., for the Crown.

HYPOTHECARY ACTION.-TRANSFER.-SIGNIFICATION.

SUPERIOR COURT, Montreal, 27th September, 1873.

GIBEAU vs DUPUIS.

Coram TORRANCE, J.

Held-That the article C. C. 1571 does not apply to an action foun ded on a transfer without signification, where the only plea is that the defendant is not proprietor. (C. C. P. 144.)

PER CURIAM: This is an hypothecary action, for $200, issued 13th December, 1862. The plea was that the defendant was not proprietor, but only occupant, that the land had always belonged te Emélie Bro dite Pominville, deceased, now represented by her four children, Alfred Gariépy, Tancrède Gariépy, Ludger Gariépy and Hermine Gariépy: "Que les faits ci-dessus énoncés étaient connus du demandeur, lors de l'institution de la présente action, et que le demandeur devait porter son action, non pas contre le défendeur en cette cause, inais bien contre les dits propriétaires." This is the sole issue between the parties, whether defendant was in possession as proprietor. The defendant has admitted, when 'interrogated on fuits et articles that he had been in possession twentyseven years, and that he had always paid the taxes, which were laid upon this land, but that he had not any title. There has been no signification of the transfer upon the defendant, who relies upon Forsyth & Charlebois, 13 L. C. Jur., 328, and 17 R. J. R. Q, p. 541, and contends that there having been no signification of the transfer under which plaintiff holds the debt, he has no action. C. C. 1571. The answer to

this is that the defendant has only pleaded that he was occupant and not proprietor, and that plaintiff should have directed his action against the proprietor whom he designates. The defendant here admits that the plaintiff had an action, and he does not plead any other plea. Having pleaded one sole ground of defence, he has waived all others. C. C. P. 144. The plaintiff is, therefore, on the whole, entitled to the conclusions of his declaration. Judgment for plaintiff. (1) (18 J., p. 101.)

MEDERIC LANCTOT, for plaintiff.

E. ROBIDOUX, for defendant.

CAUTIONNEMENT D'UNE PERSONNE CONVAINCUE PENDANT UN CAS RESERVE.

COUR DU BANC DE LA REINE, EN APPEL,

Montréal, 12 décembre 1871.

Présents: DUVAL, J. en C., CARON, J., BADGLEY, J., DRUMMOND, J., MONK, J. dissident.

LA REINE vs Coote.

Jugé :-Que le montant du cautionnement d'une personne convaincue en attendant la décision d'un cas réservé peut être fixé et le cautionnement reçu par un juge en chambre.

Un point de droit ayant été réservé, le prisonnier convaincu d'incendiat, fut admis à caution par la Cour (BADGLEY, J.); mais le montant du cautionnement ne fut pas fixé. Le cau

(1) The_judgment was confirmed in Review, 31st March, 1874, Johnson, MACKAY, BEAUDRY, JUSTICES. JOHNSON, J., for the Court, said :-The plaintiff is the cessionnaire of La Banque du Peuple, and brings an hypothecary action against the defendant, for $200, under an obligation executed by Emile Bro dite Pominville, and which hypothecated several parcels of real estate, of one of which the defendant is alleged to be in possession, as “détenteur." By his plea, the defendant not admitting, but also not at all denying the other allegations of the action, contents himself with saying that he is not proprietor of the lot; but that it belongs to the heirs of Emelie Bro dite Pominville, and asks for the dismissal of the action. This is the sole point in contestation; and every other fact alleged is, under the positive terms of the law, held to be admitted, if not expressly denied or declared to be unknown. There can, therefore, be no question here, as was suggested in argument, of the necessity of signification of the transfer. Upon the only point in issue, then, the defendant examined on "faits et articles" admits that he is in possession for the last twenty-seven years, that he pays no rent, but pays the taxes, and is inscribed on the municipal roll, and has never been troubled in his possession. The judgment inscribed against was rendered contrary to the defendant's pretensions, and we think rightly, and should be confirmed, with costs in both courts.