66 66 "rebutted by the evidence of record: considering further, "that plaintiff paid to defendant, without reserve, the rent, portion of which he seeks to recover back by the present action, and, in the circumstances of this cause, the demande “of plaintiff is unfounded, in law and in fact; doth dismiss "plaintiff's action and demande, with costs." Ce jugement de la Cour de Circuit fut porté en Révision, à Montréal, par le demandeur. MACKAY, J.: The original plaintiff, Rapin, was now the plaintiff in revision. The suit was instituted in the Circuit Court, but was evoked. The declaration alleged a lease, from plaintiff to defendant, of a hotel, at an annual rent of £150. The lease, of date 6th March, 1868, was for five years, from 1st May, 1868. The premises consisted of a hotel, brick stable and other buildings, and the declaration set up that all these were required by Rapin, for his business: that a fire happened through no fault of the plaintiff, but by the act of an incendiary: that the injury so caused, defendant would never repair; that plaintiff caused an expertise to be made, in which defendant refused to join, and that the damage was estimated to diminish the annual value of the buildings, to an extent equal to one-ninth of the rent, and plaintiff sought to recover back this amount. The plea set up that, if the fire happened, it was from want of proper care by plaintiff. The act of incendiarism could not exonerate plaintiff, for it was his duty to keep a watch. Upon the pleadings and the evidence, judgment went dismissing Rapin's action, on the ground, first, that he had not removed, by proof, the presumption of negligence; and, secondly, that plaintiff had always paid his rent, since the fire, a portion of which rent he now sought to recover back. His honor cited art. 1629 of the Civil Code : "When loss by fire occurs in the premises leased, there is a "legal presumption in favor of the lessor, that it was caused "by the fault of the lessee or of the persons for whom he is "responsible; and unless he proves the contrary he is "answerable to the lessor for such loss." The evidence was far from showing no negligence on the part of plaintiff. At the time of the fire there was an exhibition of poultry, in his premises, and Rapin should have been looking after the safety of his stables where three valuable horses had been destroyed. Who the incendiary was had not been discovered. The question, in the Court below, was this: Had Rapin shown himself to be without fault? The Court below thought he had not, and the majority of this Court saw no reason to disturb that judgment. Judgment confirmed. (17 J., p. 54) M. le juge MONDELET ne concourant pas dans ce jugement. LEBLANC, CASSIDY & LACOSTE, avocats du demandeur. DAY & DAY, avocats du défendeur. JUGEMENT INTERLOCUTOIRE.-EXECUTION COUR DE CIRCUIT, Montréal, 2 mars 1871. Coram BERTHELOT, J. MARC TRUDEL, Demandeur vs JOSEPH DESAUTELS, Défendeur, et MÉDÉRIC CONTENT et al., Tiers-saisis, et FRANÇOIS DAVID et al., Intervenants et Ledit MARC TRUDEL, Contestant, et HUBERT, PAPINEAU & HONEY, mis en cause. Jugé-Que l'article 551 du Code de Procédure Civile, s'applique à tout jugement interlocutoire, comme aux jugements finals. Qu'exécution d'un jugement interlocutoire portant condamnation au paiement des frais du jour, peut émaner après quinze jours de sa date, même avant la reddition du jugement final. Que le Protonotaire peut être sur motion pour règle nisi, contraint à délivrer telle exécution. Le 2 février 1871, la Cour de Circuit a rendu un jugement interlocutoire, condamnant les intervenants à payer au demandeur les frais encourus par eux ce dit jour, à défaut par eux de procéder. Plus de quinze jours après la date du jugement interlocutoire, mais avant la reddition du jugement final, le demandeur requit une exécution pour le paiement desdits frais. Sur refus du protonotaire de délivrer telle exécution, parce que le jugement final n'était pas rendu, le demandeur fit motion pour émission d'une règle nisi, contre le protonotaire, pour l'obliger à délivrer telle exécution. Il produit, à l'appui de sa motion, un affidavit de son avocat, constatant les faits, un mémoire de frais du jour, 2 février, et une copie du jugement interlocutoire. Il cita les articles 545 et 551 du C. P. C.: la cause des Dames Dambourgès, contre la succession Boucher, où furent émanés un grand nombre d'exécutions, pour le paiement des jugements interlocutoires, et la cause Duhaut vs Lacombe, 19 R. J. R. Q., pp. 529, 575; n° 6410, Orms vs Kemp, et White, T.-S. (TORRANCE, J.); n° 2076, Kingan vs Kemp, (30 déc. 1870). Motion accordée. (4 R. L., p.701; 17 J., p. 56) BRUNET & BERTRAND, avocats du demandeur. ACTION EN SEPARATION DE CORPS.-EVIDENCE. SUPERIOR COURT, Montreal, 30th December, 1871. STARKE S MASSEY. Coram TORRANCE, J. Held :-That, in a case en séparation de corps et de biens, the contents of a letter alleged to have been written by defendant, and the destruction of which has been sworn to, may be established by parol evidence. PER CURIAM: This is a motion to revise the ruling at enquête of Mr Justice BERTHELOT. The action is one en séparation de corps et de biens, and certain questions were put to plaintiff's mother examined as a witness on the part of plaintiff, tending to prove the contents of a letter said to be written by defendant, and which has been destroyed. I assume, as a matter of fact, that the letter has been destroyed, and, applying, therefore, the rule of law in such a case, I must hold that the questions ought to be answered. My brother Judge maintained the objections which were made to these questions, on the ground that parol evidence could not be adduced, under the circumstances. As I think otherwise, I must set aside his ruling, and grant the plaintiff's motion. Motion to revise ruling at enquête granted. (17 J., pp. 56, 242) A. & W. ROBERTSON, for plaintiff. DEVLIN & POWER, for defendant. ACTION EN SEPARATION DE CORPS.—EVIDENCE. SUPERIOR COURT, Montreal, 31th January, 1873. STARKE US MASSEY. Coram JOHNSON, J. Held-That in an action en séparation de corps et de biens for adultery by the husband in the common househould of himself and his wife, the admissions of the husband, made by him to third persons or resulting from his default to answer interrogatories sur faits et articles will be considered by the Court, where the Court is of opinion that they are not the result of collusion between the plaintiff and the defendant. This was an action by a wife, en séparation de corps et de biens, predicated on the alleged adultery of the husband, in their common household. At the final hearing, plaintiff moved that certain interrogatories sur faits et articles which had been duly served on defendant should be taken pro confessis in consequence of the default of defendant to answer the same, and defendant, on the other hand, moved to reject them. The Court having heard the parties, upon the motion of defendant, praying that the interrogatories sur faits et articles served upon him be rejected as on the motion of plaintiff, that said interrogatories be taken pro confessis and also upon another motion of plaintiff that Rulings at Enquête be revised and set aside, and on the merits; pronouncing, first, upon the motion of defendant doth disiniss and overrule said motion; secondly, as to the motion by plaintiff to have the interrogatories taken pro confessis, doth grant said motion; and thirdly, upon the motion by plaintiff for revision of Rulings at Enquête, it is ordered that plaintiff do take nothing by said motion. And the Court, adjudging upon the merits; considering that admissions by defendant, whether made by him to third persons, or resulting as a consequence of law, from his default to answer interrogatories sur faits et articles, can, by law be made, and are to be considered and applied by the Court, in the present case, subject to the rules and principles of law in that behalf, and that wherever it appears to the Court that such admissions are not the result of collusion between the defendant and the plaintiff the facts so admitted, may be taken and held as proved, where they concur with facts otherwise proved by legal evidence; considering, further, that plaintiff has proved the material allegations of her declaration, as well by the admissions and confessions of the defendant, in so far as these can go to prove the said allegations, as by other evidence independent of said admissions, and that the fact of adultery committed by defendant with one Bridget Doolan, in the common household of the defendant and his wife, the present plaintiff at Ottawa, is established to the satisfaction of the Court; and, considering, therefore, that the allegations of the plaintiff are sufficiently proved; Doth order and adjudge that plaintiff be and remain from this day henceforth separated as to body séparée de corps, from the defendant her husband, hereby enjoining defendant not to trouble plaintiff or live with her, sous toutes peines que de droit, nor to molest or interfere with the child, issue of the marriage of said parties, the Court hereby maintaining plaintiff in the possession, custody and care of said child, to the exclusion of defendant. (17 J., p. 242.) A. & W. ROBERTSON, for plaintiff. BONDS TO THE QUEEN. —HYPOTHECS. SUPERIOR COURT, Montreal, 30th November, 1872. Coram TORRANCE, J. THE TRUST AND LOAN COMPANY OF UPPER CANADA vs MONK ès qual, and divers opposants, and GÉDÉON OUIMET, Attorney General pro Regina, opposant collocated, and G. H. MONK, contestant of collocation. Held:-10 That a bond for a sum of money, in favor of the Queen, of date 1845, duly registered, gave a hypothèque on the property present and future of her debtors. 29 That the Attorney General for Lower Canada could prosecute the payment of such bonds made to secure obligations incurred in Lower Canada. : TORRANCE, J. This case comes before the Court, on the merits of a collocation made by the prothonotary in favour of the Attorney General pro Regina, for $6002.09. The opposition of the Attorney General set forth the appointment of Monk, Coffin and Papineau, as prothonotary of the court of Queen's Bench, district of Montreal, on the 5th July, 1844; that they held that office till May, 1850, from which time they were prothonotary of the Superior Court, at Montreal, by statute; that they were appointed clerk of the Circuit Court, on the 24th December, 1849; that they fulfilled these duties till 12th March, 1865; that, as prothonotary of the Superior Court, they received $2959.73, under 12 Vic., c. 112, and, as clerk of the Circuit Court, $1215.96, under the same statute; that, as prothonotary of the Superior Court, from 10th Sept., 1850, to 12th March, 1865, they received $1751.09, and, as clerk of the Circuit Court, during the same period, they received $57.38, under 13 and 14 Vic., c. 37, making $5984.16 in all; that Samuel Wentworth Monk, one of the said prothonotaries, died on the 12th March, 1865; that the property sold in this cause had been, long before his nomination as prothonotary, and had been since his property and liable for his debts and for the debts of the prothonotary to Her Majesty. The opposant, therefore, prayed that Her Majesty might be paid out of the proceeds of said property $5984.16, &c. By a supplementary moyen, fyled 5th Oct., 1867, opposant set forth a bond by Monk, Coffin and Papineau, of date 26th September, 1844, for £2000, registered in the registry office for Montreal, on 7th March, 1845. By item 8 of the report of distribution, Her Majesty was collocated as follows: "To our Sovereign Lady, the Queen, under her privilege, |