the explosion occurs, and he is killed. The law may be generally stated to be, that where both parties are to blame neither can recover. Its application in the present case will be severely felt by the innocent widow and children of this unfortunate gentleman; but I am afraid that it is quite plain (at least it is so to my mind) that, if any explosive substance or fluid be supplied by the negligence of a company or person, they will only be responsible for the consequences that may flow exclusively from their own negligence, and not for those that are contributed by the sufferer. In the case of gunpowder, or coal gas, which is proved to be explosive in combination with certain proportions of atmospheric air, when a light is applied to it, I think that the party who should supply the spark to the one, or the flame to the other, is an essential contributor to the explosion, and that being the case here, the innocent and deeply to be commiserated representatives of the deceased, who derive their right from the circumstances attending the injury to the deceased, have I think no right of action. I may add that the case of Tuff vs Warman, in the 5th volume of the Common Bench Reports, N. S., page 573, contains a review of all that has ever been said in leading cases in England on the subject of contributory negligence. That case was an appeal, under the 35th sec. of the English Common Law Procedure Act of 1854, 17 and 18 Vict., chap. 125. It was argued, on 10th May, 1858, before Justices Wightman, Erle, and Crompton; and Barons Watson, Bramwell, and Channell, six English Judges. It is there said by Justice Wightman: "The law is laid down with perfect "correctness in the case of Butterfield vs Forrester; and that rule is, that, although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of "the defendant's negligence, he is entitled to recover: if by "ordinary care he might have avoided them, he is the "author of his own wrong." That was followed by Davies vs Mann, 10 M. and W., 546, where the learned judge PARKER, B., says: "It appears to me that the correct rule concerning negligence is laid down in Bridge vs The G. Junc. R. Co., viz., that the negligence, which is to preclude a plaintiff' "from recovering in an action of this nature, must be such as "that he could, by ordinary care, have avoided the "consequences of the defendant's negligence." This rule of law, if it has ever been apparently relaxed according to circumstances of peculiar cases, has never been departed from. On the contrary, in the case of Tuff vs Warman, that I have just cited, and in all the text books on the subject of torts,

TOME XXIII.

7

the doctrine is mentioned that "the defendant is not excused " merely because the plaintiff knew that some danger existed "through the defendant's neglect, and voluntarily incurred "such danger." This is said on the authority of Clayards vs Dethick, 12 Q. B., 439; and, as it seemed to come nearer the present case in point of principle than any other that I have seen, I examined it by itself: That was a case where the plaintiff's horse was killed by falling into a trench which the defendants had made and insufficiently guarded. Patteson, J., in that case said: "The defendants had clearly no right to "leave a trench open in the passage to this mews, and to tell the plaintiff you shall keep your horse in the stable until we tell you that you may remove him. But whether or not "the plaintiff contributed to the mischief that happened "by want of ordinary caution, is a question of degree. If the danger was so great that no sensible man would have incurred it, the verdict must be for the defendants: and the case was rightly put to the jury as depending on this question. The plaintiff here had passed safely in the afternoon "over the place where the accident happened. According "to the evidence for the defendants, he was told, on attempt"ing to pass in the evening, that he could not do it without incurring danger to himself and the men below. The jury, however, did not believe this statement. The whole question "was whether the danger was so obvious that the plaintiff "could not with common prudence make the attempt." Coleridge, J., said: "The question is, not only whether the defen"dants did an improper act, but also whether the injury to the 'plaintiff may legally be deemed the consequence of it. The defendants say that the injury was the result of his own wrong-headedness in attempting to pass when he was told it "could not be done without risk. Then, was the question on this point properly left to the jury? I understand the Lord Chief Justice to have expressed himself strongly against the view taken by the defendants' counsel, but to have put the "question in a manner that appears correct, namely, whether "the plaintiff acted as a man of ordinary prudence would have done, or rashly and in defiance of warning." So that this case of Clayards vs Dethick very clearly confirms the rule of law that I have applied; and in the case of Tuff vs Warman, that I noticed at first, it is also stated as part of the judgment of Mr. Justice Wightman that the rule of law was affirmed in Clayards vs Dethick-the difference between that case and the one now before me being in point of form merely. There it was held that what was the amount of danger, and the circumstances which led the plaintiff to incur it are questions for the jury. Here, unfortunately, they are for the

judge, and I find that under the circumstances, to use the language of Patteson, J., in Clayards vs Dethick, the danger was so great that no sensible man, especially when expressly warned by the conditions of his contract not to do so, ought to have incurred it. The action is dismissed, but without costs, as each party contributed to the accident. (17 J., p. 63) DOUTRE, DOUTRE & DOUTRE, for the plaintiff.

LEBLANC, CASSIDY & LACOSTE, for the defendants.

FRAIS DANS LES AFFAIRES MUNICIPALES.

COUR DE CIRCUIT, Montréal, 16 mai 1872.

Coram MACKAY, J.

LOUIS BOURBONNAIS et al., requérants, et LA CORPORATION DU COMTÉ DE SOULANGES, intéressée.

Jugé:-Que les frais dans une demande, par voie de requête en cassation de règlement municipal, doivent être taxés, comme dans une cause de première classe, non appelable, de la Cour de Circuit.

Le tarif, fait antérieurement au Code Municipal, ne contenant pas de dipositions applicables à une cause en nullité de règlement, non par voie d'appel, mais par requête en cassation, sous l'opération des arts 698 et suivants, l'Hon. Juge a inséré dans son jugement le règlement suivant: "La Cour déclare que la taxe doit être la même que dans les causes de lère classe de la Cour de Circuit, non appelables." (17 J., p. 69)

DOUTRE, DOUTRE & DOUTRE, pour les requérants.
D. D. BONDY, pour la corporation.

CERTIORARI.

SUPERIOR COURT, Montreal, November 1870.

Coram TORRANCE, J.

Ex parte, on application of JEROME CAYEN, Petitioner for writ of Certiorari, and THE MAYOR et al., Prosecutors, and JOHN P. SEXTON, Recorder.

Held:-1st. That it was not competent to a defendant questioning the summary jurisdiction of justices of the peace to set up jus terti.

2nd. That the Court could not here try the question of jurisdiction, the Recorder of Montreal being exempted from taking evidence in writing.

PER CURIAM: This case is before the Court, on a motion of petitioner, Jerôme Cayen, to quash a conviction of the Recorder, John P. Sexton, and on a motion of the prosecutors, the Corporation of Montreal, to quash a writ of certiorari. A complaint, on the 19th June last, was lodged against the petitioner, before the Recorder's Court, that he had, on the 17th June, obstructed St Léon street, in the City of Montreal, by depositing firewood on the street, without having previously obtained the permission of the City Inspector. The defendant pleaded to the complaint that the Corporation had never been proprietors or in possession of the pretended street, called St. Léon street, which had never been inscribed on the Register of streets of the City, nor homologated; that the Board of Public Works alone has the control of the piece of land in question which is not a public street; and the defendant is not guilty in the manner and form as complained. The defendant was fined $20, and costs.

DUHAMEL, for the petitioner, contended that, from the moment that the question of property was raised, the Recorder was ousted of his juri-diction, and that the C. S. C. chap. 91, s. 46, should apply.

DEVLIN, for the Corporation, cited 1 L. C. Jur., 162, In re Ira Gould, 2 R. J. R. Q., p. 376.

PER CURIAM: It has always been held, as a maxim, that, where the title to property is in question, the exercise of a summary jurisdiction by justices of the peace is ousted. Paley, on Convictions, p. 137. But the claim of title must be on behalf of the defendant, or those through whom he claims, and he cannot set up a jus tertii, Cornwell vs Sanders, 3 B. & S., 206. Further, as has been laid down in re Ira Gould,

1 L. C. J., 162 (1), the Court cannot enter into the question of jurisdiction from the Recorder being specially exempted by statute from the obligation of taking evidence in writing. The motion of the petitioner will therefore fail, and the motion to quash the certiorari must be granted. (17 J., p. 74)

DUHAMEL & RAINVILLE, for petitioner.

R. ROY, Q. C., B. DEVLIN, for the prosecutors.

DISAVOWAL OF ATTORNEYS.—MARITAL AUTHORIZATION.

SUPERIOR COURT, Montreal, 24th December, 1870.

Coram TORRANCE, J.

LEORY & vir vs Plamondon et al.

Held:-1° That a defendant has no interest to disavow or right to question the power or authority of the attorney ad litem of the plaintiff to bring an action.

2o That, when a writ and declaration allege that the female plaintiff is duly authorized by her husband, party to the action, it is not competent to the defendant by an exception à la forme to question such authorization.

PER CURIAM: The defendants met the action by an exception à la forme, which alleged, inter alia, that the female plaintiff was commune en biens with her husband, but had instituted the action without his authorization, although such authorization was alleged in the declaration, and in the writ of summons. The plaintiffs have demurred to the exception à la forme: 1. Because it appears, by the writ of summons, that the female plaintiff was authorized to bring the action; 2. Because, in law, the defendants have no interest, and are not admissible to disavow the attorneys ad litem of the female plaintiff, authorized by her husband, and of the husband for the purpose of authorizing his wife.

The Court was with the plaintiff, and maintained the défense en droit: "Considering that it appears by the pleadings

(1) Le Statut Provincial, 8 Victoria, autorisant la nomination d'un recorder, pour la cité de Montréal, est constitutionnel, et autorisé par le Statut Impérial 3 et 4 Vict., chap. 35, section 3, intitulé: "An act to re-unite the "Provinces of Upper and Lower Canada, and for the Government of "Canada." Le louage par la couronne, pour 21 ans, d'un terrain formant partie du domaine de la couronne, constitue un bail emphyteotique qui transfère la propriété, et soumet le locataire au paiement des taxes municipales. (Gould, requérant certiorari, C.S., Montréal, 20 mai 1854, DAY, J., SMITH, J., et C. MONDELET, J., P. D. T. M., p. 73, et 2 R. J. R. Q., p. 376.)