1851.

FIRE AS-
SURANCE

COMPANY

v.

mon benefit, ought to be subrogated to the rights of the assured, to the contribution, which in such case THE QUEBEC must be made. These authorities are so consistent with justice, and founded upon so equitable a principle, that we have no difficulty in adopting them; and we do not think that any of these are shown to have been derived, as was suggested in argument, from the Code Napoleon, which is not in force in Canada.

Assuming then that it is the old law of France, that an assuree may, on payment, require to be subrogated, two objections remain to be answered.

First. It is said that the act upon which the Plaintiffs rely as a subrogation, was, in form, a cession transport, and could not operate as a subrogation; and, secondly, if it was, that it was not made soon enough, because the Plaintiffs had already paid the amount of the loss absolutely, and so the debt was extinguished, after which a subrogation comes too late, and was void.

The first of these objections was answered, and we think satisfactorily, by the authority of Toullier, tit. 3, art. 117, and art. 128, from which last article it appears, that if the transaction be a subrogation, it is immaterial whether the creditor uses the term subrogation or cession in the instrument itself. To the second objection there is a twofold answer. First, that the payment of the amount of the loss, which, in this case, by virtue of the contract, is indemnity, is not such a payment as extinguishes the debt, as it does in the case of a surety paying the debt of his principal, and, therefore, there might be a subrogation afterwards. Secondly, that the payment did not, in fact, take place before the instrument of subrogation or transfer was executed.

ST. LOUIS.

1851.

FIRE AS

SURANCE

COMPANY

v.

ST. LOUIS.

We must give credit to the notarial act of the 4th THE QUEBEC of August, 1843, as stating the truth, in the absence of evidence to the contrary, that the draft at 60 days, drawn on the 19th of July, 1843, for the claim on the Assurance Company, was handed over in his presence to the curé and marguillier-en-charge, who executed that instrument, and consequently the transfer took place contemporaneously with the payment. And there was no evidence to the contrary, as the supposed payment of the loss, on the 19th of July, by the draft of that date, was not regularly proved; for, on the further examination of one of the witnesses, who was adduced to prove that fact, he stated he knew it only, because it was placed to the debit of the Plaintiffs with the Quebec Bank.

The next remaining objection is, that the curé and one marguillier alone could not make a valid subrogation. That they could not cede or assign by way of sale any of the rights of the church, is beyond dispute. The cure and all the marguilliers must join, and have the consent of the Bureau, to effect a valid transfer of that nature, the principle of the law requiring their sanction for the preservation of the property of the church. But that the marguillier-en-charge may give a legal discharge for a debt due to the fabrique, actually paid, may be collected from Jousse, "On the Duties of Marguilliers," p. 157; and if the money cannot be received except under the equitable obligation of subrogating the assurees (as we have shown that it cannot), we think it follows, that there must be incidentally a power in one, on the request of the Company, to execute the proper instrument of subrogation.

One point alone remains to be disposed of, viz., whether the Plaintiffs who sue as being subrogated to

1851.

a part of the claim for damages, viz., so much as they were bound to pay and paid on the policy, can sue THE QUEBEC without joining the fabrique, as co-plaintiffs?

FIRE AS

SURANCE

COMPANY

v.

It seems to be reasonable that the Defendants, the quasi debtors, should not be liable to a double action by ST. LOUIS. reason of the adoption of the equitable principle, that the assurers have a right to be subrogated. The Defendants, therefore, must have a remedy to prevent that injustice. In Toullier, "Droit Civile," tit. 3, art. 120, it is said, that the debtor has a right to require all to be united. But it appears to us to be clear that this defence is not available under either the plea of "Not guilty," or the denial of the truth of all the matters alleged.

Their Lordships, therefore, are of opinion, that they must advise Her Majesty to reverse the judgment of the Court of Appeals, and to affirm that of the Court of Queen's Bench.

6th, 7th, & EMMA BLAGUIRE, widow, the Testatrix in the cause, by her Will dated the 29th of January, 1847, (but in fact executed on the 30th of that month,)

8th, Feb., 1851.

By the Statute of Wills,

(1 Vict., c. 26,

*Present: Mr. Baron Parke, the Right Hon. Dr. Lushington, s. 21,) oblite- the Right Hon. Thomas Pemberton Leigh, and the Right Hon. Sir rations, inter- Edward Ryan.

lineations, or

other altera

tions in a Will, after execution, are void, if not affirmed in the margin, or otherwise, by the signature of the Testator, and the attestation of wit

nesses.

The mere circumstance of the amount, or the name of a legatee, being inserted in different ink, and in a different handwriting, does not alone constitute an obliteration, interlineation, or other alteration, within the meaning of the Statute, nor does any presumption arise against a Will being duly executed as it appears. The case is different where there is an erasure apparent on the face of the Will, and that erasure has been superinduced by other writing. In such circumstances, the onus probandi lies upon the party who alleges such alteration to have been done prior to execution, to prove by extrinsic evidence, that the words were inserted before execution, and that they had the sanction of the Testator.

In the absence of proof, that certain words in a Will, written with a different pen and in a different ink, and in a different handwriting, partly upon an erasure, were inserted prior to execution, so much of such Will, consisting of the inserted words, which constituted a reversionary disposition, pronounced against.

The case of Cooper v. Bockett, (4 Moore's P. C. Cases, 419,) considered and approved.

Where a Will is prepared and written by a medical man in attendance on

appointed the Respondent, Edward Tylee, and another person, (since deceased,) her executors. The Will, after bequeathing certain specific legacies proceeded thus:-

And I give the remainder of my property to," the word "to" was struck out with a pen; and then followed these words;-" in the Long Annuities & elswhere, to Charles Greville, M.D., Bath." From an inspection of the Will it appeared, that this residuary clause was inserted below the sixth line from the top of the first side or page of the Will, partly on an erasure, and partly as an interlineation. The name and description, "Charles Greville, M.D., Bath," was in the Testatrix's handwriting. The rest of the Will, and the interlineations, being in the handwriting of the Appellant, who was the medical adviser of the deceased. The Will was executed by the Testatrix when dangerously ill. The Testatrix died on the 4th of February, 1847.

The executors admitted the validity of the Will generally, but contended, that the words constituting the residuary clause, under which the Appellant was largely benefitted, (the greater part of the Testatrix's property being invested in the Long Annuities,) were not entitled to probate. This clause formed no part of the instructions given by the Testatrix for her Will.

1851.

GREVILLE

v.

TYLEE.

a Testatrix, at that time dangerously ill, and without professional advice, by which he is made the principal object of the Testatrix's bounty, to the exclusion of her near relations, a Court of Justice, regarding the subsisting relation of a medical man and patient, will view his conduct with the utmost jealousy.

The rule in pleading" Qui ponit fatetur," must be received with some modification. It must be rigidly enforced with respect to every averment made by a party alleging within his own personal knowledge, but the same rule must be applied, less stringently and in some instances rejected, when the party states facts not within his personal knowledge.