It would be impossible to presume that in a system of law based on equity like ours, there should be any express rule taking away the right to such an action as this. What the respondents ask is the exercise of their own right, and to say that they should ask to be paid by privilege is to contend that they should ask more than they are entitled to, at all events since the repeal of the insolvent act. Of course they might be disinterested, and their action be thus defeated. The only question, then, is one of evidence. Is it proved that at the time of the payments referred to Chaput & Massé were insolvent? If so, did Boisseau & Frère know it?

As to the first question, there is no doubt that they were insolvent from the time of the inventory at the beginning of 1882. As to the knowledge of Boisseau & Frère it seems to be established in the only way in which it is usual to prove a guilty knowledge. It is proved by inductions or deductions of different degrees, and when sufficiently strong to remove all reasonable doubt it forms complete proof. Now here we have the relation of the parties, the agreement that Boisseau & Frère should supply them, that Boisseau & Frère should have access to their books, that they took the means to exercise this power, that when events showed that Chaput & Massé were insolvent the supplies ceased and the payments increased solely to the discharge of Boisseau & Frère. There is not an attempt to answer this.

The judgment is, therefore, confirmed. Judgment confirmed.

R. & L. Laflamme, for the Appellants. Mercier, Beausoleil & Martineau for the Respondents.

COURT OF QUEEN'S BENCH.

MONTREAL, May 27, 1884. Before DORION, C. J., RAMSAY, TESSIER, CROSS, BABY, JJ.

PINSONNAULT (plff. below), Appellant, and HEBERT et al. (defts. below), Respondents. Action en réintégrande-Proof of possession. The appellant brought an action en réintégrande in the court below, complaining that the respondents (defendants) had taken pos

session of a certain immoveable belonging to him, and the appellant asked to be maintained in possession of the immoveable, and that the respondents be compelled to pay him $400 damages.

The defence was to the effect that David Hebert's wife, with the heirs of her brother Joseph Girardin, owned a strip of the immoveable in question, 24 feet wide, and always had the use of it as a passage across the appellant's land.

The court below dismissed the action.

DORION, C. J. The action is en réintégrande. This is an action which the party has when he has been dispossessed. But in this case in the first place the appellant has not been dispossessed, and in the next place the evidence is contradictory. The dispute is as to a piece of land which was formerly a road. There was a ferry there, and the road led to it. Upon the conflict of evidence we are not disposed to reverse.

RAMSAY, J. This is an action de réintégrande brought by the owner of a lot of land on the bank of the river Richelieu, complaining of the invasion of his possession of another piece of land forming part of an old road leading from the front road to the river, and being the continuation of a road called the "Grande Ligne."

The two respondents severed unnecessarily in their defence, which amounts to this: that David Hebert's wife is the owner of this piece of road, and that the plaintiff is not only not the proprietor of it, but that his title excludes the bit of land in question, and that appellant had never any exclusive possession of the road.

The judgment of the court below seems to have turned on this, that neither of the parties had established a sufficient possession animo domini, and sent them to discuss the difference between them au pétitoire. The appellant feels aggrieved by this judgment and

contends that in all cases the court must de

cide between two parties whose possession is the better. The authority cited by appellant does not say that; but "que deux possessions égales et de même nature ne peuvent concourir sur le même objet, l'une repoussant nécessairement l'autre, que la possession est exclusive," etc. This is obvious; but it is not

It is evident by his own testimony that David Hebert has no possession. He did not put up the fence, and he did not know who put it up, and the fitful and occasional use of this lane to the river is no indication of a possession animo domini.

The next question is-has the appellant such a possession? I think not, his possession was neither continuous nor even apparent. I am to confirm.

Judgment confirmed.

E. Z. Paradis for Appellant.

S. Pagnuelo, Q. C., counsel.

Beique & McGoun for Respondent.

COURT OF REVIEW. MONTREAL, November 30, 1883. Before SICOTTE, TORRANCE, RAINVILLE, JJ. TURCOTTE V. BRISSETTE dit COURCHENE

Malicious prosecution.

The inscription was from a judgment of the Superior Court, district of Richelieu (Gill, J.), July 7, 1883.

TORRANCE, J. The demand here was for damages for a malicious criminal prosecution.

The plaintiff was defendant in a case in which the Sheriff had seized land which he had been unable to sell for want of bidders. Some months afterwards the defendant bought a small quantity of wood off this land from Turcotte for the price of $3. He cut the wood and was then threatened with proceedings for contempt in the case in which Turcotte was defendant, at the suit of the plaintiff. Alarmed, he and his brother, similarly situated and threatened, paid the lawyer of the plaintiff in the other suit $25 each. They then turned round upon Turcotte and threatened him with criminal proceedings on the charge that the sum of $3, paid by them to Turcotte, had been obtained from them by false pretences. They endeavored to obtain a cow and horse from his father in settlement, and, failing, lodged an information which led to an indictment and trial before a petit jury in the Court of Queen's Bench.

The Court below has found that plaintiff had ground for claiming damages, and gave

prosecution was malicious and without probable cause. I think so, too. It was a malicious and spiteful abuse of the process of the Criminal Court, in order to extort money. Judgment confirmed.

A. Germain for plaintiff.
E. U. Piché for defendant.

COUR SUPÉRIEURE.

MONTRÉAL, 4 octobre 1877. Coram TORRANCE, J.

JONES V. ALBERT, et BERTRAND, opposante. Saisie-gagerie-Insaisissabilité—Sous-bail. Jugé-Que même lorsque le bail principal contient une prohibition de sous-louer, un souslocataire peut former opposition à la saisie par le propriétaire de ses meubles qui sont déclarés insaisissables par l'article 556 du C. P. C.

Le demandeur en cette cause avait loué une maison à un nommé Albert et ce dernier, quoique la chose lui fut prohibée par son bail, avait sous-loué une partie de cette maison à l'opposante. Sur une saisie-gagerie prise par Jones, tous les meubles de l'opposante furent saisis comme garnissant les prémisses. Mais, cette dernière fit une opposition réclamant les meubles déclarés non saisissables par l'article 556 C. P. C. Sur contestation de l'opposition,

La CoUR a maintenu les prétentions de l'opposante, et main-levée fut accordée de la saisie quant aux dits effets insaisissables. Le surplus de l'opposition fut renvoyée, chaque partie payant ses frais.

Doherty & Doherty pour le demandeur. T. & C. C. de Lorimier pour l'opposante. (J. J. B.)

COUR SUPÉRIEURE.

MONTRÉAL, 29 novembre 1877.
Coram JOHNSon, J.

GIROUX V. NORMANDIN.
Décharge-Interprétation-Ambiguité.

PER CURIAM. L'action du demandeur est basée sur un acte d'obligation du 18 avril 1874, consenti par le défendeur en sa faveur. Le demandeur demande maintenant le paiement de la balance due en vertu de cet acte,

savoir: $148.63 avec intérêt et frais. Le défendeur plaide paiement. La réponse au plaidoyer reconnait (comme fait aussi la déclaration) le paiement de $261.37 par les mains d'Olivier Berthelance. Le demandeur produit une quittance du 16 avril 1873 par les exécuteurs de Berthelet, qui montre qu'ils payèrent Giroux $40 "pour obtenir sa décharge du dit Normandin." Giroux accepta ce paiement pour ce but. Il donna cette quittance aux exécuteurs dans ce but. Mais on lui demande quel but? Pour obtenir sa décharge du dit Normandin; ceci est ambigu, et peut vouloir dire que Giroux était le débiteur intéressé à obtenir la décharge de Normandin; mais ces mots interprétés dans la supposition que cette somme était la balance due sur la dette principale, forment une expression inexacte, mais non inintelligible; car il n'y a rien pour faire supposer que Giroux fut le débiteur de Normandin, et il est certain au contraire, que Normandin était le débiteur de Giroux. Conséquemment un paiement fait par Normandin équivaut en droit à un paiement fait par lui-même, et la décharge de Giroux est suffisante. Il eût été plus exact, sans doute, de dire "pour obtenir sa décharge envers Normandin." Le plaidoyer de paiement est donc prouvé, et l'action déboutée avec frais.

Duhamel & Cie. pour le demandeur.
De Bellefeuille & Turgeon pour le défendeur.
(J. J. B.)

COUR DE CIRCUIT.

MONTRÉAL, 6 mai 1876. Coram JOHNSON, J. MAROIS V. DAME DESLAURIERS. Renonciation à insaisissabilité—Bail—Illégalité. Jugé-Que la clause insérée dans un bail par laquelle le locataire renonce au bénéfice que la loi lui garantit de l'insaisissabilité de ses meubles, en faveur de son locateur est illégale. Le 9 mars 1876, le demandeur fit émaner une saisie-gagerie et fit saisir tous les biens de la défenderesse, même ceux déclarés insaisissables par la loi, sur le principe que par le bail passé entre les parties, la défenderesse s'était départie de l'exemption de saisie que lui accordait la loi sur certains de ses meubles,

La défenderesse plaida que cette renonciation était illégale et immorale; qu'elle avait été forcée d'y consentir, ne pouvant trouver à cette époque d'autre logis; qu'elle exposait la défenderesse et sa famille à rester exposées aux rigueurs des saisons sans les choses nécessaires à la vie.

La Cour maintint les prétentions de la défenderesse, alléguant qu'il n'y avait rien d'odieux comme d'enlever à un pauvre malheureux pendant nos rigoureux hivers, le seul lit où repose sa famille et seul poële qui réchauffe sa maison.

Théo. Bertrand pour le demandeur. Chs. Thibault pour la défenderesse. (J. J. B.)

INDIANA SUPREME COURT. December, 1883.

POMEROY V. STATE.

Indecent assault upon patient by physician-
Competency of testimony of prosecutrix.
The accused, a physician, while examining the

person of a female patient believed to be
suffering from a disease of the womb, had
carnal connection with her. There was no
evidence of consent upon her part obtained
by fraud or otherwise. Held, that the ac-
cused was guilty of rape.

At the trial the female assaulted, though of weak mind, and an epileptic, was permitted to testify for the state. Held, no error.

Howk, J. The appellant, Pomeroy, was indicted for rape. The indictment charged "that Mark Pomeroy, on the 8th day of October, 1881, at and in the county of Gibson, and State of Indiana, did then and there unlawfully, feloniously and violently make an assault in and upon one Rebecca R. Reavis, a woman then and there being, and did then and there unlawfully, feloniously, violently, forcibly and against her will, ravish and carnally know her, the said Rebecca R. Reavis, contrary to the form of the statute, &c.

A verdict was returned finding him guilty as charged. His motion for a new trial having been overruled, and his exception saved to such ruling, the Court ordered judgment against him in accordance with the verdict. In this Court, the only error assigned by

the wrongful act itself, all the force which the law demands as an element of the crime." The evidence tends to show that the appellant, as a physician, informed Rebecca and her mother that the former was suffering from a terrible womb disease, and was losing her mind. If the jury believed, as they might well have done under the evidence, that the appellant, as a physician, obtained possession and control of Rebecca's person, under her mother's command, for the purpose of making a further examination of her alleged disease of the womb, and not for the purpose of sexual intercourse, and that she never, in fact, gave her consent, through fraud or otherwise, to the sexual connection, then, it seems to us, that the case in hand falls fairly within the doctrine declared in Queen v. Flatery, 2 Q. B. D. 410, decided in 1877, and that the appellant was lawfully convicted of the crime of rape. In the case cited, as in this, the defendant professed to give medical and surgical advice for money. The prosecutrix, a girl of nineteen, like the prosecutrix in this case, was 'subject to fits,' and she and her mother consulted the defendant in regard to her case, and informed him of her condition. The defendant, as in this case, made an examination of the person of the prosecutrix, and advised that a surgical operation be performed, and under the pretence of performing it, had carnal connection with her. It was held by the court that the prisoner was guilty of rape. Kelly, C. B., said: "It is plain that the girl only submitted to the defendant's touching her person, in consequence of the fraud and false pretences of the prisoner, and that the only thing that she consented to was the performance of the surgical operation. Up to the time when she and the prisoner went into the room alone, it is clearly found on the case that the only thing contemplated either by the girl or her mother, was the operation which had been advised; sexual connection was never thought of by either of them. And after she was in the room alone with the prisoner, what the case expressly states is that the girl made but feeble resistance, believing that she was being treated medically, and that what was taking place was a surgical operation. In other

words, she submitted to a surgical operation and nothing else. It is said, however, that having regard to the age of the prosecutrix, she must have known the nature of sexual connection. I know of no ground in law for such a proposition. And, even if she had such knowledge, she might suppose that penetration was being effected with the hand or with an instrument. The case is, therefore, not within the authority of those cases which have been decided, decisions which I regret, that, where a man by fraud induces a woman to submit to sexual connection, it is not rape." In the same case, Mellor, J., also said: “It is said that submission is equivalent to consent, and that here there was submission. But submission to what? Not to carnal connection. The case is exactly within the words of Wilde, C. J., in Reg. v. Case, 1 Den. C. C., at p. 582: 'She consented to one thing, he did another materially different, on which she had been prevented by his fraud, from exercising her judgment.'”

In People v. Crosswell, 13 Mich. 427, after citing some decisions both in England and in this country, to the effect that if the woman's consent is obtained by fraud the crime of rape is not committed, Cooley, J., said:

"But there are some cases in this country to the contrary, and they seem to us to stand upon much the better reason, and to be more in accordance with the general rules of criminal law. People v. Medcalf, 1 Whart. C. C. 378, and note 381, State v. Shepherd, 7 Conn. 54. And in England where a medical practitioner had knowledge of the person of a weak-minded patient, on pretence of medical treatment, the offence was held to be rape. Reg. v. Stanton, 1 C. & K. 415. The outrage upon the woman, and the injury to society, is just as great in these and we have been unable to satisfy ourselves cases as if actual force had been employed; that the act can be said to be any less against the will of the woman, when her consent is obtained by fraud, than when it is extorted by threats or force."

In the case at bar we are of opinion that the verdict of the jury was fully sustained by the evidence appearing in the record, and that it was not contrary to, but in strict accordance with the law applicable to such evidence. The Court committed no error, therefore, in overruling appellant's motion for a new trial.

Judgment affirmed.