a statutory obligation, such as the obligation to make and maintain crossings on the petitioner's property, under the Quebec Railway Act, there being the remedy by ordinary action. The inscription was from a judgment of the Superior Court, at Sherbrooke, Doherty, J., 15th June, 1883, maintaining the demurrer to the action. JOHNSON, J. The petitioner has inscribed this case for review from a judgment rendered in Montreal in June last, and which dismissed the petition upon the demurrers severally pleaded by the two defendants, one of them being the Montreal & Sorel R. R. Co., and the other the South Eastern Railway company. The object of the petition and the writ was to compel these companies to make and maintain crossings upon the petitioner's property under sec. 16 of the Consolidated Railway Act of the Province, 43 and 44 Vict.; and the petition also asked for damages for the neglect hitherto to make these crossings. 66 upon in the court, in the case of The Municipality of Pointe Claire v. The Turnpike Co., * in February, 1882. That was a case of injunction; but, quoad hoc, it was held in the Court of Appeals in Bourgoin v. The N. C. R. R. † that injunction was the same as mandamus. As to the necessity of the absence of an adequate legal remedy, a great number of leading cases are cited in the note to p. 18 of Tapping on Mandamus; and the rule deducible from all the authorities is stated by the author of the treatise as follows:-"The writ of man"damus is not a writ grantable of right; but "by prerogative; and amongst other things, it is, as before stated (a) the absence or want "of a specific legal remedy which gives the court jurisdiction to dispense it. It is not granted to give an easier or more expedi"tious remedy; but only where there is no "other remedy being both legal and specific; " and so long and uniformly has the court "adhered to this doctrine, and refused to grant, or if granted, quashed, the writ in cases where there is a specific legal remedy, "either at common law, or by act of Parliament, that it has become a principle of the "law of this subject. The principle applies where there is another, and a better remedy, or where a specific remedy exists, not"withstanding that it has been, by circumstances, rendered unavailing, for it is rare "to grant the writ where there is any other remedy." It cannot be doubted that under our law the plaintiff had a direct action against the R. R. company to compel them to do whatever they were obliged to do by the statute, within a certain time, in default of which the plaintiff might do it himself at their The demurrers were identical, and shortly stated, they contended that no mandamus in such a case as was alleged would lie under the article 1022 of the code of civil procedure. Of" course, that article, in any of its sections, except the 4th, could have no application whatever to the present case. That section, however, says that the writ may be obtained in all cases where it would lie in England. Now it would not be a very easy nor a very profitable task to determine what are all the cases in which the writ might lie in England: indeed it would be very laborious, and I believe perfectly useless, if not absolutely impossible to do so. One thing, however, is certain, viz., that if the writ is refused in England whereever there is a plain legal remedy open to the party asking it-(which is the main contention of the defendants) the cases where it ought to be refused in this country, upon that principle, would be much more numerous than they would be in England; for under our system there is no wrong without a legal remedy. Now the principle contended for by the defendants, and acted upon by the court below, is one which suffers no doubt, and is found to pervade not only all the English authorities on the subject; but has been acted cost. This view of the case makes it unnecessary that of the liability of the South Eastern to enter on the question of damages, or on Company as lessees of the road. Judgment confirmed with costs in both courts. Judgment confirmed. Prefontaine & Co. for the plaintiff. O'Halloran & Co. and Kerr & Co. for the defendants. 5 L. N. 259. SUPERIOR COURT. EATON V. UNWIN et al. Interpretation of Contract-Interest. Plaintiff in 1879 sold defendants 50 acres of land for $2000, payable in 20 annual instalments of $100 each, the whole at four per cent per annum. The deed of a sale contained a clause to the effect that plaintiff was to allow defendants eight per cent on all payments made in advance from the date of payment till the time they should have become due. Defendants paid two instalments of $100 each when they became due; then tendered $500 in full payment of the balance ($1,800), claiming a discount of $1,300 under said clause. Plaintiff brought action for $248, one instalment of principal and two years' interest, defendants pleading their tender and depositing the money in court.—Held, rejecting defendants' tender and deposit as insufficient, that the intention of the parties must be determined by interpretation rather than by adherence to the literal meaning of the words of the contract. R. A. Crothers for plaintiff. O'Halloran & Duffy for defendant. COUR DE CIRCUIT. ARTHABASKA, 13 Décembre 1883. Coram PLAMONDON, J. THEROUX, père v. GREER. Frais-Distraction. JEGE:-Lorsqu'il n'y a pas de distraction de dépens dans une cause en faveur d'un procureur ad litem, ce procureur n'a pas le droit de recevoir de sa partie, les frais dus à l'huissier pour service; mais sa partie doit payer à l'huissier Le demandeur réclame du défendeur la somme de $17.25 pour services professionnels, rendus par le demandeur, en sa qualité d'huissier, au défendeur à sa demande et requisition, son bénéfice et avantage, aux dates, dans les causes et pour les prix portés au compte produit avec les présentes. Le dit défendeur pour défenses à cette action, dit lo. qu'il n'a jamais requis les services du demandeur; 20. Que les différents items du compte du demandeur formaient partie des mémoires de frais de MM. Felton et Blanchard, les procureurs ad lites du défendeur dans les différentes causes mentionnées au dit compte; que le défendeur a payé ces mémoires de frais longtemps avant la présente action, et ce à la connaissance du défendeur. Le défendeur fait la preuve de ses dites défenses. PER CURIAM. Jugement en faveur du demandeur pour le montant réclamé ; les procureurs ad litem n'avaient pas le droit de retirer ce qui était dû au demandeur quand ils n'avaient pas en leur faveur distraction de frais. Laurier & Lavergne pour le demandeur. SALE OF A WIFE. The old notion that wives are chattels which may be bartered or sold is not entirely eradicated in England. The following is a recent case: Before Mr. Justice Denman, at the Liverpool Assizes, Betsy Wardle was charged with marrying George Chisnal at Eccleston bigamously, her former husband being alive. The case was a peculiar one. It was stated by the woman that as her first husband had sold her for a quart of beer, she thought she was at liberty to marry again. His Lordship-That is not what she stated before the magistrate. She said then that he was idle and would not work. When she left him she took the child with her, and he said if she would let him have the child he would not trouble her any further. He added that he would sell her for a quart of beer. Prisoner-Please your worship, he did so. (Laughter.) His Lordship-Is there anybody here who knows that? Yes, My Lord; Alice Roseby and Margaret Brown. His Lordship-Call Margaret Brown. Margaret Brown thereupon stepped into the box and was cross-examined by his lordship. She said she was present at the second marriage. She knew the first husband Wardle was alive; she was told that he had sold her for a quart of beer. His Lordship-You believed it would be binding? Yes, Sir. His Lordship-And you thought it right she should marry again? She wished me to give her away, and I did so. (Laughter.) His Lordship- You helped her to commit bigamy. Take care you do not do it again or you will get yourself into trouble. Alice Roseby was next called, and said she saw Wardle drink one glass of the quart. His Lordship-Who was the bargain made with? With George Chisnal. His Lordship-I am not sure that you are not guilty of bigamy, or of being an accessory before the fact. You must not do this sort of thing again. People have no right to sell their wives for a quart of beer or anything else. (Laughter.) George Chisnal, the second husband, apparently just out of his teens, was the next witness called. His Lordship-How did you come to marry this woman? Witness (in the Lancashire vernacular)-Hoo did a what? (Laughter.) Question repeated-A bowt her (Laughter.) His Lordship-You are not fool enough to suppose you can buy another man's wife? Oi. (Laughter.) His Lordship-How much did you give for her? Sixpence. (Great laughter.) His Lordship-You are as guilty as she is. You are an accessory before the fact to her committing bigamy. You have committed bigamy yourself. Everybody has committed bigamy in this case. (Laughter.) Go down. The witness left the box with alacrity, but was immediately recalled by his Lordship, who asked him how long he had lived with the prisoner. Witness-Going on for three years. His Lordship-Do you want to take her back again? Awl keep her if you loike. (Laughter.) His Lordship-You need not keep her if you do not want. She is Wardle's wife. Mr. Swift, addressing his lordship, said all he wished to say on behalf of this unfortunate woman was this-that she seemed to have met with a bad husband, in the first place, and an ignorant man in the second. He could only venture to hope that his lordship would not think it a case in which she ought to be punished-at least, not severely. His Lordship directed that Wardle should be called, and this was done without eliciting any answer. His Lordship-(addressing the prisoner)— It is absolutely necessary that I should pass some punishment upon you in order that people may understand that men have no more right to sell their wives than they have to sell other people's wives, or to sell other people's horses or cows, or anything of the kind. You cannot make that a legal transaction. So many of you seem to be ignorant of that, that it is necessary I should give you some punishment in order that you may understand it. It is not necessary that it should be long, but you must be imprisoned and kept to hard labour for one week. The oldest peer of Great Britain, the Earl of Buckingham, who recently attained his 90th year, is in priest's orders. Besides him eight other peers are in holy orders, namely, the Marquis of Donegal (Dean of Raphoe), the Earls of Delaware, Carlisle, and Stamford, Lord Plunket (Bishop of Meath), Lord Sayne and Sele (Archdeacon of Hereford), Lord Scarsdale, and Lord Hawke. The Earl of Mulgrave, heir apparent to the Marquisate of Normanby, is also a clergyman. The Legal News. VOL. VII. JANUARY 12, 1884. instituted is a poor test of a lawyer's brains or capacity, not to speak of honesty; and it is not surprising to those who are well informed, to see counsel who are admittedly the leaders No. 2. of the bar placed a long way down in the list, while their students and their students' students to the fifth generation head the roll. If such a publication has any effect, it is decidedly a mischievous one: it is to encourage the institution of frivolous cases, and to create such a state of things as we sometimes witness, when out of twenty suits decided in one day, more than half are dismissed with costs. It is the part of a wise and conscientious counsel to prevent litigation, not to cultivate it. Dr. Johnson-grand old Samuel, who is passing out of the fashion of this generation -once framed a prayer to be used before entering on the study of the law. It is dated September 26, 1765, and as some of our readers may never have seen it, and it expresses in a few well-chosen words the point of this paragraph, we venture to quote from it:Almighty God, the Giver of wisdom, with"out whose help resolutions are vain, without whose blessing study is ineffectual, "enable me, if it be Thy will, to attain such knowledge as may qualify me to DIRECT THE DOUBTFUL, and INSTRUCT THE IGNORANT, to "prevent wrongs, and TERMINATE CONTENTIONS, "and grant," etc. JUDICIAL TOPICS IN ENGLAND. The tour of the Lord Chief Justice in the United States has not only afforded some amusement to the English comic papers, but has caused some alarm to the bar. Says the Law Times: "Vested interests, of course, are nothing in these days. At any moment professional or trade security may be threatened. The recent judicial tour in America has not tended to increase the confidence of the bar in the stability of existing institutions. But it was nevertheless scarcely credible that immediately after the reform in our procedure and the erection of Royal Courts, at a vast expense, the head of the law should contemplate entire subversion of the judicature. It is to be hoped that the bar committee will soon be in a position to put the drag on the well-known radical tendencies of prominent members of both bench and bar." This uneasiness seems to have been excited by the reports of some of his lordship's speeches in the United States, and also by the rumor that a scheme of district courts was to be proposed in England. His brother judges even seem to have caught the alarm, and they hold out sturdily against any hint of innovation, for we read that at a meeting of the English Judges, held at the Royal Courts of Justice on Tuesday, December 11th, "the proposal of Lord Chief Justice Coleridge, that the courts should either sit half an hour earlier in the morning or the same time later in the afternoon, was voted down by a large majority." A MISCHIEVOUS INNOVATION. Of late years a silly innovation has crept into the Montreal journals: we refer to the publication of a statement of the number of actions taken out by each professional firm during the year. This may please a vanity not at all to be commended, on the part of a few, but it cannot be justified on any sound principle. The number of suits แ EX PARTE PUBLICATIONS. And while we are flourishing the censor's whip, we may as well add a word concerning another abuse which has existed so long that it can hardly be considered a novelty. We do not think that in any other place in the world the newspapers indulge so freely in ex parte statements of legal proceedings. It often happens that before an action is served upon the unfortunate defendant he finds the highly colored statements of the declaration selling on the street. Before he knows what are the precise charges against him, the world at large, with the aid of the telegraph, has a grossly exaggerated version served up to it. This system has been the cause of much mischief in the past—not that the judges who under our system have to try the cases, are affected by such statements but it adds a new terror to life to know that a grossly exaggerated declaration may be published before the defendant has even had a chance of seeing it, let alone answering it, and persons are coerced into unjust settlements and compromises. Moreover, the very journals which are most eager to print these one-sided statements seldom make any mention of the final decision of the cases so unfairly presented to the public. It is right that what takes place in open court should be impartially reported, for there the defendant is represented by counsel, and has a chance to be heard, but as to these premature statements of suits entered, it is much to be desired that more discretion will soon be exercised by the conductors of public journals. 3. 4. The question whether the company had, in fact, violated the law of the Province by acquiring and holding land without having obtained the consent of the Crown, was not in issue in this case. The fact that the company had not hitherto extended its operations to the full limits of its corporate authority was no reason for declaring its Act of incorporation illegal, if the Act was originally within the legislative power of the Dominion Parliament. The appeal was from a judgment of the Court of Queen's Bench, reported in 5 Legal | News, p. 116. PER CURIAM. This is an appeal from a judgment of the Court of Queen's Bench of the Province of Quebec, reversing a judgment of the Superior Court, which dismissed the petition of the Attorney General of the province, praying that it be declared that the Appellant Company had been illegally incorporated, and that it be ordered to be dissolved, and prohibited from acting as a Corporation, The judgment now appealed from did not grant the prayer of the petition, but gave other relief, in the manner to be hereafter adverted to. The Colonial Building and Investment Association was incorporated by an Act of the Parliament of Canada (37 Vict., c. 103). The preamble states- That the persons therein-after named, 'owners of real estate in the city and district of Montreal, and elsewhere in the Dominion, have petitioned for an Act of Incorporation, to establish an Association to 'be called the Colonial Building and Investment Asso said Association for the purpose of buying, leasing, 1. The Act incorporating the company appel-ciation, whereby powers may be conferred on the lant, for the purposes set out below, was not ultra vires of the Parliament of Canada. ' or selling landed property, buildings, and appurtenances thereof; for the purchase of building mate2. Although, by the law of Quebec, corporationsrials, to construct an improved class of villas, home cannot acquire or hold lands without the consent of the Crown, and the power to repeal or modify this law belongs exclusively to the Provincial Legislature, yet the powers found in the Act of incorporation are not necessarily inconsistent with the provincial law of mortmain, which does not absolutely prohibit corporations from acquiring or holding lands, but only requires, as a condition of their so doing, that they should have the consent of the Crown. steads, cottages, and other buildings and premises, and to sell or let the same; and for the purpose of establishing a building or subscription fund, to which persons may subscribe or pay in money for investment or for building purposes, and from which payments may be made for said purposes; and also to act as an agency.' Sec. 1 incorporates the Association. Sec. 4 enacts that the Association shall have power to acquire and hold, by purchase, lease, or other legal title, any real estate necessary for the carrying out of its undertakings; to construct and maintain houses or other buildings; to let, sell, convey, and dispose of the said property; to acquire and use or dispose of every description of materials for building purposes; |
