she found herself at the bottom of the cellar, and sustained the
damages complained of.

JUDGMENT: "Considering that Defendants are not, by
"reason of the allegations in Plaintiff's declaration con-
tained, and of the proof of record, and by law, liable to pay
"to them, Plaintiffs, the damages by them sought to be reco-
"vered in and by their said declaration and action, doth dis-
"miss the said action." (8 D. T. B. C., p. 228.)

LEBLANC and CASSIDY, for Plaintiffs.
PELLETIER, for Defendants.

PILOTE.

SUPERIOR COURT, Quebec, 8th March, 1858.

Before CHABOT, Justice.

RUSSELL vs. PARKE.

Jugé: 1° Qu'un pilote en charge d'un vaisseau a droit d'être rémunéré, outre le pilotage ordinaire, pour perte de temps et pour services rendus en sauvant des espars et une partie du gréement du vaisseau emportés en conséquence de la mauvaise qualité des matériaux employés.

2° Que lorsque le propriétaire de tel vaisseau obtient indirectement des assureurs le montant de la réclamation du pilote, le pilote a droit de recouvrer tel montant dans une action pour ouvrage et perte de temps," quoique la déclaration ne contienne aucun chef pour argent

reçu.

66

This action was brought to recover the sum of £30, for services performed in saving the spars, rigging and sails of Defendant's vessel, and for the value of Plaintiff's time in the detention occasioned him, by reason of the vessel having had her spars and rigging aforesaid, damaged and carried into the sea, said spars and masts being then and there unsound; Plea, that, admitting the services of Plaintiff, as laid in the declaration, he could not by law maintain any action therefor, because he was at the time the pilot in charge of the vessel, and was piloting her down the river St. Lawrence, and had the command of her as such pilot: and that, by his own negligence, imprudence and want of proper skill and precaution, he had caused the damage for the repairs of which he brought the present action. The evidence established that, a few days after the departure of the vessel from Quebec, and while opposite Malbaie," a squall overtook her by which some of her spars were carried away; that Plaintiff was in charge of her as pilot at the time, and that the vessel was detained there until new

before this action was brought, that he had received the amount of the account from the insurers. Under these circumstances, it is submitted, that, inasmuch as the detention of Plaintiff was occasioned by the defective quality of Defendant's spars that owing to such detention he was prevented from earning £30; that his services in saving the spars and the time he was employed about the same are worth that sum; that Defendant promised to pay him that amount; and that finally, Defendant has actually received the sum for which Plaintiff now sues, Plaintiff is entitled to recover the amount demanded.

PARKIN, for Defendant, contended that, upon reference to the evidence, and particularly to that of William Parke, a witness produced on behalf of Defendant, it would be found that the loss of the spars was occasioned by the want of care and negligence of Plaintiff in crowding on too much sail, much more than the best and soundest spars were able to carry in the weather that then prevailed; that, under any circumstances, Plaintiff could not recover in the present action, for no principle of law was better established than that a person engaged in any capacity on board of a vessel, could not claim for salvage, except under very extraordinary circumstances; (1) that Plaintiff, being the pilot employed on board of the vessel at the time of the accident in question, could not therefore claim any compensation for his services in saving the vessel; that this principle was further recognised and expressly enacted by the Provincial Statute, 12 Vic., chap 114, sec. 42, as follows; "That any pilot saving or endeavouring to save "a vessel in distress shall be entitled to a remuneration to be fixed by the Trinity House of Quebec, if such pilot shall not have agreed with the master or owner of the vessel as "to the compensation for such service, provided he be not the "pilot on board and in charge of such vessel;" and that the action could not, therefore, be maintained. That, with respect to the transaction connected with the insurance company, or underwriters, it would be perfectly understood by Couture's evidence, that the Defendant merely undertook to pay Plaintiff, provided he could obtain the amount from the underwriters, but that this was a nudum pactum and could not be allowed to militate against Defendants; that, even supposing it were proved that Defendant had received the amount from the underwriters, Plaintiff, notwithstanding, could not succeed in his action because the declaration contained no count for money had and received; and, further, because, if any one had a right to recover, it could only be the underwriters, who,

46

de cette saisie, alléguant qu'elle était faite super non domino. L'Intimé de son côté soutenait que la possession de l'Appelant, depuis l'expiration du bail, était précaire, et ne lui donnait aucun droit sur l'immeuble saisi. La Cour d'Appel a confirmé à l'unanimité le jugement de la Cour Supérieure qui avait donné gain de cause à l'Intimé. (8 D. T. B. C., p. 235.) GLEASON, pour l'Appelant.

CASAULT et LANGLOIS, pour l'Intimé.

CORPORATION MUNICIPALE.-COTISEURS.-TEMOINS.

SUPERIOR COURT, Montreal, 27th February, 1858.

Before SMITH, Justice.

GORRIE VS. THE MAYOR, ALDERMEN AND CITIZENS OF MON

TREAL.

Jugé : Que des cotiseurs nommés en vertu d'un statut autorisant la corporation de la cité de Montréal de nommer tels cotiseurs, et de leur accorder telle rémunération pour leurs services que le conseil jugera à propos, ne peuvent pas porter une action contre la corporation pour un quantum meruit pour tels services dont la rémunération a été fixée.

2° Que le droit d'un témoin est de se faire taxer par la cour devant laquelle il est examiné, et non de porter une action devant une autre cour pour un quantum meruit pour comparutions et perte de temps comme témoin (1).

64

The declaration set up that, on the 6th June, 1853, Plaintiff was appointed one of the assessors for the city of Montreal, and accepted the office, as he was bound to do, under a penalty of £50, and that he performed all the duties of his office under the law in force at the time, "and that for his reasonable wages or remuneration for performing the said duties, as "aforesaid, Plaintiff became entitled to ask and have from Defendants £150 which sum Defendants were and are bound to pay and have often promised to allow and pay to Plaintiff, "yet have not paid." Then follow similar allegations as to his appointment and as having acted as assessor for the year 1854, and of his having, under the 16th Vict., c. 152, made an alphabetical list of persons appearing from the assessment rolls to be qualified to vote for members of the Legislative Assembly, alleging, in the same terms, that for his wages or remuneration, he was entitled to £300, the two sums forming £450, of which only £250 were paid. Conclusion for £200.