trois jugements en capital et frais; cette balance étant de $118.25, pour laquelle dernière somme l'intimé a légalement fait et produit, le jour même du rapport de cette action, une confession de jugement avec intérêt du premier octobre dernier, et les dépens d'une action de cette classe seulement. Done, la seule question qui se présente est de savoir si l'intimé avait droit d'invoquer et plaider les trois jugements de saisie-arrêt après jugement, qui le condamnent à payer au créancier de l'appelant, pour l'acquit de ce dernier, des sommes s'élevant à $81.75. L'intimé maintient qu'il était bien fondé en droit de le faire. Ces trois jugements de saisie-arrêt après jugement équivalent à une cession judiciaire en faveur de Poulin, et ont opéré une subrogation en faveur de ce dernier du titre de créance de l'appelant pour le montant desdits trois jugements en capital et frais. L'article 625 C. P. C. (1) le dit formellement. Cette subrogation légale est une fin de non recevoir à l'encontre de la demande de l'appelant. La cause de Parent v. Talbot est une décision analogue et antérieure au Code de Procé dure. On objectera peut-être que l'article 625 C. P. C. n'a pas d'application pour les trois jugements de saisie-arrêt après jugement en question, attendu qu'ils ont été rendus par défaut, et que le tiers-saisi, l'intimé actuel, peut en quelque sorte en être relevé. Cette distinction n'est qu'une subtilité. On conçoit facilement le but de la loi en déclarant le tiers-saisi, condamné par défaut, recevable à faire sa déclaration, même après jugement. La loi a en vue de protéger le tiers-saisi, qui ne doit pas, en tout ou en partie, le montant réclamé par la saisie, et qui, pour causes d'absence, maladie ou inadvertance, aurait négligé de faire sa déclaration en temps utile. Dans le cas actuel, lesdits jugements rendus contre l'intimé, comme tiers-saisi, sont et doivent être irrévocables, car il devait à l'appelant une somme plus élevée que celles mentionnées dans les brefs de saisie-arrêt, et, lors même qu'il obtiendrait la permission de faire sa déclaration, ce droit serait illusoire, car le résultat serait la même condamnation. D'ailleurs, son plaidoyer en cette cause serait une fin de non recevoir contre son application, et il démontre à l'évidence qu'il se soumet entièrement à ces trois ju gements de saisie-arrêt après jugement.

Jugement confirmé unanimement.

627 et 2 S. D., 31.)

S. THÉBERGE, pour l'appelant.
ERNEST BRUNEAU, pour l'intimé.

(1) Art. 692 C. P. C. de 1897.

(8 R. L., 390; R. A. C.,

INTERPRETATION DE CONTRAT.-ENGAGEMENT DE GERANTS D'ASSURANCE

COUR DU BANC DE LA REINE, (En Appel,) Montréal, 22 juin 1876.

Présents: DORION, J. en C., MONK, J., RAMSAY, J., SANBORN, J. et TESSIER, J.

EDWARD RAWLINGS, demandeur en Cour Inférieure, appelant, et THE CITIZENS INSURANCE & INVESTMENT COMPANY, défenderesse en Cour Inférieure, intimée.

Jugé: Qu'un agent d'assurance qui s'engage, à un salaire fixe et un percentage de 10 par cent sur le produit net porté le 31 décembre, de chaque année, n'aura pas droit à ses 10%, si, le 31 décembre, il reste des réclamations à régler, et que ces réclamations doivent être déduites de cette prétendue balance.

APPELLANT'S CASE: The appeal in this cause is taken from the judgment of the Superior Court, at Montreal, JOHNSON, J., rendered on the 31st January, 1874, dismissing the Plaintiff's action, with costs. The circumstances of the case are the following: The Appellant agreed, on or about the 16th February, 1869, to serve the Respondents, as Manager of the Life and Guarantee Departments of the Respondents' business, at a salary of $2,000 per annum, and a commission of ten per cent, on the net balance carried over on the 31st December of each year, in the Life and Guarantee Insurance Department, after payment of all losses and expenses therein, the said agreement to date from and after the first May, 1869, with a free dwelling on the premises of the Respondent. This agreement was embodied in the minutes of the meeting of directors of the Respondents of the 16th February, 1869. The Appellant entered into the service of the Respondents as such manager, and continued so to act for them from the 1st May 1869 to May, 1870, under the said arrangement, at the said salary and at the said commission. The Appellant pretended that the net balance, in the Guarantee Department, which should have been carried over, and upon which he was entitled to his commission of ten per cent, from the 31st December, 1869, was the sum of $12,469.68, and, in lieu thereof, the Respondents erroneously made the net balance $7,154.64, by deducting there from certain losses by them incurred by and through one James T. Dillon and Edward Townsend, admitted prior to the 30th April, 1869, amounting to $6,000, by means whereof, upon the said balance, the Plaintiff was entitled, as and for his commission of ten per cent, thereon, to the sum of $1,247.96; that the net balance, in the Guarantee Department, which should have been carried over on the 31st December, 1870, was the sum of $20,330.45, upon

which the Appellant was entitled to his commission of ten per cent proportionately, to wit, upon one-third of the same, but, in lieu thereof, the Respondents erroneously made said balance $18,130.45; that the net balance carried over in the Life Department of the Respondents on the 31st December, 1869, amounted to $322.27, on which Plaintiff was entitled to his commission of ten per cent, making a sum of $32.22; that the net balance carried over on the 31st December, 1870, in the Life Department of Respondents, was $4,700.21, on which the Appellant was entitled to a proportionate commission of ten per cent, on one-third of the said amount, to $156.84; that the said sums united make the sum of $2,117.74, for which sum the Appellant brought suit, his salary of $2,000 per annum being paid.

The Defendants in the Court below pleaded that the principle upon which the Appellant calculated his commission was all wrong; that, from the 1st May, 1869, to the 31st December, 1869, there were no net profits realized from the Life Department, that there were no net profits realized in the Guarantee Department, for, although it would appear, by the books of the Respondents, that the receipts, during the said period, amounted to the sum of $16,890.13, and that expenses and losses, without taking into account losses by Dillon and Townsend, paid during said period, amounted to the sum of $5,116.60, and that, therefore, the receipts exceeded the expenses and losses during said period by the sum of $11,774,13, yet, that the said sum does not represent the net profits, nor could the Plaintiff claim any commission upon it, because the Respondents say, that during the said period there became due to La Banque Nationale, under two guarantee policies issued by Respondents and held by the said Bank in favor of Euclide Paradis and Neil McNeill, a sum of money far exceeding said balance, to wit $14,000.28, a claim for which was duly made upon said Respondents by said Bank, and was pending unsettled on the 31st December, 1869, and such apparent balance was not and could not be considered, and was not intended to be considered as profits for the said Guarantee during said period. From the 1st January, 1870, to the 30th April, the net profits of the Life Department amounted to the sum of $1,494.57; that there were no profits realized from the Guarantee Department during the last mentioned period, for the receipts amounted to $2,878.19, and the expenses to $2,948.00, so that the expenses exceeded the receipts by $78.57; that the company have been obliged, since the 30th April, 1870, to settle with La Banque Nationale for the losses sustained by Paradis and McNeill, and to pay the Bank the sum of $11,155.80, which includes the sum of $158.80 paid for law costs and notarial expenses paid of the attorneys and notary

of the Respondents, in settlement of their claims, which said amount is to be deducted from the said sum of $12,621.00, in order to arrive at the net profits for the period over which the Appellant was entitled to claim commission, and that, consequently, there is only a balance of $1,465.53, which are the net profits for the said period, and the only sum upon which Appellant is entitled to a commission of ten per cent, under said agreement with Respondents, said commission amounting to $146.55. Then followed an allegation that the Respondents had not settled or paid off La Banque Nationale until after the institution of the present action. The Respondents thereupon tendered to Appellant the sum of $167.95, in full settlement, and prayed that the same might be declared good and valid, and Appellant's action dismissed.

The Appellant was engaged for a term of years; his engagement was not merely for one year. During that year, and previous to any notification whatever of a change in the agreement, as existing between him and Respondents, the balance, or what may be called the net balance, was carried over, and was approved of, as will appear on reference to the evidence, by the directors and auditors of the Company. At that time, there were certain claims pending, which might perhaps have been put into a suspense account; but it will be observed that, until those claims were actually paid, the money represented net profits, because those claims were disputed, and it was only one year, or so, after the institution of the present action, that the Company settled with La Banque Nationale, and paid them a certain amount on account of the claims. Now, it is pretended that the losses so paid by the Company go regularly with the year's expenses in which they were paid; that they make the difference in the dividend of that year; that they do not make any difference in the dividend of the year in which the claim was made and contested; that these balances were carried over in good faith, and the attempt is now made to cause the Appellant to suffer, because he happened to be engaged for an indefinite time, which engagement was afterwards broken by the Respondents. Moreover, it is declared that the Respondents retained this money in their possession for a period of nearly four years, thereby obtaining the benefit and advantage of the interest thereon, on which interest, at all events, the Appellant was entitled to claim his commission. With respect to the period from the 1st January, 1870, to the 1st May of the same year, the pretention of the Appellant is, that he is entitled to a sum proportionate to the total net balance carried over on the 31st December, 1870, namely, to a commission of ten per cent, on onethird of that net balance. On the contrary, the Respondents pretend that he is entitled merely to a commission of 10 per cent,

upon the profits made during that period; but, as the wording of the agreement is, that he shall be entitled to his commission of ten per cent, upon the net balance carried over at the end of every year, it is urged that the Respondents' pretention cannot be maintained.

RESPONDENT'S CASE: The following is the resolution of the board on which the claim of the appellant is based: "The question of the emoluments of Mr. Rawlings, as manager of the Life and Guarantee Departments, being brought up for settlement, it was resolved that they be a salary of $2,000 per annum, and a commission of 10 per cent on the net balance carried over on the 31st December, each year, in the Life and Guarantee Departments, after payment of all losses and expenses therein, the same to date from and after the 1st May, 1869, and that he have free dwelling on the premises of the company." The Superior Court rendered the following judgment: "The Court, considering that the Plaintiff has not proved the averments of his declaration, and, more particularly, has failed to prove, by evidence, that the balance carried over on the 31st December, 1869, and on the 31st December, 1870, in the Life and in the Guarantee Departments of the Defendants' business, were balances, after payment of all losses and expenses, but that, on the contrary, it is clearly proved, in this case, that the losses and expenses, averred and set forth in the Defendants, plea ought to have been deducted from the said balances, before they could be considered (in the words of the contract between the parties) "net balances, after payment of all losses and expenses."

Considering, consequently, that the Plaintiff's claim for 10 per cent commission is made upon balances that were only apparent, and that the averments of the Defendants' plea are sufficiently proved, doth maintain the said plea, and declare the offers therein made good and valid, and doth dismiss the Plaintiff's action, and condemn him to pay the costs incurred by the Defendants since the making of the said offers."

It is from this judgment appellant has appealed. At the enquête, the Respondents established the correctness of the statement of figures upon which they relied. In fact the material points in their defence were proved by the witnesses brought forward by the Appellant. But the question of the correctness of the Appellant's demand ultimately mainly turned on the construction of the minute under which he claimed a commission. The construction put upon it by the Appellant was, that, whatever the balance which was carried forward in the books of the Company, from the one year to the other might be, that balance was the amount upon which the commission of the Appellants should be calculat