INJURES VERBALES.-DOMMAGES

COUR SUPÉRIEURE, Montréal, 29 novembre 1873

Présent MACKAY, J.

BÉLANGER vs CARIGNAN.

Jugé: Que le défendeur à une action en dommages-intérêts, pour injures verbales, doit être condamné à payer des dommages si, dans son plaidoyer, il a traité de nouveau le demandeur de parjure sans prouver son accusation, et ce quoique ce dernier ait une réputation douteuse.

Action for $195 damages, for slander, plaintiff being charged with perjury. The plea says there was an altercation and counter charges, but repeats the charge of parjury, without however defendant bringing any proof. Plaintiff's character does not appear to be very good, but defendant ought not to have repeated the charge in his plea without proving it. Judgment for $10 and costs, as in an action for that sum. (5 R. L., 229)

MOUSSEAU & CHAPLEAU, for plaintiff.

DE BELLEFEUILLE & TURGEON, for defendant.

BAIL.-COMPENSATION.

COUR SUPÉRIEURE, Montréal, 29 novembre 1873.

Présent JOHNSON, J.

Ross et al. vs BRUNET.

Jugé: Qu'il n'est pas nécessaire que les réclamations alléguées en compensation soient claires et liquides, mais qu'il suffit qu'elles soient susceptibles d'une liquidation aisée.

Demurrer to defendant's plea. The action is instituted by Walter Ross, William-Joseph Ross, John Ross, Alexander Ross, Elizabeth Ross, wife of John Brown, Mary Ross, wife of David Wilson, and James Ross. The declaration sets out the execution of a deed of lease, on the 21st of january 1869, by plaintiffs and one David R. Ross, of Boston, acting by Walter Ross, one of plaintiffs, on the one part, and defendant of the other part, of certain pieces of land formerly belonging to the estate of Austin Adams, for the term of three years, and for the purposes of brick making. This lease was made

for £800, per annum, payable semi-annually in advance, by defendant, and $700, balance of the terms already due, are sought to be recovered by the action. The declaration then avers that since the making of this lease, defendant has acquired the share of David R. Ross in the property leasedthat is, one-eighth; or one hundred dollars out of the eight hundred due for the first year, leaving $700, which are demanded by the action. This action is encountered by defendant by a peremptory exception of enormous length and complication, of which nine pages are in english and about eight more in french, the latter part reciting certain deeds passed in that language. By this plea defendant admits the lease that is invoked by the action, but alleges that, at the time it was passed, he purchased a large quantity of finished and unfinished bricks then on the property lease, at $4.45 per thousand, less the cost of finishing them, and subject also to the deduction of what he might be called upon to pay for Walter Ross discharge from liability to the estate of his father and mother. He then sets ought that the value of the bricks was $7,182.80, and than he has paid $7,471.241, leaving Walter Ross in his said capacity debtor to defendant of $288.441; that David R. Ross never ratified the authority exercised by Walter Ross on his behalf, and that the latter was not authorized to act for him; but, on the contrary, David R. Ross has since sold his right in the leased property to defendant; that Elizabeth Ross (Mrs Brown) has since sold defendant her share of this estate and the account between him, defendant, and Walter Ross in his said capacity which is set out fully in the plea show only a balance of $286.56 due by defendant. He then proceeds to aver that Elizabeth Seid, mother of plaintiffs, was during her life-time usufructuary legatee of her husband, plaintiff's father and executrice of his will, and, as such, in possession of his estate: that she gave a power of attorney to Wm-Jos. Ross, to manage and administer the property, and that he entered into partnership with defendant in the brick making business. The terms of this partnership are then quoted from the deed; and then another partnership of subsequent date between the same parties is alleged, and its terms also are fully set out, and then defendant avers that under these several deeds, the balance due by him to plaintiff's would only be as before pleaded, $286.56-and no more; that defendant has paid for plaintiffs and at their request $6,446.24 which they have promised to pay him, and that he has tendered to them through their agent and attorney the $286.56, which he again offers with his plea, and asks that the action be dismissed if they do not choose to take it. To this plea, the answer in law is

TOME XXV.

10

filed, which gives rise to the present inscription, and upon which the parties have been heard. The pretensions of the answer in law are that the amounts set up against plaintiff's demand for rent are not clairs et liquides, and that if they were, they can only be the subject of a direct action against Walter Ross, who, it is alleged, was not the legal and autho tized representative of the estate. Now, this is a matter of fact, to be gathered from the deeds and might be the subject of a special answer, no doubt; but if made the subject of an answer in law or demurrer, must of course depend upon the sufficiency of the allegation, and not the truth of the fact. Whether Walter Ross's acts are to build plaintiffs or not, the averments in the plea are ample and sufficient, and the question whether those averments are borne out by the facts does not arise under this demurrer. The point secondly raised that these amounts are not clairs et liquides is not stricly a good answer in law. They need not be clairs et liquides. It is sufficient that they be susceptible of easy liquidation, which is not only sufficiently alleged, but an absolutely ascertained and stated amount is averred. Answer in law dismissed with costs. (5 R. L., 229)

CAPIAS.-PROCEDURE.-FAILLITE.

COUR SUPÉRIEURE, Montréal, 29 novembre 1873.

Présent JOHNSON, J.

ROY et al. vs BEAUDIN.

Jugé: Qu'un créancier qui poursuit un failli pour le recouvrement d'une somme d'argent qui lui est due, (capias en même temps), n'est pas tenu de procéder au nom du syndic.

The present action is demurred to by defendant; and the sufficiency of the declaration is the question before the court. It sets up that defendant is insolvent and made an assignment, on the 7th june 1873, and that plaintiffs are his creditors, alleging a series of debts which he owes them for goods sold and for promissory notes, some overdue and some exigible by reason of defendant's insolvency. It then alleges secretion of property with intent to defraud the creditors; and that, at a regular meeting of the creditors, held according to law, on the 27th june 1873, defendant failed to give any reasonable or satisfactory statement of his affairs, and that a deficit of over $3300 was found to have taken place, in the

three months immediately preceding his assignment, which he could not account for. Plaintiffs then allege that, on the second july 1873, they received information from persons whom they name, that defendant had, within the 15 days immediately preceding his assignment, sold goods to an amount of $100 and inore, and, within two months of the action (issued 7th july), he sold large amounts of goods, of which no mention is made in his statement; that on the very day of his assignment, defendant removed or concealed a portion of his property with intent to defraud plaintiff and his creditors; that, at a meeting of creditors, he made false statements, and omitted to disclose important facts and entries in his books; that immediately before his assignment, he was in the habit of selling goods under their value and cost, all which was done with intent to defraud. Under these circumstances plaintiffs arrested defendant under a writ of capias ad respondendum, and, in their declaration, they pray judgment for the whole amount due to them ($2662.86 and interest), and also for the maintenance of the capias and for imprisonment under the statute, in default of payment of debt and costs. We have had actions of this nature before us already. One in particular, Warner vs Buss (1), I myself gave judgment in. In that case, the averments were distinctly made of violations of the express provisions of the 92nd section, which subjects the offender to imprisonment. The averments in the present case seem rather to be under the three preceding sections, viz, the 89th, 90th and 91st, which provide for three things: 1st fraudulent preferential sales and those which are presumed so to be: 2nd for

46

(1) L'art. 92 de la loi concernant la faillite de 1869, S. C. 32-33 Vict., ch. 16, se lisait ainsi qu'il suit: "Toute personne qui achète des effets à crédit, ou qui obtient des avances d'argent, se sachant ou croyant incapable de "faire honneur à ses engagements, et cachant ce fait à la personne devenant ainsi son créancier, dans l'intention de frauder cette personne, ou qui sous tout faux prétexte obtient crédit pour le paiement de quelque avance ou prêt d'argent, ou du prix ou d'une partie du prix de certains effets ou marchandises, dans l'intention de frauder la personne devenant ainsi son créancier, et qui n'aura pas ensuite payé la dette ou les dettes ainsi encourues, sera réputée coupable de fraude, et passible de l'emprisonnement pour le temps que la cour pourra ordonner, n'excédant pas deux années, à moins que la dette ou les frais ne soient plus tôt acquittés; et si cette dette ou ces dettes sont contractées par une société en nom collectif, alors chaque membre de la société qui aura eu connaissance du fait que cette dette ou ces dettes ont été contractées, et de l'intention de les contracter, sera également passible de la même peine; pourvu toujours, que dans l'action ou poursuite intentée pour le recouvrement de cette dette ou de ces dettes, le "défendeur soit accusé de fraude et en soit déclaré coupable par le jugement 'qui sera rendu dans cette action ou poursuite." Aux termes de cet article, la cour, en ordonnant l'emprisonnement, est tenue de limiter le paiement, pour l'élargissement (suivant les termes précis de cette loi), à la dette ou aux frais. (Warner v. Buss, C. S., Montréal, 30 septembre 1873, JOHNSON, J., suprà, p. 119.)

payments, which in certain cases are made void; and 3rd for transfers of debts within thirty days of insolvency; but which do not subject those acts to the penalty of imprisonment. The demurrer in the case is taken on the ground that the allegations show no right of action in plaintiffs; and it is contended that by the 45 section of the act of 1869, plaintiffs ought to have used the name of the assignee, either with his assent, or under an order from a judge. The application of the 45th section is the only point on which defendant relies. If I could, without violating the practice of the court, go beyond the reasons appended to the demurrer, I should have great difficulty to say the least, in holding that imprisonment can be awarded under these averments; but I am held to the one reason which is stated in the demurrer, and though it is stated in four different forms, is the only one that was argued upon at the hearing. I hold that the 45th section applies only to proceedings in the insolvent court, for the benefit of the estate. In the present instance, plaintiffs are taking no proceeding for the benefit of the estate; but are acting apart from the proceeding in insolvency altogether, and entirely for their own benefit. The demurrer must be dismissed. As to the liability to imprisonment for the acts complained of, it is to be observed, under the general ground assigned of the insufficiency of the allegations, that this is not a partial demurrer to that portion of the conclusions, but a general demurrer to the whole. Certainly plaintiff has a right to ask for a condemnation to pay the money, under the allegations of indebtedness. Therefore all the grounds are bad. (5 R. L., 232)

CHEQUE.-DEFENSE EN DROIT.

SUPERIOR COURT, Montreal, 29th november 1873.

Present: JOHNSON, J.

DUFRESNE vs LA SOCIÉTÉ DE CONSTRUCTION JACQUES-CAR

TIER.

Where a cheque on defendants, a building society, was given t plaintiff for the payment of certain doors and windows, and plaintiff, before accepting the cheque in payment, had gone to defendants' office and been told that there was money still due to the maker of the cheque, and would be paid if the house, for the construction of which the maker of the cheque had the contract, were built, and defendants