VENTE.-CAPACITE D'ACHETER

SUPERIOR COURT, IN REVIEW, Montreal, 29th april, 1871.

Coram MONDELET, J., MACKAY, J., TORRANCE, J.

WICKSTEED VS THE CORPORATION OF THE TOWNSHIP of North HAM et al.

Held:-10 That the provisions of art. 1484 of the Civil Code, prohibiting agents and others from becoming buyers of the property, which they are charged with the sale of, apply to subordinates.

20 Under C. S. L. C. ch 24. s. 40, s.s. 10, a front road must be 36 feet wide french measure, between the fences.

This action, instituted before the Superior Court for the District of St. Francis, was brought to annul a sale for municipal taxes and rates, made at the instance of defendants, the Corporation of the Township of North Ham, in February, 1868. The plaintiff, in his declaration, alleged that, in the month of November, 1867, the lot was sent up by the secretary-treasurer of North Ham to the secretary of the County of Wolfe, to be sold for arrears of taxes, and was in due course advertised by the county-secretary to be sold on the 3rd February, 1868; that the whole lot was sold by him without competition and for the amout of the taxes, $45.25, being one fifth or twenty per cent, of the whole value of the lot, to the secretary-t'easurer of the Township of North Ham, and as well upon the informalities of the local council, as upon the illegal adjudication to the secretary-treasurer of the said municipality, being the officer by and through whom all the proceedings taken in bringing the land to sale were had. The action was contested only by the corporation of North Ham, the corporation of the County of Wolfe having made default, and the secretary-treasurer adjudicataire, having appeared, but not pleaded to the action. The judgment of the Superior Court, at Sherbrooke, (SHORT, J.), is as follows: The Court, Considering that plaintiff was proprietor of the lot number 23, in the fifth range of the Township of North Ham, on the 3rd February, 1868, and that, on that day, the said lot of land was exposed for sale by the secretary-treasurer of the Municipal Council of the County of Wolfe, and sold to defendant, Gaudet, the secretary-treasurer of the Municipal Council of said Township of North Ham, for the municipal rates and taxes assessed and laid on said land, by the said corporation of the township of North Ham: Considering, further, that Gaudet, who was, at the time of the said sale of the said land for taxes, and had been, at the time the said rates and taxes

were assessed and laid, the secretary-treasurer of the said Municipal Council of North Ham, could not legally become the adjudicataire of the said land, at the said tax sale, doth adjuge and declare the said sale to be and to have been illegal, null and void; with costs against defendants, the corporation of the Township of North Ham and Gaudet; and the corporation of the County of Wolfe is hereby put out of court, without costs. This cause having been inscribed for review, before three judges in Montreal, the defendant, in his factum, contended that the secretary-treasurer of a local municipality could buy, at a county sale being conducted by the secretarytreasurer of the county, and, when a report has been made of lands in arrears for taxes by the local secretary, his functions, with regard to the sale ceased, and he has a right to bid, at a public sale, like any other individual. There is nothing in the law disqualifying persons in a situation similar to that of said secretary-treasurer from purchasing in every case of judicial sales. Even tutors and curators may purchase property of those over whom they are appointed, in cases of sale by judicial authority. (C. C., Art. 1484.) The only incapacity declared by law, in judicial sales, relates to sheriffs and other officers entrusted with the sale. - (C. C. P., Art. 676.)

MONDELET, J.: The court sees no reason to disturb the judgment below, which set aside a sale to the secretary-treasurer. The Code prohibits an agent from becoming a purchaser, and subordinates stand in the same position.

MACKAY, J.: The action is to have the sale set aside, and the adjudication to Gaudet declared illegal. There are various irregularities in the proceedings. The road was to be thirtysix feet wide, but, when the report came to be homologated, it was reduced to twenty-six feet. A front road cannot be less than thirty-six feet wide. C. S. L. C., chap. 24, sec. 40, sub-sec. 10: "No front road shall be less than thirty-six feet, french measure, in width, between the lines of the fences on each side thereof." The judge a quo found that the formalities required have not been observed. I can see many reasons for saying that the proceedings are irregular, and that the sale is null. The judge a quo went on to say that Gaudet as secretary-treasurer was incompetent to buy. This is also correct. The Code has not distinguished between chief agents and subordinates.

Judgment confirmed. (15 J. 249; 1 R. C. 473; 3 R. L. 448) BORLASE, attorney for plaintiff.

SANBORN & BROOKS, attorneys for defendants.

CERTIORARI

SUPERIOR COURT, Montreal, 29th April, 1871.

Coram TORRANCE, J.

EX PARTE LALONDE, petitionner for a Writ of Certiorari, et TREMBLAY et al., J. P., et BÉLANGER, prosecuting.

Held-That, although the right of certiorari has been taken away, under the Agricultural Act, still there are cases in which the courts will allow it, as for instance when the conviction does not disclose the offence. (1)

The petitioner applied for a writ of Certiorari, from the judgment rendered by the Justice of the Peace, at their Special Sessions, at the parish of St-Anne du Bout de l'Ile, in the county of Jacques-Cartier, under the Agricultural Act, on the 9th December 1870. The writ was granted against said judgment, which is as follows: "D'après les témoins en"tendus, nous condamnons Joseph Lalonde, défendeur en cette "cause, à un dollar d'amende, et les frais et dépens, payables d'ici à huit jours, et, faute de paiement, à quinze jours à la "prison commune du district de Montréal." The parties were heard before the Superior Court, at Montreal.

PER CURIAM: This case comes up on the merits, on a writ of certiorari. Under the Agricultural Act, the right of certiorari is taken away, but, still, there are cases in which the Courts will allow the certiorari to issue, and pronounce judg ment accordingly. This is certainly a case in which the writ of certiorari may issue. The conviction makes no mention of the reason for which the condemnation went against the defendant. The rule nisi must be declared absolute. The judgment is as follows:-"La Cour considérant que la conviction ne fait pas voir pour quelle offense le requérant a été condamné, déclare absolue la dite règle, et, en conséquence, casse et met au néant la conviction. (15 J., 251; 3 R. L., 450; 1 R. C., 475)

DUHAMEL & RAINVILLE, attorneys for petitioner.

BÉLANGER, DESNOYERS & OUIMET, attorneys for prosecutor

(1) 24 Vic., ch. 30, sec 15.

PROCEDURE.-DECLARATION.-PREUVE

SUPERIOR COURT, IN REVIEW, Montreal 30th Juanary 1871.

Coram MONDELET, J., MACKAY, J., BEAUDRY, J.

GUERIN VS MATHE

Held:-That, in matters of simple contract, in which there is no written agreement, a variance between the allegations and proof is not fatal, and it is sufficient that the real substance of the matter at issue be considered.

44

The plaintiff sued defendant, at Ste-Scholastique, in the district of Terrebonne, for $150, the price of a horse sold under verbal contract of sale, payable $50 cash, and the balance in May 1870. The action was instituted in May 1870. The defendant pleaded that he had bought the horse on trial, à l'essai. The real issue in the case was whether the horse was taken on trial or not. The defendant, examined as a witness, stated that the agreement was verbal between them, and, afterwards, that they related their agreement to one witness, whose deposition was given, and went to prove the sale of the horse for $150. The plaintiff contended that there was a commencement de preuve par écrit by the answers of defendant, and that the proof of the sale by the witness was legal. The judgment rendered by the Superior Court for the district of Terrebonne (BERTHELOT, J.), is follows: "La Cour, considérant que le défendeur n'a pas prouvé les allégués de son plaidoyer, l'en a renvoyé, et, considérant, de plus, qu'il est en preuve que le "demandeur a vendu au défendeur, le 12 avril dernier, un cheval étalon, pour le prix et somme de $150, dont le dé"fendeur a eu la livraison, et l'ayant eu en sa possession pen"dant plusieurs jours, après lesquels il l'a remis, sans droit "ni raison, dans l'écurie du demandeur, et nonobstant les dé"fenses de ce dernier, a condamné le défendeur à y aller "reprendre et chercher le dit cheval chez le demandeur qui sera tenu de lui laisser prendre, et, en outre, la cour condamne le défendeur à payer au demandeur la somme de $150, pour le prix convenu du cheval, le tout avec intérêt de "ce jour et les frais. Et la cour, attendu que le demandeur "s'est servi journellement du cheval, l'a renvoyé de son recours "pour les soins et la pension du cheval." The defendant carried this judgment to review, and the judgment was reformed. MONDELET: The plaintiff sued defendant, in the district of Terrebonne, for $150, the price of a horse. His Honor held that plaintiff had not proved the contract of sale alleged by him, and, on this ground, he would dissent from the judgment

66

rendered. Even if he could see that there was a contract of sale, he would only give plaintiff the sum of $50, because the bargain appeared to have been for $50 cash, and the balance iu May 1870. Now the present action was instituted in April 1870, and was premature as to the amount payable in May. On the first point, however, viz., the absence of a contract of sale, his Honour would dismiss the action altogether.

MACKAY, J., said the majority of the Court were of opinion that, in accordance with the jurisprudence of this country, the judgment of the Court below should be reformed, and that judgment should go for the amount due at the time the action was instituted. In matters of simple contract, the strictness of proof referred to by the learned president of the Court was seldom required. It had formerly been the custom, in England, to exact proof conformable to the matters alleged in the declaration, but, of late, in matters of simple contract, in which there was no written agreement, the rigor of the ancient rules was much relaxed, and, although, formerly, a variance between the allegations and proof would be fatal, it was now deemed sufficient that the real substance of the matter at issue should be considered. He cited English authorities to show that, though the English Courts formerly went to the extent of the learned president of the Court, still the best writers were now of opinion that the principle had been carried too far, whereby causes were often lost by small discrepancies. In this case, defendant said he bought the horse for a month on trial. In the opinion of the court the sale of the horse, for $150, was proved, but the sale on trial was not proved. When a difference arose between plaintiff and defendant, they, both being illiterate persons, stated their case to a third person, and this man proved that the sale was made for $150, namely, $50 in cash, and the remainder in May. The essence of the contract was proved. The real issue in the case was whether the horse was taken on trial or not. There was no proof of the horse being taken on trial, and the judgment of the Court below would, therefere, be reformed, and amount reduced to $50, the sum that was due when the suit was instituted, reserving to plaintiff his recourse for $100, the balance that was not due at the time the action was instituted.

The judgment in review is as follows: "The Court, considering that there is error in the judgment of the 10th May, 1870, to wit, in granting beyond what ought to have been plaintiff, and in condemning defendant in the whole $150; "Considering that the veritable issue, between the parties in this cause, was as to whether defendant had bought from plaintiff the horse (étalon) referred to in Plaintiff's déclaration, or whether the horse was delivered à l'essai, and taken