award so made shall be binding upon all parties:"-Held, that this did not preclude the jurisdiction of the Court where as here the parties were not merely unable to agree as to the amount of compensation but the municipal corporation wholly repudiated liability. Brohm v. Township of Somerville, 11 0. L.R. 588 (D.C.). Highway-Expropria -Street widening tion By-law-Resolution.]-On suit by three ratepayers of a municipality to set aside a resolution of the council and for reimbursement of moneys paid as indemnity, in virtue thereof, for lands said to have been appropriated by the municipality for widening streets :-Held, that, in the absence of a by-law authorizing the expropriation of the lands for such purpose the resolution was invalid and should be annulled and that the moneys so paid should be returned to the municipality. Marsan v. Guay, Q.R. 28 S.C. 145 (Sup. Ct.). -Township bridge-User by other municipalities-Repair and maintenance.]-By section 617a of the Con. Mun. Act 3 Edw. VII. ch. 19(O.), where a township bridge is over 300 feet in length the township council may, by resolution, declare that by reason of such length, and that it is being used by inhabitants of municipalities other than the township, and is situated on a highway, being an important road and affording means of communication to several municipalities, it is unjust that the township should be liable for its maintenance and repair and that such liability should be imposed on the county, an application may be made to the county Judge to have it so declared:-Held, that such user need not be by the inhabitants of municipalities within the county, the material point being its extensive use for travel by neighbouring municipalities, whether in or out of the county; nor that the road which affords such means of communication should either be a line of road extending through the municipalities referred to or a main trunk road with branches into different municipalities; all that is necessary is that it should be an "important road" connected with other roads or ways forming a means of communication, whereby the inhabitants of such municipalities may pass and repass over the said bridge. Township of McNab v. County of Renfrew, 11 O.L.R. 180 (D.C.). HOMESTEAD LAWS. Agreement to assign interest in homestead before issue of patent-Illegality.]Under section 42 of the Dominion Lands Act, R.S.C., ch. 54, as re-enacted by section 5 of 60 and 61 Vict. (D.), ch. 29, an agreement made by a homesteader, before issue of the patent and before procuring a certificate of recommendation for patent from the local agent, to assign and transfer an interest in the homesteaded land to another person, though made in good faith and for an adequate consideration, is absolutely null and void and cannot be enforced at the suit of such other person. Abell v. McLaren (1901), 13 M.R. 463 not followed. Cumming v. Cumming, 15 Man. R. 640 (Dubuc, C.J.). HOTELKEEPER. Deposit by traveller-Liability of innkeeper.]-A person making a prolonged stay at a hotel and lodging by the month, or otherwise, is a traveller within the meaning of Article 1233 (4) of the Civil Code and may make proof by oral testimony as to the deposit of his luggage. This may be done under the first paragraph of that article where the innkeeper is a merchant and the deposit something in respect to matters of a commercial nature. (2) An innkeeper who places luggage of a traveller in an unlocked room, open to everybody, is at fault and guilty of negligence within the meaning of the second exception of Article 1815 C.C. The loss of the luggage resulting therefrom renders him liable for dam ages exceeding $200 to the extent of the total value. Windsor Hotel Co. v. Greene, Q.R. 14 K. B. 56. Sale of intoxicating liquors.]— See LIQUOR LICENSE. HUSBAND AND WIFE. I. COMMUNITY OF PROPERTY. III. ALIMONY AND SEPARATION. VI. MARRIAGE SETTLEMENT. I. COMMUNITY OF PROPERTY. Married woman Obligation contracted before marriage Community-Action by husband.]-The right of the husband to sue upon an obligation contracted in favour of the wife before marriage accrues to him solely as administrator of the community and, consequently, in an action based upon such obligation the marriage and the community of property resulting therefrom must be specially alleged. In an action upon such an obligation brought by the husband as if it had been made in his favour, the mere production of the deed and a marriage certificate is insufficient to establish his right to recover the debt. Massicotte v. Pronovost, Q.R. 28 S.C. 44 (Ct. Rev.). II. SEPARATE PROPERTY. -Married woman-Marchande publiqueSeparation as to property.]—(1) A wife, common as to property, who is a public trader and as such procures a loan by means of false representations, binds her husband to the payment of the debt. (2) When, under such circumstances, the wife obtains a judgment of separation as to property from her husband, renounces the community and the report of the praticien is homologated, the Court adjudicating on the suit of the lender, has power, so far as may be necessary to give effect to its judgment, to revoke the judgment in separation, the renunciation to the community and the homologation of the report of the praticien. Samson v. Pelletier, 28 Que. S.C. 394 (Hutchison, J.). -Separation as to property- Execution of judgment-Inventory-Art. 1098 C.P.Q.] -The wife may, at any time before the death of the husband, execute a judgment ordering separation as to property, unless deprived of that right by a judgment of the Court. (2) Community having been dissolved from the date of the demand for separation, the property to be divided is what existed at that date and it is the inventory of such property which should be homologated. Brière v. Marcotte, 7 Que. P.R. 376 (Pagnuelo, J.). -Contract of hiring with husband-Proprietary interest-Separate property.]—A contract by a married woman with her husband to cook in the lumber woods for a crew of men, whom her husband had engaged to get lumber for a third person under an agreement at a fixed price per thousand off the land of the third person, who was to furnish the supplies, is not a valid contract under "The Married Women's Property Act" (Con. Stat. 1903, c. 78), and can not be enforced as a lien under The Woodmen's Lien Act (Con. Stat. 1903, ch. 148.) Patterson v. Bowmaster, 37 N.B.R. 4. -Separate estate-Wife's funeral expenses.]-The husband is liable for the funeral expenses of his deceased wife and cannot claim to be indemnified therefor out of her separate estate. Re Sea Estate, 11 B.C.R. 324 (Duff, J.). -Married woman-Judgment summonsCommittal.]— See DIVISION COURT. III. ALIMONY AND SEPARATION. -Necessaries for wife-Omission of husband to provide-Injury to health-Necessity for proof of Criminal Code, secs. 210 (2) 215.]-Under sec. 210, sub-sec. (2), of the Criminal Code, which deals with the non-support of a wife by a husband when a legal duty exists on the husband's part to provide necessaries for his wife, the criminal responsibility for the omission to do so only arises when it is proved either that her death has been caused or her life endangered, or her health is permanently injured or likely to be by such omission. When, therefore, the husband was convicted on the charge of having "unlawfully omitted, without lawful excuse, to supply his wife and child with the necessaries of life, whereby the health of each of them became, and was and is likely to become permanently injured," and the evidence shewed that the wife and child were living with the wife's mother, who supplied all her needs: -Held, that the charge was not sustained, and the conviction quashed. was The King v. Wilkes, 12 O.L.R. 264 (C. A.). -Reduction of alimentary pension-Action.] The proper proceeding to obtain the reduction of an alimentary pension is by action and not by petition in the cause in which it was granted. McCraw v. Vaillancourt, 7 Que. P.R. 396 (Fortin, J.). -Alimony-Cruelty Insufficient evidence of-Non-revival of prior condoned acts.]— The Courts scrutinize very closely retaliatory acts of alleged violence and cruelty on the part of a husband arising out of the wife's headstrong and irritating conduct, and will refuse, unless such acts are accompanied by intemperate and excessive violence, to call them acts of cruelty, and so effective in reviving prior condoned acts of cruelty and misconduct. In 1895 the plaintiff and defendant, who prior thereto had been living together, were married, but thereafter only lived together at intervals, the plaintiff living apart from defendant, and carrying on what she called a hospital for pregnant women. In 1904 on the defendant insisting on it, the plaintiff returned to the defendant's house, everything going on satisfactorily until the plaintiff desired to carry on the alleged hospital business in the house, which the defendant refused to consent to. The plaintiff then rented a house for herself, and during the defendant's temporary absence, stripped the defendant's house of nearly all the furniture, removing it to her own house. This greatly incensed the defendant, and on the plaintiff using foul and abusive lanas to him, he committed, gauge the plaintiff alleged, an aggravated assault on her, and by his conduct rendered it unsafe for her to live with him, and revived prior condoned acts of cruelty and misconduct :Held, that the defendant's acts were not of such an excessive and intemperate a character as would render it unsafe for the plaintiff to live with him, and revive the prior condoned acts, for not only did it appear that the alleged assault was grossly exaggerated, but was brought on by the plaintiff herself, whose whole object was to goad the defendant into acts of violence which would justify an action for alimony. Payne v. Payne, 10 O.L.R. 742 (D.C.). -Alimony-Wife leaving husband-Justification-Cruelty-Conduct amounting toApprehension of violence.]-Where a husband's persistent course of harsh conduct towards his wife, a woman of delicate constitution, created mental distress sufficient to impair her health, and did in fact injure it appreciably during the married life together, and where his language of threat and menace and his habitual demeanour were such as to create a well-founded apprehension that she would suffer worse and more injurious treatment and hardship if she did not submit implicitly and submissively to anything he might choose to do or say:-Held, Street, J., dissenting, that this conduct and the cumulation of circumstances detailed in the evidence amounted to matrimonial cruelty, although no bodily violence was inflicted; and the wife was justified in leaving her husband, and was entitled to alimony. Judgment of Boyd, C., affirmed. Lovell v. Lovell, 11 O.L.R. 547 (D.C.). Separation from bed and board-Provision for costs of suit.]-It is only in exceptional cases that the wife can obtain an order to provide for her costs of suit in an action for separation from bed and board. such as the necessity of money to secure a special agent for the discovery of witnesses or to get information in respect to accusations brought against her or to give explanations of circumstances. Lecavalier v. Labelle, 7 Que. P.R. 472 (Pagnuelo, J.). -Separation a mensa et thoro-Dissolution of community-Report of accountant.] -A defendant who has failed to make the inventory of the property of the community at the time of its dissolution is liable for the costs incurred for an accountant subsequently appointed, even where the plaintiff has nothing to be recovered out of the common property. Brière v. Marcotte, 7 Que. P.R. 405 (Fortin, J.). -Divorce - Affidavit of documents - Discovery tending to shew adultery.]-In a petition for dissolution of marriage, the respondent applied for an affidavit of documents:-Held, on the respondent filing an affidavit shewing that discovery is not sought for the purpose of proving the adultery of the petitioner, but for the purpose of discovering documents relating to the matters in question. other than the misconduct of the petitioner, that discovery ought to be ordered. Levy v. Levy, 12 B.C.R. 60. -Alimony-Misconduct of wife before marriage Condonation.] (1) Unchastity before marriage and concealment of it from the husband until the birth of a child is not sufficient to make the marriage null and void or to disentitle the wife to alimony. (2) Under section 30 of the King's Bench Act, R.S.M. 1902, ch. 40, a wife will be entitled to alimony if, by the law of England as it stood on the 15th day of July, 1870, she would have been entitled to a decree for the restitution of conjugal rights. By that law nothing but cruelty or adultery on the part of a wife after marriage would be a bar to an order for such restitution or entitle the husband to a judicial separation. (3) Resumption of cohabitation is a necessary ingredient of condonation by the husband of any matrimonial offence committed by the wife, such as would prevent him from relying upon it as a defence to an alimony suit. (4) A wife abandoned by her husband is entitled to the engagement ring which he had given her before marriage, unless she had absolutely surrendered it to him; but she is not, under ordinary cir cumstances, entitled to demand and recover possession of wedding presents given by friends of the husband at the time of the marriage. A. v. A., 15 Man. R. 483 (Perdue, J.). -Interim alimony-Jurisdiction of Court to grant.]-The Court has jurisdiction to grant interim alimony pending an action for divorce. Mellor v. Mellor, 11 B.C.R. 327 (Martin. J.). -Separation from bed and board-ProofArt. 1100 C.P.]-(1) An action in separation from bed and board by the husband against his wife for desertion, will not lie if taken four days only after the departure of the wife, while she was sick. (2) The Court will then fix a delay within which the wife should return to her husband, and in the meantime, no adjudication will be made for the custody of the child. Tessier v. Bélanger, 7 Que. P.R. 335 (Doherty, J.). -Separation from bed and board-"Movable effects" Arts. 204-205 C.C.]-The meaning of the words "movable effects of the community" in Arts. 204 and 205 of the Civil Code is not limited to the furniture which furnishes the common domicile, but includes all the movable property which belongs to the community, of whatever nature it may be. Whether a saisie gagerie conservatoire could have been made under the provisions of Art. 204 of the C.C. or not, if the same is justified by the provisions of law concerning the issue of writs of seizure before judgment, a petition to quash said saisie gagerie will be dismissed. Lachappelle v. Gagné, 8 Que. P.R. 18 (Archibald, J.). -Alimentary pension--Provisional allow'ance. While an action for alimentary pension is pending by the wife, she may, on petition, obtain an order granting her a provisional allowance. Duckett v. Turgeon, 7 Que. P.R. 457 (Fortin, J.). -Separation as to property-Taking accounts Prescription.] - An understanding between husband and wife to avoid the appointment of an accountant in an action for separation as to property and a mensa et thoro can have no legal effect. The right to have accounts taken is prescribed only by the lapse of 30 years. Brière v. Marcotte, 7 Que. P.R. 352 (Lavergne, J.). -Separation Alimentary allowance.] Where the husband renders life in common impossible, the wife has a right to remove from the conjugal domicile and demand an alimentary allowance without recourse to an action for separation à mensâ et thoro. In order to obtain an order for such allowance it is sufficient to shew that the husband does not provide proper lodgings and is not in a position to maintain the wife in a safe and respectable manner. Gravel v. Lahoulière, Q.R. 14 K.B. 385. IV. WIFE'S AUTHORITY TO SUE OR DEFEND. -Second marriage before dissolution of the first-Good faith of parties-Civil effects -Authorization of wife by husband to appear in judicial proceedings.]-A second marriage contracted in good faith, before the dissolution of the first, produces civil effects, and, until it is declared null, the wife cannot appear in judicial proceedings (ester en justice) without her de facto husband, or his authorization. An action brought by her alone and unauthorized will therefore be dismissed on exception to the form. Fitzallen v. Rieutard, 27 Que. S.C. 296 (C.R.). -Woman sued as a spinster-Marriage between issuance and service of writ.]—An action directed against a woman described as a "fille majeure" will not be dismissed on exception to the form because, between the issuance and the service of the writ, the defendant contracted marriage, if the plaintiff was not made aware of her change of status. The Court will, however, allow the plaintiff to call in the defendant's husband as a defendant, as head of the community. Melloon v. Coffey, 7 Que. P.R. 436 (Lemieux, J.). -Wife separated as to property-Public trader Authorization by husband.] - A married woman, separate as to property and a public trader, may, without the authorization of her husband, file a declinatory exception to an action brought against her where it is a matter of mere administration in connection with her affairs. Bernstein v. Synch, 7 Que. P.R. 443 (Lavergne, J.). -Married woman-Right of appeal Authorization.]-A married woman separate as to property has no right to appeal from a judgment rendered against her in a hypothecary action without authorization by her husband. An inscription in review from such a judgment made by her alone will be quashed upon motion to that effect. Renaud v. Lebeau, Q.R. 27 S.C. 360 (Ct. Rev.). Married women Legal community — Right of action.]-The action was instituted by Léocadie Vézina, widow of Napoléon Raymond, deceased, who died from injuries sustained from the neglect of the company. By the action, the widow claimed damages, as well on her own behalf as in her capacity of tutrix to her minor children, issue of her marriage with deceased. While the action was pending and before judgment on the merits, she was married a second time to Albert Duguay, became common as to property with him under the law respecting legal community, and she and her second husband were subsequently appointed joint-tutors to the minor children. By the judgment of the Superior Court affirmed on review the defendants were adjudged to pay to the plaintiffs, personally, damages in the sum of $300 for the female plaintiff personally, and in the sum of $2,700 to the plaintiffs in their capacity of joint-tutors to the children. At the hearing of the appeal an objection, not taken in the factum nor raised in the Courts below. was for the first time urged by the appellants, that, upon her second marriage, the female plaintiff was deprived of her right of action for the recovery of the damages claimed by her personally, that in respect to this part of the action there had been no reprise d'instance in the name of her second husband and that, consequently, the judgment appealed from was invalid is so far as it awarded personal damages to her. The appeal was dismissed, but the Court, under the provisions of sections 63 and 64 of the Supreme and Exchequer Courts Act, ordered that the record should be amended so as to shew that the amount for which the judgment was rendered is payable to both Duguay and his wife as communs en biens. The North Shore Power Company v. Duguay, 37 Can. S.C.R. 624. V. DOWER. See that title. VI. MARRIAGE SETTLEMENT. -Marriage covenant-Gift of future property-Possession by husband-Ownership -Execution - Opposition to seizure and sale.]-In the marriage contract, the donation to the wife "of all the furniture which the future husband should in future have in his residence" is a donation of future property and, of its nature, made in contemplation of death. Such a donation does not take effect till the death of the husband and, during his lifetime, the wife has no right of property in the chattels affected and can not maintain an opposition to withdraw them from seizure and sale under execution to satisfy a debt due by the husband. Dorval v. Préfontaine, Q.R. 14 K.B. 80. -Marriage contract before Civil CodeDower.] (1) A stipulation of dower in a marriage contract executed before the Civil Code came into force, of a sum une fois payée et sans retour meant that, if children were born of the marriage, the wife, in case of survival, should have the usufruct and the children the ownership, of the dower money. (2) Children, in order to claim their dower, are not bound to renounce the succession of their father, when it has devolved by his will on a universal legatee who has accepted it. Kirkpatrick v. Birks, 14 Que. K.B. 287. VII. ANNULMENT OF MARRIAGE. -Nullity of marriage-Impotence in the man-Non-consummation.] Where consummation of the marriage is, on the part of the husband, a practical impossibility, wife is entitled to a decree of nullity of marriage. P. v. P., 11 B.C.R. 369 (Martin, J.). HYPOTHEC. Transfer of hypothecary claim-Signification Acceptance by personal debtor.](1) When the transfer of an hypothecary claim has been duly registered and signification of it has been made with delivery of a copy bearing a certificate of its registration to the possessor (détenteur) of the hypothecated property; a tender by the personal debtor to the transferee of a part of the claim as the balance due is a suffi cient acceptance by such personal debtor of the transfer under Art. 1571 C.C., and relieves the transferee from the obligation to serve the transfer upon him. (2) When an action is brought by a minor who comes of age pending the suit, and before plea filed, the defendant cannot at the hearing on the merits ask for its dismissal on that ground. The provision of law that the actions of minors are brought in the name of their tutors is for the protection of the minors who can cure such a departure from it by continuing the suit after coming of age. At most, a defendant can take advantage of it by exception to the form; it is too late to do so after issue joined on the merits. Daoust v. Daoust, 28 Que. S.C. 356. Demand of possession Subsequent Improvements Mistake of title.]-The defendant and a life tenant of certain lands lived together thereon, the defendant bona fide believing that the land was or would be hers on the life tenant's death. After the life tenant's death the defendant continued living on the land and made improvements thereon. About a year and a half after the life tenant's death the defendant was served with a notice demanding possession, and stating that unless possession was given within a reasonable time a writ would be issued. No action was taken upon the demand, and the defendant, who was an illiterate woman, remained in possession, and under such belief of title continued to make improvements; and it was not until some seven years afterwards, when another notice had been served upon her, that an action was brought to recover possession, the bulk of the improvements having been made during the period between the two notices:-Held, that under the circumstances the defendant was entitled to the value of her improvements. Corbett v. Corbett, 12 O.L.R. 268 (Mabee, J.). |