could not understand why parties should not be allowed to settle their differences as they themselves might think proper. It was right that the courts should not be ousted of their jurisdiction; but the case of Avery v. Scott had decided that parties might make an agreement whereby there should be no cause of action until there had been an arbitration; and this enactment (the 17th and 18th of Victoria, chap. 125, sect. 11) had for its object to give those who were parties to such an agreement to refer the full benefit of it. That benefit could not be enjoyed if a man could bring an action for a clearly admitted demand, at the same time that he was liable to a greater demand arising out of the same contract. There was no dispute that freight was due for the month which had expired, and there was a claim by the defendant on the ground that there had been a breach of an implied warranty of seaworthiness; and it might have been the intention of the parties that such damages should be referred, and that an arbitrator should see to which side the balance was due. He (Lord Campbell) thought the action ought to be stayed and that the arbitration ought to proceed. The other judges expressed similar opinions. Rule absolute.' "In whatever form this clause is put," says Angell, 354, "it will not take away the jurisdiction of the ordinary courts of law." In modern France arbitration is not viewed unfavorably, but it is absolutely necessary, in any agreement for it, to state its objects, and the names of the arbitrators. C. Proc., 1006, 1 Alauzet, p. 386. Dalloz of 1844, 1 p. 97. In old France such agreement was good, though no arbitrators were named. trations are too general. Such is the clause at the head of this section, under which such decisions as in Scott v. Phoenix Ass. Co., Stuart's Rep., and Kill v. Hollister, 1 Wils., would have to be repeated to-day. In Goldstone et al. v. Osborn et al.,1 by one of the conditions in a policy it was stipulated, that "if any difference should arise on any claim, it should immediately be submitted to arbitration," and directed how the arbitrators should be chosen, and added, that no compensation, damages or debt should be payable until after an award determining the amount thereof should be made; it was nevertheless held that the insured might maintain an action on such policy notwithstanding the condition; as the insurers denied the general right of the insured to recover anything, and did not merely call in question the amount to be recovered. The plaintiff had never been unwilling to agree to a reference as to the amount of his loss, to be paid to him; but the defendants insisted that the condition clause meant reference even as to right whatever, to receive anything, and so thought the judge at the trial. 2 EXCHEQUER COURT OF CANADA. A special sitting of the Court, for the trial of causes, etc., will be held at the Court House, Montreal, commencing on Tuesday, April 21st, at 11 a.m. Special sittings of the Court will be held during the year 1891, as follows: At the Court House, St. John, N.B., commencing on Tuesday, 26th May. At the Court House, Charlottetown, P.E.I., commencing on Tuesday, 2nd June. At the Court House, Sydney, C.B., com 12 Carr. & P. 2 For further on arbitration as a condition precedent, see 16 Alb. L. J. 465. Also 21 Am R. p. 80, (a Pennsyl In Lower Canada if parties state the ques-mencing on Tuesday, 9th June. tions between them, agree to refer to arbitrators, name them, and state their powers, and that no suit shall be brought but for the amount that shall be found due by the arbitrators, and to give effect to the reference de- Aberayron Ship Ins. Society, 17 Eng. Rep., Law Rep., rogate from the common law, their agree-1Q. B. Div. 563. In the case in 21 Am. Rep., the ment is valid, and will bar any suit brought before such report of arbitrators. vania case.) But the latest debate is in Edwards v. clause was held of no force to oust ordinary courts. But that a condition that shall order the amount of loss to be determined by arbitrators (loss admitted and Usually the clauses meant to secure arbi- liability admitted) would work. If in a building con 1 Q. B., Nov. 1856. tract certificate of architect be condition precedent, this works. At the Court House, Halifax, N.S., commencing on Tuesday, 16th June. At the Court House, Quebec, commencing on Tuesday, 23rd June. At the Court House, Winnipeg, Manitoba, commencing on Thursday, 1st October. At the Court House, Regina, N.W.T., commencing on Monday, 5th October. At the Court House, Calgary, N. W.T., commencing on Thursday, 8th October. At the Court House, Vancouver, B.C., commencing on Tuesday, 13th October. At the Court House, Victoria, B.C., commencing on Tuesday, 20th October. At Ottawa, on Tuesday, 10th February; on Tuesday, 24th March; on Tuesday, 28th April; on Tuesday, 15th September; on on Tuesday, 17th November. General Order. In pursuance of the provisions contained in the 55th section of "The Exchequer Court Act," it is ordered that the following rules in respect of the matters hereinafter mentioned shall be in force in the Exchequer Court of Canada: 1. Rule 116 of the Exchequer Court of Canada is hereby repealed and the following substituted therefor: TRIALS. Rule 116. When any action is ripe for trial or hearing, a Judge may, on application of any party and after summons served on all parties to the suit, fix the time and place of trial and hearing, and may direct when and in what manner and upon whom notice of trial or hearing together with a copy of the Judge's order is to be served, and such notice and order shall be forthwith served accordingly. Sittings of the Exchequer Court of Canada, at which any action ripe for trial or hearing may be set down for trial by either party thereto, upon giving the opposite party ten days' notice of trial, or by consent of parties, and without taking out any summons, may be held at any time and place appointed by a Judge, of which notice shall be published in the Canada Gazette. Such sittings will be continued from day to day until the business coming before the Court is disposed of. On the first day of each of such sittings, the Court will hear any argument of demurrer, special cases, motion for judgment, appeal from the report of the registrar or other officer of the Court, or other motion, application or business which cannot be transacted by a judge in Chambers. 2. Rule 120 of the Exchequer Court of Canada is hereby repealed and the following substituted therefor: Rule 120. In case the Judge is unable from any cause to attend on the day fixed for any sitting or for the trial of any issue, such sitting or trial shall stand adjourned from day to day until he is able to attend. 28. INSOLVENT NOTICES, ETC. Adolphe Dépatie, lumber merchant, Montreal, Mar. Re F. X. Comptois.-Millier & Griffith, Sherbrooke, joint curator, March 28. Re John Couturier, trader, Murray Bay.-H. A. Bedard, Quebec, curator, March 26. Re Antoine Desjardins.-Bilodeau & Renaud, Montreal, joint curator, March 31. Re Dufour & Couturier, and A. Dufour.-H. A. Bedard, Quebec, curator, March 26. Re Pierre Fleury, fils.-Millier & Griffith, Sherbrooke, joint curator, March 28. Re Guay & Co., (Amanda Gagnon), Yamachiche.O. Lesieur, Yamachiche, curator, Feb. 27. Re Joseph Hamel.-E. Poulin, Montreal, curator, March 24. Re John Heney et al.-Millier & Griffith, Sherbrooke, joint curator, March 19. Re A. Labelle & Co., Montreal.-W. A. Caldwell, Montreal, curator, March 31. Re Raphaël Larocque, trader, Upton.-J. O. Dion, St. Hyacinthe, curator, April 2. Re Joseph Lecompte, St. Monique.-Bilodeau & Renaud, Montreal, joint curator, March 26. Re F. X. Letourneau & Co., Quebec.-D. Arcand, Quebec, curator, April 2. Montreal, joint curator, March 31. Re Peltier & Guy. Montreai.-Kent & Turcotte, Dividends. Re Crépeau & Duval.-First and final dividend, payable April 20, at office of F. Valentine, Three Rivers. Re Magloire Dansereau.-First and final dividend, payable April 21, C. Desmarteau, Montreal, curator. Re Edward Montgomery.-First dividend, payable April 16. Bil deau & Ren ud, Montreal, joint curator. Re Z.Vaudry, plumber, Quebec.-N. Matte, Quebec, curator, April 20. Separation as to property. Marie Célina Boucher vs. Joseph Horace Chabot, grocer Montreal, March 28. Mary Ann Masters vs. Frederick Richard Cole, trader, Montreal, April 1. Alice Mayrand vs. Zephirin Champoux, trader, parish of Ste. Gertrude, March 26. Marie Anne St. Michel vs. David Damphousse, St. Timothée, March 31. In Reg. v. Mead, 1 Burr. 542, a case in which John Wilkes endeavoured to obtain re-possession of his wife by habeas corpus, Lord Mansfield held good a return to the writ that Mrs. Wilkes was living apart under a separation deed, but his lordship added that where a husband has not waived his right by such a deed, he has a right to sieze his wife wherever he finds her. Mr. Justice Coleridge (In re Cochrane, 8 Dowl. 630), also held that a husband is entitled to exercise a certain degree of constraint towards a wife till she should be willing to return to her conjugal duties. A partially conflicting decision, by the Queen's Bench, is Reg. v. Leggatt, 18 Q. B. 781, where the court refused a habeas corpus to a husband for the purpose of restoring to him his wife, who was living with her son. Justices Cave and Jeune, sitting as a Divisional Court, in the Jackson case which has been causing so much stir in England, followed the dictum of Lord Mansfield in the Wilkes case, to the effect that a husband may seize his wife wherever he finds her, and refused to grant a habeas corpus to bring up the body of a wife detained by her husband who had forcibly seized her. This decision has been reversed by the Court of Appeal, and the judgment is the more emphatic because it appeared that the husband had recently obtained a decree for restitution of conjugal rights, and the seizure by the husband was in aid of the decree. As this judgment of the Court of Appeal apparently overrules decisions which have been generally accepted, it is probable that the House of Lords will be called upon to settle the law upon this interesting subject. It is somewhat extraordinary that so important a point should not have been determined by the highest authority up to this date. In the important case of Vagliano v. Bank of England, particulars of which will be found in 12 Leg. News, pp. 38, 39, the decision of Mr. Justice Charles, there commented on, was subsequently affirmed by five out of six members of the court of appeal. The case was then taken to the House of Lords, where the judgments of the courts below have been reversed, six judges against two holding that the loss on the bills of exchange forged by Glyka must be borne by Vagliano Brothers. The final judgment has the concurrence of seven judges in all, while that which has been overruled has received the assent of eight judges. The Lords had the case nine months under consideration. EXCHEQUER COURT REPORTS. This is a series of reports recently instituted, independent of the Supreme Court Reports. They are printed by the Queen's Printer, and published, under authority, by the Registrar of the Court, Mr. L. A. Audette, LL.B., Advocate. The Reporter is Mr. Charles Morse, LL.B., barrister-at-law, official reporter to the Exchequer Court. Volume I contains all the leading Exchequer Court cases hitherto unreported, and there is also an appendix containing short notes of all the Exchequer Court cases which have been published from time to time in the Supreme Court Reports. Among the cases of special interest in this volume may be mentioned The Queen v. The J. C. Ayer Company in which an important question under the Customs Act was decided; and the famous case of Paradis v. The Queen, subsequently taken to the Supreme Court where the judgment was reversed in part, and the award of arbitrators restored. Part 1 of Vol. II has also been issued, containing 17 reports. The work appears to have been executed with The head notes are clearly exgreat care. pressed and the reports are not too long, the opinions of Mr. Justice Burbidge having the merit of being concise and free from unnecessary matter. As many members of the profession are probably in ignorance that this series of reports has been commenced, we have much pleasure in directing attention to these issues. COUR SUPÉRIEURE. SAGUENAY, 4 juin 1885. [En Chambre.] Coram ROUTHIER, J. DUCHESNE V. Bois et al. Par exception à la forme, les défendeurs plaidèrent: Que le bref était adressé aux défendeurs. Qu'il n'apparaissait pas par la requête libellée et l'affidavit produit, que le protonotaire eût juridiction pour ordonner l'émana Bref de prohibition - Protonotaire - Exception|tion du bref; à la forme. JUGÉ:-Que si le protonotaire, en l'absence du juge, accorde un bref de prohibition, l'avis | requis par l'article 465, C. P. C.. doit être donné, et qu'à défaut de tel avis, le bref sera débouté sur exception à la forme ; Que l'on ne peut légalement faire signifier le bref et la requête libellée séparément et à des jours différents; Que le bref aurait dû être adressé aux huissiers avec ordre d'assigner en la manière ordinaire. Le 19 février 1885, le requérant fit signifier aux défendeurs copie de la requête libellée contenant les griefs contre une conviction le condamnant à l'amende pour vente de boisson sans licence. Deux jours auparavant, le protonotaire du district de Saguenay, avait apposé sur cette requête, l'ordre suivant: “Vu la requête cidessus, et la déposition qui l'accompagne, et l'absence d'un juge de la Cour Supérieure de ce chef-lieu, et vu qu'il est urgent de ce faire, d'après la preuve qui n'a été fournie, j'ordonne qu'un bref de prohibition émane, rapportable le 16 mars 1885. Chs. DuBerger, P. C. S., D. S." Le 26 février 1885, le procureur du requérant produisit au greffe un precipe requérant un bref de prohibition assignant à comparaître le 16 mars: "Pour alors et là répondre à la requête libellée à être annexée au dit bref et produite avec icelui, requête libellée dont les dits défendeurs en prohibition ont reçu copie." Conformément au dit precipe, le bref fut émané assignant à comparaître: "Pour répondre à la demande contenue en la requête libellée et produite avec les présentes, et dont vous et chacun de vous (les défendeurs) avez reçu copie." Ce bref fut signifié aux défendeurs, le 2 mars 1885, seul, et sans que la requête libellée déjà signifiée ou une copie d'icelle, fut annexée au dit bref. Que de fait il n'avait point telle juridiction, et que d'ailleurs l'avis requis par l'article 465, C. P. C., pour permettre d'exécuter l'ordre du protonotaire, n'avait pas été donné. Réponse générale de la part du requérant. Les défendeurs citèrent: Arts. 48, 50, 56 et 1031, C. P. C., 35 Vict., c. 6, Et le requérant, 4 Q. L. R. 335; 1 Q. L. R. 209 Que le bref de prohibition émané en cette cause l'a été sur l'ordre du protonotaire de cette Cour en l'absence du juge de ce district sans aucun avis préalable an dit défendeur, P. N. Bois, de la requête demandant le dit bref, et que la juridiction exceptionnelle du protonotaire en pareil cas, est soumise à la formalité d'un avis préalable (C. P. C., art. | 465); Que la requête libellée produite en cette cause a été signifiée au dit défendeur après le dit ordre du protonotaire et avant l'émanation du dit bref; Que le bref émané subséquemment a été signifié au dit défendeur, sans requête y-jointe, ni déclaration y-contenue; Que d'après les lois de procédure civile, l'exploit d'ajournement, pour être complet et valable doit se composer d'un bref au nom du Souverain et d'une déclaration des causes de la demande insérée dans le bref ou y annexée; et que la signification d'une déclaration ou requête libellée sans bref et avant l'émanation d'aucun bref, et la signification subséquente d'un bref sans déclaration ni requête, ne constituent pas une assignation régulière et légale; Nous, soussigné, juge de la Cour Supérieure, maintenons l'exception à la forme produite en cette cause, déclarons irrégulière et nulle l'assignation du défendeur P. N. Bois, et renvoyons quant à lui le bref de prohibition et la requête libellée en cette cause, avec dépens, sauf au demandeur à se pourvoir, s'il y a lieu.” FIRE INSURANCE. (By the late Mr. Justice Mackay.) [Registered in accordance with the Copyright Act.] CHAPTER XI. ADJUSTMENT AND SETTLEMENT OF LOSSES. [Continued from p. 119.] one arbitrator and assignee must agree? Semble, no. Reference to valuators may be meant sometimes, where the term arbitrators is used. Arbitrators may be bound to take evidence, or to call for it, while valuers have merely to look at goods. 1 § 254. Reference to be made a condition pre-ciety, Queen's Bench, A.D. 1876, then in In Edwards v. Aberayron M. Ship Ins. So cedent. The terms of the policy, to oust the law courts, must make the reference a condition precedent to the right of the assured to institute a suit at law. As in Scott v. Avery,' the loss had, before suit, to be ascertained by a committee. Exch. Chamber, there was the following arbitration clause, and clause against bringing actions: Art. 39. The directors shall have full power to determine all disputes between the society and members concerning insurances, or claims upon the society; and the deIn a Georgia case, in 1874, Liverpool, Lon- cision of the directors shall be final and conclusive as well upon the society as the memdon & Globe Ins. Co. v. T. H. & W. Creighton,2 it was held that the condition, that in case of bers; and no member shall be allowed to difference of opinion on the amount of the bring any action or suit against the society for any claim upon the society except as is loss, such difference shall be submitted to the judgment of two disinterested men mutually provided by these presents, and the directors may, if they think fit, cause any of such chosen who, if they disagree, shall name a claims and the amount to be paid to any third whose award shall be binding upon member to be referred to the decision of an both parties, will not oust the courts of law of jurisdiction, unless made a condition pre-final and conclusive on the society and claimaverage adjuster, and his decision shall be cedent to the right to sue. In New Hampshire a condition for arbitration as to loss amount, but fixing no mode of securing arbitration is void, as an attempt to oust the ordinary courts of jurisdiction. 3 Limitation of suit to 12 months is valid, yet if coupled with condition for arbitration agreement may defeat itself, for instance where either party can refuse to go into the arbitration (arbitration clause being loosely worded.)-Ib. Arbitration clause in New York and Illinois, Johnson v. Humboldt Ins. Co., Hay v. Star P. Ins. Co., (both cases to be seen in 33 Amer. Rep.) "No suit for recovery of any claim by "virtue of this policy shall be sustainable “until after an award shall have been fixing "the amount of such claim." Semble, such clause is lawful. Are the persons here referred to arbitrators? If so, are they the arbitrators of C. P. C. 1341, 2, 3? Is Art. 1334 applicable, that the parties must be heard and evidence taken and reduced to writing, and Art. 1351, that 15 House of Lords cases. = 5 Bennett. Leach v. Republic F. Ins. Co., p. 97, Alb. L. J. of 1880, Vol. 1. ant, and no appeal shall be allowed there from. The plaintiff claimed for a ship lost. The society repudiated the claim. The plaintiff sued. Defendant gained in the Queen's Bench; the Court referred him to the procedure of Art. 39, which, it held, did not exclude the jurisdiction of the courts of law, but made it a condition precedent to bringing an action that the loss should have been first decided as per Art. 39. The Exchequer Chamber reversed that, (two judges dissenting.) Art. 39 was held invalid, for not only the amount was too large to be determined as per Art. 39, but also the question of wheclause 39 was held to erect a tribunal judither or not the society was liable at all. This cial. Scott v. Avery cannot support such a thing, it was held by the majority. Amphlett, B., held that according to Scott v. Avery the agreement to settle all claims between the society and its members was not void as against the policy of the law; the directors might decide "any dispute that might arise respecting insurances," the mere 1 See Lloyd v. Scottish Provincial Ins. Co., A.D. 1870, Montreal. |