his court, and sound judgment, tempered by a regard for equity as far as was consistent with a correct application of legal principles. During the May term of the Court of Queen's Bench sitting in appeal at Montreal he was unusually bright, and was not absent an hour during the whole term. He rendered judgment on a number of applications and cases heard during the term, which closed May 27. He remained a little time in chambers attending to various matters, and exhibited to the last his usual cheerfulnesss and courtesy. That evening, however, he was taken ill, and the malady assumed complications ending in paralysis, of which he died early on the 31st. He retained consciousness to the last, and exhibited in his dying moments the composure and resignation which formed a fitting close to an honourable and well spent life. At the opening of the June term of the Court of Queen's Bench, Crown side, (June 1), the Hon. Mr. Justice Church made the following reference to the decease of his distinguished colleague :: Gentlemen of the Grand Jury,-I do not propose to do more than organize this court to-day, address a few words to you and then adjourn. The great public loss which, in the providence of God, has fallen upon this community in particular and the people of this Dominion in general in the unexpected death of Sir Antoine Aimé Dorion, Chief Justice of the Court of Queen's Bench, is too recent and too terrible for me or, indeed, for any of the other officers of the court to proceed with the discharge of our duties. Antoine Aimé Dorion is dead and Canada is called upon to mourn the loss of one of her greatest sons. Full of years and full of honors, after a long, busy and useful life, he has been called back to his God to receive, I have no doubt, the well earned greeting, "Well done good and faithful servant, enter thou into the joy of thy Lord." A long life of useful labor is finished, a long career of trust and honor has been suddenly terminated, a long record of painstaking devotion to duty engraved upon the hearts and memories of the Bench, the Bar and the public is at an end. Called early in life to take part in the political and constitutional struggles which this country has witnessed, promoted almost at once to a foremost place in these struggles; always devoted, fearless and ready in his work, the records of the old Canadian Parliament and of the Dominion of Canada bear testimony to his assiduity as a parliamentarian and his devotion and ability to the interests of his country. Foremost of the political party with which he was allied, he fought its battles with devotion and skill and won for himself his title of the Bayard of Parliament, sans peur et sans reproche. Always learned, courteous and considerate, after twenty years of parliamentary struggle he left that sphere for the judicial bench without one enemy and without one word to rankle in the hearts of his colleagues (adversaries as well as friends) whom he was leaving. For seventeen years Sir A. A. Dorion has filled the position of Chief Justice of this court, and these seventeen years are as a monument to his memory, preserved in the records of the court and enshrined in the hearts and memories of the Bar. Sprung from a generation which furnished to the Bar of this province some of its brightest and best minds, Sir A. A. Dorion was not one whit behind the greatest or the best of them, and when, at a later period and when, perhaps, another generation shall form the estimate of the rank to be assigned to our great lawyers, the name of our beloved Chief Justice will not be found below that of any other. In learning, in assuidity, in gentleness, in consideration for others, in short, in all that goes to make up the good man and the great judge he was unsurpassed. His judgments will remain as a record of his learning, industry and impartiality: and his gentleness and kindness to all, and especially to the youngest and least experienced of the Bar will also remain a lasting testimony to his goodness of heart and of his consideration for the feelings of others; whilst his forbearance and evenness of temper will ever bear witness to a great mind, which had been so skilled in the knowledge of the frailities of human nature that he was always prepared to be tolerant of the shortcomings of others. In the death of Sir Antoine Aimé Dorion the bench of Lower Canada has lost one of the brightest legal minds which ever adorned it, the tableau of the Bar one of its most fearless and earnest through whom the affinity exists being still lawyers, the public one of its greatest and alive. most candid minds, and the people of Canada 2. The son-in-law may be sued alone for one of their most beloved sons, and his child-the alimentary debt, without his wife being ren and other relatives a fond, indulgent, in the cause.-Turnbull & Browne, Dorion, C. loving and beloved member. Trustfully, J., Tessier, Bossé, Doherty, JJ., Nov. 27, earnestly and confidently I say requiescat 1890. in pace." Appropriate references to the event were also made in every court throughout the Province. On Wednesday June 3, his funeral at Montreal was attended by an immense concourse of the Bench, the Bar and court officials in their robes, followed by a long train of private citizens. COURT OF QUEEN'S BENCH-MONT- Nuisance-Tannery. Pledge-Rents Transferred as Security-Discharge of Debt by Transferee-Art. 1972, C. C. D. bought certain real property for which he agreed to pay an annual sum during the lifetime of the vendor, and as security for the payment of this annual sum the vendor reserved the right to collect the rents of the property, the purchaser undertaking to make up any deficiency which might occur. By his last will the vendor discharged D. from all debts which he might owe him (the Held:-That where the person complaining of the offensive smell caused by chem-testator) at the time of his death. icals used in a tannery, and which emptied into a drain passing by his property, was thoroughly acquainted with the condition of things before he purchased, having been five or six years employed in the tannery, and where, moreover, it appeared that he had promoted the covering of the drain, and thereby caused an aggravation of the nuisance, an action of damages against the proprietor of the tannery would not be maintained. McGibbon & Bédard, Dorion, C. J., Monk, Tessier, Cross, Baby, JJ., Sept. 25, 1886. Judgment-Rectification of clerical error in judgment. Held:-That an accidental omission which occurs in the draft of a judgment rendered in appeal may be corrected, even after the record has been transmitted to the Court be low. McGibbon & Bedard, Dorion, C. J., Monk, Ramsay, Cross, Baby, JJ. (Ramsay, J., diss.), Nov. 20, 1886. Held:-That the rents of the property were merely pledged to the vendor for the payment of the annual sum above mentioned, and that D. remained the owner of the rents. Hence, although it appeared that he was indebted to the vendor on account of the annual payments at the time of the vendor's death, yet, being discharged from this debt by the will, he was entitled to the rent due by the tenant of the property at the time of the vendor's death; and the vendor's executors, who had collected this rent, were ordered to refund it to D.-Jetté & Dorion, Dorion, C. J., Cross, Baby, Bossé, JJ., March 20, 1890. Right of Redemption-Refusal to Retrocede- Held :-Affirming the judgment of Davidson, J., M. L. R., 4 S. C. 233, That a vendor, seeking to give effect to a right of redemption, and who makes a tender to the purchaser, not followed by consignation, does not Aliment-Obligation Arising From Marriage-thereby acquire a right to the revenues of the property pending the contestation, if the Held :—1. That a person is bound to main-purchaser refuses to retrocede, although the tain his mother-in-law who is in want, she result of the contestation is that the purnot being re-married, and the daughter chaser is ordered to retrocede, but is allowed $40 additional for improvements. A consig Art. 167, C. C. * To appear in Montreal Law Reports, 6 Q. B. nation, to be effective, should be made, partie appelée, at a place and time and with a person duly designated to the holder of the property. -Fournier & Leger, Dorion, C. J., Baby, Church and Bossé, JJ., May 21, 1890. Canadian Bank of Commerce & Stevenson.— Appeal from judgment of Superior Court, Montreal, Loranger, J., Sept. 14, 1889. Hearing on merits resumed and continued. Saturday, May 16. McCaffrey & Bank of Ontario.-Petition for Jury Trial—Verdict-Jury Unable to Answer leave to appeal from interlocutory judgment Question-Art. 414, C. C. P. Held-Where the jury, in answer to a question submitted to them at the trial, reply "impossible to say," such answer is not a compliance with Art. 414, C. C. P., which requires that the verdict be explicitly affirmative or negative upon each fact submitted, and there is a right to a new trial.-Royal Institution & Scottish Union and National Ins. Co., Dorion, C. J., Cross, Baby, Bossé, JJ., May 23, 1890. Prohibition to Prevent Execution of Judgment— rejected with costs. Bourgeois & Chouillou.-Motion for leave to appeal from interlocutory judgment rejected with costs. Banque du Peuple & Archambault.-Motion for leave to appeal from interlocutory judgment.-C. A. V. Archbold & Delisle.-Petition for leave to appeal from interlocutory judgment.C. A. V. Canadian Bank of Commerce & Stevenson.Hearing resumed and continued. Monday, May 18. Canadian Bank of Commerce & Stevenson.Hearing concluded.-C. A. V. Hathaway & Chaplin.-Appeal from judgment of Superior Court, Montreal, Tait, J., May 31, 1890. Heard.-C. A. V. Vincent & Poupart.-Appeal from interlocutory judgment of Superior Court, Montreal. Heard.-C.A.V. Discretion-Appeal-Circuit Court. Held:-Affirming the judgment of Gill, J., M. L. R., 5 S. C. 417, Where there has been no plea to the jurisdiction, and no demand has been made for a writ of prohibition while the case was pending before the Court which rendered the judgment complained of, the Superior Court, or a judge thereof, has discretionary power to grant or refuse a writ of prohibition to prevent the execution of the judgment; and a Court of appeal will not interfere with the exercise of this discretion-C. A. V. unless the absence of jurisdiction be apparent on the face of the proceedings. [Question whether the Circuit Court is a Court of inferior jurisdiction not passed upon.]-Corporation de la paroisse de Ste. Geneviève & Boileau, Dorion, C. J., Tessier, Cross, Bossé, Doherty, JJ., May 21, 1890. APPEAL REGISTER-MONTREAL. Friday, May 15, 1891. Bourgeois & Chouillou.-Motion for leave to appeal from interlocutory judgment.-C. A. V. Canada Railway News Co. & Montreal News Co.-Motion to dismiss appeal.-C. A. V. McCaffrey & Ontario Bank.-Petition for leave to appeal from interlocutory judgment. -C. A. V. McGreery & Beaucage.-Appeal from interlocutory judgment of Superior Court, Montreal, Davidson, J., March 13, 1891. Heard. Clarke & McDonald.-Appeal from judgment of Superior Court, Montreal, Tait, J., June 23, 1888. Heard.-C. A. V. Tuesday, May 19. Banque du Peuple & Archambault.-Petition for leave to appeal from interlocutory judg ment. Dismissed with costs. Archbold & Delisle.-Petition for leave to appeal from interlocutory judgment. Dismissed with costs. Canada Railway News Co. & Montreal News Co.-Motion to dismiss appeal granted, the judgment being interlocutory, and the appeal taken de plano. Lefebvre & Magnan.-Motion for new security.-C. A. V. Great Eastern R. W. Co. & Lamb.-Motion for dismissal of appeal. Rejected, without costs. Canada Atlantic R. Co. & Sauvé.-Appeal from judgment of Court of Review, Montreal, May 4, 1889. Heard-C. A. V. Magor & Kehlor.-Appeal from judgment of Superior Court, Montreal, Davidson, J., March 19, 1890. Heard.-C. A. V. Horsman & Darling.-Appeal from judgment of Superior Court, Montreal, Gill, J., June 14, 1889. Heard.-C. A. V. Wednesday, May 20. Hill & Ferreri.-Heard.-C. A. V. Curwin & Cooke -Heard on appeal from judgment of Superior Court, Terrebonne, Taschereau, J., May 25, 1889.-Appeal dismissed with costs. Bazinet & Gadoury.-Appeal from judgment of Court of Review, Montreal, March 9, 1889. Submitted on factums.-C. A. V. Villeneuve & Kent.-Heard on appeal from judgment of Superior Court, Montreal, de Lorimier, J., Dec. 30, 1889.-C. A. V. Accident Insurance Co. & McFee.-Part heard, on appeal from judgment of Superior Court, Sherbrooke, Brooks, J., Nov. 30, 1889. Thursday, May 21. Accident Insurance Co. of N. A. & McFee.Hearing concluded.—C. A. V. Dickson & Galt.-Appellant not appearing, appeal dismissed. Huot & Black.-Two appeals. Judgment of Superior Court, Montreal, Tellier, J., Jan. 23, 1889.-C. A. V. Atlantic & N. W. R. Co. & BetournayHeard on appeal from judgment of Superior Court, Montreal, Gill, J., Nov. 30, 1889.C. A. V. Cie Chemin de Fer à Passagers & Dufresne.— Part heard on appeal from judgment of Superior Court, Montreal, Loranger, J., Dec. 26, 1889. Saturday, May 23. Ontario Bank & Riddell.-Petition of mis en cause for leave to appeal from interlocutory judgment. Petition rejected. Lefebvre & Magnan.-Motion for new security rejected without costs. Hill & Ferreri.-Appeal allowed for costs. Nordheimer & Hutchison.-Appeal dis missed. Vincent & Poupart.-Judgment reversed with costs. Canada Atlantic R. Co. & Sauvé.-Confirmed. McGreevy & Beaucage.-Reversed. Laurentides Pulp Co. & McIntosh.—(Quebec case.) Reversed, Tessier, J., diss. Compagnie Chemin de Fer à Passagers & Dufresne.-Hearing concluded.-C. A. V. Tuesday, May 26. Atlantic and N. W. Co. & Judah.-Motion for leave to appeal to Privy Council. Granted. Connecticut Fire Insurance Co. & Kavanagh. -Heard an appeal from judgment of Superior Court, Montreal, Wurtele, J., Nov. McBean & Marshall.-Heard on appeal | 14, 1889.-C. A. V. from judgment of Superior Court, Montreal, Gill, J., Oct. 4, 1889.-C. A. V. Commercial Mutual Building Society & London Guarantee & Accident Co.-Appeal from judgment of Superior Court, Montreal, Davidson, J., Nov. 27, 1889. Part heard. Friday, May 22. Canada Railway News Co. & Montreal News Co.-Petition for leave to appeal from interlocutory judgment granted. Commercial Mutual Building Society & London Guarantee & Accident Co.-Hearing concluded.-C. A. V. Lyons & Cushing.-Settled out of Court. Glasgow & London Ins. Co. & Leclaire.Heard on appeal from judgment of Superior Court, Montreal, Jetté, J., Jan. 11, 1890.C. A. V. Wednesday, May 27. Montreal Elevating Co. & St. Lawrence Grain Co.-Judgment confirmed. Rowe & Leahy.-Confirmed. Horsman & Darling.-Confirmed. Dubois & Corporation of Ste. Rose.-Heard on appeal from judgment of Superior Court, Montreal, Wurtele, J., Nov. 15, 1889.-C. A. V. Scottish Union Co. & Citizens' Insurance Co.-Appeal dismissed, no proceedings having been had for a year. Mandeville & Dorion.-Same entry. Canada Paper Co. & Crilly.-Same entry. Flatt & Ferland.-Heard on appeal from judgment of Superior Court, Montreal, Wurtele, J., Dec. 31, 1889.-C. A. V. The Court adjourned to Thursday, June 25. FIRE INSURANCE. (By the late Mr. Justice Mackay.) [Registered in accordance with the Copyright Act.] CHAPTER XIII. FRAUDULENT FIRING. [Continued from p. 176.] In Soye v. Merchants' Insurance Co.1 a house was insured, became unoccupied, was left vacant, and was burned. (The key of it had been left with a neighbor in order that the house might be looked at by applicants for it.) Some evidence was produced that a window was sometimes open, but as to condition on day of the fire it was not spoken to. The fire was by incendiaries doubtless, or people rodeurs. The company was con demned; it appealed and the appeal was dismissed. It was held that the insured was not bound to leave a keeper in the house when the policy did not stipulate for that. But the Court seems not to have determined the legal effect of such negligence as leaving an uninsured house open knowingly and grossly negligently. Semble gross negligence might free the insurance company. In the Catlin case the insurers agreed to pay in case of loss or damage from fire happening from any cause "except design in the insured," etc. It was held that the insurers were liable for all losses not by design, and mere negligence of the plaintiff therefore could not hurt him. Story seems to say that cases may be where the jury ought to be charged to say, 1st, whether the plaintiff is in fraud; or, 2nd, whether he is guilty of gross negligence presumptive of fraud. Yet Story, J., said:--" I "do not say that the defendants would be "liable for every loss occasioned by the gross "personal negligence of plaintiff'; for it might, under circumstances, amount to a fraudu"lent loss." A gas burner is left without a new globe or shade, the original one having been broken. A fire happens. The insurance company cannot escape if the fire be accidental.3 § 283. Effect of wilful firing as to mortgage creditor. Unless there be a condition when a mortgage creditor insures his debtor's house, that the debtor wilfully firing his house the insurer shall be free, the insurer must pay though the debtor be guilty of arson; that is, if the insurance contract is from the insurer directly to the mortgage creditor. So it has been held in France; Pouget, p. 1103. Generally, in France, the mortgage creditor insuring is not affected by the déchéances of the insured. ? 284. CHAPTER XIV. OF WAIVER. Condition against waiver. "The non-fulfilment of any one of these said conditions or stipulations shall entail the forfeiture to the insured, or his assigns, of all benefit under this policy. And none of the conditions of this policy, either in whole or in part, shall be deemed to have been waived by or on the part of this company, unless the waiver be clearly expressed in writing, signed by the company's resident secretary for Canada, and delivered to the insured or to the lawful agent or representative of the insured." The above is a condition of the Queen (English) Company. American policies contain sometimes this condition: "No condition, clause or covenant herein contained shall be altered, annulled or waived, except by writing endorsed upon the policy." 285. Waiver of preliminary proofs. Waiver of preliminary proofs may be made by the company-assurer paying a sum to the assured on account of a loss.1 to have waived right to object to defects in The insurance company may also be held preliminary proofs by putting their refusal to pay on a particular ground. The principle is admitted in other matters, waived in sale cases by the purchaser's conas in Campbell's Rep., Trover. Time is often 1 14 Barbour, Supreme Court (N. Y.) Rep. 206. See Angell. See also Chapman case, 1 Camp. 134, 274, contra. 225 Wendell, 375; 16 Wend. 385; Tayloe v. Merchants' F. Ins. Co., 9 Howard, 111. |