acheteurs.-Houle v. Melançon, Würtele, J., of a commercial contract executed by the 26 mai 1891. Chemin public-Chemin de tolérance-Propriétaire-Prescription. Jugé :-10. Que quelque soit le temps dont un chemin est à l'usage du public, s'il apparait par des actes du propriétaire que celui-ci entend en conserver la propriété, par exemple, en entretenant lui-même le chemin, en y plaçant des barrières, en faisant payer un droit de passage aux passants, etc., ce chemin reste simple chemin de tolérance; 20. Que les propriétaires d'un chemin de tolérance peuvent toujours le fermer et le retirer de l'usage du public; 30. Que les propriétaires d'un chemin de tolérance ne peuvent être forcés de l'entretenir, ou de continuer de laisser le public s'en servir.-McGinnis et al. v. Létourneau et al., Würtele, J., 5 juin 1891. Evidence-Commencement of proof-Admission -Division. firm, is a claim of a commercial nature withis subject to the prescription of five years.— in the meaning of Art. 2260, par. 4, C. C., and McRae v. Macfarlane, in Review, Johnson, Ch. J., Taschereau, Tait, JJ., June 27, 1891. Procedure-Continuance of suit in name of curator to abandonment. Held:-That the permission to exercise the actions of a debtor or of the mass of his creditors is a judicial authorization which is required in the interest of the mass of the creditors of a debtor who has abandoned his property for their benefit, and not in the interest of the adverse party. The latter cannot ask that the proceedings adopted without such authorization be rejected, but only that the proceedings be stayed until the proper authorization has been obtained, or for a sufficient time to enable the curator to apply for it.-Chisholm v. Gallery, Würtele, J., Nov. 12, 1889. Rights of Indians, how determined—Minors— Appointment of tutor. Held:-1. That the rights of Indians are Held-In an action for the recovery of a loan, where the defendant pleaded that he had borrowed the money, but with the stipulation that the principal was not to be pay-regulated and determined by the Indian Act, able until after the lender's death, that the| admission could not be divided to make a commencement of proof.-Favret v. Phaneuf, Würtele, J., Sept. 14, 1891. (R.S.C. Ch. 43), and not by the common law, which does not apply to them. 2. That a tutor to an Indian minor, should be appointed through the ministry of the Superintendent General of Indian affairs, as Insolvency-Property acquired by insolvent after indicated in said Act (Sec. 20, Sub. Sec. 8), making an abandonment. Held:-(Modifying the decision of MALHIOT, J.), that the curator to the estate of a trader who has ceased his payments, has no right to receive, collect and recover property acquired by the latter after his abandonment. -Quebec Bank v. Cormier, in Review, Würtele, Tellier and de Lorimier, JJ., June 30, 1891. Partnership-To build railways-Commercial matter-Prescription-Art. 2260, C. C. Held:-1. That a partnership formed between contractors, for the purpose of carrying on the business of building railways, is a commercial partnership. and such tutorship conferred by the prothonotary, in the ordinary way, is of no effect.— Tiorohiata v. Toriwaieri, Taschereau, J., April 14, 1891. SUPREME COURT OF NEWFOUNDLAND. INTERNATIONAL LAW-PREROGATIVE OF CROWN -ACT OF STATE-PERSONAL RESPONSIBILITY OF AGENT OF CROWN. [Concluded, from p. 303.] So much for the principles of international as distinguished from constitutional and municipal law. With regard to the form of the instrument, it appears to me to be a matter 2. That a claim by one member of a com- of indifference so long as the terms are clear mercial partnership against another, after and sufficiently expressed; and that its conthe dissolution of the firm, for a balance of struction would be determined simply by the account, or to obtain an account of the result 'principles which govern other contracts. It has been suggested that the exercise of the instructions, he would have been possessed prerogative in possessions enjoying respon-under the terms of the treaty with Spain sible (or constitutional) government is of a would have extended only to the stopping of more limited character than it would be in ships on the high seas. The action of the the mother-country, but where the objects of defendant was, however, confirmed and ratiits application correspond, there can be no fied by the English Government, and it was doubt, in my opinion, that the sovereign held that this subsequent ratification was authority in the colonies is the same as it is equal to a prior command, and that the dein Great Britain, where in truth 'responsible fendant was not amenable in a British Court government' is more amply and absolutely of justice at the suit of the plaintiff, because enjoyed than it is in the colonies themselves. the act of the defendant, whether originally 'There can be no doubt the Queen's prero- authorised or afterwards ratified, was 'an gative is as extensive, valid and effectual in act of State.' In the second of the cases cited New South Wales as in this county of Middle- (Conway v. Gray), in which the plaintiff, alsex,' observed Vice-Chancellor Bacon (In re though a British subject, sued under a policy Bateman's Trusts, 42 Law J. Rep. 554). For of insurance for the benefit of a foreigner, it the defendant it is, as I have said, contended was held that a foreigner insuring in England that the fact of a modus vivendi having been a ship or goods is not entitled to abandon concluded is sufficient without reference to upon an embargo laid on the property in the the specific treaties or any provisions of the ports of his own country, as his assent is virtreaties upon which it is said to be founded, tually implied to every act of his own Governthat the modus was in itself a treaty, and ment; in other words, that a foreigner could that the sovereign possesses absolute power not recover from a British subject in an to enter into an international agreement of English Court damages arising out of an act this kind so as to bind the entire commu- of the plaintiff's own Government. In this nity and every individual subject's right; case Lord Ellenborough, C.J., in the course that Parliamentary impeachment is the of his judgment, referring with approval to only mode in which its propriety can be Tonteng v. Hubbard, 3 B. & P. 291, says: called in question, and that, if the defend- 'The Court was of opinion that, if that had ant had failed to fulfil the duty cast upon not been the case of a Swede against a British him by the State, the nation would have subject, the plaintiff would have been entitled been held responsible by the other contract- to recover, but as the embargo was produced ing Power for his want of action; that as the by the acts of the Swedish Government, it terms upon which peace is made are in the was in effect the plaintiff's own act that the absolute discretion of the sovereign, so the vessel was detained.' I cannot see how either right to enter into an agreement to maintain of these cases makes for the defendant against peace and prevent war is equally so. Counsel the principle that there can be no 'act of for the defendant, after citing several text State,' so as to supersede or exclude the operauthorities upon international law, and refer- ation of the municipal law in the case of ring to many decided cases, say that they subjects of the same State. But for the defenrely particularly for the position they assume dant still another case was cited, which, it upon Buron v. Denman, 2 Exch. 157; Conway was maintained, distinctly (if for the first v. Gray, 10 East, T. R. 536; and Rustomjee v. time) introduced a different rule. This was Reginam, 2 Q. B. Div. 74. The first named the case of Rustomjee v. Reginam, which was a of these cases was one in which the plaintiff proceeding by petition of right in which it was (a Spaniard) sought to recover from the de- sought to make the Crown responsible as an fendant, a British naval commander, dam- agent or trustee for the suppliant as one of a ages for taking possession of a barracoon clase in respect of money paid, under a treaty belonging to the plaintiff, and carrying away of peace between the Queen of England and and liberating his slaves. The defendant the Emperor of China towards the discharge had instructions to suppress the slave trade, of debts due to British subjects from certain but the authority of which, without further Chinese merchants, and it was held that the act of the Crown in rejecting the claim of the plaintiff was not a subject of inquiry in a British Court. Lord Coleridge, in delivering the judgment of the Court, said: "The making of peace and the making of war, as they are the undoubted, so they are, perhaps, the highest, acts of the prerogative of the Crown. The terms on which peace is made are in the absolute discretion of the sovereign. The Queen might or might not, as she thought fit, have insisted on this money being paid her. She acted throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own Courts. It is a treaty between herself as sovereign and the Emperor of China as sovereign, and though he might complain of the infraction, if infraction there were, of its provisions her subjects cannot. It seems clear to us that in all that relates to the making and performance of a treaty with another sovereign the Crown is not, and cannot be, an agent for any subject whatever.' In citing this case in support of the defendant's position his counsel mainly rely upon the passage, 'As in making the treaty, so in performing the treaty, she (the Queen) is beyond the control of municipal law, and her acts are not to be examined in her own Courts.' This language has never been quoted by jurists, nor cited by judges as possessing the meaning contended for on behalf of the defendant. The case is one in which the Queen herself was sued, and the ruling upon this point amounts simply to this, that the sovereign is not liable to be called to account by her subject for the manner of fulfilling the terms of a treaty in a matter which is only capable of being called in question by the other high contracting party. In the action now under consideration the sovereign is not the defendant; the question is one, not of the mode of fulfilling a treaty, but it relates to that which is in its very nature a temporary expedient during the existence of which the fulfilment of a treaty or treaties is suspended, something done in the meantime for the convenience of the Queen's Government, and the cause of complaint is one arising within the jurisdiction of Her Majesty's Courts, in which both the parties to the action are her subjects. I have no doubt that, where the terms of a treaty are such that the property of the subject within the territory of his State is affected by them, any contests between subjects of the Crown as to their lawful or unlawful execution is cognisable by the municipal Courts, and that 'the meaning of treaties and of all measures for their execution is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts.' This is not one of those cases to which the maxim 'Inter arma silent leges' applies. There may be, I admit, a territorial cession of public property in time of peace, although such is not the case here -the territory is British and its internal administration remains untouched; but, even in the case of transfer of territory from one State to another, the status of the inhabitants with regard to their real property would, I imagine, remain as before in the absence of stipulations to the contrary. It is possible to understand the existence of treaties the provisions of which might in certain events and under certain conditions be actively employed to control or qualify rights of property, but which in other events and under other conditions would leave those rights to their ordinary operation; but this would be a matter of construction, and such treaties would have to be administered as occasion might require according to their legal interpretation and the legal means of enforcing their provisions. No mere subsequent agreement in the nature of a modus vivendi in time of peace could, without Parliamentary sanction, modify such rights of property as between subject and subject to a greater extent than that for which the antecedent treaty or a prior statute made provision. In this action of Baird v. Walker, no such case is presented to us for adjudication. We are not invited at present to decide upon the construction of treaties or the lawful means for their enforcement; we are only asked by the defendant to say that the alleged authority of the Crown contains in itself a sufficient defence to force the plaintiff out of Court. Under the pleadings and all the circumstances, so far as it is open to the Court now to notice them, we must hold that the defence is not a sufficient answer to the claim. The civil irresponsibility of the supreme power for tortious acts could not be theoretically maintained with any show of justice if its agents were not personally responsible for them. In such cases the Government is morally bound to indemnify its agent, and it is hard on such agent where his obligations are not satisfied; but the right to compensation in the party injured is paramount to this consideration, that is to say, special circumstances may render even a public servant personally responsible for acts bond fide done by him on behalf of the public, which in contemplation of law injuriously affect another.' In Feather v. Reginam, 6 B. & S. 296, Lord Chief Justice Cockburn, in delivering a judgment upon a petition of right, said: 'Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of a minister of the Crown is without a remedy. As the sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown. The learned counsel for the suppliant rested part of his argument on the ground that there could be no remedy by action against an officer of State for an injury done by the authority of the Crown, but he altogether failed to make good that position. The case of Buron v. Denman, which he cited in support of it, only shows that where an act injurious to a foreigner, and which might otherwise afford a ground of action, is done by a British subject, and the act is adopted by the Government of this country, it becomes the act of the State, and the private right of action becomes merged in the international question which arises between our own Government and that of the foreigner. The decision leaves the question as to the right of action between subject and subject wholly untouched. On the other hand, the case of the general warrants, Money v. Leach, and the cases of Sutton v. Johnstone, in error, and Sutherland v. Murray there cited, are direct authorities that an action will lie for a It may not be generally known, and I would here note, that this is not the first instance in which a project in the nature of a modus vivendi has been proposed with regard to the joint occupation of part of the coast by French and English fishermen. In December, 1763, a project of an agreement was in view, proposed by the French ambassador, for the avoidance of disturbance and dispute between the English and French in carrying on the concurrent fishery. It was referred to the Crown law officers of the day, who were asked whether the Crown could legally enter into it, and would have power to enforce such regulations so far as they related to the subjects of Great Britain; and those eminent authorities answered that the project contained many things contrary to the Act of William III., as well in respect of the king's subjects as to the mode of determining controversies arising there, and that the Crown had no power to enter into or enforce such regulations (Reeve, p. 120; Chalmer's 'Colonial Opinions,' 545). At this point I cannot do better than adopt the following passages from Brown's 'Constitutional Law': 'As for the most petty and inconsiderable trespass committed by his fellow-subject, so for the invasion of property by his sovereign does our law give to a suppliant, fully, freely, and efficiently, redress. One exception, and one only, to this rule occurs; and that is, where the sovereign has himself personally done an act which injures or prejudices another, for the King of England can theoretically do no wrong. Our law thus recognises his supremacy-it has omitted to frame any mode of redress for that which it deems to be impossible; and yet the law, whilst holding the sovereign personally irresponsible for his acts, will virtually limit this irresponsibility by visiting strictly upon the ministers or agents of the Crown the consequences flowing from obedience to its command. The rule respond-tortious act, notwithstanding it may have had eat superior being here inapplicable, a remedy the sanction of the highest authority in the may be had against the agent, and so the State. But in our opinion no authority is suitor shall not retire from the King's Court needed to establish that a servant of the without having justice done him.' And again: | Crown is responsible in law for a tortious act done to a fellow-subject, though done by the authority of the Crown, a position which appears to us to rest on principles which are too well settled to admit of question, and which are alike essential to uphold the dignity of the Crown on the one hand, and the rights and liberties of the subject on the other.' Stanton & Canada Atlantic R. Co-Confirmmed. Clarke & Macdonald.-Confirmed. Accident Insurance Co. of N. A. & McFee.Confirmed. Huot & Black.-Two appeals. Reversed, Doherty, J. diss. McBean & Marshall.-Confirmed. Commercial Mutual Building Society & London & Glasgow Insurance Co.-Confirmed. Atlantic & N. W. R. Co & Betournay.— Confirmed. Cie Chemin de Fer à Passagers & Dufresne. Flatt & Ferland, & Kent.—Confirmed. The délibéré was discharged in the following cases :-Desjardins & Robert; Villeneuve & Kent; Magor & Kehlor; Bank of B. N. A. & Stewart; Basinet & Gadoury; Canadian Bank of Commerce & Stevenson. The Court adjourned to Sept. 15. Tuesday, Sept. 15. Motions were received, and there being no quorum the Court was adjourned to Sept. 16. Wednesday, Sept. 16. To sum up in short terms, for general information, our conclusion upon the issue before us, the Court holds: That in an action of this description, to which the parties are British subjects, for a trespass committed within British territory, in time of peace, it-Reversed without costs, Doherty, J., diss. is no sufficient answer to say, in exclusion of the jurisdiction of the municipal Courts, that the trespass was an act of State' committed under the authority of an agreement or modus vivendi with a foreign power. That in such a case, as between the Queen's subjects, the questions of the validity, interpretation and effect of all instruments and evidences of title and authority rest in the first place with the Courts of competent jurisdiction within which the cause of action arises. That, therefore, the decision upon the present issue, which is confined to these points, is found in favour of the plaintiffs in this action, with leave to the defendant (should it be desired) to amend upon payment of costs. At the bar we had the voluntary statement of the Attorney-General (who appeared with Mr. Kent, Q.C.), on the part of the defendant, to uphold the legal and constitutional rights of the Crown,' that, with regard to those who had suffered loss, there could not be the remotest doubt but that inquiry would be made and that compensation would follow. It is to be hoped, therefore, that it will be found unnecessary to prolong the litigation in the present case. Sir J. S. Winter, Q.C., and Mr. Greene, Q. C., for the plaintiffs; Mr. Kent, Q.C., and the Attorney-General (Sir W. V. Whiteway, Q.C.) for the defendant. APPEAL REGISTER-MONTREAL. diss. There being no quorum the Court was adjourned to Sept. 17. Thursday, Sept. 17. The Commissions of the Hon. Alex. Lacoste as Chief Justice, and of the Hon. Mr. Justice Wurtele as assistant judge, were read. Mooney & Sicotte.-Motion to dismiss appeal granted for costs. Atlantic & N. W. R. Co. & Turcotte.-Motion to dismiss appeal. C. A. V. Lanctot & Gundlack.-Motion for rectification of judgment. C. A. V. Friday, Sept. 18. An address of congratulation to the Hon. Chief Justice was presented by the Bar of Montreal. Atlantic & N. W. R. Co & Turcotte.-Motion to dismiss appeal granted for costs. O'Connor & Inglis.-Motion for leave to appeal from interlocutory judgment. C.A.V. Corporation of Verdun & Protestant Hospital for the Insane.-Heard on appeal from judgment of Loranger, J., Superior Court, Montreal, Oct. 15, 1890.-C. A. V. Saturday, Sept. 19. Lanctot & Gundlack.-Motion for rectification of judgment dismissed. |