En conséquence, la Cour déclare l'action du demandeur mal fondée, et icelle est renvoyée; mais le demandeur ayant intenté son action pour et au nom de Notre Souveraine Dame la Reine, les frais ne peuvent être adjugés contre lui. La Cour croit devoir déclarer que, sans la clause expresse du statut, elle aurait adjugé les frais contre le demandeur. Colé v. Watson. Action déboutée. COURT OF REVIEW, QUEBEC. 31ST MARCH, 1877. Coram MEREDITH, C.J., CASAULT, J., CARON, J. PROMISSORY NOTE-PRESENTMENT-DEMURrer, HELD:-That in an action against the maker of a note payable on demand, and generally, want of presentment is not a ground of demurrer. But if the defendant tender the debt and interest before plea filed, and The judge who renders the final judgment can reverse all interlocutory MEREDITH, C. J.-The question in this case is as to the effect of the want of presentment of a note payable on demand. The note sued on is payable on demand to Paul Parent or order, with interest at 8 per cent. The plaintiff, who sues as indorsee, did not allege a presentment; the defendant demurred, and I dismissed the demurrer, citing, in support of my opinion, the art. 145 of our Code of Procedure, and the judgment of Lord ELLENBOROUGH, with the concurrence of Mr. Justice GROSE and Mr. Justice BAYLEY in Fenton v. Goudry, and an important American case, Caldwell v. Cassady. The case afterwards went before Mr. Justice STUART, on the merits; and he maintained an exception, by which the defendant alleged a tender, after the institution of the suit, without costs; and the judgment ordered that the amount tendered, which had been duly deposited, should be paid to the plaintiff, but with costs against him. The plaintiff contends that, under art. 145 of our Code of Procedure, a presentment ought to have been presumed, and, therefore, that the defendant ought to have been held in default when the action was brought. Archer V. Lortie. But the note is payable on demand, with interest from its date. The parties, therefore, must have intended that the defendant was to use the money until demanded, and if he was so to use the money, he cannot be considered in default for not having had it ready before it was demanded; and as no demand was made before the bringing of the action, he was not in default when the action was brought, and, therefore, ought not to be subjected to the costs of the action. In this respect a distinction may be made between a note payable on a particular day and a note payable on demand. Where a note is payable on a particular day, if the maker be not ready to pay it on that day, he may reasonably be considered to have been in default on that day; but where a note is payable on demand, the maker cannot be considered in default until a demand be made. This view is not opposed to the authorities cited by me when I overruled the demurrer. In Fenton v. Goudry the bill was payable four months after date, and Lord ELLENBOROUGH said: "If the acceptor was ready to pay on the day it became due, he could only plead that as a bar of damages, bringing the money into Court," &c.(1) In Caldwell v. Cassady, in the Supreme Court of the State of New York, also cited by me upon the demurrer, it is said: That a uniform course of decisions establish that in actions on promissory notes against the maker, and on bills of exchange against the acceptor, where the note or bill is made "payable at a specified time "and place, it is not necessary to aver in the declaration, or prove on "the trial, that a demand of payment was made, in order to maintain "the action. But that if the maker or acceptor was at the place at "the time designated, and was ready and offered to pay the money, "it was matter of defence to be pleaded and proved on his part."(2) The art. 145 of our Code of Procedure is not opposed to the distinction to which I have adverted. According to that article, a note payable at a particular place, is presumed as against the maker to have been presented "at that place at maturity," unless the exception founded on such want of presentation be accompanied by an affidavit that "at the time it became due," provision had been made for its payment "at the specified place." But where a note is payable on demand, it cannot, for the purpose of subjecting the maker to costs, be deemed "at maturity” until a demand be made, and, as I have already shewn, as the parties evidently intended that the defendant should use the money (1) 2 Camp. Rep., p. 656. (2) Caldwell v. Cassady, 8 Cowen, 271; cited note 3, p. 416, No. 356, Story on Bills. until demanded, he could not be expected to make an affidavit "that provision had been made for the payment of the bill before payment was demanded." It was, however, contended by the plaintiff, that as the service of the action was a demand of payment, the defendant ought to have at once tendered the amount of debt and interest and not allowed the action to be returned into Court. But the action demanded the debt, with costs, which the defendant was not bound to pay, and the defendant had no reason to presume that the plaintiff would take the debt without the costs. It was also contended that the learned judge who rendered the final judgment had no power to reverse my judgment on the défense en droit. But the judgment on the défense en droit has not been reversed, and could not be reversed without dismissing the plaintiff's action, which has not been done. Besides, as to the mere question of power, the judge who renders the final judgment can reverse all interlocutory judgments. It only remains for me to observe that the authorities cited by the defendant justify the judgment that has been rendered. (1) Indeed the observations of Mr. Justice DAY, (who had a very large commercial practice) in the case of Rice v. Bower, justify as well the judgnient on the demurrer as the judgment on the merits. That learned judge said: "I can find no case against the "maker of a promissory note being dismissed for want of proof of "a previous demand. The only effect of the want of a previous "demand would be this, that the defendant might reply to the action "by saying that he had funds at the place of payment, and that he "would pay the note there, or he might bring the money into Court, "and in consequence of the want of previous demand, throw the "costs of the action on the plaintiff." This is exactly what has been done in the present case, and I therefore think, as well upon the reason and justice of the case as according to the authorities, that the judgment ought to be confirmed. CASAULT, J., Concurred, and stated that service of the action could not be called a presentment, as the maker of a note has the right, before paying, to see the original note itself, in order to satisfy himself that the person claiming is in reality the holder. Remillard & Flynn, for Plaintiff. Blanchet & Pentland, for Defendant. Judgment confirmed. (1) Byles on Bills of Ex., p. 168, 11th Ed. Clarke on Bills of Ex., 99, 81; 3 L. C. R., p. 305. Archer V. Lortie. COUR SUPÉRIEURE. QUÉBEC, JANVIER, 1877. No. 648. Coram CASAULt, J. DENIS v. POITRAS. JUG:-Que dans l'action pour gages par garçon charretier, le maître n'est pas cru à son serment quant à l'engagement, ni quant au paiement. Per curiam:-L'article 1669 du Code Civil ne permet de prendre le serment du maître, quant aux conditions de l'engagement et au paiement, que dans les actions pour salaire par les domestiques et serviteurs de ferme. Il est par conséquent bien plus limitatif et restrictif que l'art. 1781 du C. N., dont les termes paraîtraient comprendre tous louages de services personnels. Néanmoins, sous l'empire de ce dernier, on décide que cet article ne s'applique pas aux cochers des voitures de place.-Sirey, Code Annoté, art. 1781. Arrêt du 20 Décembre 1828, rapporté par Sirey, 30, 1, III., et Dalloz, p. 29, 1, 89. Troplong, No. 887. Quant à ce que l'on doit entendre par le mot "domestique, si la chose peut faire doute en présence de l'article 2262 qui dit "domestique de maison et de ferme," on peut consulter les commentateurs de l'art. 2272 C. N., qui l'emploient en fixant la prescription contre les salaires des gens de cette classe, et on verra que le demandeur ne peut pas être compris dans cette dénomination. Troplong, Louage, Nos. 843 et seq. Idem, Prescription, vol. 2, No. 975. A ce dernier numéro Troplong classe les cochers parmi les domestiques; mais ce sont les cochers des particuliers, et non ceux d'une voiture de place ou de louage, qui est une entreprise com merciale. J'avoue de suite que le Nouveau Dénizart, au mot "gages," § 3, p. 143, 144, cite un arrêt du 14 Décembre 1764, qui a décidé le contraire, et renvoyé la démande pour gages d'un charretier, sur affirmation de paiemeut par le maître. Mais la loi du 19-20 Avril 1790, (art. 71,) a, entre autres dispositions, retranché les charretiers de la domesticité. Bossé, C.R., Proc. du Demandeur. IN THE SUPERIOR COURT, QUEBEC. THE 10TH DAY OF JUNE, 1876. No. 321. Coram CASAUlt, J. THE NEW YORK LIFE INSURANCE COMPANY V. ISIDORE PARENT. HELD:-10. That where, by the terms of a policy of insurance, the statements and representations of the application for the policy are made part of the contract, and by the policy all such statements and representations are warranted to be true, and the application contains false representations and fraudulent suppressions, the same may be urged by the insurer as a cause of nullity in the contract, and an action lies to have the policy cancelled and delivered up. 2. That where the misrepresentations contained in the application are to the knowledge of the assured, such nullity may be invoked by the insurer without any return of premiums paid. 3. That an assignment of the policy can convey no greater rights under the same than the assured himself bad. 4. That, in this case, the party assured was but a prête-nom; that the policy was transferred immediately after it was issued, and was in the hands of the defendant nothing more than a wager or speculative policy. The plaintiffs brought suit to set aside and cancel two life policies, for $8,000.00 and $5,000.00, dated the 22nd June and 31st December, 1874, granted to one Mathias Dubé, upon his applications in writing, and by him assigned to the defendant. It was alleged by the plaintiffs that, in various material particulars, the assured had given false answers to the questions propounded in the "applications;" that he untruly represented that his habits were then and always had been sober and temperate; that he had never had spitting or raising of blood; that he had never been subject to disease or bodily infirmity; that he had never had syphilis ; that he had never had any serious complaint or been seriously ill; that he never consulted but one medical man. It was further alleged that the defendant had induced the late Mathias Dubé to make the applications and obtain the policies in question with intent to deceive and defraud the plaintiffs. The "application" in each case contained the following clause : "And I do hereby agree that the statements and representations contained in the foregoing application and declaration shall be the "basis of the Contract between me and the said Company; the |