L'objet de la présente action est de faire cesser le trouble, et les dommages ne doivent être que nominaux. Le jugement accorde la partie des conclusions demandant que le défendeur soit condamné à faire cesser le trouble, sauf recours qu'aura le Procureur Général si le défendeur ne met pas fin au trouble sous 24 heures de la signification du jugement, avec dépens d'une action de première classe.

Jules E. Larue, pour le Procureur Général.

MacKay & Turcotte, pour le Défendeur.

Le Procureur
Général

V.

Coté.

HELD:-That a member of an incorporated building society is not entitled to demand an inspection of the minutes kept by the directors of the association, unless there be a parliamentary direction to that effect, or he shew that he has an interest or is under the influence of a lawful motive in demanding the inspection.

That the fact of taking a reasonable time (three days e.g.) to consider and take advice before complying with the demand, is not a refusal sufficient to justify a resort to the remedy by mandamus.

Per curiam. This is an information of Jean Langelier, of Quebec, Advocate, a member of "La Société de Construction Mutuelle," a body politic and corporate, praying that a writ of mandamus should issue out of this Court directed to Robert Laroche, Secretary-Treasurer of the said body politic and corporate, and custodian in possession of the books, records and documents of the said corporation, enjoining him as such Secretary-Treasurer to suffer and permit the said Jean Langelier, as a member thereof, to inspect and examine the books of the said Society wherein are contained and recorded the rules and regulations for the management of the said Society and the transactions of the directors thereof.

To this the defendant pleaded that, as a servant of the corporation, he is subject to the orders of the board of directors of the same; that upon the demand to see the minutes of the said directors, he informed the President of the corporation, who then informed Mr.

Langelier

V.

Laroche.

Langelier that he did not think he had a right to see the minutes kept by the directors, and that it was then understood that Mr. Langelier should return on the 16th January following, during which time the counsel of the corporation should be consulted on the subject. That Mr. Langelier did not return on the 16th January, when the defendant was prepared to communicate the rules of the society, and has been ever since ready and is still ready to communicate the rules and by-laws of the said society, but not the minutes of the operations of the directors.

The parties have proceeded to evidence, and the case is now to be disposed of on its merits.

On the 13th January last, Mr. Langelier did apply for communication of a book, which application is in the following words:

"Nous avons besoin de consulter le régistre des délibérations des directeurs pour affaires urgentes et se rattachant à la S. C. M, dont nous sommes tous actionnaires. Voulez-vous nous donner communication du livre que nous requérons de voir en notre qualité d'actionnaires.

“J. C. Langelier,
"CHAS. LANGELIER.”

This building society is incorporated under the provisions of C. S. L. C., ch. 69, and is managed by a board of directors who keep in a book minutes of their transactions, which transactions are liable to the review, allowance or disallowance of the society in such manner as its general rules direct.

The rules for the management of the society are required to be recorded in a book which shall be open for the inspection of members.

On the 13th January last, the relator and his brother applied for the inspection of the minutes of the deliberations of the directors,the president informed them that he was under the impression that they were not entitled to such inspection, but he would take legal advice, and mentioned the 16th of January following as the day. upon which he would be prepared to return an answer to their request-however, they then put in a written demand for inspection, which has already been given, and left, probably hinting at the institution of the proceedings afterwards taken.

Two questions present themselves for decision:

1. Was there a refusal to give the inspection they demanded? 2. Are they entitled to such inspection?

As to the first question:

A demand must be properly made, and there must also be a distinct refusal to do the thing demanded before a writ can be granted; it is not necessary that the word refusal should be used, but there should be enough from the whole of the facts to shew that for some improper reason it is not intended to grant the demand, but a distinct determination must appear on the part of the defendant not to do what is required. The fact of taking reasonable time to consider and take advice before fulfilling the demand, is not a refusal, and the relator should have called on the 16th when a definitive answer would have been given him. The answer would have been that he might see the rules but not the minutes of the directors that appears by the plea.

It will be borne in mind that the building society in question is a private body, in which the duties and obligations of its officers towards the subscribers of stock have little, if anything, of public duties, they are rather of a private nature; but without enlarging upon the differences that exist between such duties and those of a public nature and general interest, I would remark that with reference to the right of inspection of books, accounts, &c., for which a writ of mandamus can issue to compel the same, it must rest on one of two grounds, either upon a Parliamentary direction, making it a duty to grant such inspection, or upon some proper and definite object resting upon a legal interest, which is shewn to the satisfaction of the Court; in this last case, the Court must be satisfied that the party desiring inspection is under the influence of a proper motive.

The act under which this society is incorporated requires the directors to keep a minute of their transactions, which are made liable to the review, allowance, or disallowance of the society, in such manner and form as such society shall by their general rules direct. The power over these minutes, which is unlimited, is in the body, not in the individual stock-holders, and there is no provision that they are liable to inspection to the individuals; on the other hand, the rules for the management of the society are to be entered and recorded in a book for the purpose, which is to be open at all times for the inspection of the members. There is a Parliamentary direction as to the rules, and none as to the minutes. There is nothing whatever to shew that the relator has any interest, or is under the influence of any lawful motive for seeking inspection of these minutes; there is, therefore, no case upon which the Court can exercise any discretion in awarding the mandamus asked for;

Langelier

V.

Laroche.

Langelier

V. Laroche.

it is not possible to arrive at the conclusion that the legislature intended the minutes to be subject to the inspection at all times to the members, since it does not say so, and does give the right of inspection in the case of the rules. I am of opinion, upon both grounds, that there was no refusal before resorting to this remedy, and that the relator shews no case for ordering an inspection. The writ cannot issue.

Petition and information dismissed with costs.

Cook, for Relator.

Dery, for Defendant.

SUPERIOR COURT, QUEBEC.

1ST DECEMBER, 1875.

HAMEL v. LALIBERTÉ.

REPRISE D'INSTANCE.

HELD-1. That the parties to the cause must be put in default to answer the petition en reprise d'instance before judgment can be given upon it, i.e., there must be a demand of plea.

2. That a judgment of the Court, declaring the continuance well founded, is requisite, even where no cause shewn against the petition.

A petition en reprise d'instance having been filed in the Prothonotary's office, after service upon the parties, and having remained eight days uncontested, the petitioner at the expiration of that time moved (under art. 439 and 440, C.P.) that it be declared admitted and well founded.

DORION, J., rejected the motion as premature, no demand of plea to the petition appearing by the record.

A similar judgment was rendered by STUART, J., in Murphy v. Campbell, S. C., Quebec, 6th March, 1875.

It was also held, in d'Estimauville v. Tousignant, No. 123, S. C., Quebec, 4th July 1873, by STUART, J., after consultation with MEREDITH, C. J., and TESSIER, J., that a judgment of the Court is requisite in every case, declaring the continuance well founded, even where no cause is shewn against the petition.

QUEEN'S BENCH-APPEAL SIDE.

QUEBEC, 8TH JUNE, 1877.

Coram DORION, C. J., MONK, RAMSAY, SANBORN, TESSIER, JJ.

BELL AND RICKABY.

One Farmer, an hotel keeper, being largely indebted to the appellant, a Notarial Deed of Sale, duly registered, was passed between them, whereby Farmer sold to the appellant, with right of redemption within three years, certain moveable and immoveable property, comprising the hotel and furniture, being the bulk of his estate, for a certain stated valuable consideration. Farmer remained in possession of the property under lease from appellant, and continued to carry on his business as usual. About ten months afterwards he became bankrupt and the respondent was appointed his assignee. In the meantime appellant had, with Farmer's consent, granted a lease of the moveables to Trihey and Johnson, in whose hands they were when respondent revendicated them as part of Farmer's insolvent estate. Trihey and Johnson did not contest, but the appellant intervened and claimed the effects under the deed of sale above mentioned. The respondent, contesting the intervention, prayed to have the deed in question annulled and set aside as having been made in fraud of Farmer's creditors.

HELD-1. That under the circumstances there was no fraud or illegal preference either within the provisions of the Insolvent Act or of the Civil Code.

2. That even were fraud disclosed, the Court could not, on such an issue, declare fraudulent and annul that part of the deed affecting the immoveables.

Such construction must be given to the Insolvent Act in the matter of fraud as to leave creditors some latitude to exercise vigilance to secure their debts, and debtors hopeful and energetic to work out their salvation, if neither on the part of the one or the other there appears evident intention to defeat the remedies of creditors or obtain frauduleut preference in contemplation of insolvency.

Absence of delivery is only a presumption of fraud, and it may be rebutted by other presumptions equally strong.

This was an appeal from a judgment of the Superior Court at Three Rivers (MCCORD, J.) rendered the 23rd November, 1876.

McDougall, Q.C., was heard for the appellant, and Honan for the respondent.

DORION, C. J., dissentiens.—On the 19th of January, 1875, Thomas Goodhue Farmer sold to the appellant the "British American Hotel," at Three Rivers, and all the furniture it contained, together with a lot of land on the outskirts of the city, and £700 stg. of fourth preferential bonds of the Grand Trunk Railway Company. This sale was made for $15,409.50 of which $6,000 were in payment of a "bailleur-de-fonds" claim, $4,000 in payment of a mortgage,