QUO WARRANTO

SUPERIOR COURT, Montreal, 18th september 1872. Present : MACKAY, J.

PRUDHOMME et al. vs PAINCHAUD et al.

Action, in the nature of a Quo warranto, was brought against five defendants, alleging that they usurped authority, as commissioners for the erection civile of parishes, in the diocese of Montreal, and praying that they be ordered to show their anthority for so doing. Defendants answered that they were acting under a commission from the lieutenant-governor of Quebec, and also under C. S. 14 C., cap. 18. Petitioners replied that, at the time oi ‘efendants, commission, others had been appointed, and, by law, no mure than five could act. It appeared, however, from the terms of the commission to defendants, that the others were incompetent to act :

Held : That defendants were not interested in the erection of the parish, and had a right to do as they had done.

Five plaintifis brought five actions, against Painchaud and others, calling themselves commissioners for the civil erection of parishes in the diocese of Montreal. The cases are all pretty much alike. The court, taking up that against C. T. Painchaud, remarked that it was n quo warranto, to test the action Of C. T. Painchaud, who professed to be one of the commissioners for the civil erection of parishes in the diocese of Montreal. The declaration alleged that there had been commissioners appointed for the erection of parishes ; that defendant usurped the authority of à commissioner ; and it prayed that defendant be ordered to show his authority, and that it

swere Lieuta comm of the was W other petitic their plaint and in the ap that, 1 commi existin the co commi act, in Damemissio] selves raised, hke tl as ith Was tl be left The ap sary.

honour not an quence debt of this w Grâce :

nor wa tioners judgme “Th:

that t} origina proved that th show si

ot in laims nt. If with, iting.

nting count xecutreat ‘egret + the buted vould ut of

aying idants eutenioners

been , howothers

f the

and

ocese con-

be declared that he had usurped authority. Defendant answered that he was acting under à commission from the Lieutenant-Governor of Quebec ; that he was not acting as à commissioner except for the purposes of the erection civile of the parish of Notre-Dame-de-Grâce :; that his commission was warranted by chap. 18 of the C.S. L. C., seeing that the other commissioners had declared themselves interested ; that petitioners were well aware of this, and of all the facts, and their proceedings were simply vexatious. In answer to this, plaintiff said that five commissioners were already appointed, and more than five could not legally exist. With reference to the appointment of the commissioners, it was to be observed that, in july 1871, when the Lieutenant-Governor issued his commission to defendant and his associates, there was an existing commission to Gravel and others. From the terms of the commission to defendants, it appeared that the original commissioners, having declared themselves incompetent to act, in the matter of t'.. erection of the parish of Notre- Dame-de-Grâce, the Lieuténant-Governor named special commissioners, in the place of those who had so declared themselves incompetent to act. There were various objections raised, one that & writ of quo warranto did not lie in a case like this, but the court would pass over this point, inasmuch as it held, on the merits, that plaintiffs could not succeed. Was the erection of this parish of Notre-Dame-de-Grâce to be left undone, because there were no commissioners to act ? The appointment of other commissioners had become necessary. [t was injurious to nobody, and was not illegal, as his honour read the law. The fact that the Official Gazette did not announce defendants appointment was of no consequence., It was said, at the tinal argument, that there was a debt of $400,000, due by the parish of Montreal, and that this was enough to prevent any civil erection of N.-D-de- Grâce : but this debt was not alleged in any of the pleadings, nor was there any proof of such debt. The requéte of petitioners would be dismissed, with costs, the grounds of the judgment being these :

That the conclusions of the requete could not be granted ; that there was nothing about the debt of the parish in the original requéte ; that none exists ; that defendants were not proved to be interested in the erection of the new parish, and that they had right to do what they had done ; that they show sufficient warrant.”

The same judgment passed in the five cases. (2 R. C., 480.)