MANDAT.—AGENT

UOURT OF QUEEN’S BENCH, Quebec, December Term, 1872.

Present: Duvar, C. J., CaRoON, J., DRUMMOND, J,, BADGLEY, J., and MONXK, J.

COMMERCIAL UNION IXS. Co. appellants, and FoOTE, respondent.

Held: That the special power to publish advertisements was inherent in the office of an agent appointed by an insurance company, to take risks and receive premiums ; that such authority was to be presumed ; that the advertising was intended to promote the com pany’s business, and that proof of custom, usage or sanction, on the part of the company, Was unnecessary.

This was an appeal from à judgment rendered on the elghth day of april last, condemning appellants to pay respondent $116.40, for advertising in the “ Quebec Morning Chronicle.” Appellants have their principal place of business at Montreal, and, in 1869 and 1870, they had, us their agent, at Quebec, one Benoit Marquette. In december 1869, Marquette, acting in his said quality, caused an advertisement to be published, in respondent’s newspaper, for and in the interest of appellants, and it continued to be so published, until march 1870. The time during which the advertisement was published, and the price charged therefor are not in dispute. The point raised by appellants was that respondent, as their agent, exceeded his authority in the matter, and that they are not responsible. Respondent’s action was to recover the price of the advertising, which, he alleges, was done by the order of the authorized agent of appellants, and in their interest, The plea was the general issue, The evidence established that the publishing in the “ Chronicle,” was done at the request of Marquette, that it was he who was debited with the amount in respondent’s books: that the account for the printing was sent to him, and of him, repeatedly, it was endeavored to collect the amount, at intervals of three months, running over the period from october 1870 to july ISTI. Andit was only after these delays that the bill for printing was forwarded to appellants and payment requested of them ; that appellants knew nothing about the publishing in the “Chronicle,” until august 1871, when they received a letter from Marquette giving them the information, to which they immediately replied, expressing their disapproval of

what he had done. Reference was to the following authorities. Our Code, art. 1727, states that “the mandator is bound ‘in favor of third persons for the debts of his mandatory, done in execution and within the powers of the mandite, and that the mandator is also answerable for acts which exceed such power, if he have ratified them either ex- “ pressly or tacitly.” The rule as laid down by writers upon the subject is’that the principal is bound by such acts only of the agent as fall within the scope of his power and duties, that the mere existence of the relation of principal and agent, establishes an agency no further than is necessary for the discharge of the duties ordinarily belonging to it. It is so stated in Greenleaf, on evidence, vol. 2, sec. 65, and Pardessus, speaking of the agency which is to be inferred from the employment, says it is “celles qu’il est d'usage de confier à ceux qui “ont de semblables emplois; ainsi le facteur, préposé en “termes généraux à un établissement commercial, est auto- “risé à tout ce que rend nécessaire la direction qui lui est “confiée” Smith, in his Mercantile Law, page 170, writes “ the rule is that the extent of the agent’s authority is (as “between his principal and third parties) to be measured by “ the extent of his usual employment.”

The judgment of the court below was confirmed by the Chief Justice, CARON & DRUMMOND, JJ., BADGLEY & MoNKk,JJ., dissenting. It was thus held, as had been decided by the Superior Court, that the special power to publish advertisements Was inherent in the office of an agent appointed to take risks and receive premiums: that such an authority is to be presumed ; that advertising. was intended to promote appellant’s business, and that the proof of custom, usage or sanction of appellants was not necessary. (3 R. C., 40.)

COMPETENCE.-—-BORNAGE.—EXPERTISE.—ACTION EN DOMMAGES. CouR‘T OF QUEEN’S BENCH, IN APPEAL, December Term, 1872.

Present : DuvaL, C. J., CARON, J., DRUMMOND, J,, BADGLEY, J., and MoxKk, J.

NSKEAD, appellant, «nd MCDONNELL, respondent.

In an action of damages for trespass and for cutting timber, ete., on the property of plaintiff, the question turned upon the boundary line, the property of one being in Ontario, and the other in Quebec. The court ordered an expertise, to establish whether tha timber alleged to have been cut was 80 cut on one side or the other of the line :

Held : That the court had no power to name experts for the pnrpose mentioned, the line to be established being in the province of Ontario.

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This was an appeal from an interlocutory judgment of the Superior Court, ordering an expertise. The declaration of respondent alleged that, while he was the lawful holder of certain timber limits in Ontario, by license from the Crown, under chapter 23 of the Consolidated Statutes of Canada, appellant illegally trespassed upon such limits, and cut down, and carried away timber valued at fourteen hundred dollars. It further alleged that appellant was then in possession of such timber at Quebec, and asked that he be condemned to deliver it up to respondent, or, in default, pay $1400 damages. Appellant pleaded the general issue, and also, specially alleged that all timber cut by him was cut upon his own limits in Ontario, which were adjacent to those held by respondent, The parties went to proof, and respondent having failed to prove that appellant was ever in possession in Lower-Canada, of any timber cut on respondent’s limits, modified the conclusions of his declaration, and restricted his action to damages for the aileged trespass. Thus, at the time of the hearing, the action was simply an action of damages, instituted in the province of Quebec, for alleged grievances com : mitted upon real estate, wholly situate in the province of Ontario. The Superior Court, after hearing the argument, being of opinion that respondent had failed to establish his case, in the exercise of its discretionary powers, ordered the expertise complained of.

One of the considérants of the judgment which was rendered in the court below was as follows : “ Doth order avant “faire droit, that, by experts to be ugreed upon by the “ parties, else named by the court, or by à judge, pursuant to “law, and after consultation in this behalf with the officers “of the Crown Timber Office, the division line be duly estab- “lished and run, and that it be ascertained, by the experts, “ whether the timber to which the witness MeDonnell refers, ‘in his evidence in this case, on the part of plaintitf, as hav- “ing been cut by the persons named Hays & Gillesie, defen- ‘ dant's foremen, was cut on one side or on the other side of “the line, and on which side, and to this end the experts shall “obtain from MeDonnell, or from some other competent per- “son, well posted on the subject, an indication of the spot “where Hays & Gillesie cut said timber, with power to the “erperts to receive oath one of the other, 18 also to swear all “witnesses that may be heard before theia.”

This judgment was reversed by the Court of Queen's Bench, Four of the judges being of opinion that a court, in Lower- Canada, had no authority to naine experts, for the purposes mentioned‘in this interlocutory, the line to be established

nu in the province of Ontario. CaRON, J., dissenting. (3 R. ',. 42.)

236 RAPPORTS JUDICIAIRES REVISÉS ACTION EN REDDITION DE COMPTE.—EXECUTEURS TESTAMENTAIRES CourT or QUEEN'S BENCH, December Term, 1872.

Present : Duvar, C. J., CaRON, J., DRUMMOND, J., BADGLEY, J., and MONK, J.

BossÉ, appellant, and HAMEL, respondent.

The testator, by his will, after making several particular legacies, disseized himself of all his property in favor of his executors, directins that thev should act as such, until his will was carried into effect, and died on the same day as the will was made, and the executors became at once seized of all the property left by the testator. At the expiration of a year and a day, the executors were called upon, by the heir-at-law, to render an account. They pleaded that, after they had paid the particular legacies, they had transferred the whole estate to the universal legatee, in usufruct, to the delivery of which the heir-at-law was a party.

Held': That the executors could not be compelled to render any account to the heir-at-law, under the peculiar cireumstances of the case (1).

Action by an heir-at-law, against the executors, to render an account of their administration. The executors plead that the whole of the estate, movable and imimovable, was bequeathed to x Miss Jourdain, en usufruit, and that the heirat-law, plaintiff in the court below, was present at the délivrance and sanctioned this proceeding. Appellants, in the above cause, along with Augustin Jourdain, were, by the last Will and testament of the late Charles-François Hamel, named executors. By the first clause in this will, the testator directed that his executors above named should pay all his lawful debts. By a subsequent clause, after making several particular legacies, he directed, as respected the remainder of his property, that his executors should dispose of the same, in such à way as he should desire, by à memorandnm that he would leave with his executors, or one of them. By the ninth clause, the testator disseized himself of all his property in favor of his executors, according to the custom, declaring it to be his will that his executors should act as such until his will should be carried into etfect. The testator died on the day the will was executed, and, thereupon, the then executors, above named, became seized of all the movable property left by the testator, and acted as executors. At the expiration of the year and a day, the executors were called upon, by respondent, heir-at-law of the testutor, to render their account. This they refused to do and, thereupon, the

(1) Art. 918 C. C.

present tained de legs tuary, therein a balar obligati count.

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Present