EXPERTISE.—COMMISSION DEL CREDERE

SUPEIOR COURT, IN REVIEW, Montreal, 28th February 1873.

Present : MACKAY, J, TORRANCE, J., and BEAUDRY, J. JOHN YOUNG ct al, vs CONVERSE, and e contra.

Plaintiffs were commission merchants, and used to advance money to Converse, to curry on his rope Works, plaintiffs to have the making of all sales, and to have a del eredere comnussion of five per cent ; also seven per cent interest on monevs due them. In June 1866, the agreement ended, and. afterwards, differences arose in settling accounts. In 167, plaintifis sued Converse for a balance alleged to be due them. Detendant resiste l, objecting to different items in plaintiffs account, and pleaded that, instead of his being in debt to plaintiffs, the latter owed him a certain sum for which defendant brought incidental demand, The court ordered the case to be referred to an accountant, with authority to hear the parties, ete.

Hold: Thot that reference was ultrà vires of the court that ordered it ;

That the very nature of del credere commission is that the merchant making it become insurer.

MaACKkaAY, J.: Plaintiffs are commission merchants, and used to advance money to Converse, to carry on his rope works, plaintiffs to have the making of all sales, and to have a del credere commission of five per cent. ; also seven per cent.

interest on moneys due them. In june 1866, the agreement ended and, afterwards, differences arose in settling accounts, Plaintifis, at last, in 1867, sued Converse for &3305. balance alleged due them. Defendant resisted, objecting to different items in plaintiffs accounts, claimel credits beyond what plaintitfs were allowing, and pleaded that, instead of his being in debt to plaintitfs, the latter owed him #3329 with interest at 7 per cent. from 30th june 1866, for which defendant brings incidental demand, The parties went to proof and argument, when the learned judge, who heard the case, ordered it, on the 30th january 1872, to be referred to John G. Dinning, as acconntant, with authority to hear the parties, examine the: record and accounts, and to report as to whether certain sales of cordage made to one Dinning of Quebec were guaranteed by plaintifis : also whether a sale to Harvey & 3olton, of Chicago, was so guaranteed ; what amount is due, &e. Dinning proceeded to his operations, the plaintiffs refusing to go before him, and, on the 14th march, he tiled his report, which is very formal, as execution of the work that was assigned to him. Converse moved to homologate the report, w hile the plaintis moved that it should Le set aside, upon the ground that the reference, as made to Dinning, was ultrà vires of the Court or judywe who ordered it, ani the report itself illegal. By the final judgment of may 1872, now appeuled from, Converses motion was granted : plaintiffs” was rejected : plaintitis action was dismissed, and the incidental demand maintained to the extent of $3197.97, with interest at 7 per cent. from 30th june 1866; the learned judge & quo evidently basing his judgment upon Dinning's report. Plaintitts and incidental’ defendants inscribe in revision, and we have to determine, first, as to the validity of the reference to Dinning, as made, We are unanimously of opinion that that reference was ultrà vires of the Court that ordered it. Dinning has questions purely of law put to him for his report. This cannot be allowed, and his report is by us now rejected. There remains, in consequence, to be disposed of the case generally upon the merits. The parties addressed themselves, in debate before us, to three things principally. 1st. The correctness of the charge of $189434, for the Dinning note. The sale to Dinning, of Quebec, for which the note was taken, never mind how, or by whom the sale was made, we find to have been guarantecd by plaintiffs. It was credited to Converse. Plaintitts proved upon the note against Dinning’s bankrupt estate, and now we hold that they can't charge back the note against Converse, Del credere commission was charged by plaintitfs upon the sale. The very nature of such «x charge is

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