PAILLITE.—DOMMAGE3S.—AGENCE.—PREUVE

SUPERIOR COURT, Montreal, 17th may 1872.

MURPHY vs THE CANADIAN EXPRESS Co.

Plaintiff had established an agency in New-Brunswick, and his agent there sent him money through the express company. Plaintiff having failed in the interim, the express company retained it in their Pssession, and the agency was by this means broken up.

!’eld': That plaintiff was not entitled to recover, as there was no proof of direct damages ; and, moreover, tho company had a right to retain the money, until the ownership of it was established (1).

MackaAY, J.: This was an action of damages for #1000. Plaintif alleged that, on the 1st of march 1871, he had established a most valuable business in Suint-John, N.B, having one Cohen to act as agent for a patent there. He says he would have succeeded in pushing the business but for the following circumstances : He sent some goods to Cohen, and Cohen sent him first 850, and afterwards the balance $13 through the express company. It was with reference to this S13 that the whole difficulty occurred. Plaintitf having failed, the company for some time retained the $13. At first, they said they had not it. In the meuntime, Cohen sent plaintiff an order for more goods, but plaintiff (not having received the $13 balance) would not send them, plaintiff says that, so, Cohen lost confidence in him, and their connection was broken of Defendants say that no such damages as pretended can

il} Art, 1074 0, C

be claimed, that they are too indirect ; and that the delay in payiog the $13 was justifiuble; plaintitfs assignee, Stewart, having made a claim for the money in their hands. They

said, moreover, that the business in Saint-John never existe ri that Cohen was a man plaintitf would not trust for 813, for it was on account of the company's retaining this $13, that plaintiff would not trust Cohen with any more gouts, and the agency fell to the ground. They said, further, that plaintiffs

patent is worth nothing, and that $1000 protit that plaintitr

hoped to make out of it was perfectly visionary. What were the proofs ? Cohen was not examined to prove the agency, though he ought to have been. The only witness was “plain. tirs” son, aged 13, who said his father must have sutfered $1,000 loss, by his business being broken off. This is a poor kind of proof, As to the patent, one witness suys it Was not worth five dollars. The court had to find on this demand for indirect dumages (as had been found from all times), that such damages could not be allowed. Besides, if any one really suflered, it was the assignee of Murphy, to whom the $13 really belonged. Action dismissed. (4 R. L., 226.)

DESISTEMENT.—CHOSE JUGEE.

Cour SUPÉRIEURE, EN REVISION, Montréal, 30 septembre 1870,

Présents : MONDELET, J., TORRANCE, J., BEAUDRY, J. SALVAS v8 GUÉVREMONT.

Jugé : 1° Qu'un désisteme nt d’une partie de la créance réclamée, n'est qu'une ‘ discontinuation " (1), discontinuance,

2° Que le désistement n'est pas un abandon du droit de porter une

seconde demande et ne produit pas chose jugée (2).

Dans une cause mue et pendante à la Cour Supérieure de Montréal, entre Jean-Baptiste Coutu, demandeur, et Jean- Baptiste Guévremont, défendeur, le demandeur, ayant poursuivi pour le montant de deux billets souscrits en sa faveur par le défendeur, fit, le 20 mai 1864 la motion suivante :

(1) Cette expression que l'on treuve à l’art, 25 du chap. S2S, R. B. Cest impropre et a été bannie du code de procédure e ivile de 1867 is 275 C. P.C.

de 1897).

(2) Art. 450 C. P, C. ‘ Une partie peut en tout temps avant A se

ss LEE 8 désa demande ou procédure, à la condition de payer Îles frais (Arts, 451, 452, 454 (Art, 276, 277 et 278 C. P. C. de 1897)

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delay in , Stewart, ds. They r existed :

S13, for it S$13, that s and the plaintiffs t plaintitf hat were e agency, was plaine suffered s is à poor jt was not emand for mes), that r one realm the S13

re 1S70,