COUR NUPÉRIEURE, EN REVISION
Montréal, 31 mai 1873.
Ÿ Présents: JOHNSON, TORRANCE, BEAUDRY, JT.
OÙ Goverre vs McDoxaLp.
Jugé: Qu'un capias d'eerné sans l’ordre d’un juge, dans une cause où le principal droit d'action consiste dans le recouvrement de dommages, sera cassé et annulé sur motion.
The judgment of the Superior Court at Beauharnois, which is brought before us by this inscription, was x judgment granting x motion that was made by defendant to quash a writ of capias ad respondendum, on the ground that it had issued for unliquidated damages, without the order of x
QT due, under the SO1st art. of the Code of Civil Procedure (1). 4 lac affiduvit upon which the writ issued sets forth that MA plaintiff had a hypothecary claim for an amount exceeding #1 10, on an undivided balf of a lot of land which was men- À tioncd in it, by virtue of a deed of obligation executed by
Remy Marchand in his favor : that defendant wus the proprietor and détenteur of the half of this lot, and that the other half was the property of plaintiff: that defendant had acquired his half from Marchand, and that plaintiffs créance hypothécaire affected both halves of the lot, The affidavit then charges the defendant with cutting and taking away all the wood on his half of the lot, thus damaging and deteriorating the value of the land, with the intention of defrauding plaintiff in such a way as to hinder pluintiff from recovering his claim: and that without ‘ne benefit of a writ of
ts
1) Art, 899 C, P, C, de 1867,
capias he might be deprived of his recourse and suffer damage. Defendant was arrested and released on bail, and on the 17th of march last, he moved that the writ be declared to have issued irregularly and illegally, and that it be quashed. The reasons assigned, with the exception of that foundeil upon the necessity of a judge’s order, need not be mentioned. We are all of opinion that the only ground of action plaintiff had, consisted of the damages he night suffer by the deterioration of his security, that these damages were unliquidated and that the writ could not issue without à judges order, The judgment of the court below is therefore contirmed. (4 R. L,, 538.)
REVISION.-—DEFENS.
COUR SUPÉRIEURE, EN REVISION, Montréal, 31 mi 1875
Présents : JOHNSON, MACKAY, TORRANCE, JY.
INTERCOLONIAL COAL Co. vs SHAW.
Jugé: Que la partie, qui inscrit en Cour de Revision et qui n'obtient une modification de j juge ment que quant aux frais, n'aura pas les frais de revision, mais qu’en ce cas chaque partie paiera ses frais.
Per CuRiAM: This inscription is by defendant to revise the merits of à judgment against him, which under the evidence we unanimonsiy contfirm. There is one small point however to be correcte d. Costs were not asked by the dec laration, and so far the judgment is wltrà petitu. In appeal and also in this court it has been held that a mere question of costs does not entitle the party to come into court, ani, therefore, though we reform in this small particular the judgment & quo, We do so without giving the inseribing party costs, and we order each party to pay his own costs in this court. (4 R. L.,, 539: 14 R. L, 55.)
