Ferrier v. Trépannier, (1895) 24 SCR 86

Supreme Court of Canada

Ferrier v. Trépannier, (1895) 24 SCR 86

Date: 1895-01-15

JAMES FERRIER et al. es-qualité (DEFENDANTS)

Appellants;

And

DAME A. TREPANNIER (PLAINTIFF)

Respondent.

1894: Oct 4; 1894: Oct 5; 1895: Jan 15

PRESENT:—Sir Henry Strong, C.J., and Taschereau, Gwynne Sedgewick and King JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Building—Want of repair—Damages—Art. 1055 (C.C. Trustees Personal liability of—Executors—Arts. 921, 981a C.C.—Procedure—Appeal.

The owner of property abutting on a highway is under a positive duty to keep it from being a cause of danger to the public by reason of any defect, either in structure, repair, or use and management, which reasonable care can guard against.

Dame A. T. sued J. F. and M. W. F. personally as well as in their quality of testamentary executors and trustees of the will of the late J. F. claiming $4,000 damages for the death of her husband who was killed by a window falling on him from the third story of a building, which formed part of the general estate of the late J. F., but which had been specifically bequeathed to one G. F. and his children for whom the said J. F and J.F.and M.W.F. were also trustees. The judgment of the courts below held the appellants liable in their capacity of executors of the general estate and trustees under the will

Held, that the appellants were responsible for the damages resulting from their negligence in not keeping the building in repair as well personally as in their quality of trustees (d'héritiers fiduciares) for the benefit of G. F.'s children; but were not liable as executors of the general estate.

Where parties are before the court qua executors and the same parties should also be summoned qua trusses an amendment to that effect is sufficient and anew writ of summons is not necessary

Decisions of provincial courts resting upon mere questions of procedure will not be interfered with on appeal to the Supreme Court of Canada except under special circumstances

APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) confirming a judgment of the Superior Court, condemning the appellants in their quality of testamentary executors and

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trustees of and under the will of the late Honourable James Ferrier, to pay to the respondent $4,000 as damages.

The action was brought to recover the sum of $10,000 as damages from appellants personally as well as in their quality of testamentary executors of the late Honourable James Ferrier and trustees under his will for the death of plaintiffs husband, Patrick Byrne, alleged to have been caused on the 5th of February, 1890, through the negligence of appellants by allowing a ventilator or part of a window to fall on the said Byrne while he was passing a building on Notre Dame Street, in the city of Montreal the plaintiff alleging that the building belonged to the estate of the late Honourable James Ferrier and was in the care and under the control and charge of appellants. The facts and pleadings are given in the judgment hereinafter given.

Saint-Pierre Q.C. for appellants and Taylor for the respondent.

The points of argument relied on and authorities cited by the learned counsel are reviewed in the judgment.

THE CHIEF JUSTICE.—I concur in the judgment of Mr. Justice Taschereau, except as to the question of costs. I am of opinion that there is no reason why the respondent should not have her costs. The appellants were sued personally as well as in quality and it is in my opinion a matter of indifference to the respondent whether she had a judgment against the trustees in quality or against them personally, and to the latter she is strictly entitled.

TASCHEHEAU J.—This is an appeal from a judgment of the Court of Queen's Bench, confirming a judgment of the Superior Court by which the appellants were condemned

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under art. 1056 of the Civil Code to pay to the respondent $4,000 damages for the death of her husband under the following circumstances

On the 5th February, 1890, Patrick Byrne, the deceased, was walking along" the sidewalk on Notre Dame Street, in Montreal, when, on reaching the spot opposite a large building known as the Ferrier block he was killed by a window which fell on him from the third story of the building. The respondent alleges by her action that the defendants were then in possession of the said building in their quality of executors and trustees (administrateurs par fiducie,) ([1]), under the will of the late Honourable James Ferrier who died on the 30th of May, 1888 ; that, by the said will, the powers of the said appellants as executors were extended over he year and a day prescribed by law ; that the hinges which supported the said window were previously broken or cracked, and not strong enough to support it ; that the said appellants were therefore guilty of negligence in not seeing that this window was firmly secured; that Patrick Byrne's death was due to the negligence and .culpable imprudence of the appellants ; that the respondent, under these circumstances, has right to be indemnified by the appellants for the damages amounting to $10,000, resulting to her from his death caused by the said accident of which the appellants are answerable in law."

By the writ, as amended, the appellants were summoned " as well personally, as in their quality of testamentary executors and trustees of the late Hon. James Ferrier in virtue of his will "

An objection taken by the appellants to an amendment made on the 10th September, 1891, by the

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respondent, with leave of the Superior Court, should be considered in limine

By the writ and déclaration the appellants were originally impelled only personally and in their quality of executors. The amendment in question consisted in adding them to the case in their quality of trustees. Their objection to this proceeding cannot prevail. It rests upon a mere question of procedure, and upon such questions the decisions of the provincial courts, according to a well established jurisprudence of this court, are not to be interfered with, except under special circumstances, none of which appear in this case : Gladwin v. Cummings ; Dawson v. Union Bank ([2]); Mayor of Montreal v . Brown ([3]); Boston v. Lelivvre ([4]). The Court of Queen's Bench has sanctioned the act of the Superior Court in the matter, and we cannot be asked to reverse the concurrent decisions of the two courts on a question of this nature, even were we inclined to doubt its legality. in this case, however, the appellants have no ground of complaint against this granting of leave to amend by the Superior Court in the exercise of its discretion. It was argued that if the executors and the trustees had not been the same persons, as in this case, the trustees, if not summoned with the executors in first instance could not have been mis en cause by simply amending the writ, and consequently that the appellants here, having by the original writ been summoned only in their quality of executors, could not be brought in the case in their quality of trustees by a simple amendment, when prescription against the action had been acquired. Now, it is true, I presume, that if the trustees had been different Persons from the executors a new writ of summons would have been necessary to bring them in the case.

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But why? Because then they would not have been before the court at all on a writ against the executors only. But when as here, the trustees and the executors are the same persons, there was no necessity, as pointed out by the learned Chief Justice of the Queen's Bench, as they were before the court qua executors to issue a new writ to bring them in. nunc pro tune qua trustees. Connolly y. Bonneville ([5]) ; The Ontario Bank y. Chaplin ([6]) ; Lefebvee y. Seath ([7]).

They were, therefore, rightly held to be parties to the case in the Superior Court in their quality of trustees, as well as personally and in their quality of executors.

I will go on with the consideration of the appeal by the trustees, as argued before us, assuming for the present that there is such an appeal, as distinct from the appeal by the appellants personally, or in their quality of executors. The appellants' contention on this branch of the case is more one in the nature of an exception à la forme, than of an objection to the merits. They argue that the judgment against them as trustees for the whole estate (as they assume it to be) cannot stand because, under the will of the late James Ferrier, they were at the time of this accident in possession of the building in question exclusively as trustees for the children of his son, George Ferrier, and not at all as trustees for the estate generally. That contention is founded in law ; a judgment against them as trustees for the whole estate, so as to be executory against the whole estate could not be supported. But as I read the writ with the declaration and the will together, it is only as trustees in possession of this particular building, for George's children, that the appellants are sued as trustees at all, and in that quality

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only that they could be condemned. Then they are summoned as trustees, (as provided for by the will, which the word trustees under the will, or in virtue of the will, unquestionably mean, and when the will provides that as to this building the appellants are trustees for George's children exclusively, I do not see how it could ever be possible for the respondent to contend that the judgment she has obtained against the appellants, as trustees, is against them as trustees of the whole estate. However, all difficulty on this point will be set at rest by our ordering, as the whole record is before us ([8]), that to the judgment against the appellants as trustees, be added the words : "as trustees for the benefit of the children of George Davies Ferrier." That is the judgment which the Superior Court must have intended to give, and which the learned Chief Justice of the Court of Queen's Bench evidently also took it for granted had been rendered on this issue by the Superior Court.

The next question that arises on this part of the case, is as to the liability of the owners of this building for the damages arising from the accident in question. On this point there is no difficulty that I can see. The respondent's right to recover is plain. The accident was due to a want of repairs, or a vice de construction, or perhaps both, and that is conclusive as to the owners' liability. Art, 1055 C. C. ; 2 Sourdat no. 1169.

The case is just the same as if Byrne had been killed by a stone falling from the wall of the house or by the crumbling of the wail itself.

The owner of property abutting on a highway is under a positive duty to keep it from being a cause of danger to the public by reason of any defect, either in structure, repair or use and management, which reasonable care can guard against. Demolombe des Contrats

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([9]) Rancour v. Hunt ([10]) Laurent ([11]) Pollock on Torts ([12]). And he is responsible for all the damages which may result from any neglect of that duty.

The owners here might also, perhaps, be held liable under the rule respondeat superior, contained in art» 1054 of the Civil Code Laurent ([13]) Sérandat v Saisee ([14]) Morlera v. Roques ([15]) Ville de la Tour du Pin v. Collomb ([16]) ; Schumberger v. Sébastien ([17]) ; Goulet v. Stafford ([18]).

However, their liability under art. 1055 is so clear that it is unnecessary to determine here whether they would also fall under the circumstances of the case under art. 1054. How far they are affected by a judgment against the trustees does not arise in this case. The question has not been raised at the bar and is not passed upon by the courts below.

I would hold, then, that the condemnation against the appellants qua trustees, or héritiers jiduciaires, for George's children is unimpeachable. Arts. 869, 981a, et seq. CC. ; Montvalon des Succession ([19]); Laurent ([20]); Succession of Franklin ([21]).

It has not been impeached, however. The appellants in their quality of trustees were not parties to the appeal to the Court of Queen's Bench, and they, in that quality are therefore not before this court where to no appeal lies but from the Court of Queen's Bench. We could not consequently, in any case, have interfered with the judgment against them in that quality. It stands as rendered by the Superior Court. The fact that both parties assumed before us and in the Queen's

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Bench that the trustees, as well as the appellants personally and as executors, were parties to the appeal cannot give us jurisdiction. However, as the case was fully argued on their part I deemed it better to satisfy them that they had lost nothing by not joining in the appeal, though my remarks on this part of the case must, of course, remain obiter dicta.

I will now consider the appeal of that part of the judgment which holds the appellants liable for the consequences of the accident in their quality of executors of the will of the late James Ferrier generally. The respondent on this branch of the case contends that the whole corpus of the estate of the late James Ferrier is liable for the damages accruing to her from the death of her husband and that her action is therefore rightly directed against the appellants in their quality of executors The court quo has maintained this contention This judgment cannot, in my opinion, be supported. The respondent's action does not lie against the estate, and did it lie against the estate it could not have been brought against the executors alone. It is undoubtedly true as remarked by the learned Chief Justice of the Court of Queen’s Bench that the seisin of the executor overrides the seisin of the legatee whenever a conflict between them. Archambault v. The Citizens' Ins. Co. ([22]) Normandeau v. McDnnnell ([23]). But it is only as a depositary that the executor is seized ([24]). And his possession is the possession of the legatee ([25]). Pothier, Introd. à Cour d'Orléans ([26]) Pothier Donat & Test. ([27]) ; Delvincourt ([28]) ; Laurent ([29]). Peendant qu'une chose est en dépôt" says Domat ([30]) ; "le maître en conserve

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la possession, et son dépositaire possède pour lui.

The executor represents the deceased it has been argued. That is so in a limited sense. But the accident in question has not been caused by the deceased James Ferrier; and the respondent's claim is not one that originated in the late James Ferrier's life time, one which he left at his death attached to his succession. And the executor does not represent the legatees. Nor can he e exercer les actions de la succession, et les actions contre la succession, qui ne sont pas du chef du testateur, ne peuvent pas non plus être exercées contre lui. Roux v. Crochet ([31]); Chalupt v. Bernard ([32]) ; Coin-Delisle ([33]); Domolombe Donation ([34]); Marcadé ([35]); Dal. Rep. Suppl. vo. Dispositions ([36]). By art. 919 of the code it is enacted, it is true, that the executor may be sued for whatever falls within the scope of his duties, and it has been held in de Léry v. Campbell ([37]), and that class of cases through that seems to be a controvertible point that as the payment of the testator's debts falls within the scope of his duties he might be sued for them (though a judgment against him does not bind the heirs or universal legatees). But those cases have no application; this is not an action for a debt or an obligation of the testator, or one which concerns in any way the execution of the will. It is against the executor, it has been argued for the respondent that third parties must look to for redress in the event of their having any claim against the estate. But this argument rests on a fallacy. It is petitio principii. It assumes that the respondent has a claim against the whole estate for an accident caused by the negligence of those in charge of a house exclusively bequeathed to George's sons. But that is the very

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point to be determined, and which, in my view of the question, must be determined adversely to the respondent. Why the whole estate should be responsible for her damages I entirely fail to see. If damages had been caused to this particular house, in 1890, it has been further argued on her part, "it is the executors as such who would have been entitled to sue to recover the damages done to the estate, and reversing the proposition it must likewise be the executors who are liable to be sued for damages caused to a third party by something belonging to the estate, which was used by them for its benefit." But here again the respondent s reasoning is faulty. If any damage had been done to this house in 1890 it is not the whole estate which would have suffered thereby, but only George's representatives, the owners of the house. And the damages claimed here by the respondent are not d damages caused by something belonging to the estate which was used by them for its benefit," to quote the respondent's own words ; this house does not belong to the estate, and it was not, in 1890, used by the executors for the benefit of the estate. It belongs to and is the legal possession of George's children, to whom exclusively it has been bequeathed, and who became seized with it as owners immediately at the testator's death. Arguendo Woolrich v. Bank of Montreal ([38]) ; Dall. Rep. Suppl. vo. Dispositions ([39]). There has been no partage, it has been further said for the respondent. But this building has not been bequeathed par indivis, but directly and exclusively to George's children, whose ownership the appellants, as executors, do not represent. Duplessi sur Cout. de Paris ([40]) ; Laurent ([41])

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A judgment against an executor alone is, as to the legatees, res inter cilios acta, and is not executory against the estate, as held by this court in Lionais v. The Molsons Bank ([42]). And an action against him would not interrupt a prescription that has begun to run in favour of the legatees.

It has been also said for the respondent that the administration of the succession as to third parties is indivisible, and that consequently a claim against the estate is well brought against the executor. But this again is unsound reasoning. First, she has no claim against the estate, and secondly, an action upon a claim against the estate not arising from the de cujus or the execution of the will, is not well brought against the executor alone.

Then, in 1890, the appellants' functions as executors had lapsed so far at least as concerns this building. The administration of George's share in their hands is as distinct and separate from the administration of the other shares, bequeathed by the late James Ferrier, as if different persons were administrators of each of those shares. This shows that it is as trustees that they were in possession of this building and not as executors If the will had named one person executor and another person trustee, it is clearly the trustee who would have been in possession of this building for George's children when the accident happened. And if this accident had been caused by the building bequeathed to the appellant, James Ferrier, personally, the respondent I am sure would have instituted her action against him personally, and not against him as executor of the estate. Now, the building in question in this case belongs to George's representatives, exclusively, just as much as the building bequeathed to

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James Ferrié, the appellant, now belongs to him and not to the estate.

And by the express terms of the will itself, whether the appellants be considered as administrators under art. 921 of the civil code or whether as trustees under art. 981a their powers as executors had come to an end when this accident happened. The will does certainly give them as executors the seizing of the real estate as well as of the personal estate, but there is an express limitation put upon this extension of their powers by the testator : "And the powers of my executors shall, so far as it is necessary for the fulfillment of this my will, extend not only over all my personal but also over all my real estate," says the will. Now, so far as it was necessary for the execution of the will the duties of the executors, as executors, had been all fulfilled when this accident happened. They had duly registered the will with a certificate of the testator's death, as required by art. 2098 of the code, and their functions were effete. Guinchard v Laneuville ([43]). If the respondent's contention were to prevail the appellants would never be trustees or would never have possession of this building as trustees. They would continue to be merely executors, and in possession merely in that quality, up to the time when George's. children will all be of age. Now that cannot be; the will says the contrary. The appellants. it is true, appear to have given leases of the house in question in 1890, and since, in their quality of executors. But they were wrong in doing so. Though this is of no consequence whatever, it is as trustees that. they should have been described in the leases.

Then, the respondent is now estopped from contending that it was as executors that the appellants were in possession of this building in 1890. She has, on this

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record, upon the issue between herself and the appellants quâ trustees, a judgment which I have already commented upon, declaring them to have been in possession quâ trustees. The direct and necessary result of that judgment is that they were not in possession quâ executors. This, it seems to me, is conclusive against her on this part of the case. She cannot be allowed to take such incompatible positions.

However this is quite immaterial in my view of the question. Assuming that it was as executors that they were in possession in 1890, and that it is now open to the respondent to so contend, her action, in my opinion does not lie against them in that quality so as to bind the estate

My conclusions, therefore, on this part of the appeal are: 1st. It is res judicata against the respondent upon this record that it is not as executors that the appellants, were at the time of this accident, in possession of the building in question.

2nd. Even if the executors had been in possession the corpus of the estate is not liable for the respondent's damages.

3rd. Even if the executors had been in possession and assuming that the whole estate might be liable, this action does not lie against the executors alone

The appeal by the executors should therefore be allowed, and the action, as to them, dismissed.

I now come to the consideration of the action as "against the appellants personally.

Neither the Superior Court nor the Court of Queen's Bench seem to have passed on this issue. Although by the judgment the condemnation would seem to be against the appellants quâ executors and trustees only, yet the action as to them personally is not dismissed. How that happened there is nothing in the record to show. It seems impossible to attribute it to anything

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else than to an oversight, for which, undoubtedly, the parties themselves are mainly responsible. I would not feel justified in presuming that they, on one side or the other, have paid more attention to the case in the courts below than they have in this court. That there is, on the record, such an issue between the appellants and the respondent personally is unquestionable. The writ summons them personally, in no ambiguous terms. The respondent, by her declaration, "se plaint des défendeurs tels que désignés au dit bref." She then charges them with the negligence that caused the accident. The conclusions, I notices, are not in clear terms against them personally, but they cannot but be taken, when read with the preceding allegations, as conclusions against all the parties described in the writ of summons. And they have so been taken by the appellants themselves. They appeared and pleaded jointly as summoned, that is to say personally as well as in their quality of executors and in their quality of trustees.

By the general issue they allege that they are not indebted either personally or in their quality of executors and trustees. By a second plea they allege that they were not personally in possession of the building in question when this accident happened, or in any way personally responsible for the said building or the said accident and that they could in no case be held responsible for it, or in any way be held personally responsible for this accident.

And that the case was treated all along on both sides, as involving the appellants' personal liability, further appears, if more were necessary, at the trial, when James Ferrier one of the appellants was called as a witness on behalf of the defence The respondent immediately upon the said James Ferrier being sworn, objected to his examination "inasmuch as he was one

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of the defendants, the issue being common to all the defendants." Then the appeal to the Queen's Bench was taken, as appears by the inscription itself, by the defendants "personally for any rights they may have." These last words are not in the writ of summons, but they may be treated as ex abundanli cautelelu; they are meaningless; any party to a case appears to defend any rights he may have. It is evident that they considered the action still pending against them, for if the judgment of the Superior Court had put them personally out of the case they would not have had to appear as appellants in the Queen's Bench.

After joining issue with the respondent in the Superior Court, after going to trial on that issue, after having been parties to the appeal in the Court of Queen's Bench, the appellants cannot but be yet considered, for all intents and purposes, as parties to the case in their individual capacity. They were in the case by the writ of summons, and they have never since ceased to be parties to it, either by a judgment or by any act of procedure that I can see on the record, either here or in the court below. They are therefore parties to this appeal. So that we have to consider this issue, and render upon it the judgment that, in our opinion, the court below should have given.

Now, are the appellants personally liable for the damages resulting to the respondent from the said accident? To this question there is to my mind, room for but one answer. They are the parties primarily liable ; they are the guilty parties in the first" degree; they are the parties responsible above and before any others ([44]). It is their personal fault and negligence which is the immediate cause of this accident. They were at the time, in actual possession of this building; it was under their exclusive control and superintendence, whether as trustees or executors, as dépositaires

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or sequestrators, or in any other fiduciary capacity whatever, does not make the least difference, or lessen in any way their own personal liability for tortious negligence whereby a third party suffered damages.

Culpa tenet suos autores. They are tort-feasors. It -was their duty to keep this building in repair, and it is to a breach of that duty that Patrick Byrne's death is due. Aubry & Rau ([45]) ; Addison on Torts ([46]) ; Sherman & Redfield on Negligence ([47]) ; Beven on Negligence ([48]); Roberts v. Mitchell ([49]).

In a case of this kind there may sometimes be a doubt as to the liability of the cestui que trust, or the principal, but upon the liability of the wrongdoer himself there is no room for controversy. He cannot use his fiduciary quality as a shield, and claim immunity because he was in possession in the name of others. Pollock on Torts ([50]).

This fundamental principle of what Demolombe calls "la personnalité de la peine" ([51]) governs as to third parties, all mandataries, trustees, depositaries, or bailees of whatever species and therefore rules this case ; for, under the express provision of art. 891a of the code, it is as depositaries or sequestrators that the appellants, at the time of this accident, were in possession of this building. The following authorities have therefore their full application. Beauguillot v. Caillemer ([52]);

Le géant d'une propriété peut être condamné personnellement à des dommages interêts, à raison d'un fait commis par lui en sa qualité, lorsque ce fait a le caractère de délit ou quasi-délit; en ce cas le gérant ne peut opposer l'exception de mandat.

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A driver by his negligence caused, an accident. He and his master were condemned solidairement. L'Etat v. Berthet ([53]).

Dans tons les cas, il va de soi que le mandataire est personnellement responsable envers les tiers de délit ou quasi-délits qu'il a commis dans l'accomplissement du mandat ([54]).

Celui qui a commis- un délit ou quasi-délit n'est pas recevable à soutenir pour échapper à toute responsabilité qu'il n'a agi que par les ordres ou pour le compte d'autrui ([55]).

Guillouard, Mandat ([56]) ; Hood v. Stewart ([57]) ; Camp- v. Church of St. Louis ([58]). Mer v. Broussais ([59]).

La règle que le mandataire représente le mandant à l'égard des tiers, n'est pas applicable en cas de quasi-délits, le mandataire est alors tenu de réparer le dommage qu'il a cause par sa faute.

L'exécuteur testamentaire est un mandataire, et comme tel, passible des dommages causés par sa négligence.

Gertran v. Dehaulme ([60]) ; Perignon v. Syndic du chemin de fer de Gisors ([61]).

Le mandant peut suivant les circonstances être déclaré responsable du quasi-délit commis par son mandataire, dans l'exercice de son mandat. Mais sa responsabilité ne fait point obstacle à celle du mandataire, qui, en prenant part an quasi-délit, encourt les consequences du fait illicite auquel il a participe.

As to the findings of fact of the Superior Court, concurred in as they have been by the Court of Queen's Bench, the appellants cannot expect us to reverse. We could not do so without disregarding a well settled-jurisprudence as to appeals on questions of fact. Moreover the evidence, though not all one way, is in my opinion very strong against the appellants, so much so that it would, to my mind, have justified an indictment for manslaughter. An action as this one, in the express-terms of art. 1056 of the code under which it is brought does not prejudice the criminal proceedings to which.

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the parties may be subject. Neither can the appellants expect us to interfere upon the amount of damages and they rightly refrained from pressing this part of their appeal.

We could not very well hold that the courts below erred in estimating the loss of a husband at $4,000, when we ourselves have estimated at $3000 the loss of a finger. Gingras v. Desilets ([62]).

The result is 1st that the appeal of the defendants in their quality of executors is allowed, and the action dismissed as against them in that quality ; no costs.. 2nd. As to the action against the appellants in their quality of trustees, there being no appeal on that issue. the judgment of the Superior Court stands as rendered for $4000 and interest from May 27th, 1893, and costs in Superior Court distraits, and with the addition of the words after as trustees :"for the benefit of the children of George Davies Ferrier."

As to the action against them personally, judgment will be entered for $4,000 and interest from May 27th, 1893, date of judgment in the Superior Court, with costs in the Superior Court distraits. Each party paying his costs of the appeals in the Queen's Bench and in this court; appeal allowed; no costs. The judgment will therefore thus end :

Condamne les défendeurs tant personnellement qu'en leur qualité d'héritiers fiduciaires (trustees) pour le bénéfice des enfants de George Davies Ferrier a paver à la demanderesse Ia somme de $4,000 avec intérêt du 27 mai 1893, et les dépens de la Cour Supérieure distraits à

"Et sur l'issue entre la demanderesse et les défendeurs en leur qualité d'exécuteurs testamentaires met les parties hors de cour. Chaque personne paiera ses frais sur le present appel, ainsi que sur l'appel devant la cour du Banc de la Reine.

GWYNNE SEDGEWICK and KING JJ. concurred.

Appeal allowed without costs.

Solicitors for appellants : Taylor & Buchan.

Solicitors for respondent : Saint Pierre & Pelissier.