appelable, les parties ont le droit de se faire entendre avant que jugement final soit rendu. Motion rejetée. (9 D. T. B. C., p. 226.) LANGEVIN, F. X., pour le Demandeur. PROCES PAR JURY.-PROCEDURE. QUEEN'S BENCH, APPEAL SIDE, Quebec, 4th May, 1859. Before Sir L. H. LAFONTAINE, Baronet, Chief-Justice, AYLWIN, DUVAL and MEREDITH, Justices. WHYTE, Defendant below, Appellant, and NYE, Plaintiff below, Respondent. Dans une action pour injures verbales le Demandeur, dans une exception filée par lui, déclara qu'il faisait option d'un procès par juré, l'exception fut renvoyée sur défense en droit, il ne fit aucune déclaration par son second plaidoyer, mais subséquemment il fit motion " qu'il lui soit permis de renouveler sa déclaration qu'il demande un procès par "juré, et qu'il fait son choix à cet effet." Du jugement renvoyant cette motion le Défendeur interjeta appel : Jugé 1o Que la déclaration du choix fait par l'exception du Défendeur subsistait nonobstant le renvoi de telle exception, et donnait droit au Défendeur d'obtenir un procès par juré. 2o Que la motion telle que produite était de fait une motion pour acte qui ne pouvait affecter les droits du Demandeur, et eût dû être accordée. (1) The Plaintiff's action was in damages for injures verbales, and Defendant pleaded an exception in which he declared his option of a trial by jury, also a défense au fond en fait, in which nothing was said as to the mode of trial. The Plaintiff filed a demurrer, or answer in law, to the exception, and, by judgment rendered by Justice Smith, on the 28th December, 1857, the answer in law was maintained, and the exception dismissed. On the 20th April, 1858, Defendant moved, inasmuch as the exception had been dismissed without reserving to Defendant his right to a jury trial," that he be allowed to "renew his declaration that he desires a trial by jury, and "makes his option to that effect." Judgment was rendered on this motion by Justice Mondelet, on the 30th April, 1858, to the effect that Defendant “take nothing by his motion." From this interlocutory judgment, an appeal was instituted. The Respondent contended: 1° That the judgment on the demurrer not being before the court, the court could not inquire into the correctness of that judgment, in point of law, nor into the question whether it did or did not deprive Appellant of a jury trial; 2° That the motion to renew the declaration of option already made was properly rejected, it being based on the assumption referred to, as to the effect and extend of a judgment rendered by another judge, the legality or ground of that judgment not being directly raised by that motion; 3o That Appellant was bound to proceed with the case in such way as to raise directly before the inferior tribunal, and to get its direct adjudication on the point of his right to a jury trial, so that the Court of Appeals might have had before it a substantive judgment and not an indirect and implied conclusion, or inference such as the Appellant sought to sustain; 4 That such a course was the more necessary, because Respondent was justified in treating the motion, as to renewed option, as unnecessary and therefore illegal, and as assuming the loss of a right not adjudicated upon; 5o That Respondent would be deprived, by the proceedings of Appellant, of his right to desist from a judgment if given adversely to Appellant, directly adjudicating on the point of the right to a jury trial, in case he supposed the option validly made by the exception; 6° That Appellant was not deprived of his right to a jury trial, if such right existed. AYLWIN, Justice, rendered the judgment of the court, and said that Defendant's option for a jury trial subsisted, notwithstanding the dismissal of the plea; and that the motion made was in effect a prayer for acte which could not prejudice the rights of Respondent, and ought to have been granted. MEREDITH, Justice: It seems to me it would have been more regular for Appellant to have waited for his adversary to proceed, and if such proceeding tended to deprive him of a trial by jury, then he might have moved to reject it; or Appellant might himself have made a motion for the issuing of a venire, or adopted some proceeding to raise the question as to his right to such trial. I do not think it necessary however to dissent from the judgment 66 THE COURT: Seeing that Appellant, who was Defendant in the court below, in and by his plea of exception duly declared his option to have and obtain a trial by jury of the issue between the parties; seeing that although the plea of exception was overruled and set aside by the court below, yet the option so declared by Appellant, still subsisted unimpaired, and withdrew the decision of the fact from the court, and entitled Appellant to obtain the verdict of a jury; seeing that the motion made by Appellant on the twentieth day of April, 1858, in the court below, that he be allowed to renew his declaration that he de sired a trial by jury, was in fact a motion for arte of his declaration which, majori cautela, he might lawfully make, and was one, which in no manner could prejudice the rights of Respondent, or injuriously affect his interests seeing that, therefore, in the judgment of the court below, by which the said motion was rejected, there is error, it is considered and adjudged that the judgment rendered in the Superior Court, at Montreal, on the thirtieth day of April, 1858, be, and the same is hereby reversed; and, proceeding to render the judgment which the court below ought to have rendered, it is considered and adjudged, by the court, now here, that acte be and the same hereby is given to Appellant, of the renewal of his declaration that he desires a trial by jury, to serve and avail him to all legal intents and purposes." (9 D. T. B. C., p. 228.) ARMSTRONG, for Plaintiff below. ROBERTSON, A. and G., for Respondent. LAFLAMME, LAFLAMME and BARNARD, for Appellant. PROCEDURE.-NOUVEAU PROCES. SUPERIOR COURT, Quebec, 1st June, 1859. GIBB et al. vs. TILSTONE et al. Jugé: Que, dans l'espèce, une demande pour un nouveau procès, fondée sur allégué d'erreur dans la direction donnée au jury, doit être rejetée. This was an action on a promissory note, against Tilstone & Son, as makers, and Routh & Co., as endorsers, for the sum of £5327.67. Plea payment. The transaction which gave rise to the giving of the note was as follows: Tilstone & Son purchased from Plaintiffs two rafts of timber, in the month of October, 1857, for the sum of £6512 6 6; and agreed to pay therefor by two notes, namely, the one now sued upon, being their note, indorsed by Routh, for one fifth of the purchase money, payable on the 15th June, then next following; and, the second, being their note, without indorsation, for the balance, payable on th 5th July then next following. The timber was to remain with Plaintiffs as security, and the purchasers were to pay the wintering charges. The Defendants produced the three following receipts, signed by one McFarlane, the clerk of Plaintiffs, as proof of their plea. “ Quebec, 2nd June, 1858. Received from W. H. Tilstone & Son, eighteen hundred and ninety-four dollars, thirteen cents, as above, being on account of their note due 15th instant. Gibb & Ross, per Duncan McFarlane." Quebec, 16th June, 1858. Received from W. H. Tilstone & Son, Messrs. Geo. B. Symes & Co's cheque for four thousand dollars on account of their note due 15, 18 instant. $4,000. Gibb & Ross, per Duncan McFarlane." "$4110, 00, Quebec, 17th June, 1858. Received from W. H. Tilstone & Son, four thousand one hundred and ten dollars on account of their note, due 5, 8th July next. Gibb & Ross per Duncan McFarlane." McFarlane, on cross-examination, stated, that the receipts in question were not written by him, nor in his presence, but were presented to him for signature by Charles Tilstone, one of Defendants, and were in his handwriting; and that, when he was sent by Plaintiffs for the money mentioned in the first receipt, he was instructed to receive from Tilstone & Son a sum of money equal to the price of 381 pieces of timber; that Charles Tilstone, on presenting the receipt to him, did not read it over to him, nor did he read it himself, but merely looked to see that the amount stated in it was correct, and that he did not observe the words," being on account of their note due 15th instant; and that if he had observed these words in the receipt, he would not have signed it; that he had no authority or instructions from Plaintiffs regarding this note, and there was no mention made of it. That, with respect to the second receipt, he signed it under the following circumstances: Charles Tilstone applied to Plaintiffs, on the 15th June, for a specification of timber shipped on board the Egyptian, which Ross, one of Plaintiffs, was unwilling to give, but ultimately consented, upon Tilstone promissing to bring over the money for the timber at one or two o'clock in the afternoon, the specification amounted to £1070 00; that, as soon as Tilstone left Plaintiffs' office, Ross instructed the witness, if the money were not brought at the time appointed, to go to Tilstone's office and ask for it; that the money was not paid at the time appointed, and Ross again requested him to go and ask for it; that he called at Tilstone & Son's office at least twice during that day, but received the money from them, and, on the following day, the 16th June, after calling several times, he, at last, obtained $4000 from them, which, as he understood, was to represent the timber shipped on board the Egyptian, and that, upon this occasion a receipt for the amount (being receipt n° 2,) was written out ready, in the handwriting of Charles Tilstone, and his attention was not drawn to that part of the receipt containing the words," on account of their note due 15, 18th instant," and that, if he had observed these words, he would not have signed the receipt; that he had no instructions from Plaintiffs to sign this receipt, nor did Tilstone make any mention of the note due on the 15, 18th June, referred to in the receipt. With regard to receipt n° 3, his instructions from Plaintiffs were to. receive from Tilstone & Son the money for the specification of timber delivered to the "Tay," without any particular instructions; that he did not inform Plaintiffs of the nature of the receipts of the 16th and 17th June, the two former receipts; that, after he had signed this third receipt, Tilstone handed him a bank notice which they, Tilstone and Son, had received, requiring payment of the note falling due on the 15th and 18th June, the note sued upon; and desired him to have it withdrawn; that they did no shew him this bank notice on the 16th June, when they paid him the $4000, nor was anything then said about the notice or the note; that he then took the notice to Ross, one of Plaintiffs; that he was unconscious that the third or last receipt expressed that it was," on account of their note due 5, 8th July next; " that he looked upon all these three receipts as general receipts when he signed them, and on account of the timber which had been delivered on each occasion, and that he would have refused to sign them if he had read them, because he had no authority. respecting them; and that, when monies are paid on account of notes, it is not usual to give receipts, but to endorse the partial payment on the note. The question at issue, and which was submitted to the jury, therefore, was: Did Defendants, Tilstone & Son, pay to Plaintiffs, before the institution of the action, the amount thereby demanded? BOWEN, Chief Justice: After argument of counsel, charged the jury, and a verdict in the negative was rendered. IRVINE, for Defendants, now moved for a new trial, on the ground of alleged misdirection, the Chief-Justice having charged the jury, that, in deciding upon the appropriation of the payments, they must keep in view the agreement of the parties, and their mutual intention as shewn by their conduct, and all the accompanying circumstances, and, as one of the circumstances which they were so to keep in view, he told them that," Plaintiffs held the indorsed note sued upon as security to meet any fluctuation in the timber market," whereas there was no evidence whatever that the note was held for that purpose but that, on the contrary, the contract between parties shewed that the note was given in payment of the first instalment of the price of the timber; and because His Honor refused to instruct the jury that a debtor in making a payment to his creditor, has the right to impute the payment to the debt which he has most interest in discharging (1) and that Tilstone & Son's imputation of (1) Pothier, Obligations, Nos 565 to 567. |