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mitted, but not to enquire into and revise the magistrate's decision as regards his propriety or impropriety on the merits. A similar decision was rendered by the Court of Appeal in England In re Dunn (L. J., p. 97, 1818, Michaelmas Term, 1847), as also In re Richards (2 Adolphus and Ellis, p. 273).
In the case of Francis O'Cain, in 1875 (13 R. L. 275), the Court of Appeal, consisting of Dorion, C.J., and Monk, Ramsay, Sanborn and Tessier, JJ., Justice Ramsay, delivering the judgment of the Bench-and he was a recognized authority in criminal matters—said in effect :-A prisoner convicted cannot be released from his sentence or imprisonment by a writ of habeas corpus even if the requirements of law have not been fulfilled provided that the conviction be good on its face. The remedy is by means of a writ of error or by pardon. The learned Judge goes on: “ There is an enormous number of authorities upon this question of the Writ of Error. The doctrine is well established that the only mode of attacking a conviction of a Court of Record is by a writ of error.” (See Encyclopædia of the Laws of England, vol. VI., p. 133).
This same question has oftentimes occupied the attention of the Ontario courts and a similar decision reached specially in Re Regina v. Murray, where it was held that the proceedings of a court of record are not reviewable upon a writ of habeas corpus but only upon a writ of error (28 0. R. 549, and authorities cited). The same views were upheld In re Bertin, 10 Can. C. C., p. 65.
Justice Cross, of the Court of Appeal, expressed the same opinion in the case of Therrien (25 Can. C. C. 275) where he adjudged that if a court of record making the conviction possesses the requisite jurisdiction, no matter what errors or irregularities occur in the proceedings or judgment, provided they are not of such a character as to render them void, his action cannot be revised or examined into by writ of habeas corpus. Resort to this writ should not be permitted where there is a complete remedy by appeal under our Criminal Code (sections 1014 et seq.) from the conviction attacked.
A decision to the same effect was also followed by the Supreme Court of Saskatchewan In re Ching How et al. 19 Can. C. C.,
Our Court of Appeal, In re The King v. Flaherty (Q. R. 27 K. B. 555), held that whenever there is a valid conviction on an indictment and a sentence pronounced by the court in the ordinary course of law, it is of no consequence that the warrant of commitment does not recite all the ingredients of the offence and contains only a brief mention of it. That is not a case of habeas corpus. And the Court refers to the cases of Sproule (12 S. C. R. 140) and Lees (El. B. & E. 828).
Again the local Court of Appeal, in the case of Labrie (Q. R. 29 K. B. 442), elaborating the question in a most exhaustive manner, has decided that when it appears that the prisoner is incarcerated under a sentence pronounced by a competent court vested with proper jurisdiction, no judge of the Superior Court or of the Court of King's Bench has power or authority to quash such conviction or sentence and to order the prisoner released from jail.
Recently—March 21st, 1922—the Court of Appeal, In re Goldberg (Q. R. 29 K. B. 47) has followed the same consistent train of reasoning, holding that when the Judge of the Sessions of the Peace at Montreal, having tried an accused person on a charge which was within his power to try, has made an adjudication of guilt and of punishment and it is set forth in the adjudication that an offence triable by the Judge of Sessions has been committed and the punishment mentioned is such as he had power to adjudge, a Judge of the Superior Court is without jurisdiction in a proceeding of habeas corpus to enquire into the legality of the adjudication made by said Judge of Sessions.
We refer to the elaborate notes of Justice Martin.
In presence of such precise and consistent jurisprudence which has not varied for upwards of two hundred years, the decision to pronounce in this matter is of no difficulty.
The conviction and the commitment state or disclose an offence known to law; the term of imprisonment in the penitentiary imposed on the accused is countenanced by the Criminal Code; the Court which passed sentence was a court of record vested with jurisdiction in the matter. All of the foregoing facts appear clearly by the information, the conviction, and the commitment by virtue of which petitioner is now incarcerated in the St. Vincent de Paul penitentiary.
Petitioner's position is all the more untenable because the law provides him with the right to appeal- for redress from any decision on questions of law or procedure alleged to have jeopardized his rights or liberty.
Wherefore, the Court doth adjudge that the writ of habeas corpus cannot be maintained and it is therefore quashed and set aside together with the ancillary writ of certiorari, and doth order, if necessary, that the petitioner be returned to the St. Vincent de Paul penitentiary.
Injury caused to minor son by father driving automobile-Right
of recovery-Position of company insuring father.
An interesting case, for which there is, apparently, no precedent in the Quebec courts, was decided by the Court of Appeal (full bench) at the sitting of April 27th last-Fidelity and Casually Co. of New York (Defendant Appellant) v. Victor Marchand (Plaintiff Respondent)-K.B. 242.
In June, 1919, plaintiff, while driving his motor car, ran over his five year old son, seriously injuring him. At the time of the accident he was insured with the appellant company under a contract whereby the company undertook, under the usual conditions, to indemnify him “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death suffered by any person or persons, as a result of an accident occurring while the policy was in force and caused by reason of the use, ownership or maintenance of the automobile, etc.” Notice of the accident was given to the company, who took the ground that it was under no liability-refused absolutely to consider a settlement. By the terms of the policy plaintiff was forbidden to transact with an injured party, without the company's consent. But he felt that he should, as a father, take steps to protect his son's rights, with a view, no doubt, to enforcing his own rights under the insurance contract. He accordingly had a family council convoked for the appointment of a tutor ad hoc to the minor child, and an uncle was duly appointed. The tutor then took action against the father, who forthwith transmitted the writ, etc., to the company, in accordance with his obligations under the policy. The company thereupon undertook the defence. The case came before Surveyer, J., and a jury, who gave a verdict for $5,000 against the father, and judgment was rendered in accordance therewith (October 7th, 1920), in the presence of appellant's counsel and chief representative. This judgment became executory within fifteen days, but appellant took no steps to enter an appeal, held no communication of any kind with its assured. On November 2nd, 1920, assured's counsel communicated with the company's counsel, notifying them that execution was threatened and asked for instructions. The answer was, in effect, to do what they saw fit. The assured then paid the debt, interest and costs.
In the father's action against his insurers for the amount thus paid he was successful in the first court. In appeal the company raised two main grounds:
1. That there was, in the circumstances, no liability.
2. That if any liability did exist it was extinguished by assured's failure to comply with the conditions of the policy and his direct violation thereof.
As to the first ground the chief argument was based on the fact that the injured party was the assured's minor son. As Greenshields, J., says in his notes, the proposition that a father is not liable in law to compensate his minor son for damages caused to the latter “possesses at least the merit of novelty.”
In addition to the general principle laid down in 1053 C.C. there is the statutory prima facie liability of 1406 R. S. Q. laid upon the owner of a motor vehicle. The liability thus imposed depends in no way upon the relationship, contractual or otherwise, between the parties concerned, and if the circumstances of the accident are such that the father would be liable to a stranger, surely he would be liable to his own child, to whom he owes a greater degree of protection. There was, therefore, no doubt as to the father's liability on the facts as proved.
With regard to the second ground, the principal arguments were-(a) That the father should not have called the family council and taken part therein; (b) That he should not have admitted liability; and (c) That he should not have paid the judgment debt before the delay for appeal had elapsed. As to (a), the father is by law entitled to have the council convoked, and he was acting within his rights, and but doing his duty in being present and giving his advice as to the tutor to be named. As to (b), he did not in terms admit liability, but merely related the facts as they had occurred. He could not, by the contract, be bound to conceal or to misrepresent what had happened. Finally, (c) in view of the attitude adopted by the company after the judgment rendered against the father, the latter was not bound to wait and allow an execution to issue, and so expose himself to annoyance and possible financial loss," in order to protect appellant, who did nothing to protect itself." There was nothing to indicate that the company intended to appeal against the verdict or judgment thereon: the evidence of the company's representative being rather to the effect that no appeal was intended. For all these reasons, therefore, the company's appeal was dismissed.
Bills and Notes-Admissibility of Parol Evidence.
The Quebec Court of Review in 1920, in the case of Lacombe v. Labontó (59 S. C. 17), following the Privy Council case of Macdonald v. Whitfield (1883, 8 A. C. 733) held that all the facts and circumstances surrounding the issue and transfer of a bill or note may be proved by parol evidence. In the Lacombe case several directors of a company had endorsed the company's note, agreeing among themselves that if the note was not paid in due course by the company each of them would pay an equal share. The note was given for an advance by the plaintiff who was president of the company and who endorsed it with the other directors. The note was not paid, and was not protested. The defendant refused to pay his share, alleging that he was relieved of liability because the note was not protested. The majority of the court, reversing the judgment a quo held defendant liable.
In two cases reported in the April number of the Revue Légale, Rinfret, J., while accepting the doctrine that the “surrounding facts, and circumstances," may, in principle be established by parol evidence, restricts the application of the doctrine to cases in which such facts and circumstances are in themselves susceptible verbal proof. The relevant "considérant” reads as follows (freely translated): “Considering that the court has admitted, under reserve, evidence of the circumstances in which the cheque which forms the basis of the action was signed by defendant, following the decision of the Privy Council in Macdonald v. Whitfield, which our courts followed in Lacombe v. Labonté; but that this decision, it would seem, cannot be interpreted as meaning that parol evidence will be admitted in such cases even if the particular circumstance which it is desired to establish is not in itself susceptible or verbal proof, etc.” (Dupuis V. Singer, 29 R. L. n.s. 167; see also Hamanovitch v. Dame Schwart, ibid., p. 169).
Bankruptcy - Liability for rent after assignment — Failure of
trustee to give notice. Maclennan, J., has just handed down an interesting decision under the Bankruptcy Act (Mathieu, assignor, and Prevost, trustee, and Bohemjer, petitioner, judgment May 15th, 1923). The petitioner, assignor's landlord, claimed rent from June to November, 1922, and for a further period of three months in view of the trustee's failure to give notice of surrender. The trustee offered rental up to August 15th, but contested the claim