But that rule 135 was expressly revoked by rule 158, which merely provides, however that all Actions of the nature set out in rule 78 of the general rules and Orders of Court (other than Actions comprehended within the Summary Procedure on Bills of exchange Ordinance 1855, or within the rules for causes uuder £ 100, like the one before the Court) such Actions shall hence forward, when ready for trial, be set down by either party in a mid term supplementary Cause list, but makes no provision for the delays to be observed for the Notices of facts to be given by either party.So that Rule 7 which was never repealed is the rule which determines the delays to be observed in reference to the Notice of facts required by rule 7. (Tremoulet v. Duclos before Mr. JUSTICE COLIN in the Bail CourtPISTON'S Rep. 1869-Part 6 page 87).

These delays, be it further observed, are to be reckoned not from the service as said by NEWTON but from the return of the Summons into Court, on which day parties are expected to proceed with their case; should the pressure of business be not such as to prevent the Court from taking up the matter, such being the case, it is evident that the Plaint with summons being returnable for the 10th November, the Notice of Defendant should have been served on the 7th instead of the 8th November, as was done. The Plaintiff would then have had the three clear day's Notice required by Rule 7.

The rule makes no difference in reference to the end contemplated by the Defendant's Notice whether it be merely to disprove the facts alleged by the Plaintiff or to prove other facts militating against Plaintiff's demand.

Resting my Judgment on the letter and spirit of Rule 7, it would be my duty to hold the Notice not to have been given in time and refuse hearing the parol evidence tendered by the Defendant.

This the Defendant has felt and therefore prayed for leave to amend. This amendment, it was suggested, was to be done by holding the Notice served as having been served in due time. But were I to assent to such proposed amendment, what would become of the prescription of rule 7?

I hold that an amendment may and should be resorted to if necessary for the purpose of determing in the existing suit the real question in controversy between the parties. In this case the real question in controversy is clearly set out, (viz) whether the defendant whose servant is alleged to have caused a wrong to the Plaintiff by the killing of the latter's horse and damaging his carriage, is or is not responsible in law for the act and deed of his servant.

The object of the evidence he wishes now to adduce is not that he means to dispute his legal liability as master or employer of the servant who is charged with having caused the damage above stated, but to disprove the facts charged against the servant or, in other words, to prove that the latter not being guilty of having committed the damage alleged, he the employer cannot, necessarily, be answerable either in law and in fact for the wrong alleged to have been done by the servant.

This is a mere matter of evidence, important, no doubt, for rebutting the charge laid, for disproving the fact upon which the liability of the master rests, but not the liability of the master, assuming the facts alledged against the servant should be proved against the latter.

Besides, it appears to me that whether by amendment on payment or not of costs, the holding of a late Notice to be good would be fraught with great danger for the Plaintiff and it would be difficult, moreover, to fix the precise moment at which a Notice might be holden to be too late. There would be no reason why it should not be given after commencement of a trial and even after examination of some of the witnesses of the Plaintiff. safest course appears to me to be to enforce strict compliance with the requirements of rule 7. I accordingly allow the objection taken by ROUILLARD, with costs.

BAIL COURT.

The

DAMAGES, FURIOUS DRIVING,--HORSE.

Action in damages entered for the recovery of the price of a horse that had been killed by the shock of a Spring Cart and poney driven at a furious speed.

BROUARD,-Plaintiff,

versus

GOPALSING,-Defendant,

Before

His Honor N. G. BESTEL, First Puisne Judge.

L. ROUILLARD,-of Counsel for Plaintiff. V. G. DUCRAY,-Attorney for same.

W. NEWTON,-Of Counsel for Defendant. F. SIMONET,-Attorney for same.

21st April 1871.

The Plaintiff complained of the Defendant for that: "Whereas on Thursday the 28th "October now last past, at about 3 o'clock

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p.m.; an Indian, Merjane, the Plaintiff's "coachman, was driving at a very moderate "pace a four wheeled carriage belonging to the "Plaintiff and drawn by an Australian bay guelding of a large size, being also the Plain"tiff's property, from Cassis, the Plaintiff's 66 residence, to his office in town, in order to "take his master home; was met by a spring "cart bearing No. 403, going up Souillac "street, in a contrary direction to that followed "by the Plaintiff's carriage. The said spring "cart belonging to the Defendant, drawn by a bay poney driven at a furious speed, ran against Plaintiff's carriage and horse then

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JUDGMENT.

Whatever may be the worth of the evidence in other respects, it is, nevertheless, conclusive as to the damages sustained by the Plaintiff who has lost a valuable horse, whose carriage shafts were broken by the fact of a furiously driven spring cart and poney running against the Plaintiff's horse and carriage. In order, however, that the Defendant should be responsible for the damages alleged to have been caused by such spring cart and poney through the furious driving of the party in charge of poney and spring cart, it must be brought home to the Defendant that the spring cart and poney are his property and that the driver in charge of the one and the other is in his employ.

The evidence, in my opinion, clearly bears out the assertion of Plaintiff that the spring cart and poney were the property of the Defendant in whose premises the one and the other were found, and the number of the spring cart No. 903 agreeing with the number entered along with the name and residence of the owner Gopalsing, at Cassis. The identity of the driver on the Civil side of the Court appears to me quite immaterial, whether the spring cart and poney were furiously driven by the man pointed out as having been in charge of the spring cart and poney at the time of the collision, or by any other driver, matters not. Nothing is claimed from the driver, but from the owner of the vehicle and poney. It was his duty to have given these in charge of a competent and prudent driver. If he imprudently entrusted them to an inexperienced and careless driver and thereby caused the damage complained of, he is without an excuse for having done so and must make good the damage which his carelessness has caused to the Plaintiff through the instrumentality of one in his employ at the time of the mischief complained of.

I therefore declare the Defendant Gopalsing liable in damages to the Plaintiff in the sum demanded, with costs.

The Judgment of the District Magistrate being favorable to the now Respondent, the Plaintiff below (now Appellant) asserted an Appeal from that Judgment, on several ground, on the strength of which he prayed for the reversal of the Judgment complained of.

As usual, the first ground of Appeal qualifies the Judgment to be bad in law, without taking the trouble of pointing out to the Court its deficiency in point of law. No wonder if the Court stays not to enquire into the merits of this first ground.

The main grievance is the admission by the Magistrate, of the parol evidence tendered by the Defence for the purpose of rebutting the undue or unlawful possession of the premises of Nadal, the Appellant. The case of Rose & ors. v. Dassonville, (PISTON'S Reports, 1870, Page 8) decided by the HoNORABLE then JUSTICE COLIN, was cited in support of the proposition laid down in the second ground of Appeal.

I have carefully read that Judgment which, however, instead of supporting the view taken by the Appellant of the law on the matter, decidedly militate against it. In the case cited," the Plaintiffs had brought an Action against the Defendant, for damages, on "account of the undue usc and occupation "by the Defendant of a house belonging to them, and applied for leave to prove, by parol evidence, the facts which they alleged. "The Magistrate refused to grant the appli"cation on the ground practically taken up

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The Plaint before me, in like manner, keeps quite clear from all idea of a verbal lease. It is based on the fact of undue (and as it is styled unlawful) possession, “seeks "neither rent nor the legal attributes of the "contract of lease, but an indemnity and the "legal consequences of the undue possession." I cannot distinguish, therefore, this Plaint from the one decided by the then Mr. JUSTICE CoLIN, and must, necessarily, overrule the second ground of Appeal. The same may be said of the third ground of Appeal, for it little matters whether the word “occupation' does or does not imply the " commencement d'exécution" mentioned in Art. 1715. C. C., for, the proprietor stood not upon that Art. but upon Art. 549 C. C.

I shall not stay to enquire into the merits of the other grievances complained of, this enquiry being unnecessary to the conclusion 1 have come to on this Appeal.

If the Respondent is bound to account to

the Appellant for her undue possession and enjoyment of the tenement of the Appellant, the latter is not less bound to account to her for the Articles supplied to him by the Respondent. Before giving a final Judgment between parties, the Magistrate should have ordered an account to be stated between them so as to establish the balance which might be due to or by either of them. This balance ascertained, Judgment should have been entered for the party entitled to such balance.

I shall and do therefore refer this matter back to the District Magistrate of Grand Port in order that he do: 1o. Assess the damages due by the Respondent for her undue occupation and enjoyment of the premises of Appellant, and 20. that the amount of the produced by the Respondent be cast up and a balance be struck and Judgment entered for the amount of such balance for the party entitled to such balance.

"bons

Each party to pay its own costs of Appeal.

21st April 1871.

On this Appeal being called for hearing, W. NEWTON of Counsel for Appellant, abandoned the first ground of Appeal which referred to the necessity of a previous criminal enquiry. But he maintained that the evidence in this cause was altogether insufficient to lead to the conviction complained of. There was no proof of the loss of any paint on the part of the Crown, and unless such loss were established, the Appellant could not be convicted of a larceny to the prejudice of the Crown. But supposing any such loss had been sustained by the Crown, there was not any sufficient evidence to go to a Jury. The conviction was therefore bad and must be quashed.

The Crown Counsel contended that the evidence was sufficient to go to a Jury. The Magistrate replacing a Jury had come to the conclusion complained of. The Court was therefore bound to affirm the conviction and to dismiss the Appeal with costs.

no reason to set

JEAN ARISTHÈNE,-Appellant.

cersus

THE QUEEN,-Respondent.

Before:

His Honor MR. JUSTICE BESTEL, First Puisne Judge.

Before:

His Honor Mr. JUSTICE BEstel, First Puisne Judge.

L. ROUILLARD,-Of Counsel for Plaintiff. V. G. DUCRAY,-Attorney for same.

G. GUIBERT,-Of Counsel for Defendant. A. PERROT,-Attorney for same.

21st April 1871.

The Plaintiff complains of certain unlawful and fraudulent dealings, on the part of the Defendant, having entailed upon him a certain amount of damages which he values at the sum of $318.

The wrongs complained of are that, on various voyages, the Defendant had unduly fished on his own personal account, at St. Brandon, with the men and "pirogues" of the Plaintiff, certain large quantity of fish which he caused to be salted by the men, and with the salt of Plaintiff's establishment at St. Brandon, which fish was sold at Mauritius for and on account of the Defendant, the proceeds of which sale were appropriated by the Defendant to his

own use.

This it was alleged was inconsistent with the faithful discharge of his duties as master of the Defendant's lugger, who, as such master, had contracted with the Plaintiff "de conduire les opérations au mieux des intérêts de M. Caillaud, (the Plaintiff) tant pendant le cours des voyages d'aller et de retour que pendant tout le temps où la Sarcelle séjournera à St. Brandon." In consideration of the undertaking of the Defendant, the latter was to receive a salary of $30 per month from the 6th April 1869, plus a premium of $870 on the clear profits (bénéfices nets) of the fishing operations.

In support of his demand, the Plaintiff has produced many witnesses, and the Defendant was not backward in producing witnesses with the view of rebutting the evidence tendered by the Plaintiff. I have carefully perused the evidence on both sides in order to come to a conclusion satisfactory to my own mind. In this case I have not succeeded

All that I have been able to ascertain is that a certain cargo of salt fish was, through stress of weather, taken to Bourbon and there sold for and on account of Plaintiff. The Defendant, in his defence to the Action, admits having taken and sold fish on his account up

to the amount of $93 only; whether the $70 of fish sold at various times by the butcher Floreska for and on Defendant's account at Mauritius as hereinafter mentioned forms or not part of the sum of $93 mentioned in his admission, is not stated.

Again, I find that other portions of salt fish besides the portion sold at Bourbon have been sold at different times at Mauritius for and on account of Gaston the Defendant, by one who swears having sold the fish spoken to by him for the sum of $70.

The produce of the salt fish sold at Bourbon and in Mauritius, must necessarily be paid to the Plaintiff. If the latter have suffered the prejudice he complains of, he must take blame to himself for not having been more explicit in his agreement with the Master of the lugger, on the one hand, and he should not have suspended the authority of his agent Boulanger pending the stay at St-Brandon of the Master of the lugger, as i find it stated in the Plaintiff's agreement with Boulanger: "Pendant toute la durée de l'opération, à chaque fois et pendant tout le temps que M. Gaston, capitaine de la "Sarcelle trouvera sur l'établissement, M. Boulanger devra se conformer aux instructions qui pourront lui être données par le dit M. Gaston, dans l'intérêt de l'opération, et faute de se conformer à cette dernière clause, M. Boulanger serait considéré de fait comme démissionnaire de son emploi ".

se

Gaston's powers pending his stay at St.Brandon, to compel obedience by Boulanger to his orders, were intended, no doubt, for the better protection of Plaintiff's interest, and not for spoiling his owner. The breach of trust on the part of the Defendant is therefore greater true. Bat had the agent on the spot had it in his power to judge of the fitness or non fitness of the orders given or conveyed to him by the Master of the lugger, the abuse complained of might have been totally or partially avoided.

Again, the custom set up by the Defendant as proved, is this: "that the Master is at liberty to fish on his account, but with the help of the crew and not with that of the men and "pirogues" attached to the fishery and not as stated by the Defendant with the men and boats of the fishery. I shall therefore order and do order that the Defendant do pay over to the Plaintiff both for the produce of the fish sold at Bourbon, and the produce of the fish sold for and on his account at Mauritius by Floreska, butcher, the total sum of one hundred and eighteen dollars, 506, with

costs.