CIRCUIT COURT. Montreal, May 22, 1878. DORION, J. LEPAGE V. WATZO, and WATZO, Opposant. Property of Indians—39 Vict. (Canada) C. 18. Held, that under the Indian Act of 1876 (39 Vict. c. 18), the moveable effects of Indians are exempt from seizure, and the fact that an Indian is a trader and trades with whites does not render his effects liable to seizure. 2. That the word " property," used alone in a statute, includes both moveables and immoveables. Opposition maintained. J. G. D'Amour for opposant, ᏞᎪᎳ . office of the prospectus was over-all the shares having been allotted;-in other respects the principle of liability and the duration of it were the same as in the present case. Lord Cairns' language was this: "Now, my lords, I ask the question, how can the directors of a company be liable after the full original allotment of shares for all the subsequent dealings that may take place with regard to those shares upon the Stock Exchange? If the argument of the appellant is right, they must be liable ad infinitum, for I know no means of pointing out any time at which the liability would, in point of fact, cease. Not only so, but if the argument be right, they must be liable, no matter what the premium may be at which the shares may be sold. That premium may rise from time to time from circumstances altogether unconnected with the prospectus"-and so I would observe it might rise or fall here from circumstances alto- DISPUTED QUESTIONS OF CRIMINAL gether unconnected with the report-"and yet, the appellant would be entitled to call upon the directors to indemnify him up to the highest point at which the shares may be sold for all that may be expended in buying the shares. My lords, I ask, is there any authority for this? I am aware of none." It must be allowed, of course, that Lord Cairns asked and answered this question in a case where liability had ceased, because the office of the prospectus in which the statement had been made was over, and the plaintiff had bought afterwards in open market. As far as responsibility for misrepresentation is concerned, there was that difference between that case and this one, and there was no other difference: it was a difference as to the existence of responsibility; not as to the duration of responsibility, if it existed. Therefore as to the duration of existing responsibility, that case and this one are on the same footing; and it was as to the injustice of the duration of this responsibility, if it existed at all, that Lord Cairns was speaking. The plaintiff's action must be dismissed; but as to costs, it is entirely owing to the fault of the defendants that the plaintiff has taken these steps; and though they made no intentional misstatement; and therefore no action can be maintained against them for it, they will get no costs from the plaintiff; and the action is under the circumstances dismissed without costs. Abbott & Co. for plaintiff. Judah, Wurtele & Branchaud, for defendants. (Continued from page 307.) III. Uncommunicated Threats.-Two new cases are reported on the question of the admissibility, on trials for homicide, of evidence of utterances by the deceased, threatening the life of the defendant, such utterances not having been reported to the deceased. One of these cases, decided in 1877 (The State v. Taylor, 63 Mo. 358), has a head-note which states explicitly that uncommunicated threats by the deceased are inadmissible when offered by the defendant. When we examine the opinion of the court however, we find that the ruling is limited to cases where the defendant makes no claim to have been acting in self-defence. "The court," says Henry, J., " properly refused to admit evidence of threats by Ghenn against defendant. It is not pretended that defendant, when he killed Ghenn, was acting in self-defence. Defendant was aggressor in the difficulty in the forenoon, and when shot by defendant, Ghenn was not only making no attempt to injure defendant, but was unarmed and endeavoring to escape from him.” The other case is The State v. Turpin, 77 N. C. 473, also decided in 1877. In this case a "per curiam" opinion was given by Bynum, J., who says: "1. The uncommunicated threats were admissible for the purpose of corroborating the evidence of the threats which had been defendant had a right to kill deceased, then it already given. ❝ 2. They were admissible to show the state of feeling of the deceased towards the prisoner and the quo animo with which he had pursued his enemy to the house. "3. In ascertaining whether the prisoner had acted in self-defence, a most material question was, Who introduced the rock into the conflict, and for what purpose? To corroborate this view, and fix the ownership of the rock, the prisoner offered evidence both of the violent character and deadly threats of the deceased. In this aspect of the case the threats were equally admissible, whether communicated or uncommunicated, and, in connection with the other facts indicating a telonious assault upon the prisoner, would constitute a case of murder, manslaughter, or justifiable homicide, as the jury, under proper instructions, might determine upon all the facts." Prior to these cases, but not cited in either of them, we have Wiggins v. The People, 3 Otto, 465. In this case we have the following from Judge Miller: "Although there is some conflict of authority as to the admission of threats of the deceased against the prisoner in a case of homicide, where the threats had not been communicated to him, there is a modification of the doctrine in more recent times, established by decisions of courts of high authority, which is very well stated by Wharton, in his work on Criminal Law, section 1027. Where the question is as to what was deceased's attitude at the time of the fatal encounter, recent threats may become relevant to show that this attitude was one hostile to the defendant, even though such threats were not communicated to the defendant. The evidence is not relevant to show the quo animo of the defendant, but it may be relevant to show that at the time of the meeting the deceased was seeking defendant's life.' Stokes v. The People of New York, 53 N. Y. 174; Keener v. The State, 18 Ga. 194; Campbell v. The People, 16 Ill. 18; Holler v. The State, 37 Ind. 57; The People v. Arnold, | 15 Cal. 476; The People v. Scroggins, 37 Cal. 676." “Certainly,” as I argued in discussing more fully this question in my work on Homicide, "if such evidence is offered to prove that the is irrelevant." But "it is difficult to understand the reason why an acquaintance by the defendant with the deceased's threats should strengthen the admissibility of such threats. If the defendant knew beforehand that his life was threatened, he should have applied to the law for redress; if he did not know, and was attacked without warning by the deceased, then proof of the deceased's hostile temper, whether such proof consist of preparations or declarations, is pertinent to show that the attack was made by the deceased. For the purpose, therefore, in cases of doubt of showing that the deceased made the attack, and, if so, with what motive, his prior declarations uncommunicated to the defendant are clearly evidence." It may be objected that such evidence is hearsay. To this it may be answered: 1. It is primary; and hearsay, when primary, is admissible when relevant. The question at issue is, Did the deceased attack the defendant? 'f-def nce bine confession and avoidance. To prove an attack by the deceased—to show, in other words, that his object in meeting the defendant was to - the deceased's intention is attack him material. How is this intention to be discovered? If the deceased were alive, we would call him and ask him as to the facts. He is not alive, and the best evidence we can have of an intended attack on his part is his own expressions, whether in word or in deed. If we reject these expressions, then we have no other way of proving a material fact. 2. Whenever the condition of a party's mind is at issue, then expressions of the party are admissible, when tending to throw light upon such condition. See Hadley v. Carter, 8 N. H. 40; The Commonwealth v. O'Connor, 11 Gray, 94; Howe v. Howe, 99 Mass. 88. This is eminently the case when the party whose declarations are to be proved is dead, and when his state of mind, when material, can be proved in no other way than by his declarations. In R. v. Johnson, 2 Car. & Kir. 354, where the prisoner was charged with murdering her husband, and when the deceased's state of health prior to the day of his death became material, a witness was called to prove declarations on this topic by the deceased a day or two before the death. This was objected to by the prisoner, but was admitted by Alderson, B., who said that he thought that what the deceased said to the witness was reasonable evidence of the deceased's state of health at the time. And, in a suit on a policy of life insurance, it was held admissible to show that the deceased had made declarations at various times as to his health at variance with those which he had given to the defendants. His good faith at the time was at issue, and his declarations were held admissible to negative such good faith. Aveson v. Kinnaird, 6 East, 188; Witt v. Klindworth, 3 I. & T. 143. CURRENT EVENTS. ENGLAND. CONTRACT-OFFER AND ACCEPTANCE.-In Lewis v. Brass, (London L.T., Feb. 9, 1878, p. 738), defendant sent in a tender to do certain work for plaintiff. Plaintiff's agent replies, accepting the tender, and adding: "The contract will be prepared by," etc. Held, That the tender and acceptance formed a complete contract. LEASE OPTION TO PURCHASE. In the case of Edwards v. West, (London L. T., p. 481, June 1, 1878), under the terms of a lease, the lessees had an option to purchase the fee simple of the property for a fixed sum, on giving notice before a fixed date. It was also agreed that if the premises were injured by fire to a certain extent, the time should absolutely determine. This event happened before the exercise of the option to purchase. Held, that the option to purchase continued, notwithstanding the term had been put an end to. UNITED STATES. SALE OF COLLATERAL SECURITIES.-The Supreme Court of the United States has unanimously affirmed the right of banks to sell collaterals deposited as security for a loan, when the loan is not paid, and to apply the proceeds in payment of the indebtedness. The case was that of Hayward, appellant, and The Eliot National Bank respondent, an appeal from the Circuit Court of the United States for the District of Massachusetts. The Court applied the rule with the less hesitation owing to the fact that the person depositing such securities had notice of the contemplated sale, and knowledge that the sale had been made, and yet made no objection thereto, nor attempt to redeem for a long time. DOMICILE.-In Hardman's Appeal, 5 W. N. Cas. 347, the Supreme Court of Pennsylvania passes upon the question of domicile. The definition of Vattal that a domicile is a fixed place of residence with an intention of always remaining there is said to be too limited to apply to the migratory habits of the people of this country. So narrow а construction would deprive a large proportion of our people of a domicile. The definition best adapted to our habits is that it is that place in which a person has fixed his habitation without any present intention of removing therefrom. In this case a decedent, a bachelor who was born in another State and lived there until 1871, sold all his land there, and taking his moveable property with him, went to live with his brother-in-law in Pennsylvania, where he remained until the time of his death in June, 1872. When he went to Pennsylvania he told his brother-in-law that he intended to buy another farm in the State he came from, and that he wished to remain with his brother-inlaw until he could suit himself. He refused to be assessed for taxation in Pennsylvania, saying that he did not wish to become a citizen of that State. He, however, made no purchase of land in the other State. The court held, however, that the decedent had a domicile in Pennsylvania, and that his property must be distributed according to the law of that State. The court says that a mere intention to remove permanently without an actual removal, works no change of domicile nor does a mere removal from the State, without an intention to reside elsewhere. But when a person sells all his land, gives up all his business in the State in which he has lived, takes his movable property with him, and establishes his home in another State, such acts prima facia prove a change of domicile. Vague and uncertain evidence cannot remove the legal presumption thus created. The case follows Abington v. North Bridgewater, 23 Pick. 170, where it is said, that "it depends not upon proving particular facts, but whether all the acts and circumstances taken together, tending to show that a man has his home or domicile in one place, overbalance all the like proofs tending to establish it in another." See, also Wilbraham v. Ludlow, 99 Mass. 587; Harris v. Firth, 4 Cranch, 710; North Yarmouth v. West Gardiner, 58 Me. 207 4 Am. Rep. 279.-Albany Law Journal. the first case of the kind in Indiana. The Court held Blythe v. The State, 4 Ind. 525, to be exactly in point on principle. In that case, Blythe, an attorney of the court, had been appointed to defend a pauper on a criminal charge. Declining to render the service without compensation, he was committed for contempt. The Supreme Court, however, held that he was not bound to perform the service gratu would be to subject a particular class to a tax, in violation of the constitution, which provides for a uniform rate of assessment upon all citi zens. The reluctance to provide for the payment of professional witnesses, may arise from the difficulty of assessing the value of such services. The time of professional men varies immensely in value, and it is impossible for the law to fix a compensation that shall be equitable in all cases, but this is hardly a satisfactory reason for failing to make any attempt at rendering justice to professional witnesses under such circum stances. APPROPRIATION OF PAYMENTS. On page 57, ante, reference is made to the decision of the Supreme Court of Alabama, in the case of Ex parte Dement, holding that phy-itously, on the ground that to hold otherwise sicians may be called as witnesses and compelled to give professional opinions, without receiving any remuneration there for. There seems to be something extremely unjust in forcing a professional man to apply the knowledge gained at the cost of much toil and self-sacrifice, without allowing him any compensation, and it will be seen by reference to page 57, that the authorities are not uniform on the subject. The inore equitable rule seems to be laid down in Webb v. Page, 1 Carr. & Kirw., 23, distinguishing between the case of a man who sees a fact and is called to prove it in a court of justice; and that of a man who is selected by a party to give his opinion about a matter with which he is peculiarly conversant from the nature of his employment in life. Such is the opinion enunciated by the Supreme Court of Indiana in a more recent case than Ex parte Dement-that of Buchman v. The State. On the trial of one Hamilton for rape, Dr. Buchman, a physician, being called, was asked "whether, in female menstruation, there is not sometimes a partial retention of the menses after the main flow has ceased." Refusing to answer this, or any other question depending on his professional knowledge, without being first paid as for a professional opinion, he was committed for contempt. From this judgment he appealed to the Supreme Court,'where the decision was reversed and the commitment set aside. The court referred specially to the case of Ex parte Dement, among others, but did not consider the decision a sound one. "It is unnecessary to determine in this case," remarked one of the judges, "whether all classes of experts can require payment before giving their opinions as such. It is sufficient to say, that physicians and surgeons, whose opinions are valuable to them as a source of their income and livelihood, cannot be compelled to perform service by giving such opinions in a court of justice without payment." This was not The decision of the Privy Council in the case of Kershaw & Kirkpatrick et al., an appeal from the Court of Queen's Bench of the Province of Quebec, though turning in some measure upon matters of fact, touches a point of great interest in the rapid transaction of commercial business. The defendant, Kershaw, was a broker of Montreal, who had been employed by one Stevenson to buy two cargoes of wheat on his behalf. The wheat was bought from different parties, and Stevenson received separate invoices for the cargoes. Kershaw afterwards sent his clerk to Stevenson's office, to request payment, or to get as much money as he could on account of the indebtedness. Stevenson could only spare $8000, and on handing the clerk a check for that amount, the clerk (as he said, by accident), acknowledged receipt on the invoice for the cargo secondly purchased from the defendants, Kirkpatrick & Co. When Kershaw became aware of this, he endeavored to get the appropriation altered, but Stevenson declined to make any change. Stevenson having become insolvent, Kirkpatrick & Co. sued Kershaw for the $8000 and were successful. This judgment has been confirmed in England. Their Lordships adopt the motif of the judgment in the Canadian Courts, that the imputation was made by the parties at the time the receipt was given, the intention of the debtor was thereby declared, and it could not be impugned by the other party, more particularly as he had contented himself with pleading the general issue, without specifically alleging change of appropriation. It may be mentioned that Kirkpatrick, before suing Kershaw, endeavored to collect his claim from Stevenson, and actually got $4000, which, with the $8000, made more than the amount of his claim, but the Courts did not attach any special importance to this fact. REPORTS AND NOTES OF CASES. COURT OF REVIEW. Montreal, June 28, 1878. JOHNSON, MACKAY, RAINVILLE, JJ. 1. An action to rescind a lease may be brought against a lessee who has become insolvent during the term of the lease. 2. A writing signed by the lessor, not accepted by the lessee, promising that a new lease should be entered into after a certain date, did not constitute a ment of part of the ground floor up to May 1878, when a new lease should be entered into. This writing is produced and is admitted; and it says the defendant is to rescind the lease whenever required. This was a proposition that was never accepted by the defendant— who never signed the writing at all — but thought to have all the benefit of it, and assume nothing. But even if it had been accepted, can it be said that the contemplation of a new lease between the parties constituted a new contract of lease? for how long? at what rent? We see no reason for disturbing the judgment, and it is confirmed. L. O. Loranger for plaintiff. JOHNSON, TORRANCE, DUNKIN, JJ. [From S. C., Montreal. Lessor and Lessee-Changes made by Tenant. Where one of several tenants painted the entire front of the leased building a conspicuous red color, and the defendant, who leased the upper flats, and to whom this color was offensive, covered over the red with a neutral tint, held, that the lessor had no ground of rescision against the latter on account of the change. JOHNSON, J. We all concur in confirming new contract of lease which could be pleaded in this judgment. It was a case of suburban defence to an action to rescind the original lease. JOHNSON, J. The judgment before us for review set aside a lease made by the plaintiff es qualité to the defendant of the 5th Oct., 1876, for six years from 1st May, 1877. The defendant became insolvent in October, 1877. The rent was $700 a year, payable quarterly, and in March, 1878, when three quarters, rent were overdue, besides assessments, the plaintiff sued him to annul the lease, and get the back rent, and also the quarter then current, and payable 1st May. The defendant pleaded by a demurrer, and also by exception, that the action ought to have been brought against the assignee of his insolvent estate. This pretention in both forms was overruled, and we think rightly. He then pleaded that the lease was an emphyteotic lease, which we also think was untenable. Further he set up that on the 29th October, after the insolvency, the plaintiff had signed a writing promising a discharge from rent past or future, and gave him the gratuitous enjoy notoriety. The plaintiff sued the defendant, who had leased the two upper stories of his house, to have the lease rescinded. The grounds alleged for the action were deterioration of the premises, and alteration without express permission in writing of the landlord-as stipulated in the lease. These alterations that were complained of consisted in a hole pierced in the roof, and in having painted the front of the house a grey colour. The plaintiff had another tenant named Pelletier on the ground floor of this house, and he says he got permission from the defendant for this man Pelletier to paint the upper stories red-which was done. There is evidently a mistake in the declaration in this respect-saying that Pelletier had the apartments above the plaintiffs instead of below; but that is nothing, the case having been treated by the parties according to the facts as they are. Pelletier had the lower storey as a shop and painted the outside red, extending this rather prononcé color over the upper stories too. The defendant's boarders seem to have |