1895.

Lesage

V.

"Considérant que malgré la cession volontaire faite au dit défendeur par le demandeur, ce dernier avait intérêt Lamarche. à ce que son actif fût vendu légalement par le défendeur, qui, de fait, n'était que son mandataire, et aussi à ce que tel actif réalisât le plus possible pour l'acquittement de ses dettes ;

"Considérant que le demandeur avait également intérêt à empêcher une liquidation irrégulière et illégale de ses biens et que le défaut de consentement de tous ses créanciers à la dite cession volontaire était pour lui un juste motif d'empêcher le défendeur de liquider illégalement et irrégulièrement ses biens;

"Considérant que le défendeur, bien que mis en demeure de suspendre ses procédés, a persisté à liquider illégalement les dits biens et que dans ces circonstances l'action du demandeur instituée non seulement dans son intérêt mais aussi pour le bénéfice commun de ses créanciers, était bien fondée;

"Considérant qu'il ressort des documents au dossier que le demandeur ayant, depuis l'institution de l'action, été obligé de faire une cession régulière judiciaire de ses biens, il n'a plus d'intérêt maintenant à obtenir les conclusions de sa demande sauf quant aux frais;

"Considérant que l'action du demandeur est bien fondée en droit et doit être maintenue pour les frais et que les défenses principales et supplémentaires du défendeur sont mal fondées;

"Renvoie les dites défenses principales et supplémentaires du défendeur, déclare l'action du demandeur bien fondée et condamne le défendeur aux frais et dépens de la dite action."

Bérard & Brodeur, avocats du demandeur.
Fortin & Laurendeau, avocats du défendeur.

(P. B. M.)

SUPERIOR COURT.

MONTREAL, 16 February, 1895.

Coram DOHERTY, J.

DAME MARY E. JANVEY v. CREE; & CREE v. DAME MARY E. JANVEY.

Husband and wife-Separation from bed and board-Desertion -Obligation of wife to live with husband Arts. 196, 197, 198, C.C.

HELD:-1. In an action for separation from bed and board, desertion by the husband is not established by evidence that he went away in search of employment, the wife acquiescing in his doing so.

2. The obligation of the wife to follow her husband wherever he goes and to live with him is dependent on his providing a suitable place for her; and where the husband does not establish that he has a suitable home in which to receive his wife the court will not make an order that she return to him.

JUDGMENT:

"The Court, having heard the parties by their respective counsel upon the motion of defendant in the first cause and plaintiff in the second, Edward Cree, that these two causes be united and the enquête in each declared common to both, doth grant the said motion and declare said two causes united for all legal purposes;

"Whereas plaintiff Mary E. Janvey in suit no. 1202 sues for separation from bed and board from her husband the defendant, by her action praying also for the custody of their children and an alimentary allowance of $25 per month, and alleging in support of her demand, outrage, ill-usage, failure to support, and desertion by her said husband;

"Whereas defendant, Edward Cree, pleads to said action denying the allegations of outrage, ill-usage, failure to support and desertion, and in substance alleging that

1895.

Janvey

V.

Cree &

Cree

V.

Janvey.

plaintiff, in his absence in search of work, abandoned the house in which he had left her, made away with the furniture thereof, which was insured for $400, placed their children in an asylum and went herself into service, and that although he has found work, provided a home and called upon plaintiff to come to it and bring their children and the furniture aforesaid, she has refused so to do, and that he has consequently instituted an action to compel her so to do, and that the present action was only instituted after the service of the said action so instituted by him;

"Whereas plaintiff Edward Cree (in suit no. 1278), in his declaration sets up in substance the allegations contained in his plea aforesaid in suit no. 1202, and prays that his said wife be ordered to return to his domicile and bring back the furniture, that failing her obeying said order he be authorized to seize and bring her there, or that her refusal be held a valid ground for a separation from bed and board should he be advised to bring a suit for said purpose;

"Whereas defendant Mary Janvey pleads to said action, 10. a general denial, and 20. a plea containing substantially the same allegations as her declaration in suit no. 1202, and denying that plaintiff has by law any such action as that brought by him;

"Adjudicating upon the action no. 1202, Janvey v.

Cree;

"Considering that plaintiff has failed to prove any such grievous outrage or ill-usage towards her by defendant since she came to join him in Canada, as would justify the granting of the conclusions of her action, and that as regards whatever may have occurred prior to her coming to Canada, it was completely condoned by the reconciliation which took place between the parties and their living together in Canada for about a year;

“Considering that as regards the alleged desertion of plaintiff by defendant in the summer of 1893, defendant's departure seems to have been fully as much in accord

ance with plaintiff's desire as his own wish, and to have been consented to or acquiesced in by plaintiff ;

"Doth dismiss plaintiff's action, but in view of the circumstances of the case, and of the fact that the conduct of neither of the parties as revealed by the evidence, is blameless, without costs;

vey;

Adjudicating upon the action no. 1278, Cree v. Jan

Considering that said plaintiff has not proved that he had or has any suitable home in which to receive his wife, and to which the court could order her to return;

"Considering that the obligation of the wife to follow her husband wherever he goes and to live with him, is dependent upon his providing a suitable place for her, and that said obligation upon her part can only in any event be enforced upon condition that the husband on his part comply with his obligation;

Considering therefore that even could the obligation of defendant, as plaintiff's wife, to live with him, be in any event enforced by means of an order such as prayed for by his present action, and even were he by law entitled to have the conclusions by him asked in the event of her failing to obey such order, (upon which question it is unnecessary in the present cause to pronounce), no such order should be granted, in view of plaintiff's not having shown he has a proper home to which the court could order defendant to return;

"Doth dismiss plaintiff's action, without costs." Burroughs & Burroughs for E. Cree.

Maclaren, Leet & Smith for Dame M. E. Janvey.

(J. K.)

1895.

Janvey

V.

Cree

& Cree

V.

Janvey,

COURT OF REVIEW.

MONTREAL, 15 June, 1895.

Coram TAIT, A.C.J., TASCHEREAU, ARCHIBALD, JJ.

TREMBLAY ET UX. V. GRATTON.

Lessor--Accident caused to member of lessee's family by defect in construction of premi es leased.

HELD :-The lessor of a building is responsible for damages caused to a member of the lessee's family by a defect in a staircase constructed by a previous tenant.-Elliott & Simmons, M. L. R., 6 Q. B. 368, followed.

The judgment inscribed in Review was rendered by the Superior Court, Montreal, Davidson, J., 24th April, 1895, in the following terms:

Seeing plaintiffs allege that they have lived for years with their son Joseph Tremblay, and on the 28th April, 1890, plaintiffs having leased with him defendant's house, 137 Quesnel street, moved into said premises; that on that day a step of the cellar stairs gave way under plaintiff's wife while she was descending into the cellar, and caused her bodily injuries; that said step was not properly fastened, and the accident was due to defendant's fault and negligence, whereby plaintiffs have been damaged to the extent of $5,000;

Seing defendant, for plea, alleges that the pretended injury complained of was due to a simple accident which might have been avoided by ordinary precautions; that the stairway was sufficient for its purposes, seeing that it only led to a cellar for vegetables; that before plaintiffs leased the premises they visited them several times, and knew the stairs and the nature of the place to which they led; that said injuries were not serious, and if they became so it was due to neglect and want of the most ordinary care;

66

Considering that on the 28th April, 1894, Madame