The Quebec Fire Assurance Company, - Appellants; Augustin St. Louis and John Molson, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 06 February 1851 |
| Date | 06 February 1851 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 891
ON APPEAL FROM THE COURT OF APPEALS FOR THE PROVINCE OF LOWER CANADA.
See Dickenson v. Jardine, 1868, L.R. 3 C.P. 644; The Mary Thomas (1894), P. 108.
ON APPEAL FROM THE COURT OF APPEALS FOR THE PROVINCE OF LOWER CANADA. THE QUEBEC FIRE ASSURANCE COMPANY,-Appellants; AUGUSTIN ST. LOUIS and JOHN MOLSON,- 'Respondents * [Feb. 5 and 6, 1851]. The parish church of Boucherville, in Lower Canada, having been in great part destroyed by a fire, which was occasioned by the negligence of the Respondents' servants, and being at the time insured by a policy effected by the cure upon the church and sacristy; the cure and one of the mar-gwilliers-en-charge, by a notarial instrument, transferred to the Appellants (" the Quebec Fire Assurance Company," who had granted the policy), * Present: Mr. Baron Parke, the Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, and the Right Hon. Sir Edward Ryan. 891 VII MOORE, 287 QUEBEC FIRE ASSURANCE CO. V. ST. LOUIS [1851] in consideration of the payment by them of part of the amount of the damage sustained by such fire, the right to sue and claim from the Respondents, the amount so paid. Held, that this constituted a valid subrogation of the debt due to the insurers in right of the fabrique, according to the French law prevailing in Lower Canada [7 Moo. P.C. 317]. Held, also, in an action brought upon the notarial Acte, that though the declaration was not strictly in form, yet it was substantially good; for the Plaintiffs (the Appellants) could not be held to sue as assurers, (in which character they had no title;) but as being subrogated to the debt due to the fabrique of the church by the Defendants (the Respondents), by reason of the payment made on their behalf in respect of the damage occasioned by them [7 Moo. P.O. 315]. Semble, By the old French law, the cure and marguilliers together could riot convey by way of assignment without the consent of the Bureau, though they might subrogate a debt due to them in their official character [7 Moo. P.O. 315, 318]. The Appellants in this case were an incorporated Company established in Lower Canada, by an Act of [287] the Legislature of that Province, of the 14th of March, 1829, for assurance against fire, under the name and style of the " Quebec Fire Assurance Company." On the 27th of February, 1841, that Company, through the agency of the Rev. Thomas Pepin, Cure, entered into a policy of assurance upon the church and sacristy of Boucherville, and the property therein; whereby it was witnessed that the Rev. Thomas Pepin, for the fabrique of Boucherville, had paid to P.H. Mait-land, Esq., agent for the Quebec Fire Assurance Company, the sum of 16 10s. currency, on condition, that the Rev. Thomas Pepin, acting as aforesaid, in case of any loss or damage occasioned by fire to the property specified, named, and described in those presents (in the place or places mentioned and not elsewhere), should have a remedy, not exceeding in any case the sum or sums therein specified, on the joint stock and the subscribed securities, and a# the disposition of the president and directors of the Quebec Fire Assurance Company, to the amount only of the funds on the terms and conditions contained in it, and annexed to and specified on the back of those presents, and not on any other terms and conditions whatsoever, viz., on the building only of the church of the parish [288] of Boucherville, including the steeple and the bells, 2200; on the organ contained in the church, 500; on the building only of the sacristy, 150; on the pictures contained in the church, comprising the curtains used to cover them, 250; on the linen and ornaments contained in the church and sacristy aforesaid, 100; on the furniture and plate of the church and sacristy, and contained in it, 100. The policy was in other respects in the usual form of policies against fire effected in this country. The policy was afterwards continued in force up to the month of February, 1844, and receipts were given for the premiums for the years 1842 and 1843, as received from the Rev. Thomas Pepin for the fabrique of Boucherville. On the 20th of June, 1843, a fire broke out in a hanger or shed, in the village of Boucherville, about one hundred yards from the shore of the river St. Lawrence, and separated therefrom by a house and stable, and a shed; and the fire communicated with other buildings, and destroyed the parish church of Boucherville, with its sacristy and a quantity of valuable property therein, all of which was comprised in the policy of assurance above stated. The extent of the loss and damage sustained by the fabrique, or parochial corporation of the church, was estimated and established according to the tenor of the policy of assurance, at the sum of 4230 12s. currency; and the Appellants, on the 4th of August, 1843, in fulfilment of their contract as assurers, paid by a cheque upon the cashier of the Quebec bank, dated the 19th of July, 1843, and payable sixty days after date, to the fabrique de Boucherville, or order, the sum of 3045 15s. currency, in full satisfaction of all demands against [289] the Company for the loss by fire, being a less sum than that of 4230 12s., the sum at which the loss and damage had been 892 QUEBEC FIKE ASSURANCE CO. V. ST. LOUIS [1851] VII MOORE, 290 established, and a less sum than that of .3300, the sum. to which the liability of the insurers was limited by the above policy. On the same day a notarial instrument was executed by and between the Rev. Thomas Pepin and Louis Favreau, one of the marguilliers-en-charge, or acting churchwardens of the parish, and John H. Maitland, Esq., agent at Montreal for the Quebec Fire Assurance Company, which instrument was in the words following: -" On the 4th day of August, in the year of our Lord 1843, before ihe undersigned public notaries, duly commissioned and sworn in and for that portion of the province of Canada, late the Province of Lower Canada, residing in the city of Montreal, in the said Province, personally appeared the Rev. Thomas Pepin, cure of the parish of Boucherville, in the district of Montreal, and Louis Favreau, of Boucherville aforesaid, farmer, marguillier-en-charge of the said parish, acting as well for themselves as in their respective capacities, and for and in the name and on behalf of the fabrique de Boucherville, of the one part, and John H. Maitland, Esq., of the said city of Montreal, agent in Montreal for the Quebec Fire Assurance Company, of Quebec, of the other part; which said parties declared that, whereas on the evening of Tuesday, the 20th day of June last past, a conflagration took place at Boucherville aforesaid, by which the church and much valuable property thereto attached and belonging was destroyed, and that the said conflagration is supposed to have originated (and indeed much positive evidence has occurred) from the boiler-chimnies of a steamer St. Louis, whereof Augustin St. Louis is master: and [290] whereas the said church, the sacristie, the organ in the church, pictures, linen and furniture, with other property thereto belonging, was at the time under insurance at the said Quebec Fire Assurance Company's Office, under Policy numbered X. '17585, at- a sum of 3300 current money of the said province of Canada: and whereas the said assurers and assured have caused an estimate to be strictly made of the liabilities of the said assurance Company toward the said cure and marguttliers, and others, under the aforesaid policy, in consequence of the aforesaid destruction by fire of the property set forth in the said policy, which estimate amounts to the sum of 3045 15s. current money, and which the said Company, on the demand of the said party hereto of the first part is now ready to pay, satisfy, and discharge. Now these presents witness that the said Rev. Thomas Pepin and Louis Favreau, acting as aforesaid, doth hereby acknowledge and confess to have had and received of and from the said Quebec Fire Assurance Corci-pany, by the hands of the said agent, well and truly paid in presence of us notaries at and before the execution hereof, the aforesaid sum of 3045 15s., said current money, in and by a bill or draft signed by D. R. Stewart, treasurer of the said Company, countersigned by Jeremiah Leaycraft, the president, dated 19th July, 1843, drawn on the cashier of the Quebec Bank, and No. 392, payable sixty days after date, which bill, draft, or cheque, when paid, will be in full payment, satisfaction and discharge of the claim and demand of the said assured, under the aforementioned policy of assurance, for the loss, damage, and destruction of the property thereby assured, at and in consequence of the fire or conflagration aforesaid, at Boucherville aforesaid, and of and [291] therefrom, and of and from every other or further claim, pretension, or demand, touching the aforesaid assurance, or the conflagration aforesaid, the said Rev. Thomasi Pepin and the said Louis Favreau, acting as aforesaid, do hereby acquit, release, and discharge, and promise to hold acquitted, released, and discharged, the said Quebec Fire Assurance Company for ever : and inasmuch as the said parties hereto are of opinion and do maintain that the proprietor or proprietors of. and all concerned or interested in, the before-mentioned steam-boat or vessel called the St. Louis, as having occasioned the conflagration aforesaid, are liable for all the costs, losses, and damages that have been thereby occasioned, he the said Thomas Pepin and Louis Favreau, acting as aforesaid, in consideration of the premises as aforesaid, doth hereby assign, transfer, and make over unto the said Quebec Fire Assurance Company, accepting hereof by the said John H. Maitland, and to their assigns, all right, title, interest, property, claim, and demand whatsoever, of every nature and...
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