A DIGEST OF CASES nKTKUMINEl) BV THE _—— — Supreme Court of Canada ON APPEAL FROM DOMINION, PROVINCIAL AND TERRITORIAL COURTS OF CANADA DURING THE YEARS LS93-1898, COMI'IiiaiXO ALL CASES REPORTED IN VOLUMES 22 TO 28, BOTH INCLUSIVE, AND PART OF VOLUME 29 OF THE OFFICIAL REPORTS OF THE COURT, AND A NUMBER OF UNREPORTED CASES DECIDED DURING THE SAME PERIOD. roMPiLEP nv LOUIS WILLIAM COUTLI^^E, Advocate and Barr'.Hcr-at-Law, One of the OfficinI Law Rfportem of the Court. TORONTO : THE CARSWELL CO., Limited. 18iJ9. w Entered according to the Act of the Parliament of C'anada, in the year one thousand n,ght hundred and ninety-nine. hy The CAKSUHLr. Companv Limited h the Department of Agriculture at Ottawa, Canada. PRIN-IKD nV TUK LAR.SWl.:r.t.CO., I.1MITK1. lis Adelaiile St. Kast PR EF AC PI rriFTLS DIGEST covers the period embraced by volumes 22 to -^ 28 inclusively of the official reports of the Supreme Court of Canada, and a number of unreported cases decided during that time by the court as well as a few unreported cases decided pre- viously but hitherto unnoted so far as could be ascertained by the compiler. This work is a continuation of the late Mr. Cassels's Digest down to the end of the year 1898. A few interesting cases decided during the beginning of 1899 have been added while the book was in press. The same general plan has been followed as that adopted in Cassels's Digest, of the first twenty-one volumes of the reports of the court, the cases have been placed in chrono- logical order, broken up as little as possible, and copious cross- references have been made in addition to full digests under the heads of subjects principally affected by the decisions reported. At the end of the work appendices have been inserted shewing re- spectively the disposition made of cases which it has not been thought necessary to digest in full under any particular classifica- tion, the results of appeals or applications for leave to appeal from decisions of the Supreme Court of Canada to Her Majesty's Privy Council during the period of the Digest and a list of cases specially noticed in the cases which have been digested. The index is a complete list of all cases decided by the court from the date of Cassels's Digest to the end of the year 1898. Erx'ors in references, should any such have occurred, may be corrected by referring to the index, CONTENTS. TAOK. LiHT OF Chief Justices, JuixtKs and Piuncipal Oi'KrcKus v Memorandum of AimiiEviATioNs used in the Dkiest vi Addenda and Corkioenda viii Digest of Cases 1 Appendix "A." — List of Decided Cases not otherwise mentioned 287 Appendix "B." — List of Decided Cases in which Appkai-s were sought to Hek Majesty's i'nivv Council since 1st Jui,y, 1803 280 Appendix " C."— List of Cases specially noticed 202 Index 207 CHIEF JUSTICES, JUDGES AND OFFICERS OF TlIK SUPKEME COURT OF CANADA SINCE ITS OIUJANrZATION. CHIEF JUSTICES. Hon. Sin William Huei.l Uiciiauds, Knioiit, Appointed 8th (October, 1875, Resijjned lOth January, 187'J. Hon. Sin William Johnstonk Kitchir, Kniciiit, Appointed 11th January, 1879, Died 12th September, 1802. llif^ht lion. Sir Samuel Henhy STnoNG,KNionT, Appointed 13tli December, 1892. JUDGES. Hon. Sir William Johnstonk Ritchie, Knioiit, Appointed 8tli October, 1875. Kight Hon. Siu Samuel IIknuy Stkono, KNiotr, Appointed 8th October, 1875. Hon. Jean Thomas Taschereau, Appointed Stb jctober, 1875, Resigned Oth October, 1878. Hon. TELEsnioBE Focknier, Appointed 8th October, 1875, Resif^ned 12th September, 1895. Hon. William Alexander Henry, Appointed 8th October, 1875, Died 5th May, 1888. lion. Henri Elzear T.asciiereau. Appointed 7th October, 1878. Hon. John Wellinoton Gwynne, Appointed 14th January, 1879. Hon. CHKisToriiEu Salmon P.\tterson, Appointed 27th October, 1888, Died 21th May, 1893. Hon. Ronmrr Skikikwick, Appointed IHtli February, 1893. Hon. Georoe Ehwin Kino, Appointed 2l8t September, 1893. Hon. Desire GiuorAun, Appointed 28th September, 1895. OFFICERS OF THE COURT. REQISTltAKS. Robert Cassels, Q.C. Appointed hth October, 1375, Died 17th June, 1898. EuiVAULl RoHERT CaMERON, Appointed 2nd July, 1898. LAW REPOKTEBS. George Duval, Q C. , Appoi/ited 20th January, 1870, Died (Jth June, 1895. Archibald Sandwith Cami-brll, Appointed Assistant Reporter, 3rd March, 1880, Died 3rd September, 1880. Charles Hardino Masters, Appointed Assistant Reporter, 1st Octo- ber, 1880, Appointed Chief Reporter, 2nd October, 1895. Louia William Coutlice, Appointed Assistant Reporter, 2nd De- cember, 1895. ABBIIEVIATIONS. A.C. or App. Cas Law Reports, House of Lonla tiiid Privy Council Appeal Cases. Art Article. B.C British Columbia. B.N. A British North America. c, ch., or cap Chapter. C.C Civil Code of Lower Canada. C.C.P Code of Civil Procedure, Lower Canada (18C7). C.J Chief Justice. C. P.Q Code of Civil Procedure, Province of Quebec (1897). C.P.R Canadian Pacific Railway. C.S.C Consolidated Statutes of Canada. C.S.L.C Consolidated Statutes, Lower Canada. C.S.M Consolidated Statutes of Manitoba. C.8.U.C Consolidated Statutes, Upper Canada. Can. or(C.) Canada (1840-18G7). Can.S.C.R Canada Supreme Court Reports. Cass.Dif^ Cassels's Digest, Supreme Court Cases (18'J3). Cass. Sup. Ct. Prac Cassels's Supreme Court Practice, '2nd edition, by Masters. Ch. or Ch. App Law Reports, Chancery Appeals. Ch. D Law Reports, Cl>ancery Division. (D.) Dominion of Canada. DeG.M. &G DeGex, McNaughton * Gordon's Reports. Di v. Ct Divisional Court. Dor. Q.B Dorion, Queen's Bench Reports (Quebec). ed Edition. Ed. & Ord Edits & Ordonnances (Lower Canada). Ex.C.R Reports of the Exchequer Court of Canada. F. tfe F Foster & Finlayson's Reports. Gr Grant's Chancery Reports. G.T.R Grand Trunk Railway of Canada. ILL House of Lords. Imp Imperial. J Justice. J.J Justices. AHBREVIATIONS vl L.C. .lur Lower Canada Jurist. L.C.U Lower Canada Reports. L.It Law Reports (Eiifjlish). Man Manitoba. Man. L.R Manitoba Law Reports. Mer Merivale's Reports, Cliancory. M.L.R Montreal Law Reports (Queen's Bench and Superior Court). Mun. Code Que Municipal Code, Quebec. N.B New Brunswick. N.B.Rep New Brunswick Heports. N.W North-west. N.W.T. or N.W.Ter North-west Territories of Canada. N.W.T. Rep North-west Territo"ie8 Reports (Canada). N. S Nova Scotia. N.S. Rep Nova Scotia Reports. O. or Ont Ontario. Ont. App. R Ontario Appeal Reports. Ont. PR Ontario Practice Reports. O.R Ontario Reports (Queen's Bench, Chancery and Com- mon Pleas Divisions of the High Court of Justice for Ontario). P.D Probate, Divorce and Admiralty Division, P.E.I Prince Edward Island. Q. , or Que Quebec. Q.B Queen's Bench. Q.L.R Quebec Law Reports. Q.R Official Reports, Province of Quebec. Rep Reports (or Coke's Reports according to text). B,. L Revue Legale. Eev.de Jur Revue de Jurisprudence (Quebec). Rev. de Leg Revue do Legislation (Quebec). Bev. Ord. N.W.T Revised Ordinances, North- West Territories (1888). R.S.B.C Revised Statutes of British Columbia. B.S.C Revised Statutes of Canada. B.S.M Revised Statutes of Manitoba. R.S.N.B Revised Statutes of New Brunswick. R.S.N. S Revised Statutes of Nova Scotia. B_S.O Revised Statutes of Ontario. B_g.Q Revised Statutes of Quebec. 8. and ss Section, sections. g_g Sub-section. g_C Superior Court. ger Series. Sim Simons's Reports, Chancery. U.C.C.P Upper Canada, Common Pleas Reports. XI.C.Q.B Upper Canada, Queen s Bench Reports. ADDITIONS AND CORRECTIONS TD I)K MAPK nEFOUF. fSINO THIS I>T(iKST. Add under " Account," as No. 0, on page 2: — 6.— Stated ani> Settled Account— Ebtoi-pei — Manaoiso Pautneb. See PARTNEKKiiir, 8(i. Add under " CoxTnACT." as No. 74, on page 73:— 74. —Rescission'— Innocent MisnEPRKSENTAiioN — Common Ekrou— Sai-e of Land— Failure of Consideration. See Vendor and Purchaser, 11a. Add under " Crown," as No. 23, on page 79 :— 23. — Interest ao.unst Cuown— Consent to Reversal on Ai-peal. See Interest, la. Add under " Estoppel," as No. 18, page 98 :— 18.— Accounts Stated and Settled— Manaoino Partner. See Partnebsijip, 8a. Add under " Practice," as No. 04, on page 205:— G4.— Consent to Reversal on Appeal — Supreme Cocut Act— R. S. C. c. 13o, s. 02— Interest against the Crown. See Interest, la, Pa^e 9— Line 2 from bottom of first column, delete the letter " E." Page 12— The reference to Myliiis v. .^rtcA-. giving him the benefit of liis own improper and illegal pro- I eeedlngs. Bury V. Murray xxiv., 77 ' 2. — Warranty — Proceedings taken by Warrantee before Judgment on Principal Demand. It is only as regards the principal action that the action in warranty is an incidental demand. Between the warrantee and the warrantor it is a principal action, and may lie brought after judgment on the principal action, and the defendant in warranty has no interest to object to the manner in which he is called in where no question of jurisdiction arises and he suffers no prejudice thereby. But if a warrantee elect to take proceed- ings against his warrantors before he has himself been condemned he does so at his own risk, and if an unfounded action has been taken against the warrantee, and the warrantee does not get the costs of thf*" action in warranty inchuled in. the judgment of dismissal of the action against the prin- cipal plaintiff, he must bear the conse- (liu>nces. Archbald v. delAglc. BaUfr V. dvLisXr. Moicat V. dcLisle xxv., 1 3.— Negligence — Risk Voluntarily In- curred — " Volenti non fit injuria." On the trial of an action for damages in consciiuence of an employee of a lum- ber company being killed in a loaded car which was being shuuto<'., the jury had found that " the deceased' voluntarily acc<'iited the risks of shunting." and that the death of the deceased was caused by defendant's negli- gence in shunting, in giving the car too strong a push. Held, that the verdict meant only that deceased had voluntarily incurred the risks attending the shunting of the cars in a care- ful and skillful niamu'r. and that the maxim "volenti not) fit vnjtiria" had no application. Smith V. jBaA-er ([1891] A.C. 32.") I applied. The Canada Atlantic Ry. Co. v. Hurd- man xxv., 205 4.— Revendication — Replevin — Criminal Code, Sec, .")7."> — Confiscation of Gam- ing Instruments, Moneys, etc. ^foneys were seized in a gaming-house, under a warrant issued under sec. .~7.~> of the Criminal Code, and confiscated by the judir- ment of a Police ^Magistrate sitting in Ihe City of Montreal. In an action against the Attorney-General to recover the moneys so seized: ITrtd. per Strong. C.J.. that a judgment declaring the forfeiture of money so seized cannot be collaterally impeached in an action of revendication. O'AVfZ V. The Attorney-aenerat nf Can- ada xxvi. 122 ACTION. 5.— Bailees— Common Carriers — Express Company — Ke-ceipt for Money Parcel. — Conditions 1'recedent — Formal Notice of Claim — 1'leading — Money HAD AND Received — Special Pleas — " Never Indebted." Where an express company gave a receipt for money to be forwarded with the condi- tion indorsed that the company sliould not be liable for any claim in respect of the package useless within sixty days of loss or damage a claim should be made by written statement with a copy of the contract an- nexed : Held, that the consignor was obliged to comply stri(.'tly with these terms as a condi- tion precedent to recovery against the ex- press company for failure to deliver tne par- cel to the consignee. RirhanlHon v. The Can- ada Wrst Fanmm' Ins. Co. (1« U. C. C. !'• 430) distinguished. In an action to recover the value of the parcel, on the common c'ount for money had and received, the plea of '" never indebted " put in issue all material facts nocessarj- to establish the plaintifC's right of action. The Xorthern Pacific Express Co. v. Martin, €t al xxvi., 135 0. — Contr^vct — Public Works — Progress Estimates — Engineer's Certificate — Revision by Succeeding Engineer — Action for Payment on Monthly Certificate. A contract with the Crown for building l(K'ks and other work on a government canal provided for monthly payments to the con- tractors of !I0 per cent, of the value of the work done at the prices named in a schedule annexed to the coutra to a iiuamiiy to he taki-u from tlie mass t'liiiivalcnt to the iKH-tioii of tlio nioin'v aclvancorocedure in Ontario an e(|iiitabh' title tc) chattels will su'i]iort an action of replevin. Carter v. Loitij d- Hiahi) xxvi., 430 10. — Partxership — Division of Assets — Art. ISOS C. (".—Mandate— Debtor AND Creditor — Account. Tpon the dissolution of a partnership, where one of tlie partners has been enlrnsteil with the eoilection of moneys due as the iiiindatary of the others, any of his co-part- ners may brin;r suit against him directly either for an ai'count Miider the mandate, or for money had and received. Lefcbvrc v. Aiihry xxvi., (102 11.— Warranty — Suretyship — Recourse OP Sureties inter se — Ratarle CONTRIHt'TION — H.\NKING DISCHARGE OF Co-surety — Reserve op Recourse — Trust Fu.nds i.v Possession of a Surety— Arts. lloC, l!)oO C. C. Where one of two sureties has moneys in his hanils to be applied towards i)aymeiit of the creditor, he may be compelled by his co- surety to pay such moneys to the creditor or ti> the co-suri'ty himself if the creditor has silreaily beini paid by him. Where a creditor has released one of sev- eral sureties with a reservation of his re- course against the others, and a stipulation against warranty as to claims they might have against the surety so released by rea- son of tho exercise of such recourses re- serverl, the creditor has not thereby rendered himself liable in an action of warranty by the other sureties. Macdonald v. Whitfifld. Whitfield v. The Merchants Bank of Canada xxvii., 5)4 12. — Administration — Trustees — Agents — Nullity- Art. 1484 C. C. Tn an action where no special demand to that effect has been mnde, the Court cannot declare the nullity of a deed of transfer al- leged to have been made in cont'^avention of the provisions of article 14S4 of the Civil Code. (htei-tin v. Sansterre xxvii., 522 ; 13. _ Suretyship — Promissory Note — Qualified Indorsement. D. indorsed two promissory notes, I'oiir I aval, at the same time marking tiieni with I the words " not negotiable and given as se- I ciirity." The notes were iuleiided as seotir- ity to the lirni of A. iV; R. for atlvances to a th'rd person on the publication of certain guide-books which were to be left iu the hands of the linn as further security, the proceeds of sales to be applii'd towards re- imbursement of the .-idvaiices. It was also i agreed that payment of the notes was not : to be reiiuired while the books vein..iued in the possession of the tirm. The notes were i)rotested for nen-paynient, and, A. having ilied. R. as surviving partner of the tirm and vested with all riglils in the notes, sued the maker and imlerser jointly ami severally for the f\ill amount. At the timi" of the action some of the books were still in the possession of R., and it appeared that ho had not rendered the indorser iiiiy state- ment of th<> tinancial situation between the principal debtor and tlie tirm. i Held, that the action was not based upon the real contract between the parties, and that the plaintifl' was not, under the cir- : cuinstances, entitled to recover in an action , upon the notes. I //(■/(/ further. p«'r Sedgewick, J., that ; neither the payee of tlie promissory uot(> I nor the drawer of a bill of exchange ean i maintain an action against .•m imlorser, i wh(>re the action is founded upon the instni- nient itself. Robertson v. Davis xxvii., ~)~\ 14. — Action on Disturbance — Possessory Action — " Possession annale " — Arts. 94fi AND 948 C. C. P.— Nature op P> ssEssioN OF Unenclosed Vacant La^'ds — Boundary Marks — Delivery OF i OSSESSION. In 1800, G. purchased a lot of land 2.T feet wide, and the vendor pointed it out to him, on the ground, and showed him the pickets marking its width and depth. The lot '-e- inained vacant and unenclosed' up to the time of the disturbance, and was assessed as a 2r> foot lot to O., who paid all municipal taxes and rates thereon. In 1S{)."> tho ad- joining lot. which was also vacant and un- <'nclosed. was s(dd to another person who commenced laying foundations for a build- ing, and. in doing so encroached by two I'eet on the width of the lot so purchased by CI.. who brought a possessory action within a couple of months from the date of the dis- turbance. ACTION. Hfl<]. that tlio vosufsxioii annnlr, required liy artiolo 1»4« of the Cod(> of Civil Troce- (liiro. was snt!ici(>iitly ostnMishod t.) I'litiih' the plaiiitifT to iiiiiimaiii liis actimi. Oaiithi)-)- \. J/n«so» xxvii., •>i.) 15. — Service — Judgment by Default — Opposition to .Fui3(J.men'T — Reasons of — •• KeCISSOIKE ■' JOINED WITH " Re- scindant "—Arts. 1(1, 80 ft sk/., 483, 481), C. C. r.— FaLSB liBTUKN OF Service. X(» entry of default for nou-a!>iiearan(o can be made, nur (.r ;i./Wr judnnienl rendered. nKainst a. defeiidanl wh(i has imt been duly served with the writ of summons, although the jiapers in the action may have actually reached him throujrh !i person vvitli whom they were h'ft by the bailiff. The iirovisions of articles 4So and foUow- in.i: (if the ("ode of Civil Trocedure of Lower Canada relate only to cases where a tlefcn- dant is lejially in default to appear or to plead and have no apph ttion to an ex parte judgment rendered for default of appear- nnce, in an action which has not been duly served upon the defendant, and the defen- dant may at any time seek relief afiainst anv such .pidgment. and have it set aside notwilhslandinf; that more than a year and n dav may have elapsed from the rendering of tlie same, and without alleging or estab- lishing that he has a good defence to the ac- tion on the merits. An opposition asking to have a .iudgment set aside, on the ground that the defendant has not been duly served with the action, which also alleges the defeudaufs grounds of defeiKO upon the merits, should not be disnnss(>d merely for the reason that the irnrissoirr has thus been improperly joined with the rcsriiidaiit. Turcot tc T. Pnnnerfou xxvii.. 583 10.— RioiiT OF Action— Conveyance Sub- ject TO MoUTCAC.E— Onl^IGATION TO IN- DEMNIFY — Assignment of — Principal, j AND Surety— Implied Contract. i The obligation of a purchaser of mortgaged | lands to indemnify his grantor against the j liersmial covenant for iiayment may be as signed even liefore the institntion of an ac tion for the ri'covery of the mortgage debt and. if assisrned to a person entitled to re- cover the debt, it gives the assignee a direct riglit of ai'tion against the iierson liable to pay the same. Moloney v. Campbell xxviii., 228 j7._Cause of Action— Trade Union— Com- HINATION IN UeSTRAI.N'T OF TrADE— Stki k ks— Social 1'ressure. WorUmen who, in carrying out the regula- tions of a Trade I'nion forbidding them to work at a trade in company with non-uuiou workmen, withoui threats, violence, intimid- ation or other illegal nieins. iake such mea- sures as result in i.reveiiting a non-union workman from obtaining employment at his traik' in esiablislinieiits where union work- men are engaged, do not thereby incur lia- liility to an action lor damages, .ludgme.it of tiie (N)urt of tjueen's Iteiich (Q. It. <"• .')( .•iflirmed. I'cnaiilt V. (laiithiir il. Tlie actio roiKlirlio iiiilrhill for the recovery of the iirico paid by the iiurchaser of lands lies only in cases where there has been ac- tual eviction. Mere exixisnre to eviction is not sutlicient grouml for vacating a sherifl's sale. The nrocedure by petition provided by the Code of Civil Procedure for vaeatir.ir sheriff's sales can only lie invoked in cases where an action would lie. The Trustt and l.nnn Co. T. Quintal (2 Dor. Q. P. V.W. followed. Drschiimpx v. Burti. 14tli Dec.. 1S<»8 . . xxix. in. — Municipal CoRporiATioN — Py-law — Railway .Vin — Surscriptton for Shares — Debentures — Division op County — Erection of New Mitnict- PALiTiES — .\ssessment— Sale of Shares AT Discount — .Action en redditton t>r COMPTT'^S — TRT'STEK — DERTOR AND CREDT- Ton— Arts. 7S. 1f!4, n.^O, Muv. Cope, ni'p._24 Tic. e. no fQi-E.i- r!0 A'ir. c. 50 (QtTK.>. An action c» rrddition dr conirttrx does not lie against a trustee invested witli thi' adinin- istration of a fund, until such administra- tion is complete and terminated. The relation existing between n county corporation under the provisions of the Muni- cipal Code of the Province of Quebec anil tlie local mtiincipalities of which it is com- posed, in relation to money by-laws, is not ACTION. that of agent or trustee, but the county cor- poration is a ciHiitor, aud the several local iiiuiucii>aliti('s are its debtors for t'.ie amount of tile taxes to be assessi'd uiiou their rate- payers resiiectively. Where local ninnicipaliLies liave been de- tached from a county, aud ere<'ted into separate cori)()rations, they ren-.ain in the same jiosilion. in regard to siibsisting money by-laws, as they were before the division, «nd have no further rights or obligations than if they had never been separated there- from, and they cannot t-ither conjointly or inilividually institute actions against such county corporation to cfimpel the rendering of special accounts of the ailministration of funds in which they have an interest, their pmper method uf securing statements being through the facilities provided by article 1<>4, and other in-ovisions of the Municipal Code. The Toirufihii) of Asrott v. The County of Coinpton: The TiUnfie of LetinoTrille v. The Coiinly of Comptim, 14th December. 1898, xxix. 20. — Bar to Action- — Sheriff — Trespass — Sale of Goods by Insoi.vent — Bona FiDF.S — .Tl'DOMEN'T OF INFERIOR TrI- BfXAL — E.STOPPEL. — ReS .Tt'DICATA Fraudi'lent Preferences — Pleading. See Pleading, G. 21. — Contract for Pi-bi.ic Work — Suspen- .sioN of Richt of Action — Agreement FOR Arbitration. »S'r<7 Contract, 7. 22. — Personal Injuries caused bt Negli- gence — Examination of Plaintiff DE bene esse — Death of Plain- tiff — Subsequent Action under Lord Campbell's Act — Material Issues — ■ Evidence. See Evidence, 3. 23. — For Specific Performance — Agree- ment TO Convey Interest in Mine — Dismissal of Action — Subsequent Suit — Agreement to transfer Part of Proceeds of Sale of Mine. See. Res Judicata, 3. 24. — Contract of Sale — Contre lettre — Principal and Agent— Construction of Contract — Actio Mandata Con- traria. S;e Contract, 13. 25.— Premature Action — Contract for Sale of Timber — Delivery — Time of Payment. See Contract, 19. 2fi.-RiGHT OF Action— Condition Prece- dent — Signification of Transfer — Is- sue AS to. *'ff Signification. 27.— Bar to Action— Foreign Judgment — Estoppel— J UDG.MENT obtained after Action begun— R. S. N. S. (5 ser.), c. 104, s. 12, s.-s. 7. See Foreign Judgment. 28.— Title to Land— Action En bornage— Surveyor's Report— Chose jugee. Sec Res Judicata, .j. 29.— Limitation of Action— Commencement OF I'rescription — Torts— Liability op Employee fob Act of Contractor- Continuing Damages— Public Work. Sec I'erscription, 2. 30. — Action on Judgment — Partnership —Judgment against Firm — Liability OF Reputed Partner. Sec Partnership, 6. See I'romissory Note, 1. r>l.— Action En gabantie— Warranty— De- lit. Sec Warranty, 2. 32.— Testamentary Succession— Balance DUE by Tutor — Executors — Account, Action for — Action for I'rovisional Possession— Parties to Action. See Practice, 35, 33.— Condition Preceden-t — Arbitration — Award — Action for Possession — Payment for Improvements. Sec Lessor and Lessee, 1. 34. — Appeal — .Jurisdiction — Appeal.\ble Amount — Monthly Allowance — Future Rights — " Other Matters and Things "— R. S. C. c. 135, s. 29 (ft)— .56 Tic. c. 29 (D.) — Established Juris- prudence in Court Appealed From. See Appeal, 70. 35. — Action Petitoire — Title to Lands — Mistake of Title — Good Faith— Com- mon Error — Demolition of Works- Right OF AccE:asioN — Acts, 412, 413, 429. et see/., 1047, 1241 C. C. See Appeal, G8. See Bornage, 1. ADMINISTRATORS— ADMIRALTY L/vW. 30.— Accident Insurance— Condition in Policy — Notice — Condition Pre- cedent. Ute Insurance, Accident, 2. ADMINISTRATORS. 1.— Payment of Claim against Estate- Death of Administrator — Administra- tion de bonis non — Unadministered Asset. If an administrator, on competent advice, pays a claim bona ftilc niaiic against the es- tate, the money paid is not on his death, even though paid under a mistake in law, au unadministered asset so as to vest in an administrator dc hoiiis non a right of action to recover it back. Muyluu- V. »S7o;ic xxvl., 58 2. — BriLDiNG Societies — Participating Borrowers— Shareholders — C. S. L. C. c. «;9— 42 & 43 Vic. (D.) c. 32— IjIquidation— Expiration of Classes — i Assessments on Loans — Notice of^ Interest and Bonus— Usury Laws — C. S. C. c. 58- Art. 1785 C. C— Adminis- trators AND Trustees — Sales to — Prete-nom— Art. 1484 C. C. See Building Society. I 3.— Fraudulent Conversion — Past DtiE ! Bonds — Securities transferable by 1 Delivery — Estoppel— Implied Notice ! — Innocent Holder for Value — Com- mercial. Paper. See Pledge, 1. 4.— Nova Scotia Probate Act— R. S. N. S. (5 SER.) c. 100. AND 51 Vic. (X. S.) c. 2r>— License to sell Lands — Estoppel — Res judicata. Sec Res Judicata, S. ADMIRALTY LAXtT. 1. — Collision — Negligence — Rule op the \ Road — Steamer — Sailing Vessel — i Opinion of Assessors — Delegation of ■ JuDiciAL Powers. ! In a case of collision, the marine protest ' by the captain of the schooner stated that the cause of the accident was that the steamer's wheel was put to port when it should have been put to starboard just before the collision. The action was twice tried, the first trial having been set aside on the ground that the judge by adopting the opin- ion of the assessors, had delegated his judi- cial functions (19 Out. App. R. 298). The second trial resulted in a verdict for the plaintiff, which was affirmed b^' the Court of Appeal for Ontario. The Supreme Court of Canada affirmed the judgment of the Court of Appeal, sustaiuing the plaintiff's verdict, and dismissed the aii- peal with costs. Collier V. ^^'right, Gth May, 1895, xxiv., 714. 2. — Collision — Rules of the Road — Nar- row Channel — Rules of Navigation — R. S. C. c. 79, s. 2, Arts. 15, 10, 18, 19. 21. 22 and 23 — " Crossing " Ships — " Meeting " Ships — " Passing " Ships- Breach OF Rules — Presumption op j Fault — Con'tributory Negligence — ■ Moiety of Damages— 30 & 37 Vic. (Imp.). [ c. 85, s. 17 — Manceuvres in " Agony of Collision." If two vessels approach each other in the position of " passing " ships (with a side light of one dead ahead of the other), wliere un- less the course of one or both is changed, they will go clear of each other, no statutory rule is imposed, but they are govi-rned by the rules of good seamanship.— If one of two " passing " ships acts consistently with good seamanship and the other i>ersists, without good reason, in keeping on the wrong side of the cliannel: in starboarding her helm when it was seen that the helm of the other was hard to port, and the vessels rapidly ap- proaching; and, after signalling that she was going to port, in reversing her engines and thereby turning her bow to starboard, she is to blame for a collision which follows. The non-oV)servance of tlic statutory rule (art. 18), that steamships shall slacken speed, or stop, or reverse, if nwessary when ap- proaching another ship, so as to involve the risk of a collision, is not to be considered as .a fact contributing to a collision, provided the collision could have been avoided by the impinging vessel by reasonable care exerted tij> to the time of the collision. Elxcusable manoeuvres executed in " agony of collision " brought about by another ves- sel, cannot be imputed as contributory negli- gence on the part of the vessel collided with. The rule that in narrow channels steam- ships shall, when safe and practicable, keep to the starboard, (art. 21), does not override the general rules of navigation. The Lever- ingtm (11 P. D. 117) followed. The Ship " Cuba " v. McMillan, et al, xxvi., 651 3. — Collision — Steamship — Defective Steering Apparatus — Neglige.nce — Question of Fact. See Appeal, 19. 4.— Seal Fishery (North Pacific) Act, 1893, 56 & 57 Vic, c. 23 (Imp.), ss. 1, 3 and 4— Judicial Notice of Order in Council Thereunder — Frotocoi^ op ADMISSIONS— AGENT. Examination of Offending Ship by llussiAN War A'essel, Sufficiency of — 1'resence within 1'rohibited Zone — Bona fides — Statutory 1'resumption OP Liability — Evidence — Question of Fact. .S'cc Evidcucc, 5. ADMISSIONS. P^viDENCE— Judicial Admissions — Nullified Instruments — Cadastre — Plans and Official Books of Keference — Com- promise—" Transaction " — Estoppel^ Arts. 311 and 1243-1245 C. C— Arts. 221-225 C. C. r. A will, ill fjivour of the husband of the testatrix, was set aside in an action by the heir at law, and declared by the judgment to be itn acte faux, and therefore to be null and of no effect. In a subsequent petitory action between the same parties: Held, Girouard, J., dissenting, that the judgment declaring the will faii.r was not evidence of admission of the title of the heir at law by reason of anything the devisee had done in respect of the will, first, be- cause the will having been annulled was for all purposes unavailable, and, secondly, be- cause the declaration of fan.r. contained in the judgment, did not show any such admis- sion. The constructive admission of a fact re- sulting from a default to answer Interro- gatories upon articulated facts recorded un- der art. 225 C. C. T., cannot be invoked as a judicial admission in a subsequent action of a different nature between the same par- ties. Statements entered ujion cadastral plans and official books of reference made by pub- lic officials, and filed in the lands regis- tration oflices. in virtue of the provisions of the Civil Code of Low-er Canada, do not in any way bind persons who were not cognizant thereof at the time the entries were made. AVhere a deed entered into by the parties to a suit in order to effect a compromise of family disimies, and prevent litigation, failed to attain its end. and was annulled and set nside by order of the court sis being in con- travention of article 311 of the Civil Code of Lower Canada, no allegation contained in it could subsist even as an admission. Durochrr v. Durocltcr xxvii., .363 AFFIDAVIT. 1. — Chattel Mortgage — Compliance with Statutory Form— R. S. N. S. [5 per.], r. 92, s. 4. See Chattel Mortgage, 1. 2. — BorA Fides — Chattel Mortgage — CO.MPLIANCE with STATUTORY FoRMS. Sec Chattel Mortgage, 2. AFFREIGHTMENT. Charter Party — Co.ntract — Negligence — Stowage — Fragile Goods — Bill of Lading — Notice — Acts 1G74, 1(!75. I'JTt), 23S3, 231K). 24(l!>, 2413, 2424, 2427, C. 0. — Fault op Servants. iS'fc Carriers, 4. AGENCY. Sec Principal and Agent. See Contract. AGENT. 1. — Insurance Agent — Duty towards Company — Acting for Rival Company — Divided Interests — Dismissal. Acting as the agent of a rival insurance company is a. breach of an insurance agent's agreement, '" to fulfil conscientiously all the duties assigned to him, and to act constantly for the best interests of " his employer, and is sufficient justification for his dismissal. Judgment of the Court of Appeal for On- tario (22 Out. App. R. 408), affirmed. Eustmurc v. The Canada Accident Assurance Co., 22nd February. 1896 . . . . xxv., t'.91 2. — Agent of Creditor — Ortaining Pay- ment froji Debtor — False Represen- tation — Fraud — Ratification — Indic- table Offence. See Debtor and Creditor, 3. 3.— Sale of Goods — Sale through Brokers — Authority of Brokers — Acquiescence. Sec Principal and Agent, 1. 4.— Railway Company— Carriage of Goods — Connecting Llnes — Authority of Agent. See Contract, 17. 5. — Insurance Company — General Mana- ger — Medical Examiner — Agreement with — Authority of Manager. Sec Contract, IS. 6.— Insurance Company — Authority — Waiver. See Principal and Agent, 8. AGREEMENT— Al'PEAL. AGREEMENT. 1.— Sale of Land — \'ENDOit and Pur- chaser — Agreement to sell — Title UNDER Will — Kestkiction — 1'art I'er- lORMANCE — Special Legislation — Com- pllvnce with Terms of. Sec Spt't-ific I'erforniancu, 1. 2. — Charge upon Lanps — ^Ioutqage — Statute of Frauds— Registration. iS'fc ilortgagc, 5. 3. — Sale of Land — Vendor and Pur- chaser—Principal AND Agent— Mis- take— Contract — Agreement for Sale OF Land — Agent Exceeding Authority — Findings of Fact. See Contract, 43. -J. — Vendor and Purchaser — agreement FOR Sale of Lands — Assignment by Vendee — Principal and Surety — Deviation from Terms op Agreement —Giving riMB— Creditor Depriving Surety of Rights— Secret Dealings with Principal— Release of Lands — Arrears of Interest — Novation — Dis- charge OF Surety. See Principal and Surety, 3. 5. — Municipal Corporation — By-law — Assessment — Local Improvements — Agreement with Owners of Pro- perty — Construction op Subway — Benefit to Land. Sec Municipal Corporation, 28. And sec " Contract." ALIMENTARY ALLOWANCE. 1. — Appeal— Jurisdiction— Future Rightb — Alimentary Allowance— R. S. C. c. 135, s. 29, s.-s. 2: 54 & 55 Vic. c. 25. s. 3; 50 Vic c. 29, s. 2. Actions or proceedings respecting disputes as to more personal alimentary pensions or allowances do not constitute controversies wherein rights in future may he hound with- in the meaning of the second sub-section of the twenty-ninth section of " The Supreme and Exchequer Courts Act " as amended, which allows appeals to The Supreni':' Court of Canada, from judgments rendered in the Province of (Juehec in cases where the con- troversy relates to "' niinual rents or other matters or things where rights in future might be bouniii- c-eed with the iK'tition in this case, because the two petitions filed had not been brac- keted by the iirothonotary as directed by sec. 30 of ch. S> U. S. C, is not an appealable judgment or decision. R. S. C. eh. i), s. 50. (SedKcwick. J., doubting). VuiidirHil Khrtion Case xxii., 1 4.— .Ttrisdiction — ('riminal I'roceeping — Contempt ok Court — Final Judgment R. S. C. c. 135, s. t«S. rc)ntenii)t of ciHirt is a criminal proceediii}; and unless it conies within sec. (ill of tht- Sup. Court -Vet an appeal does not lie to this eourt from n jiidKineiit in proceedin;rs there- for. O'.htu V. O'.slua (\'i 1'. D. oU) followed; In re U'Uriin (ItJ Can. S. C. R. JOT), referred to. In proceedings for contempt of court by attachment until sentence is pronounced there is no " iinal judgment " from which an ap[)eal could be brought. Ellis V. The (Jiwon xxii., 7 5. — Trial by Jury— Withdrawal from Jury- — Reference to Court— Consent OF Parties — Railway Co. — Negli- gence. On the trial of an action against a railway company for injuries alleged to have been caused by negligence of the servants of the company in not giving proper notice of the approach of a train at a crossing, whereby jdaintiff was struck by the engine and hurt, the case was withdrawn from the jury liy consent of counsel for both iiarties and re- ferred to the full court, with power to draw inferences of fact and on the law and facts either to assess ]amag<i)Iicable to cases already instituted or to that effect being used. Williams v. Irvine xxii., 108 7. — New Trial — Appeal from Order for — Final Judgment. In an action brought to recover damages for the loss of certain glass delivered to de- fendants for carriage, the .Tudge left to the jiiry the question of negligence only, re- serving any other questions to be decided subsequently by himself. On the question APPEAL. It suliuiittt'd the jury dis!ij;reeivisional t'oiirt pronounced judg- ment on the motion disndssing plaintilT's action. On appeal to tiu' Court of ApiH'al, the judgment of the Divisional Court was reversed and a new trial ordered. On appeal to the Supreme Court; Ihlil, tliat the judgment of the Court of Appeal or(k'ring a new trial in this east- was not a final jiidgim'tit nor did it come within any nl' tlie lunvisions of the Sujireme (Jourt Act authorizing an api)eal from judgments not final. Cf.nudiiin Pacific Ry. Co. v. Cobban Mfg. Co x.\ii., lV/2 S.— Sheriff's Sale of Immovable — Action TO Vacate— Appeal from .Iudgment in. An appeal will lie to the Supreme Court under see. li!) (b) of the Supreme ("ourt Act from the jmlgnient in an action to vaeate the sheriff's sale of an immoval)le. Diifresne V. Dixnii (10 Can. S. C. K. 59G) followed. Lcfvuntun v. yvrontuaii xxii., 203 9.— Appeal— Amount in Controversy— R. S. C. c. l.'?r)-r)4 & 55 Vic. c. 2.-)— Costs. C. brought an action against E., claiming: 1. That a t'crtain building contract should be rescinded; 2. .1:1, 000 damages; 3. ^'A't for value of bricks in possession of E., but belonging to C. The judgment of the Stiperior Court dismissed C.'s claim for $1,000 but granted the other conclusions. On appeal to the Court of Queen's Bench by E., the action was dismissed in 1803. C. then appealed to the Supreme Court. HchU that the building for which the con- tract had been entered into having been completed, there remained but the question of costs and the claim for $54.") in dispute l>etween the parties and that amount was not sufficient to give jurisdiction to the Supreme Court under R. S. C. c. 135. s. 29. Coican V. Evans xxii., 328 10.— Ji'RTSDicTioN — Right to Appeal— 54 & & 55 Vic. c. 25, s. 3. s.-s. 4— Amount IN Dispute— R. S. C. c. 135, s. 29. The statute 54 & 55 Vic, c. 25. s. 3. which provides that " whenever the right to , i.i>iieal is dependent upon the amount in dispute-, si.ch amount shall be understood to be tiiat demandeii and not that recovered, if they are dilTerent " does not api)ly to cases in which the Sui>erior Court has rendered judgment, or to cases argued and utauding for judgment (t" ililihnrt before that court, wheti the act came into force (.".Hth Seidem- ber, lcS',11). W'illiamg v. Iriinv {'SJ, Can. S. C. R. ItlSl followed. In iictions for damages claiming more than .$2.(MI0. the Court of Qi'«'»^>i's Hencli for Lower Canada on appeal in one case gave plaintifE judgment for $SiK)sition afln de coiiservi;)- for $24,000 filed by L. on the proceeds of a sale of property upon the execution by K. against H. & Co. of a judg- ment obtained by K. against H. & Co. f jr $1,129. The Superior Court dismissed L.'s opposition but on appeal the Court of Queen's Bench (appeal side) maintained the opposi- tion and ordered that L. be collocated au marc la liirr on the sum of $930, being the amount of the proceeds of the sale. Held, that the p«^cuniary interest of K. appealing from the judgment of the Court of Queen's Bench (appeal side! being under $2,000 the case was not appealable under R. S. C. c. 135. s. 29. Octidron v. McDmigall (Cass. Dig., 2 ed.. 429), followed. Held also, that sec. 3 of 54 & 55 Vic, c 25, providing for an appeal where the amount demanded is $2,000 or over has no applica- tion to the present case. Kinghom v. Larue xxii., 347 12.— Criminal Trial — Motion for Re- served Case — Unanimity on one of Several Grounds. Where the Court appealed from has affirm- ed the refusal to reserve a case moved for at 13 AITEAL. a oriminal trial nn two grounds, and is un- aniiiKiiis !is to one of siidi Krovimls Init not lis to Ilif otiii'T. the Supreme Court on api>eal ran only take iiito .on-^ideriitiou tile ground of iiiolinn in whiili tliere was dissent. Milnliinh v. 'I he Quvvn xxiii., ISO 13.— .Trinci.M. I >isi-uKTi()N— Executors and 'I'ursTKKS- A<<'<)UNTS. I'lic Supreme Court of Canada, on appeal from a decision atlirmin;; tlie report of a referee in a suit to reiu(n\> e.veeutors and trustees whieli rejiort disallowed items in aceotiuts iir.'viously passed l>.v the I'rohate Court, will not reconsider tlie items so tl >alt with, two Courts haviu),' previously exer- cised a judicial discretiiui as to the anmuuts and no question of principle being involved. (Jiinir V. Mrljiirn xxiii., 310 14.— I'l'iiLic Street — Encroachment cjn— lillLDING " fPON " OR " CI^OSE TO " THE LINE — Charter of Halifax, secs. 454, 4.")r>— I'etition TO Ue.move Obstruction — .Tl'DGMENT ON — VARIANCE. By see. 4.")4 of the charter of the City of Halifax any person inteudinji to erect a huildiuir up 15.— Action Negatoria Servitutis— Amount IN Controversy— Ft-ture Rights;- R. S. C. c. 13.". P. 20 (h)—~>C, Vic. c. 20, 8. 1. In an actimi iictiatoirc the plaintiff sonpht to have a servitude claimed by the defendant declared non-existent, and claimed S-^O damajres. Tfcld. that under 50 Vic. c. 20, s. 1. amendins: R. S. C. c. 1.3."). s. 20 (M. the rase was apix'alable. the riuestiou in contro- versy relating' to matters where the rights in future might be bound, ^\'inlhcrg v. Ihimpmn (1!> Can. S. C. R. 3C>0) distinguished. chumhtilaiid v. t'orticr . . . . xxiii., 371 1t>. — ]';xpRorRiATiiiN— 35 Vic. c. 32, s. 7 (QlE.I- IntEIU'ERENCE with AWARD OF AlilUTHATORS. In a mjitlcr of expropriation the decision of a majcifity of aibitrators. men of more tluin ordinary business experience, ui)on a question nwrely of value should not be inter- fered with on appeal. Lcinoiiif V. Citi/ of Motitiral. Allan V. (ill/ of Mohtnal . . . . xxiii., 300 17. — PLEAniNGS— Objection First Raised ON Appeal. An objection to the sufficiency of the traverse to a declaration will not be enter- tained when taken for the lirst time on ajipeal, the issue lijiving been tried on the assumption th.-it the traverse was sutlicient. Mylius V. •lacUnon xxiii., 45^ 18.— Cro.ss-appeal— Rules (J2 and 08— Com- pliance with. A cross-appeal will be disregarded by the Court when rules 02 and (>3 of the Supreme Court Ilules have not been complied with. liulmn- V. '/7m- Queen xxiii., 4S8 ll>__CoLLisioN AT Sea— Negligence— De- fective Steering Gear— Question of Pact— Interference with Decision op Local Judge in Admiralty. In an action against the owners of the " Santanderino " for damages by collision with resiiondenfs barque, the •" Juno," through the breaking down of the steering apparatus, the Local Judge in Admiralty, District of Nova Scotia, who was assisted on the trial by a nautical assessor, found that the steering gear was constructed on an ai)i)roved patent, and was in good order when the "Santanderino" started on her 'voyage, but that the collision was due to want of promjit action by the master and officers when the wheel refuseil to work (3 Ex. C. R. 378). On appeal to the Supreme Court of Canada, it was Jlehh Sedgewick and King. JJ.. dis- senting, that only a qnestiou of fact was involved, and though it was doubtful if the evidence was sufRcicnt .to warrant the finding, the decision was not so clearly wrong as to justify an npiellate court in reversing it. f!.fi. " Sinntandcrino" v. Xanrevt ct ai. 13th March. 1803 xxiii.. 145 APPEAL. «3 UU.— Bond in Appeal— School Mistress- Fee OF Office— FuTUKE Uiuuts— R. S. C. c, 135, s. L".t [hi V. S. L. C. c. 15, 8. 08— K. .S. ii. AuT. -JitTd. E. I.Mi-iviere, a school mistress, by lier aiiiiiii iliiinu'd Jfl.LMo as fees tliu' to Iut in virtui' of see. •!!>, c-liai). l.'i. ('. S. L. (*., wliicli W;is collfcti'd l).v till- Stiiool {Joiiiinissioiicrs of llif City of 'I'liri-e IJivers, wiiilc she was fliiiiloycd liy tlieiii. At tlif lilue of tlie action the i»hiinliff hail ccasctl to lit" in tlicir employ. The Court of Queen's IJeneb for Lower Canada (ainieal side) alllriniuj; the judjinient of the Sujierior Court, disniissod the action. On motion hefore the Suiu-eme Court of Canada to allow a liond in appeal, \\hich liad lieen refiiseil liy a .lutl;:e of the court below, the lJc;;istrar of tlie Supreme Court and a .IiuIkc of that court, in Chainbi'rs. tin the ground that the case was not appeal- able. Held, that the matter in controversy did not relate to any otiice or fee of ollice within the meanin;; of sec. L*!> ('>l of the Supreme and Kxcheijuer Courts Act, It. S. C. <■. 135. 2. Even assumiiijr it did. no rijihts in future ■vv-juhl be bound, and the jimount in dispute beiii^' less than ."^U.ddO the case was not appciihible. 3. The words " where the rijrhts in future might be boimd " in sub-section ('>) of see. li!» govern all the preceding words "any fee of olHce, I'tc." Cliiiiiiioii. V. yormaiiil (K! Can. S. S. R. titHc ^ Ctirr. etc., dr St. ruriie (12 Can. S. C. It. 2.^)), referred to. Laririi're v. School Conniiixsioiifi for Thrrr Kirrrs xxiii., T2.3 21. — Amount in Controversy — Pecuniary Interest— R. S. C. c. 1.35, s. 2»— CoNTHAOT OF Sale — Contre lettre — Principal and Agent — Construction of ('ontract. The plaintiff, who had acted as agent fur tli(> late .1. Ii. S., brought .",n action for $1,471.07 for a balance of account as nFfjotwnim gcstor of J. B. S., against the de- fendants, executors of .T. B. S. The de- fendants, in addition to a general denial, pleaded compensation for .$3.41G and interest. The plaintiff replied that this sum was paid by a (latinii rn paicmcnt of certain im- movables. The defendants answered that the transaction was not a giving in payment but a giving of a security. The Court of Queen's Bench, reversing the judgment of the Superior Court, held that the defendants bad Tieen paid by the rintion rn pnirmrnt of the immovables, and that the defendants owed a balance of $1,154 to the plaintiff. llitil, that the pecuniary interest of the ile- fendantH, alTccled by the judgment appealed from, was more than i<2,("«t over and above the plainlid's claim and therefore the <-ase was appealjible under IJ. S. C. c, i:;."i, s. lilt. Hunt v. Tdiiliii xxiv., 30 22.— IJnniT of Appeal— I'kti timn ■[••> (jtash By-law under s. 4.;is;i It. S. (i.— \i. s. c. c. i:;.-.. .s. 24 t. I'ro rights within the meaning of sub- section (f>l of section 29, of the Supreme and Exclieiiuer Courts Act. llrld. also, that as the valuation roll sought to be set aside in this case had !)een duly homologiited and not appejiled against within the delay provided in Art. 1eal. Moir v. Corfinratvtn of the Village of Huntingaon (19 Can. S. C. R. 303). followed: yVrhxtrr v. Sherbrooke (24 Can. S. C. B. 52). distinguished. McKay v. Totcnnhip of ITlnehi'nbroo'ke, xxiv.. 55 24.— Amount in Dispute— 54 & 55 Vic, c. 25, s. 3. s.-s. 4. By virtue of s.-s. 4 of s. 3 of c. 25 of 54 & 55 v.. in determining the amount in dispute in cases in appeal to the Supreme Court of «4 APPEAL. Cnnniln, the proper ronrse in to look nt tlic ainoiiiit (lfiiinii(lf statfiiu-nt of cliiiiu, evfii thoii^'h tlic actiiiil atiioinit in contro- vcThy ill tiir Court iippeaii-il from wiis for less tliiiii $l.'.IMl(». 'I'll IS where the plaintiff olittiiiii'il II jiKlKiiieiit ill the Court of oriKinal jiirisdietion for less than $-,lNi(i, niiil iliil not take a cross appeal iipim the defeiidants appealing to »he intermeiliate Court of Appeal where such juilKiiient was reversed, he was entitled to appeal to this Court, /-rri V. I{is"trict of Ilierville. under art. ISS C. C I*., was regular. On an appeal to the Supreme Court of Canada; Held, that on a question of practice such as this the Court would not interfere. Mayor of Moiitrml v. Broun (2 App. Cas. 184) fol- lowed. .4rp-ifi V. Merchants liaitk of Cavada. xxiv., 142 27. — Evidence— Questions of Fact. Ilchl. per Stronp. C..T.. that although tiio case iniK'lit projierly have heeii left to the jury, the .iud;:nient of non-suit, haviiif: heen aftirmed by two courts, should not ho in- terfered with. llcadford v. McClary Mfg. Co. . . xxiv., 291 2S. — Practice — Reference — Report of Re- feree— Time FOR Moving Against — Notice of Appeal — Cons, Rules S4S. 84{>— Extension of Time— Confirmation OF Report by lapse op Time. In an action by Y. ajiainst a municipality for damages from injury to property by the neplijrent .'>2 of the HIkIi Court of .lustice." The referee re- ported that the drain was improperly con- structed, and that \ . was entitled to %^'**) damages. The municipality appealed to the 1 divisional Court from the report, and the court held that the apiieal was too late, uo notice having been ^iveii within the time re- quired by Cons. Rule N4S. and refused to ex- tend the time for appealing;. A motion for judgment on the reiwirt was also made by V. to the court on which it was claimed on be- half of the municipality that the whole i-ase should be Koiie into upon the I'vidcnce, which the court refused to do. Ilild, alllrmiiig the decisinn of the Court of Appeal, that the appeal not llaviIl^; beiMl brou>rlit within one month from the date of the rejiort, as required by Cons. Kule S4S, it was too late; that the report had to be tiled by the party appealiii;; before the ap- peal could be broii>,'ht, but the time could imt be enlarged by his delay in filing it; and that the refusal to extend the time was an ex- ercise of judicial discretion with which the Supreiue Court would not interfere. J'oiriialiiii of Culchmtir South v. Vultd, x\i\'.. 2!).— .Turisdiction— Future Rights— R. S. C. c. 135. s. 2J» (/))—.">() Vic. r. 2!t (D.). By R. S. C. e. 13,"», s. 2Jt il>\, amended by .'•> ^'. c. 2!> (/>), an apiieal will lie to the Supreme Court of Canada from the jud;;- iiients of the Courts of hi>:litest res;ht of a married wo- man to an annuity provided by her marriage contract in case she should be<'ome a widow is not .a rijrht in future which should author- ize an appeal in sin action by her husband against her for sriniratkni de corps in which if judgment went against her the right to the annuity would be forfeited. O'Dell V. Gregory xxiv., f.C.l 30.— Special Leave— Per saltum. On motion for leave to appeal direet from a decision of the Divisional Court (Ontario), it appeared that the action was brought to replevy from appellant the books which he AI'TEAL. >5 held nn clerk of tho rorporntion, he having been ilisinissed from the ottice. He refused to Kive up tlie liooks, on the ground that his disiniHsal wiis illegal. .FudKiueiit was given for the eorpdrntinn at the trial, and atllrnied by the Divisional Court, mid an application for special leave to appeal was refused by the Court of Apjieal for Ontario. The motion was tirst made to the Regis- trar of the Supreme Court, in Clianiliers, for leave to ap|)eal ;"'»• italtum and was dismissed. An appeal from this order to a Judge in (Munabers was dismissed, and a further ap- l>eal was taken to tho full Court. The court lield that appellant had failed to show suJlicient cause to justify the order asked for. Bartram y. The VUlage of I.oiulnii Wtfit. ]3th March. ISUS x.\iv., "05 31. — Jl'uisdiction' — Winding-itp Act — Amoi'.nt i.v Controversy — Agoregate LiAJUi^iTv— Joint or Separate I..IA- BILITY— Co.NTRIBUTORIES. A decision of the Court of ApiK'al from Ontario, reversed the order of the Master in Ordinary settling the resiwndents on the list of contrilmtories tinder the Winding-up Act. Appeiil lies to the Sui)renie Court of Canada, in proceedings under the Winding- up Act, only where the amount involved is $2,00(» or over. In this case there were six persons placed on the list b.v tlie Master; one for «1,(KKI. and the others for !?0(M> each, and all were released from liability b.v the decision of the Court of Appeal from which this api)cal was brought. The Supreme Court held that although the aggregate amount for which the respondents were songlit to be made liable exceeded .?2,000, then was no jurisdiction under the Act to entertain the appeal, because the position was the same as if proceedings had been taken separately against each of the contrilmtories. The appeal was quashed with costs. Strphcnx v. Orrth ct ah In re Thr Ontario Express and Transportation Co.. Kith May. 1895 xxiv., 716 32. — Jurisdiction — Award by Drainagbj Referee— 54 Yic, c. 51 (Ont.)— R. S. C, c. 1.35, s. 24— Costs. A judgment of the Court of Appeal for Ontario, atfirming the decision or award of a referee under the provisions of " The Drainnge Trials Act. 1801.*' rOnt.i. is not appealable to the Supreme Court of Canad.a under sub-section (f), of section 24, or any other provision of " The Supreme and Ex- cheriuer Courts Act." ((Jwynne, .F.. dissent- ed from the judgment of the majority of the Courtl. Me.mo. The question an to jurisdiction hav- ing been taken by the Court, the ai>peul was dismissed without costs). The Toirvship of Harwich y. The Toieniihip of lUilriuh, l.Sth May. lH!t5. .13.— Coi'RT OF Review — Jurisdiction — MANDA.MUS— ,'(4 & 55 Vic, c. 25. s. 3 (D.) Costs. li. applied for a mandamus to compel the Corporation of the City of Montreal to carry out the provisions of one of its by-laws. The writ of mandamus was granted by the Superior Court, but on ap|H'aI, this judg- ment was reversed by the Court of Review, and the jietition for mandamaus dismissed. H. then instituted an appeal from the latter judgment to the Supreme Court of (,'anada. On motion to ipiash the appeal: Held, that the case was not within the pro- visions of .54 tV 55 Vic. c. 2.5, s. 3. al- lowing appeals from the Court of Review in certain cases, and that as the appeal was not from the judgment of th(> Court of (iueen's Reiicli (appeal side), the court of highest resort in the province, there was no jurisdii'tion in the Sui)renie Court of Can- ada to entertain it. Panjott y. .]fariiuis. (.'? Can. S. C. R. 251). and ilenoimld v. .Uhott. (3 Can. S. C. R. 27S), followed. As the point upon which the appeal was quashed had not been taken in the factunv nor by the mot' >ii, the appeal was (|uasho' /w'.y/r. Moicat v. Ih'I.ixlf x.w., 1 30.— By-i.a\v— Petition to Quash — Appeal TO Court op (Queen's IIencii — 10 Vic, c. 29 ((iuE.) — :>:i Vic. c. 70 (Que.) — Judgment Quashing — Appeal to SupRE.ME Court — K. S. C. c 13r<, s. 24 (y). See. 4;5!) of the Town Corporations Act (40 Vic. c. 2!) (Que. I. not having been ex- eluded from the charter of the city of Ste. Cuncfionde ("to Vie. c. 70) is to l>e read as formin^r a part of it. and prohibits an ap- peal to the Cotirt of Queen's ISeiieh from a jud.mnent of the Superior Court on a peti- tion to (piasli a by-law presented under s. 310 of said V. e. 2.' CD.) does not authorize an appeal to the Supreme Court of Canada from a decision of the Court of Review in a case where the judgment of the Superior Court is reversed and there is an appeal to the Co'irt of Queen's IJencli. Daiijoii v. M(iniiiii< (;; Can. S. C. R. 2.">U and .McDniinld V. .llilinit (3 Can. S. C. R. 27S| followed. Jianiiigloii (t at v. The City of .Voutrrat, XXV., 202 31).— Inc-reasing Ka.mages without Cross- appeal— Rule (il, Supreme Court Rules — Special Statute. I'uder the Ontario Judicature .\et. R. S. O. I I1NS7J c. 44, ss. 47 and 4S. the Court of ' Api)eal has power to increase damages awarded to a respondent without a cross- appeal, and the Supreme Court has the like Iiower under its rule No. 01. Tasehereau, J., dissenting. I Per Strong, C. J.— Though the Court will not usually increase such damages without a ero.ss-appe.-il. yet where the original ]iro- ceedings were by arbitration under a statute providing that the Court, on appeal from tlu' award, shall iirtuiouiice such judgment as the arbitrators should have given, the statute is sullicient notice to an appellant of what the Court ma.v do. and a cross-appeal is not neeessiiry. , The Toicn of Toronto JunctUm v. Chiistir. ! XXV., ."i51 I 40. — Master and Servant — Negligence op Servant — Deviation from Employ- M ENT — Resi'mption— Contributory Neg- ligence — Infant— Evidence. If in a case tried without a jury, evidence has been inijiroperly adndtted, a Court of Appeal may reject it and maintain the ver- dict if the remaining evidence warrants it. ilcrritt \. ITcpenstal xxv., 150 41.— Final .Tudgment— Petition for leave to Intervene— Judgment on— Inter- locutory Proceedings. No appeal lies to the Supreme Court from the judgment of the Court of Queen's Bench on a petition for leave to intervene in a cause, the proceedings being interlocutory only. Ilamrl v. Hamel xxvi., 7 Additions after 42.— .Judge's Notes - Notice of Appeal. Per Tasehereau. J.— Where a Court had pronotineed judgment in a cause before it. and after proceedings in appeal had been instituted certain of the judges filed docn- ments with tie prothonotary purporting to l>e additions to their respective opinions in the case, such documents were improperly APPEAL. 17 allowed to form part of the case on appeal and could not be considered by the appellate court. MayJifw V. ^tone xxvi., 58 43.— Technical, Grounds— Surprise. An appfllate court will not j-'ive effect to mere tfrliiiic.-il irroumls of a|ii)eil. ;i;r;uiisi the merits, ami where there has been no sur- pri-se or disaclvantage to the appellant. GoniKin V. Dijon x.wi., 87 44.— Assessment of Damages— Questions OF Fact. The Supreme Court of Canada will not interfere with the amount of daniaf-'es as- sessed liy .1 jiidfrment appealed from if there is evidence to support it. The Montreal Oas Co. v. on the amount in dispute such ami)Uut shiill be understood to be that demanded and not that recovered if they are dilTeri'nt" aiiplies to appeals to the Privy Council. Interest cannot be ailded to the sum de- manded to raise it to the amount necessary to give a right of appeal. Stanton v. Home tnx. Co. (2 Legal News ">14t approved. DnfriHue et at. v. (Incrrrmunt . . xxvi., 21*> 47 — Order to Ami^nd Pleadings — Inter- FKiiiiiNCE with — Discretion op Court Below — Procedure. The Sui)reme Court will not interfere on appeal with an order made by a provincial court granting leave to amend t\w pleading.s, such orders being a matter of procedure within the discretion of the court below. W'illiamii v. Leonard A Suns . . xxvi., 40() 48. — Appeal — Jurisdiction — .Judicial Pro- ceeding — Dppositio.n' to .Tudo.me.nt — Arts 484-45)3 C. C. P.— R. S. C. c. 135, s. 29 — Appealadle A.Mc^fNT-51 & 55 Vic, c. 25, s. 3. s.-s. 4 — Retrospective Legislation. An oi)position liled uui'er the provisions of articles 4M4 and 4S7 of the Code of Civil Procedure of Lower Canada for the purpose of vacating a judgment entered by default, is a "judicial proceeding" within the mean- ing of sec. 2!t of " The Supreme and Ex- chequer Courts Act," and wher(> the appeal depends upon the amount in controversy, there is an appeal to the Supreme Court of Canada if the amount of i)rincipal and inter- est due at the time of the tiling of the op- liosition tinder the judgment sought to be annulled is of the sum or value of .$2,000. Turcotte v. Danncreau xxvi., 578 49. — Ti.ME Li.MiT — Commencement of — Pronouncing or Entry of Judgmp:nt — Security — E.xtension of Time — Order of .Tudge — Vacatio.v — R. S. C. c. 135, ss. 40, 42, 40. On the trial of an stction the plaintiffs ob- tained a verdict which the Divisional Court set aside, the Cotirt of Appeal .-illowed an appeal, ftnd restored the judgment at the trial, redifing the amount of damages by a certain specitied sum. Held, that nothing substantial remained to l>e settled l)y the minutes on entering th" form.'il judgment of the Court of Ai)pe!il, and the time for appealing therefrom to the Supreme Court ran from the pronouncing .•ind iKit from the entry of such judgment. O'SulIiran v. TTartii (13 Can. S. C. R. 4.'^1V. Walmstey v. arifflth (13 Can. S. C. R. 434; Martlev v. Carson (13 Can. S. C. R. 439) fol- lowed. i8 APPEAL. By sec. 42 of the Supreme ami Exchequer Courts Aft iK. S. C. c. 1351, a court pro- posed to be appealed from, or a juilRe thereof may allow an appeal after the time pre- scribed therefor by sec. 40 has expired, but an order by the court below or a judge thereof, extending the time, will not author- ize the Supreme Court or a judge thereof to accept security after the GO days have elapsed. The sixty days for appealing to the Su- preme Court prescribed by sec. 40 of the Act, is not suspended during the vacation of tliat court established by its rules. The yews Printing Co. v. Maoac et al, xxvi., 695 50. — Time Limit — Commencement op — rriONou.NciNo OR Entry of Judg.ment — Security — I']xtension of Time — R. S. C. c. 135. ss. 40, 42, 40. On the trial of an action to set aside a chattel mortgage, the plaintiff obtained a declaration that the mortgage was void, and an older setting it aside without costs. The decision was reversed on appeal, and the action dismissed with costs, both in the Court of Api)eal and in the court be- low, by a judgment pronounced on the sevenlh of November, 1805. The minutes had not been settled until some days f.fter- wards, and at the time of the settlement the draft minutes were altered by the Registrar of the Court of Appeal by refusing costs to one of the respondents, and also by changing !i direction therein as to the payment over of funds on deposit abiding the decision of the suit. On an application made more than sixt.v days from the pronouncing of the judg- ment, for the approval of security under section 40 of the Supreme and Exchequer Courts Acts: UcUl, that nothing substantial remainetl to be settled by the minutes so as to take the case out of the general rule that the time for appealing runs from the pronouncing of the judgment, and that the application was too late. Martin v. Sampson xxvi., 707 51. — .TrRISIJICTION — ExPROPRI.\TION OF liANPs — Assessments—Local Improve- ments — Future Rights — Title to Lands and Tenements — R. S. C c. 135, s. 20 (h); 50 Vic, c. 2£. s. 1 (D.). A by-law was passed for the widening of a portion of a street up to a certain homo- logated line, and for the necessary expro- priation therefor. Assessments for the ex- propriations for certain years having been made wlierehy proprietors of a part of the street were relieved from contributing any proportion of the cost, thereby increusing the burden of assessment on the properties actually assessed, the owners of these pro- perties brought an action to set aside tlie assessments. The Court of Queen's Bench allirmed a judgment dismissing the action. On an api)licatioii for leave to appeal: Jlihl, that as the effect of the judgment sought to be appealed from would be to in- crease the burden of assessment not only for the expropriations then made, but also for exiiropriations which would have to be made in the future, the judgment was one from which an appeal would lie, the matter in controversy coming within the meaning of the words " and other matters or things- where the rights in future might be bound," contained in sub-sec. {h) of sec. 29, Supremo and Exchequci- Courts Act, as amended by 50 Vic. c. 29, s. 1. Stevenson v. The City of Montnal, xxvii., 1ST ! 52. — Interlocutory Order — Trial by Jury — Final Judgment. A judgment of the Court of Queen's Bench for Lower Canada, allirmed a judgment of the Superior Court, by which tl»e defen- dant's ai)plication to have the issues tiied by a jury undt'r the provisions of Arts. 34.S- 350 C. C. P., was refused. The defendant took an appeal to the Supreme Court of Canada, whereupon the plaintiff moved to quash; j Held, that the decision complained of was ! an interlocutory judgment only, and that no I appeal could lie under the provisions of " The ; Supreme and Excheiiuer Courts Act." and i amendments thereto. (The appeal was quashed with costs). Drmcrs v. The Bank of Montreal. 2 Vic, c. 29, s. 1 (D.). The parties executed a deed for the pur- pose of s-i ttling the boundary between cou- tiguc'is lands, of which they were respec- tively proprietors, and thereby nam>d a pro- vinc'a- surveyor as their referee to run the lino. The line thus run being disputed, M. brought an action to have this line declared the true boiindary. anil to revendicate a dis- 'ted stri') of land lying upon his side of the li le so rr.n by the sur\eyor. n.-h1. that under R. S. C. c. 135. s. 29, s.-s. "'), as amended by 50 V. c. 29. s. 1 (D.), an appeal would lie to the Supreme Court of Canada, first, on the ground that the ques- tion involved was one relating to a title to APPEAL 19 lands, and secondly, on the ground that it involved matters or tilings where rights in future might be hound. VhamhvrUind v. f'>r- thr (23 Can. S. C. li., 371) referred to and ai^iroved. McGocy V. T.caiiuy xxvii., 103 54. — Appeal — Election Petition' — Pre- LiMiNAHV Objection— Delay in Filing — Objections Struck gut — Order in Chambers— K. S. C. c. 8, s. 50. Tlie Suprome Court refused to entertain an ai)i)eal from the decision of a Judge in Chambers granting a motion to have pre- liminary objections to an election [)etition struct out for not being tiled in time. Such decision was not one on preliminary objec- tions within s. 50 of the Controverted Elec- tions Act, and if it were no judgment on the motion could put an end to the peti- tion. AVfst A'isiiiiboia Election Case . . xxvii., 215 55.— Appeal — Preliminary Objections — R. S. C. c. 9, ss. 12 AND 50— Order Dis- missing Petition — Affidavit of Peti- tioner. The ajipeal given to the Supreme Court of Canada by The Controverted Elections Act (IJ. S. C. c. 0, s. 50), from a decision on preliminary objections to an election peti- tion can only be taken in respect to objec- tions filed imder sec. 12 of the Act. No ap- liciil lies from a judgment granting a motion to dismiss a petition on the ground that the affidavit of the i>ctitioner was untrue. Murqucltc Election Case . . . . xxvii., 219 50.— Questions of Practice— DirrY of Appellate Court. The Siipreme Court of Canada will take into consideration (inestions of practice when they involve substantial rights, or the deci- sion appealed from m.-iy cause grave injus- tice. Part of lands seized by the sheriff had been withdrawn before sale, but on pro- • eediugs for folic ctichi'ir it was ordered that Ihe iiroperty described in the procvx vcr'oal of seizure should be resold, no reference lieing made to the part withdrawn. On ap- peal, the Court of Queen's Bench reversed the order on the ground that it directed a resale of property whicli had not been sold, and further, because an apparently regular sheriffs deed of the lauds actually sohl had been duly registered, and had not been an- imllcd )iy the onlcr for resale, or prior to the proceedings for fnilc cmhirc. TIrhl, that the C(Uirt of Queen's Bench should not have set aside the order, but should have reformed it by rectifying the error. Lamhe v. Armstrong xxvii., 30i) 57.— Court of Review— Appeal to Privz Council — Appealable Amount — 54 & 55 Vic, c. 25, s. 3. ss. 3 and 4 (D.) — C. S. L. C. c. 77, s. 25— Arts. 1115, 1178 C. C. P.— R. S. (i. Art. 2311. In appeals to the Supreme Court of Can- ada from the Court of Review (which, by 54 & 55 Vict. c. 25, s. 3, s.-s.3. must be appealable to the Judicial Committee of the I'rivy Council), the amount by which the right of ai)peal is to be determined is that demanded, and not that recovered, if they are different. Diifrcsne v. Unhrcmont (2tj Can. S. C. R. I'HJ) followed. Citizens Light and i'oicer Co. v. Parmt, xxvii., 310 58. — Jurisdiction — Appealable Amount- Future Rights — "Other Matters and ; Things"— R. S. C. c. 135, s. 29 (M— 50 I Vic, c 29 (D.i. The classes of matters which are made ai)- pealable tc^ the Supreme Court of Canada und<'r the provisions of section 29. sub-sec. (')) I of "The Supreme and' Exchequer Courts : Act," as amended by 5(J Vict. cap. 29, do not include future rights, and do not affect rights to or in real property, or rights analo- gous to interests in real property. Rodier v. i Lapicrrc (21 Can. S. C. R. 09), and O'Dcll V. Cngon) (24 Can. S. C. R. GOl) followed. t Raj)hpointecl by pro- vincial or municipal authority, and the ap- j peal was not authorized by the said Act. { Held, per Gwynne, J., that as no binding effect is given to the decision of the County Court Judges, under the Ontario Acts cited, the court appealed fntni was not a " court of last resort " within the meaning of 52 Vic. c. 37, s. 2. Quaere. — Is the decision of the County Court .Judges a " final judgment " within the meaning of .52 Vic. c. 37. s. 2? The City of Toronto v. The Toronto Rail- icay Co xxvii., 040 (55. — .Jurisdiction — Final Judgment — Dis- cretionary Order — Default to Plead — R. S. C. c 135. ss. 24 (a). 27 — R. S. O. c 44, s. 4(! — Ontario Judica- ture Act, Rule 790. After judgment has been entered by de- fault in an action in the High Court of .Jus- tice it is in the discretion of a Master in Chambers to grant or refuse an application by the defendant to have the proceedings re- opened to allow him to defend, and an appeal to the Supreme Court from the decision of the court of last resort on such an applica- tion is prohibited by sec. 27 of " The Su- preme and Exchequer Courts Acts.' OuoTP.- Is the judgment on such applica- tion a " final judgment " within the meaning of sec. 24 (a) of the Act? O'Donohuc v. Bourne xxvii., 654 66.— Habeas Corpus— Change in Position OF Parties Pending Appeal. T'pon the calling for hearing of the appeal (which was from a judgment of the Supreme Court of British Columbia, refusing a writ of Habeas Corpus, for the possession of Quai APPEAL. Sing, a Chiiu'so female uuilt-r agol, connsi'l for the respondent produceil to the Court an order of the Supreme Court ol' British Columbia, dated subsetjuently to the judg- ment appealed from, hy -.vhieh it appeared that the resiwudent. the matron of a rescue home, had been appointed by that court as guiirdiin to the infant in question, where- upon the Chief .Justice intimated that, under the circumstances, it was useless to proceed with the hearing of the appeal, it being im- possible that any order could be made there- on respecting the jMissession of the infant being given to the appellant. The appeal was crnscquently dismissed with costs. .Sfit/ Sino Kaic v. Boices, 17th May, 1898. 07. — Appeal — Dismissal for want of Appearaxce — Application to Rein- state—Notice — Practice — Costs. The appeal had been regularly inscribed on the roll for hearing at the May sittings of the Supreme Court of Canada, and on 18th May, 1808, the case being called in the order in which it appeared upon the roll, no person appeared on behalf of the appel- lant. Counsel appeared for the respondent and asked that the appeal should be dismis- sed for want of prosecution. The Court re- ferred to the fact that the ease had l)een called in its proper place on the roll on the previous day and all wed to stand over be- cause counsel were not present on the part of the appellant, and the appeal was dis- missed with costs. On 20th May. 1898, application by motion was made on behalf of the appellant to have the appeal reinstated and restored to its place on the roll for hearing on such terms as the Court might deem appropriate, the ground stated for requesting such indul- gence being that counsel for the appellant were under a misapprehension as to the time when the hearing was to take place. The motion was opposed by counsel for the re- spondent, who objected that proper notice of the motion had not been given as required by the rules of practice. The Court refused to hear the motion or to make an order staying the issue of the cer- tificate of the judgment already rendered dismissing the appeal, but, under the cir- cumstances, the motion was dismissed with- out costs. The Han ilines [Limited), \. Moore, 20th May, 1898. 08.— .Turisdiction— Title to Land — Peti- tory Action — Encroachment — Con- structions UNDER Mistake of Title — Good Faith— Common Error— Demoli- tion OF Works — Right of Accession — Indemnity— Ues judicata — Arts. 412, 413, 429 et scq., 1047, 1241 C. C. An action to revendicate a strip of laud upon which an eucroachm»>nt was admitted to have taken place, by the erection of a building extending beyond the boundary line, and for the demolition and removal of the walls, and the eviction of the defendant, involves questions relating to a title to land. independently of the controversy as to bare ownership, and is appealable to the Supreme Court of Canada under the provisions of the .Supreme and Exchequer Courts Act. Delorme v. Cusson xxviii., GO 69. — Questions op Fact — Reversal in Court of Appeal. The Supreme Court of Canada will take questions of fact into consideration on ap- peal, and if it clearly appears that there has been an error in the admission or apprecia- tion of evidence by the courts below, their decisions may be reversed or varied. The North British and Mercantile Insurance Com- pany v. TourviUe (25 Can. S. C. R. 177l fol- lowed. Lefeunteum v. Beaudoin . . . . xxviii., 89 70. — Action — .Turisdiction — Appeal \ble Amount — Monthly Allowance — Fu- ture Rights—" Other Matters and Things"— R. S. C. c. 135. s. 20 (ft)— 56 Vic. c. 29 (D.) — Established Juris- prudence IN Court Appealed from. In an action en declaration dc pnternitr the plaintiff claimed an allowance of $15 per month until the child (then a minor aged four years and nine months), should attain the age of ten years, and for an allowance of .?20 per month thereafter " until such time as the child should be able to support and provide for himself." The court bi>low. fol- lowing the decision in TAzntte v. Desehenfau (0 Legal News. 107), held that under ordin- ary circumstances such an allowance would cease at the age of fourteen years. Held, that the demnnde must be understood to be for allowances only up to the time the child should attain the age of fonrteen years and no further, so that, apart from the con- tingent character of the clnim the drmande was for less than the sum or value of two thousand dollars, and consequently the case was not appealable under the provisions of the twenty-ninth section of " The Supremo and Exche(iuer Courts Act." even if an amount or value of more than two thousand dollars might become involved under certain contingencies as a consequence of the judg- ment of the court below. Bodier v. Lapi^erre (21 Can. S. C R. 09). followed. 22 APPEAL. JIcUl also, thiit the nature of the action mid drmaiidc did not bring the ease -withhi the exception as to " future rijihts " men- tioned in the section of tlie act above re- ferred to. O'lJvll V. Omjory (24 Can. S. C. R. (!<;i); Riiphiitl V. Maclareti (27 Can. S. C. K. y]l»» followed. Macdouuld v. Oalivan . . . . xxviil., 258 71.— .TuRLSDicTiox — Amount i.m Contro- VKitsY — Affidavits— Conflicting as to A.MoiJNT— The Exchpjquer Court Acts "lO & 51 Vic, c. 16, ss. ."il-riS (D.)— 54 & 55 Vic, c. 2(5, s. 8 (D.)— The Patent Act— II. S. C. c 01, s. 30. On a motion to fiuash an appeal where the respondents filed atlidavits statinj; that the amount in controversy was less than the amount fixed by the statute as necessary to give jurisdiction to the Appellate Court, and atlidavits were also tiled by the appel- lants, showing that the amount in contro- versy was sutticient to give jurisdiction un- der the statute, the motion to quash was disinisseil, but the apiH'llants were ordered to pay the costs, as the jurisdiction of the court t, ss. 2; .54 & 55 Vic, c. 25, s. 3— 50 Vic, c 21>, s. 2. Actions or proceedings respecting disputes as to mere personal alinr.'utary pensions or allo^\ilnces do not constitute controversies wherein rights in future may be liound with- ii; the meaning of the second sub-section of t.ie twenty-ninth section of ''The Supreme and Exchequer Courts Act," as amended, which allows appeals to The Supreme Court of Canada I'rom judgments rendered in the I'rovinco of Quebec in cases where the con- troversy relates to '" annual rents or other matters or things where rights in futures might be bound." iMncfnrlanc v. Lcclaiir, 1.") Moo. P. C. 181, distinguished: f^aiiragcau V. Gaiithicr, L. R. 5 P. C. 494, followed). La lianquc. dit People v. Trottier, xxviii., 422 75 —Assuming Jurisdiction— Amount in Controversy— GO «& 01 Vic, c 34, s. 1 s.-s. (c). Where the jurisdiction of the Supreme Court of Canada to entertain an appeal is doubtful, the Court may assume jurisdiction when it has been decided that the appeal on the merits must be dismissed. Great West- ern Railuay Company of Canada v. Braid (1 Moo. P. C. X. S. 101), followed By 60 & 61 Vic. c. 34, s. 1, s.-s. (c), no appeal lies from judgments of the Court of Appeal for Ontario unless the amount in con- troversy in the appeal exceeds $1,000, and by sub-sec. if), in case of difference, it is the amount demanded, and not that recovered which determines the amount in contro- versy. Hfld. per Taschereau. .7.. that to recon- cile these two sub-sections, paragraph if) should i)rohably be read as if it meant the amount demanded upon the appeal. To read it as meaning the amount demanded in the action, which is the construction the Court has put upon R. S. C. c. l.']5, s. 29. re- lating to ai)peals from the Province of Que- bec, would seem to be contrary to the in- tention of i)arliament. Laherge v. The Equit- able Life Axsnrance Society (24 Can. S. C. R. .59) distinguished. Bain v. Anderson - peal so taken by him. In the case in question the costs were ordered to be costs in the cause. Eddy V. Eddy, 4th October, 1898. 80.— Jurisdiction— Judgment in Court of Review— .Judgment in First Instance Varied— Art. 43 C. P. Q — 54 & 55 Vic, c. 25. s. 3, ss. 3— Construction of Statute. Where the Superior Court, sitting in Re- view, has varied a judgment, on appeal from the Superior Court, by increasing the amount of damages, the judgment rendered in the court of first instance is not thereby confimied, and consequently there cannot be an appeal direct from the judgment of the Court of Review to the Supreme Court of Canada under the provisions of the third sub-section of section three, chap. 25 of the statutes of 54 & 55 Vic. (D.), amending the Supreme and Exchequer Courts Act. Simpson et al v. PaUisei; 10th October, 1898, xxix. I 81.— Jurisdiction — Criminal Law —-The Criminal Code, 1892, secs. 742-750— New Trial— Statute, Construction of —55 & 56 Vic, c 29, s. 742. An appeal to the Supreme Court of Canada does not lie in cases where a new trial has been granted by the Court of Appeal, under the provisions of the Criminal Code, 1892, sections 742 to 750 inclusively. ^4 APPROPRIATION OF PAYMENT. The word " opinion " as used in the se- f 86.— Questions of Fact— Unsatisfactory coud sub-section of section seven hundred and forty-tw.o of "'The Oriniinal Code, 18'J2," must be construed as meaning a " decision " or " judgment " of the Court of Appeal in criminal cases. Mau V. The Qunii, 13th October, 1SD8, xxix. 82. — Right to Appeal in Ontario Cases — fXt & 01 Vic, c. 34— Application to Pending Cases. The Act m & 01 Vic. c. 34, which re- stricts the right of appeal to the Supreme Court in cases from Ontario, as therein specified, does not apply to a case in which the action was ponding when thi' Act came into force, although the judgment directly appealed from may not have been pronounced until afterwards. Byde v. Lindsay, 2nd November, 1898, xxix. 84. — Question of Local. Practice— Inscrip- tion FOR Proof and Hearing— Per- emptory List — Notice — Kequete Civile. Whore a grave injustice has been inflicted upon a party to a suit, the Supreme Court of Canada will interfere for the purpose of granting relief, although the question in- volved upon the appeal may be one of mere local practice only. Lambc v. Armslrong (27 Can. S. C. K. 390), followed. Under a local practice prevailing in the Superior Court in the District of Montreal, the plaintiff obtained an order from a judge filing a day peremptorily for the adduction of evidence, and hearing on the merits of a case by precedence over other oases pre- viously inscribed on the roll, and without notice to the defendant. The defendant did not appeal, and judgment by default was entered in favour of the plaintiff. HfUt, , reversing the judgments of both courts below, ujion the defendant's requite cirile. that the order was improperly made for want of notice to the adverse party, as required by the rules of practice of the Superior Court. Tlie KdHtrnt Toirnxhips Bank v. Sican et ah 21st November. 189S xxix. 84.-.-ELECTION Petition — Dissolution of Parliament — Abatement of Proceed- ings — Return of Deposits — Payment out of Court Bhlow — Practice. See Election Law. 1. 85. — Finding of .Tury — Interference ■with — Question cf Fact. See Master and Servant, 1. Findings of Jury — Interference with — Second Appellate Court. Sec Negligence, 0. 87. — Award — Questions of Fact. See Arbitration, 1. 88. — Dismissal for Non-appearance at Hearing — Application to Restore. -Sec Practice, 28. 89. — Disqualification of Judge— Quorum IN SUCH Case — Uesignation of Judge^ Re-hearing of Appeal. See Quorum. 90. — Question of Fact — Warranty — De- fect IN Construction — Satisfaction BY Acceptance and User — Variation from Design — Demurrage — Evidence — Onus of Proof — Expert Testimony — Concurrent Findings. See Evidence, 15. 91.— Questions of Fact— Evidence— Bur- den of Proof — Railway Company — Negligence — Damages by Fire — Sparks from Engine or " HoT-isox '' — C. C. Art. 10.-)3. See Evidence, 18. 92. — Matters of Fact— Evidence. See Contract, 34. 93. — Acquiescence by Judgment— Costs. Sec Heirs, 1. Appellant in 94. — Evidence— Improper Principle op Appreciation — Duty of Appellate Court — Findings of Fact — Estimating Damages. See Arbitration, 6. 95. — Negligence— Master and Servant — Employer's Liability — Concurrent Findings of Fact — Contributory Negligence — Duty of Appellate Court. See Negligence. 34. APPROPRIATION OF PAYMENTS. 1. — Debtor and Creditor — Payment by Df1> lOR — .\PPROPRIATION — PREFERENCE -R. S. O. (1887) c. 124. A trader carrying on business in two es- tablishments mortgaged both stocks in trade ARBITRATION. as to B. as security for indorsements on a com- position with his creditors, and for advances in cash and j;oods to a lixod amount. Tlic composition notes were made and indorsed by IV, wlio made advances to an amount consideral)ly over tliat stated in tlie mort- gajre. A few niontlis after tlie mortgagor was in default for tlie advances and a por- tion of overdue notes, and there were some notes not matured, and B. consented to the sale of one of the mortRaged stocks, tak- iuK the purchaser's notes in payment, apply- ing the amount penerally in payment of his overdue debt, part of -which was unse- cured. A few days after B. seized the other stock of goods covered by his mortgage, and about the same time the sheriff seized them under execution, and shortly after the mort- gagor assigned for benefit of creditors. An interpleader issue between B. and the exe- cution creditor resulted in favour of B.. who received, out of the proceeds of the sale of tl'.e goods under an order of the court, the balance remaining due on his mortgage. HoiDfnll V. Boisxcaii (21 Ont. App. R. 603). Tlie assignee of the mortgagor then brought an action against B. to recover the amount rei)resenting the unsecured part of his debt, which was paid by the purchase of the first stock, which payment was alleged to be a preference to B. over the other creditors. Held, affirming the decision of the Court of Appeal, that there was no preference to B. within R. S. O. (1887) c. 124. s. 2: that his position was the same as if his whole debt secured and unsecured had been overdue, and there had been one sale of both stocks of goods, realizing an amount equal to such debt, in which case ho could have appropriated a portion of the proceeds to payment of his secured debt, and would have h.id the benefit of the law of set-off as to the unsecured debt, under sec. 23 of the Act: and that the only remedy of the mort- gagor or his assignee was by redemption before the sale, which would have deprived B. of the benefit of such set-off. l?tcphtn/i V. Boisseau xxvi.. 437 2. — Suretyship — Continuing Security — Imputation op Payments— Reference TO TAKE Account. See Principal and Surety, 1. 3. — Proportionate Ratio — Suretyship — Assignment by Vendee— Giving Time —Arrears op Interest — Release of Lands. 'S'fc Principal and Surety, 3. 4. — Debtor and Credptor — Security for Debt — Security Realized by Credi- tor — Appropriation op Proceeds— Res Judicata. See Debtor and Creditor, 10. ARBITRATION. 1.— Award — Appeal— Questions op Fact —Second Award— Arbitrator Func- tus Officio. S. and P. were engaged in business to- gether, under a written agreement, in the packing and selling of fruit, and a dispute having arisen as ti> the state of accounts l)etween them, a third person was chosen to enable them -o effect a setth-ment. S. claimed that the person so chosen was only to go over the accounts and make a state- ment, which P. contended that the whole matter was left to him as an arbitrator. This person, having gone over the accounts, made out a statement shewing .$23.5 to be due to S.. and some time afterwards he presented a second statement shewing the amount due to be .$280. S. was given a cheque for the latter amount, which, he asserted, was taken only on account, and he afterwards brought an action for the winding-up of the partnership affairs. Held, affirming the decision of the Court of Appeal for Ontario, that whether or not there was a submission to arbitration was a question of fact as to which the Supreme Court of Canada would not, on appeal, in- terfere with the finding of th^- trial judge that all matters were submitted, affirmed as it was. by a Divisional Court and the Court of .\ppeal. Hehl. further, that there was a valid award for .$23.'): that having made his award for that amount, the arbitrator was functun offi- cio, and that the second award was a nullity; and that the Divisional Court was wrong in holding that, as P. relied only upon the second award, the judgment should be against him on the case as claimed by S. l^netsinger v. Peterson, 23rd May, 1894. 2.— Expropriation— 35 Vic, c. 32, s. 7 (Que.) — Interference with Awa^d of Arbitrators. In a matter of expropriation the decision of a majority of arbitrators, men of more than ordinary business experience, upon a question merely of value should not be in- terfered with on anpeal. Lemoine v. Cit\t of Montreal. Allan V. City of Montreal . . . . xxiii., 390 3. — Agreement Respecting Lands — BOITNDARIES — RefEREE's DECISION — Bornagk— .Vrts. 041-94.") and 134J. et seq. C. C- P. The owners of contiguous farms executed a deed for the purpose of settling a bound- ary line between their lands, thereby nam- ing a third person to ascertain and fix the 26 ARBITRATION. true division lino upon the Rroiind, nnd ngreo- in>,' further to abiiio by his decision, and iiccejit the line whicli he niijrht estal)lish as correct. On the eoncl\ision of tlie referee's oiierations one of tiie parties refused to ae- ceiit f>r act upon his decision, ami action was hroncht liy the other party to have the line so estahlishcd declared to he the true honndary, and to revendicate the strip of land lyiuK upon his siile of it. //(■((/, reversinR the jndnment of the Court of Qneeii's Ben<'h. that the agreement thus entered into was a contract binding upon the jiarties ti> he executed between them ac- cording to the terms therein exi)rt'ssed. and was /not suliject to the formalities pre- scribed by the (/ode of Civil Procedure re- lating to arbitrations. McOocy V. Leamy x.wii.. o-io 4. — Municipal Corporation — Construction OF Stati'tk — 7t~> A'ic. c. 42, ss. liUl, 4U-i, 4(i7, 473 (Ont.) — City Separated from County — .Mai.vtenance of Court House and (i.\OL — Care and Main- tenance of 1'risoners. No compensation can be awarded by arbi- trators to a County Council in respect of the use, by a city separated from that county, of the court house and gaol unless the (pies- tion is specifically referred to them by a by-law of each municipality. A claim for compensation for the care and maintenance of prisoners stands, as far as the meaning to be given to the word :" city " is concerned, upon the same basis ns a claim for tlie use of the court house and gaol. ■Indgnicnt of the Court of Appeal for On- tario (24 Ont. Apn. R. 40n>, alflrmed. County of Carleton v. City of Ottairn, 18th March, 189S xxviii., GOG J». — Railways — Prohibition — Expropria- tion — Death of Arbitrator Pending Award— 51 Yic, c. 20, ss. 15G. 157 — Lapse of Time for Making Award — Statute, Construction of — Art. 12 C. C. In relation to the expropriation of lands for railway purposes, sections 15G and 157 of " The Railway Act." (51 Vic. c. 21). (D.). provide as follows: — " 15G. A majority of the arbitrators at the first meeting after their appointment or the sole arbitrator, shall fix a day on or before which the award shall bo made; and. if the same is not made on or before such day. or some other day to which the time for making it has heen pro- longed, either hy consent of the parties or by resolution of the arbitrators, then the sum offered hy the company as aforesaid, shall he the compensation to be paid by the com- pointed l>y the juilge, or any arbitrator api)ointed l>y the two rrhitrators dies before the award has been made, or is disiiualitied, or refnsi's or fails to act within a reasonable time, then, in the case of the sole arbitrator, the judge, uiwn the apiilicatiou of either I party, and upon being satisfied by atlida- ' vit or otherwise of sU"h death, dis(pi:ilifica- tion, refusal or failure, may api)oint another i arbitrator in tlie place of such sole arbitra- I tor; and iu the case of any arbitrator ap- j iiointed by one of parties, the company and ' party respectively may each appoint and arbitrator in the place of its or his arbitra- tor so deceased, or not acting: and in the case of the third arbitrator appointed by the t\M> arliitrators, the provisions of section one hundred and fifty-one shall apply: but no recommencement or rei)etitlon of the pre- vious proceedings shall be reipiired in any case. (Section 151 provides for the appoint- ment of a third arbitrator either by the two arbitrators or by a judge). IJrUt. that the provisions of the l."i7th sec- tion apiily to a case where the arbitrator appointed by the proprietor died before the award bad been made, and four days prior to the date fixed for making the same: that in stich a case the proprietor was entitled to be allowed a reasonable time for the ap- pointment of another arbitrator to fill the vacancy thus caused, and to have the arbi- tration proceedings continued although the time so fixed had expired without any awnrd having been made, or the time for the making thereof having been prolonged. ffhauimii V. The Montreal Park and Island Railway Company xxviii., 374 6. — Railway's — Eminent Domain — Expro- priation OF Lands — Evidence — Find- ings of Fact — Duty of Appellate Court— 51 Vie. c. 29 (D.). On an arbitration in a matter of the ex- propriation of land under the provisions of " The Railway Act," the majority of the arbitrators appeared to have made their computation of the amount of the indemnity awarded to the owner of the land by taking an average of the different estimates made on behalf of both parties according to the j evidence before them. I Jlcld, reversing the decision of the Court I of Queen's Bench, and restoring the judg- ment of the Superior Court (Taschereau and Girouard. .T.T., dissenting), that the award was properly set aside on the appeal to the Superior Court, as the arbitrators appeared to have proceeded upon a wronsr princii)le in the estimation of the indemnity thereby awarded. Grand Tntnli RaiUcay Co. of Canada v. Coii- pal xxviii., 531 ARBITRATORS, DOM INIOxN -ASSESSMENT. 7 —AWARD — Lessor and Lessee — Cove- nant IN Lkase— Brkach— 1'ayment of Compensation — Condition rRECEDENT TO Action. •See Lessor and Lessee, 1. 8. — Street Railway Co. — Agreement WITH MfNiciPALiTY— Repair of Road- way— Termination OF Franchise. five Cdiitrnt't, 0. li.— Railway Expropriation— Award on- Additional Lntrrest — Confirmation OF Title— Railway Act, 1ISS,S. hh. 162, 170. 172. Sec Expropriation, 1. ](»._CoNTRACT— Agreement for Arbitra- tion IN — Suspension ob' Right of Action. Sec Contract, 7. 11.— Appeal from Award — Increase of Damages— Cross-appeal. Scr Appoill, oJ). 12.— Contract, Construction op— Incon- sistent Conditions — Dis.missal of Contractor — Architect's Powers — Arbitrator — Disqualification — Pro- bable Bias — Rejection of Evidence — .Tudge's Discretion as to Order of Evidence. Sec Contract, 24. ARBITRATORS. DOMINION. See Constitutional Law. ARCHITECT. 1.— Contract. Construction of — Incon- sistent Conditions — Dismissal of Con- tractor — Architect's Powers — Arbi- trator — Disqualification — Probablv; Bias — Rejection of Evidence— Judge's Discretion as to Order of Evidence. Sec Contract, 24. 2. — Contract — Public Work — Progress Estimates — Engineer's Certificate — Revision by Succeeding Engineer — Action for Payment on Monthly Certificate. Sec Contract, 29. ASSESSMENT. 1.— Ontario Assessment Act. R. S. O. nS87) c. 193, ss. 1.5. 05— Illegal Assessment —Court of Revision— Business Carried on in two Municipalities. Seotion 65 of the Ontario Assessment Act (R. S. O. [1887] c. 193) does not enable the Court of Itevision to make valid an as- sessment wliicli the statute does not n\ithur- ize. Se(th)ii l."> of the Act [irovides that " where any luisincss is carrii'd on l>y a person in a nuinicipnlily in wliicii he docs nut re- side, or in two or more niuniiii>alities. the licrsoiial proiicrty licloii}.'iii>; to siicli person siiall tie asscssd in the inuiiiciiiality in which siicii iHTsonal property is situated.'" W., residing and doiny Imsiiiess in Brantford, had certain meriliandise in London, stored in a pnhlic warehouse, used hy other persons iis well as W. He kept no (derk or a^ent in char^'e of such merchandise, hut when sales were made a delivery order was niven upon which the warehouse keeper acted. Once a week .-i commercial traveller for W., r^sidinK in London, att^'uded there to take orders for Koods, inelndiuK the kind so stored, hut the sales of sto«k in the ware- house were not contined to transactions en- tered into at London. Jleld. iillirnMiiiu' the de<-ision of th.> C:>urt of Appeal, tliat W. did not carry on husiness in London within the meanins of the said section, an' his merdiandise in the ware- house was not liahle to be assessed at Lon- don. The City of LGndon v. 1Va» . . xxii., 300 2. — Assessment and Taxes- Tax on Rail- way — XovA Scotia Railway Act — Exemption— Mining Co.— Constri'ction OF Railway by- R. S. N. S. (5 Ser.) c. 53. By R. S. X. S. (5 Ser.) c. 53, s. 9, s.-s. 30, the roadbed, etc.. of all railway companies in the province is exempt from local tax- ation. By s. 1 the first part of the Act from s. 5 to 33 inclusive, applies to every rail- way constructed and in operation, or there- after to be constructed under the authority of any Act of the I.,egisl.ature. and by s. 4. part 2 applies to all railways constructed or to he constructed under the authority of any special Act. and to all companies incor- porated for their construction and working. By s. .5. s.-s. 1.5, the expression " the com- pany" in the Act means the company or party authorized by the special Act to con- struct the railway. JTeM. reversing the decision of the Supreme Court of Nova Scotia. Gwynne, .L. dissent- in?, that i^art one of this Act applies to all railways constructed niuler provincial sfirt- ntes and is not exclusive of those mentioned in part two: that a company incorporated by an Act of the Legislature as a mining company, with power " to construct and make such railroacTs and branch tracks as might be necessary for the transportation 88 ASSESSMENT. of coals from the miucs to the place of ship- ment, 1111(1 all other liusiucss neoessiiry ami iisiiJilly iicrfornicd on railroads." and with otluT powers connected with the working at niineH " and oin-ration of railways," and empowered liy another Act (4!» \ii; am" 294). dis- xxlii., 42'.> C— Special Tax— E.k post facto Leglsla tion— Warranty. Assessment rolls were made by the City of Montreal under 27 A: 2,S Vic. c. OO ami 2l» & .30 Vic. c. ."(), apportioning the r'ost of certain local improvements on lands Viene- lited thereby. One of the rolls was set aside and the other was lost. The corpor- ation obtained jxiwer from the legislature by two special Acts to make new rolls, but in the meantime the iiroperty in (luestion had been sold and conveyed. New rolls were made assessing the lands for the same im- provements, and the iturchaser paid the taxes, and brought suit cii (jarantie to recover the amount from the vendor. Held, altirining the judgment of the courts below, Gwynne, .T., dissenting, that as two taxes could not both exist for the same purpose at the same time, and the rolls made after the sale. wi>re therefore the only rolls in force, no taxes for the local improvement-; had been legally imposed till after the ven- dor had liecome owner of the lands, and that the vendor was not obliged by her warranty and declaration that taxes had been paid to reimburse the purchaser for the payment of the special taxes apportioned against the lands subsequent to the sale. La Banque ViUe Marie v. MwHson. xxv., 289 7.— ^Ii-NiciPAL By-law — Special Assess- MRNTs— Drainage — Powers of Council AS TO Additional Necessary Works — Ultra vires Resolutions — Executed Contract. Where a municipal by-law authorized the construction of a drain, benefiting lands in an adjoining municipality which was to pass under a railway, where it was appar- ent that .a culvert to carry off the water brought down by the drain and prevent the flooding of adjacent lands would be an abso- lute necessity, the construction of such cul- vert was a matter within the provisions of sec. 573 of the Municipal Act (R. S. O. [18871 c. 184). and a new by-law author- izing it was not necessary. Taschereau, J., dissenting. The Canadian Pacific Raihcay Co. v. The Toicnship of Chatham xxv., 608 ASSIGNEE. 29 7. — Exemptions — Ueai^ I'kopekty — ChaTTEI-8 — FlXTUKKS — ear to be affected thereby, or by any by-law of the adjoining municipality proposing to levy contributions toward the cost of such works, would be entitled to have such other municipality restrained from passing a contributory by-law, or taking any «teps towards that end, by an action broiiglit before the paKsiiiK of H.ich vuutri- butory by-law Uroiiyhton \. Urey and t'lma . . xxvii., 41(5 y.— Collection of Taxes — Delivery op Roll- Stati:te— Directory ok Impera- tive I'uoviskjn— 55 Vic. c. 48 (O.). .Stc Statute, Hi. 10.— Uepair of Streets — Pavements — A.ssEss.MK.vT us 1'roi'ERty Owner — DoriiLE Taxation— 24 Vic. c. 3'J (X. S.) —53 Vic. c. 00, s. 14 (N. S.). 8c€ Highway, 2. 11. — Municipal Corporation — By-law — Assessment — Local I.mprovement — Aoree.me.st with Owners of Property Co.NsTRucTiON of Subway— Benefit to Lands. Sec Municipal Corporation. 28. 12.— Municipal Corporation — Highway — Private way — Widening Street — Local Improvement— Special Assess- ment. Sec Res Judicata, 10. 13.— Appeal — Expropriation of Lands — Local Improve.ments— Future Rights. See Appeal, 51. 14.— Appeal— Jurisdiction— .■>2 Vie. c. 37, s. 2 (D.)— Appointment of Presiding Officers- County Court Judges — 55 Vic c, 48 (Ont.)— 57 Vic. c. 51, s. 5 (Ont.)— 58 Vic. c. 47 (Ont.)— Constuc- TioN OF Statute— Appeal fro.m Assess- ment — Final Judgment — " Court op Last Resort." See Appeal, G4. 15.— Drainage — Extra Cost of Works — Repairs — Misapplication of Funds — Intermunicipal Works — Negligence — Damages — By-law — Re-assessment — R. S. O. (1877) c. 174—40 Vic. c. 18 (Ont.). See Watercourses. ASSIGNEE. 1. — Insurance Against Fire — Condition of Policy — Fraudulent Statement -— Proof op Fraud — Presentation — Assignment of Policy — Fraud by Assignor. See Insurance Fire, 5. 30 ASSIGNMENT. 2. — Assignment for the Benefit op Creditors — Preferred Creditors — Money paid under voidable Assign- ment—Liability OF Assignee— Statute of Elizabeth— Hindering and Delay- ing Creditors. See Assignment, 3. ASSIGNMENT. 1.— For Benefit of Creditors— Prefer- ences— It. «. X. S. c. 92, ss. 4, 5, 10— Chattel Mortgage — Statute of Eliz. — Fraud. Though an assignment contains prefer- ences in favunr of certain creditors, yet if it inclndes, subject to such preferences, a trust in favour of all the assignor's credi- tors it is " an assignment for the gi-u- cral benefit of creditors " under section 10 of the Nova Scotia Bills of Sale Act (11. S. N. S. c. l>2), and do.'s not require an affidavit of hona fides. Dur- Irr v. Flint (1<> X. S. Hop. 487), approved and followed; Archihiild y. Hubky (18 Can. S. C. K. 110), distinguished. A provision in an assignment for the se- curity and indemnity of makers and iudorp' ers of paper not due, for accomodation of the debtor, does not make it a chattel mort- gage under sec. 5 of the Act, the property not being redeemable and the assignor re- taining no interest in it. An assignment is void under the statute of Elizabeth as tending to hinder or delay creditors if it gives a first preference to a firm of which the assignee is a member, and provid'es for allowam-e of interest on a claim of the said firm until ])aid, and the assignee is permitted to continue in the same pos- session and control of the business as he pre- viously had, though no one of these provi- sions taken by itself would have such effect. A provivion that " the assignee shall only be liable for such moneys as shall come into his hands as such assignee, unless there be gross negligence or fraud on his part," will also avoid the assignment under the statute of Elizabeth. Authority to the assignee not only to pre- fer parties to accomodation pnncr. but also to ]iay all " costs, charges and expenses to arise in consequence " of such paper is a badge of fraud. Kirk V. Chisholm xxvi.. Ill 2. — Debtor and Creditor — Payment by Debtor — .Vppropriation — Preference -R. S. O. (1887), c. 124. A trader carrying on business in two es- tablishments, mortgaged both stocks in trade to B. as security for indorsemeuis on a com- position with his creditors, and for advances lu cash and goods to a fi.xed amount. The composition notes were made and iudorscn by B., who nuide advances to an amount considerably over that stated in the mort- gage. A few months after the mortgagur was in default for the advances, and a por- tion of overdue notes, and there were some notes not matured and B. consented to ihi' sale of one of the mortgiiged stocks, taking the purchaser's notes in payment, applying ihe amount generally in payment I of his overdue debt, part of which was un- I secured. A few days after B. seized tlu- other stock of goods covered by his mort- gage, and about the same time the sheriiT stized them under the execution, ;iiid shortly after the mortgagor assigned for benefit ot I creditors. An interpleader issue between B. and the execution creditor resulted in favour of B., who received, out of the proceeds of the sale of the goods, under an order of tlu' court, the balance renuiining due on his mortgage, lloisfall v. lioisscau (21 Ont. App. R. 003). The assignee of the mortgagor then brought an action against C. to re- : cover the amount representing the unse- cured part of his debt, which was paid by the purchase of the first stock, which, pay- ment was alleged to be a preference to 1>. over the other creditors. Held, affirming the decision of the Court of Appeal, that there was no preference to B. within R. S. O. [1887] c. 124, s. 2: that his position was the same as if his whole j debt secured and unsecured had been over- ! due, and there had been one sale of both stocks of goods realizing an amount equal to such d(>bt, in which case ho could have appropriated a portion of the proceeds ti> payment of his secured debt, iind would bavi' had the benefit of the law of set-off as to the unsecured debt under sec. 2.3 of the Act; and that the onl.v remedy of the mortgagor or his assignee was by redemption before the sale, which would have deprived B. of the benefit of such set-off. Stephens v. Boikscau xxvi., 437 ; 3. — Assignment for Benefit of Creditors I — Preferred Creditors — Moneys Paid [ under Voidable Assig.nment — Lia- j bility- of .Vssionek — Statute of ! Elizabeth — Hindering and Delaying i Creditors. j In an action to have a deed of assignment for the benefit of creditors set aside by credi- tors of the assignor, on the ground that it is void under the statute of Elizabeth, neither moneys paid to preferred creditors nor trust property disposed of in pood faith by the assignor, or persons daiming under him can AWARD-BAILMENT. 31 be recovered, nor can persons holding under the deed be held pei^5onally liable for moneys or property so received by them. Cox v. Worrall (26 X. S. Rep. 3GG), questioned. Taylor v. Cumtnings xxvii., 589 4.— Right of Action— Conveyance Subject to mortgacie — obligation to indem- NIFY — Assignment of — Principal and Surety— Implied Contract. Tlie obligation of a purchaser of mort- gaged lands to indemnify his grantor against the personal covenant for payment may be assigned even before the in. Htution of an action for the recovery of che mortgage debt, and, if assigned to a person entitled to recover the debt, it gives the assignee a direct right of action against the person liable to pay the same. Malmcy v. Campbell xxviii., 228 5.— Banking— Collateral Security— R. S. C. c. 120, Schedule " C "—53 Vic. c. 31, ss. 74, 75— Renewals. An assignment made in the form " C " to the " Bank Act " as security for a bill or note given in renewal of a past due bill or note is not valid as a security under the seventy-fourth section of the " Bank Act." The judgment of the Court of Apiwal for Ontario (24 Out. App. R. 152), affirmed. Bank of Hamilton v. Halstead . . xxviii., 235 C— Assignment in Trust for Creditors- Prior Chattel Mortgage— Possession of Goods— Delivery. See Chattel Mortgage, 2. 7.— Assignment for Benefit of Creditors — .TuDiciAL Abandonment — Subrogation —Confusion of Rights — Compensation —Arts. 772 and 778, C. C. P. — Composi- tion AND Discharge. Sec Abandonment, 1. See Partnership, 5. 8.— Chattel Mortgage — Mortgagee in Possession— Negligence— Wilful De- fault — Sale Under Powers — " Slaughter Sale "—Practice — Revo- cation OP Assignment. See Sale, 4. 0.— Mortgage— Loan to Pay off Prior En- cumbrance—Interest — Assignment of ^Iortgage— Pt'rchase op Equity cf Redemption — Accounts. Sec Mortgage. S. 10. — Assignment of Debt — Confidential. Relations — Knowledge of Book- keeper. See Principal and Agent, 5. 11. — E.xpected I'rofits — Statute of Eliz.a.- beth— Assets Exigible i.n Execution- Pressure. See Fraudulent Preferences, 3. 12. — ^Mortgage — Leasehold Premises — Tkrjts of Mortgage— Assignment or Sublease. See Mortgage, 9. 13.— Insolvency— Preference— Payment in Money— Cheque of Third I'arty- R. S. O. c. 124, s. 3. See Fraudulent Preferences, 4. AAVARD. 1. — By Drainage Referee— 54 Vic, c. 51 (Ont.)— Appeal — Jurisdiction— R. S. C c. 135, s. 24— Costs. Sec Appeal, 32. 2. — Prohibition — Railv:ays — Expropria- tion^Arbitration — Death of Arbitra- tor Pending Award — 51 Vic. c. 29, ss. 1.50, 157 — Lapse of Time for Making Award — Construction of Statute- Art. 12 C. C. — Appeal — Jurisdiction — 54 & 55 Vic. c. 25, s. 2. See Arbitration, 5. BAII.IFF. Election Petition — Preliminary Objec- tions — Service of Petition— Bailiff's Return — Cross-examination — Produc- tion OF Copy— Arts. .50 & 78 C. C. P. A return by a bailiff that he had served an election petition by leaving true copies. " duly certified," with the sitting member is a sufficient return. It need not state by whom the copies were certified. Counsel for the person served will not be allowed to cross-examine the bailiff as to the contents of the copies served without pro- ducing them or laying a foundation for secondary evidence. Beauhaipois Election Case . . . . xxvii., 232 BAILMENT. 1. — Fraudulent Appropriation — Unlaw- ful Receiving — Simultaneous Acts. See Criminal Law, 2. 32 BANKING. 2.— Common Cakrisrs -Express Company- Receipt FOR Money 1'arcel— Condi- tions Precedent— Notice of Claim— 1'leading — Money Counts — Special Pleas. •Vec Carriers, 2. 3.— Carrier— Shipping— Chartered Ship— 1'euishable Goods— Excepted Perils- Transhipment— Obligation to Tran- ship— IIepairs—Keasonable Time. See Carriers, 3. 4. — Construction of Contract — Agree- ment TO Secure Advances — Sale — 1'ledge — Delivery of Possession — Arts. 434, 1025, 102G, 1027, 1472, 1474, 14"J2. lU'J4c. C. C. — Bailment to Manufacturer. Hcc Contract, 39. BANKING. 1. — " Letters of Credit " — Negotiable In- strument — •' Bills of Exchange Act, 1890 "— " The Bank Act "— 1'owers of Executive Councillors — Ratification BY Legislature. A bank cannot deal in such securities as a ■' letter of credit " signed by an Execu- tive Councillor, -without the authority of an order in council, which is dei)endeut upon the vote of the Legislature, and therefore not a negotiable instrument within the Bills of Exchange Act. l.S!H», or The Bank Act, R. S. C. c. 120, ss. 45 and GO. The Jacques Carticr Dank v. The Queen, xxv., 84 2. — Principal and Agent — Agent's Authority — Representation by AgeinT — Principal Affected by — Advantage to Other Than Principal — Know- ledge OP Agent — Constructive Notice. Where an agent does an act outside of the ai>i)arent scope of his authority, and niaKes a representation to the person with whom he acts to advance the private ends of himself or some one else other than his principal, s!ich representation cannot be called that of the principal. In such a case it is immaterial whether or not the person to whom the representa- tion was made believed the agent had authority to make it. The local manager of a bank having re- ceived a draft to be accepted, induced the drawee to accept by representing that cer- tain goods of his own were held by the bank as security for the draft. In an action on the draft against the ac- ceptor: Ileld, affirming the decision of the Su- preme Court of New Brunswick, that the bank was not bound bv such representation: that by taking the benefit of the acceptance it could not be said to adopt what the mana- ger said in procuring it. which would burden it with responsibility instead of conferring ii benefit; and that the knowledge of the manager with which the bank would be affected should bo confined to knowledge of what was material to the transaction and the duty of_the manager to make kno«n to the bank. Richards v. The Bank of Nova Scotia-, xxvi.. 381 3. — Company — Bills of Exchange and Promissory Notes— Discount by Presi- dent — Credit to Company's Account- Payments out to Company's Creditors —Liability of Company- upon Note given without Authority — Bona Fides. , Where the president of an incorporated ; company made a promissory note in the j compan.v's name without autliority, and dis- I counted it with the company's bankers, the i proceeds being credited to the company's j account and paid out by cheques in the company's name to its creditors' whase claims should have been paid by the presi- dent out of funds which he liad previously misappropriated, the bankers, who h:nl taken the note m good faith are entitled to charge the amount thereof at maturity against the company's account. Judgment of the Court of Appeal for On- tario (23 Ont. App. R. 00), affirmed. The Bridgetvater Cheese Factory Co. v. Murphy, 21st May, 189G xxvi., 443 4.— Debtor and Creditor— Security for Debt— Security Realized by Creditor — Appropriation of Proceeds — Rel- Judicata— Practice. If a bank agrees to give a customer a line of credit, accepting negotiable paper as col- lateral security, it is not obliged, so long as the paper remains uncollected, to give any credit in respect of it, but when any portion of the collaterals is i)aid it operates at once, as payment of the customer's debt and must be credited to him. t'nder the .Tudicature Act, estoppel by res judirnfa cannot be relied on as a defence to an action unless specially pleaded. Cooper et ah v. Molsons Bank . . xxvi.. Oil (Affirmed in Privy Council, 9th March. 1898). BENEFIT ASSOCIATION— BETTING. 33 5. — Winding-up Act— Moneys Paid out of Court — Order Made by Inadvertence — Jurisdiction to Compel IIepayment — U. S. C. c. 121), ss. 40, 41, 94— Locus Standi of Keceiver-Genebal— 55 & 5(5 Vic c. '2S, s. 2 — Construction op Statute. The liquidators of an insolvent bank pas- sed their final accounts and i)aid u balance, reuiaiuiiij^ in their hands, into court. It appeared that by orders issued either through error or by inadvertence the bal- ance so deposited had been paid out to a person who was not entitled to receive the money, and the Iteceiver-( Jeneral for Canada, as trustee of the residue, inter- vened, and applied for an order to have the money repaid in order to be disposed of under the provisions of the Winding-up Act. HtUI. affirming the decision of the Court of Appeal for Ontario, that the Receiver-Gen- eral was entitled so to intervene, although the three years from the date of the deposit mentioned in the Winding-up Act had not e.xpired. Ihid, also, that even if he was not so en- titled to inti'rvene. the provincial courts had jurisdiction to <-onip(d repayment into court of the moneys improperly paid out. Hogaboom v. The Receiver-General of Canada; In re Ventral Bank of Canada . . xxviii., 192 C— Collateral Security— R. S. C. c. 120, Schedule " C " — 53 Vie. c. 31, ss. 74, 75 — Renewals — A ssignments. An assignment made in the form " C " to the ■■ Rank Act " as security for a bill or note given in renewal of a past due bill or note is not valid as a security under the seventy- fourth SMtion of the " Rank Act." The judgment of the Court of Appeal for Ontario (24 Out. App. R. I."i2). affirmed. Bank of Hamilton v. Halstead . . xxviii., 235 7. — Suretyship — Recourse of Sureties in- ter SE — Rateable Contribution — Action of Warranty — Discharge of Co-suRETTY — Reserve of Recourse — Trust Funds in Possessio.\" op a Surety— Arts. 1156, 1959, C. C. Sec. Action. 11. BENEFIT ASSOCIATION. 1.— Rules— Construction— Suspension of Payment— 53 Vic. c. 39 (Ont.). In 1889 the Police Force of Hamilton es- tablished a benefit fund, to jirovide for a gratuity to any member resigning or being s.c.d. — 3 incapacitated from length of service or in- jury, and to the family of any member dj'ing in the service. Each member of the force contributed a percentage of his pay for the puriwses of the fund, and one of the rules provided as follows: " No money to be drawn from the fund for any purpose whatever until it reach the sum of eight thousand ($8,000 1 dollars. Held, that in case of a member of the force dying before the fund reached the said sum. the gratuity to his family was merely sus- pended, and was payable as soon as that amount was realized. Miller v. Hamilton Police Bincflt Fund, xxviii., 475 2.— Appeal— Special Leave— (50 & 01 Vic. (D.) c. 34, s. 1 (cj — Benevolent Society • -Certificate op Insurance. An action in which less than the sum or value of one thousand dollars is in con- troversy, and v.herein the decision involves ((uestions as to the constrtiction of the con- ditions indorsed upon a benevolent society's certificate of insurance, and as to the ap- plication of the statute securing tiie bene- fit of life insurance to wives and children to such certificates is not a matter of such pub- lic importance as would justify an order Viy the court granted special leave to appeal under the provisions of sub-section (c) of the first section of the statute 60 & 01 Vic. c. 34. Fisher v. Fisher xxviii., 494 BETTING. Criminal Law — Betting on Election — Stakeholder— R. S. C. c. l.W. s. 9— Accessory— R. S. C. c. 145. s. 7— -Action FOR Monet Staked— Parties in pari DELICTO. R. S. C. c. 159, s. 9, provides inter alia that " every one who beconU's the custodian or depositary of any money ♦ * * staked, wagered or pledged upon the result of any political or municipal election * * * is guilty of a misdemeanor" and a sub-section saj's that " nothing in this section shall ap- ply to * * * bets between individuals." Held, reversing the decision of the Court of Appeal, Taschereau. .T., dissenting, that the stib-section is not to be construepoBitary of money bet between individuals on the result of an election: such depositary is guilty of a misdemeanour, and the bettors are accessories to the offence, and liable as principal ofifenders. Rcfj. v. Dillon (10 Ont. P. R. 352), overruled. 34 BIGAMY- BILL OF LADING. After the election, when the money has been paid to the winner of the bet, the loser cannot recover from the stakeholder the amount deposited by him, the imrties being ill pari delicto, and the illegal act having been performed. Walsh y. Trebilcock xxiii., 695 BIGAMY. Constitutional. Law— Criminal. Code, ss. 275, 270— Canadian Subjects marrying Abroad — Jurisdiction of Parliament. Sections 275 and 270 of the Criminal Code, 1892, respecting the offence of bigamy, are intra vires of the Parliament of Canada. Strong, C.J., contra. Criminal Code, 1892, Sections Relating to Bigamy xxvii., 401 BILL OF EXCHANGE. 1.—" Letter of Credit "—Negotiable In- strument — •• Bills of E.xchange Act, ISOO "— " The Bank Act," R. S. C. c. 120. A bank cannot deal in such securities as a " letter of credit " signed by the Pro- vincial Secretarj- of Quebec, without the authority of an order in council, which is deix'ndent on the vote of the Legislature, and therefore not a negotiable instrument within th Bills of Exchange Act of 1890. or the Bank Act, K. S. C. c. 120, ss. 45 and 00. The Jacques Carticr Bank v. The Qucai, xxv., 84 2. — Promissory Notes — Accept.\nce held BY Bank .^s Indorsee — Payment to Cashier — Presumption. "Where an acceptance had been indorsed to a bank, and the cashier of the bank had i>ut it in suit, in his own name, and the acceptor subsequently paid the amount thereof to the cashier; it wa.s held by the Supreme Court of Nova Scotia, that it was a fair inference that payment to the cashier was jiavnient to the bank of .which he was cashier (28 N. S. Rep. 210). On appeal to the Supreme Court of Can- ada the judgment was affirmed. Cox V. Seelc!/. 0th :Hay. 1896. 3. — tnnor=ement of note — release of Maker — Reservation of Rights — Satisfaction of Principal Debt — Release of Debtor — Release of Surety. f'ee Principal and Surety, 7. And see Promissory Note. BILL OF LADING. 1.— Contract — Correspondence — Carriage op Goods — Transportation Co. — Car- riage over Connecting Lines. Where a shipper accepts what purports to be a bill of lading, under circumstances which would lend him to infer that it forms a record of the contract of shipment, he can- not usually, in the absence of fraud or mis- take, escape from its binding operation merely upon the ground that he did not read it. but that conclusion docs not follow where the document is given out of the usual course of business, and seeks to vary terms of a prior mutual assent. Taschereau, J., dissented on the facts. N. W. Transportation Co. v. McKciizie, xxv., 38 2. — Transshipment of Grain in Transit — Custom of Trade — Original Bills of Lading Continued — Bulk of Cargo Delivered and Freight Exacted from Transferee — Transfer by Indorse- ment—The Bank Act— 53 Vic. c. 31— Estoppel. Grain was shipped from Chicago to Mon- treal, the bills of lading being made only from Chicago to Kingston, where it was, according to the usual custom of trade, transshipped into barges belonging to the defendants, and thence conveyed by them to Montreal, without the issue of new bills of lading. It appeared, however, to have been the custom that such bills of lading were in cases of the kind, treated as confinuing. The bills of sale had been transferred by indorsement, and delivery to the plaintiff, upon whose order the defendant had deliv- ered the greater part of the cargo, after ex- acting payment of full freight upon the shipment. The defendant had also recog- nized the custom of the grain trade as to the bills of lading continuing. In an action to recover an undelivered balance of the grain so shipped; Held, affirming the decision of the Superior Court, sitting in Review, at Montreal, that under the circumstances, the defendant was estopi>ed from questioning the validitr of the transfer of the bills of lading under the pro- visions of " The Bank Act," or objecting that they had become extinct upon delivery of the cargoes at Kingston. The St. Lair- rcnce and Chicago Fonrurdina Co. y. The Mol- sonn Bank), 28 L. C. .Tur. 127), referred to. TTie Kingston Foricarding Co. v. The Union Bank of Canada, 9th December, 1895. BILL OF SALE. 35 3.— Railway Co.— Carriage of Goods — Connecting Lines — Special. Contkactb — Loss by Fire in Warehouse — Xegli- GENCE— Pleading. In an action by S.. a uiorchaut at Merlin, Ont., agaiust the Lake Erie aud Detroit Kiver Ry. Co., the statemeut of claim al- leged that S. had i)urc-hased goods from jiarties iu Torouto aud elsewhere to be de- livered, some to the G. T. K. Co., and the rest to the C. T. R. and other companies, l.y the said several companies to be, aud the same were, transferred to the Lake Erie, etc., Co., for carriage to Merliu, aud that on receipt by the Lake Erie Co. of the goods it became their di;ty to carry them fiafely to Merliu, aud deliver them to S. There was also au allegation of a contract by tile Lake Erie Co. for storage of the goods aud delivery to S., when requested, aud of lack of proper care whereby the goods were lost. The goods were destroyed by tire while stored iu a building owned by the Lake Erie Co., at Merlin. Held, reversing the decision of the Court of Appeal, that as to the goods delivered to the G. T. K. Co. to be transferred to the Lake Erie Co. as alleged, if the cause of action stated was one ari.sing fx delicto it must fail, as the evidence showed that the goods were receivedl from the G. T. II. Co. for carriage under the terms of a special contract contain- ed iu the bill of lading aud shipping uote given by the G. T. U. Co. to the consignors, aud if it was a cause of action founded on contract it must also fail as the contract un- der which the goods were received by the G. T. R. Co. provided among other things, that tlie Co. would not be liable for the loss of goods b.v tire; that goods stored should be at sole risk of the owners; and that the provi- sions should apply to aud for the benefit of every carrier. Held further, that as to the goods delivered to the companies, other than the G. T. R. Co., to be delivered to the I^ake Erie Co.. the latter company was liable under the contract for storage; that the goods were iu its posses- sion as warehousemen, and the liills of lad- ing contained no clause, as did those of the G. T. R. Co., givjng subsequent carriers the benefit of their provisions; aud that the two courts below had held that the loss was caused by the negligence of servants of the Lake Erie Co.. and such finding should not be interfered with. HeW, also, that as to goods carried on a bill of lading issued by the Lake Erie Co.. thore was an e.Kpress provision therein that owners should incur all risk of loss of goods in charge of the company, as warehousemen; and that s;ich condition was a reasonable one, as the company only undertakes to warehouse goods of necessity and for con- venience of shippers. The Lake Erie and Detroit Riier HaUxcav Company v. Sales et al x.xvi., (IGo 4.— Contract — Negligence — Stowage — Fragile (Joods — Notice — Fault of Servants— Arts. 1074-1(570 C. C— Con- ditions OP Carriage. Sec Carrier, 4. BILL OF SALE. 1.— Chattel Mortgage Description— Bills OF bALE Act— R. S. O. (1887) c 125— Appeal — Order to Amend I'leadings — Interference with — Debtor and Creditor — I'urchase by Creditor — Consideration— E.xisTiNG Debt. In a chattel mortgage the goods conveyed were described as follows: " All of which said goods and chattels are now the pro- perty of the said mortgagor, aud are situate in and upon the premises of the London Machine Tool Co. '.describing the premises), on the north side of King Street, in the City of London;'' and in a schedule referred to in the mortgage was this additional descrip- tion: "And all machines • ♦ * * in course of construction or which shall here- after be in course of construction or com- pleted while any of the moneys hereby se- cured are unpaid, being in or ui)on the premises now occupied by the mortgagor * * * * or which are now or shall be on any other premises in the said City of Lon- don," Held, affirming the decision of the Court of Appeal, that the description in the sche- dule could not extend to goods wholly manu- factured on premises other than those de- scribed in the mortgage, and if it could the description was not sutlicieut within the meaning of the Bills of Sale Act (U. S. O. ri887] c. 125) to cover machines so manu- factured. The Supreme Court will not interfere on api>eal with an order made by a provincial court granting leave to amend the idead- ings, such orders being a matter of pro- cedure within the discretion of the Court below". •V purchaser of goods from the maker of a chattel mortgage in consideration of the dis- charge of n i)re-existing debt is a purchaser for valuabl(> consideration within sec. 5 of the Bills of Sale Act. VTilliamft v. Lrovard <(• f>onK . . . . xxvi., 400 2. — Chattel Mortgage — Affidavit of Bona Fides- Compliance with Statii- tory Forms— Change of Tossession— JyF.vY under Execution — Abandon- ment. Sej Chattel Mortgage, 2. 36 BORNAGE-BUILDING SOCIETY. 3.— Mortgage— Mining Machinery— Kegis- TRATioN— Fixtures — Interpretation of OF Terms — I'ersonal Chattels — Deli- very— U. S. N. S. (5 ser.) c. 92, ss. 1, 4 & 10 (Bills of Sale)— HS Vic, (N. S.), c. 1, s. 143 (The Mines ActJ— 41 & 42 Vic. (N. S.), c. 31, s. 4. See Registry Laws, 5. BOBNAGE. 1.— Encroachment — Mistake of Title — Good Faith — Common Error — Res Judicata— Arts. 412, 413, 429 et seq., 1047, 1241 C. C— Indemnity — Demoli- tion OF Works. Whore, as the result of a mutual error respecting tlie division liue, a proprietor liail in good faith, and with the knowledge and consent of the owner of the adjoining lot, erected valuable buildings upon his own pro- perty, and it afterwards api>eared that his walls encroached slightly upon his neigh- bour's land, he cannot be conii3elled to de- molish the walls which extend beyond the true houndai-j- or be evicted from the strip of laud they occupy, but should be allowed to retain it upon payment of a reasonable indemnity. In an action for revendication under such circumstances the judgment previously rendered in an action en homage between the same parties cannot be set up as res judicata against the defendant's claim to be allowed to retain the ground encroached up- on by paying reasonable indemnity, as the objects and causes of the two actions were different. An owner of land' need not have the division lines between his property and contagious lots of land established by re- gular Imrnagc before commencing to build thereon when there is r.n existing line of sopa; ition which has been recognized as the boundary. Delorme v. Cuason xxviii., 6'! 2. — Action en Bornage— R. S. Q. Arts. 4153, 4154, 4155— Crown Lands. See Boundary, 1. 3. — Agreement Respecting Lands — Bound- aries — Referee's Decision — Arbitra- tion—Arts. 1)41-945 and 1341 et seq. C. C. P. See Arbitration, 3. And see Boundary. BOUNDARY. 1.— Action en Bornage — R. S. Q. Arts. 4153, 4154, 4155— Straight Line. Where there is a dispute as to the bound- ary line between two lots granted by patents from the Crown, and it has been found im- possil)le to identif.v the original line, but two certain points have been recorded in the Crown Lands Department, the proper course is to run a straight line between the two certain points. R. S. Q. art. 4155. The Bell's Asbestos Co. v. Johnson's Co., xxiii., 225 2.— TrrLE to Land — Boundaries — Road Allowance — Evidence — Appreciation of Testimony. See Title to Land. 0. 3. — Title to Land — Action en bornage — Surveyor's Report — Judgment on — Acquiescence in Judgment — Chose jugee. See Title to Land, 9. 4.— Appeal — Action en bornage — Future Rights— Title to Lands— R. S. C. c. 135. s. 29 {h)—'A & 55 Vie. c. 25. s. 3 — 5G Vic. c. 29, s. 1. See Appeal, 53. 5. — Boundary Marks — Possessory Action Delivery of Possession — Vacant Lands. See Evidence, 29. And see " Bornage." BRIDGES. Jurisdiction over — County Council — Bridges over One Hundred Feet Wide— Ontario Municipal Act — R. S. O. (1887) c. 184, ss. 532. 534. See Municipal Corporations, 4. BUILDING SOCIETY. Participating Borrowers — Shareholders — C. S. L. C. c. 69—42 & 43 Vic. c. 31 (Q.) — Liquidation — Expiration of Classes — Assessments on Loans — Notice op — Interest and Bonus — Usury Laws— C. S. C. c. 58— Art. 1785 C. C. — Administrators and Trustees — Sales to — Prete-nom— Art. 1484 C. C. S. applied to a building society for a loan of .$3,500, which was subsequently advanced to him npon signing a deed of obligation and hypothec submitting to the conditions and rules applicable to the society's method BUILDINGS AND ERECTION'S 37 of carrying on its loaning business, and declaring that he had become a subscriber for shares in the company's stock for an iuuount corresijonding to the amount of the loan, namely 7U shares of the nominal value of $50 each in a class to expire after 72 mouthlj- payments, or in six years from the date of its commencement (July, 187^), this term corresponding with the term fixed for the repayment of the loan. He thereby also agreed to make monthly i)ayments of one per cent, each upon the stock, and that the loan should be repaid at the expiration of the class, when, upon the liquidation of the business of that class, members would be entitled to the allotment of the'r shares subscribed as paid up, partly by monthly instalments, and partly by accumulated profits to be derived from whatever moneys had been paid in and invested for the bene- fit of that class, at which time whatever he might be so entitled to receive in shares of stock should bo credited towards the re- imbursement of the loan. He further ob- liged himself to pay, as interest and bonus, the additional sum of one per cent, upon the loan by similar monthly instalments dur- ing the time it remained unpaid. S. paid all the instalments by semi-annual payments of $420 each until 1st May, 18S4. making a total of seventy monthly instalments of $70 each, leaving two more instalments of each kind still to become due before the date or- iginally fixed for the termination of his class. The society went into liquidation under the provisions of 42 & 43 Vict. cap. 32 (Que.), in January, 1884, prior to A.'s last payment and about six months before the date fixed for the expiration of bis loan. In Oc- tober. 1884, the liquidators of the society, in the exercise of the powers vested in the directors under the deed, and the society's regulations, passed a resolution declaring a deficit in the business of the class to which A. belonged, and, in order to provide the necessary funds to meet the proportion of deficit attributed as his share, they thereby exacted from liim a further series of twenty- eight monthly payments in addition to the seventy-two instalments contemiilated at the time of the execution of the deed. Subse- quently (in 1802>, the plaintiff, as transferee of the society, brought action for the two original instalments remaining unpaid, and also for the amount of the twenty-eight additional monthly payments upon the loan and the subscription of shares. ITcM, reversing the judgment of the Court of Queen's Bench, that the subscription for slinvps. and the obligation undertaken in the deed constituted, upon the part of the borrower, merely one transaction involving a loan and an agreement to repay the amount advanced with interest and bonuses thereon amounting together to a rate equivalent to interest at twelve per centum per annum, on the amount of his loan; that tiie contract made by the building society' stipulating that they were to receive such rate of interest and bonus, equivalent to rate of twelve per centum per annum on the amount so loaned by the society, was not a violation of aJiy laws respecting usury in force in the Pro- vince of Quebec; that the fact of the build- ing society going into liquidation had the effect of causing all classes of loans then current to expire at the date when the so- ciety was placed in liquidation, notwith- standing that the various terms for which such classes may have been established had not been fully completed; that under the pro- visions of the statute, 42 & 43 Vic. c. 32, liquidators have the same powers in regard to the determination of th(> affairs of ex- pired classes, and to declare deficits therein, and to call for further payments to meet the same, as the directors of the society had while it continued in operation; that the no- tice required by the twenty-first section of the Act. 42 & 43 Vic. c. 32. does not apply to cases where liquidators have determined a loss upon the expiration of a class, and required the full amount exigible upon loans to be paid by borrowers: that, notwithstand- ing that the liquidation proceedings deprived the directors of the exercise of their ])owers as to the determination of the condition of the affairs of a class, and the exaction of further payments when exigible in such cases on the expiration of a class, the resolution of the liquidators determining a deficit in the borrower's class, and requiring full pay- ment of all sums exigible under Iiis deed of obligation, was sufficient to constitute a valid right of action against the borrower for the amount of the lialanco of principal money loaned together with the interest and bonus instalment= remaining due thereon ac- cording to the terms and conditions of his deed of obligation. Held, further, affirming the decisions of both Courts below, that in an action where no special demand to that effect has been made, the Court cannot declare the nullity of a deed of transfer alleged to have been made in contravention of the provisions of article 1484 of the Civil Code. Gucrtiii V. I^nnstcrir xxvii., 522 BITILDINGS AND ERECTIONS. Lessor and Lessee— Watt:r Lots — Filling ix — " bx'ildings and erections " — " im- provements." .ality, as ascertained from the municipal rolls. The Town of ChicouVimi v. Price, 12th Oct.. 1898 xxi.x. 4.— Local Improvement — Notice to Rate- payers — Variation from Notice. Sec Municipal Corporation, 1. 5.— Municipal Corporation— Street Rail- way — CONSTRI'CTION BeYOND LiMITS OF Municipality' — Validating Act. See Municipal Corporation, 2. G. — Municipal Council — Power to License, Regulate and Govern Trada — Partial Prohibition — Repugnant Provisions — Ontario Municipal Act, R. S. O. (1887) c. 184. See Municipal Corporation, 0. 7. — City of Toronto — Water Supply — Rates to Consumers — Discrimination IN Rates— Government Buildings. See Municipal Corporation, 11. 8.— High School District— Townships De- tached — Ultra Vires. Sea Schools, 1. 9. — Petition for Drain — Withdrawal of Name— Insufficient Names. See Drainage. 1. 10.— Petition to Quash— R. S. Q. Art. 4.380— Right of Appeal— R. S. C. c. 135. s. 24 (j7). See Appeal, 22. CADASTRAL PLANS— CANADA TEMPERANCE ACT. 39 11.— Sale of Liquor— Cumulative Taxes- Special Tax. y public otiioials. and filed in the lands regis- tration offices, in virtue of the provisions of the Civil Code of Ix)wer Canada, do not in any way bind persons who were not cog- nizant thereof at the time the entries were made. Durocher v. Durocher xxvii., 363 CANADA TEMPERANCE ACT. 1. — Application op Fines Under — Incor- porated Town Separated from County for Municipal Purposes. By order in council made in September, 1880, it is provided that " all tines, penalties or forfeitures recoveretl or enforced under the Canada Temperance Act. 1878. and amendments thereto, within anyi city or county, or any incorporated town separated for municipal purposes from the county * * * * shall be paid to the treasurer of the city, incorporated town or coiinty," etc. Held, reversing the decision of the Sui)renie Court of New Brunswick. King, .L, dis- senting, that to come within the terms of this order an incorporated town need not be separated from the county for all purposes; it includes any town having municipal self- government even though it contributes to the expense of keeping up certain institu- tions in the county. Toirn of St. Stephen v. The County of Char- lotte xsiv., 329 40 CARRIERS. 2.— Seahch Wahrant— Magistuate's Juris- diction' — Justification ok Ministkriai. Officers — (iooDs in Custodia Legis — Replevin— Estoppel— Res Judicata. A search warrant issued under "The Can- ada Temiierani-e Act " is S"'*^'' 'f it follows the i)rescrilu »1 form, anil if i*. has been issut^l liy coniiietent authority, ■■.ud is valid on its face, it will afford justil.'-ation to the officer executing it in either cri uinal or civil pro- eeedinps. notvithstaiidiuj; that it may be bad in fact and may have been quashed or 8et :iside. Tasvhereau. J., dissi-nting. The statutory form does not requfro the premises to be searched to be described by metes and bounds or otherwise A judgment on certiorari (piashinp the war- rant will not estop the defendant from jus- tifying under it in proceedings to replevy the goods .seized where he was not a party to the proceedings to set the warrant aside, and :^ucli judgment was a judgnu'nt inter partes only. Taseherenu, J., dissenting. Slccth V. Uurlbcrt xxv., G20 CARRIERS. 1. — Contract — Correspondence — Car- riage OF Goons — Transportation Co. — Carraige over Connecting Lines — Bill of Lading. A shipning agent cannot bind his principal by receipt of a bill of lading after the ves- sel containing the giwds shipped has sailed, and the bill of lading so received is not a record of the terms on which the goods are shipped. Where a shipper accepts what purporis to be a bill of lading, under circum- stances which would lead him to infer that it forms a record of the contract of ship- ment, he cannot usually, in the absence of fraud, or mistake, escape from its binding operation merely upon the ground that he did not read it. but that conclusion does not follow where the document is given out of the usual course of business, and seeks to vary terms of a prior mutual assent. Taschereau, J., dissented on the facts. N. ^f. Transportalion Co. v. McKotzie, xxv., 38 2. — Bailees— Common Carriers — Express Company— Receipt for Money Parcel —Conditions Precedent — Formal No- tice OF Claim — Pleading — Money Had and Received — Special Pleas. Where an express company gave a receipt for money to be forwarded with the condi- tion indorsed that the company should not be liable for any claim in respect of the package, unless within sixty days of loss or damage a claim should be made by written statement, with n copy of the contract an- nexed: Held, that the consignor was obliged to ooniply strictly with these terms as a condi- tion i)rccedent to recovery against the ox- press company for failure to deliver the l>arcel to the consignee. Uichonlnoii- v. The Canada. M'tut FanmrD Ins. Co. (l(! U. C C 1'. 4.'?(l), distinguished. In an action to recover the value of the parcel, on the connnou count for money had and received, th" plea of " never iuilebte;e. A eonditioii in a hill of hiding, providing that the shipowners shall not he lialile for ne;rlif.'eni'e on Ihe piirt of the master or mari- ners, or their other servants or a^rents is not eontrarj- to pulilie poliey nor i)rohil(ited by law in the rrovince of (Quebec. When a bill of lading provided tlnit >;lass was curried only on eomlition that the shi]) and railway comiiaidi's were not to he liable for any breakavre that micht occur, whether from nenlijieme, rou>;h hiindlinK or any other cause whatever, and that tin' owners were lobe "exempt from the perils of the seas, and not answerable for dama^res aiul losses by collisions, strandinjr and all other acci- dents of navi;:ation. even tliouKh the danniRe or loss from these may be attributable to some wronjrful net, fatilt, nejilect or error in jnd;rmcnt of the pilot, mjtster, mariners or other servants of the shipowners; nor for breakajre or any other dnmaKo arisinjr from the nature of the jioods shipi)ed." sn<'h pro- visions ai)plied only to loss or damage re- snltintr from acts done durinj; the cnrrince of tli(> (loods. and did not cover dnmajres caused by nejilect or improper stowage prior to the commencement of the voyage. ritr GJeiuioil f^tcamxhii) (Jompanij v. Pilkhig- inn. The Olengoil litramfihip Company v. Firfiu-tnti. xxviii., 14(> • >.— PassknTtErs — Rait. WAT Company — Tja- TENT Defect— Arts. 1053, 1G73, 1G78 C. C. ."fee Railways, 4. 6.— Ratl-wat Company— Carriage of Ooods — ( "oNNECTiNc. Links— Speciai. Contrapt — Ivoss RY Fire in Warehouse — Negligence — Pleading. See Railways, 15. CASE RESERVED. Motion for Refused — Refusal Affirmed i'xanimity on one of several grounds — .\ppeaIj — Frai'dulent Appropriation —Bailee or Trustee— L'ni.awful Re- ceiving—Simultaneous Acts. »S'ee Criminal Law, 2. CERTIFICATE. \. ■ CoNTUAfT Fou I'rnLn' Wokk — K.ktuab I''lNAL ('KIlTirlCATE I'LEAIUNU. ^Yo Contriu't, ."». 1'.- CoNTUAc-T — I'lIULIC WoUK— FiNAI, ('BU- TIFICATE 74, Hi"'), 1(>7(!. 'j:;s;{, 's.vm), 'j.w\k ii4i;{, 2424. 2427 c. C— liiAiuLiTv (IF Owners. See Carriers, 4. CHATTEL. Fixtures — Severance from Realty— Con- ditional Sai-es — TTnpaid Vendor — Hypothecary (.'reditor — Arts. 37!>, 2017. 208.?, 2085, 2089 C. C. See Contract, 30. CHATTEL MORTGAGE. 1. — Affidavit of Hona Fides — Compliance WITH Statutory Form — R. S. N. S. (5 ser.) c. 92, s. 4. By R. S. N. S. (5 sor.), c. 92, s. 4. every chattel mortgage must be acconipjiiiioil by an affidavit of bona, fidrfi, " as nearly as may be " in the form given in a schedule to tin- Act. The form of the .iurat to such affida- vit in tlie schedule is: " Sworn to at in the county of , this day of A.D. . Before me a commis- sioner, etc. Jlrld, reversing tlie judgment of the Su- preme Court of Nova Scotia, Owynne, J., dissenting, that where the jurat to an affi- darit was " sworn to at Middleton this 0th day of .Tuly, A.D. 1801." etc.. without nam- ing the county, the mortgage was void, not- withstanding the affidavit was headed " in 42 CHATTEL MORTGAGE. the Couiily of Aiiuapi)lis." Archibald v. Huh- U-y (IS Can. S. (". U. IKil, followt'd; Smith V. MiLiun CJI Can. S. C. U. ^5.")) ilistiii- guislu'd. MijiKt V. I'hiiiiiiy xxii., 5(i3 2. — Affidavit of Hona Fides— Co.mplancb with statt!tory formh — change of I'ossEs.sioN — Levy unueh Kxeclttion — Abandonm ent. X. executed a chattel inortniij;*' of his cf- fi'fts, and sliortly afterwards made an ns- siKiinu'iit to (lue of the inortjcajifes, in trust for the lienetit of his ;ees under the mort- Kage whicii transferred to tiiem the pos- session of the );oods. The Kills of Sale Act, Nova Scotia, R. S. X. S. (."> sen. I, c. U'2, liy s. 4 re(inires a inortKaKe Kiveii to secure au existing in- debtedness to he accompanied by an affida- vit in the form prescribed in a schedule to the Act, and liy s. ."i. if the mortgage is to secure a debt not matured the affidavit nuist follow another form. By s. 11, either affi- given to secure both a present and future indelitedness, and was accompanied by a single affidavit combining the main features of both forms. Ifcid, affirming the decision of the Conrt below. Gwynne, ,T., dissenting, that this affidavit was not "as nearly as ma.v be," in the form prescribed: that there would have been no Mortgage — I'ossession by Creditor. l{y the Act relating to chattel mortgages (K. S. (). I1.SS71 c. 12.")), a mortgage not registered within five days after execution is " void as against creditors," and by •"•"> Vic. c. 2"> Vic, c. 26, a mortgage so void shall not, by subsequent possession by the mortgagee of the things mortgaged, be made valid "as against per- sons who became creditors * • * before such taking of possession." Held, reversing the decision of the Court of Appeal, that under this legislation a mort- gage so void is void against all creditors, those liecoming such aft(>r the mortgagee has taken possession as well as before, and not merely as against those having executions in the sheriff's hands at the time possession is taken, simple contract creditors who have commenced proceedings to set aside, and an assignee appointed before the mortgage was given: tliat the words "suing on behalf of themselves and other creditors," in the amending Act, only indicate the nature of proceedings necessary to set the mortgage aside, and that the same will enure to the benefit of the general bod.v of creditors: and that such mortgage will not be made valid by subsequent taking of possession. Held, per Strong. C..T.. that where a mort- gage is given in pursuance of an agreement that there sliall be neither registration nor immediate possession such mortgage is, on grounds of public policy, void o& initio. Clarkson ei al. v. McMaster d Co. . . xxv., 9(> rt. — Assignment for Benefit of Creditors — rREFERENCES— R. S. X. S. c. 92, ss. 4, 5, 10 — Chattel Mortgage — Statute of Elizabeth. Though an assignment contains prefer- ences in favour of certain creditors, yet if it includes, subject to such preferences, a trust in favour of all the assignor's creditors it is " an assignment for the general benefit of creditors " under section 10 of the Xova Scotia Bills of Sale Act (R. S. X. S. c. 92'>. CHATTELS, PERSONAL-CIVIL SERVICE. 43 and dors not roquiro an nffldnvit of hmui fides, linrkd' V. Fthit (10 N. S. Hep. 487) iipprovcil jiiiil followed; Anhihald v. iliihUy (IS Cau. S. C. U. ll'i'. tlistiiiKuishfd. A provision in an assignment for the si'- <'Urity and indemnity of nnikers and Indor- sers of inipers not due, for accomodation of the delitor, does not make it a chnttid niort- jrnne iinder .sec. 5 of tile Act. the )iroi>erty not heinjt redeemable and the assignor re- taining no interest in it. Kirk V. ChinhoUn xxvi., Ill (>.— Chattel MoRTOAaE — Mortgagee in Possession— Negligence — Wilful Dk- FATLT- Sale under Powers — Slaugh- ter Sale " — Practice — Assig.vment for thk Benefit of Creditors— Uevoca- TION OF. A mortgngee in possession who sells the niortgajied Koods in a reckless and improvi- dent manner is lial)le to account not only for what he actually receives, Imt for what he minht have ol)tained for the goods had he acted with a proper regard for the in- terests of the mortgagor. An assignment for the benefit of creditors is revocal)le until the creditors either exe- cute or otherwise assent to it. I'nder the provisions of R. S. O. c. 122, in order to enable the assignee of a chose in action to sue in his own name, the assign- ment must be in writing, but a written in- strument is not reipiired to restore the as- signor to his original right of action. Where creditors refused to accept the benefit of an assignment under R. S. O. c. 124, and the assignor was notified of such refusal, and that the assignment had not heen registered, an action for damages was properly brought in the name of the assignor against a mortg.ngoe of his stock in trade who sold the goods in an improper manner. Rennic v. Block et al xxvi., 3.^6 7.— Description— Bills cf Sale Act— R. S. O. (1887) c. 12.")— Appeal— Order to Amend Pleadings — Interference with — Debtor and Creditor — Purchase by Creditor — Consideration — Existing Debt. In a chattel mortgage the goods conveyed were described as follows: '• All of which said goods and chattels are now the pro- perty of the said mortgagor, anreme Court of Canada will not in- terfere on appeal with an order nmde by a provincial <'ourt granting lt'av(> to amend the pleadings, such orders being a matter of procedure within the discreticni of the court below. A purchaser of goods from the maker of a chattel mortgage in consideration of the discharge of a pro-existing debt is a pur- chaser for valuable consideration within sec. ."> of the Bills of Sale Act. Williams v. /v\ Leonard d Sons . . xxvi., 40(i 8.— Mortgage of Goods Insured — Condi- tion Against Assigning Policy — Breach. See Insurance, Fire, 2. 9.— JIortgage on Goods Insured— Condi- tion .Vgainst Sale. Transfer or Change of Title— Breach. See Insurance, Fire, 3. CHATTELS, FEBSONAIi. Mortgage— Mining Machinery— Registra- tion — Fixtures — Interpretation of Terms — Bill of Sale — Personal Chattels— R. S. N. S. (5 Ser.) c. 92, ss. 1, 4 and 10 (Bills of Sale)— 5.") Vic. (X. S.). c. 1, s. 143 (The Mines Act)— 41 & 42 Vic. (X. S.) c. 31, s. 4. See Mortgage, 7. CHOSE IN ACTION. Seo Assignment. CHOSE JUGEE. See Res Judicata. Civil- SERVICE. 1. — Construction of Statute — R. S. C. c. 18 — Abolition of Office— Discretion- art Power — Jurisdiction. Employees in the Civil Service of Canada who may be retired or removed from otSce 44 CODICIL— COMMITMENT. under the provisions of the eleventh section of " The Civil Service Superannuation Act " (It. S. C. c. IS), have no absolute right to .•my sui)erannuatiou allowance under that section, such allowance being by the terms of the Act entirely in the discretion of the executive authority. Bald' iHWi V, The Queen . . . . xxviii., 261 2.— Extra Salary — Additional Remunera- tion—Permanent Employees— 51 Vic. c. 12, s. 51. See Statute, Construction of, 35. CODICIL. 1. — Will— IJevocation — Revival — Inten- tion to Revive — Reference to Date — Removal of Executor— Statute of Mortmain — Will Executed under Mistake— Ontario Wills Act, R. S. O. (1887) c. 100— D Geo. II. c. 30 (Imp.). A will which has been revoked cannot, since the passing of the Ontario Wills Act (R. S. O. [1887] c. 109), be revived by a codicil unless the intention to revive it ap- pears on the face of the codicil either by express words referring to the will as re- voked and importing such intention, or by a disposition of the testator's property incon- sistent Mith any other intention, or by other expressions conveying to the mind of the court, with reasonable certainty, the exis- tence of the intention in question. A reference in the codicil to a date of the revoked will, and the removal of the exe- cutor named therein, iind substitution of an- other in his i>lace, will not revive it. Held, per King, J., dissenting, that a codi- cil referring to the revoked will by date and removing an executor named therein is sufficient indication of an intention to ri^- vive such will, more especially when the several instruments are executed under cir- cumstances showing such intention. Mncdnnell v. PurceU. Clcary v. PurceU xxiii., 101 2. — Will — Devise to two Sons — Devise over of one Share — Condition — Con- text — Codicil. A testator devised property " equally " to his two sons .T. S. and T. G., with a provi- sion that " in the event of the death of my said son T. G., unmarried, or without leav- ing issue." his interest ehouUT go to J. S. By a otidicil a third son was given an equal interest with his brothers in the property. 0 per cent vas still due the company thereon. A judgment in favour of X. was affirmed by the Divisional Court, but reversed by the Court of Appeal, on the ground that the ap- proiiriatiim by the directors of the money paid by B. was invalid for want of a formal resolution authorizing it. Iffhl. reversing the judgment of the Court of Appeal. <;wynne, .T.. dissenting, that the conijiany liaving got the benefit of the loan by X. were estopped from disputing the appli- cation of the money i>aid liy B. in such a wav as to constitute X. the hol^ler of tlie 75 shires, upon the security of which the loan was made, and creditors, not having been prejudiced, are bound in the same way; and the transaction being binding between B. and the company, and not objectionable as regards creditors, X. could acept the 75 shares in lieu of the 108 he was entitled to. 'Seclon v. Tlxe Town of Thorold . . xxii., 390 2. — Winding-up Act — Contributory — Shares 1'aid for by Transfer of I'ro- PERTY — Adequacy of Consideration- Promoter Selling Property to Co.m- pany — Trust — Fiduciary Belation. Shares in a joint stock company may be paid for in money or money's worth, and if paid for by a transfer of property they must lie treated as fully paid up. In proceediigs under the AVinding-up Act the Master has no authority to incpiire into the adequacy of the consideration with a view to placing the holder on tin; list of con- tributories. There is a distinction between a trust for a company of property acquired by promoters and afterward sold to the company, and the fiduciary relationship engendered by the pro- moters, between themselves and the com- pany, whitl' exists as soon as the latter is formed. A promoter who purchases pro- perty with the intention of selling it to a company to be formed does not necessarily hold such property in trust for the prospec- tive company, but he stands in a fiduciary relation to the latter, and if he sells to them must not violate any of the duties devolv- ing uiK)n him in respect to such relationship. If he sells, for instance, through the medium of a board of directors, who are not indepen- dent of him, the contract may be rescinded provided the property remains in such a posi- tion that the parties may be restored to their original status. There nuiy be cases in wliich the proiwrty may be regarded as be- ing bound by a trust either ab initio or in consequence of cJ? post fm-to events; if a promoter purchases property from a vendor who is to be paid by the company when formed, and by a secret arrangement with the vendor a part of the price, when the agreement is carried out. comes into the hands of the promoter, that is a secret pro- fit which he cannot retain; and if any part of such secret profit consists of paid-up shares of the company issued as part of the pur- chase price of the property such shares may, in winding-up proceedings, lie treated, if held by the promoter, as unpaid shares for which the promoter may be made a contri- butor.v. 1 Jn re Hess Mfg. Co.; Edgar v. Sloan, xxiii.. I 644 \ 3.— Winding-up Act— Sale by Liquidator — Purchase by Director of Insolvent Company — Fiduciary Relationship — R. S. C. c. 120, s. .34. T'pon the apiwintment of a liquidator for a company being wound up under R. S. C. c. 12!) fThe Winding-up Act), if the powers of the directors are noT continued, as pro- vided by s. 34 of the Act, their fiduciary 46 COMPANY. relations to the company or its shareholders are at an end, and a sale to them by the liquidator of the company is valid. Chatham National Bank v. McKtcn, xxiv., 348 4. — Joint Stock Company — Ultra Vires Contract— Consent Judgment— Action TO set Aside. A company incorporated for definite pur- poses has no power to pursue objects other than those e.xpressed in its charter, or such as are reasonably incidental thereto, nor to exorcise their powers in the attainment of authorized objects in a manner not author- ized by the charter. The assent of every shareiiolder makes no difference. If a company enters into a transaction which is ultra riirs and litigation ensues, in the course of which a judgment is entered by consent, such judgment is as binding uiHMi the parties as one obtained after a <(intest, and will not be set aside lM»«iuse the transaction was beyond the iwwer of the company. Charlehois et al. v. Delap et ah . . xxvi. 221 5. — Constitutional Law — Municipal Cor- poration — Powers of Legislature — License — Monopoly — Highways and Ferries — Tolls — Navigable Streams — Ky-laws and Resolutions — Intermuni- ciPAL Ferry — Disturbance op Licensee ^ Club Associations, Com- panies AND Partnerships — North-west Territories Act, K. S. C. c. .">(). ss. 1-3 AND 24— B. X. A. Act (ISC.T). s. It2, ss. S. 10 AND K;— Kev. Ord. N. W. T. (1SS81 c. 28— X. W. T. Ord. Xo. 7 of 1801-2, s. 4. aSYc Constitutional Law, 14. (».- Banking— Bills of Exchange and Pro- missory Notes — Discount by Presi- dent — Credit to Company's Account — , Payments out to Company's Creditors — Liability of Company upon Note GIVEN without Authority — Bona • Fides. AVhere the president of an incorporated company made a ]ironiissory note in the company's name, without authority, and dis- ! counted it with the company's bankers, the i proceeds being credit.^propriated, the bankers, who had j taken the notes in good faith are entitled to • charge the amount thereof at maturity against the company's account. Judgment of the Court of Appeal for On- tario (23 Out. App. II. GO), afHrmed. The Bridgeicater Cheese Factwy Company v. Murphy, 21st May, 1890 xxvi., 443 7. — Directors — By-law — Ultra Vires- Discount Shares — Calls for Unpaid Balances — Contributories — Trustees I'ovvERs— Contract— Fraud— Breach of Trust — Construction of Statute — C. S. M. c. »— K. S. M. c. 25, ss. 30, 33. The directors of a joint stock company iu- coriwrated in Manitoba have no powers un- der the provisions of " The Manitoba Joint Stock Companies lucoriKjratiou Act " to make allotments of the capital stock of the company at a rate per share below the face value, and any by-law or resolution of the directors assinning to make such allotment without the sancti(ui of a general meeting of the shareholders of the company is in- valid. A by-law or resolution of the directors of a joint stock company, which operates un- equally towards the interests of any class of the shareholders is invalid and ultra vires of the company's powers. Where shares in the capital stock of a joint stock company liave lu'en illegally is- sued below par, the holder of the shares is not thereby relieved from liability for calls for the unpaid' balances of th»'ir par value. Judgment of the Court of Queen's Bench for Manitoba (11 Man. L. R. 0*29) reversed, Tischen'au, J., dissenting. The Xorth-tcest Electric Co. v. Walsh. 13 h October, 1898 xxix. 8. — Joint Stock Company — Irregular Organization — Subscription for Shares— WiTHDHAWAL — Surrender — Forfeiture — Duty of Directors — Powers — Cancellation of Stock — Ultra Vires—'' The Companies Act "— '" The Winding-up Act " — Contribu- tories — I'leading — Construction of Statute. After the issue of an order for the wind- iu'.r-up of a joint stock company ineorpor ated under "The Companies Act." (U. S. C. c. 110). a shareholder cannot avoid his liabi'- ity as a contributory by setting np defects or illegalities in the organization of the company as. under the provisions of the Act. such grounds may be taken only upon direct jiroceedings at the instance of the Attorney- (Jeneral. The powers given directors of a joint stock company, under " The Companies COMPOSITION AND DISCHARGE— CONDITION AND WARRANTIES. 47 Act (It. S. C. c. 110). as to forfeiture of shares for non-payment of calls, are in- tended to be exercised only when the cir- cumstances of the shareholder render it expedient in the interests of the company, and they cannot be employed for the bene- fit of the shareholder. Common v. McArthur, 14th December, 1898, xxix. 9. — Forfeiture of Charter — Estoppel. — Compliance With Statute — Action — Res Judicata. In an action against a Kiver Improvement Company for repayment of tolls alleged to have been unlawfully collected, it was stated that the dams, slides, etc.. for which tolls were claimed were not placed on the l)roperties mentioned in the letters patent for the company; that the company did not comply with the statutory requirements that the works should be completed within two years from the date of incorporation where- by the corporate iwwers were forfeited; that false returns were made to the Commissioner of Crown Lands upon which the schedule of tolls was fixed; that the company by its Works and improvements obstructed navig- alile waters, contrary to the provisions of the Timber Slide Company's Act, and could not exact tolls in respect of such works. By a consent judgment in a former action between the same parties it had been agreed that a valuator should be appointed b.v the Cinn- niissioner of Crown I..an(ls whose report was to be accepted in iilace of that provided for by the Timber Slide Company's Act. and to be acted ujiou liy the Commissioner in fixing the schedule of tolls. Held, affirming the judgment of the Court of Appeal for Ontario, that the above grounds of impeachment were covered by the consent judgment and were res judicata. Held, further, that plaintiffs having treated the company as a conioration. using the works and paying the tolls fixed I)y the Com- niissioner. and having in the present action sued the conii)any as a c(UT)oration. were preclnd(>d from impugning its legal existence by cl.'iiming that its corporate powers were forfeited. B.v R. S. O. (1887) c. IfiO. s. -A. it was provided that if a comi)any such as this did not complete its works within two years from the date of incorporation it should forfeit all its cori)orate and other powers, unless fur- tiier time were granted by the county or counties, district or districts, in or adjoining which the work is sittiate. or by the Com- missioner of Public Works. Semhie. the non-completion of the works within two years would not ipso facto, forfeit, the charter, but only afford grounds for pro- ceedings by the Attorney-General to have a forfeiture declared. Another ground of objection to the imposi- tion of toils was that the Commissioner, in acting on the report of the valuator appointe.l under the consent judgment erroneously based tile schedule of tolls upon the report as to expenditure instead of as to actual value, and the statement of claim asked that the schedule be set aside and a new scale of tolls fixed. Held, that under the statute the schedule could only be altered or varied by the Com- missioner and the court could not interfere, especially as no application for relief had been made to the Commissioner. Hardy Lumber Co. v. Pickerel liner Im- pronmciit Co., 14th December, 1898 . . xxix. COMPOSITION AND DISCHARGE. Debtor and Creditor — Acquiescence in — New Arrange.ment of Terms of Settlement — Waiver of Time Clause — Principal and Agent — Deed of Dis- charge—Notice OF Withdrawal from Agreement — Fraudulent I'refer- ences. I'pou default to carry out th > terms »f a deed of composition and discharge a new arrangement was niade respecting the real- ization of a erative and of no effect. Hoirlaitd. Soux d- Co. , Jrant — xxvi., 372 CONDITIONS AND \(rARRANTI£S. 1.— Life Insurance — Conditions and War- ranties — Indorsements on Policy — In- accurate State.ments — Misrepresen- tations — liATENT Disease — Material Facts — Cancellation of Policy — Return of Premium — Constri'ction of Statute— 55 Vic. c. 39, s. 33 (Ont.). The provisions of the second sub-section of section thirty-three of " The Insurance Cor- porations Act, 1892," (Ont.) limiting con- 48 CONDITION PRECEDENT— CONSTITUTIONAL LAW. ditions and warrnntics, indorsed on policies, lirovidinK for tlio avoidnnce of the contract liy reason of untrue statements in the ap- pHcations to cases where such statements are material to the contract, do not require the materiality of the statements to appear by the indorsements, but the contract will be avoided only when such statements may subseiiuently be judicially found to be ma- terial as provided by the third sub-section. Misrepresentations upon an application for life insurance so found to be material will avoid the policy notwithstandinj; that they nuiy have been made in j;<>od faith and in the conscientious belief that they were true. Yfiiiwr v. The Sim Life Insurance Company (17 Can. S. C. K. 394). followed. Jord'tn ct al. v. Provincial Provident Institu- tion xxviii., 554 2.— Fire Insurance— Coxditiox in roncv — NoTicR OF Additional Insurace — Duty OF Insured. A policy of insurance against fire contained a condition requiring notice of insurances existing at the time the policy issued or iifterwards made on the same proT)erty. nn.l that a iiieniorandtim thereof should be in- dorsed on the policy, otherwise that the poliiy should 1k' void, a proviso being added that the company should have the option to cancel the policy, or, if it remained in force with their consent, then the com- pany to be liable only for rateable proiwr- tion of I'iss or damage. Insured a])plied for additioiml insurance while this polic.v was in force, on 10th .Inly. lS*,i."i, in another com- pany, and on 17th .July his ai)plication was acceiitcd. but notice of acceptance did not reach him until the 20th. The insured pro- perty was destroyed by fire on the ISth July, and tlie comjiany refused payment on the grounil that the polic.v was void for want of notice of the additional insurance, and in- dorsement thereof, as required by the con- dition. IffhI. affirming the judgment of the Su- preme Court of New Brunswick, that the polic.v was not avoided; that the condition did not require the insiired to give notice of insurance of which he had no Icnowledge, but only covered the case of insurance effected before a loss of which notice could be given, also before loss. The Commercial Vnioit- Insurance Co. v. Temple. 21st November, 1898 xxix. CONDITION PRECEDENT. Accident Insttrance— Condition in Policy — Notice — Action. See Insurance, Accident, 2. CONF^ ^lON OF RIGHTS. Compensation — .Iudicial Abandon-ment — Composition and Discharge. See Abandonment, 1. CONSTABLE. 1. — The Criminal Code, s. r)7,") — Persona Designata — Officers de facto and de JURE— Chief Constable— Common Gam- ing House — Confiscation of Gaming In.struments, Mo::eys, Etc. — Evidence —The Canada Evidence Act, 1S1)3, ss. 2, 3, 20 AND 21. Section .575 of the Criminal Code, author- izing the issue of a warrant to seiz.' gaming implements on the report of " the chief con- stable or deputy chief constable " of a city or town, does not mean that the report must come from an oflicer having the exact title mentioned, but only from one exercising such functions and duties as will bring him within the ilesignation used in the statute. Therefor?, the warrant could properly issue on the r(>port of the deputy high constable of the City of Montreal. Girouard, ,T., dis- senting. The warrant would be good if issued on (lie report of a person who filled '/e facto the oflice of dejMit.v high constable though he was not such de jure. O'Xcil V. Attoniey-Oenei'al of Ca^nadii, xxvi.. 12'^ 2. — Canada Temperance Act — Search Warrant — Magistrate's .Turisdiction — .TrSTIFICATION of MINISTERIAL Officer — Goods in Custodia Legis — Replevin— Estoppel — Res Judicata — .Judgment inter partes. Sec Canada Temperance Act, 2. CONSTITUTIONAL LAW. 1. — Title to Lands in Railway Belt in British Columbia — I'nsurveyed Lands HELD under Pre-emption — Record Prior to Statutory Conveyance to Dominion Government — Federal and Provincial Rights— British Columbia Lands Acts of 1S73 and 1879—47 "Vic. c. CD.). On 10th Sept.. 1883. D. rt at. obtained a certificate of pre-emption under the Bri- tish Columbia Land Act. 1875. and Land Amendment Act, 1879. of G40 acres of un- surveyed lands within the 20 mile belt south of the C. P. R., reserved on the 29th Nov., 1883, under an agreement between the two Governments of the Dominion and of the Province of British Columbia, and which CONSTITUTIONAL LAW. 49 •was ratified liy 47 Vic. c. 14 (H. <".i. On 29th Aug.. ISS'i, this certitioatc was cati- cellt'd, and on the same day a lilce certilicntc was issued to n'siioiidcuts. and on the IJlst July, 18S!>. Icttcrs-iiatcnt under I lie great seal of British Colniliiia were issued to re- sjiondents. Hy the agreement ratified hy 47 Vic. f. (!>.). it was also agreed that three and n half niillioii additional acres in Peace Kiver District should be conve.ved to the Dominion Ooverninent in satisfaction of the right of the Dominion under thi- terms of uidon to have made good to it, from public lands contiguous to the railway belt, the (luantity of land that might at the date of the conveyance be Indd under pre-emption right of the Dominion under the terms of tion by the Attoriiey-< Jeneral for Canada to recover iKissession of the L'iTs RY Dominion (Jovkrnment — Ex- chequer Court— .TfRiSDicTioN. The Crown in right of the Dominion has a right to take proceedings to restrain an indivitlual from making use of a. provincial grant in a way to emliarrass the Dominion in the exercise of its territorial rights. The rights of the Crown, territorial or ])rerogative, are to be passed under the (Jreat Seal of the Dominion or province (as the case may be), in which is vested the benelicial interest therein. The I'arlianieiit of Canada has the right to enact that all actions and suits of a civil nature at common law or e, enacts: "In and for the province the s.c.D. — i said legislature may exclusively make laws in relation to education, subject and ac. 22 of the Manitoba Act, 1871. restricting the coiistitntiimal right of the TiCgislature of the province to rep:'al the laws it might its(df ena<-t in relation to ediK'ation, no right of appeal lies to the Governor-General in Council as claimed either under sub-sec. 2 of sec. 22 of the Manitoba Act. or sub-sec. 3 of sec. 93 of the Rritisli North America Act, 1867. Four- nier and King. J J., contra. so CONSTITUTIONAL LAW 2. Thrit tie ri^'lit to appeal given hy sub- see. 2 of Sff. 'SJ. (if till- Miiiiilol)a Act is only from an Act or dcr'sion of the Logis- lature, which niifilU affect any rights or privi- leges existing at tlie time of the union as mentioned in sub-sec. 1, or of any provincial, executive or administrative authorities affect- ing any right or privilege existing at the time of the union. Foiirnicr .uul King, J.I., dissenting. Per Tasdicrean and Cwynne .M., that the decision in linnrtl v. W'mniing ijlS'.tli] A. C. 44;{), disposes of and concludes the present rfprdic;ition. Qiurn — I'cr Tas<'liereau. J. Is section 4 of 54 & ."> Vic. c. 2.5, Avhich punwrts to authorize such a reference for hearing " or " consideration, intra riics of the Par- liament of Canada? In re StatutcH of Manitoba, Education xxi_i.^ i")77 MEMO.-Sce (189.->) A. C. 202. 4.— Foreshore op Harbour— I'roperty in — 44 Yic. c. 1, s. 18 (D.)— Authority to ItAiLWAY Company to use Foreshore — •lus I'rBLicuM — Access to 1'ublic Harbour. The Dominion Statute, 44 Vic. c. 1. s. 18, gave the C. 1'. K. Co. the riglit to tal^e and use the land below high water mark in any stream, lake, etc., so far as required for the puri)oses of the railway. HeUI, that the right of the public to have access to a harbour, the foreshore of which had been taken by the company under this Act, was subordinate to the rights given to the company thereby, and the latter could prevent by injunction an interference with the use of the foreshore so taken. Citu of Ta7Wouvcr v. The Canadian Pacific Railtcay Co xxiii., 1 5.— British North America Act, ss. 05, 92 — Pardonino Power op Lieutenant- Governors— 51 Vic. c. 5 (O.)— Act IiESPECTING THE EXECUTIVE ADMINIS- TRATION OB' THE Laws of the Province — Provincial, Penal. Legislation. The Local Legislatures have the right and rower to impose punishments by fine and imprisonment as sanction for laws which they have power to enact. The Lieutenant-Governor of a province is as much the representative of Her Majesty the Quep, for all purposes of provincial governmenc as the Governor-General himself is for all purposes of the Dominion Govern- ment. Inasmuch as the Act 51 Vic. c. .^ fC) de- clares that in matters within the jurisdiction of the I^egislature of the province all powers, etc., which were vested in or .'xercisable by the GoM'rnors or Lieiitenant-tJovernors of the several provinces before Confederation shall l)e vested in and exercisable l>y the Lieutenant-Governor of thut province, if there is no proceeding in dispun- which has l)e<>u attempted to be justified under 51 "^'ic. c. 5 (().), it is impossible to say that the powers to be exercised by tin' said Act by the Lieutenant-tJovernor are unconstitu- tional. (pHT/T— Is the power of conferring by legis- lation upon the representative of the Crown. su( h as a Colonial Governor, the prerogative of pardoning in the Imperial Parliament only or. if not, in what Icgislatiire does it re- side? Gwynne. .!., dissenting, was of opinion that 51 Vic. c. 5 (O.), is nUra rircs of the I*rovincial Legislature. Attunicu-Orneral of Canada v. Attoniey- Gvmral of Ontario xxiii., 4."kS (5.-51 & ,52 Vic. c. !»1, ss. f>, 14 (Q.*— In- terpretation Act, s. 19 K. S. Q.— Rail- way Subsidy- — Discretionary Power op Lieuten.\nt-Governor in Council — I'etition of Right — Misappropriation OP Subsidy Moneys by Order in Council. Where money is granted by the Legislature and its application is prescribed in such a way as to confer a discretion upon the Crown, no trust is imposed enfor';eable against the Crown by petition of right. The appellant railway company alleged by petition of right that by virtue of 51 <& 52 Vic. c. 91, the Lieutenant-Governor in Coun- cil was authorized to grant 4,000 acres of land per mile for 30 miles of the Hereford Railway: that by an order in council dated (ith August, 1888, the land subsidy was con- verted into a money subsidy, the 9th section, of said cap. 91 of 51 & .52 Vic, enacting thit '•it shall be lawful," etc., to convert: that I the company completed the construction of j their line of railway, relying upon the said subsidy and Order in Council, and built the railway in accordance with the Act 51 & .52 Vic, c 91, and the provisions of the Raihvjty Act of Canada, 51 Vic. c 20. and they claimed to be entitled to the sum of ,$49,000, balance due on said subsidy. The Crown demurred on the grou:id that the statute was permissive only, and by excep- tion pleaded inter nli-a. that the money had been paid by Order in Council to the sub- contractors f.ir work necessary ' for the con- struction of the road: that the president hart CONSTITUTIONAL LAW. 5' by IcttiT ajrrocd to accept an additional snb- sidy on an extension of their line of railway to settle ditlicnlties, and signed a receiiit for the balance of ifti.oOO due on account of the first sulsidy. The petition of right was dis- missed. Ili'UI. tliat tlie statute and documents re- lied on did not create a lialiility on tiie part of the ("rown to pay the money voted to the apiiellant company enforc.'ai)l(> liy peti- tion of right (Taschereau and Scdgcwick, .1.1., letter and receipt signed l>y the jiresident of the company did not discharge the Crown from such oMigation to pay the sulisidj-, and pay- ment hy the Crown of the suh-cont factors' claim out of the subsidy money, without the consent of the company, was a misappropria- tion of the subsidy. Jhnftird Ry. Co. v. The Qiicin . . xxiv., 1 7.— LocAi. Option Act— .".3 Vic. c. 5G, s. IS (O.)— 54 Vic c. 40 (P.l— Constitution- AMTY — Prohibition' by Retail — Powers OF Local Legislatures. The statute 53 Vic. c. 56, s. IS (O.) allowing, under certain conditions, munici- paliiies to pass by-laws for prohibiting the sale of spirituous liquors is intra rires the Ontario Legislature, as is also sec. 1 of 54 Vic. c. 40, which explains it, but the pro- hibition can only extend to sale by retail. In re Local Option Act (IS Ont. App. IL 572) approved. Owynne and Sedgewick, J.L, dis- senting. ITusoii V. The Miinhipnl Council of the Corporation of the Totcnship of South Xoricich, xxiv., 145 S.— Reference bt Governor in Council— Constitutional Law — Prohibitory lyAws— Intoxicating Liquor.s— British Xorth America Act. ss. 01 and 92— Provincial .TuRisniCTioN— 53 Vic. c. 50, s. IS (0.>— .54 Vic. c. 40 (O^— Local Option — Canada Temperance Act, 1S7S. A Provincial Legislature has not jurisdic- tion to i>rohibit the sale, either by whole- s.nle or retail, within the province, of spirit- uous, fermented or other intoxicating liquors. Per Strong, C.J.. and' Fournier, J.. dissenting: A provincial Legislature has jur- isdiction to ])rohibit the sale within the pro- vince of such liquors by retail, but not by wholesale: and if any statutory definition of the terms wholesale and retail be re- quired, legislation for such purpose is vested in the Dominion as appertaining to the regu- lation of trade and commerce. I A Provincial Legislature has not jurisdic- : tion to prohil)it the manufacture of such 1 liquors within, or their imiiortatioa into, the ' province. The Ontario liCgislature had not jurisdic- tion to enact the IStli section of the Act : 53 Vic. c. 50, as explained by .54 Vic. ' c. 40. The Chief Justice and Fournier, .L, dissenting. In re I'rohihitoru Liquur Lnirx . . xxiv.. 170 Memo.— See (ISUU) A. C. 34S. I 9. — Dominion Government — Liability to Action for Tort — Injury to 1'uoperty on I'uHLic Work — Non-fea.sance— 39 Vic. c. 27 (D.)— 11. S. C. c 40, s. 0—50 & 51 Vic. c. 10 (D.). 50 & 51 Vie. c. 10, ss. 10 and 5S confers upon the subject a new or enlarged right to maintain a petition of right against the Crown for damages in respect of a tort (Tas- chereau, J., expressing no opinion on this ; point}. i By 50 & 51 Vic. c. 10, s. 10 (D.), ■ the Exche(pier Court is given jurisdiction to hear and determine inter alia: " (c) Every claim against the Crown arising out of any death or injury to tlie person, or to the pro- ; perty, on any public work, resulting from the i negligence of any otlicer or servant of the I Crown for damages in respect of a tort (Tas- duties or employment; (d) Every claim ; against the Crown arising under any law of ■ Canada."' * * * In 1,S77 the Dominion Gov- i eminent, became i>ossessed of the property in the City of Quebec, on which tlie Citadel is situated. Many years before that a drain I had been constructed through this property I by the Imperial authorities, the existence ! of which was not known to the officers of the ; Dominion (Jovernment, and it was not dis- covered at an examination of the promises ! in ISSO by the City Engineer of Quebec and ; others. Before 1S77 this drain had Ix'coinc ! choked up. and the water escaping gradually ; loosened the earth, until, in 1S89. a large I portion of the rock fell from (he cliff into a street of the city below, causing great dam- age, for which comj>ensation was claimed from the Government. Held, per Taschereau. Gwynne and King. .T.T., affirming the decision of the Exchequer Court, that as the injury to the property of the city did not occur upon a public work, sub-sec. (c) of the above Act did not make the Crown liable, and, moreover, there was no evidence that the injury was caused by the negligence of any officer or servant of the Crown while acting within the scope of his duties or employinont. 52 CONSTITUTIONAL LAW. Jlild, per Stroug, C.J., and Fouruier, J., that while sub-sec. (c) of the Act did not apply to the case, the city was entitled to relief under sub-sec. (d); that the ^s•ord8 •• any claim against the Crowu " in that suli- sec, witliout the additional words, would iu- clude a claim for a tort; that the added words " arising under any law of Canada " do not necessarily mean any prior existing law or statute law of the L»oininiou. but might be interpreted as meaning the general law of any province of Canada, and even if the meaning be restricted to the statute law of the Dominion, the effect of sec. oS of ")•} & r>l Vic. c. 10 is to reinstate the provi- sion contained in sec. t! of the repealed Act It. S. C. c. 40, whi<'h gives a remedy for in- jury to properly in a case like the present; that this case should be decided according to the law of ()uebec, regulating the rights and duties of proprietors of land situated on dif- ferent levels; and that timler such law the Crown, as proprietor of land on the higher level, was bound to keep the drain thereon in good repair, and was not relieved from lia- bility for damage caused by neglect to do so by the ignorance of its otiicers of the existence of the drain. Hfli}, also, per Strong, C..T.. and Fonvnier, J., that indeiicndently of the enlarged juris- dition confeiTcd by •"(> &: .")1 Vic. c. 1<> the Crown wotild be liable to damages for the injury complained of. not as for tort but for a breach of its duty as owner of the superior heritage, by altering its natural state to the injury of the inferior pro- prietor. City of Quebec v. The Queen . . . . xxiv., 420 10.— Construction of Statute — British North America Act, ss. 112, 114, 115, 110. llS-^n Vic. c. 30 (D.)— 47 Vie c. 4 (D.)— Provincial, Subsidies— Half- yearly Tayments— Deduction of In- terest. By section 111 of the British North .Vmer- ica Act, Canada is made liable for the debt of each i)rovince existing at the union. By sec. 112. Ontario and Quebec are jointly liable to Canada for any excess of the debt of the Province of Canada at the time of the union over .'*()2.,")00,fiOO, and chargeable with 5 per cent, interest thereon: sees. 114 and 115 make a like jirovision for the debts of Nova Scotia and N(>w Brunswick exceeding eight and seven million dollars respectively; and by sec. 110. if the debts of those provinces should be less than said' amounts they are entitled to receive, by half-yearly i)ayments, in advance, interest at the rate .T per cent, on the dif- ference. Section 118, after providing for annual payments of tixed sums to the several provinces for supi>orl of their governments, and an additional sum per head of the popu- lation, enacts that "' such grants shall be in settlement of all future demands on Canada, and shall be iiaid half-yearly, in advance, to each province, l)Ut the Governnu^nt of Caii:ida shall deduct from such grants, as against any provim-e, all sums chargeable as interest on the public debt of that province in excess of the several amounts sti;)ulated in thi.> Act." The debt of the Province of Canada at the union exceeded the sum mcntioued in sec. 112. On appeal from the award of arbitrators appointed to adjust the accounts between the Dominion and the Pr()vinccs of Ontario and tiuebec. //(/(/, afHriuiug said award, that the sub- sidy of the provinces under sec. IIS was pay- aide from tlio 1st of .luly, LStiT, but interest on the excess of debt should not be deducted until 1st .January, liS(i8; that unless ex- pressly provided interest is ju'ver to bi? paid before it accn;cs due; and that there is no exiu-ess provision in the British North Amer- ica Act that interest shall be deducted iu advance on the excess of debt under .^ec. lis. By 30 \u: c. oO (I).), passed in 1873. it was declared that the debt of the Pro- vince of Canada at the union was then as- certained to be .$7:i.OOO.(KS,S.84, and that the subsidies should tiiere;ifter be paid according to such amount. By 47 \'ic. c. 4, in 1884, it was providear]y payments which would have been m.-ide on account of such increase from .Tuly 1st. 1807. to January 1st, 187o. with interest at .") per cent, from the day on which it would Inive been so paid to .Tuly 1st, 18S4, should be deemed capital owing to the respective provinces, bearing interest at ."> per cent., and p.-iyablo after July 1st. 1884. as part of the yearly sub- sidies. Held, affirming the said award. Gwynne, .T.. dissenting, that the last mentioned Acts did not authorize the Dominion to deduct ii;- terest in advance from the subsidies payabli' to the provinces half-yearly, 'nit loave.s sifdt deduction as it was under the British Nort") America Act. Dominion of Canada v. ProcincfS of Ontario and Quebec xxiv., 498 COXSTITUTIOXAI. LAW. 53 11.— Powers of Executive Councillors— " Letter of Credit " — Uatification by Legislature — Oblioations uin'ding on THE I'ROVINCE — DlSCiiETIOX OF THE (joveknment as to the expenditures — Petition of IIight— Negotiable In- strument — '• IJn.Ls OF Exchange Act, ISJiO"— The Bank Act," K. S. C. c. 120. Tlio ProvinciMl Socretnrv of (Jiicbec wrote the followiiij; letter to I)., with tlie ass lit of liis follfatciies, Imt not hciiij; antliorized liy Order in Council: — "J'iii rhoiuiciir de vous informer que le Kouvorneinent fera voter, diuis le Imdjiet snin)lonieiitairo de 1891-02 iin inteni de six niille piastres la il litre d'ueonipte sur rimitrossioii de la. ' Liste des terres d'e la Conronne. <-on- eedees depiiis 1703 jusiin'au '>1 deeembre 1S!)0,' dont jo vous ai conlie I'iinjiression dans une lettre en date du 14 .T;iiivier, IS'.tl. Cette soniuie de six niille piastres sera payee an porteur de la presente lettre, revetue do votn> eiidossenient." I), indorst'd the let- ter to a liank as seeurit.v for advances to en- able him to do the work. IM(J, aliiniiii!}; the .iudgmout of the Court of Queen's Bench, that the letter oousti- lutned no contract between I), and the nt with D., the Government not be- ini: oblijred to expend the money though authorized to do so, and the vote containing nr> reference to the contract -with D., nor to the said letter of credit. JM(t, also, that a bank cannot deal in such securities as the said letter of credit which is dependent on the vote of the Ijegislature, and therefore not a necrotiable instrument within the Bills of Exchange Act of 18i)0, or the Bank Act, R. S. C. c. 120, ss. 45 and CO. Thf Jacques Cartier Bank v. The Queen, xxv., 84 12.— Powers of Provincial Legislatures — Direct Taxation — >L\kufacturing and Trading Licenses — Distribution of Taxes— Uniformity of Taxation — Tt.") & .">(') Yic. c. 10 AND .5(5 Vic. c. 15 (Q.l— British North America Act, 1807. The provisions of the Quebec statute, 55 & ~)(\ Vic. c. 10. as amended by 50 Vic. e. 1.5. do not involve a regulation of trade and commerce, and the license fee thereby imposed is a direct tax, and intra virrs of the Legislature. The license reQiiired to be taken out by the statutt' is merely an incident to the coUectic'i of the tax, and does not alter its character. Where a tax has been imposed by com- petent legislative authority, the want of uni- formity or eijuality in the apportionment of the tax is not a ground sullicient to justify the courts in ileclaring it unconstitutional. Hunk of Turnnlo v. LamUc (12 Ajip. Cas. 575). followed. MIoniiii-drnnal v. The Qucu Jii- auraucc Co. CJ App. Cas. 1000), distinguished. Fortkr v. Lanihc xxv., 422 13. — Province of Canada — Treaties with Indians— Surrender of Lvdian Lands — Annuity to Indians — Kevenue FRO.M Lands— Increase of Annuity — Charge upo.v La.nds— B. N. A. Act, s. 100. In 18.50 the late Province of Canada en- tered into treaties with the Imliaus of the Lake Superior iiiid I^ako Huron districts, by which the Indian lands were surrendered to the government of the province in con- sideration of a certain sum paid down and an annuity to the tribes, with a provision that " should nil the territory hereby ceded by the Indians at any future period luoduce such an amount as will enable the govenment of this province, without incurring less, to in- crease, the annuity hereby secured to them, then, and in that case, the same shall he augJiiented from time to time." By the B. X. A. Act the Dominion of Canada assumed the debts and liabilities of the Province of Canada, and sec. 100 of that Act jirovided that all lands, etc.. belonged to the several provinces in which the same were situate •' sub.iect to any trust existing in lespcct thereof, and to any interest other than that of the province in the same." The lands so surrendered are situate in the rovince of Ontario, and have for some years produced an amount sutticient for the iiayment of an increased annuity to the Indians. The Dom- inion fJovernment has paid the annuities since 1S07 (from 1874, at the increased amount), and claims to be reimbursed therefor. Ifrhl, reversing the said award, Ow.vnne and King, .T.T.. dissenting, that the T>rovision in the treaties as to increased annuities had not the effect of burdening the lan tickets that were to be received in payment of ferry service according to a prescribed tariff, and when expended could bo renewed by further snb- sciptions for shares ad infinitum. The club supplied their ferryman with a list of mem- liership, and established and operated their ferry, without any license, within a short distance of one of the licensed ferries, there- by, as was claimed, disturbing the licensee in his exclusive rights. Held, that the establishment of the clnb ferry and the tise thereof by members and otliers under their club regulations was an infringement of the rights under the license, and that the licensee could recov<t. discussed. The property of tne Crown mjiy bi> de- dicated to the public, and a presumption of dedication will arise from facts sullicicnt to warrant such an inference in the case of a sul).iect. By 2.'> Vic. c. 2, s. '.'<'> (Can. I. power was given to the Crown to dispose of and grant water lots in rivers and other navi- gable waters in Upper Canada, .-md the power to grant the soil carried with it the power to dedicate it to the puldic use. The user of a bridge over a navijjable river for thirty-five years is sutlicient to raise a presumption of dedicii tinn. If a pro- vince before confederation had so dedicated the bed of a navigable river fcr the purposes of a l)ridge that it could not have objected to it as an obstruction to navigation, the Crown as representing the Domini(ui, on as- suming control of the navigation, was bi. md to permit the maintenance of the bridge. An obstruction to navigation cannot be justified on the gr are not inconsistent witli sections 'M to 40 indnsively of " Tlie Nortli-Wost Territories Act," -which exempt from liability for her husliand's debts the personal earnings and business i)rt>tits of a married wi ; Man. L. U. '.V.iK distinguished. Conger v. Kennedy xxvi., 39« 17.— Canadian Waters— Property in Bi:ds — ruBLic Harbours — Erections in Navigable Waters — Interference WITH Navigation-— Ric.HT.s op Fishing— I'owER TO Grant— Riparian Pro- prietors— Greiat Ijakes and Navigable Rivers— Operation of Magna Charta -Provincial Legislation — R. S. O. (1SS7) c. 24, s. 47— .">." Vic. (0.(. c. Kt, ss. .". to i:?. 10 AND 21— R. S. (}. Arts. 137". to 1378. The beds of public harbours not granted before Confederation are the proju'i-ty of the Dominion of Canada. Jlolmaii v. Green (tj Can. S. C. R. 7()7i. followed. The beds of all otln-r waters n.c so granted belong to the respectiv(> provinces in which they are situate, without any distinction between the various classes of waters. Per Gwyune, J. The beds of all waters are subject to the .iurisdiction and control of the Dominion Parlianient, so far as re- quired for creating ftiture harbours, erecting beactnis or other public works for the benefit of Canada under the Rritisli North America Act, s. !>*J, item 10, and for the adminis- tration of the fisheries. R. S. C. c. 02. '• An .Vet respecting cer- tain works constructed in or itver navigable rivers," is intra/ vires of the Dominion Par- liament. The Dominion Parliament has power to declare what shall be deemed an interference with navigation, and to require its sanction to any work in navigable waters. A province may grant land extending into a lake or river for the purpose of there being built thereon a wharf, w^irehouse or the like. ' and the grantee on obtaining the sanction of the Dominion may build tliereon subject to conipliaiice wiUi R. S. C. e. 02. Riparian proprietors before Confederation had an exclusive right of fishing in non- navigable, and in navigable non-tidal lakes, rivers, streams and waters, the beds of which had been granted t,) them by the Crown. Hohertnim v. The Qim^i, ((> Can. S. C, R, 52 1, followed. The rule that riparian proprietors own ad midiiim jUiiin (Viuir does not apply to the great lakes or navigable rivers. Where lieds of such waters have not been granted the right of fishing is public, and not ; restricted U> waters within the ebb and How \ of the tide. \ Where the iirovisions of Magna Charta are not in force, as in the I'rovince of Qtiebec, the Crown in right of the province may grant exclusive rights of fishing in tidal waters, except in tidal public harliours in which, as in public harbours, the Crown in right of the Dominien may grant the beds and fishing rights, (iwynne, J., dissenting. Per Strong. C..T.. and King and Girouard, •T.T. The provisions of Magna Charta relat- ing to tidal waters would be in force in the provinces in which such waters exist (except Quebec) unless repealed by legislation, but such legislation has probably been passed by the variotis provincial Legislatures: and these provisions of the charter so far as they affect public harbours have been re- pealed by Dominion Legislation. The Dcuninion P.irliament cannot author- ize the giving by lease, license or otherwise the right of fishing in non-navigable waters, nor in itavigable waters, the beds and banks of which are assigned to the provinces under the British North America Act. The legislative authority of Parliament under section 01, item 12, is confined to the regulation and conservation of sea-coast and inland fisheries under which it may ref Marine and Fisheries, may impose fees for such license, and prohibit .'Ul fishing without it. and may pndiibit particubT classes, such as foreigners, unconditionally from fishing. The license as reqtiired will, however, be merely personal conferring quali- fication, and give no exclusive right to fish in a i)articnlar locality. Section 4 and other portions of Revised Statutes of Canada, c. 0."). so far as they attenii)t to confer exclusive rights of fishing in jirovincia! waters, are ultra rlrrx. G Wynne, .T.. contra. CONSTITUTIONAL LAW. IVr (Jwyiuie, .1. rrovincial Lt>;iMlalure» liiivi- iiK jurisiliction to ilciil with tislit-ries. \\'liat(V<'r riiincs witli'm tliat icriii is (:iveu ti» tin- 1 timiiiiidii liy tin- IJrltiHh Norlli Aiiicr- irn Art. s('(tii»ii '.»1. item 1-, including tin' t'l'aiit of icascs or lict'iist-s lor cvciusivo lisli- iiiK. I'or Stroll;;. <"..!.. Tascliceau. Kiiii: and • iiroiianl. .1.1. U. S. (). v. 21. s. IT. an. I ss. .^ to i;j anil lit to 21 of the Ontario Act of 1^!>2. arc intra riirx, Imt nia.v be su|it'rs(Ml«>il li.v 1 loiiiiiiioii IcKislafion — K. S. to I.'ITN are also iiitni rin:". Vi'V , .7. U. S. <>. c. 24. s. 47. is ultra rhrK so far as it assumes to authorize tin- laiiil covtrcd with water witliiii i)nl(lic liarlioiirs. 'I'lic niaruiiis of ii;ivi;:al>le rivers aiul Lakes niiiy lie solil if tliere is an iiniierstanilinK with tile Itnmininn <;overn!nent for iirotec- tion av'iiinst interferenee with navipat'on. The Aet of 1N!I2 ami H. S. (^ jirts. i:J7."t to i;{7S are valid if iiassed in aid of a Dom- inion Aet for protei'tion of fisheries. If n:)t they .Mrt' ultra virrs. In. )•('■ JunmtMif)!! orrr Prnriuridl Fisheries, xxvi.. 444 IS. — Convention' of ISIS — Constrtoticv of Treaty — CoNsTitfCTiON of Statute — Fisheries — Three Milk T.,imit — FoHEiGN Fishing Vessels—" Fishing " — .".!> Geo. IIL, c. 38 (Imp.)— R. S. C. cc. 04 & !).-. Where fish hail been olielosed in a seino more than three marine miles from the coast of Nov;i, Scotia and the seine jmrsed no and secured to a foreipn vessel, and the ves- sel was iifterwards seized with the seine still so attached within the three mile limit, her crew beinp then eniraseil in the act of bailin>; the tish out of the seine: n,l(l. Stronp. r..T.. and Owynne. .T.. dissentinir. afiirmin^ the decision of the court below, that the vessel when so seized was " fishinjr " in violation of the convention of 181S. betwei-n Great Britain and the I'nited States of America and of the IniDerial Act ."!) (Jeo. III., c. ;{8. and the Kevised Stat- utes of Canada, c. 04. and consequ»'ntly liable with her cargo, tackle, rijrgiii};. nii- parel. furniture and stores to be condemned and forfeited. The Hhip "Frederick Garing, Jr." v. The Queen xxvii.. 271 10. — Criminwl Code. s.s. 27.">. 27 and 270 of the Criminal Code. 1S02, respecting the ofifence of b-gamy, are intra rirm of the I'arliameut of Canada. StroiiK, C..T., contra. 'I he CriiiiiMil Code, ISU^, Sn lions Kehiting to Hi(jumv xxvii., 4iil 20.— B. X. A. Ac-T, s. 142— Award of 1S7— Trust Created hy- lOuKECT OF Co.NFEDERATION U.N TlU'ST. The arbitrators aiipointed in lS7tl, mider s. 142 of the P.. N. A. Act, were authorized to •■ divide ■' and '" adjust " the accounts in disi)Ute between the Dominion of t!amida and the rrovinces of Ontario and . s. .'{ (Can.), one million acres of the public lands of the Pro- vince <)f Canada were to be set apart to be sold, and the ]iroceeds a:ii)lied to the crea- tion of the " Common School Fund." provided for in section one. The l:inds so set apart were all in the present I'rovince of Ontario. Ifrld. that the trust in these lands createil by the Act for the Common Schools of Can- ada did not cease to exist at Confederation. So that the unsold lands and proceeds of sales should revert to Ontario, but such trust continued in favour of the Common Schools of the new Provinces of Ontario and Quebec. In the agreement of reference to the arbi- trators appointed under Acts passed in 1801 to adjust the said accounts (piestions respect- ing the T'pper Canada Improvement Fund Were excluded, but the arbitrators haiV to de- termine and award u])on the accounts as ren- dered liy the r)omiiiion to the two provinces up to .Tamiary, ISS!). }fchool Fund and Lands . . xxviii., 609 CONTEMl'T OF CUUKT-CONTRACT. 57 CONTEMPT OF COURT. ArPEAi. — .IrmsDHTiD.N — Cuiminal riio- rKKiuNO Final .Iiugmknt-R. S. C. c. 1 :!.-., s. (is. riiiitt'iiM't "f <'""'■» i« ••» rriuiiniil procecd- mn, iiinl tiiiless it <-iinies within s. <'>S of tiio .Siiprt'iiic rmirt Act, tin aiiiual does not lit- to tills ("oiirt from a jinlnineiit in iirowoilinjts llifri'l. "•'••I. luljowcd; In n o'lirirn (Iw Can. S. C. U. U'"). rcfi'iri'd to. In in-otct'dint's for coiitt'iniit of conrt by nttacliim lit until scntcinc is lininoiinced tliiTc is no " liiial jiidjiiiicnt " from wliicti an aiipcal i-oilld in- lirnu^'ht. ICIUm v. The (Jiniii xxii., 7 CONTRACT. 1.- CoNKTIlfCTlo.V OF AlJHKKMEN'T — WaY — Kk.movai. ni.- TiMUKK — Nkckshaky. 'I'lic jilaiiitiff was tlte owner of a faiin, of iiliiiMt a mill' ill lircadtli and livc-sixtiis of a mile in lcii;rlii. Alioiit Iwo-tiiiids of tlic farm was iicavil.v Moodcil, and tlie rest of it was oii'arcd and ciillivated. The dff.Midanr lic- (•ariie till- imrcliascr of the trees iiinl liinii(>i' u;iiiii tlie land under an aitrerment which |iiovided. anion}: oilier IhiiiKs, that the imr- cliascr shoiilil have " full liberty to enter In- to iiikI ni>on the said lands for the purpose of reni<)vin)r the trees and timber, at such times and in such nninner as he may think proper," Imt reserved to the phiintilT th.' full enjoyment of the land " save and in so far as may be necessary for the enttiiiir nnl rcmovinj; of the trees and timber." To havr> reiiioveil the tinilier throu};h the wooded land at the time it w:is removed, wonhl have in- volved an exjienditiire which would have jiiissibly .imoiinted to a sacrifice of the greater portion of the timber. Hfhl, allirminj: the jiidtrment of tlu> conrt below, that the defendants had a rijrht to remove the timber by the most direct and availjible ronte, provided they acted in irood faith and not nnreasonably. and the reser- vati(m in fjivonr of the pl.iintitT did not mini- mize or modify the defendant's riirht. nnder the ceneral jrrant of the trees, to remove the trees across the cleared land. Gwynn^ J.. dissentinjr. ftrphnis V. Cordon xxii., fit 2.— Sat.r of Land — FtTiLDiNO TIestrictions — Description — Street Boi-xdaries — rONSTRUCTION OF rOVENANT. The owners of n block of land in Toronto, bounded on the north by Wellesley Street and west liy Sumach Street, entered into an agreement with B.. whereby the latter agreed ' to purchase a part of said block, which waH vacant wild land, not divided into Inis, and contaiiriiiK neither buildings nor streets, tlutUKh a by-law had been passed for the con- st rnciion of a street immediately south of it to be called Allleliu Street. The agreement containeroperly purchased, which fronted on the two streets north and west of it resjieclivcly, and the vi'iidors iifrreed to make similar stipnlatimis in any sale of land on the south side of Weliesley Street, produced. A ileed was afterwar.Ia e.veented of said land imrsnalit to the a>;ree- Mieiit w liiih eoiitaiiiecl the followiiij; c .ven- aiit: '"And the >,'rantors ♦ * ei.veuanl with the grantees * ♦ that in case the> niiike sale of an.v lots fronting; on Wellesley Strj'ct or Sumach Street on that part of lot 1, in tlie City of Toronto, situate on the south side of Wellesley Street and east of Sumach Street, now owned liy them, that I they will convey the same subject to the i same biiildin;,' aj-'ri-emeiits or c(Uii!itions " (as in the aureeineiitl. The vendors aflerwards sold a portion of the rem.'iininu; land front- in); on Amelia Street, and one hnndred feet east of Sumach Street, and the purchaser beinj; about to erect thereon a building for- bidden by tlie restrictive covenant in tlie I de€'d, B. brought an iiction against his ven- ■ dors for breach of said covenant. <'laiming that it extended to the wliole block. llthi, athrmiiig the decision of the ('ourt of Appeal. t. therefore, literally ^ within the covena,nt of the vendors. IhimouUii V. Biirfoot xxii.. 120 ."^.-'-Sai.-k of Deals — Contract — Breach of — Delivery — Acceptance — Quality — Warranty as to — Damages — Arts. 107.''.. 1473. 1.^07 C. C. In a contract for \ho purchase of deals from A. by S, rt nl. merchants in London, it was stipulated, intrr nlia. as follows:— " Quality--Sell(>rs guarantee (piality to be equal to the usual Etchemin Stock, and to 1>e marked with the Beaver Brand." and the 5S CONTRACT. niodo of delivery was f. o. h. vessels at Que- bec. ;ui(l iiiiyiiieiit \>y limits, payable in Lon- don 1'2H days sight from date of sliliiment. The deals were shipiH'd at Quebec on board vessels owned by V. A: Hros., at the nqiiest of I*, tt 1'., intending purchasers of the deals. When the deals arrived in London Ihey were inspected by S. vt al., and found to be of inferior quality, and S. et al., after protest- ing sold them at reduced rates. In an action in damages for breach of contract: Jlrhl, reversing the judgment of the court below, that the delivery was to be at Que- j bee, subject to an acceptance in London, ; and that the purchasers were entitled to re- } cover under the express warrantj- as to qualit.v, there being abundant evidence that tiie deals were not of the agreed (puility. Strong, C.J., and Sedgewick, J., dissenting. Stetrart v. Alkinson xxii., 315 4.— COXVEYAKCE— IlLKGAL OR ImMOraT. CoN- ; SIDERATION — INTENTION' OF (JraNTOR— Character of Grantee — Pleading. A contract for transfer of property with intent by the transferer, and for the pur- pose, that it shall be applied b.v the trans- feree to the accomplishment of an illegal or immoral i)urpose is void and cannot be enforced; but mere knowledge of the trans- feror of the intention of the transferee so to apply it will not void the contract unlesg, from the p.-irticidar nature of the property, [ and the character and occupation of the i traTisferee, a just inference can be drawn ! that the transfeior must also have so in- tended. Judgment of the Tourt of Appeal attirmed, ; Taschereau. .T., dissenting. Clark V. Ilaijar xxii., 510 5. — Prtition of Right — \(\ Yic. c. 27 (Q.) ' — Final Certificate of Engineer- Extras — Practice as to Plea :n Bar not set up. A contract entered into between Her Ma- jesty the Queen, in right of the Province of Quebec, and S. X. Cimon for the con- struction of three of the depiirtmeiital build- ings at Quebec, contained the usual clauses that tlie balance of the contract price was not ]>ayable until a final certiticate by the engineer in charge was delivereil. showing the total amount of work done, and mater- ials furnished, iind the cost of extras and the reduction in the contract price upon any al- terations. There was a clause providing for the final decision by the Commissioner of I'ublic Works, in matters in dispute upon the taking over or settling for the works. The Commissioner of Pulilic Works, aftir hear- ing the parties, gave his decision that noth- ing was due 'o the contractors, and the en- gineer in charge, by his final certificate, de- clared that a balance of $ol.3li was due upon the contract price, and .$42.84 on ex- tras. The suppliants by their petition of right claimed iiilvr alia ^~i),ii{\0 due on ex- tras. The Crown pleaded general denial ami pa.vment. The Superior Cuurt granted tlie suppliants .$74.20. the amount declared to bi> due under th(> final ccrtific.'itt' of tlie engin- eer. On appeal the Court of (.(neen's Bench for Lower Canada (appeal side) increased the amount to !!«1.3,1U8.77, with interest and costs. Jh'ld, reversing the judgment of the court below, and restoring the judgment of the Superior Court, that the suppliants were bound by the final certificate given by the engineer under the terms of the contract. Per Fournier and Taschereau. .T.T.. disseni- ing. that as the final certificate had not been set up in the pleadings as a bar to the actioti, and there was ;in adnussion of record by tlii' Crown that the contractor was entitled to 20 per cent, commission on extras ordered and received, the evidence fully justified the finding of the Court of Queen's Bench that the commission of 20 ]!er cent, was still due .-ind unpaid on .$(i.">.S.')7.0!) of said extra work. The Qiifcn V. C'tmnii xxiii., 02 ().— C0NSTRITT10>f OF CC)NTnACT — StREET Railway — Permanent I'ave.mbnts — Arbitration and A^vard. The Toronto Street Railway Company was incorporated in ISdl. and its franchisi' was to last thirty years, at the expiration of which period the City Corporation coidd as- sume the ownership of: the railway and pro- perty of the ciunpan.v on payment of the value thereof, to be determined li.v arbitr;i- tion. The compan.v was to keep the road- way between the rails, and for eighteen in- cites outside each rail paved and macadam- ized and in good rt^jiair. using the same ma- terial as that on the remainder of the street, but if a jiermanent pavement should be adoiited by the corporation the company was not botinil to construct a like i^avement be- tween the rails, etc.. but was onl.v to pay the cost i)rice of the same, not to exceeil a specified sum i>er yard. The Cit.v Corpor- ation laid upon certain streets traversed by the company's railway permanent pavements of cedar blocks, and issued debentures for the whole cost of stich works. A by-law was then passed, charging the comjuiny with CONTRACT. 59 its iiortiou of such costs in the manner and I'm- the iieriod that adjacent owners were as- sessed, under the Municipal Act for local imiirovenients. The coniiiany paid the sev- eral rates assessed up to the year l.SSortions of streets oc- cupied by the company's track so long as the franchise of the company to use the said streets now extends." The agreement pro- vided that it was not to affect the rights iif either party in respect to the arbitration ti> he had if the city took over the railway, nor any matters not specifically dealt with therein, and it was not to have any oixt- Mtion " beyond the period over which the afiiresaid franchise no-w extends.*' This ngreenient was ratified by an Act of the T.egislature passed in ISOO, which also ])ro- vided for the holding of the said arbitra- tion, which having been entered upon the <-ity cljiimed to be paid the rates imposed upon the company for construction of per- manent pavements for ^^hich debentures had been issued payable after the termination of the franchise. The arbitrators having refus(>rt to allow this claim, an action was brought b.v tlie city to recover the sai'l amount. IfiUK affirming the decision of the Court of Appeal, that the claim of the city could not he alloweoen inserted c.r mnjmi (■nutria and could not do away with the ex- Iiress contract to relieve the company from liahiiity. IMil. further, that by .an Act p.issiMl in 1S77, and a by-law made in pursuance there- of, the company was only assessable as for local improvements, which, liy the Muni- cipal Act, constitute a lien upon the property assessed, but not a i)ersonal liability upon the owners or occupiers after they have cciised to be such; therefore after (he ter- miii'ition of the franchise the compan.v would not be lial)lc for these rates. Thf City of Toronto v. The Toronto Street liy. Co xxiii.. I'.tS 7. — Klectric^ Pi^.\xt — IiEferexce to Ex- perts i!Y ('ouRT — Adoption' of Report BY TWO CotTRTs— -Appeal, on Question of FAfT— .VRniTR.\rioN Clause in Con- tract — Right of Action. The Royal Electric Company having sued the Cit.v of Three Rivers for the contract lirice of the installation of a complete elec- tric plant, Avhic'h. under the terms of the contract, was to be put in operation for at least six weeks before payment of the price could be claimed, the court referred the case to exjierts on the fjucstion \\ hether the contract had becMi substantiall.v fulfilled, .and they fof.nd that owing to certain defects ilie <-ontract harl not been satisfactorily com- Iiletcd. The Superior Court adopted the finding of fact of the experts, .and dismis- sed the action. The Court rif Queen's Bench for Lower C.anada l^appeal side}, on an ap- peal affirmed the judgmiMit of the Superior Court. On an appeal to the Supreme Court of Canada: Held, affirming the judgments of the courts below, that it be-og found that the appel- lants had not fulfilled their contracts within the delay specified, they could not recover. IlrhL also, that when a contract provides that no payment shall be due ui\lil the work has been satisfactorily completed ii claim for extras, made under the contract, will not be exigible prior to the comiiletion of tlie main contract. Qiurre: Whetlier a right of action exists altluHigli a contract contains a clause that all matters in dispute lH>tween the parties shaP be referred to arbitration. Quehrr Street liaV- iraii Coiiipauij v. City of Quehce (10 Q. L. R. 'W.">), referred to. RO'jfiil Blectrie Co. v. Corporation of Three Kiicrs xxiii., 280 S. — Action en Oar.a.nt!E — Contract — Sun- contract — Legal Connection (Con- nexitr). The appelliuits. who had a contract with the City of Three Rivers, to supply and se" up a complete ele<'tric plant, sub-let tiv the respondents the part of their engagement 6o CONTRACT. w}iicli related to ilie st(>am en^'iiie and lioil- or^. Tile orifjinal coiitiact witli the City of Throe Kivers emliraec'd conditions of which the defendants had no kni)\vled;,'o, and in- •t-luded the supply of other totally different plant from that which they suliseuuently imdertook t<) supply to the appellants. The Appellants, upon conipletion of the works, having' sueil the City of Three Uivers fnr the ajrreed contract price, the city jilcaded that the worlj was not completed, and set up dcfcets in the steam euirini and boilers, and the appelliints thereupon lu'ou;:ht an ac- tion c;i tjtinnitir siiniilv a.uainsl the respond- ■ents. Held, alHrniin? the judgment of the courts helow. th.Mt there was no lejiiil connexion {cnnnr.rit<\ <>xistin]i; lietween the contract of the defendant and that of the i)laintifrs with the City of Three Uivers, upon which the princiiial demand was based, ami therefori' the action contractor could d at that pb-ice. and was not bound by the act of the (Jovernnu'nt Knyineer in ajrreeinj; to such insiiection, the ctween that Government and the (Jovernment of Ontario. The application was jrranted on the condition that the appli- I'aiit should pay certain jirouiid-reius and bonuses, make surveys and build a mill. The claimant knew of the dispute wl.ich was at the time open and public. He paid the rents and bonuses, made the surveys and enlarged a mill he had previously buiit, which was accepted as equivalent to buildinfi a new one. The dispute was d(>terniinod anses were current, and consequently the Government could not renew them. The leases were granted under sections 4!) and HO of 4t> Vic. c. 17. and the reiruhitions made under thi' Act of l.S7!>, pro- vided that " the li-ense may be renewed for another year subject to such revision of the annual r(>ntal and royalty to be paid there- for as may be fixed iiy the Governor in Coun- cil." In a claim for damases by th(» licensee: — Ilf}(l. 1. Orders in Council issued pursuant to 4t! Tic. c. 17. ss. 40 and oO. authorizing the Minister of the Interior to grant licenses to cut timber did not constitute contracts be- tween the Crown and proposed licensees, such Orders in Council being revocable by the Crown until acted upon by the granting of licenses under them. 2. The right of renewal of the licenses was o])tional with the Crown, and the claimant was entitled to recover from the Governmenr only the moneys paid to them for ground rents and bonuses. Bv.Unrr \. The Qticcn xxiii., 488 12.— Sale of Goods ry Sample— Place of Inspection — Delivery— Sale Through Brokers— Agency— Acquiescence. Where poods are sold by sample the jda^e of ilelivery is. in the absence of a special agreement to the contrary, th? place for in- spection by the buyer, and refusal to inspect ihcre when opjiortunity therefor is jifforded is a breach of the contract to purchase. Evidence of mercantile usage will not be allowed to add to or affect the construction of a contract foi sale of goods unless such custom is general. Evidence of usage in Canada will not affect the construction o' a <-ontract for sale of goods in X(>w York by parties domicileil there, unless the latter arc CONTRACT. 6i shown to have been cognizant of it, and can be iircsunied to have made their contract witli reference to it. If ]iarties in Canada contract to imrchaso poods in New York tlirougk brolcers, first l>y tflejrrani and letters, and conudeted by ex- (•lianj:e of lionght and sold notes, signed l.y the brokers, the latter may he regarded as agents of the purchasers in Canada; but if not, if the purchasers make no objection to the fornt of the contract, or to want of authority in the brokers, and after the goods arrive refuse to accept them on other grounds, tlh'y will be held to have ratified the contract. Tiriit yalhy U'oo//mi Mfg. Co. v. Oc'richs, xxiii., US'J 13. — CoxTRACT OP Sale— CoNTRE Lettre — Pri-ncipal, and Agent — Coxstructiom OP Contract. A sale of property was controlled by a writing in the nature of a coiitrc UHtrr. by which it was agreed as follows: " the vendor in cdusideration of the sum of .$2,940 makes and executes this day a clear and valid deed in favour of the purchaser of certain pro- licrty (therein described), and the [lurciiaser for the term of three years is to let the ven- dor have contnd of the said deeded property, to manage as well, safely and properly us ho would if the said property was his own, and bargain and sell tlie said proi)erty for the best price that can be had for the same, aud pay the rent, interest and purchase money when sold, and all the avails of the said propertj- to the purchaser to the amount of .$:i,!>40. and interest at the rale of eight per cent, per annum from the date of these presents. an. — CON.STRUCTION OV DeED — SaLE OP Phosphate Mining Bights— Option to Pi'rchasb othf.r Mi.n'erai.s Found While Working— Transfer op Rights. yi. bv deed sold to W. the phosphate min- ing rights of certain land, the deed contain- ing a iirovision that " in cas(> the s.iid pur- chaser in working the said min^s should find other minerals of any kind he shall have the privilege of buying the same from the said vendor or representative by paying the price set upfin the same by two arViitrators, ap- pointed by the parties." W. worked the 62 CONTRACT. l)li()S]ili,'ite mines for five years, anil then (lisfontiniicd it. Two years later lie sold his mining rights in the land, and by various eonveyanees they were finally transferred to 15., eaeli assignment purporting to eonvej- " all mines, minerals and mining rights al- ready found or ■which niiiy hereafter be found " ou said Innd. A year after the transfer to 15. tlie original vendor, M., granted the exclusive riglit to work mines and veins of mica on said land to W. <5t Co.. who priicceded to develop the mica. li. then <'lainn'd an oi)tion to purchase the mica mines, under the original agreement, and deinjinded an arliitration to lix the price, which was refused, and she brought an ac- tion to compel ^I. to appoint an arbitrator and for damages. Uchl, aflirmiug the decision of the Court of Queen's Hene assigned to him V>y, or required during the absence, disability or unavail- abilit.v of the chief examiner. After L. had served for four years it was found that his methods in holding examinations were not acceptable to applicants, and he was re- quested 1o resign, which he refused to do. r()niised him all the examinations of Freueh Canadian applicants for insurance, lie also alleged that he had been indu<'ed to insure his own life with the comiiany on the under- standing tliat the examination fees woukl be more tlian suilicient to pay the premiums, iind he asked for r<'paymeut of amounts paid by liini for siudi insurance. 7/(7(7. allirniing tlio decision of the Court of (Queen's Bench, that by the contract mad-' with ij. the comi)auy were only to send him such cases as they saw tit, and could dis- miss him or api)oint other examiners at their Iileasnre: that the manager had no authority to contract with L. for any emi)loynu'nt other than that si)ciHed in his commission; and that he had no right of action for rci)ay- nicnt of his premiums, it being no condition iif ills enlplo.^meut that lie should insure his life, and there being no connection l)etween the contract for insurance and that for em- ployment. Lnhrrgc v. The EqtiitaWe Life Asaurancc Society xxiv.. 595 19.— S.M.E OF TiMnER— Delivery — Time for Paymext — I'rem.vturr Action. By agreement in ^vritiug, I. agreed to sell and the V. II. L. Co. to purchase timber to be delivered " free of charge where they now lie within ten days frinn the time the ice is advised as clear out of tin- harlionr so that the timber may be counted. ♦ * * Settle- ment to be finally made inside of thirty days in cash, less 2 per cent, for the dimension timber which is at .Tohii's Island. Held, aflirming the decision of the Court of Aiii>eal, that the last clause did not give the purchaser thirty days after delivery for paynu'nt: that it provided for delivery by vendor and payment by purchasers within thirty days from the date of the contract: and that if i)ur(dmsers accepted the timber after the expiration of thirty days from such date, an event not provided for in the con- triict. an action for the price could l>e brought immediately after the acc-eptance. Mitoi-m Ilurhour Lumber Co. v. Ii'irin. xviv., r.07 20.— CoKTRArT— BriLDINC. OF ExGINE AND Boiler — Time for Completion — Damages- CoNSTRi-cTioN of Contract, The action was for the contract price of building an engine. and boiler for defendants (appellants), and the defence was that the Work was not done within the time pro- vitled for in the <-ontraet, and that defen- dants were entitled to deduct .1-0 a day for each day's default in compli-tion, as the agreement allowed, the balance being paid into court. The trial .judge held plaintiffs entitled to riM over, finding that the delay was occ;;sioned liy ilefeiidants, but he de- ducte Court of Appeal for Ontario (21 Out. App. K. KjOl, restored the original judgment, and allowed plaintiffs the amount deducted at the trial. The Supreme Court of Canada atliniii d th:^ judgment appealed from, licing of opinii ii tliat the delay was caused by the defendants themselves, and that the Court of Apjieal rigiitly lield plaintiffs entitled to recover the full ((Jiitract jirice. Tlir French Hirer Tufj Co. v. The Kcr' Engine Co., 11th March, 1S95 xxiv., 703 21. — Correspondence — ('ARRiAGa of Goods — Transportatiox Co. — CAitRiACE over Connecting Lines — Bill of Lading. Where a court has to find a contrar:t in a correspondence, and not in one particular note or memorandum formally signed, the whole of what has passed between the part- ies must be taken into consideration. i/i/«- ■snj V, Hitnie-Pnyne (4 Apj). Cas. 311), fol- lowed. A shipping agent cannot bind his prin- cipal by receipt of a bill of lading after the vessel containing the goods shipped has sailed, and the bill of lading so received is not a record of the terms on which the goods are shipped. Where a shipper accepts what purports to be a bill of lading, under circumstances wliich would lead him to infer that it forms a record of the contract of shipment, he can- not usuall.v, in the absence of fraud or mis- take, escape from its binding operation mere- ly upon the ground that he did not read it, but that conclusion does not follow wiiere the document is given out of the usual course of business and seeks to vary terms of a prior mutual assent. Tascliereau, .T., dissented on the ground that the correspondence in the C!is;> did not contain the contract reli<>d on, and that the injur.v to the goods for which the action was brought took place while they were not under the control of the company. Th« Norih-uf^st Transportation Co. v. J/r- Kenzie xxv., 38 64 CONTRACT. '22. — Constitutional Law — I'oweks of E.\f:cuTivK Councillors—" Letteu of Crkuit " — Uatification hy Legisla- Tup.v:— OsLiGvrioNS Bini.ing on the 1'kovinc-e — Discretion of the Covekn- ment as to the Expenditure— Peti- tion OF Uioht— Negotiable Instru- ment—" Bills of Exchange Act, 18U0 "' —"The Bank Act," U. S. C. c V2{). The I'roviiicial SetTi'tary of Ciiiebfc wrute the I'ollowiiiK letttr to 1)., with tli»> assent of his eoIlt'SiKiies, liut nut lioiiij^ autlmiized by Onler in Council: ".I'ai I'luinneiir de voiis informer (iiie le f,'ouveriieineiit fern voter, dans le luid^iet supplenientaire de lS:il-St2, iin item dc six niille iiiastrcs ([iii vons rferout payees immediatemiiit apres la >essi( n, et oela il titre d'accoiniite siu- rimpressiiju de la ' Liste des terres dc lii Couronne concedfifs depuis 17(i:i justiu'an ol dei-i'inbre 1S!M».' dont je vous ai eontie I'impresslon dans une lettre en date du 14 Janvier 18U1." "Cite soinme de six mille ])i:istres sera payee au portenr de la i>r»''sente lettre, revetue de votre endossement." l>. indorsed the letter ti, a bank as security for advances to enable him to do the work. Hvld, atiirmiiiju' the juilfrnicnt of the Court of Queen's Bench, that the letter constitu- ted no contract between I>. and the (Jovern- ment; that tlu> rroviiicial Secretary had no power to bind the Crown by Ids signature to such a document: and that a subsetpient rote of the legislature of a sum of money for printiufr " liste des terres dc la Cou- ronne." eti-., was not a r;ititi( ation of th(> ajfreemeiU with D.. the ^Joveninitnt not beiiur (dilijred to expend the money thouph authorized to do so, and the vote contain- in>r no reference to the contract with I>.. nor to the said letter of credit. The Jacques Cartier IlaiiU v. The Queen, xxv.. 84 !23. — Insurance Against Fire — ^Iittual In- surance Company — Notice Keiecting Application — Statutory Conpitions— R. S. O. (1SS7) c. 1(57— Waiver— EsTopprn. — EviDEXcE. B. ai);)!ieil to a mutual company for insur- sance on his proiHTty for four years, giv- ing an undertaking to pay the n mounts re- quired from time to time and a four months' note for the first i)remium. lie received a receipt beginning- as follows: " Received from B. an undertakinjr for tlio sum of $4050, be- ing the prendnm for an insurance to the ex- tent of .$1,500 on the property described in his application of this date," and then pro- viding that the comnany could cancel the contract at any time within fifty days by ! notice mailed to the applicant, and that iioii- j receipt of a policy within the lil'ty days, with j or without notice, should be absolute evi- ! deuce of rejection of the application. No ! notice of rejection was sent to H.. and nu policy was issued within the said time, whicli ; expired oii .March 4tli. ISUl. On Apr.l I7t:i, '. B. received a letter from the nianagtr ask- ing him to reudt funds to pay his note ni:i- turing on .May 1st. He did so and his letter of remittance crossed another from the man- ager, mailed at Owen Sound. Ajiril tldtli. stating the rejection of his application and returning the undertaking and note. On April li4th the insured property was destroyed by tire. B. notified the manager by tel •- graph, and on April :i'.tth the latter wrute retunung the money ri'initted by B., wlm afterwards sent it again to the manager, ami it was again returned. B. then brought ;iu action, which was dismissed at the hearini:, and a new trial ordered by tlie Divisioiiid Court and atlirmed by the Court of Ap!)eal. Uch!, affirming the decision of the Cotu-t of Appeal, (Jw.vnue, .T.. dissenting, that there was a valid contract by the ( oiiipany with B. for insurance f(u- four years: that the st.uutory conditions in th(> Ontario Insurance Act (B. S. (). |1,SS7| c. l(*.7i. eroverned su.h contract though not in the form of a poli -y; that if the provision as to non-receipt of a p(dic.v within fifty days was a variation of the statutory co.'iditions. it was iiieff.'ctHuI for non-c()inidiance with condition 11">, re- quiring variations to be written in a different c(doured ink from the rest of the document, and if it had been so printed the condit'oh was unreasonable: ami that such provision, though the non-receipt of the p()licy iniglit j ojierate as a notice, was incimsisteiit with condition 10, which provides that notice shall not operate until seven days ;ifter its re- ceint. Hi :<}. nlso. tluit there was some evidence for the jury that the ccunpany. by demand- ing ;ind receiving payment of the note, had w.aived the right to cancel the contract, and were estopped from denying that B. was in- sured. The Doniiiiinn Oret-iige Muiua) Fire Assurance Association v. Bradt xxv., l-"4 24. — Construction of Contract — Inconsis- tent Conditions — Dismi.ssal of Con- tractor — Architect's Powers — Arfi- TRATOR — Disqualification — Probable Bias — Rejection of Evidence — .Titdge's Discretion as to Order of Evidence. A contract for the construction of a public M'ork contained the following clause: " In case the works are not carried on with such CONTRACT 65 exi)eilition and with .such materials and worlc- luanship as the architect or cleric of tlic works may deem proiicr ihe architect shall l,e at liberty to j;ive the ccmtractdrs ten days iLutiee in writinj; to supply such additional force or material as in the opinion of the said architect is necessary, and if the con- tractors fail to supply the same it shall then be lawfid for the saitl architect to dismiss the said contractors and to employ other per- sons to finish the work." The contract also I.rovided that " the general conditions are niade iiart of this contract (except so far as inconsistent lu'rewith). in which case the terms of this contract shall govern." The first clause in the " general conditions " was as follows: In case the works from the want of suliicient or proper workmen or materials are not proceeding with all the necessary de- spatch, then th(> architect may give ten days' notice to do what is necessary, and upon the contractor's failure to do so, the architect shall have the power at his discretion (with the consent in writing of the Court House Connnitteo, or Commission as the case may bei. without process or suit at law, to take the work or any part thereof mentioned in such notice out of the hands of the contrac- tor." IIcUl, Sedgewick and Girouard. .T.T.. dis- s.-nting. that this last clause was inconsistent wiih the above clause of the contract, and that the latter must govern. The architect therefore had power to dismiss the contrac- tor without the consent in writing of the Committee. \t the trial, the plaintiff tendered ev'dence to show that the architect had acted mali- <-io\isly in the rejection of materials, but the trial judge recjuired proof to l>e first ad- duced tending to show that the materials had been wrongf^dly rejected, reserving un- til that fact should be established the con- sideration of the question whether malice \\as necessary to be proved, and if necessary what evidence would be snfflcient to estab- lish it. Tpon this ruling jdaintiff declined to olTer any further evidence, and thereupon ji'ilgment was entered for the defendants. Held, that this ruling did not constitute n rejection, but was merely a direction as t > the marshalling, of evidence within the discretion of the trial Judge. yceloii V. The City of Toronto . . xxv., 579 ■J."..— -Principal and Agent — Master and Servant — In.^urance Agent — Duty — Appointment — Acting for TIival Com- pany — Divided Interests — Dismissal. To net as agent for a rival insurance com- pany is a breach of an insurance agi-nt's S.C.D.— 5 agreement, " to fulfil conscientiously all the duties assigned to him, and to a<'t constantly for the best interest of his employer." and is suliicient justification for his dismiss;il. Judgment of the Court of Appeal for On- tario (L'li Out. App. R. 4(»St, attirmed. IJuntmiirr v. T/ic Canada AcciiJcnt AxKitrancc Co., 21iud February, IS'.X* . . . . xxv., C.'.tl 20.— Bailees— Common Carriers— Express Company— Keceipt for Mc>ney Parcel — CONDITIO.NS 1'RECEDENT — FoRMAL Notice of Claim — Pleading — Monet HAD AND Received — Special Pleas. Where an express company gave a receipt for money to be forwarded with the con- dition endorsed that the company should not be liable for any claim in respect of the liackage, unless within sixty days of loss or damage a claim should be made by written statement, with a copy of the contract an- nexed. Held, that the consignor was obliged to comply strictly with these terms as a condi- tion precedent to recovery against the ex- I)ress company for failure to deliver the par- cel to the consignee. i::<'hard'inn v. Canada \Y(»t Farmers' Ins. Co. (1(5 U. C. C. P. 430), distinguished. In an action to recover the value of the parcel, on the common count for money had and received, the plea of " never in- debted." put in issue all material facts necessary to establish the plaintiff's right of action. The yortherti Pacific Express Co. r. Martin et al xxvi., 133 27.— Statute of Frauds — Memorandum in "Writing — Repudiating Contract ry'. A writing containing a statement of all the terms of a contract for the sale of goods requisite to constitute a memo, >mdi>r the 17th section of the Statute of Frauds, may bo useed was exe- cuted and delivered to the company trans- ferring all the leases nnd property specified 66 CONTRACT. in s;ii(l aprooincnt, but cnntaiiiin;; no resor- vtitkm in favour of C. siicli as was i-outjiiued tlioi-fin. 'i'iic Kiie CDinpany, in 1>!)4. as- >!;,'ncisiou on all (piestions with rejrard thereto, or as to the nii-aning and intention of the contract, was to be final; and he was to be at liberty to make any chanjies or alterations in the work which he should deem e\i>edient. Held, th.it though the value of the work certitied to by the monthly certificates w:is only approximate and subject to revision on completion of tlie whole, yet whore the en- gineer in charge had changed the character of a jiarticular class of work, and when coin- jdeted had classifieeii taken out and was lying in the mill-yard, outside of the building. While in this condition the defendants hy- liothecated the mil! property to li.. and the hypothecs were duly registered. The engine : was siibsir accessories, con- sented to their incoriioriition with the im- movable, and dealt with them while so in- coriiomted, they became ininiovables l)y des- tination within the terms of article :?T0 of the Civil Code, and subject to the duly registered hyjiothecs of the respondent. ^yaUhridge v. FarucU (IS Can. S. C. R. 1), followed. Laine ct aJ. v. BCiand . . . . xxvi.. 41!) 31. — Fire Insurance — Conditions in Policy' — Breach — Waiver — Recogni- tion OF Existing Risk after Breach- Authority OF Agent. A policy of fire insurance on a fact rv and machinery contained a condition making CONTRACT. 67 it void if the said property was S(dil or con- veyed, or tlie interesi of the parties therein elian>.'ed. //(/'/. allirniiiij: tiie decision of tlie Siipreine Court of New Krunswielc, llnit by a chattel ii;ortf,'aKe jriven by the assured on said pro- perty luf. interest therein was cdianiied and tlie policy forfeited under said condition. H., XX vi., ."))?."> ;',2, — Railway ( 'hmpaxy — C.\RniAGF of ( ;. iiiiis — ( 'ii.N.NKCTi.N'c Lines — Speci.-m> t'lNTUACT—LuSS BY FiRK IN "\VaRE- HOfSE — Negligence — I'leading. In an action by S., a nier<'hant at Merliji, Out.. a;iainstihe 1-ake Erie and I)etroii Kiver liV. Co., tlie statement of claim alleired that S. had purciiased ^roods from i)artii's in To- ronto and elsev, here to be delivered, some to the (J. T. U. Co.. and the rest to the C. P. K. and other companies, by the said sevei-al <-omp;niies to be, and the same were, trans- ferred to the Lake Erie, etc., Co., for car- riaL'e to Merlin, and that on receipt by the Lake Erie Company of the froods it became their duty to carry them safely to Merlin, and deliver them to S. There was also an alle^'ation of a contract by the Lake Erie for storage of the p.ods and deliver.v to S. when rere hist. The goods were destroyed by tire while stored in a buildins ownc-d by the I>ake Erie Co at !Mer- lin. Hchh reversina; the decision of the Court of .\l)peal. that as to the froods delivered to the <;. T. R. Co. to be transferred to the Lake Erie Co., as allefjed'. if t.ie cause of action stated was one arisinjr f-r ihUfio it must fail, as the evidence showed that the jiootls were received from the Q. T. It. Co. for carriage imder the terms of a special contract con- tained in the bill of lading and shipoing note given by the G. T. li. Co. to the consignors, and if it was .a cause of action founded on ciuitract it must also fail as the contract I'nder Avhich the goods were riH-eived by the . 34. — Sale by Sa.mple — Objections to In- voice — Reasonable Time — Acqui- escence — Evidence. If a merchant receives an invoice and re- tains it for a considerable time without mak- ing any objection, there is a presumption against him that the price stated in the in- voice was that agreed npc a. (.Tudgnient of the Court of (Queen's Bench, that the evi- dence was sutlicient to rebut the presump- tion, reversed). (iwynne, J., dissented, holding that the ai)peal depende— Art. l(ta;5". (". (". 1'. I'.y a rescliition of tlio ("ouiicil of the Town of Chiwutinii, on Utli October, ISIW, based HiKin an apiilication vroviously made bj- him. L. obtaiiH'il itcrniis.sion to foustnict water- works in the town ai.d to hiy the necessary pipes in the streets wherever he thought proper, tMin con- dition tliat tlie worlds should be commenced within a certain time, and completed in the year l,S!f_'. He constructed fi system of waterworiis, and had it in operation within the time prescribed, but the system proving insuflicient a company wa.s formed in 18:1.") under the provisions of It. S. Q.. art. 448r), and given authority by by-law to fnrn:sh a proper water supply to the town, whereupon I., attempted to jierfect his system, to alter the position of the pipes, to construct a reser- voir, and to make new excavations in the streets for these pnrp.ises without receiving any further authority from the counc!!. Held, reversing the judgment apiiealed from, (Gwynne, J., dissenting), that these were not merely necessarj- repairs but new works, actually part of the system retiuired to be completed during the year 18!)2. and ■which after that date could not l>e pro- ceeded with except upon further permis- sion obtained in the usual manner from the council of the town. HcUI. further, that the resolution and the ai>plication unon which it was founded con- stituted a " contract in writing." and a " written agreement " within the meaning of article 1033« of the Code of Civil Tro- cedure of Lower Canada, and violation of its conditions was a sufficient ground for in- junction to restrain the construction of the new works. La VilJc Dv Chicoutitni v. Lcgcri; xxvii., 329 3(i. — Agreement Respecting Lands- Boundaries — I{efhree's Decision — Bor.NAGE— Areitrvtions— Arts. 941-94.^ and 1341 ct srq. C. C. T. The owners of contiguous farms executed a deed for the purpose of settling a boun i- ary lino between their lands, thereby naming a third jierson to ascertain and fix the true division line upon the ground, and ar.reeing further to abide by his decision, anr', accept the line which he might establish as cor- rect. On the concbf-'on of the referee's operations one of the parties refused to accei)t or act upon his decision, and action was brought by the otiier party to have the line so established dt'clared to be the true boundary, and to reveiidicate the strip of land lying U!)on his side of it. //»■/(/, reverepartment— Co.vniTioN Precedent. The eighth and twenty-fifth clauses of the .•ilipellant"s contract for the construction of certain public works were as follows:— " 8. That the engine<'r shall be the sole judge of work and material in respect of both (luantity and iiuality. and his decision on all (luestions in dispute with regard to work or material, or as to the meaning or intention of this contract, ami the plans, specifications, and drawings shall be final, and no works or extra or additional works or charges shal' be deemed to have been executed, nor shall the contractor be entitled to payment for the same, unless the same shall iiave been executed to the satisfaction of the engineer, as evidenced by his certi- ficate in writing, which certificate shall le a condition precedent to the right of the con- tractor to be paid therefor:"' but before the contra<»t was signed by the parties the words " as to the meaning or intcntinn of this contract, and the i)lans. specilications and drawings " were struck out. " 2.j. Cash payments to about ninety per cent, of the value of the work done, approximately made up from returns of progress measurements and conijuited at the prices agreed upon or dete'nined under the i>rovisions of the con- tra t, will be made to the contractor month- ly on the written certificate of the eng'neer '.hat the work for. or on account of. which the certificate is granted has been duly exe- cuted to his satisfaction, and stating the value of such work computed as above men- tioned, and upon approval of such cert'fi- cate 1)y the Minister for the time being. and the said certificate and stich approval thereof shall be a condition prece( earth in eertiiin enibiink- nients wliieh should lie paid lor at an in- creased rate as " ■\vater-tit;ht " endtankment under the provisions of the contract and speciticiitions relntins; to the works, and the cliiini of the contractttr was rejected by the enj-'liieer. who afterwards, however, after the matter had been referred to the .Minister of Justice by the -Minister of Uailways and Canals, and an opinion favi)urabl(> lo the contention of the contractor Kiven by the .Minister of Jnstite. made a (eriiticate tipon a iirn};ressive estimate for the aniiinnt thus in dis'iute in the i!sual form, but added iifter his sijrnatnre the foUowiiif; words:— " Cer.i- lied as regards item ."i (the item in dispute), in accordame with the letter of Deputy Min- ister of .lustiee, dated loth January, ISUll." The estimate thus certified w;is forwarded for iia.Muent. but the .\uditor-(!eneral re- fusecl to issue a cheque therefor. IlrliL that under tli(> circunistanccs of the ease the eertiticate sutlicieiitly complied with the re(iuirenu'nts of the twenty-fifth section of the contract: that the decision by ih;> engineer rejectinj: the contractor's ciaim was not a final decision under the eighth clause of the contract adjudicating upon a dispute under said eitrlitli section, and did not pre- clude him from subseciuenfly grantiufi: a valid certificate to entitle the contractor to receive payment of his claim, and tliat the certificate given in this case whereby the engineer ailopted the construction placed up- on the contract in the legal opiniiui given by the ^linister of Justice, was ju'operly granted within the meaning of the twenty-fifth clause of the contract. Murray v. The Quern (20 r.'iii. S. C. R. 20:?). discuss(d an4, 102.-1, 1(»2(;, 1027. 1472, 1474, 14;»2, llK>4f, C C— Hau.me.nt to Manuf.vcturer. K. B. made an agreenu'iit with T. for the pun base of the outjiut of his sawmill dur- ing the season of ISUO, a niemoraiulum being executed between them to the effect that T. sold and K. B. purchased all the lumber that he should saw at his mil! during the season, delivered at lladhiw wharf, at Levis; that the purchasers should have the right to refuse all lumber rejected by their culler; that the lumlier delivered, culh d and piled on the wharf shiuild be paid for at prices stated: that the seller should iiay the ptir- chasers .SJl.r.O i>er hundred deals, tjuebec stand;:rd. to meet tile cost of unloading cars, classilication and piling on tbe wharf: that the seller shoidd manufacture the lumber according to specifications furnished by the purchasers: that tlu' purchasers should make payments in cash once a month for the lum- ber delivered, less two and a half per cent.; that th(> purchasers should advance money upon the sale of the lumber on condition tli.-it the seller should, at the option of the purchasers, furnish collateral s curity on hs I)ro)ierty, iiuluding the mill and machinery belonging to him, and iditain a pr(unissory note from his wife for the amount of each (•ullage, the advances being made on the culler's ci'rtilicates showing receipts of logs not exceeding $2.-> per hundred kigs of four- te^>n inches standard: that all logs paid for by the purchasers shouhl be stamped with their naii:e. and that all advances should bear interest at the rate of 7 per cent. Be- for the river-drive commenced, the logs were culled and received (m behalf of the inir- chasers. and stamped with their usual mark, anil they paid for them a total sum aver- aging .«,'i2..'?.1 per hundred. Some of the logs also bore the seller's mark, and a small quantity, which were buried m snow and ice. were not stamped, but were received on behalf of the purchasers along with the others. The logs were then i'llowed to re- main in the actual possession of the seller. During the season a writ of execution issued against the seller, under which all moveable pro)ierty in his possession was seized, in- cluding a quantity of the logs in question. 70 CONTRACT. lying aloii^' the river-ilrive nnil at the mill, ami also a iinantity of lumbor into which purt of thf logs in i|iifstion had been nianti- facturcd. at the si-llfr's mill. //(/i/ iTiischcrciin, .1., Inking' no pirt in the jiKk'iiicht upon till- incriiH), that tho con- tract so niMilc between tlie parties consti- tuted a sale of the loirs, ami, aH a necessary coiiseinience, of ilie deals and boards into which part of them had been mauufac- tured. Kitiu V. IhiiHii.i (tit (lillMi-t . . . . xxviii., 388 40. — (V)NSTnrcTioN' of Statute — Public Woiiks—Hailways and Canals— R. S. C. C. :'.7, H. 'j:}— Co.NTRACTS ItlNDlNO ON THE Cuovv.v — (Joci'S Sold and Deliverei) on VKniiAL Ordeu oy Crown Okhmcials— St'pi'Lies in Excess of Tender — Khki-rs and Omissions in Accounts l{.:Ni>i:nEn — I'-iNPiNGs of Fact — In- TFH est— Arts. 1(m;7 & 1077 C. C— 50 & -,\ Vic. c. 10. s. 33. The provisions of tlie twenty-third sec- tion of tlH> " .\i-t res|iectinjr the Department of Railwiiys and Canals" K. S. C. c. 37l, whiih rcipiire .'ill contracts afTectinj; that de- liaitment to be sijined by the Minister, the Deputy Minister or some person specially anthorizod. and conntersigned by the seE.\-cR — Dismissal — Notice. Where no time is limited for the duration of a contract of hiring and service, whether or not th(> hiring is to be considered as one for a ye.'ir is a (piestifin of fact to be decided upon the circumstances of the case. A business having been sold, the foreman, who was engaged for a year, was retained in his ]!osition by the purchaser. On the expir- ation of his term of service no change was made, and he continued for a month longer at the same salary, but was then informed that if he desired to remain his salary would be considerably reduced. Having i-efused to accept the reduced tiilary he was dismis!»ed, anil brought an action for damages claiming that his retention for the month was a re- t'ligagcment for another year on the saiuc terms. //(/(/, allirming the judgmert of the Court of .Vppeal ilM Out. .\pp. It. 'OOi, which re versed that of .Meredith. C..T., at the trial ('J7 O. U. .'iiiOi, that as it appeared that the fr>reman knew that tlie business before the sale had been losing neuiey ami could not be kept gfiing without reductions of expen ses and stilaries, us he had been informed that the contracts with the employees had not been jissnmed by the purchiisi r, and as uiMtn his own evidence there Wiis no hiring for any detinite jieriod, but merely a tempor- ary arrangement, until the purchaser should hav»> time to consider the cdianges to lie made, the fiireman had no claim for dam- ages, and his action was rightly dismissed. liuin V. Amtiisitn A Co. ct at. . . xxviii., 4S1 42. — Insurance. Like — Conditions and Warranties— I.vdokse.ments o.n Policy — i.n'accurate statements — mlsrepre- sentatio.vs — Late.nt Disease — Ma- terial Facts — Cancellatio.n- of Policy — liKTUR.N OF Premium— Statute. C >n- struction OF — 5."> Vic. c. 31), s. 3;i (Ont.i. The provision of the second sub-sectii;n of section thirty-three of " The Insurance Corporations Act, 1S02." (Out.), limiting con- liitions and warranties indorsed mi policies providing for the avoidance of the contract by reason of untrue statements in tiie ap- plications, to cases where such statements are material to the contract, do not reipiire the nuiteriality of the statements to appear by the imloi-sements. but the contract will b(> avoided only when such statements may subseiitiently be judicially found to be ma- terial, as provided by tlu> third sub-section. Misrepresentations upon an application for life insurance so found to be material will avoid the policy notwithstanding tliat they may have been made in good faith and in the conscientious belief th.-it they were trni'. Vcnncr v. Ttte Sun Life Iiimiraiicc Companii (17 Can. S. C. R. 3(U). followed. Jordoii rt at. v. ProriiwinI Providriit InxtHii- tion xxviii., .">! 43.— Vendor and Purchaser— Principal AND Agent — Mistake — Contract — Agreement for Sale of I-and — Agent E.xceeding Ai'thority- Specific Per- formance — FiNDi.VGS OF Fact. Where the owner of lands was induced to authorize the acceptance of an offer made CONTRACT. 71 liv (1 proposed piirchnscr of ccrtnin lots of l;inil tliniii>rli ' aii iiM-orrect roprcHcntatioii lu.iili- I" lier, mid iiiiik':' tlio iiiistakt'ii iin- pri'ssiiiii tluit the (ifTtT WHS I'm- tlic piircliasf of certain swamp Inis oidy whilst it afltially iiuiiulcd Kixti'fii aiiiinK lots in addition tluTi'to, a contract for the sale of the whole jiroiicrty inatle in conscMinence by liPr nceiit was held not hindiin; iii)on her, and was set aside liy the court (»n tlit^ ^ronnil of <>rror, as tlie parties were not "y an aKreemont between II., of the one part, iind W. ami wife of the other, the lat- ter were to provide and ftirnish a store, and II. to sui)ply stock, and replenisli same when necessary; W. was to devote his whole time to the business; \\. and wife were to make inoiitidy returns of sales and cash balances, tpiarterly returns of slock. et<'., on hand, and to remit weekly proceeds of sales with cer- tain deductions. II. had a rijjht iit any tiie.e to exiimine the books and have an ac- count of the stcH-k, etc.; the net pntfits were to be shared between the parties; the ajiree- iiient coidd be determined at any time by II. or by W. and wife on a month's notice. Ill III, that the iroods siiiijtlied by II. under this ii^'reemeiit as to stock of the business Were not sold to W. and wife, and remained the property of II. until sold in the ordinary course; stich goods; therefore, were not liable to seizure under execntion against H. at the suit of n creditor. Amin-IIoUhii Co. ct al. v. llatfuUl. 24th Oct(dH'r, 18!)S xxix. 4,".— Specific Performance — Title to L.\ND — Objections to Title— Waiver. To entitle a party to a contract to a decree for specific iierformaiice, he must luive been l)roiupt himself in iierformance of the ot>- lications devolving ui)on him. ami always ready to carry out the contract within a rea- sonable lime, even although time might not have been of the essence of the agreement. Specific Iierformance will not be decreed when the jiarty asking performance has de- clared his inability to carry out the agree- nient on his part. A jiurchaser of land who takes possession of the projierty and exercises acts of owner- ship by making repairs and improvements. will be held to have waived any objectionsi to the title. Objections to title <'annot be raised where the purch.Mser has made a tender of a blank deed of mortgage for execution, for the inir- pose of carrying out the purchase. Wiillarr ct al. v. IlmsiHn ct al., 21st Novem- ber, 1S<(.S xxix. 4(). — Contract Bindino on the Crown- Public NVoHiv — Formation of Con- tract—Ratification — Breach. On Nov. 22nd, 187!», the Oovemment of Ciiiiada entered info a contract with C., by which the latter tindertook to dn all the (Joverninent binding for live years from said date. The contract was executed under the authority of .".2 iV- .'3.'? Vic. c. 7, s. (5, ami on Nov. 2."th, 1S7!I, was assigned to W.. who performed all the work sent to him u|i to Dec. nth, 1,S,S4. when, the term lixed by the contract having expired, he received a letter from the (Jucen's Printer, ;is follows: " I !im directed by the Honourable, the Sec- retary of State, to inform yuu lliiit, pending future jiriangenieiits, the binding work of the (Jovernnieiit will be sent to you for exe- fution, under the same rates and conditions as under the contract which has just ex- pired." W. pc-rforined the work for two years under authority of this letter, and then brought an action for the profits he would have had on work given to other parties during the st>vcn years. Il'.lil. that the letter of the Queen's Printer did not constitute a contract binding on the Crown: that the statute authorizing such contract wa.s not directory, but limited the power of the Queen's Printer to make a contract, except subject to its conditions: that the contractor was chargeable with no- tice of all st;itutory limitations iipon the jiower of the t^Mieen's Printer; anil that he could not recover in respect of the work done after the original contract bud expired. On Oct. .3()th. 18S<;. an Order in Council was passed which recited the execution and assignment of the original contract, the exe- cntion of the work liy W. after it expired, and the recommendation of the Secretary of State that a formal contract should be en- tered into extending the original contract to Dec. 1st, 1SS7. and then authorized the Secre- tary of State to enter into such formal con- tract with W.. but subject to the condition that the Oovernment should waive all claims for damages by reason of non-execution or imperfect execution of the work, and that W. should waive all claims to damages be- cause of the execution of binding work by CONTRACT. otlier i)artios, up to the date of said exten- sion. W. refused to accept the exteusiou on siii-h terms. //('(/, th.nt W. could not rely on the Order in Council as a ratification of the contract formed liy the letter of the Queen's Printer; flint the ek-nieut of consviiftiis enters as much into a ratitieution of a contract as into the contract itself; and W. could not allej^e a ratification after expressly repudiating its terms and reftising to be hound by it. After an appeal from the final judgment of the Excheiiuer Court was lodged in the Sujirenie Court, the Crown obtained leave to appeal from an order of reference to as- certain the amount of the suppliant's dam- ages. llchl. that the judge of the Exihequer Court had authority to allow the ajipcal, and it was properly before the Supreme Court. Tlic Qiiicn V. Woodhiirn, 21st November, IS'JS xxix. 47. — ^Iarried ^Vo^rA^• — Srpar.vte Es- tate— C. S. U. C. c. 73— 3r> Vic. c. Ki (O.)— R. S. O. (1877) cc. 12.-) and 127—47 Vic. c. 19 (O.). f?ee Debtor and Creditor, 1. IS.— Building Eail,w-ay— Surety for Per- formance OF — Interference with Rights op Surety. f^ce Surety, 1. 40. — NovATiox — Promissory Note — Dis- charge OF Maker— Reservation op Rights Ag.unst Indorser. i-'cc Surety, 2. 50.— Purchase of Railway Ticket— Im- plied Contract to Produce and Deliver to Conductor. See Railway Company, 3. •"1.— Promoter op Company— Sale op Pro- perty B\-— Fiduciary Relationship— Nox-independent Directors — Rescis- sion. Sec Company, 2. •"i2. — Construction op Agreement — Guarantee. Sec Guarantee, 1. ."3.— Sale by Auction— Agreement as to Title— Breach — Rescission. Sec Vendor and Purchaser, 4. 54. — Railway Company — Carriage of Goods — Li.mitation op Liability — Rail- way Act, 1S.SS, s. 24G (3). Ste Railway Company, S. 55. — Partnership — Winding-up — Extra Services of One Partner — Remunera- tion FOR. Sc€ Partnership, 2. 50. — Proprietor op Newspaper— Engage- ment OF Editor — Dismissal— Breach of Agreement. Sec Master and Servant, 2. 57. — Debtor and Creditor — License to Take 1'ossession— Bona Fide Opinion as to Debtor's Incapacity — Replevin- Conversion. See Debtor and Creditor, (5. 58.— Vendor and Purchaser— S.vle op Lands— Waiver of Objections— Lapse OP Time— Will, Construction of— ExEct.TORY Devise Over — Defeasible Title — Rescission of Contract. See Will, 7. -,9._CoNTRACT— Public Work— Final Cer- tificate OF Engineer— Previous De- cision — Necessity to Follow. See Res .Tudicata, 0. 00.— Municipal By-law— Special Assess- ments—Drainage—Powers op Councils AS to Debtor's Incap.\city — Replevin— T'ltra Vires Resolutions— Executed Contract. Sec Municipal Corporation, 24. Gl.— Marine Insurance— Voyagl Policy— " At and from " a Port— Construction OF Policy— Usage. See Insurance Marine, .3. 02.— Railway Company— Railway Ticket- Right to Stop Ovp:r. Sec Railway Company, 13. 03.— Contract op Insurance— Con.struc- tion — ^Iarine Insurance — CiOods Shipped and Insitked in Bulk — Loss op PoRTio.N — Total or Partial Loss. 8e^ Insiir'ince Marine. 4. (>4. — Ve.ndor and I*urchaser — Agreement FOR Sale of L.\nds— Deviation prom Terms — Giving Ti.me — Secret Deal- ings — Arrears of I.nterest — Release op Lands — Discharge of Surety- Novation. See Principal and Surety, 3, CONTRIBUTORY-CONVEYANCE. 73 (;-,-_Jo:nt Stock Company— Ultra Vikes Contract — Consent Judgment on — Action to set Aside. See Judgment, 4. ,',(J._fHARTERED ShIP— PERISHABLE GoODS— Ship Disabled by Excepted Perils— Transshipment- Repairs— ItEASONABLE Time— Carrier— H.iiLEE. Sec Ships and Shipping, 1. ,;7_ Principal and Surety— Guarantee BONn-I>EFAl LT OF Pri.-CIPAL- NON- DISCLOSURE by Creditor. See Gnarantte, 8. ,-,S. — Railway Company — Carriage of Goods — Connecting Lines — Speci/.l Contract- Loss by Fire in Warehouse —Negligence— Pleading. See Railway Companr, 15. i;f).— Vendor and Purchaser— Unpaid Ven- dor — ( 'onditional Sale — Suspensive Condition — M<3veables Incorporated with Freehold — Immoveables by De- stination — Hypothecary Charges — Arts. 375 et scq. C. C. See Sale, 8. 70.— Contract— Against Liability for Fault of Servants— Charter 1'arty — Bill of Lading — Conditions of Car- riage — Stowage — Fragile Goods — Negligence- Affreightment. Sen Carriers, 4. 71.— Contract— Binding on Crown— Ver- B.\L Orders by Officials of the Crown— Goods sold and Delivered. Sec Public Works, 3. 72.— Vendc . and Purchaser— Principal AND Agent — Mistake — Contract — Agreement for Sale of Land— Agent Exceeding Authority — Specific Per- FORMA.NCE — FINDINGS OF FaCT. Sci Vendor and Purchaser, 10. 7;!.— Married Woman— Separate Property — CoN'VEY.\NCE— Contracts— C. S. N. B. c. 72. See Married Woman, 4. CONTRIBUTORY. .!( 'INT Stock Company — Winding-up — Shares paid for by Transfer op Pro- perty — Adequacy' of Co.vsideration — Promoter Selling Property to Com- pany — Trust — Fiduciary Relation — Secret Profit. l^ec Winding-up Act, 1. CONTROVERTED ELECTIONS. 1, — 1'etition — Separate Trial — Jurisdic- tion- R. S. C. C. l>, SS. 30 AND 50. See Election Law, 2. r 2. — Election I'etition — Service — Copy — Status of I'etitioner — Preliminary Objection. /S'ce Election l.,aw, 3. 3.— Appeal— Electio.v Petition— Prelimin- ary Objections — Delay in Filing — Objections Struck Out — Order in Chambers— R. S. C. c. 8, s. 50. See Election Law, 4. 4. — Appeal — PR'i:Li.MiNAR\' Objections — R. S. C. c. 0, SS. 12 and 50— Order Dis- missing 1'etitiun — Affidavit of Peti- TIO.VER. StX Election Law, 5. 5. — Election Petition — Preliminart Objections — Affidavit of I'etitioner — Bona Files — Examinatio.n of De- ponent — Form of Petition — R. S. C. c. n— 54 & 55 V'C. c. 20. s. 3. Sec Election Iaiw, (i. G. — Electio;v Petition — Preliminary Objections — Service of I'etition — Bailiff's Return — Cross-examination —Production of Copy-. Sec Election Law, 7. 7. — Controverted Election — Corrupt Treati.ng — Agent of Candidate — Limited Agency' — Trivial or Unim- portant Corrupt Act— 54 & 55 Vic. c. 20, s. IJ) — Benefit of. See Election Law, 8. CONVENTION. See Treaty. CONVEYANCE. 1. — Contract for Sale of Land — P.4.Y- mknt of Purchase Money on Delivery OF Conveyance — Duty to Prepare. A provision in a contract for purchase of land that the purchase money is to he paid as sfKin as the "oiiveyaiice is ready for de- livery does not alter the rule that th(> ( cn- veyancc should be prepared by the purchaser, Fournier and Taschereau, JJ., dissenting. Sterrnscn v. Dnris xxiii., G20 74 COSTS. 2.— Contract for Sale of Land— Tender OF Conveyance — Odjection to — Delay — Default of Vendor — Payment of Interest. Sec Vendor and I'urchaser, 2. 3. — Conveyancing — Mortgage — Leasehold 1'rf.mtses — Terms of Mortgage — Assignment or Scb-lease. See Mortgage, 9. And ace Deed, Lease, Mortgage. COSTS. 1. — Appeal for— Mistake. TlioiiKli nil niipcil will not lie in respect of Cdsts onl.v, yet where there hjis been a mistake ni«>n smne matter of law, or of jtrin- ciple, wliieli the iiiirty ai)i)ealiiig has an ae- tnal interest in having reviewed, and which governs or affeets the (osts, the party pre- judiced is entitled to have the benefit of correction liy appeal. ArvhihaUl v. (hlAiile. Baker v. (leTAslv. Mouat V. del. isle xxt., 1 2. — Appeal — .T cms diction — Amount in Con- troversy — Affidavits — Conflicting as TO Amoi-nt— The Exchequer Coi-rt AcT.s— ."(> & .">1 Vic. c. IC, ss. .'i1-.">r! (D.)— 54 i<: ."..-) Xio. c. 20, s. 8 (Dl— The Tatent Act— IJ. S. C. c (>1. s. :!(;. On a motion to (piash an appeal where the respondents liled allidavits stating that the amonnt in eontroversy was less than the anio-,i!it tixed tiy the st.Mtute as necessary to give jurisdiction to the ai)iH>llate court, and atii(hivits were alsn filed by the appel- lants, showing that the amonnt in contro- versy was sutticient to give jurisdiction under the statute, the motion to quash was dis- missed, but the appellants were ordered to pay the costs, as the jurisdiction of tlie court to hear the an])eal did not appear until the iiling of the appellants' atlidavits in ans- wer to the motion. lircsclitl ft aJ. V. Auir Incandfsvcnt lAfiht Mfii. Co xxviii., 2IkS 3. — laBEL — Slander — Privileged State- ments — I'uBLic Interest — Charging Corruption Against Political Candi- date — Challenging to Si-e— .Iustific.*.- tion — Costs. The defendant had caused a lefainatory statement to be printed in a newsi)aper, and on a separate fly-sheet, and circulated through the constituency, during a Parl'.a- mentary election, with a printed challenge to the plaintiff and others implicated in the charges made to justify their innocence by taking an action for damages in case they vrere not guilty, and offering at the same time to make a deposit to cover the costs of suit. The Supreme Court of Canada, in aflirm- ing the judgment of the Court of Queen's Kench for Lower C.-inada (which had re- versed the judgment of the Superior Court in favour of the iilaintiff, and dismissed the action without costs), refused to allow costs under the <-ircumstancos. Strong, C.J., dis- sented, being of opinion that the Superior Court judgment for $100 damages with costs as of an action for that amount should' be restored. Gauthier v. Jcannotte, 14th June, 1898, xxviii., .■)90 4. — Appeal — Discrbtfion of Court Ap- pe.\led from — Costs. It is only when some fundamental prin- cii)le of justice has been ignored, or some other gross error appears that the Supreme Court will interfere with the discretion of provincial courts in .-nvarding or withhold- ing costs. Smith V. The Snl'iit John Citji lUiiUntji Com- panij. The Cotinoli(l Vic. c. -18 (Ont.I— ."»7 Yic. c. 'A, s. ."> (Ont.)— .^S Vic. c. 47 (Ont.) — Construction of Statute— Appeal from Assessment — Final .Judgment — " Court of Last Resort." '^(P Appeal, G4. COUNTY COURT JUDGMENT. Shkriff— Trespass— Sale of (Joods by Insolvent — Kona Fides — .Judgment of Inferior Tribunal — Estoppel — Res .Judicata — Bar to Action — Fraudu- lent Preferences — Pleading. frr Insolvency, 1. COURT, 1. — Ii-RisDicTioN — Action for I{edemption —Foreign I.,ands — I.,e.\: rei sitae— Action in Personam. All Ontario Court will not fri'nnt a decree fir riMlcniption of ;i niortfjajrc on lands in Ontario at suit of a jnd^'ineat creditor <>{ a inortfrasor. whose judv'iuent Iteiii}: re- f-'istcrcd is. liy statute in Manitolia, a charge iiron the lands, the judf^meat creditor ami !i!ortfra;::ee Imth having iloniicile in Ontario. Tile only locus ytaiuU the .indjnneiit creditor ivwnld have in an Ontario (^ourt would lie to jiave direct relief ajrainst tlie laud liy iiie.'uis of a sale to which relief he would lie restricted in such a case in a suit in the vdiirts of IManitolia, and a decree for a sale "ipiild have oeci unenforcealile in tlie latter province. A court of equity will, where i>ersonal equities exist between two parties over whom it lias jurisdietion. tlioujxh such equities may refer to foreifin lands. -live relief Ity a decree cperatiuj,' not dir\'tly upon the lands, but directly in permnam. hut such relief will never he extended so far as decreeing a sale in the nature of an equitable execution. Ilendersmi v. Bnnk of namilton . . xsiii., 710 2. — Appeal — Jurisdiction — 52 Vie. c. 37, s. 2 (I>.) — Appointment of Presiding Officers— (JouNTY Court Julges— 55 Vic. c. 48 (Ont.i— 57 Vic. c. 51. s. 5 (Ont.I — ,58 Vic. c. 47 (Ont.i— Construc- tion OF Statute— Appeal from Assess- ME.NT — Fi.nal Judgment—" Court of I.,AST Resort." See Appeal, 64*. COURT HOUSES AND GAOI.S. Municipal Corporation — Construction of Statute — 5.5 Vic. c. 42, ss. o!»7. 404, 4(;!>. 473 (Ont.I — City Separated from County — Maintenance of Court Iloi'SiS AND (JoAL- Care and Mainten- ance OF 1'risoners. See Arbitration. 4. COURT OF PROBATE. .Jurisdiction — Accounts of Executors and Trustees— Res Judicata. Sec Trusts. COVENANT. 1. — I^ease for one Year — Dominion I.,rcENSE to -^ut Timber — Warranty o;- TiTLE — Quiet I'^njoyment. Sec Crown I.,aiids, 1. 2. — Mortgage — Married Woman — Implied Contract — Disclaimer. See Married Woman. 3. CRIMINAL LAW^. 1. — Criminal I^roceeding — Contempt of Court. Contempt of Court is a criminal proceed- iiifr. /•'//i.t V. The Qiircii xxii., 7 And see Appeal. 4. " Contempt of Court. 2.— Criminal Appeal — Criminal Code. 1802, s. 712 — T'NDivn:ED Property of Co-heirs— Frai'dulent Appropriations — T'nlawfully- Receiving— R. S. C. c. ItU. ss. 05, 83, STj. AVhere on a criminal trial a motion for n reserved case made on two frrounds is re- fused, and on appeal to the Court of Queen's Bench (appeal sidel. that Court is unani- mous in atlirniing the decision of the trial .Judjre as to one of such grounds, but not as to the other, au appeal to the Supreme 76 CRIMINAL LAW. Court can only lie liasi'd on the one as to which there was dissent. A conviction under sec. S3 of the Larceny Act, 1{. S. C. c. lOi, for unlawfully ob- taining property, is good, though the pri- soner, according to the evidence, might have lieen convicted of a criminal breach of trust under s. t!.'). A fraupellnnt) w;th hav- ing uidawfully received tiie $7,000. the pro- jierty of the heirs which had before then been unlawfully obtained ami taken and aiv liropriated by said A., the taking and receiv- ing lieing a misdemeanour und(n- s. So, c. I(t4 U. S. i\ at the time when he so r(>ceived the mone.v. A. who was tlie ex- ecutor of C."s estate, ami the custodian of the mone.v. iileadeacoste, C..T., dissenting, held the convicdon good. At the trial it was jiroved that A. and B. agreed to appropriate the moi^ey. and that when A. drew the money he jurchased his raihva.v ticket for thi> I'nited Siates, made a parcel of the money, took it to B."s store, and handed it to him saying: " Here is the bot^Ue; take good care of it." On the same evening, he alisconded to New York. On ajiiieal to the Supreme Court of Can- ada : HeUl. affirming fhe judgment of thi^ . C. c. 1-J.j, s. 7. The depositary of mcuiey staked liy two in- dividuals on tile result of an (lection l^r the House of Commons is gndty of a m s- demeanour under U. S. C. c. l.">!t, s. l> ((,'rini. Code. s. 204). and the bi'ttors are accessories to the Conimission of the ofTi-iice. Ilcj. v. DiUcH (10 Ont. 1'. n. :i7>-2), overrulrd. Walsh V. Tnhi'.coch- xxiii.. 'i'.)5 4.— Will— 1>EVISE— Dkath of Testat. r Caused by Devisee — Felonious Airr. No devisee can take umh'i the will of a testator, whose deatli has been caused liy the criminal and felonious act of the devisee himself, and in applying this rule no distinc- tion can be made between a death caused by murder and one caused by manslaughter. Taschereau, .1., ilissentiiig. L)it:iltl V. LiuitUj .>:x:v.. "I-" « ,").— The Criminal Code, s. 575 — PEitsoNA Desioxata— Officers de Facto and de .Turk — Chief Constable — Common (iaming House — Confiscation op (Jaii- i.NG Instruments, Moneys, Etc. — Evidence— The Canada Evidence Act, 1S!«. ss. 2, 3, 20 and 21. Section 575 of the Criminal Code, author- izing the issue of a warrant to seize gaming implements on the report of " the chief con- stable or dejHity chief constaide " of a city or town. di>es not mean that the report must come from an officer having the exact tide niei:tiom'd, liut only from one exercising such functions and duties as will bring him wiih- in tlie designation used in the statute. Therefore, the warrant could properly issu3 on the report of the deinity high constable of the City of Montreal. Ctirouard, J., dis- senting. The warrant wouhl be good if 'ssued on the report of a person who filled ilr fndo the office of dei)nty high constable thou,'!i he was not such i/f inrc. In an action to revendicate the m neys so seized, the rules of evidence in civil matters ]irevailing in the nrovince would apply, and the plainiiff could not invoke "The Canada Evidence Act. isn:\*' so as to l[>e a oom- l.etent witness in his own behalf in the pro- vini'e of Quebec. Per Strong. C..T. A judgment declaring the forfeiture of money so seized cannot bo collaterally impeached in an action of reven- dication. O'.YnV/ V. The Attonieif-Gma-al of Cannil'. XX vi., 122 CROVVxX. 77 ().— Construction of Stati-te— 20 & 21 Vic. c. r>4. s. 12 (Imp.)— Application — Cri.m- INAL I'ROSECUTION — EMBEZZLEMENT OF Tm'.'iT Funds — Suspension of Civil Kemkdy — Stifling 1'rosecution — rARTNERSIUP. 'ilic Iiiipcrinl Act. 2erty niisapproiiriated." llthX, afHrming the judKHient of the Su- preme Court of British C B. C. Iteji. r>T]l, that the class of trustees referred to ill said Act were those finilty of mis- ;i]iiirniiriation of property held upon express tlllsts. Si nihil-, that the section, only covered agree- ments or securities given by the defaulting tnistie himself. C*»(nT.— Is the said Imperial Ait in force in British Columbia V If in force it would not apply to a proseeu- lion for an offence under K. S. C. e. 201 (Larceny Act), s. 08. -Vction was brought on a covenant given for the purpose of stifling a pros(>cution for the embezzlement of partn(M-slii[) property un- iler U. S. C c. 2(!4. s. oS [not re-en:icted in Crini. Code, 1892]. Hi'! alleged criminal act. having Iccn coiiimitted before the Code caine into IVin-e. was not a.Tected by its jirovisions and the covenant was illegal at common law. I'linher. the partnership jiroperty not having lieeii held oil an express trust, the civil re- medy was not preserved' by the Imperial Act. Major V. McCranry. 21st Xov.. 1S08. xxix. 7. — Debtor and Creditor — Pretended Agent of Creditor — False Bepre- sE.NTATioNs— Fraud— Ratification— In- dictable Offenci;. ^Vf Debtor and Creditor, 3. S.— Criminal Code, ss. 275, 27(}— Canadian SunjECT ^Iarrving Ai3Road— Jurisdic- tion of Parliament. *'fc Bigamy. CROWN. 1. — Crown La.nds— Dominio.n License to Cut I'imoer — Implied Covenant — Warranty gf Title— Quiet Knjoy- me.nt. Licenses granted and actually current in 1S,S4 and 1SS5 conferred uihui the licensee " full right, jjower and license to take iiiid keep ex(dusive possession of the said lands except as thereinafter mentioned for and during the period of one ye;ir from tlie yist December, tNX{. to .">lst December. 1884, and no longer." Qiuirc. Thoujih this was in law a leasi for one .vear of the lands (oniprised in the license, was the Crown bound by any im- lilied covenant to be read into the license for good right and title to make the lease and for (piiet enjoyment".' liulmcr V. Thv Queen xxiii., 488 2. — Constitutional I.,aw — Navigable Waters — Title to Soil in Bed of — Dedication of Public Lands — I're- suMPTioN OF Dedication — T'ser — Ob- stri'c-tion to Navigation — I'ublic Nuisance— Balance of Convenience. The user of a bridge over a navigable river for 35 years is sufficient to raise a prestmiiv tion of dedication. If a province before Confederation had so dedicated the bed of !i navigable river for the iiiirjiosps of a bridge, that it coulil not have objected to it as an obstructicni to navi- gation, the Crown as representing the Dom- inion, on assuming control of the navigation, was bound to permit the maintenance of the bridge. An . — Pui'.Lic Work — Obstructiox to C.^nal — I'sE OF ( 'anal. >S'(f Expi-iipriatioii. -. 14.— Crown Lands— Patent for— Beserva- TIO.N OF ^MlNKRALB. Sec frown liands, 2. 1.").— Bailway Subsidy — Application — Dis- cretion — Tru.st — Petition of Bight. •■^'ff Constitutional Law. (I. 1(> I.V: ."^l \'ic. c. K). •Sec Xefrligence, 11. IJt. — Constitutional I^aw — Powers of Executive Couxcillors— " Letter cf Credit " — Oblig,\tioxs Binding on I'ro- viNciAL Legislatures — (Jovernmeni* Expenditures — Xegotiap.le Instru- ment — •• Bills of Exchange Act, ISfM) '' "The Bank Act." B. S. C. c. 120. ,SVc Constitutional Law. 11. 20. — Contracts Binding on the Crov.'n — Goods Sold and Delivered on A'erbal Orders by Crown Officiai^s — Supplies IN Excess of Tender — Errors .\nd Omissions in Accounts — Interesst Against the Crown. Sri' Inten'st. 1. " Public Works, .■?. " Statute, 40. . CROWN LANDS— CUSTOMS DUTIES. 79 ■_'l.— IIiGinvAY— Old Trails in Uupert's LaNIi— SUHSTITUTION OF NkW AVaY — Dkiucation. Sec r>t'(lieation, 1. :il'.— ('oxTRA(^T Binding on the Crown — riHi.ic Work — Formation of Contract — Uruer in Council— Uatification— Breach. Kic Contract, 40. CROWN LANDS. 1.— Disputed Teuritory— License to Cut Timber— Lmplied Warranty op Title —Breach of Contract— Damages. The cliiiiiiant aiii>lie may he renewed for an- other ye.-M- suhject to such revision of the annual rental .-.nd royalty to he paid there- for as may he fi.xed liy the (Jovenior in Coun- cil.- In a claim for damages by the licensee;— III III. 1. Orders in Council issued pur- sun, t to -II! Vic. c. IT. ss. 4!> and .".!). author- izing the Minister of the Interior to grant licenses to cut timher. did not ccnstitnte con- tracts between the thrown and proposed liii'n-;es to cut timber, did not i-onstitnte con- viicalile by the Crown until acted ui>iin by the irranting of licenses under them. -. The right of renewal of th(> licenses was lst December. 1SS4. and no longer." j Ijuivrc. Though this was in law a lease for I one year of the lands comprised in the liiense was the <"rown bound by any implied i covenant to lie rea 1 into the license for good : right anil title to make the lease, and for (luict enjoyment V linhmr v. The (Jiiiin xxiii., 4S,H I 2. — Tate.nt — Reservation of Ckal— Order i IN Council — Agkeement. I Certain Crown lands in Quebec hid bei-ii I granted to the sup;iliants, a.s assignees of oiu' Kaye, the applicant for said lands, from : which the Crown couieuded the coal therenu was reserved, which was the sole tiuestioii ; in issue. The Exche<|uer Court (."> K\. C. K. ■ l."i7», held that there being no express or im- plied agreement to the contr.-iry the sup- pliants were eutitlecl to a grant conveying such nn'ncs .and miaerals tis would pass with- out express words. The Supreme Cotirt of Canada allirmcd the .judgment of the Kxcheiiuer' ('o\irt, and dis- nnssed the Appe.-il with cc:sts. i Tlir Qiifcii V. Thr Ctinnctinii .\;irhiilturaJ, I Cijiil mill Cithihitaliiiii f'l,.. Cth Ma.v, 1S9."), I xxiv., 713 •"".— ApTION FN BORNAGE— IL S. (^ ArTS. ! 41 ."..•?. 41. ".4. 41. "i.".. I »S'<'<' BSiT C(instituti and 17. CROAVN LA^V OFFICE. con.stritction of contract — bublic Works — Arbitratio.v — 1'rogress Ksti- -MATKs — Engineer's Certificate — Appeal by Head of Department — Final Estimates — Condition Pre- cedent. Dice Contract, 37. CUSTOMS DUTIES. 1.— ."'> ^: ."l Vic. c. :{!», Items .88 and 173— Exe.mption From Duty— Steel Rails for Use on Kailways— Application to Street U.\ilavays. The excm]ition from duty in .50 & T)! Vic. c. 3t>. item 173. of "steel rails weighing not less than twenty-tive pounds per lineal yard, for tise on railway tracks." does not apply to rails to be used for street railways. Avhich So CUSTOM OF TRADE— DEHTOR AND CREDITOR. are subject to duty as "rails fnr raihvnys mid traiinviiys of niiy form," under iti'ui ^8. StronB, C..T.. >nu\ KiiiK, J., dissentinp. Toronto Itiiilinin Co. v. The Qiicni, xxv., 24 Memo See (1S!m;» A.C. .V.l. 2. — Uevknie — Impoktep (Joods — Tariff Act — Uetrospective Legislation — II. S. C. c. :i-_'— r>7 \' .""S Vic. c. 33 (D.)-58 & r.9 Vic. c. 23 (D.). See Legislation. CUSTOM OF TRADE. ]._Shipment of Grain— Transshipment in Transit — CoNTiNriNO Original Bills OF IjADING. .SVe Bill of Lading, 2. 2.— Voyage I'olicy — " At and from " a Port — Construction of Policy— Usage. See Insurance, Marine, 3. D.£ MAGES. 1. — Action for 1\'eoligence ■ Damages— New Trial. See Negligence, 3. Excessive 2.— Contract for Bi'ilding Engine— Con- struction OF — Time for Completion — Delay. Sac Contract. 20. 3. — Remote Cause — Street Railway — Ejectment from Car — Consequent : Illness. See Negligence, 12. 4. — Liability for Loss — Measure of Damages. See Principal and Agent, 1. 5._Appeai.— Cross-appeal— R. S. O. (ISST) c. 44, ss. 47. 48 — Supreme Court, Rule 61. See Appeal, 39. 6.— Public Work— Wharf Property In- .TURiousLY Affected — Evidence. See Public Work, 2. 7.— Nuis.\NCE— Livery Stable — Offensive Odours — Noise of Horses. Sec Nuisance. 1. ! j 8. — Action of Warranty — Negligence — Obstri-ction of Street — Assessment , OF Damages — Questions of Fact. See Appeal. 44. 9.— Constitutional Law— Municipal Cor- poration—Powers of Legislature— ' icENSE — Monopoly — Highways and I'ERRiE^— Tolls— Navigable Streams- By-laws AND Resolutions — Inter- municipal Ferry — Disturbance ok I^icensee — Club Associations. Com- panies a.vd 1*art.nerships— North-west Territories Act. R. S. C. c. ."0. ss. \'.'> AND 21— B. N. A. Act (ISCT), s. 92. ss- S, 10 AND If^RKV. Ori). N. W. T. (ISSSi. c. 28— N. W. Ter. Ord. No. 7 of 1891-92. s. 4. Sec Constitutional Law, 14. DATION EN PAIEMENT. Sale — Donation i.n Form of — Gifts in Contempl.\tion of Death — Mortal Illness of Donor— Prf;sumption of Nullity — Validating Circumstances Arts. 7G2, 989 C. C. During lier last illness and a short time before her death, B. granted certain lands to V. by an instrument purportini: to be a (U>(>(1 (if sale, for a price therein stated, but in reality the transaction was intended as a setilcnu'iit of arrears of salary due by B. to the grantee, and the consideration ack- nowledged by the deed was never paid. IIcli!. reversing tlie decision of the Court of Quern's Bench, that tiie deed could not be set aside and annulled as void, under the provisions of article 7('>2 of th(» Civil Code, as the circumstances tended to sliow that the transaction was actually for good consid- eration [(latifin en paicmcnt), and consequently legal and valid. Talade v. Lalaiidc xxvii., r)."il DEBTOR AND CREDITOR. 1. — Married Woman's Property — Separate Estate — Contract by Mar- RiKD ^^'oMAN — Separate Property ExiGinLE— C. S. U. C. c. 7.'^— 35 Vic. c. 10 (O.)— R. S. O. (1877) cc. 12;, .vnd 127- 47 Vic c. 19 (O.). A woman married between lS."i9 and 1872 acquired, in 1879 and 1882, lands in Ontario as her sejiarate property, and in 1887. before the Married Woman's Property Act of that year (R. S. O. e. 1.32). came into force, sh'^ li'Tame liable on certain promissory not>'S made by her. Ifdil. reversing the decision of the Court of Anpeal. that the liability of her separate I)roi)erty to satisfy a .iudgment on said pro- missory notes deiiended on the construction of the Married Woman's Real Estate Acts DEBTOR AND CREDITOR. 8l of 1SS7 (R. S. O. vv. 125. 127), auil the Mar- lieil Woman's I'roin'i-tj- Act. l^iS4 (4~ Vic. c. 10^ read ill the liglit funiislied liy certaiu ilaiises of C. S. V. C. c. 73; and that her caiiacity to sue and be sued iu rosi>eet tliere- (if carrii'd with it a corrcsixiiidiiij;' right on tile part iif licr cri-ditors to olitaiii the fruits of a .iuilgiiieiit against lier liy execuiiou on such ^eiiarate proiierty. Moore v. Jackson xxii., 210 !.'.—( ;oor;s Sold— Person- to Whom Credit V.AS GiVE.N' — ASSIGXMENT IX TrL'ST — I'owKR OF Attorney py Trustee — AfTHORiTY OP Attorney to Use I'rix- cipal's Name— Evidence. A., ddiiig luisiiiess under the name of .T. A. iVc Siius, assigned ail liis iiroperty and effects to H. for henefit of creditors. II., Iiy power of attorney, atithorized A. to col- lect all moneys due his estate, etc., and to cnrry on the business if expedient. A. con- ' tinned the business as before;, and in the j conr.e of it jjurchased goods from F., to i 'vliom on sonic occasions he g.nve notes signed '" .1. A. iV: Sous, II. trustee per A."' All the goods so purchased from F. were cliarged in his books to J. A. iS: Sons, and the dealings between the:u after the assign- ment continued for five years. Finally, A. lieing unable to pay what was due to F., the lirter brought an action against II. on notes signed as above, and for the price of troods so sold to A. //(/(/, reversing the decision of the Snpreiiit* ('■Mirt of Xova Scotia, Taschereau, .1.. dis- senting, that the evidence at the tHal of the action clearly showed that the credit for the goods sold was given to A. and not to II.; that A. did not carry on the business after the assignment at the instance or as the agent of II., nor for the benefit of his es- ;tte; that A. was not authorized to sign H.'s name to notes as he did: and that II. was net liable either as the person to whom credit \v;is given or .is an un.lisclosed i)rincipal. ll'-hl, further, that if H. was guilty of a breach of trust in allowing A. full control over the estate, that would not make him liable to F. in this action. Ikchlcr V. Fornylh xxii., 4S9 3.— Payment to Pretended Agent — False Representations as to Authority — • Ratificvtion by Creditor — Indict.vble Offence. Where payment is obtained from a debtor by one who falsely represents that he is agent of the creditor, upon whom a fraud is thereby committed, if the creditor ratifies S.C.D.— 6 and coutirnis the payment he adopts the agency of the person receiving the money and makes the payment equivalent to cue to .111 authorized agent. The payment may be ratified and the agency adople 1, even though the person re- ceiving the money has, liy his false repre- sentations, eonimiUed an indictable offence. iScutt v. Uoiik of Xcir hrunmcick. xxiii., 277 4.— Insolvency — Knowledge of, by Credi- tor — FRAUDUi.ENT PREFERENCE — Pledge — Warehouse 1{eceipt — Nova- tion—Arts. !(«.">, KKJC, ]](){» C. C. W. E. E., connected with two business firms in Montreal, viz., the firm of W. E. Elliott & Co., oil merchants, of which he was the sole member, and Elliott, Finlay- son it Co., wine merchants, made a judicial abandonment on the IStli August, ISSD, of his oil business. Koth firms had kept their accounts with the B.'ink of Commerce. The bank discounted for W. E. Elliott i^ Co., before his departure for England on the 30th June, a note of .S.",087..">< • due 1st October, signed by .Tohu Elliott iV: Co., and indorsed by AV. E. Elliott & Co. and Elliott, Finhiy- son i!t Co., and on the .~>th .Inly took, as col- lateral security from Finlaysoii, who was also W. E. Elliott's agent during his ab- sence, a warehouse receipt for 2'.t2 barrels of oil, and the discount was credited to Elliott, Finlayson & Co. On and about the 9th ,Tuly 14(» barrels were sold, and the proceeds, viz., fS3.."j28.3(>, were subsequently, cm the 9th August, credited to the note of $."»,(I87.50. On the 13th .July. McDougall. Logic & Co. 1 failed, and W. E. E. was involved in the I f..ilure to the extent of .$17,000, of which amount the bank held ."j;7,."').")0.3i », and on tlie loth .Tuly, Finlayson, as agent for W. E. E., left with the iiank as collateral security against W. E. E.'s indebtedness of .$7,.~w9.3b I on the paper of Mcl)'>ug.-'.11, Logie & Co., j customers' notes to the amount of .S2.708.2.'^ j upon which the bank collected .'«1,t'>03.43. i and still kept a note of .1. I'. &: Co. unpaid i of .'i;i,10.").32. On the return of W. E. E„ r.n- other note of .John Elliott iV Co.. Tor ; .151.101.33, previously discounted by W. E. I E.. became due at the bank, thus leaving i a total debit of the Elliott firms, on their i .ioint jiaifcr. of .$2.t!f,0.."i:!. The old note of I .S!.">,087.."">0 due 1st October, and the one of ! ?!1.101..33 were signed by .John i;iliott & Co., j and on the lOfh August were replaced by ! two notes signed by Elliott, Finlayson & Co.. ; and secured by 200 barrels of old. 140 barrels ; remaining from the original number pledginl. ' and tin additional wiirehouse recei]it of ."4 barrels of oil, incbu'seil o.ver by W. E. E. to ii2 DEBTOR AND CREDITOR. Fiuluyson, Elliott & Co., and by them to the baiik. Thi" n'six)!i(U'iit. as (•iiiuti.r for the estate of W. K. lOlliolt A: Co., chiiiiied that the iph'(lf,'e of the lilHi liarrels of oil on the null Aii^'ii.st, aiitl the Kivinji of tlu? Holes on the Kith .July to the hank, were IrautlulenL lirefercnecs. The Suiierior Court held tl^al the i>ank had knowledge of \V. E. E.'s iusol- vent condition on or about the 13th of .July, and declared that they had received fraudu- lent iireferences by receiviuK W . E. E.'s customers* notes, and the l!l»l barr.'ls of oil, but the (J;>urt of Aiiiieal. revcrsinj; in part the jiidf^nient of the Sui)erior Court, held that tiie jilediriuK of the liUO barrels of oil by Elliott, Eiiilayson iV: Co. on the Kith August was not a fraudulent iirefert-nce. On an ai'iieal and cross-appeal to the Su- preme Court: llrld. 1st, That the finding of the Courts below of the fact that the bank's knowledge of W. E. Elliott's insolvency dated from the 13th .Tuly, was sustained by evidence in the case, and there had therefore been ji fraud- ulent preference given to the bank by the ins(dvent in transferring over tn it all his customers' paper not yet due. Gwyiine, .T.. dissenting. 2udly, That the additioual security given to the bank on the Idth of August of .14 barrels (d' oil for the substituted notes of Elliott. Fiida.\son & Co.. was also a fraudulent preference. Gwyune, .L.dis.senting. 3rdly, Itoversiiig the judgment of the Court of Queen's Bench and restoring the .iudgment of the Superior Court, that the legi;l effect of the transaction of the 10th August wa.s to release the pledged 140 bar- rels of oil, and that they became immediately the projierty of the isolveiit's creditors, and could not l)o hehl b., the bank as collateral seciu'it.v for Elliott, Finlayson iS: Co.'s sub- stituted notes. O Wynne and Patterson, JJ., dissenting. Stevenson v. Canadidn liavk of Commerce, xxiii., 530 5. — Loan by' Savings Bank — Pledge of Securittes pop. — Validity of — Insol- vency OF Borrower — Bight of Cura- tor TO Impugn Transaction— R. S. C. c. 122. s. 20. L. borrowed a sum of money from a sav- ings bank which he agreed to repay with in- terest, transfesring in pledge as collateral se- curity letters of credit on the Governmont of Quebec. Ta having become insolvent the bank filed its claim for the amount of the loan, with interest, with the curator of the estate, and on appeal the appellants, as credi- tors of E., contested on the ground that the said se<-urities were not of the chiss nientioncd in the Act relating to savings banks (K. S, C. c. 122, s. 2!M> C. C. frnui claiming bai-k the money with interest, Hani; of Toronto v. I'crhhis (8 Can. S. C. It. 'M\i, distinguished. Holland V. La Caisse d'Ecoiujmie de QiielMV. xxiv., 4i),"i (!. — Agreement — Conditional License to take I'ossessio.n of Goods — Creditor'.s Opinion of Debtor's Incapacity — Bona Fides of— Beplevin— Conversion, F., a trader, having become insnlvont, and being indebted among others to the linn of T. M. & Co.. composed of T. and M., ar- ranged to pay his other creditnrs .")i» per cent, of their claims, T. M. tfc Co., indorsing hi^ notes for securing such p.ayment, they to lie paid in ftill, but payment to Ik* postponed until a future named day. T. M. & Co. were secured for indorsing by an agreement under seal, by which it was agreed that if F. should ;it any time, in the opinion of T. M. & Co., or either of them, become incai>able of at- tending to his business, the debt due T. M. & Co.. should at once become due, and they could take possession of the stock in trade, book debts, and property of F., and sell the same for their claim, having first served on F. .a notice in writing, signed by the firm ntinie, stating that in their opinion F. was so incapable: and that on a change in the firm of T. M. & Co., the agreement should enure to the benefit of the firm as changed if it assumed the liabilities of, and took over T.'s indebtedness to the old firm. This ar- rangement was carriennieil iiosscssion, lint when T. M. l^k; Co. returiieil on said day he disputed their ri^'lit, anil ejected tlieni from the premises. Two days after he assigned to tlie olHeial i assifinee for the l>enetit of all Iiis creditors. | and T. yi. & Co. issued a writ to replevy the i goods fioni him and the assignee. ! Hi hi, iillirniing tlie decision of the Court ! of IJtn'eii's Hench. (Jwynne, J., dissenting, that V. and the assignee were guilty of a joint conversion of the property replevieil. to 1>. as security for indorsements on a com- p()sition with his creditors, and f(jr advances in cash, and goods to a fixed amount. The composition notes were made and indorsed by B., who made advances to an amount considerably over that stated in the mort- gage. A few months after the mortgagor was in default for the advances and a por- tion of overdue notes, and there were some notes not matured, and B. consented to the sale of one of the mortgaged stocks, taking the purchaser's notes in payment, applying the amount generally in payment of his over- due debt, part of which was unsecured. A few days after B. seizwl tlie other stock of goods covered by ais mortgage, and abivut the same time the sheriff seized them um.er execution, and shortly after the mortgagor assigned for benefit of creditors. An inter- pleader issue between B. and the execution creditor resulted in favour of B., who re- ceived out of the proceeds of the sale of the goods under an order of the Court, the bal- ance remaining due on his mortgage. Jlors- falt v. Boisseau (21 Out. App. R. G03). The assignee of the mortgagor then brought an action against B. to recover the amount re- presenting the unsecured part of his debt, which was paid by the purchase of the first stock, which payment was alleged to be a preference to B. over the other creditors. Held, affirming the decision of the Court of Appeal, that there was no preference to B. within R. S. O. [18871 c. 124. s. 2: that his position was the same as if his whole 8.4 DEBTOR AND CREDITOR. debt secured and unsecured bad been over- due, and there had been oiie sale of both stocks of goods, realizing an amount equal to such debt, in which case he could have appropriated a portion of the proceeds to payment of his secured debt, and would have had the benefit of the law of set-off as to the unsecured debt under s. 23 of the Act; and that the only remedy of the mortgagor or his assignee was by redemption l.ofore the sale, which would have deprived B. of the bsnetit of such set-off. mcpluna V. lioi'Sscau xxvi., 437 10.— Debtor anu Creditor— Security for Debt — Secukity IIealized by Creditor — Appropriation of Proceeds — Res Judicata. If a merchant obtains from a jank a line of credit on terms of depositing his custom- ers' notes as collateral security, the bank is not obliged, so long as the paper so de- positeil remains uncollected, to give any credit in respect of it, but when any portion of the collaterals is paid it operates at once as payment of the merchant's, debt, and must be credited to him. Under the Judicature Act, estoppel by res judicata- cannot be relied on as a defence to an action unless specially pleaded. Cooijer it al. v. The Molsoiis Bank, xxvi., 611 (Decision affirmed on appeal to Privy Council). 11. — Assignment for the Benefit of Creditors — Preferred Creditors — Moneys Paid Under Voidable Assign- ment — Liability of Assignee — Statute of Elizabeth— Hindering and Delay- ing Creditors. In an action to have a deed of assignment for the benefit of creditors set aside by creditors of the assignor on the ground that it is void under the statute of Elizabeth, neither moneys paid to pr-.\ red creditors nor trust property disposetl of in good faith by the assignor or persons claiming under him can be recovered, nor can persoi"* hold- ing under the deed be held persons i' liable for moneys or pi\ii>erty so received Iiy them. Cox v. Worrall (20 N. S. Rep. 30(5). ques- tioned. Taylor v. CiimmHi{)s xxvii., 589 12. — Insolvency — Fraudulent Prefer- ences—Chattel Mortgage — Advances OF Money — Solicitor's Knowledge of Circumstances- R. S. O. (1887) c. 124— r.4 Vic. c. 20 (Ont.)— 58 Vic. c. 23 (Ont.). In order to give a preference to a particu- lar creditor, a debtor who was in insolvent circumstances, executed a chattel mortgage upon his stock in trade in favour of a money- lender, by whom a loan was advanced. The money, which was in the hands of the mort- gagee's solicitor, who also acted for the pre- ferred creditor throughout the transaction, was at one time paid over to the creditor who, at the same time, delivered to the soli- citor, to bo held by him as an escrow and dealt with as circumstances might require, a bond indemnifying the mortgagee against any loss under the chattel mortgage. The mortgagee had previously been consulted by the solicitor as to the loan, but was not in- formed that the transaction was being made in this manner to avoid the appearance of violating the acts respecting assignments and preferences, and to bring the case within the ruling in Oibbwia v. JVilson (17 Ont. App. R. 1). Held, that all the circumstances, necessar- ily known to his solicitor in the transaction of the busness. must be assumed to have been known to the mortgagee, and the whole affair considered as one transaction con- trived to evade the consequences of illegally preferring a particular creditor over others, and that, under the circumstances, the ad- vance made was not a hond fide payment of money within the meaning of the statutory exceptions. Bums d L€iici« v. Wilson . . xxviii., 207 13.— Assignment for Benefit of Credi- tors — Preferred Creditors — Money Paid Under Voidable Assignment — Levy and Sale under Execution- Statute of Elizabeth. Where an assignment has been hold void as against the statute, 13 Eliz. e. 5, a'.id the result of such decision is that a creditor who hfid subsequently obtained judgment against the assignor, and notwithstanding the assignment, sold all the debtor's personal property so transferred', becomes entitled to all the personal property of the assignor levied upon him under his execution, such creditor has no legal right and no equity to an account or to follow moneys received by the assignee, or paid by him under such assignment in resi)ect to which he has not secured a prior claim by taking the neces- sary proceedings to make them exigible. Cummiings £ Sons v. Taylor et al., xxviii.. 337 14.— Fraudulent Preferences — Transfer op Property — Delaying or Defeating Creditors— 13 Eliz., c. 5. A transfer of property to a creditor for valuable consideration, even with intent to prevent its lioing seized under execution at DEDICATION. 85 the suit of another creditor, and to delay the latter in his remedies or defeat them al- together, is not void under 13 Eliz. c. 5, if the transfer is made to secure an existing debt and the transferee does not, either directly or indirectly, make himself an in- strument for the purpose of subsequently benefiting the transferor. Mnlculiy v. Archibald . . . . xxviii., 523 15. — CREDrroRS of Company — Payment on Shares — Appropriation by Directors —Part treiated as Paid up — Validity OF. So; Company, 1. 16. — Prescription — Unpaid Note — Security for, by Deed — Novation. See Prescription, 1. 17. — Assignment for Benefit of Credi- tors — Preference — Hindering and Delaying — Statute of Elizabeth. Sar Chattel Mortgage, 3. 18.— Debt of Province of Canada to Dominion — Half-yearly Payment of Subsidies — Deduction of Interest — B. N. A. Act. ss. 112, 114, 115. 116, 118— 30 A^ic. c. 30 (D.)-47 Vie. c. 4 (D.). Sec Constitutional Law, 10. 19. — Purchase of Land by Married Woman — Re-sale — Garnishee of Pur- chase Money — Debt of Husband — Statute of Elizabeth — Hindbring or Delaying Creditors. Sor Practice, 19. "20. — Vendor and Purchaser — Agreement FOR Sale of Lands— Assignment by Vendee — Principal and Surety — De- viation FROM Terms of Agreement — ntvTXG Time — Creditor Depriving St-rety of Rights — Secret Dealings WITH Principal — Release of Lands — Arrsars of Interest — Novation — Dis- charge OF Surety. Sec Principal and Surety, 3. ■21.— Execution— Sales under Execution — Equitable Rights — Unregistered Transfers— Registr,\tion — Real Pro- perty Act— R. S. C. c. 51; 51 Vie. (D.) c. 20. »Sn- Registry Laws, 3. 22.— Chattel Mortgage — Existing Debt - Consideration-— Purchase by Credi- tor. Bee Chattel Mortgage, 7. 23. — Partnership — Division of Assets — Art. 1898 C. C— Mandate— Debtor and Creditor — Account. Soe Partnership, 8. 24. — Principal and Surety— Guarantee Bond — Default of Principal— Non- disclosure by Creditor. See Principal and Surety, 4, 25.— Con-%'eyance in Name of a Trustee — Fraudulent Device — Parties in Pari Delicto, See Trusts, 9. 20. — Insolvency — Assignment — Prefer- ence — I'ayment in Money — Cheque of Third Party. See Insolvency, 3. 27. — Assignment for the Benefit of Creditors — Affidavit of Bona Fides — Preferences— Distribution of Assets — Arbitration — Conditions of Deed — Statute of Elizabeth. Sec Maguire v. Hart xxviii.. 272 28. — Estoppel — Con\'eyance by Married Woman — Agreement — Recital. See Fraudulent Conveyances. 29. — Married Woman — Separate Pro- perty-Conveyance — Contracts— C. S. N. B. c. 72. See Married Woman, 3. DEDICATION. 1. — Old Trails in Rupert's Land — CR0Tv:>r Grant — Squatter's Plan of Sltb- DivisioN — Substitution of New Way — Dedica-'ion — Highway— Adopting New Street as a Boundary. A squatter in possession of public lands near the old Hudson Bay Trading Post at Ednmnton, who afterwards became patentee of the greater part of the lands he occupied, had made a plan of sub-division thereof into town lots, which showed a new- roadway or street laid down in the place of the old travelled trail across said lands leading to the trading post, and subse- quently, the Crown, in making grants, de- scribed several parcels of the lands in the patents as being bounded and abutting upon the said new street, or roadway, so laid down on the plan. TTrld, affirming the decision of the Supreme Court for the North-West Territories, that the space so shown upon the plan, as laid 86 DEED. out for a street, had been adopted and de- dicated by till' Crown as and for a public street and higliway, in substitution for the old travelled trail or roadway across said lands. Brown ct al. v. The Town of Edmonton, 24th May, 1S!)4 xxiii., 308; xxviii., 510 i;. — Constitutional, I^aw^ — Navigable Waters— Title to Bed of Stream — Crown — Dedication op Public Lands — Presumption of Dedication — User — Obstruction to Navigation — Public Nuisance— Balance of Convenience. Sec Navigable Waters, 1. .3. — Municipal Corporation — Highways — Old Trails in Rupert's Land — Sub- stituted Highway — Necessary Way — K. S. C. c. 50, s. 108 — Reservation in Crown Grant — Dedication — User — Estoppel — Assessment of Lands claimed as Highway — Evidence — Presumption. -See Highway, 3. DEED. 1. — Description of Land — Extent — Ter- minal I'oiNT— Number of Rods— Rail- way Co. A specific lot of land was conveyed by deed, and also: " A strip of land twenty- five links wide, running from the eastern side of the aforesaid lot along the northern side of the railway station about twelve rods unto the western enu of the railway station ground, the said lot anu "trip together con- taining one acre, more or h-ss.'' Held, reversing the decision of the Supreme Court of Nova Scotia, Taschereau, .T., dis- senting, that the strip conveyed was not limited to twelve rods in length, but ex- tended to the western end of the station, which was more than twelve rods from the starting point. Doyle V. McPlice xxiv.. C\7> 2. — Construction of Deed — Conveyance OF Land — Uncertain Description — E\^DENCE OF Intention— Verba Fortius AcciPUNTUR Contra Proferentem — Maxim Applied — Patent Ambiguity. A grant of land bounded by the bank of a navigable river, or an international water- way, does not extend ad medium fthim as in the case of a non-navigable river. If in a conveyance of land the de.sciip- tion is not certain enough to identify the locus it is to be construed according to the language of the instrument, though it may- result in the grantor assuming to convey more than his title warranted. The intention of the parties to a deed is jiaramoimt and must govern regardless of consequences. Res magis valeat quam peirat is only a rule to aid in arriving at the inten- ti(m, and does not authorize the Court to override it. A general description of land as being part of a specified lot must give way to a particu- lar description by boundaries, and, if neces- sary, the general description will be rejected as falsa demo-nstratio. Where there is an ambiguity on the face of a deed incapable of being explained by extrinsic evidence the maxim verba fortius accipiuntur contra proferentem cannot bo ap- plied in favour of either party. Where a description is such that the p:iint of commencement cannot be ascertained it cannot be determined at the election of the grantee. Barthel v. Scottcn xxiv., 367 3.— Mortgage of Trust Estate— Equity Running with Estate— Equitable Re- course — Construction op Deed — Description of Lands — Falsa De- monstratio — Water Lots — Accretion: TO Lands — After Acquired Title — Contribution to Redeem — Discharge. OP Mortgage — Parol Evidence to Ex- plain Deed — Estoppel by Deed. On the dissolution of the firm of A. & Co. by the retirement of C. D. A. the business was carried on by the remaining partners T. a. and B. A., on the same premises, which were the property of C. D. A., the continuing partners agreeing to pay off a mortgage thereon as one of the old firm's debts. They neglect(>d to pay, and the prop- erty was sold by the sheriff under a fore- closure decree, when they purchased and took a deer-acquired property, such property was not liable to contribute towards payment of the mort- gage debt. Imrw V. Archihald tt nJ xxv., "jfiS 4. — CoxTRArT— Subsequent Deed — Incon- sistent Provisions. C. by agreement of April 0th, ISOl, agreed to sell to the Erie County Oas Co.. all his gas grants, lenses and franchises, the com- pany agreeing, among other things, to " re- serve gas onougl' to supply the plant now oix>rated or to be operated by them on said prhperty." On April 20th a deed was exe- cuted and delivered to the company, trans- ferring all the leases and property speci- fied in said agrcK-'ment, but containing no reservation in favour of C such as was contained therein. The Erie Company, in 18t»4, assigned the property transferred by said deed to the Provincial Natural Gas and Fuel Company, who inmiediatcly cut off from the works of C. the supp'.y of gas, and an action was brought by C. to prevent such interference. Held, affirming the decision of the Court of Appeal, that as the contract between the parties was embodied in the deed subse- quently executed the rights of the parties were to bo determined by the latter instru- ment, and as it contained no reservation in favour of C. his action could not be main- tained. Carroll V. ProviitcUil Natural Oas and Fuel Company of Ontario xxvi., 181 i). — Registry Laws— Registered I>f.t;d — Priority over Earlier Grantee- Postponement — Notice. To postpone a deed which has acquired priority over an earlier conveyance by regis- trntion. actual notice, sufficient to make the conduct of the subsequent jnirchaser in tak- ing nnd registering his conveyance frauchi- lent, is indispensable. Th? ycie Brttn^irick KaiUray Company v. Kelly xxvi., 341 G.— Construction of Deed — Title to liANos — Ambiguous Description — Evidence to Vary or Explain Deed — I'ossession — Conduct of Parties — Presumptions from Occupation of Premises — Arts. 101!), 1288. 1242, 1473, 1500 C. C.-47 Vic. c. S7, s. 3 (D.): 48 & 49 Vie. c. 58, s. 3 (D.)-45 Vic. c. 20 (Q.). By a deed made in August, 18S2. the ap- I>ellant ceded to the Government of Quebec, who subsequently conveyed to the respon- dent, an immovable described as part of Lit No. 1037, in St. Peter's Ward in the City of Quebec, situiitcd between the streets St. Paul. St. Roch. Henderson and the river St. C'liirles, with the wharves and buildings thereon erected. The respondents entered into possession of the lauds by virt'ie of saient of the Court of Queen's Bench for I^ower Canada, the Chief Justice and King, J., dissenting, that the Avords " Henderson Street " as used in the deed must be construed in their plain natural s^juse as meaning the street of that name actually existing on the ground; that the correspondence was not shown to contain all the negotiations or any finally concluded agreement, and could not be used to con- tradict or modify the deed which should be read as containing the matured conclusions at which the parties had finally arrived; that the deed should be interpreted in the light of the conduct of the i>firties in taking and remaining so long in possession without ob- jection, which raised against them a strong presumption, not only not rebutted but strengthened by the facts in evidence; and that any doubt or ambiguity in the deed, in the absence of evidence to explain it, should be interpreted against the vendees, and in <'avour of the vendors. The City of Quebec v. The T^orth ffhore Rail- tray Company xxvii., 102 7.— XuLLiFiKD Deed — Compromise— Trans- action — Estoppel — Admission — Evi- dence. A deed was entered into by the parties to a suit in order to effect a comi>romise of family disputes and prevent litigation, but failed to attain its end, and was annulled and set aside by order of the Court, as being in contravention of article 311 of .ihe Civil Code of Lower Canada. Hcl(}. Gironanl. .T., dissenting, that uiwn the nullification of the deed no allegation fontaiiieil in it could subsist even as an ad- mission. Durocher v. Diimrher xxvii., 3!)3 8.— Construction of Deed — Servitude — KOADWAT — FSEK — ArT. ,"-1() C. C. In 1831 the owners of several contiguous farms i)urchased a roadway over adjacent lands to reach their cultivated fields beyond a steep mountain which crossed their prop- erties, and by a clause Inserted in the deed, to which they all were patties, they resix'ctively agreed " to furnish roads upon their respective lands to go and come by the above purchased road for the cultivation of their lands, and that they would maintain these roads and make all necessary fences and gates at the common expense of them- selves, their heirs and assigns." Prior to this deed and for some time afterwards, tiic use of a road from the river front to a pub- lic highway at some distance farther back, had been toleratetl by the plaintiff and his autcurs, across a portion of his farm whidi did not lie between the road so purchased over the spur of the mountain, and the near- est iK)int on the boundary of the defendant's land, but the latter claimed tl;e right to con- tinue to use the way. In an action (ncgatoire) to prohibit further use of the way; Ih'Ut. affirming the decision of the Court of Queen's Bench, that tl;ere was no title in writing sufficient to establish a seiwitude across the plaintiff's land over the r )!ulway so permitted by mere tolerance; that the effect of the agreement between the pur- chasers was merely to establish servitudes across their respective lands so far as might be necessary to give each of the owners ac- cess to the road so purchased from the near- est practical)le jwi-it of their respective lands across intervening properties of the others for the purpose of the cultivation of their lands })eyond the mountain. Riou V. Rioii xxviii., ."iS 9. — Form of Title to Lands — Signature BY a Cross — 10 Vic. c. 1.5, s. 4 . See Appeal, G5. DISSEISIN. Crown Grant — Desseisin of Grantee — Tortious Possession — Statute of ^Iaintenance— 32 Hen. VIII., c. »— Estoppel. See Title to Land, 3. DISTRESS. Landlord and Tenant— R. S. O. U887) c. 143, s. 28 — Construction of Statute —Distress— Gooijs of Person Holding " UNDER " Tenant— Estoppel. The Ontario Landlord and Tenant Act (R. S. O., 1887, c. 143, s. 28), exempts from distress for rent the property of all persons except the tenant or persons liable. The word " tenant " includes a sub-tenant, as- signees of the tenant and any person in ac- tual occui»atiou under or with consent of the tenant. Held, reversing the judgment of the Court of Appeal, that persons let into possession by a house agent appointed by assignees of a leuaut for the sole puiiiosc of exhibiting the premises to prospective lessees, and with- out authority to let or grant possession of them, were not in occupation " under " the said assignees, and their goods were not liable to distress. Farewell et al. v. Jameson . . . . xxvi., 588 DISTRIBUTION. See Judgment of Distribution. DOMINION LANDS. -See Crown Lands. DONATION. Sale — Donation in Form of— Gifts in Contemplation of Death — Mortal Illness of Donor— Presumption of Nullity — Validating Circumstances — Dation en Paiement — Arts. 702. 98& C. C. S'^c Sale, 9. DON MUTUEL. By Marriage Contract — Property Ex- cluded From— Subsequent Acquisition — Resiliation for A'alue — Death op Husband — Right op Widow to Posses- sion. See Marriage Settlement. DOWER. Construction op Will — Executory De- vise Over — Contingencies — "Dying Without Issue " — " Revert " — An- nuity—Election BY Widow — Devolu- tion OF Estates Act. 40 Vic. (O.) c. 22 — Conditions in Restp^int of Mar- riage—" The Wills Act of Ontario." R. S. O. (1887) c. 109. s. 30. See Will. 10. DRAIN ACE— DUTY, STATUTABLE. 9» DRAINAGE. 1.— By-law— Drainage Act — Petition for Drain — AVithdrawal of Name From — Improper Construction. The action wns brought by Gibson to have a hy-liiw of the t'oviwration quaslied, or, in tho alternative, for damages fur injury to liis liroia-rty, resulting from improper construc- tion and want of repair of a drain made under said by-law. The grt)Und upon Avhich said by-law was attickcd was that the plain- tiff had withdrawn from the petition and there were not suUicient names on it with- out him. The trial .Judge held that plaintiff had n.)t withdrawn from tho petition, and refused to 'inash the by-law. lie also held that plaintiff had failed to prove his allegations in the statement of claim on which his right to (himages was founded. The Divisional Court reversed this decision on the first ground, and held the by-law invalid. The Court of Appeal for Ontario (lil Ont. App. R. 504). restored the original judgment. The Supreme Court of Canada affirmed the judgment appealed from and dismissed the appeal with costs. (Hhmii V. The Township of yorlh Easthopc, 2-2nd March, 1805 . . ..... . . xxiv., 70" 2.— Municipal Law— Drains and Water- courses—Assessment — INTERMUNICIPAL Obligations as to Initiation and Con- tributions — By-law — Ontario Drain- age Act of IST-S— 3G Vic. c. 38— (O.)— ."ii; Vic. c. 39 (O.)— R. S. O. (1887) c. 184— Ontario Consolidated Municipal. Act OF 1802—55 Vic. c. 42 (O.)- The provisions of the Ontario Municipal Act (55 Vic. c. 42, s. 500), that if a drain constructed in one municipality is used as an outlet, or will provide an outlet for the v.-ater of lands of another, the lands in the latter so benefited may be assessed for their proportion of the cost. a]>plies only to drains properly so called, and does not include or- iginal watercourses which hare been deep- ened or enlarged. If a municipality constructing such a drain has passed a by-law purporting to assess lands in an adjoining municipality for con- tribution to the cost, a person whose lands might appear to be affected thereby, or by any by-law of the adjoining municipality proposing to levy contributions toward the cost of such works, would be entitled to have such other municipality restrained from passing a contributory by-law. or taking any j steps towards that end, by an actiun brought before the passing of such contributory by- law. Bnyughton v. Oiry and Elma . . xxvii., 495 3. — Adjoining Municipalities — Defective! ScHE.ME — Tort Feasors — Drainage Trials Act, ,54 Vic. c. 51 — I'owers op Referee — Negligence. See Municipal Corporation, 10. 4. — Award by Drainage Referee — Appeal. —Jurisdiction— 54 Vic. c. 51 (Ont.). See Appeal, 32. 5. — R. S. O. (1887) c. 220— Requisition for Drain— Owner of Land — Meaning of Term "Owner." See Municipal Corporation, 13. G. — Municipal By'-law — Special Asse^ss- ments — I'owers of Councils as to Ad- ditional Necessary Works — Ultra Vires Resolutions— Executed Con- tract. See Municipal Corporation, 24. 7. — Aggravation of Natural Servitude — ...^Low OF Water — Sewage — Lands on I.,owER IjEvel — Damages — Art. 501 C. C. Sec Easement, 1. 8.— Assessment — Extra Cost of Inter- municipal Works — R. S. O. (1877) c. 174—40 Vic. c. 18 (Ont.)— By-law- Repairs — Misapplication of Funds — Negligence — Damages. i>^c Watercourses, 1. 9. — Easement— Adjoining Proprietors or Land — Injury by Surface Water — Different Levels. See Watercourses, 2. DUTY, STATUTABLE. Master and Servant — Negligence — " Quebec Factories Act " — R. S. O. Arts. .30jJ to 3058— C. C. Art. 1053— Civil Responsibility — Accident. Cause of — Conjecture — Evidence — Onus of Proof — Statutable Duty, Breach of- — Police Regulations. See Master and Servant, 7. 93 "DYING WITHOUT ISSUE "—EASEMENT. "DYING WITHOUT ISSUE." 1. — Will, Construction of — Executory Devise Ovek— Conditional Fee— Life HiSTATE — Estate Tail. A testator tlied in IHoij, having pri'viously made liis last will, divided into uumbered paragraphs by which he devised his pro- l>erty ainuiigst certain of his children. By the third clause he devised lauds to his son F. on attaining the age of -1 years — " giving the executors imwer to lift the rent and to rent, said executors paying F. all former rents due after in.v decease up to his attain- ing the age of Ul years, and by a subsequent clause he provided that " at the death of any one of my sons or daughters iiaving no issue, their proimrty to l>e divided I'qually among the survivors." F. attained the age of 21 years and died in 1893, unmarried and without issue. Held, that neither the form nor tlic lan- guage used ill the will would authorize a departure from the general rule as to con- struction according to the ordinary gram- matical meaning of the words used by the testator, and that, as there would be no alv surdity, repugnance or inconsistency in such a construction of the will in question, the subsequent clause limiting the estates be- queathed by an executory devise over must be interpreted as referring to all the pro- perty devised to the testator's sons and daughters by the preceding clauses of the ■will. Held, further, that the gift over should be construed as having reference to failure of issue at the death of the tirst devisee, who thus took nn estate in fee subject to the executory devise over. Orairford ct ah r. Broddy ci ah, xxvi.. 34.^ 2. — Construction of Will — Executory Devise Over — Contingencies — " Re- vert " — Dower — Annuity — Election r.Y Widow — Devolution of Estates Act— 18 Vic. (O.) c. 28— Conditions in Restraint of Marriage — " The Wills Act of Ontario." R. S. O. (188T) c. 109, s. 30. See Will. 10. 3. — Will— Devise to two Sons — Devise Over of One Share— Conditioii — Con- text — Codicil. See. Codicil, 2. 4. — Statute, Construction of — Estates Tail, Acts Abolishing— R. S. N. S. (1 ser.) c. 112— R. S. N. S. (2 SER.) c. 112— R. S. N. S. (3 SER.) c. 111—23 Vic. c. 2 (X. S.) — Will — Construction of — Executory Devise Over — " Dying WITHOUT Issue " — " Lawful Heirs "— " Heirs of the Body " — Estate in Remainder IOxpectant — Statitory Title— R. S. N. S. (2 ser.) c. 114, ss. 2.", and 2-1— Title by Will — Conveyance BY Tenant in Tail. See Will, 17. 5. — Will — Construction of — Words of Futurity — Life Estate — .Toi.nt Lives — I'^ME FOR Ascertainment of ClmVSS — Survivor Dying without Issue — " Lawful Heirs." See Will, 18. EASEMENT. 1. — Aggravavion of Natural Servitude — Damages — Drainage — Art. 501 C. C. The proprietor of a superior tenement, who has increased and aggravated the ser- vitude appurtenant thereto, over adjoining lands of a lov.er level remains liable for damages resulting therefrom, notwithstand- ing that he has complied with the directions of the judgment declaring the aggravation by the roconslrnction in a proper manner of the drain by which the natural servitude had been increased. Vincherif f' f'' v. Hampson, 27th February, 18915. 2. — Necessary Way — Implied Gr>nt — User — Obstruction of Way — Inter- ruption of I'rescription — Acquies- cence — Limitation of A.ctions — R. S. N. S. io SER.) c. 112— R. S. N. S. (4 ser.1 c. 100—2 & 3 Wm. IV. (Imp.), c. 71. ss. 2 and 4. K. owned lands in the County of Lunen- burg, N. S.. over which he had for years utilized a roadway for convenient purposes. After his death the defendant iKH'anie owner of the middle jiortion, the parcels at either end passing to the plaintiff, who cnntinued to use the old roadway, as a winter road, for hauling fuel from his wood-lot to his re- sidence, at the other end of the property. It apjieared that though the three parcels fronted tipon a public highway, this was the only practical means plaintiff had for the hauling of his winter fuel, owing to a dan- gerous hill that prevented him getting it off the wood-lot to the highway. There was not any formed road across the lands, but merely a trfick upon the snow during the winter months, and the way was not used EDUCATION. 93 at any other season of the year. This user j was eujoyed for over twenty years iirior to 1801, when it appeared to liave been lirst disputed, but from that time tiie way was obstructed from time to time up to Mareh, 18114, wlien the defendant built a fence across it that was allowed to remain un- disturbed, and caused a cessation of the ac- tual enjoyment of the way, durinjj the fifteen months immediately precedinjr the comnu'ucement of the action in assertion of the right to the easement by the plaintiff. The statute (K. S. X. S. 5 ser., c. ITii, pro- vides a limitation of twenty years for the acquisition of easements, and declares that no act shall be deemed an interruption of actual enjoyment, unless submitted to or acjtiuiesced in for one year after notice thereof and of the person making the same. //<•?(/, that notwithstanding the customary use of the way as a winter road only, the cessation of user for the year immediately preceding tlie commencement of the action was a bar to the plaintiff's claim under the statute. Held, also, that the circumstances under which the roadway had been used did not supi)ly sutHcient reason to infer that the way was an easement of necessity appurtenant or appendant to the lands formerly held in unity of possession, which would without special grant pass iiy implication, upon the severance of the tenements. Knock v. Knock xxvii., G64 3.— Deed — Construction of — Servitude — Ro.vDWAY — User— Art. 54U C. C. In 1831 the owners of several contiguous farms purchased a roadway over adjacent lands to reach their cultivated fields beyond a steep motmtain which crossed their pro- perties, and by a clause inserted in the deed to Avhich they all were parties they respec- tively agreed " to furnish roads upon their respective lands to go and come by the above purchased road for the cultivation of their lands, and that they would maintain these roads and u)ake all necessary fences and gates at the common expense of themselves, their heirs and assigns." Prior to this deed and for some time afterwards the use of a road from the river front to a public high- way at some distance farther hack, had been tolerated by the plaintiff and his autcurs, across a portion of his farm which did not lie between the road so purchased over the spur of the mountain, and the nearest point on the boundary of the defendant's land, but the latter claimed the right to continue to use the way. In an iction iniyaloin) to prohibit further use of way: Utld, atllrming the decision of the Court of (jueeu's Bench, that there was no title in writing sulticient to establish a servitude across the plaintitfs land over the roadway so iK'rmittcd by mere tolerance; that the effect of the agreement between . the pur- chaser was merely to establish servitudes across their resin'ctive hinds so far as might be necessary to give each of the owners access to the road so i)urclu\sed from the nearest practicable point of their resi>ective lands across intervening properties of the others for the purpose of the cultivation of their lands beyond the mountain. Jtiou V. Ulou xxviii., 53 4. — Adjoining Proprietors of Land — Di. ferext Levels — Injury by Sur- face ^\'ATER — Watercourse. O. and S. were adjoining proprietors of land in the village of Frankford, Ont., that of O. being situate on a higher level than the othex'. In 1875 improvements were made to a drain discharging upon the premises of S., and a culvert was made connecting with it. In 1887, S. erected a building on his land and cut off the wall of the culvert, which projected over the line of the street, which resulted in the flow of water through it being stopped and backed up on the land of O., who brought an action against S. for the damage caused thereby. Ucld, that &.. having a right to cut off the part of the culvert which projected over his land was not liable to O. for the damage so caused, the remedy of the latter, ill he had any, l)eing against the municipality for not properly maintaining the drain. Oatrom y. Sills et al xxviii., 485 5. — Trespass — Damages — Equitable In- terest—Municipal Bt-L.\W — ItEGISTRA- TioN— Notice— K. S. O. (1877) c. 114. ; Sec Municipal Corporation, 21. And sec Servitude. EDUCATION. 1. — Powers op Provincial Legislatures — Manitoba Constitution — Rights Pre- judicially Affected— .33 Vic. c. 3, s. 22, s.-s. 2— B. N. A. Act, s. 93 s.s. 3. See Constitutional Law, 3. 2. — School Corporation — Decision ot" Superintendent of Public Instruc- tion— ^Vppeal—Fin.\l Judgiient— ^Ian- I damus— Practice. I See Mandamus, 1. 94 ELECTION LAW. ELECTION LAW. 1,_I3lbction 1'etition— Appeal— Dissolu- tion OF I'AHLIAMENT- AbATKMENT OF PrOCESKDINOS— ItKTritN OF l)f:P08ITS— Paymknt out of Court Khlow — I'HACTK^l-;. In the interval between the taking of uu ain)eal fmin tlie decision in tlie matter of u controverted electioa, and the sittings of the Supreme Court of Canada, wlien the ainteal was to liave l)een heard. Parliament was dissolved, and the iietitlon was droMH'd and deelareil to have abated in consi'qnence, by the judgment of His Lordship Mr. .lustico I'atterson, sitting as a Judge of the Su- preme Court of Canada in ChamlnTS. (19 Can. S. C. 11. 5")?). During a subsequent session of the Supreme Court, a motion was made on behalf of the petitioner for an order directing payment out of the Court below of the deposit made in that Court as security for the costs of the i)etition, and also of the further deposit nuide in said Court below as security for tlie costs of the appeal to the Supreme Court. Held, that the petitioner was entitled to a special order declaring and ordering that the moneys so deposited should be v>aid to the petitioner out of the said Court below. The naltnn Election Casi—Liuih v. Waldie, loth March, 1893. 2. — Election Petition— Separate Trials— R. S. C. c. 9, ss. 30 AND 50— Jurisdic- tion. Two election petitions were filed against the appellant, one by A. C, filed on the 4th April, 1S92, and the other by A. V., the re- spondent, filed on the Gth April, 1892. The trial of the A. V. iK-tition was by au order of a .Tudge in Chambers, dated the 22nd September, 1892. fixed for the 26th October, 1892. On the 24th October the appellant petitioned the Judgo in Chambers to join the l.vo petitions and have another date fixed for the trial of both petitions. This motion was referred to the Trial .Judges, who, on the 2r>th October, before proceeding with the trial, dismissed the motion to have both petitions joined and proceeded to try the A. V. petition. Thereupon the appellant ohjectofl to the petition being tried then as no notice had been given that the A. C. peition had been fixed for trial, and, subject to such objection, filed an admission that sufficient bribery by the appellant's agent without his knowledge had been committed to avoid the election. The Trial Judges then delivered judgment setting aside the elec- tion. On an appeal to the Supreme Court, Jlold, 1st. That under sec. ;J0 of chap. 9. K. S. C. the Trial Judge had a iK-rfect right to try tlie A. V. in-tition «ei)arately. 2nd. That the ruling of the Court below on the olijection relied on in the present appeal, viz.: That the Trial Judges could not proceed with the petition in this case, because the two petitions filed had not been bracketed by the I'rothonotary as directed by sec. 30 of chap. 9, It. S. C, was not an appealable judgment or decision. (It. S. C. c. 9, s. .'lOl. Sedgewick. J., doubting. The Vaudrcuil Election Case . ■ . . xxii., 1 3. — Election Petition — Service— Copt- Status OP Petitioner— I'RELiiiiNARY Objection. On the hearing of preliminary objections to an election i^etition to prove the status of the petitioner a list of voters was offered with a certificate of the Clerk of the Crown in Chiincery, which, after stating that said list was a true copy of that finally revised for the district, proceeded as follows: '" And is also a true copy of a list of voters which was used at said polling division at and in relation to an oleeton of a member of the House of Commons of Canada for the said electoral district * * * which original list of voters was returned to me by the return- ing officer for said electoral district in the same plight and condition as it now appears, and said original list of voters is now on record in my office." Held, that this was, in effect, a certificate that the list offered in evidence was a true copy of a paper returned to the Clerk of the Crown by the returning officer as the very list used by the deputy returning officer at the polling di. trict in question, and that suck list remained of record in possession of said clerk. It was then a sufficient certificate of the paper offered being a true copy of the list actually used at the election. Richelieu Election Case (21 Can. S. C. R. 168). fol- lowed. Wivnipe/f Election Caae. Macdonald Election Case xxvii., 201 4. — Appeal — Election Petition — Prelimin- ary Objection — Delay in Filing- Objections Struck Out — Order in Chambers— R. S. O. c 8, 3. 50. The Supreme Court refused to entertain an appeal from the decision of a .Judge in Chambers granting a motion to have pre- liminary objections to an election petition struck out for not being filed in time. Such decision was not one on preliminary ob- jections within sec. 50 of the Controverted ELECTION LAW. 95 Election Act, nneal given to the Supreme Court of Canada by The Controverted Elections Act (R. f^. C. c. It, s. o't), from a decision on preliminary objections to^ an election i>eti- tion can only be taken in resi>ect to objec- tions tiled under sec. 12 of the Act. No appeal lies from a judgment granting a mo- tion to tlismiss a petition on the ground that the affidavit of the petitioner was un- true. Marquette Election Case . . . . xxvii., 21Q G. — Election 1'etition — Preliminary Objections — Affidavit of I'etitioner —Bona Fides— Examination of De- ponent—Form of Petition — R. S. C. c. 9—54 & 55 Vic. c. 20, s. 3 (D.). By 5-1 & 55 Vic. c. 20, s. 3, amending The Controverted Elections Act (K. S. C. c. 0), an election petition must be accom- panied by an affidavit of the petitioner "that he has good reason to believe and verily does believe that the several all'^gations con- tained in the said petition are true." The petitioner in this case used the exact words of the Act in his affidavit. Held, that the respondent to the petition was not entitled on the hearing on prelim- inary objections to examine him as to the grounds of his belief. Held, further, that it was not necessary that the petition should be annexed to or otherwise identified by the affidavit, as in case of an exhibit, the references in the affidavit being sufficient to show what peti- tion was referred to. It is no objection to an election petition that it is too general (as by the Act it may be in any prescribed form) if it follows the form that has always been in use in the province. Moreover, any inconvenience from generality may be obviated by particulars. Liinenbiirg Election Case . . . . xxvii., 226 7. — Election Petition — Preliminary Objections — Service of Petition — Bailiff's Return — Cross-Examination — Production op Copt. A return by a bailiff that he had served an election petition by UeaJving true copies, " duly certified." with the sitting member is a sufficient return. It need not state by whom the copies were certilied. (Articles 5G and 78 C. C. 1'.). (,'ounsel for the iierson served will not be allowed to crosn-examine the bailiff as to tlv- contents of the copies served without pro- ducing them or laying a foundation for sec- ondary evidence. Beaulnn-»wi» Election Case . . xxvii., 232 8. — Controverted Election — Corrupt Treating — Agent of Candidate — Limited Agency — Trivial or Unim- porta.nt Corri'pt Act — 54 & 55 Vic. c. 20, s. 19 (D.)— Benefit of. During an election liquor was given to an elector, who at the same time was asked to vote for a particular candidate. Held, that this wa» corrupt treating under section SO of the L>oiniuion Elections Act, It. S. C. e. 8. If a political association is fornici for a place within the electoral district, and it is not shown that there was any restriction on the members to work for their candidate within the limits of that place only, they are his agents throughout the whole dis- trict Though the only corrupt act proved against a sitting member was of a trivial and unimportant character, and he had at public meetings warned his supporters against the commission of illegal acts, yet as such act was committed by an agent whom he had taken with him to canvass a certain locality, and there were circum- stances which should have aroused his sus- picion, he should have given a like warn- ing to this agent, and not having done so he was not entitled to the benefit of the amendment to The Controverted Elections Act in 'A & 55 Vic. c. 20. s. 19. West Prince Election Co.se . . . . xxvii., 241 9. — Election Petition — Preliminary Objections — Filing of Petition — Con- struction OF Statute— R. S. C. c. 9, s. 9 (6)— 54 & 55 A"ic. c. 20. s. o (D.)— R. S. C. c. 1, s. 7, ss. 27 — Interpretation OP Words and T^riis — Legal Holiday. When the time limited for presenting a petition against the return of a member of the House of Commons of Canada expires or falls upon a holiday, such petition may be effectively filed upon the day next follow- ing which is not a holiday. The Nicolet Election Case, 2l8t Nov.. 189S. xxix. Memo. — An application for leave to appeal in this case was refused by the Privy Council. 24th February, 1899. 96 EMINENT DOMAIN— ESTOPPEL. 10. — Libel— Sl^ander — Privileged State- ments — Public Interest — Charging Corruption Against Political Candi- date—Challenging TO Sue — Costs. See Costs, 3. EMINENT DOMAIN. 1.— Appeal — JuRiSDiCTrox— Title to Lands — Municipal Law — By-law — Widening Streets— Expropriation— K. S. C. c. 13."), s. 2l> (b)—o4: t& 55 Yic. c. 25, s. 3— 56 Vic. c. 2t>, s. 1. In au actio!i to quash a by-law passed for the expropriation of land, the contro- versy relates to a title to lands, and an ap- peal lies to the Supreme Court of Canada, although the amount in controversy is less than $2,0U0. The judgment on the merits dismissed the appeal for the reasons stated in the judg- ment of the Court below. (See Q. R. <> Q. B. 345,1. Murray v. Town of Westmount . . xxvii., 579 2. — Public Work — Construction of Trestles — Interference with Pri- vate Property— Injury Caused by the Works — Damages Peculiar to the Property- in Question— Compen-sation. See Public Work, 2. 3. — Crown- Construction- op Public Work — Interference with Public Rights — Injury to Private Owner. See Public Work, 1. 4. — Railway Expropriations — Arbitra- tion—Death OP Arbitrator — Lapse of Time for Award. Sec Railways, 16. 5. — Old Trails in Rupert's Land— Substi- tuted Highway — Necessary Way — Reservation in Crown Grant — ' Dedication — UoER — Estoppel — Evidence. See Highway, 3. 6. — Highways — Old Trails in Rupert's Land— Substitition of New Way — Dedication of Highway. See Highway, 4. 7. — Railways — Eminent Domain — Expro- priation op Lands — .\rbitration — Evidence — Findings of Fact— Duty of Appellate Court— 51 Vie. c. 20 (D.). See Railways. 18. EMPLOYER'S LIABILITY. Sec Master and Servant. " Negligence. ENVOIE EN POSSESSION. Testamentary Executors — Succession — Balance Due by' Tutor — Practice- Action for Account — Provisional Possession— Envoip: en Possession — Parties— Extra Judicial Consent to Form of Action. Sec Executors, 2. EQUITY OF REDEMPTION. Mortgage — Loan to Pay off Prior Incumbrance — Interest — Assignment OF Mortgage — Purchase of Equity op Redemption — Accounts. See Mortgage, 8. ERROR. Vendor and Purchaser— Principal and Agent — Mistake— Con-tract — Agree- ment FOR Sale of Land — Agent Exceeding Authority — Specific Per- formance — Findings of Fact. See Contract, 43. And 8CC Mistake,. ESTOPPEL. 1.— Life Insurance — Wagering Policy — Nullity — Waiver op Illegality — In- surable Interest— Estoppel— 14 Grj. III., c. 48 (Imp.)— Arts. 2474, 2480, 2.590 C. C. A condition in a policy of life insurance by which the policy is declared to become in- oontestaliie upon any ground whatever after the lapse of a limited period, does not make the contract binding upon the insurer in the case of a wagering policy. .Tudgment of the Court of Queen's Bench reversed, Sedgewick, .1., dissenting. Th-e Manvfacturers Life Imuranvc Co. v. Anctil . xxviii., 103 2. — Bona Fides— Conveyance by Married Woman — Agreement— Recital. B.. a married woman, in onler to carry out an agreement between her husband and his creditors consented to convey to the credi- tor a farm, her separate projierty. in consid- eration of the transfer by her husband to her of the stoek and other personal property on, and of indemnity against her personal ESTOPPEL. 97 liability on a mortgage against saitl farm. The conveyance, agreement and bill of sale of the chattels were all executed ou the same day the agreement, to which B. was not a party, containing a recital that the husband was owner of the said chattels, but giving the creditor no security upon them. The chattels having subse(iuently been seized un- der execution against the husband it was claimed, on interpleader proceedings, that the bill of sale was in fraud of the credi- tor. Held, affirming the decision of the Court of Appeal, that the recital in the agreement worked no estoppel as against B.; that as it appeared that the husband expressly refiT^ed to assign the chattels to his creditor there was nothing to prevent him from transier- ring them to his wife, and that the Court of Appeal rightly held the transaction an hoiiest one, and B. entitled to the goods and to indemnity against the mortgage. B'jtilton ct at. v. Boulton . . . . xxviii.. 592 3. — Company — Forfeiture of Charter — Estoppel — Compliance with Statute — Action — Kes Judicata. In an action against a Kiver Improvement Company for repayment of tolls alleged to have been unlawfully citllected it, was alleged that the dams, slides, etc., for which tolls were claimed Avere not placed on the pro- perties mentioned iu the letters patent for the company ; that the company did not com- ply with the statutory requirements that their works should be completed within two years from the date of inc<>riK)ration, where- by the corporate [lowers were forfeited: that false returns were made to the Commis- sioner of Crown I^ands upon which the schedule of tolls was fixed; that the com- pany by its works and improvements ob- structed navigable waters, contraiT to the provisions of the Timber Slide Company's Act. and could not exact tolls in respect of such works. B.v » consent judgment in a former action between the same parties it had been agre(>d that a valu.ator should be appointed by the Commissioner of Crown Lands whose report was to be accepted in place of that provided for by the Timber Slide Conijiany's Act. and to be acted uiwn by the Commissioner in fixing the schedule , of tolls. HcliJ. affirming the judgment of the Court of Ai>iH>al for Ontario, that the above grounds of impeachment were covered by the consent judgment, and were res judicata. S.C.D.— 7 Held, further, that plaintiffs having treated the company as a corporation, using the works and paying the tolls fixed by the Com- missioner, and having iu the present action sued the company as a corporation, were prec-luded from impugning its h-gal exis- tence by claiming that its coriJorate powers were forfeited. By R. S. O. (1S87) c. IGO. s. ."4, it was provided that if a company such as this did not complete its works within two years from the date of incorporation it should for- feit all its cori)orate and other powers, un- less further time is granted by the county or counties, district or districts, in or adjoining which the work is situate, or by the Com- missioner of Public Works. .Vfwi6?e.— The non-completion of the works within two years would not ipso facto, for- feit the charter, but only afford grounds for proceedings by the Attorney-Cxeueral to have a forfeiture declared. Hardy Lumher Co. v. Pickerel River Improve- ment Co., 14th Dec, 1898 xxix 4.— Sheriff— Tre-spass— Sale of Goods by Insolvent— Bona Fides — Judgment of Inferior Tribunal— Res Judicata— Bar to Action— Fraudulent Prefer- ences — Pleading. See Res .Judicata, 1. •5. — Trespass to Mortgaged Property- Practice— Parties to Action— ^Mort- gagee IN Possession— Sale of Pro- perty TO Trespasser. See Mortgage, 1. , fi. — Conveyance to Married Woman — Effect of Execution of. by Husband — Assext. See Title to Land. 3. 7. — Trustee — Administrator of Estate- Release BY Next of Kin— Recession of Release — Laches — Estoppel — Delays. See Trusts. 5. 8. — Trustees and Administrators — Fraudulent Co.vversion — Past due Bonds— Debentures Transferable by Delivery — Equity of Previous Holders — Implied Notice — Innocent Holder for Value. See Pledge. 9. — Estoppel by Deed. See Deed, 3. . 98 EVIDEN'CE. 10.— Canada Temperance Act — Search Warrant— Magistrate's Jurisdiction — Constable — Justification of Minis- terial, Officer— Goods in Custodia Legis — Replevin— Kes Judicata — Judg- ment Inter Partes. •S'cc Canada Temperance Act, 2. 11.— Xova Scotia Probate Act— R. S. N. S. (5 SER.) c. 100 AND 51 Vic. (N. S.) c. L'(J — Executors and Administrators — License to Sell Lands — Res Judicata. -See Res Judicata, 8. 112.— Foreign Judgment — Res Judicata — Judgment Obtained After Action Begun— R. S. N. S. (5 ser.) c. 104, s. 12. See Res Judicata, 4. 13.— Fire Insurance— Contract— Termina- tion — Notice— Statutory Conditions — Waiver— Estoppel. See Insurance, Fire, 4. 14.— Pleading New Matter in Reply- Failure to Demur — Ultra Petita — Issues Joined — Bill of Lading — Transshipment — Original Bills of Lading Continuing— Custom of Trade — Transfer by Indorsement — " The Bank Act." See Bill of Lading, 2. 15. — Evidence — Judicial Admissions — Nullified Instruments — Cadastre — Plans and Official Books of Refer- ence — Compromise— " Transaction " — AivTS. 311 and 1243-1245 C. C— Arts. 221-225 C. C. P. See Admissions. IG. — Trustee— Misappropriation — Surety — Knowledge by Cestui que Trust- Parties. See Evidence, 31. 17.— Title to Land— Entail— Life Estate —Fiduciary Substitution— Privileges AND Hypothecs— Mortgage by Insti- tute — Preferred Claim — Prior Incum- brancer— Vis Major — Registry Laws — Practice — Sheriff's Sale — Sheriff's Deed — Chose Jugee — Parties — Deed Poll— Improvements on Substituted Property — Grosses Reparations — Art. 2172 C. C— 29 Vic. c. 26 (Can.). See Substitution, 2. EVIDENCE. 1. — Duress- Undue Influence — Valuable Consideration — Action to Set Aside Deed. An action was brought by an executrix to liave a deed set aside and cancelled, on the grounds of undue influence, and incom- petence on the part of the grantee. The deed had been extH.-uted about two mcmths prior to the will. The executrix alleged that the testator was eighty years of age and of child-like simplicity, that the grantees under the deed had kept him under their control, treated him with violence, and pre- vented him leaving their house, and that when he had requested the executrix to live with him and take care of him until he died, they would not permit her to do so. The deed purported to have been made in consid- eration of the grantees paying the testator's debts and maintaining him for the rest of his life. Ihhl. afflrming the decision of the Su- preme Court of Nova Scotia, that the evi- dence showed that the deed had been given for valuable consideration, that there had I'ceu no evidence establishing that undue inliuenco had been resorted to in order to obtain it. and that the action to set aside the deed could not be maintained. Corhett v. Smith et ah, 1st May, 1803. 2. — Foundation for Secondary Evidence — Execution of Agreement — Laches — Right to Relief Inconsistent v^ith Claim. On the hearing of an ee Bene Esse — Death of Plaintiff— Action by Widow under Lord Campbell's Act— Admissibility OF Evidence Taken in First Action — ItiGHTs OF Third Party. Though the cause of action given by Lord Campbell's Act for the benefit of the widow and chiklreu of a person whose death results from injuries received through negligence is diff'crent from that which the deceased had in his lifetime, yet the material issues are substantially the same in both actions, and the widow and children are in effect claiming through the deceased. Therefore, so injured in which his evidence is taken when an action is commenced by a person de hciic esse and the defendant has a right to cross-examine, such ev'denco is admissible iu a subsequent action, taken after his death under the Act. Ta.schereau and Gwyune, J.T.. dissenting, The adniissibilily of such evidence as against the original defeiid.ints, a municipal corporation sued for injuries caused by fall- ing into an excavation in a public street, is not affected by the fact that they have caused a third party to bo added as defen- dant, as the person who was really respon- sible for such excavation, and that such third party was not notified of the examination of the plaintiff in the first action, and had no oi)portunity to cross-examine him. Tas- chereau and Owynne. J.T.. dissenting. Town of XTalkcrton v. Erdman . . xxiii., 352 4—54 & 55 Vic. (Imp.^ c. 10, s. 1, s.s. 5 — Presence of a British Ship Equipped for Sealing in Behring Sea — Onus I'robandi — Lawful Detention. On 3()th August, 1891, the ship " Oscar and llattie," a fully e(iuipped sealer, was seized in (iotzleb Harbour, in Behring Sea, while taking iu a supply of water. Held, a Winning the judgment of the Court below, that when a British ship is found in the prohibited waters of the Behring Sea, the burthen of proof is upon the owner or master to rebut by positive evidence that the vessel is not there used or employed in con- travention of the Seal Fishery iBehring's Sea) Act, 1S91, 54 & 55 Vic. (Imp.) c. 19, s. 1, s.-s. 5. Held, also, reversing the judgment of the Court below, that there was positive and clear evidence that the " Oscar and Hattie " was not used or employed at the time of her seizure in contravention of 54 & 55 Vic. c. 19, s. 1, s.-s. 5. The Shij) " Oscar and Hattie " v. The Queen, xxiii., 30G 5. — Seal Fishery (North Pacific) Act, 1.S93, 50 & 57 Vic. c. 23 (Imp.) ss. 1, 3 AND 4 — Judicial Notice of Order in Council Thereunder — I'rotocol of Examination of Offending Ship by Russian War Vessel, Sufficiency of — I'resence within Prohibited Zone — Bona Fides— Statutory' Presumption OF Liability— Evidence — Question of Fact. The Admiralty Court is bound to take judicial notice of an Order in Council from which the Court derives its jurisdiction, is- .sued under the authority of the Act of the Imperial Parliament. 5(5 & 57 Vic. c. 23, The Seal Fishery (North Pacific) Act, 1893. A Russian cruiser manned by a crew in the pay of the Russian Government, and in commaua of an officer of the Russian navy is a ■' nar vessel " within the meaning of the said Order iu Council, and a protocol of examination of an offending British ship by such cruiser signed by the officer in com- mand is admissible in evidence in proceed- ings tiil-en in the Admiralty Court in an ac- tion for condenmation umler the said Seal Fishery (North Pacific) Act, 1893. and is proof of its contents. The ship in question in this case having been seized within the prohibited waters of the thirty mile zone round the Komandorsky Islands, fully equipped and manned for seal- ing, not only failed to fulfil the onus cast upon her of proving that she was not used lOO EVIDENCE. or employed in killing or attempting to kill any stiils within the seas specified in the Order in Cotini'il, Imt the evidence was suffi- cient to prove tliat she was guilty ot an in- fraction of the statute and Order in Coun- cil. The Ship " Minnie " v. The Queen, xxiii., 478 6. — New Trial — Negligence — Question FOR Jury — Withdrawal of Case from Jury. In an action ajrainst the defendant for negligence, causing the death of a servant, the Trial .fudge witlidrew the case from the jury anil directed a verdict for the defendant on the ground that there was no evidence of negligence. The Suiircnie Court of Nova Scotia granted a motion for a new trial with costs, and remitted the cause for further in- quiry, and. held. ((Jraliam, .T.. dissenting), that the Trial .Tudge erred in withdrawing the case from the jury, as there was evi- dence of negligence and want of proper and reasonable care, which should have been submitted to the jury. (2t; N. S. Kep. 2I'>S). On ap;)eal to the Supreme Court of Can- ada, it was held. atRrming the decision of the Supreme Court of Nova Scotia, en banc, that the new trial had been [)ropi'rly ordered. The yen- Glasgoir Iron. Coal atul Railway Co. V. Tobin. 7th Novendier, 1S04. 7. — Absolute Transfer — Commencement OF Proof by Writing— Oral Evidexcj: —Arts. 12.33. 1234. C. C. Verbal evidence is inadmissible to contra- dict an absolute notarial transfer, even where there is a commencement of proof by writ- ing. (Article 1234 C. C). Bury V. Murray xxiv., 77 8. — Partnership — Registered Declara- tion—Art. IS,?.-) C. C— C. S. L. C. c. G.J, s. 1 — Oral Evidence — Life Policy. An action was brought by W. McL. and F. W. R. to recover amount of an accident policy insuring the members of the firm of McL. Bros. & Co.. alleging that J. S. McL., one of the partners, had been accidentally drowned. After the policy was issued the plaintiffs signed and registered a declaration to the effect that the partnershii* of McL. Bros. & Co. had been dissolved by mutual consent, and they also signed and registered .1 declaration of a new partnership under the same name, comprising the plaintiffs only. At the trial the plaintiffs tendered oral evi- dence to prove that these declarations Tvere incorrect, and that J. S. McL. was a member of the partnership at the tim<» of his death. Held, atJirming the judgment of the court below, that such evidence was inadmissible. (Art. 1835 C. C. and chap, (m C. S. L. C). Caldiitll v. Accidtnt Jus. Co. of yorth America xxiv., 2(>o y. — I'romissory Note — Consideration — ACCOM.MODATION — EVIDENCE — New Trial. The appeal was from the decision of tiic> Supreme Court of New Brunswick varying tb - vedict at the trial, pursuant to leave reserved. The appellant brought action against respondent on a nuniber of pro- missory notes indorsed by the latter and bills accepted by him. The dotence was thai the bills and notes were accepted and in- d(»rsed for the accommodation of the bank, and that delendant had been induced to ac- cei)t and indorse them by fraud and misre- presentation. It was proved at the trial that Morrison, the agent of the bank, had rcpr;- sented to defendant that the transactions were in the business and for the interest of the bank, which w.i.s engaging in matters forbidden by the Bank Act, and had Ut adopt the course porsued by the agent. The Trial Judge rejected evidence of conversa- tion between a third party, who was on some of ihe paiier in suit, and the agent who succe-.-ded Morrison, as to what had taken place between such third party and Morrison in regard to some of the notes. The ground of his rejection was that the evidence was irrelevant, and that it only arose out of cross- examination. He adnutted other objection- able evidence, ruling that oul.v the answer had been objected to. A verdict was given for plaintiff for the amount of one note and of an overdrawn account, and for defendant in respect to all other claims. The Supreme Court of New Brunswick gave the bank judgment for another and a larger note, and defendant judgment for all the rest, includ- irg tl'.at on which he failed at the trial. Both parties appealed. The Supreme Court of Canada ordered a new trial on the ground that the evidence rejected at the trial should have been ad- mitted, as it related to a m.'itter relevant to the issue, and that the Trial Judge was wrong in ruling that only the answer to an- other question was objected to. as there was a general objection to all the evidence at the time. The Bank of Nova Scotia v. Fish, fith May. 189."> xxiv.. 70;t 10.— Will — Action to Annul— Testamen- tary Incapacity — Onus of Proof. In an action for the annulment of a wMl alleged to have been procured at a time when EVIDENCE. lOI the testator was not capable of making it, the onus of proving capacity lies upon the party procuring its execution. Ciiiric V. Cun-ic, Gth May, 1895, xxiv., 712 11.— Action-— Bar to— Foreign .TunGMENT — Estoppel — Kes Judicata — Judgment Obtajned After Action Begun— U. S. X. S. (5 ser.) c. 104, s. 12, s.-s. 7; Orders 24 and 70. Kule 2; Order 35, BuLE 38. The provision of R. S. X. S. (5 sor.) c. 104, Order :>.">. Rule .38, that evidence of a jndg- nienf recovered in a foreiKn country shall not lie conclusive, in an action on such judg- ment in Xova Scotia, of its correctness, but that the defendant may defend such suit as fully as if brought for thf original cause of action, cannot be invoked in favnur of the ilefendant in Xova Scotia, who has brought iin unsuccessful action in a foreign Court against the plaintiff. Late ct al. v. Hansen xxv., GO 12.— Xeglioence of Servant — Deviation FROJi Employment — Resumption— Con- tributory Xegligence — Infant. If in a case tried without a jury evidence has been improperly admitted, a Court of Appeal may reject it and maintain the ver- dict if the remaining evidence warrants it. MciTitt V. Hepenstal xxv.. 150 13. — Construction of Contract — Incon- sistent Conditions — Dismissal of Con- tractor — Architect's Powers — Arbi- trator — Disqualification — Probable Bias — Rejection op Evidence — •Judge's Discretion as to Order of Evidence. A contract for the construction of a public work contained the following clause: "In case the works are not carried on with such expedition and with such materials and wurkmanshin as the architect or clerk of the works may deem proper, the architect shall be at liberty to give the contractors ten days' notice in writing to supply such additional force or material as in the opinion of the said architect is necessary, and if the con- tractors fail to supply the same it shall then be lawful for the said architect to dismiss the said contractors and to employ other per- sons to finish the work." The contract also provided that " the general conditions are made part of this contract (except so far as inconsistent herewith), in which case the terms of this contract shall govern." The first clause in the " general conditions " was I as follows: " In case the works from the want of sufficient or proper workmen or materials are not proceeding with all the necessary despatch, then the architect may give ten days' notice to do what is neces- sary, and UIKJU the contractor's failure to do so, the architect shall have the i)ower at his discretion (with the consent in writing of the Court House Committei', or C take the work or any part thereof mentioned in such notice out of the hands of the contractor." Htlil, Sedgewick and Girouard, J J., dis- senting, that this last clause was inconsis- tent with the above clause of the contract, and that the latter must govern. The archi- tect therefore had power to dismiss the con- tractor without the consent jn writing of the committee. At the trial, tiie plaintiff tendered evidence to show that the architect had acted mali- ciously in the rejection of materials, but the Trial Judge required proof to be first ad- duced tending to show that the materials had lieen wrongfully rejected, reserving un- til that fact should be established the consid- eration of the question whether malice was necessary to be proved, and if necessary, what evidence would be sufficient to estab- lish it. Upon this ruling plaintiff declined to offer any further evidence, and thereupon judgment was entered for the defendants. Held, that this ruling did not constitute a rejection, but was merely a direction as to the niarshaliing. of evidence within the dis- cretion of the Trial .Tudge. ycelon V. Citu of Toronto . . . . xxv., 579 14. — Evidence — Presumptions — Omnia Praesumuntur Contra Spoliatorem. St. L. filed a petition of right to recover from the Crown the balance alleged to be due on a contract for certain public works. On the hearing it was shown that certain time-books and the original documents from which his accounts had been made up, and also his books of account had disappeared- The Judge of the Exchequer Court found' as a fact that these books and documents had been destroyed in view of proceedings be- fore a commission appointed some time prior to the filing of the Petition of Right to In- ouire into the manner in which the works done under the contract had been carried on. and he dismissed the petition. Held, reversing the judgment of the Ex- chequer Court, that the evidence did not M-arrnnt the finding that the documents had been destroved with a fraudulent intent, and lo: EVIDENCE. to prevent inquiry; tliat all that could have been proved by what was destroyed had been supplied by other evidence; and that the rule omnia prasitmuutiir contra spoliaturcm did not justify the learned Judge in assuming that if produced the doetiments destroyed would have falsiiied St. L.'s accounts, the evidence on the trial showing instead that the ac- j counts would be corroborated. I .S'f. Louis V. The Queen xxv., 049 15. — Warranty— Defect in Construction — Satisfaction by Acceptance and User— Variation from Design — De- murrage — Evidence — Onus of 1'roof — Expert Testimony — Concurrent Find- ings. In an action where the defendants counter- claimed damages caused by the defective construction or a boiler for their steamer, which had collapsed: Held, reversing the decision of the Supremo Court of British Columbia, that conclusive effect should not be given to the evidence of witnesses, called as experts as to the cause of the collapse, who were not prest'ut at the time of the accident: whose eA^idenee was not founded upon knowledge, but was mere matter of opinion: who gave no reasons and stated no facts to show upon what their opinion was based, and where the result would be to condemn as defective in de- sign and faulty in construction al' boilers built after the same pattern wli\ii t; r- evi- dence showed were in general use. The judgment therefore allowing the coun- ter-claim was set aside, though against the concurrent findings of two Courts below. The Williatn Hamilton Manufacturing Co. v. r^ Victoria Lumhcrittg and Manufacturing Co.. xxvi., 9G 16. — Rules of Evidence — " The Canada Evidence Act, 1893." Gambling instruments and certain moneys were seized in a gaming-house under a war- rant issued under sec. .jTo of the Criminal Code, and confiscated by the judgment of a Police Magistrate sitting in the City of Mon- treal. An action was brought against tiie Attorney-rJeneral of Canada for the recovery of the money seized and confiscated. Held, that in an action to revendicate the moneys so seized the rules of evidence in civil matters prevailing in the province would apply, and the plaintiff could not in- voke " The Canada Evidence Act, 1893." s:) as to be a competent witness in his own behalf. O'^eil V. The Attornty-Ocneral of Cnnad^i, xxvi., 122 17.— Master and Servant — Negligence — " Quebec Factories Act " — 11. S. Q. Arts. 3019-3053— C. C. Art. 1503— Civil Kesponsibility — Cause of Accident — Conjecture — Evidence — Onus of Troof- Statutable Duty — Police Re- gulations. The plaintiff's husband was accidentally killed whilst employed as engineer in charge of defendant's engine and machinery. In an action by the widow for damages the evi- dence was altogether circumstantial, and left the manner in which the accident occurred a matter to be inferred from the circum- stances proved. Held, that in order to maintain the action it was uec'oss.iry to prove by direct evidence, or by Wi^ighty, joncise and consistent pre- sumptions arising from tlie facts proved that the accident was actually caused by the posi- tive fault, imprudence or neglect of the per- son sought 10 l>e ch.irgod with responsibility, and such proof being entirely wanting the action must bo dismissed. The provisions of the " Quebec Factories Act" (R. S. Q. arts. 3019 to 3053, inclusive- ly), are intended to operate only as police regulations, and the statutable duties thereby imposed do not affect the civil responsibility of employers towards their employees, as pro- vided by the Civil Code. The Montreal RoU'wig Mills Co. v. Corcoran, xxvi., 595 18. — Railway Company — Negligence — Sparks from Engine or " Hot-box "— Damages by Fire— Evidence- Burden of Proof— C. C. Art. 1053— Questions of Fact. In an action against a railway company for damages for loss of property by fire alleged to have been occasioned by sparks from an engine or hot-liox of a passing train, in which the Court appealed from held that there was no sufficient proof that the fire occurred through the fault or negligence of the company, and it was not shown that such finding was clearly wrong or erroneous, the Supreme Court would not interfere with the finding. .S'CHfSflc V. Cemtral Vermont Railtray Co.. xxvi., 041 19. — Parol Testimony — Variation of Written Agreement— New Trial. The defendant agreed in writing to accept a quantity of goods in payment of two ac- ceptances liy the plaintiff. The agreement was carried out by the plaintiff, but he was EVIDENCE. 103 subsequently sued by an indorsee of one of the acceptances, and obliged to pay the same. An action was brought by him to recover the amount thus paid from the defendant. At the trial e%idonce was offered by defend- ant, and admitted by the Trial Judge, of an oral agreement between him and the plain- tiff at the time the written agreement was made, to the effect that the goods were not to be accepted as payment in full of the acceptances but only in part payment thereof. It was held by the Supreme Court of Nova Scotia, that there was error in the admis- sion of such evidence. (28 N. S. Eep. 210). On appeal to the Supreme Court of Can- ada, the judgment was affirmed. Ccx V. Sceley, Gth May, 1896. 20.— Eelevan-cy— Previous Transaction — Bona Fides — Removal of Suspicions — Inferences Drawn by Jury — Collat- eral Facts. It appeared that the defendant for the pur- pose of supporting his plea of fraud and showing his hona ftd-cs, had offered in evi- dence, a transaction between himself and the plaintiff similar to the one iu issue, but which had occurred about a year previously, and it had been held in the Supreme Court of New Brunswick, per Hannington, Landry and VanWart, J.T.. Tuck, J., dissenting. Baker, J., dubitante that such evidence was admissible, as showing grounds for the re- moval of the defendant's suspicions, and as a fact from which a reasonable inference might bo drawn by the jury, bearing upon the question in issue. (33 N. B. Rep. 320). On apiieal to the Supreme Court of Can- ada, the appeal was dismissed after hearing upon the merits. The Bank of Nova Scotia v. Robinson, Gth June, 1896. 21.— Will — Undue Influence. In order to set aside a will on the ground that its execution was obtained by undue influence on the mind of the testator, it is not sufficient to show that the circumstances attending the execution are consistent with the hypothesis that it was so obtained. It must be shown that they are inconsistent with a contrary hypothesis. Adams v. McBeath xxvii., 13 22.— To "VArY OR Explain Deed — Con- struction OF Deed — Title to Lands- Ambiguous Description — Possession — Conduct of Parties — Presumptions FROM Occupation of Premises— Arts. 1019, 1238, 1242. 1473, 1599, C. C.-47 Vic. c. 87, s. 3 (D.)-4S & 49 Vic. c. 58, s. 3 (D.)— 45 Vic. (Q.) c. 20. By a deed made in August, 1882. the ai>- pellant ceded to the Government of Quebec, who subsequently conveyed to the respon- dent, an immovable described as part of lot No. 1937, in St. Peter's Ward in the City of Quebec, situated between the streets St Paul. St. Roch, Henderson and the river St. Charles, with the wharves and buildings thereon erected. The respondents entered into possession of the lands by virtue of said deeds and remained in pos- session for twelve years without objection to the boundaries. They then brought an action to have it declared that, by the pro- per construction of the deeds, an additional strip of land and certain wharves were in- cluded and intended to be transferred. They contended that the description in the deed was ambiguous, and that Henderson Street as a boundary should oe construed as meaning Henderson Street extended, and they sought to establish their case by the production of certain corresiwndence which had taken place between the parties prior to the execution of the deed of August, 1882. Held, reversing the judgment of the Court of Queen's Bench for Lower Canada, the Chief Justice and King, J., dissenting, that the words " Henderson Street " as used in the deed must be construed in their plain natural sense as meaning the street of that name actually existing on the ground; that the correspondence was not shown to con- tain all the negotiations or any finally con- cluded agreement, and could not be used to contradict or modify the deed which should be read as containing- the matured conclusion at which the pr rties had finally arrived; that the de 1 '!;hoild be interpreted in the light of the conduct of the parties in taking and remaining so long in possession without ob- jection, which raised against them a strong presumption, not only not rebutted but strengthened by the facts in evidence; and that any doubt or ambiguity in the deed, in the absence of evidence to explain it, should be interpreted against the vendees, and in favour of the vendors. City of Quebec v. The North Shore RaiUray Company xxvii., 102 23. — Landlord and Tenant— Loss by Fire — Cause of Fire — Negligence— Civil Responsibility — Legal Presumption — Rebuttal of — Onus of Proof — Hazardous Occupation — Arts. 1053, 1004. 1071. 1620. 1627, 1629 C. C. To rebut the presumption created bv Ar- ticle 1629 of the Civil Code of Lower Canada I04 EVIDENCE. it is not necessary for the lessee to prove the exact or prolinlile oiitriu of the fire, or that it was due to unavoidable accident or irrcsisiildc force. It is sult'cient for liiuj to prove tint he has used the premises leased as a prudent administrator (t» bun iiiie de familh), and that the fire occurred witlii>ut any fault thxt could be attributed to hiui or to persons fur whose acts he should be held rosponsiljle. .Tudfrnieut of the Court of Queen's Bench for Lower Canada afflrnied, Strong. C.J.. dissenting. Muriihy v. Lahhc xxvii., 1215 24. — Xegi.ige.nce — Defective Machinery — Evidence for Jury. T. wrs employed as a weaver in a cotton mill, and was injured while assisting a less exiierieiiced hand, by the shuttle flying out of the loom at which the Litter worked, and striking her on the head. The mill con- tained some 4110 IcMJnis. and for every forty- six there was a man. called the " loom fixer," whose duty it was to keep them in prop<'r repair. The evidence showed that the a"cident was caused by a bolt breaking by the shuttle coming in contact with it, and as this bolt served as a guard to the shuttle, the latter could not remain in the loom. The jury found that the breaking of the bolt caused the accident, and that the '■ loom fixer " was guilty of negligence in not having examined it within reasonable time before it broke. T. obtained a verdict, which was attirmed by the Court of Appeal. Held, Gwynne. J., dissenting, that the " loom fixer " had not performed his duty properly; that the evidence as to negligence could not have been withdrawn from the jury; and that, as there was evidence to justify the finding, their verdict should stand. Per Gwynne. J., that the finding of the jury that the neghgence consisted in the omission to examine the bolt was not satisfactory, as there was nothing to show that such ex- amination could have prevented the accident, and there should be a new trial. The Canadian Coloured Cotton Mills Co. v. Talhot xxvii., 108 25. — Election Petition — Preliminary Objections — Service of Petition — Bailiff's Return — Cross-examination — Production of Copy. A return by a bailiff that he had served an election petition by leaving true copies, " duly certified,'' with the sitting member is a sufficient return. It need not state by whom the copies were certified. Articles 56 and 78 C. C. P. Counsel for the ix-rson sirved will not be allowed to cross-examine the bailiff us to the contents of the copies served without pro- ducing them or laying a foundation for se- condary evidence. Bcauharnois Election Cane . . . . xxvii., 232 20. — Evidence — .Judicial Admissions — Nullified Instruments — Cadastre — Plans and Official Books of Refer- ence — Compromise — " Transaction " — Estoppel— Arts. 311 and 1243-1245 C. C— Arts. 221-225 C. C. P. A will, in favour of the husband of the tes- tatrix, was set aside in an action by the heir- at-law, and declared by the judgment to be tin acte faux; and therefore to be null and of no effect. In a subsequent petitory action between the same parties: Held, (Jirouard, .1.. dissenting, that th« ju feet wide, and the vendor pointed it out to him on the ground, and showed him the jiickets marking its width and depth. The lot re- mained vacant and unenclosed up to the time of the disturbance, and was assessed as a 25 foot lot to G., who paid all muni- einal taxes and rates thereon. In 1895 the adjoining lot, which was also vacant and un- enclosed, was sold to another person who eoniuienced laying foundations for a building, and in doing so, encroached by two feet on the width of the lot so purchased by G., who brought a possessory action within a couple of months from the date of the disturb- ance. ll(l(]. that the itvHuiSMiou unnalc, riciuired by article U4t; of the Code of Civil Proce- dure, was sutHciently estiblished to entitle tht> i)laintiff to maintain his action. (Jauthiir v. Huhhoii xxvii., 573 30.— Affirmative Testimony— Interested Witnesses— Art. 12:52 C. C— Arts. 251, 252 C. C. I'.— Mala Fides— .Common Humour. In the estimation of the value of the evi- dence in ordinary cases, the testimony of a credible witness whi> swears iwsitively to a fact should receive credit in preference to that of one who testifies to a negative. The evidence of witnesses who are near relatives or whose interests are closely idt>u- tified with those of one of the parties, ought not to pn-vail in fivour of such party against the testimony of strangers who are dis- interested witnesses. Evidence of common rumour is unsatisfac- tory and should not generally be admitted. Lefcuiitcum v. Bcaudoiii . . . . xxviii., 89 31.— Master and Servant— Negligence- Probable Cause of Accident. Evidence which merely supports a theory propoundeil as ;o tlie probable cause of in- juries received through an unexplained ac- cident is insutlicient to support a verdict for damages where there is no direct fault or negligence proved against the defendant, and the actual cause of the accident is purely a matter of sin-culation or conjecture. The Canada Paint Co. v. Trainor, xxviii., 352 32.— Railways— Eminent Domain — Expro- priation OF Lands — Arbitration — Evidence- FiNDiN.is of Fact— Duty of Appellate Court— 51 Vic. c. 2!) (D.). On an arbitration in a matter of the ex- propriation of land under the jjrovisions of " The Kailway Act," the majority of the arbitrators api>eared to have made their computation of the amount of the indemnity awarded to the owner of the land by taking an average of the different estimates made on behalf of both parties according to the evidence before them. Held, reversing the decision of the Court of Queen's Bench and restoring the judg- ment of the Superior Court (Taschereau and Girouard, .T.T., dissenting), that the award was properly set aside on the appeal to the Superior Court, as the arbitrators appeared to have proceeded upon a wrong principle in the estimation of the indemnity thereby awarded. Grand Tntnk Raihcay Co. of Canada v. Coupal xxviii., 531 io6 EVIDENCE. •33.— Tbustee— Misappropriation — Surety —Knowledge by Cestui qle Trust— EbTOPPEL— 1'aRTI ES. Fiinils licld liy V. ns tnistfo for C. were niisaiiiiroiiriatcil l,y bi-iiig tlt'iHtsitcd with tlio tiriii i>i' F. F. A: Co.. of wliich F. was a im-iiiluT, 1111(1 aftir being so ki'pt on tloposit I'or ;i pfriiHl of ui)Wiir(ls of six years, wcie lost in coiisi'ijuc'.Kc of the failurt' of the lirui. In an action against the defendants, who Were sureties for F., to compel them to make good the funds so misappropriated and lost, the deft nee relied upon the knowledge of the misapproi)riation on the part of (.'.. which knowle the loss of the funds. (30 N. S. Rep. 173. sub nomine, Eastvrn Trust Co. v. Forrfst, rt al.) On appeal the Supreme Court of Canada afflrmed the decision of the Supreme Court of Nova Scotia, en banc, and dismissed the appeal with costs. Bayne et al. v. Th; Eastern TrustH Co.. et al., 9th November, 1897 xxviii., C06 34.— Marine Insurance— Partial Loss on Cargo — Stranding — Jury Trial. On a voyage from Porto Rico to Halifax the " Donzella " put into Barrington, N. S.. for shelter, the wind being south-east •with a heavy snow storm prevailing. She was anchored near the light ship with one anchor out, but. as the wind increased a se- cond anchor was put out. Subsequently during a heavy gale that sprang up from the north-west, with thick snow, both chains parted. The vessel was then on a lee shore studded with reefs and shoals, and the tide low. She was abandoned by the master and crew, and the following morning was not visible from shore. Some time afterwards she was picked up at sea by salvors, and was brought into port and put upon the slip and repaired. When brought in she had four feet of water in her hold, and her cargo was liadly damaged. On being put upon the slip it ai)i»eare— IVji-ndaries- Road Allowance. 5'fe Titlo to Land, (5. 40.— Negligence— Master and Servant- Employer's Liability— Imprudence of Servant — Defective Way— Necessity of 1'assing over Dangerous Machin- ery—New Trial. See Negligence, IG. 41.— Fire Insurance— Contract— Termina- tion— Notice— Waiver— Estoppel. See Insurance. Fire, 4. 42.— Fraudulent Statement — Proof of Fraud — Presumption— Assignment of Policy— Fraud by Assignor— Reversal on Queistions of Fact. >S'ce Insurance, Fire, 5. 43.— Public Work— AVharf Property In- juriously Affected— Damages Pecu- liar to the Property — Unusual In- terference — Eminent Domain. See Public Work, 2. 44.— Principal and Surety— Giving Time to Principal — Reservation op Rights Against Surety'. -Sec Principal and Surety, 2. 45.— Statute of Frauds— Memorandum in Writing— Repudiating Contract by. See Contract, 27. 46. — Constitutional Law — Navigable Waters — Title to Bed of Stream — Crown — Dedication of Public Lands — Presumption of Dedication — User — Obstruction to Navigation — Public Nuisance— Balance of Convenience. See Navigable Waters, 1. 47.— Will— Execution Capacity. See Will, 13. of — ^Tes'." ». . ii:r,TART 48.— Contact— Sale by Sample — Objec- • tio.ns to I.NvoicE — Heaso.vable Time— Acquiescence— Presumptions. See Conrtact, 34. 4S>. — Trustee— Account of Trust Funds — Abandonment by Cestui que Trust. Sit Trusts. 7. .'JO. — Maritime liAW — Foreign Vessel Fishing within British Waters of Canada — Three Mile Limit — IjIcense — R. S. C. c. i>4, s. 3— Onus 1'robandi. See Fisheries, 3. r»l. — Accident Insurance — Renewal of Policy — Payment of Pre.mium — Agent's Authority — Instructions to Agent— Finding of .Jury. Sec Insurance, Accident, 1. r>2.— Sale— Donation in Form of— Gifts in Contemplation of Death — ^Mortal Illness of Donor— Presumption of Nullity- — Validating Circumstances— Dation en Paiement— Arts. 702, "JS9, C. C. Sec Sale. 9. 53. — Master and Servant— Negligence— Cau.s3 of Accident — CoxxaisuTORY Negligence. Sec Negligence, 30. 54. — Landlord and Tenant — Loss by Fire — Negligence — Legal Presumption- Rebuttal of— Onus of Proof— Con- STP.ucTioN OF Agreement — Covenant to Reti'rn Premises in Good Order — Art. 1029 C. C. Sec Landlord and Tenant, 3. 55. — Negligence— Master and Servant- Employer's Liability — Concurrent Findings of Fact — Contributory Negligence. Sec Negligence, 35. 56. — Old Trails in Rupert's Land — L'ser— Dedication — Prexsumption — Necessary Way— Substituted Roadway — Reser- vation IN Crown Grant. Sec Highway, 3. EXCHANGE. Title to Lands— Ambiguous DESCRipnox — Possession— Conduct of Parties — Pre- su.MPTioNs from Occupation of Premises— Art. 1599 C. C. See Deed, G. io8 EXECUTION-EXECUTORS. . EXECUTION. Heal I'nopKKTv Act — Uegistration *— rNnKiJI8TKRF:i) TRANSFERS — EqT'ITABLE IJioiiTH — Sales I'nder Execution— U. S. ('. C-. ni; ni Vic. (1).» c. I'O. Tile piovisions of sec. iM of the Tcrritorios Ut'iil liniterty Act (U. S. ('. c. Til), iis amended liy ."»1 Vie. (I>.|. c. 1M>. do not Sell. Lands— Estoppel- Res Judicata. •Sri' Res Juilitiitu, 8 . EXEMPTIONS. Real I'rof.'uity — ("hattkls — Fixtures— Has I'lPEs — ilioHWAY — Lbuiblative (iRant of Soil— 11 Vic. c. 14 (Can.)— ."i3 Vic. c. 48 (O.)— Ontario Assess-ment Act, 1892." St«' Assessment, 7. EX POST FACTO LEGISLATION, Special Taxes — Warranty — Montreal Local Improvements. Sk Mniiioiiml Coritorition, 23. EXPRESS COMPANY. Bailees— Common Cauriehs— Receipt for Money I'ahcel— Conditions Precedent — Formal Notice of Clai.\i — Pleadinq — INIoNEY Had and Received— Special I'leas. Sec Attiou, Tt. EXPROPRIATION. 1.— Railway Expropriation- Award— Ad- ditiona'. Interest— Confirmation of Title — Diligence — The Railw.\y Act, 1888, ss. 102, 170, 172. On a petition to tlie Superior Court, pray- iuj: that a railway couipany ha ordered to imy into "tlie liiinds of tlie Prothonotary of tlie Superior Court a sum eiiuivaleut to six per eeut. on tlie amount of an award pre- viously deposited in Court under sec. 170 of the Railway Act, and priiyinjr further that the company should he enjoined and ordered to proeeed to confirmation of title, with a view to the distribution of the money, the comjiany pleawer to urant such an order, and that the delays in proceeding to confirmation of title had lieen caused by the i>etitioner. who had unsuccessfully appealetl to the higher C(>urts for an increased amount. Held, reversing the judgment of the Court below, that by the terms of sec. 172 of the Railway Act it is only by the judgment of confirmation that the question of additional interest can be adjudicated upon. Hclil. further, that assuming the Court had jurisdiction, until a final determination of the controversy as to the amount to be dis- tributed, the n'''svay company cituld not be said to lie guilty of negligence in not ob- taining a judgment in confirmation of tith'. (Railway Act, s. 172). Fournier, J., dis- senting. The Atlantic d- \wih-iccat RalUniy Co. v. xxiii., 2:51 Judah 2.— Petition of Right— I'i-blic Work— In- jury To Property— Obstruction of Canal— Use of Canal. The appellant, claiming to be owner of the Shubemuadie Canal in Nova Scotia, brougiii siut by i»etiiion of right to recover damages from the Crown for exprDjiriating part of his property in coiistriution oi' i»ubli<' works and for obstrticting tlie use of the canal. The ExcliiMiuer Court ( t Ex. C. R. l;;i»(. without deciding as to the title of apijelhint, which was dis|)Ute(l, held that cxjiropriatiou had not Ik'cu proved, and refused damages for obstruction on the ground that the canal was not open for tralHc. The judgment in- cluded ji declaration that aiipellaut was en- titled, whenever it should be so opened and the trallic obstructed by the public work, to have the obstruction removed. The Supreme Court of Canada affirmed the judgment of tin- Excheipier Court, and disnnssed the ai)peal with costs. Falrhaiihn v. Tfw Queen. tJth May, 1895, xxiv.. 71 1 3.— Arbitration — Award by Majority — Interference, with on Appeal. See Arbitration, 2. 4.— Assessments — Local Improveme.vts — Future Rights— Jurisdiction. Si'c A!)peal. .">1. And ace Eminent Domain. FAITS ET ARTICLES. .See Interrogatories. FALSE BIDDING, RESALE FOR. Sale by Sheriff— Folle Enchere— Re- sale FOR False Bidding — Art. ()90 rt sc(j. C. C. P. — Questions of Practice — Appeal— Art. 688 C. C. P.— Privileges AND Hypothecs — Sheriff's Deed — Registration of — Absolute Nullity — Rectification of Slight Errors in .Judgment — Duty of Appellate Court. Sec Appeal, 56. no FERRIES— FISHERIES. FERRIES. Constitutional, Law— Municipal Corpora- tion — I'owERS OF Legislature — License — Monopoly — Highways and Ferries — Navigable Streams — By- laws AND Resolutions — Interiiuni- ciPAL Ferry— Tolls— Disturbance of Licensee — North-west Territories Act, K. S. C. c. 50, ss. 13 and 24— B. N. A. Act (18G7) s. 1)2, ss. 8, 10 and 1(J— Rev. Ord. N. W. Ter. (1888) c. 28- Ord. N. W. T. No. 7 of 1891-92, s. 4— Companies, Club Associations and Partnerships. See Constitutional Law, 14. FINAI- JUDGMENT, 1,_c0ntempt of court— proceedings by Attachment— Sentence. Sec Appeal, 4. 2 _>;e^v Trial— Appeal from Order for— Final Judgment. SER.) c. 92, ss. 1, 4 and 10 (Bills of Sale)— 55 Tic. (X. S.) c. 1. s. 143, (The Mines Act)— 41 & 42 Vic. (N. S.) c. 31, s. 4. See Mortgage, 7. 2. — Property Real and Personal — Im- movables BY Destination — Movables Incorpor.'^ted with the Freehold — Sever.\nce from Realty — Contract Resolutory Condition — Conditional Sale— Arts. 37D. 2017. 2083. 2085. 2089, C. C— Hypothecary Creditor— Unpaid Vendor. Sec Contract. 30. And see Immovable Property. FISHERIES. 1._Maritime Law— Foreign Vessel with- in British Waters— Fishing within Three Mile Limit — License — For- fjjiture— R. S. C. c. 94, s. 3— Evidence — Onus Probandi. The third section of the" Act respectius Fishing by Foreign Vessels" (li. S. C. o. 94), prohibits tishiug by foreign vessels in British waters within three marine miles of the coasts of Canada, without a license from the Governor in Council, on pain of for- feiture. In an action in ran in the Nova Scotia Admiralty District, the Lucal Judge (McDonald, C.J.), of the Exchequer Court of Canada, Admiralty Side, adjudged the condemuation .ind forfeiture of the vessel in question, her furniture and cargo, with costs (4 Ex. C. R. 419), and held, that where the Crown alleged in the p'tition in an action in rem for condemnation and forfeiture, that a certain vessel had violated the provisions of the above mentioned Act by fishing In prohibited waters without the necessary li- cense, but offered no evidence in support or such allegation, the burden of proving th2 license to fish was upon the defendant. On appeal to the Supremo Court of Can- ada, the decision of the Exchequer Court was aflirmcd and the appeal dismissed with costs. The " Hauy L. PhiUips " v. The Queen. ISth February, 1895 sxv., 091 2.— Canadian Waters — Property in Beds — Public Hvrbours — Erections in Navigable Waters — Interference with Navigation— Right of Fishing — I'owER to Grant — Riparian Pro- prietors—Great Lakes and Navig- able Rivers— Operation of Magna Chart A — Provincial Legislation — R. S. O. (1887) c. 24, s. 47— .55 Vic. c. 10, ss. 5 to 13, 19 and 21 (O.)— R. S. Q. Arts. 1375 to 137S. Riparian proprietors before Confederation had an exclusive right of tishing in nou-uavi- li*able, audi in navigable non-tidal lakes, rivers, streams and waters, the beds 'Of which had been granted to tbem by the Crown. Eoherfnon v. Tlie Queen (6 Can. S. C. R. 52) followed. The rule that riparian proprietors own ad medium fllum aqvw does not apply to the great lakes or navigable rivers. Where beds of such waters have not been granted the right of fishing is public and not restricted to waters within the ebb and flow of the tide. FOLLE ENCHERE— FOREIGN JUDGMENT. Ill Where the provisions of Magna Charta are not in force, as in the Province of Quebec, the Crown, in right of the province, may grant exclusive rights of tishing in tidal waters, except in tidal public harbours in which as in public harbours, the Crown in right of the Dominion may grant the beds and tishiug riglits. Gwynne, J., dissent- ing. Per Strong, C.J., and King and Girouard, JJ. — The pro.-isions of Magna Charta relat- ing to tidal waters would be in force in the provinces in which such waters exist (ex- cept guebec), unless repealed by legislation, but such legislation has probably been passed by the various Provincial Legislatures; and tlu'se provisions of the Charter so far as they affect public liarbours have been re- pealed by Doniinion legislatit)n. The Dominion Parliament cannot author- ize the giving by lease, license or otherwise the right of tishing in non-navigable waters, nor in navigable waters, the beds and banks of which are assigned to the provinces un- der the British North America Act. The legislative authority of Parliament under section 01, item 12, is confined to the regu- latidii and conservation of sea-coast and in- land fisheries under which it may reciuire that no person shall fish in public waters witliout a license from the Department of Marine and Fisheries, may impose fees for such license and prohibit all hshing without it. and nmy prohibit j)articular classes, such as foreigners, unconditionally from fishing. The license as required will, however, be merely personal conferring qualitications, and give no exclusi\e right to tish in a particular locality. Section 4 and other portions of c. 95, Revised Statutes of Canada, so far as they attempt to confer exclusivi; right of tishing in provincial waters, are ultra vins. Gwynne. J., contra. Per Gwynne. J. -Provincial Ijcgislatures have no jurisdiction to deal with fisheries. Whatever comes within the that term is given to the Dominion by the British North Amer- ica Act. section Ul, item 12, including the grant of leases or licenses for exclusive fishing. Per Strong. C.J.. Taschereau, King and (Jirouard. .J.J.— K. S. O. c. 24. s. 47, and ss. 5 to 13 inclusive of the Ontario Act of 1892, are intra vires, but may be superseded by Dominion legislation.— R. S. Q. arts. 137.5 to 1378 inclusive, are intra viirs. Per Gwynne, J.— R. S. O. c. 24. s. 47 is ultra vires so far as it assumes to authorize the land covered with water -within public havtiours. The margins of navigable rivers and lakes may be sold if there is an understanding with the Dominion Government. tVr protec- tion against interference with navigation. The Act of 18'J2, and K. S. Q. arts. 1375 to 137S are valid if passed in aid of a Do- minion Act Wiv protection of rtsheries. If not fhcy are ultra circs. In re Jurisdiction over Proiincial Finheries xxvi., 44-i 3. — CONSTITUTION.'VL LaW— COXVENTION Op 1818 — Construction of Treaty- Construction OF Statute — Three- mile Limit — Foreign Fishing Ve.ssbls — ■ Fishing "— 5(> Geo. III., c. 38 (I.mp.) -II. S. C. cc. 94 & 95. Where lish had been enclosed in a seine more than tliree marine miles from the coast of Nova Scotia, and the seine pursed up and secured to a toreigu vessel, and the vessel was afterwards seized with the seine still so attached within the thre<^ mile limit, her crew then being engaged in the act of bailing the tish out of the seine: Held. Strong, C.J., and Gwynne, J., dissenting, aftiiniing the de<'ision of the cor.rt below, tliat tht- vessel when so seized was ■■ lishing in violation of the convention of 1.S18 between Great Britain and tlu- Uni- ted States of America, and of the Imper- ial Act, 51) Geo. III., c. 38, and the Revised Statutes of Canada, c. 94, and consequently liable with her ( argo, tackle, rigging, apparel, furniture and stores to be condemned and forfeited. The iihip " Frederick Gcrring, Jr." v. The Queen xxvii., 271 FOLLE ENCHERE. See False Bidding. FOREIGN JUDGMENT. Action— Bar to— Estoppel— Pes .Iudicata —.Judgment Obtained After Action Begun— R. S. N. S. (5 ser.) c. 104. s. 12. s.-s. 7; Orders 24 and 70; Rule 2; Order 35, Rule 38. A judgment of a foreign court having the force of res judicata in the foreign country has the like force in Canada. Unless prevented by rules of pleading a foreign judgment can be made available to bar a domestic action begun before such judgment was obtained. The Ddta (1 P. D. 393). distinguished. The combined effect of orders 24 and 70 rule 2. and s. 12. s.-s. 7 of c. 104 R. S. N. S. (5 ser.). will permit this to be done in Nova Scotia. 112 FORESHORE— FRAUD. The provisiou of R. S. N. S. (5 sor.). c. 104) Ordor y.j, liiilo 38. that evideuie of a jiulfjiiu'iit ri'coviTt'il in a foroign couutry shall not, in au action on suc-li jtiilginfut in Nova Scotia, be conclusive, of its corrcctnoss. but that the defendant may defend such suit as fully as if brought for the original cause of action, cannot be invoked in favour of the defendant in Nova Scotia who has brought an unsuccessful action in a foreign court against the iilaiutilY Laic ct ul. v. Hdimcn xxv., (>'.) FORESHORE. 44 Vic. c. 1, s. IS— Powers of Caxadian 1'acific Railway Company to take AND Use Foreshore — 10 Vic. c. ;32 (B. C.)— City of Vancouver— Right to Extend Streets to Deep Water — Crossing of Railv.-ay- ,Tus ruBLicuxi— Implied Extinction by Statute— In- junction. By 44 Vic. c. 1, s. IS, the Canadian Paci- tic Railway Company " have the riglit to take, use and ludd the beach ai.d land below high water mark, in any stream. lak<', navi- gable water, gulf or sea in so far as the same shall be vested in the Crown, and shall not be i-e(iuired by the Cri>wn, to such ex- tent as shall be required l)y the company for its railway and otlier works as shall be exhibited liy a map or ])lan tiiereof deposited in tile olfice of the Minister of Railways." By .")!) & .^1 Vic. c. T)!;. s. .5, the location of the company's line of railway lK>tweeu Port Moody and the City of Westminster, includ- ing the foreclosure of Burrard Inlet at the foot of (!ore Avenue. Vancouver City, was ratifie2 the city began the construction of works extending from the foot of Gore Avenue, with the avowed object to cross the railroad track at n level, and obtain access to the harbour at deep water. On an application by the railway ccmipany for an injunction to restrain the City Cor- imration frcmi priM-eiMling with their wovk of construy the statute (44 Vic. c. 1. s. 18 a), on the said foreshore, and therefore the injunction \;'as properly granted. City of Vancouver v. Canadian Pacific Rail- icay Co xxiii., 1 FORFEITURE. Mines and Minerals — Lease of ^Iining Areas — Rental Agreement — Payment OF Rent— R. S. N. S. (."> ser.) c. ~—o2 Vic. c. 23 (N. S.— Construction of Statute. Sec Lease, 2. FRAUD. 1.— Preferences — Badge of Fraud — Authority-. In an assignmc-nt for benefit of creditors authority to the assignee not only to prefer parties to acconmiodation paper but also lo pay all " costs, charges and expenses to arise in consequence " of such paper is a badge of fraud. Kirk V. Chiisholm xxvi., Ill 2. — Partnership — Simulated Dissolution — Fraud — Husband and Wife — BenefiT Conferred During Marriage. Sec Partnership, 1. ."?. — Sale of Goods by Insolvent — Bona Fides. Sec Insolvency, 1. 4. — Fraudulent Statement — Proof of Fraud — Presumption — Assignment of Policy— Fraud by Assignor— Reversal on Question of Fact. Sec Appeal, 37. " Insurance, Fire, 5. 5. — Trustee^ and Administrators — Fraudulent Conversion — Past Due Bonds — Negotiable Security — Com- mercial Paper— Debentures Trans- ferable by Delivery — Equity of Prgviot-s Holders — Estoppel — Br >icEHs and Factors — Pledge— Im- PL-yo Notice— Innocent Holders for Va. UK— Principal and Agent. Sec Pledge, 1. n. — Debtor and Creditor — Composition and Discharge — Acquiescence in — New Arrangement of Terms of J'ETtlement- Waiver op Time Clause —Principal and Agent— Deed of Dis- •^•haroe— Notice of Withdrawal from Agreement — Fraudulent Prefer- ences. Sec Debtor and Creditor, 8. FRAUDS, STATUTE OF— FRAUDULENT PREFERENCES. 113 7. — Conveyance op Land in Name op Trustee — Debtor and Creditor — Parties in Pari Deucto. See Trusts, 9. FRAUDS, STATUTE OF. Memorandum in Writing — Repudiating Contract by. A writing containing a statement of all the terms of a contract for the sale of goods requisite to constitute a memo, under the ITth section of the Statute of Frauds, may be used for that purpose though it repudiates the sale. Martin y. Haubner xxvi., 142 And see Statute of Frauds. FBATJDULENT CONVEYANCES. Estoppel, — Con"V'eyance by Married Woman — Agreement— Recital — Bona Fides. B., a married woman, in order to carry out an agreement between her husband and his creditors consented to convey to the cre- ditor a farm, her separate property, in con- sideration of the transfer by her husband to her of the stock and other personal pro- perty on, and of indemnity against her per- sonal liability on a mortgage against, said farm. The conveyance, agreement and bill of sale of the chattels were all executed on the same day, the agreement, to which B. was not a party, containing a recital that the husband was owner of the said chattels but giving the creditor no security upon them. The chattels having subsequently been seized under execution against the hus- band it was claimed, on interpleader pro- ceedings, that the bill of sale was in fraud of the creditor. Held, affirming the decision of the Court of Appeal, that the recital in the agreement worked no estoppel as against B.; that as it appeared that the husband expressly re- fused to assign the chattels to his creditor there was nothing to prevent him from transferring them to his wife, and that the Court of Appeal rightly held the transaction an honest one. and B. entitled to the goods and to indemnity against the mortgage. Boulton et al. v. Boulton . . . . xxviii., 592 FRAUDULENT PREFERENCES. 1.— Sheriff— Trespass— Sale of Goods by Insolvent— Bona Fides-^Tudgmf.nt of Inferior Tribunal— Estoppel— Bar to Action — Res Judicata — Pleading. K. was a trader, and in insolvent cir- S.C.D. — 8. cuTPstancea when he sold the whole of his stock in trade to D. At the time of this sale D. was aware that two of D.'s creditors had recovered judgments against him. The sherifE afterwards seized the goods so sold, under executions issued upon judgments sub- sequently obtained, and upon an interpleader issue tried in the County Court the jury found that K. had sold the goods with intent to prefer the creditors who held the prior judgments, but that D. had purchased in good faith and without knowing of such in- tention on the part of the vendor. .Judgment was thereupon entered against D. in the County Court, and the judgment was allirmed by the Supreme Court of British Columbia en hanc. In an action afterwards brought by D. against the sheriff for trespass in seizing the goods he obtained a verdict, which was, however, set aside by the court en banc, a majority of the Judges holding that the County Court judgment was a complete bar to the action. On appeal to the Supreme Court of Can- ada; Held, reversing the judgment of the Su- preme Court of British Columbia, that as the evidence showed that the goods had been purchased in good faith by D. for his own benefit, the sale was not void under the statute respecting fraudulent prefer- en:!es; that the County Court judgment, be- ing a decision of an inferior tribunal of limited jurisdiction, could not operate as a bar in respect of a cause of action in the , Supreme Court, beyond the jurisdiction of the County Court, and further, that even if such judgment could be set up as a bar, it ought to have been specially pleaded by way of estoppel, by a plea sotting up in de- tail all the facts necessary to constitute the estoppel, and that from the evidence in the case it appeared that no such estoppel could have been established. Taschereau, J., dis- sented. Davies v. McMillan, 1st May, 1893. 2. — Assignment for Benefit of Creditors — Preferences — R. S. N. S. c. 92. ss. 4. 5, 10 — Chattel Mortgage — Statute op Eliz. An assignment is void under the Statute of Elizabeth as tending to hinder or delay creditors if it gives a first preference to a firm of which the assignee is a member and provides for allowance of interest on the claim of the said firm until paid, and the assignee is permitted to continue in the same possession and control of business as he 114 FRAUDULENT PREFERENCES. previously had, though no one of these pro- visions taken by itself would have such effect. A provision that " the assignee shall only be liable for such moneys as shall come into his hands as such assignee unless there be gross negligence or fraud on his part " will also avoid the assignment under the Statute of Elizabeth. Kirk V. Chisholm xxvi., Ill 3. — Insolvency — Pressure — Assignsient of Expected Profits — Statute op Eliza- beth — Assets Exigible in Execution. The appeal was from the judgment of the Court of Appeal for Ontario, affirming the judgment of Street, J., in the High Court of Justice, which dismissed the action of the plaintiff with costs. The action was brought to set aside an assignment, by way of security, to the defendant of an interest in the profits expected to be earned under a contract for the performance of work, on the ground that it was made to defeat, hinder, defraud, delay and prejudice the creditors of the assignor, (who was insol- vent), and to give the assignee an unjust preference. In the trial court the decision in favour of the defendant was based on the ground that the assignment had been made under pressure, and was therefore valid. The Court of Appeal affirmed this judgment, but upon other grounds, holding that as the subject of the assignment did not consist of assets which could be reached by creditors at the time when it was made, the assign-, ment did not come within the Act resi)ecting Assignments and Preferences (24 Ont. App. R. 153). The Supreme Court of Canada dismissed the appeal with costs, adopting the reasoning of the Judges in the Court of Appeal for Ontario. Blakely et al. y. Gmld. 10th Nov., 1897, xxvii., 682 4. — Insolvency — Assignment — Preference — Payment in Money — Cheque of r.aiRD Party— R. S. O. c. 124, s. 3. In an appeal from a judgment of the Court of Appeal for Ontario (23 Ont. App. R. 439), which held that indorsing and giving a credi- tor the unaccepted cheque of a third person in the debtor's favour s not a payment of money to the creditor within the meaning of the third section of chapter 124 of the Re- vised Statutes of Ontario (1887), and over- ruling Armstrofiff v. Hemstreet (22 O. R. 366), The Supreme Court of Canada affirmed the decision of the Court of Appeal and dismis- sed the appeal with costs. Fraser et al. v. Davidson & Bay, 1st May, 1897 xxviu., 272 5. — Debtor and Creditor — Insolvency — Fraudulent Preferences — Chattel Mortgage — Advances op Monet — Solicitor's Knowledge of Circum- stances— R. S. O. (1887) c. 124—54 Vic. c. 20 (Ont.)— 58 Vic. c. 23 (Ont.). In order to give a preference to a partic- ular creditor, a debtor who was in insolvent circumstances, executed a chattel mortgage upon his stock in trade in favour of a money- lender by whom a loan was advanced. The money, which was in the hands of the mort- gagee's solicitor, who also acted for the pre- ferred creditor throughout the transaction, was at once paid over to the creditor who, at the same time, delivered to the solicitor, to be held by him as an escrow and dealt with as circumstances might require, a bond indemnifying the mortgagee agaiust any loss under the chattel mortgage. The mort- gagee had previously been consulted by the solicitor as to the loan^ but was not informed that the transaction was being made in this manner to avoid the appearance of violating the acts respecting Assignments and Pre- ferences and to bring the case within the ruling in Oibbons v. Wilson (17 Ont. App. R. 1). Held, that all the circumstances, necessar- ily known to his solicitor in the transaction of the business, must be assumed to have been known to the mortgagee, and the whole affair considered as one transaction contrived to evade the consequences of illegally pre- ferring a particular creditor over others, and that, under the circumstances, the ad- vance made was not a bond flde payment of money within the meaning of the statutory exceptions. Burns dc Lewis v. Wilson . . . . xxviii., 207 6. — Assignment for Benefit op Creditors —Preferred Creditors — Money Paid under Voidable Assignment — Levy AND Sale under Execxh'ion — Statute OP Elizabeth. Where an assignment has been held void as against the statute, 13 Eliz., c. 5, and the result of such decision is that a creditor who had subsequently obtained judgment against the assignor and, notwithstanding the assignment, sold all the debtor's personal property so transferred, becomes entitled to all the personal property of the assignor FUTURE RIGHTS— GARNISHEE. ii: levied upon by him under his execution, such creditor has no legal right and no equity to an account or to follow moneys received by the assignee or paid by him under such assignment in respect to which he has not secured a prior claim by taking the neces- sary proceedings to make them exigible. Cumminga & Sons v. Taylor et al., xxviii., 337 7.— Debtor and Creditor— Transfer of Property— Delaying or Defeating Creditors — 13 Eliz. c. 5. A transfer of property to a creditor for valuable consideration, even with intent to prevent it being seized under execution at the suit of another creditor, and to delay the latter in his remedies or defeat them al- together, is not void under 13 Eliz., c. 5, if the transfer is made to secure an existing debt, and the transferree does not, either directly or indirectly, make himself an in- strument for the purpose of subsequently benefiting the transferror. Mulcahy v. Archihald . . . . xxviii., 523 8.— Insolvency— Transfer of Insolvent's Property to Creditor— Knowledge of Creditor— Arts. 1035, 1030, 1169, C. C See Debtor and Creditor, 4. 0.— Assignment for the Benefit of Creditors — Preferred Ckeditors — Money Paid under Voidable Assign- ment — Liability of Assignee — Statute of Elizabeth— Hindering and Delay- ing Creditors. See Assignment, 3. FUTURE BIGHTS. 1.— Appeal — Expropriation of Lands — Assessments — Local Improvements — R. S. C. c. 135, s. 29 (6)— 56 Vic. c. 29, s. 1 (D.). See Appeal, 51. 2.— Action en Bornage — Title to Lands — R. S. C. c. 135. s. 29 (6)— 54 & 55 Vie. c. 25, s. 3 (D.)-o6 Vic. c. 29, s. (D.). See Appeal, 53. 3. — Appeal — Jurisdiction Appealable Amount — Future Rights — Alimentary Allow \.NCE — " Other Matters and Things"— R. S. C. c. 135, s. 29 (6)— 56 Vic. (D.) c. 29. See Appeal, 58. GAME LAWS. Province op Quebec — Game Killed Out OF Season— Seizure of Furs— Search Warrant — Justice op the Peace- Jurisdiction — Writ of Prohibition — R. S. Q. Arts. 1405, 1409. See Practice, 11. " Prohibition, 1. GAMING. Criminal Code, s. 575— Persona Desig- NATA — Officers de Facto and de Jure — Chief Constable — Common Gaming House — Confiscation of Gaming In- struments, Moneys, Etc. — Evidence —The Canada Evidence Act, 1893, ss. 2, 3, 20 and 21. Section 575 of the Criminal Code, author- izing the issue of a warrant to seize gaming implements on the report of " the chief con- stable or deputy chief constable " of a city or town, does not mean that the report must come from an officer having the exact tit.' mentioned, but only from one exercising sue, functions and duties as will bring him within the designation used in the statute. There- fore, the warrant could properly issue on the report of the deputy high constable of the City of Montreal. Girouard, J., dissenting. The warrant would be good if issued on the report of a person who filled de facto the office of deputy high constable though he was not such de jure. In an action to revendicate the moneys so seized the rules of evidence in civil mat- ters prevailing in the province would apply, and the plaintiff could not invoke " The Can- ada Evidence Act, 1893," so as to be a com- petent witness in his own behalf in the Pro- vince of Quebec. Per Strong, C.J. — A judgment declaring the forfeiture of money so seized cannot be collaterally impeached in an action of re- vendication. O'Neil V. Attorney-General of Canada, xxvi., 122 GARNISHEE. Husband and Wife— Purchase of Land BY Wife— Re-sale — Garnishee of Pur- chase Money on — Debt of Husband — Statute of Elizabeth — Hindering or Delaying Creditors. See Practice, 19. Ii6 GAS COMPANY— GUARANTEE. GAS COMPANY. Construction of Contract— Construction OF Statute — 12 Vic. c. 183. s. 20 — Notice to Cancel Contract — Gas Supply Shut off for Non-payment op Gas Bill on Other Premises— Man- damus. An agreement to furnish gas contained an express provision that either of the con- tracting parties should have the right to can- cel the contract by giving twenty-four hours notice in writing. Notices were sent in writ- ing to the consumer that his gas would be shut off, at a certain number on a street named, unless he paid arrears of gas bills due upon another property. Hel-d, that such notices could not be con- sidered as notices given under the contract for the purpose of cancelling it. The Act to amend the Act incorporating the New City Gas Company of Montreal, and to extend its powers (12 Vic. c. 182), provides:—" That if any person or persons, company or companies, or body corporate supplied with gas by the company, should neglect to pay any rate, rent or charge due to the said New City Gas Company, at any of the times fixed for the payment thereof, it shall be lawful for the company or any person acting under their authority, on giv- ing twenty-four hours previous notice, to stop the gas from entering the premises, service pipes, or lamps of any such person, company or body, by cutting off the service pipe or pipes, or by such other means as the said company shall see fit, and to rt- cover the said rent or charge due up to such time, together with the expenses of cutting off the gas, in any competent court, notwith- standing any contract to furnish for a lon- ger time, and in all cases where it shall be lawful for the said company to cut off and take away the supply of gas from any house, building or premises, under tlie pro- visions of this Act, it shall be lawful for the company, their agents and workmen, upon giving twenty-four hours previous no- tice to the occupier or jjerson in charge, to enter into any such house, building or pre- mises, between the hours of nine o'clock in the forenoon and four in the afternoon, mak- ing as little disturbance and inconvenience as possible, and to remove, take and carry away any pipe, meter, cock, branch, lamp, fittings or apparatus, the property of end be- longing to the said company." Eeld, Taschereau, J., dissenting, that the powers given by the clause quoted nre ex- orbitant and must be construed strict! f; that the company has not been thereby vested with power to shut off gas from the build- ings and premises of the same proprietor or occupant, when he becomes in default for the payment of bills for gas consumed in one of them only; and that the provision that the notice to cut off must be given " to the occupier or person in charge," indicates that only premises so occupied and iu de- fault should suffer. Cadieux v. The Montreal Gas Company, xxviii., 382 (The Judicial Committee of the Privy Council granted leave to appeal from this judgment; 1898 A. C. 718). GUARANTEE. 1. — Construction of Agreement— Guar- antee. A., a wholesale merchant, had been sup- plying goods to C. & Co. when, becoming doubtful as to their credit, he insisted on their account being reduced to $5,000, and security for further credit. W., who had indorsed to secure a part of the existing debt, thereupon gave A. a guarantee in the form of a letter, as follows: — " I understand that you are prepared to furnish C. & Co. with stock to the extent of $5,000 as a cur- rent account, but want a guarantee for any amount beyond that sum. In order not to impede their operations I have consented to become responsible to you for any loss you may sustain in any amount upon your current account in excess of the said sum of five thousand, but the total amount not to exceed eight thousand dollars including your own credit of five thousand, unless sanc- tioned by a further guarantee." » * • A. then continued to supply C. & Co., with goods, and in an action by him on this guarantee: Held, affirming the decision of the Court of Appeal, Gwynne, J.^ dissenting, that there could be no liability on this guarantee un- less the indebtedness of C. & Co. to A. should exceed the sum of $5,000, and at the time of action brought such indebtedness, having been reduced by payments from C. & Co. and dividends from their insolvent estate to less than such sum, A. had no cause of action. Alexander v. TVatson xxiii., 670 2. — Patent of Invention — Business Agreement to Ma.vufacture Under — LettE'H of Guarantee — Failure of Scheme — Liability of Guarantor. The chief object of an agreement between A. and B. was the profitable manufacture HABEAS CORPUS. "7 and sale of wares under a patent of inven- tion Issued to A., and in consideration of advances by B. to an amount not exceeding $6,000, O. by a letter of guarantee agreed " to become a surety to B. for the repayment of the $6,000 within 12 months from the date of the agreement iC it should transpire that, for the reasons incorporated in said agree- ment, it should not be carried out." On an action brought by B. against C. for $6,000 it was proved at the trial that the manufacturing scheme broke down through defects of the invention. Held, affirming the judgment of the court lelow, that C was liable for the amount guaranteed by his letter. Angus v. Unioti Oas and Oil Stove Co., xxiv.. 104 3.— Principal, akd Surety — Guarantee Bond — Default op Principal — Non- disclosure BY Creditor. W. was appointed agent of a company in 1891 to sell its goods on commission, and gave a bond with sureties for faithful dis- charge of his duties. His appointment was renewed year after year, a new bond with the same sureties being given to the com- pany on each renewal. His agreement with the company only authorized W. to sell for cash, but at the end of each season he yas in arrear in his remittances. Avhich he attrib- uted to slow collections, and which he set- tled by giving an indorsed note, retiring the same before the bond for the next year was executed. After the season of 1894 the com- pany discovered that W. had collected moneys of which he had made no return and brought an action to recover the same from the sureties. Ileld, reversing the decision of the Court of Appeal, that each year there was an em- ployment of W. distinct from, and inde- pendent of, those of preceding years; that the position of the sureties on re-appointment was the same as if other persons had signed the bond of the preceding year; and that the comnany was under no obligation, on taking a new bond, to inform the sureties that W. had not punctually performed his undertak- ings in respect of previous employment, nor did the non-disclosure imply a representation to the sureties when they signed a new bond that they had been punctually performed. Niagara District Fruit Orotcers' Stock Co. v. Walker et al xxvi., 629 4. — Guarantee op Honesty op Employee — Guarantee Policy — Notice op Defal- cation. See Surety, 3. | : 5.— Insolvency — Assignment for Benefit of Creditors — Sale of Assets to Wife OF Insolvent — Guarantee by Creditor and Inspector— Trustee— Action for Account op Profits. See Insolvency, 2. HABEAS CORPUS. 1. — Jurisdiction — Form of Commitment — Territorial Division — Judicial Notice — B. S. C. c. 135, s. 32, A warrant of commitment was made by the stipendiary magistrate for the police di- vision of the Muneipality of the County of Pictou, in Nova Scotia, upon a conviction for an offence stated therein to have been committed " at Hopewell, in the County of Pictou." The County of Pictou appeared to be of a greater extent than the Munici- pality of the County of Pictou,— there being also four incorporated towns within the county limits — and it did not specifically ap- pear upon the face of the warrant that the place where the offence had been committed was within the Municipality of the County of Pictou. The Nova Scotia statute of 1895 respecting County Corporations (58 Vic. c. 3, s. 8), contains a schedule which mentions Hopewell as a polling district in Pictou County entitled to return two Councillors to the County Council. Held, that the Court was bound to take judicial notice of the territorial divisions declared by the statute as establishing that the place so mentioned in the warrant was within the territorial limits of the police division. Held, also, that the jurisdiction of a Judge of the Supreme Court of Canada in matters of Tiofteos corpus in criminal cases is limited to an inquiry into the cause of imprisonment as disclosed by the warrant of commit- ment. Ex parte 7amea W. Macdonald, . . xxvii., 683 2. — Appeal — Change of Position of Parties. Upon the calling for hearing of the appeal (which was from a judgment of the Supreme Court of British Columbia, refusing a writ of Habeas Corpus for the possession of Quai Sing, a Chinese female under age), counsel for the respondent produced to the court an order of the Supreme Court- of British. Columbia, dated subsequent!/ to the judgment appealed from, by wk'ch it appeared that the respondent, the natron of a rescue home, had been appointed by that court as guardian to the irfant in il8 "HANSARD" STAFF— HEIRS. question, whercvipon the Chiel Justice in- timated that, under the circumstances, it was useless to proceed with the hearing of the appeal, it being impossible that any order could be made thereon respecting the possession of the infant being given to the appellant. The appeal was consequently dismissed with costs. Seid Sing Eaw v. Boices, 17th May, 1898. "HANSARD" STAFF. Civil Service — Extra Salary — Addi- tional Remuneration — Permanent Em- ployees— 51 Vic. c. 12, s. 51. See Statute, 35. HARBOURS. Canadian Waters — Property in Beds — Public Harbours — Erections in Navigable Waters — Interference WITH Navigation— Right of Fishing — Power to Grant — Riparian Pro- prietors — Great Lakes and Navi- gable Rivers— Operation of Magna Charta — Provincial Legislation — R. S. O. (1887) c. 24, s. 47—55 Vic. c. 10, ss. 5 TO 13, 19 and 21 (O.)— R. S. Q. Arts. 1375 to 1378. The beds of public harbours not granted before Confederation are the property of the Dominion of Canada. Holman v. Green (6 Can. S. C. R. 707), followed. The beds of all other waters not so granted belong to the respective provinces in which they are situate, without any distinction between the various classes of waters. Per Gwynne, J.— The beds of all water.! are subject to the jurisdiction and control of the Dominion Parliament so far as re- quired for creating future harbours, erecting beacons or other public works for the bene- fit of Canada, under the British North Amer- ica Act, s. 92, item 10, and for the adminis- tration of the fisheries. R. S. C. c. 92, " An Act respecting certain works constructed in or over navigable rivers," is intra vires of the Dominion Par- liament. The Dominion Parliament has power to declare what shall be deemed an interference with navigation and to require its sanction to any work in navigable waters. A province may grant land extending into a lake or river for the purpose of there being built thereon a wharf, warehouse or the like, and the grantee on obtaining the sanc- tion of the Dominion may build thereon subject to compliance with R, S. C. c. 92. Where the provisions of Magna Charta are not in force, as in Quebec, the Crown in right of the province may grant exclusive rights of fishing in tidal waters, except iii tidal public harbours, in which, as in public harbours, the Crown in right of the Domin- ion, may grant the beds and fishing rights. Gwynne, J., dissenting. Per Gwynne, J.— R. S. O. c. 24, s. 47, is ultra vires so far as it assumes to authorize the sale of land covered with water within public harbours. The margins of navigable rivers may be sold if there is an understanding with the Dominion Government for protection against interference with navigation. The Act of 1892 and R. S. Q. arts. 1375 to 1378 are valid if passed in aid of a Dominion Act for protection of fisheries. If not they are ultra vires. In the mctter of Jurisdiction over Provincial Fisheries xxvi., 444 HEIRS. 1. — Will, Construction of — " Own Right Heirs " — Limiting Testamentary Power of Devisee — Conditional. Limitations — Appeal — Acquiescence by Appellants in Judgment Appealed FROM — Costs — Vesting of Estate. Under a devise to the testator's " own right heirs " the beneficiaries would be those who would have taken in the case of intestacy unless a contrary intention appears, and where there was a devise to the only daughter of the testator conditionally upon events which did not occur, and, under the circumstances, could never happen, the fact of such a devise was not evidence of such contrary intention, and the daughter inher- ited as the right heir of the testator. In re Ferguson, Turner v. Bennett. Carson y. Coatstcorth xxviii., 38 2. — Statute, Construction op — Estates Tail, Acts Abolishing— R. S. N. S. (1 SER.) c. 112— R. S. N. S. (2 SER.) c. 112 — R. S. N. S. (3 SER.) c. 111—28 Vic. c. 2 (N. S.)— Will— Construction of — Ex- ecutory Devise over — " Dying with- out Issue " — " Lawful Heirs "— " Heirs op the Body "—Estate in Re- mainder Expectant — Statutory Tttlb — R. S. N. S. (2 SER.) c. 144, ss. 23 and 24— TiTLfi by Will— Conveyance by Tenant in Tail, -S-ee Will, 17. HIGHWAY. 119 3.— Will — CJonsthuction op — Words of Futurity-Life Estate— Joint Lives- Time FOR Ascertainment of Class- Survivor Dying without Issue — " Law- ful Heir." See Will, 18. HIGHWAY. 1.— Public Highway— Registered Plan- Dedication — User — Statute, Con- struction OF — Retrospective Statute 46 Vic. c. 18 (O.)— Estoppel. The ri>,'ht vested in a municipal corpoii- tion by 40 Vic. c. 18 (O.), to convert into a public highway a ro:id laid out by a private person on his property, can only be exercised in respect to private roads, to the use of which the owners of property abutting there- on were entitled. Gooderham et al. v. The City of Toronto, xxv.. 246 2.— Municipal Corporation — Repair of Streets — Pavements — Assessment on Property Owner— Double Taxation — 24 Vic. c. 39 (N. S.)— 53 Vic. c. 60, s. 14 (N. S.). By sec. 14 of t-he Nova Scotia Statute, .53 Vic. c. 60, the City Council of Halifax was authorized to borrow money for paving the sidewalks of the City with concrete or other permanent material, one-half the cost to be a charge against the owners of the re- spective properties in front of which the work should be done, and to be a first Hen on such properties. A concrete sidewalk was laid, under authority of this statute, in front of L.'s property, and he refused to pay half the cost on the .ground that his predecessor in title had in 1867, under the Act 24 Vie. c. 30, furnished the material to construct a brick sidewalk in front of the same property, and that it would be impos- ing a double tax on the property if he had to pay for the concrete sidewalk as well. Held, reversing the judgment of the Su- preme Court of Nova Scotia, that there was nothing dubious or uncertain in the Act. un- der which the concrete sidewalk was laid; that it authorized no exception in favour of property owners who had contributed to the cost of sidewalks laid under the Act of 1861; and that to be calletl upon to pay half the cost of a concrete sidewalk in 1891 would not be paying twice for the same thing, because in 186T the property had contributed bricks to construct a sidewalk which, in 1891. had become worn out, useless and dnngerous. The City of HaUfax v. Lithgoic, xxvi., 336 3.— Municipal Corporation— Highways — Old Trails in Rupert's Land — Substi- tuted Roadway— R. S. C. c. 50, s. 108 — Reservation in Crown Grant — Dedication — User — Estoppel — Assess- ment OF Lands Claimed as Highway- Evidence. The user of old travelled roads or trails over the waste lands of the Crown in the North-West Territories of Canada, prior to the Dominion Government Survey .thereof, does not give rise to a presumption that the hnds over which they passed were dedicated as public highways. The land over which an old travelled trail had formerly passed, leading to the Hud- son Bay Trading Post at Edmonton, N. W. T., had been enclosed by the owner, divided into town lots and assessed and taxed as private property by the municipality, and a new street substituted therefor, as shown upon registered plans of sub-division and laid out upon the ground, had been adopted as a boundary in the descriptions of lands abut- ting thereon in the grants thereof by Letters Patent from the Crown. Held, reversing the decision of the Supreme Court of the North-West Territories, that under the circumstances there could be no presumption of dedication of the lands over which the old trail passed as a public high- way, either by the Crown or by .the private owner, notwithstanding long user of the same by settlers in that district prior to the Dominion Government Survey of the Ed- monton Settlement. Hciminck v. Toim of Edmonton, xxviii., .jOI 4.— Old Trails in Rupert's Land — Crown Grant — Squatter's Plan op Sub- division— Substftution OF New Way — Dedication — Highway — Adopting New Street as a Boundary. A squatter in possession of public lands near the old Hudson Bay Trading Post at Edmonton, who afterwards became paten- tee of the greater part of the lands he oceu pied, had made a plan of sub-division thereof into town lots which showed a new road- way or street laid down in the place of the old travelled trail across said lands leading to the trading post, and subsequently, the Crown, in making grants, described several parcels of the lands in the patents as being bounded and abutting upon the snid street or roadway, so laid' down on the plan. Held, affirming the decision of the Su- preme Court for the North-West Territories, thiit the space so shown upon the plan, as laid out for a street, had been adopted I20 HIRE OF PERSONAL SERVICES— HUSBAND AND WIFE. and dedicated by the Crown as and for a public street aud highway in substitution for the old travelled trail or roadway across said lands. Broicn ct al. v. The Town of Edmonton, 24th May, 1894 xxviii., 510 5. — Repairs of Streets — L/Iabilitt for Non-feasance. See Municipal Corporation, 25. 6.— Negligence — Obstruction op Street— Asse:ssment of Damages — Questions op Fact— Action of Warranty. See Appeal, 44. " Warranty. 7. — Constitutional Law — Municipal Cor- poration — I'owers op Legislature — License — Monopoly — IIighwayo and Ferries — Navigable Streams — By- laws AND Resolutions — Intermuni- ciPAL Ferry — Tolls — Disturbance of Licensee — North-west Territories Act. R. S. C. c. 50, ss. 13 and 24— B. N. A. Act (1807), c. 92, ss. 8, 10 and 15— Rev. Ord. N. W^ Ter. (1888) c. 28— Ord. N. W. T. No. 7 OF 1891-92. s. 4— Com- panies, Club Associations and Part- nerships. See Municipal Corporation, 2G. 8.— Waterworks — Repairs — Injunction — R. S. Q. Art. 4485. See Injunction. 9.— Title to Portion of Highway— Legis- lative Grant OP Soil — Gas Pipes— Fix- tures — Assessment — Exemptions— 11 Vic. c. 14 (Can.)— .55 Vic. c. 48 (O.)— " Ontario Assessment Act, 1892." See Assessment, 7 his. 10.— Municipal Corporation— Highway — Encroachment upon Street — Negli- gence — Nuisance — Obstruction op Show-window — Munhcipal Officers — Misfeasance During Prior Owner- ship — Non-feasance — Statutable Duty— Damages. See Municipal Corporation, 37. HIRE OF PERSONAIi SERVICES. Appointment of Officers— Summary Dis- missal— Libellc*s Resolution— 52 Vie. c. 79, s. 79 (Q.). See Master and Servant, 8. HIRE RECEIPT. Property, Real and Personal — Im- movables by Destination— Movables Incorporated with Freehold — Sever- ance from Realty— Contract— Reso- lutory Condition— Conditional Sale— Hypothecary Creditor — Unpaid Ven- dor—Arts. 379, 2017, 2083, 2085, 2089, C. C. See Contract, 30. HUSBAND AND WIFE. 1. — Married Woman's Property — Separate Estate— Contract by Mar- ried Woman — Separate Property Exigible— C. S. U. C. c 73—35 Vic. c. 10 (O.)— R. S. O. (1877) cc. 125 and 127- 47 Vic. c. 19 (O.). See Debtor and Creditor, 1. 2.— Deed to Wipe— Execution by Hus- b.\nd. Effect of — Assent — Estoppel. See Title to Land, 3. 3.— Partnership— Dissolution — Married Woman— Benefit Conferred on Wife During Marriage — Contestation — I'riority op Claims. See Partnership, 1. 4.— Don Mutuel— Property Excluded — Acquisition After Marriage — Resilia- TiON for Value— Right op Wife to Possession. See Marriage Settlement. 5. — Government op Quebec — Retired Official— Interest of Wife in Pen- sion — Commutation. See Pension de Retraite. 6.— Purchase of Land by Wife — Re-sale Garnishee of Purchase Money on — Debt op Husband — Statute of Eliza- beth — Hindering or Delaying Creditors. See Practice, 19. 7.— Constitutional Tjaw — Marital Rights — ilARRiED Woman— Separate Estate — Jurisdiction of N. W. Territorial Legislature — Statute— Interpreta- tion OF — 40 Vic. c. 7, s. 3 and Amend- ments— R. S. O. c. 50— N. W. Ter. Ord. No. 16 OP 1889. See Married Woman, 2. HYPOTHEC— INJUN'CTIOX. 121 HYPOTHEC. See Mortgage. " Privileges and Hypothecs. IMMOVABLE PROPERTY. 1.— Vendor and Turchaser — Unpaid S'^en- DOR — CONDITIO.XAL. SaLE — SUSPENSIVE Condition — Movables Incorporated WITH Freehold — Immovables by Des- tination — Hypothecary Charges — Arts. 375 et aeq. C. C. A suspensive condition in an agreement for the sale of movables, whereby, until the whole of the price shall have been paid^ the property in the thing sold is reserved to the vendor is a vaJid condition. In order to give movable property the character of immovables by destination, it is necessary that the person incorporating the movables with the immovables should be, at the time, owner both of the movables and of the real property with which they are so iucorporat d. Laiiit' v. Belaud (2t! Can. S. C. K. 41i»l. md FiUatrault v. Goldie (Q. R. 2 Q. B. ;}(iS), distinguished. Decision of the Court of Queen's Bench affirmed, Girouard, J., dissenting. La Banque d' Hochelaga, v. The ^Vaterou8 En- gine ^Yo^■k9 Co xxvii., 406 2.— Mortgage, Construction of— Thade Fixtures — Chattels — Tools and Machinery of a " Going Concern " — Constructive Annexation — Mortga- gor AND Mortgagee. The purposes to which premises have been applied should be regarded in deciding what may have been the object of the annexation Df movable articles in permanent struc- tures with a view to ascertaining whether or not they thereby became fixtures incor- porated with the freehold, and where articles have been only slightly affixed but in a man- ner appropriate to their use and showing an intention of permanently affixing them with the object of enhancing the value of mort- gaged premises or of improving their use- fulness for the purposes to which they have been applied, there would be sufficient ground, in a dispute between a mortgagor and his mortgagee, for concluding that both Hs to the degree and object of the annexa- tion, they became part of the realty. Baggart v. Town of Brampton . . xxviii., 174 3.— Property, Real and Personal— Im- movables BY Destination — Movables Incorporated with Freehold — Sever- ance From Realty— Contract— Reso- lutory Condition — Conditional Sale — Hypothecary Creditor— Unpaid Ven- dor—Arts. 379, 12017, 2083, 2085, 2089, C. C. See Contract. 30. 4.— Gas Pipes— Title to Portion of Hiqh- WAY-FixTUREs— Legislative Grant. See Assessment, 7 bis. INDIAN TREATIES. Constitutional Law — Province of Canada — Surrender of Indian Lands — Annuity to Indians— Revenue from Indian Lands — Increase of Annuity — Charge ltpon Lands — British North America Act, 1807, s. 109. See Constitutional Law, 13. INFANT. Negligence of Servant — Contributory Nekiligence. The doctrine of contributory negligence does not apply to an infant of tender age. Gardner v. Grace (IF. «& F. 359) followed. Merritt v. hepcnatal xxv., 150 INJUNCTION. Municipal Corporation — Waterworks — Extension of Works — Repairs — By- law — Resolution — Agreement in WRrriNG — Highways and Streets — R. S. Q. Art. 4485— Art. 1033a C. C. P. By a resolution of the Council of the Town of Chicoutimi, on 9th October, 1890, based upon an application previously made by him, L. obtained permission to construct water- works in the town and to lay the necessary piix>s in the streets wherever he thought proper, taking his water supply from the River Chicoutimi, at whatever point might be convenient for his purposes, upon con- dition that the works should be commenced within a certain time and completed in the year 1892. He constructed a system of waterworks, and had it in operation within the time prescribed, but the system proving insufficient, a company was formed in 1895 under the provisions of R. S. Q. art. 4485. and given authority by by-liiw to furnish a proper water supply to the town, whereupon L. attempted to perfect his sys>'^em, to alter the position of the pipes, to construct a re- servoir and to make new excavations in the streets for these purposes, without receiving any further authority from the co incil. Held, (Gwynne. .T., dissenting), reversing the judgment appealed from, that th.^se were 122 INSOLVENCY. not morclj' nocpssary repairs, but new works, actuully part of the systoiu required to be completed during the year 1892, and which after that date could not be proceeded with except upon further permission obtained iu the usual manner from the Council of the Town. Ileht, further, that the resolution and the application upou which it was founded con- stituted a " contract in writing " and a " written aprecnient " within the meaning of article 1033o of the Code of Civil Proce- dure of Lower Canada, and violation of its conditions was a sufficient ground for in- junction to restrain the construction of the new works. La ViUe de Chicoutimi v. Ligare, xxvii., 329 INSOLVENCY. 1.— Sheriff— Trespass— Sale op Goods bt INSOL.VENT — Bona Fides— Judgment of Inferior Tribunal — Estoppel — Bar to Action — Fraudulent Preferences - Pleading — Res Judicata. K. who was a trader in insolvent circum- stances, sold the -vhole of his stock in trade to D., at a time when two of his creditors had. to D.'s knowledge, recovered judgments against him. The sheriff afterwards seized the gootls under executions issued uiK)n judg- ments subsequently obtained, and, upon an interpleader issue tried in the County Court, the jury found that K. had sold the goods with intent to prefer the creditors holding the prior judgments, but that D. had pur- chased in good faith and without knowing of such intention on the part of the vendor. Judgment was thereupon entered against D. in the County Court, and this judgment was affirmed by the Supreme Court en banc. In an action afterwards brought by D. against the sheriff for trespass in seizing the goods, he obtained a verdict, which Avas however, set aside by the court en banc, a majority of the Judges holding that the County Court judgment was a complete bar to the action. On appeal to the Supreme Court of Canada; Held, reversing the judgment of the Su- preme Court of British Columbia, that as the evidence showed that the goods had been purchased by D. in good faith for his own benefit, the sale was not void under the statute respecting fraudulent preferences. Held, also, that the County Court judg- ment, being a decision of an inferior court of limited jurisdiction, could not operate as a bar in respect of a cause of action in the Supreme Court beyond the jurisdiction of the County Court. Held, further, that even if such judgment could be set up as a bar, it ought to have been specially i)leaded by way of estoppel by a plea setting up in detail all the facts necessary to constitute the estoppel, and that from the evidence in the case it ai>- peared that no such estoppel could have been established. Taschereau, J., dissented. Da«ie» v. MciUllan, 1st May, 1893. 2.— Assignment in Trust for Creditors— Sale of Estate to Insolvent's Wife — Guarantee by Creditor and In- spector—Trustee — Account for Pro- fits. The plaintiffs were creditors of the insol- vent estate of J., who assigned under the Act relating to Assignments and Preferences to Creditors. The defendant A. was also a creditor, and the defendant L., an inspec- tor of the estate. The assets were offere UNDER Voidable Assignment— Levy AND Sale under Execution— Statute op Elizabeth. See Debtor and Creditor, 13. INSURANCE, ACCIDENT. 1. — Renewal op Policy — Payment op Premium — Promissory Note — Instruc- tions TO Agent— Agent's Authority — Finding of Jury. A policy issued by the Manufacturers' Ace. Ins. Co. in favour of P. contained a provi- sion that it might be renewed from year to year on payment of the annual premium. One condition of the policy was that it was not to take effect unless the premium was- paid prior to any acciilent on account of which a claim should be made, and another that a renewal receipt, to be valid, must be printed in office form, signed by the majac- ing director and countersigned by the agent. P. having been killed in a railway ai ■"'ident payment on the policy was refused on the ground that it had expired and not been re- newed. In an action by the widow for the insurance it was shown that the local agent of the company had requested P. to renew and had received from him a promissory note for .$15 (the premium l>eing $10), which the father of the assured swore the agent agreed to take for the balance of the pr^ mium after being paid the remainder in cash. He also swore that the agent gave P. a paper purporting to be a receipt, and gave secondary evidence of its contents. The agent's evidence was that while the note was taken for a portion of the premium it 124 INSURANCE COMPANY— INSURANCE, FIRE. •was agreed between him and P. that there ■was to be no insurance until it was paid, and that he gave no renewal receipt, and was paid no cash. Some four years before this the said agent and all agents of the com- pany had received instructions from the head office not to take notes for premiums as had been the practice theretofore. The note was never paid, but remained in pos- session of the agent, the company knowing nothing about it. The jury gave no general verdict, but found in answer to questions that a sum was paid in cash and the note ^iven and accepted as payment of the bal- 4ince of the premium, and that the paper ^ven to P. by the agent, as sworn to by P.'s father, was the ordinary renewal receipt of the company. Upon these findings judg- ment was entered against the company. Held, affirming the judgment of the Su- preme Court of Nova Scotia, Gwynne, J., •dissenting, that the fair conclusion from the «vidence was, that as the agent had been employed to complete the contract and had been entrusted with the renewal receipt, P. might fairly expect that he was authorized to take a premium note, having no know- ledge of any limitation of his authority, and the policy not forbidding it; and that not- withstanding there was no general verdict, .and the specific question had not been passed upon by the jury, such inference could be •drawn by the court according to the prac- tice in Nova Scotia. Held, further, that there was evidence up- on which reasonable men might find as the jury did; that an inference might fairly be ■drawn from the facts that the transaction amounted to payment of the premium, and it was to be assumed that the act was within the scope of the agent's employment; the fact that tlie agent was disobeying instruc- tions did not prevent the inference though it might be considered in determining whether •or not such inference should be drawn; and that a new trial should not be granted to enable the company to corroborate the testimony of the agent that he had nc i'^ newal receipt in his possession except -jue produced at the trial, as the company might have supposed that the plaintiff would seek to show that such receipt had been obtained and were not taken by surprise. The Manufacturers- Accident Inmratute Com- pany V. Pudsey xxvii., 374 2. — Accident Insurance — Condition in Policy — Notice — Condition Precedent — Action. ^ A policy of insurance against accidents contained a condition that in the event of accident, written notice, containing the full name and address of the insured, with full liarticuliird of the accident, should be given within thirty days of its occurrence, to the Manager for the United States, at Boston, Mass., or the agent of the corporation whose name was endorsed thereon. The insured having died from an accident, his widow, as beneficiary, brought an actiou on the policy to which the company pleaded want of notice under the above condition. The plaintiflE demurred to this plea, and her demurrer was allowed by the Supreme Court of New Brunswick. On appeal, the Supreme Court of Canada reversed the judgment appealed from, Gwynne, J., dissenting, and held that the giving of notice in conformity with the con- dition of the policy was a condition prece- dent to a right of action thereon, and that the demurrer to the plea must be overruled. The Employers' Liability Assurance Co. v. Taylor, 21st November, 1898 . . . . xxix. INSUBANCE COMPANY. Ejiployment of Agent — Agent Acting for Rival. Companies — Dismissal. See Master and Servant, 6. INSURANCE, FIRE. 1. — Condition in Policy — Particular Account op Loss — Failure to Furnish — Finding of Jury— Evidence. A policy of insurance against fire required that in case of loss the insured should, with- in fourteen days, furnish as particular an account of the property destroyed, etc., as the nature and circumstances of the case would admit of. The proi>erty of N., in- sured by this policy, was destroyed by fire and in lieu of the required account he de- livered to the agent of the insurers an affi- davit in which, after stating the general character of the proi^-^rty insured, he swore that his invoice book had been burned and he had no adequate means of estimating tlie exact amount of his loss, but that he had j made as careful an estimate as the nature and circumtances of the case would admit of. and found the .'oss to be between .$3,000 and $4,000. An action on the policy was defended on the ground of non-compliance with said condition. On the trial the jury answeriedl all the questions submitted to them, except two, in favour of N. These two questions, whether or not N. could have made a tolerably complete list of the con- tents of his store immediately before the fire, and whether or not he delivered as particu- lar an account, etc., (as in the conditions; INbURANCE, FIRE. 125 were not answered. The Trial Judge gave judgment in favour of N., which the court eft banc reversed, and ordered judgment to be entered for the company. Held, affirming the decision of the court (n haiijc, that as the evidence conclusively showed that N., with the assistance of his clerk, could have made a tolerably correct list of the goods lost, the condition was not complied with. llcld, further, that as under the evidence the jury could not have answered the ques- tions they refused to answer in favour of N., a new trial was unnecessary, and judg- ment was properly entered for the com- pany. yixon V. The Queen Insurance Co., xxiii., 26 2.— Fire Insurance — Condition Against Assigning Policy — Breach of Condi- tion. A condition in a policy of insurance against fire provided that if the policy or any interest therein should be assigned, parted with, or in any way encumbered, the insur- ance should be absolutely void, unless the consent of the company thereto was obtained and indorsed on the policy. S. the insured uuder said policy assigned, by way of chat tel mortgage, all the property insured and all policies of insurance thereon, and all re- newals thereof to a creditor. At the time of such assignment S. had other insurance on said property, the policies of which did not prohibit their assiga.TiGnt. The consent of the company to the transfer was not obtained and indorsed on the policy. Held, affirming the decision of the Supreme Court of Nova Scotia, that the mortgage of the policy by S., without such consent, made it void, and he could not recover the amount insured in ease of loss. Salterio v. City of London Fire Insurance Co., xxiii., 32 3.— Condition in Policy— Change of Title IX Property Insured— Chattel Mort- gage. A policy of insurance against fire provided that in the event of any sale, transfer or chnngo of title in the property insured the liability of the company should thenceforth c(>ase; that the policy should not he assign- able without the consent the company in- dorsed thereon; and that all encumbrances effected by the assured must be notified within fifteen days therefrom. Hrld. reversing the decision of the Supreme Court of Nova Scotia, that giving a chattel mortgage on the property insured was not a sale or transfer within the meaning of this condition, but it was a " change of title " which avoided the policy. Somreign In«. Co. V. Peters (12 Can. S. C. R. 33), distin- guished. Held, further, that it was an incumbrance even if the condition meant an incumbrance on the policy. Citi3ens' Insurance Co. of Canada v. Salterio, xxiii., 155 4. — Insurance Against Fire— Mutual In- surance Company — Contract — Termi- nation — Notice — Statutory Conditions — R. S. O. (1887) c. 1(>7— Waiver- Estoppel. B. ai>plied.to a mutual company for insur- ance oi! his property for four years, giving an undei.taking to pay the amounts required from tirae to time, and a four months' note for the first premium. He received a re- ceipt beginning as follows: " Iteceived from B. an undertaking for the sum of $40.50, be- ing the premium for an insurance to the ex- tent of $1,500 on the property described in his application of this date," and then pro- viding that the company could cancel the contract at any time within fifty days by notice mailed to the applicant, and that non- receipt of a policy within the fifty days, with or without notice, should be absolute evidence of rejection of the application. No notice of rejection was sent to B., and no policy was issued wihin the said time which expired on March 4th, 1801. On April ITth, B. received a letter from the manager asking him to remit funds to pay his note maturing on May 15. He did so and his letter of remittance crossed another from the mana- ger, mailed at Owen Sound, April 20th, stating the rejection of his application and returning the undertaking and note. On April 24th the insured property was de- stroyed by fire. B. notified the manager by telegraph, and on April 29th the latter wrote returning the money reir'tted by B., who afterwards sent it again to the manager and it was again returned. B. tlien brought an action, which was dismissed at the hear- ing, and a new trial was ordered by the Divisional Court, and affirmed by the Court of Appeal. Held, affirming the decision of the Court of Appeal. Owynne, J., dissenting, that there was a valid contract by the company with B. for insurance for four years; that the statutory conditions in the Ontario Insur- ance Act (R. S. O. [1887] c. Ifi7) governed such contract, thoitgh not in the form of a policy; that if the provision as to non-re- ceipt of a iKjlicy within fifty days was a 126 INSURANCE, FIRE. variation of the statutorj- conditions, it was ineffectual for non-compliance with condition 115 requiring variations to be written in a different coloure'd ink from the rest of the document, and if it had been so printed the condition as unreasonable; and that such provision, though the non-receipt of the policy might operate as a notice, was incon- sistent with condition 19, which provides that notice shall not operate until seven days after its receipt. fle/a, also, that there was some evidence for the jury that the company, by demanding aniA receiving payment of the note, had waived the right to cancel the contract, and ■were estopped from denying that B. was insured. The Dominion Orange Mutual Fire Insurance Aaaociation y. Bradt, xxv., 154 5. — Insurance Against Fire— Condition of Policy — Fraudulent Statement — Proof of Fraud — Presumption — Assignment of Policy — Frat'd by Assignor. Where an insurance policy is to be for- feited if the claim is in any respect fraudu- lent, it is not essential that the fraud should be directly proved; it is sufficient if a clear case is established by presumption, or inference, or by circumstantial evidence. The assignee of the policy cannot recover on it if fraud is established against the as- signor. The Xorth British and Mercantile Insurance Company \. Tourville xxv., 177 6. — Conditions in Policy — Breach — Waiver — nECOGNiriON op Existing Risk After Breach — Authority of Agent. A policy of fire insurance on a factory and machinery contained a condition making it void if the said property was sold or con- veyed, or the interest of the parties therein changed. Held, affirming thr decision of the Supreme Court of New Brunswick, that by a chattel mortgage, given by the assured on said property, his interest therein was changed and the policy forfeited under said condi- tion. Held, further, that an agent with powers limited to receiving and forwarding appli cations for insurance had no authority to waive a forfeiture caused by such breach. Torrop v. The Imperial Fire Insurance Co., xxvi., 585 7.— Fire Insurance— Condition in Policy — Notice of Subsequent Insurace — In- ability OF Assured to give Notice. By a condition in a policy of insurance against tire the insured was " forthwith " to give notice to the company of any other insurance on the same property, and have a memo, thereof indorsed on the policy; other- wise the policy would be void provided that if such notice should be given after it issued the company had the option to continue or cancel it. Held, affirming the judgment of the Su- preme Court of New Brunswick, that this condition did not apply to a case in which the application for other insurance was ac- cepted on the day on which the property insured was destroyed by tire and notice of such acceptance did not reach the assured until after the loss. The Commercial Union Assurance Co. v. Temple, 21st November, 1898 xxix. 8. — Fire Insurance — Conditions of Policy — Notice — Proofs of LiOss — Change in Risk — Insurable Interest — Mortgage Clause — Arbitration — Condition Pre- cedent — Foreign Statutory Condi- tions— R. S. O. (1897) c. 203. s. 168— Transfer of Mortgage — Assignment of Rights under Policy apter Loss — I Signification op Assignment — Arts. I 1571, 2475, 2478, 2483, 2574, 2576 C. C. Where a condition in a policy of insurance against fire provided that any change mater- ial to the risk, within the control or know- ledge of the insured should avoid the poUcy, unless notice was given to the company; Held, that changing the occupation of the insured premises from a dwelling into an hotel was a change material to the risk within the meaning of this condition. A mortgagee of insured premises to whom payment is to be made in case of loss " as his interest may appear " cannot recover on the policy when his mortgage has been as- signed and he has ceased to have any inter- est therein at the time of the loss. In the Province of Quebec, an assignment of rights unde. a policy of insurance is in- effectual unless signification thereof has been made in compliance with the provisions of article 1571 of the Civil Code. Where a condition in the policy provided that no action should be maintainable against the company for any claim under the policy until after an award should have been obtained in t'<.« manner therein pro- vided fixing the amouit of the claim: Held, that the m.iking of such award was a condition precedent to any right of action to recover a claim for loss under the policy. INSURANCE, GUARANTEE— INSURANCE, LIFE. 127 Qvare, per Taschereau, J. — Do Ontario statutory conditions printed on the back of a policy issued in Quebec and not referred to in the body of the policy, form part ot the contract between the parties V. Ouerin v. Manchester Fire Assce. Co., 2l8t November, 1898 xxix. 9.— Landlord and Tenant— Loss by Fire — Cause op Fire — Negligence— Civil Responsibility — Legal Presumption — Rebuttal of — Onus of Proof — Hazardous Occupation — Extra Pre- miums—Arts. 1053, 1004, 1071, 1626, 1G27, 1629, C. C. See Landlord and Tenant, 2. INSURANCE, GUARANTEE. Guarantee Policy — Honesty of Employee — Notice of Defalcation. Sec Surety, 3. INSURANCE, LIFE. 1.— Premium Notes — Non-Payment— For- feiture — Conditions — Collateral Agreements. The assured pave to the company to cover the first annual premium upon a policy of life insurance, two agreements in the form of promissory notes payable in three and six months from the date of the policy, each of which contained an undertaking or on iition by the assured, should default be made in payment at maturity, that the policy should thereby become void. The policy contained no condition as to forfeiture for non-pay- ment of premiums. The first note was not paid at maturity and. while it remained still unpaid and before the second note fell due. the assured died. Held, affirming the decision of the Court of Appeal for Ontario (20 Ont. App. R. 564), that, by the failure in payment of the por- tion of the premium payable three months after the date of the policy, as agreed by the overdue instrument, the policy had be- come void. Franlc v. The Sun Life Assurance Co., 22nd May, 1894. 2— Condition in Policy— Note Given for Premium — Non-payment — Demand op Payment after Maturity — Waiver. A condition in a policy of life insurance provided that if any premium, or note, etc., given therefor was not paid when due, the policy should be void. Bcld, affirming the decision of the Court of Appeal (Ont.), that where a note given for a premium under said policy was partly paid when due, and renewed, and the renewal was overdue and unpaid at the death of the assured, the policy was void. Held, further, that a demand for payment after the maturity of the renewal was not a waiver of the breach of the condition so as to keep the policy in force. McGreachie^ v. Xorth At7ierican Life Ins. Co., xxiii., 148 3. — Wagering Policy — Nullity— Waiver OF Illegality — Insurable Interest — Estoppel— 14 Geo. III., c. 48 (Imp.)— Arts. 2474, 2480, 2590 C. C. A condition in a policy of life insurance by which the policy is declared to become in- contestable upon any ground whatever after the lapse of a limited period, does not make the contract binding upon the insurer in the case of a wagering policy. Judgment of the Court of Queen's Bench reversed, Sedgewifk, J., dissenting. The Manufacturera Life Insurance Co. v. Anctil xxviii., 103 4. — Conditions and Warranties — Indorse- ments ON Policy — Inaccurate State- ments — Misrepresentations— Latent Disease — Material Facts — Cancella- tion OF Policy — Return of Premium — Statute, Construction of — 55 Vie. c. 39. s. 33. (Ont.). The provisions of the second sub-section of section thirty-three of " The Insurance Corporations Act, 1892," (Ont.), limiting con- ditions and warranties indorsed on policies providing for the avoidance of the contract by reason of untrue statement in the ap- plications to cases where such statements are material to the contract, do not require the materiality of the statements to appear by the indorsements, but the contract will be avoided only when such statements may subsequently be judicially found to be ma- terial as provided by the third sub-section. Misrepresentations upon an application for life insurance so found to be material will avoid the policy notwithstanding that they may have been made in good faith and in the conscientious belief that they were true. Vennrr v. The Sun. Life Insurance Com- pany (17 Can. S. C. R. 394), followed. Jordan et al. v. Provincial Provident Insti- tution xxviii., 554 5. — Partnership— Insurance on Members — Registered Declaration — Evidence to Contradict— Art. 1835 C. C— C. S. L. C. c. 65, s. 1. See Evidence, 8. 128 INSURANCE, MARINE. 6. — Insurance Ck). — Appointment op Medical Examiner — Breach op Con- tract — Authority op Agent. See Contract, 18. 7.— Appeal— Special, Leave— 60 & Gl Vic. (D.) c. 34, s. 1 (e)— Benevolent Society Certificate. See Benefit Association, 2. INSURANCE, MARINE. 1. — Marine Insurance — Misrepresenta- tion—Vessel " When Built " — Repairs TO Old Vessel— Change op Name — Register. Where payment of an insurance risk is resisted on the ground of misrepresentation it ought to be made very clear that such misrepresentation was made. Misrepresentation made with intent to de- ceive vitiates a policy however trivial or immaterial to the risk it may be; if hon- estly made it only vitiates when material and substantially incorrect. Representation in a marine policy that the vessel insured was built in 1890, when the fact was that it was an old vessel, ex- tensively repaired, and given a new name, and register, but containing the original en- gine, boiler and machinery with some of the old material, is a misrepresentation and avoids the policy whether made with intent to deceive or not. Taschereau, J., dissent- ing. Nova Scotia Marine Co. v. Stcvatsan, sxiii., 137 2. — Trover- Conversion of Vessel — Joint Owners- Abandonment — Salvage. A vessel, partly insured, was wrecked and the ship's husband abandoned her to the underwriters^ who sold her and her outfit to one K. The sale was afterwards abandoned and the underwriters notified the ship's hus- band that she was not a total loss, and re- quested him to take possession. He paid no attention to the notice and the vessel was libelled by K. for salvage and sold under decree of court. The uninsured owner brought an action against the unden\Titcrs for conversion of her interest. Held, affirming the decision of the Su- preme Court of New Brunswick, that the ship's husband was agent of the uninsured owner in respect of the vessel, and his con- duct precluded her from bringing the action; that he might have taken possession before the vessel was libelled; and that the insured owner was not deprived of his interest by any action of the underwriters, but by the decree of the court under which she was sold for salvage. RourJce v. Vnion Ins. Co xxiii., 344 3.— Voyage Policy — " At and From " a Port — Construction of Poucy — Usage. A ship was insured for a voyage " at and from Sydney to St. John, N. B. there and thence," etc. She went to Sydney for or- ders, and without entering within the limits of the port as defined by statute for fiscal purposes, brought up at or near the mouth of the harbour, and having received her orders by signal attempted to put about for St. John, but missed stays and was wrecked. In an action on the policy evi- dence was given establishing that Sydney was weli known as a port of call, that ships going there for orders never entered the har- bour, and that the insured vessel was within the port according to a Royal Surveyor's Chart furnished to navigators. Held, affirming the decision of the Supreme Court of New Brunswick, that the words " at and from Sydney " meant at and from the first arrival of the ship; that she was at Sydney within the terms of the policy; and that the policy had attached when she at- tempted to put about for St. John. St. Paul Fire and Marine Insurance Com- pany V. Troop ct al xxvi., 5 4.— Goods Shipped and Insured in Bulk — Loss OF Portion— Total or Partial Loss— Contract op Insurance— Con- struction. M. shipped on a schooner a cargo of rail- way ties, for a voyage from Gaspe to Bos- ton, and a policy of insurance on the cargo provided that " the insurers shall not be liable for any claim for damages on • * lumber • * but liable for a total loss of a part if amounting to five per cent, on the whole aggregate value of such articles." A certificate given by the agents of the insurers when the insurance was effected had on the margin the followirigr memo., in red ink: "Free from partial loss unless caused by stranding, sinking, burn- ing, or collision with another vessel, and amounting to ten per cent." On the voy- age a part of the cargo was swept ofE the vessel during a storm, the value of which M. claimed under the policy. Held, reversing the decision of the Su- preme Court of New Brunswick, Tascher- eau, J., dissenting, that M. was entitled to recover: that though by the law of insurance the loss would only have been partial, the insurers, by the policy, had agreed to treat INTEREST. 129 it as a total loss; and that the memo, on the certiticate did not alter the terms of the policy, the words " free from partial loss," referring not to a partial loss in the ab- stract applicable to a policy in the ordinary form, but to such a loss according to the contract, embodied in the terms of the Ijolicy. Held, further, that the policy, certificates and memo, together constituted the contract and must be so construed as to avoid any repugnance between their provisions and any ambiguity should! be construed against the insurers, from whom all the instruments emanated. llowat V. The Boston Marine Insurance Co., xxvi., 47 peared that twelve feet of the shoe were off abaft the main chains, and another twelve feet, about off. forward, under the main chains. The butts on the bottom were open. The keel was more or less chafed and broken. The rudder was damaged and the rudder braces started off. There was a scar on the bilge on the port side, which looked as if the vessel had dragged or pounded on something. The sides of the keel were bruised more or less, and pieces off of it. The main keel was broomed up. The Hying jib-boom and main-boom were broken, and the fore-boom was split. The Supreme Court of Nova Scotia, en ba.ic, dismissed a motion for a new trial, and held, that there was sutticient evidence to war- rant the jury in coming to the conclusion out. but. as the wind increased a second anchor was put out. Subsequently, during. .1 heavy-gale that sprang up from the north- nest, with thick snow, both chains parted. T\\e vessel was then on a lee shore, studded with reefs and shoals, and the tide low. She was abandoned by the master and crew, and the following morning was not visible from shore. Some time afterwards she was picked up at sea by salvors, and was brought into port and put upon the slip and repaired. When brought in she had four feet of water in her hold', and her cargo was badly dam- aged. On being put upon the slip it ap- a.c.D.— 9 .i[>iFi.> , miu luit-ic-oL uiu.v ue ieco\ereu agaiusL the Crown, according to the practice pre- vailing in that province. The Quocn v. Henderson et at. . . xxviii., 425 2.— Expropriation by Railway — Award- Additional, Interest — Confirmation OF Title — Diligencr in Obtaining— Railway Act, 1888, ss. 162, 170, 172. See Expropriation, 1. 3._Vendor and ruRCHASER— Agreement to Pay Interest- Delay— Defatilt of Vendor. iS-w Vendor and Turchaser, 2. 128 INSURANCE, MARINE. 6. — Insurance Co. — Appointment op Medical. Examiner— Breach of Con- tract — Authority of Agent. See Contract, 18. 7. — Appeal — Special Leave — 60 & Gl Vic. (D.) c. 34, s. 1 (ej— Benevolent Society Certificate. See Benefit Association, 2. INSURANCE, MARINE. 1. — Marine, Insurance — Misrepresenta- tion—Vessel " When Built "—Repairs TO Old Vessel — Change of Name- Register. Where payment of an insurance risk is decree of the court under which she was sold for salvage. RourUe V. Union Ins. Co xxiii., 34-t 3. — Voyage Policy — " At and From " a Port — Construction of Policy — Usage. A ship was insured for a voyag^e " at and from Sydney to St. John, N. B. there and thence," etc She went to Sydney for or- ders, and without entering within the limits of the port as defined by statute for fiscal purposes, brought up at or near the mouth of the harbour, and having received her orders by signal attempted to put about for St. John, but missed stays; and was wrecked. In an action on the policy evi- la. —Interest against Crown— Supreme Court Act— R. S. C. c. 135, s. 52 -Consent TO Reversal. In a case before the Exchequer Court for return of duties improperly imposed, judgment was given against the claimants and afterwards affirmed by the Supreme Court, but reversed by the Privy Council and judgment ordered to be entered for the suppliant for the amount claimed with costs. On the case coming up again in the Exchequer Court judgment was entered for the principal sum only, interest being refused, and an appeal was taken to the Supreme Court. In the meantime the Crown presented a petition to the Privy Council for a declara- tion that the claimants were not entitled to interest under their Lordships judg- ment. The petition was dismissed, their Lordships stating that interest having been claimed, and the question not having been argued in any of the courts, it should be allowed. The Crown thereupon consented, under sec. 52 of the Supreme and Exchequer Courts Act, to a reversal of the judgment of the Exchequer Court as to interest. Toronto Eaihcay Co. v. The Queen, Oct., 1897 ; Cass. Sup. Ct. Prac. (2nd ed. by Masters), p. 87. Dana rnat sne was not a total loss, ana re- quested him to take possession. He paid no attention to the notice and the vessel was libelled by K. for salvage and sold under decree of court. The uninsured owner brought an action against the underwriters for conversion of her interest. Held, affirming the decision of the Su- preme Court of New Brunswick, that the ship's husband was agent of the uninsured owner in respect of the vessel, and his con- duct precluded her from bringing the action; that he might have taken possession before the vessel was lilielled: and that the insured owner was not deprived of his interest by any action of the underwriters, but by the of the insurers when the insurance was effected had on the margin the following memo., in red ink: "Free from partial loss unless caused by stranding, sinking, burn- ing, or collision with another vessel, and amounting to ten per cent." On the voy- age a part of the cargo was swept off the vessel during a storm, the value of which M. claimed under the policy. Held, reversing the decision of the Su- preme Court of New Brunswick, Tascher- eau, J., dissenting, that M. was entitled to recover; that though by the law of insurance the loss would only have been partial, the insurers, by the policy, had agreed to treat XJSTEREST. 129 it as a total loss; and that the memo, on the certiticate did not alter the terms of the policy, the words " free from partial loss," referring not to a partial loss in the ab- ijtract applicable to a policy in the ordinary fOi-m, but to such a loss according to the contract, embodied in the terms of the iwlicy. Held, further, that the policy, certificates and memo, together constituted the contract and must be so constnied as to avoid any repugnance between their provisions and any ambiguity should* be construed against the insurers, from whom all the instruments emanated. iloirat V. The Boston Marine Insuratwe Co., xxvi., 47 5._CON-STRUCTIVE ToTAL Tx>SS— NoTICE OF Abandonment — Sale of Vessel by Master— Necessity fok Sale. If a disabled ship can be taken to a port and repaired, though at an expense far ex- ceeding its value, unless notice of abandon- ment has been given there is not even a constructive total loss. If the ship is in a place of safety, but cannot be repaired ; where she is, nor taken to a port of repairs, 1 and if instructions from the owner cannot ! 1 e received for some weeks, the expense of preserving her, the danger of her being driven on shore and' the probability of great deterioration in value during the delay will justify the master, when acting iona flie and for the l>enefit of all concerned, in sell- ing without waiting for instructions, and the sale will excuse notice of abandonment. The yora ScotUh Marine Insurance Co. v. ChnrchiU d Co xxvi., 65 (1.— rARTIAL Loss ON CaRGO— STRANDING— Evidence— Jury Trial. On a voyage from Torto Rico to Halifax, the " Donzella." put into Barringtou. N. S., for shelter, the wind being south-east with a heavy snow storm' prevailing. She was anchored near the lightship with one anchor out. but, as the wind increased a second anchor was put out. Subsequently, during, a heavy-gale that sprang up from the north- west, with thick snow, both chains parted, 'llie vessel was then on a lee shore, studded with reefs and shoals, and the tide low. .She was abandoned by the master and crew, and the following morning was not visible from shore. Some time afterwards she was picked up at sea by salvors, and was brought into port and put upon the slip and repaired. When brought in she had four feet of water in her hold', and her cargo was badly dam- aged. On being put upon the slip it ap- S.C.D.— 9 p«>ared that twelve feet of the shoe were off abaft the main chains, and another twelve feet, about off, forward, under the main chains. The butts on the bottom were open. The keel was more or less chafed and broken. The rudder was danuiged and the rudder braces started off. There was a scar on the bilge on the port side, which looked as if the ves.s«'l had dragged or pounded on something. The sides of the keel were bruis«d more or less, and pieces off of it. The main keel was broomed up. The Hying jib-boom and main-boom were broken, and the fore-boom was split. The Supreme Court of Nova Scotia, en banc, dismissed a motion for a new trial, and held, that there was sutticient evidence to war- rant the jury in coming to the conclusion that the vessel had been on shore, and beat- ing on the rocks for some time, and on which they could properly find a verdict for the plaintiff, and that the Trial Judge had acted proi>erly, under the circumstances, in refusing to withdraw the case from the jury. On appeal to the Supreme Court of Can- ada, the judgment of the Supreme Court of Nova Scotia was affirmed, and the ap- peal dismissed with costs. The British and Foreiyn Marine Insurance Co. V. Rudolf, i4th June, 1898 . . . . xxviii., 0<)7 INTEREST. 1. — Statute, Construction of — Public WoRKS^ — Railways and Canals — R. S. C. c. 37, s. 23— Contracts Binding oj» THE Crown — Goods Sold and Deli- vered ON Verbal Order of Crown Officials — Supplies in Excess of Tender— Errors and Omissions in Accounts Rendered — Findings of Fact — Interest — Arts. 10{i7 & 1077 C. C— 50 & 51 Vic. c. 16, s. 33. Where a claim against the Crown arises in the Province of Quebec, and there is no contract in writing, the thirty-third section of " The Exchequer Courts Act," does not apply, and interest may be recovered against the Crown, according to the practice pre- vailing in that province. The Queen v. Henderson et al. . . xxviii., 423 2.— Expropriation by Railway— Award- Additional Interest — Confirmation of Title— Diligence in Obtaining— Railway Act, 1888, ss. 162, 170, 172. See Expropriation, 1. 3._Vendor and Purchaser— Agreement TO Pay Interest— Delay— Default of Vendor. See Vendor and Purchaser, 2. iy> INTERLOCUTORY PROCEEDINGS-INVENTION. 4. — Contract for Purchase of Land — Agreement to Pat Interest — Wilful Default op Vendor — Deposit op Pur- chase Money in Bank. See Vendor and Purchaser, 3. 5.— De^bt op Province op Canada to Do- minion— Subsidies— Half-yearly Pay- ments — Deduction op Interest — B. X. A. Act, ss. 112, 114, 115, 116, 118—36 Vic. c. 30 (D.)— 47 Vic. c. 4 (D.). See Constitutional Law, 10. G. — Appeal from Court of Review— Ap- peal TO Privy Council — Appealable Amount — Addition op Interest — C. C. P. Arts. 1115, 1178, 1178a— R. S. Q. Art. 2311—54 & 55 Vie. (D.) c. 25, s. 3, s.-s. 3—54 Vic. (Que.) c. 48 (amending Art. 1115 C. C. P. See Appeal, 46. 7. — Mortgal.j3 — Loan to Pay off Prio°. Incumbrance — Interest — Assignment op Mortgage— Purchase of Equity of Redemption — Accounts. See Mortgage, 8. 8. — Bonus— Usury I^aws — C. S. C. c. 58 — Art. 1785 C. C. See Building Society. INTERLOCUTORY PROCEEDING.... Appeal— Interlocutory Order — Trial by .TuRY— Final .Judgment- R. S. C. c. 135, s. 24— Arts. 348-350 C. C. P. See Appeal, 52. INTERROGATORIES. Evidence — Faits et Articles — Judicial Admissions— Arts. 221-225 C. C. P. The constructive admission of a fact re- sulting from a default to answer interro- gatories upon articulated facts recorded un- der art. 225 C. C. P.. cannot he invoked as a judicial admission in a subsequent action of a different nature between the same parties. Durocher v. Durocher xxvii., 363 INTERVENTION. Right to Intervene — Vagueness and Un- certainty AS to Beneficiaries — " Poor Relatives " — " Public Protestant Charities "—Charitable Uses — Per- sona Designata. In 1865 J. G. R. a merchant of Quebec, whilst temporarily in New York made a holograph will as follows:—" I hereby will and bequeath all my proiierty, assets or means of any kind' to my brother Frank, who will use one-half of them for public Protestant charities in Quebec and Carluke, say the Protestant Hospital Home, the French Canadian Mission, and amongst poor relatives as he may judge best, the other half for himself and for his own use, ex- cepting two thousand pounds which he will send to Miss Mary Frame, Overton Farm. JAMES G. ROSS." In an action to have the will declared in- valid interventions were tiled by Morriu Col- lege, an institution where youth are in- structed' in the higher branches of learning and especially young men intended for thi' ministry of the Presbyterian Church in Can- ada, who are entitled to receive a free gen- eral and theological education, and are as- sisted by scholarships and' bursaries to com- plete their education; by the Finlay Asylum, a corporate institution for the relief of the aged and infirm, belonging to the commun- ion of the Church of England; and by W. It. R., a first cousin of the testator claiming as a poor relative. Held, that Morrin College did not come within the description of a charitable insti- tution according to the ordinary meaning: of the words, and had therefore no locus standi to intervene; Sedgewick, J., dissent- ing: that Finlay Asylum came within thi' terms of the will as one of the charities which F. R. might select as a beneficiary, and this gave it a right to intervene to sup- port the will. Held, further, that in the gift to " poor relatives " the word " poor " was too vague and uncertain to have any moaning attached to it, and must therefore be rejected, and the word '• relatives " should be construed as excluding all except those whom the law, in the case of an intestacy, recognized as the proper class among whom to divide the pro- perty of a deceased person, and W. R. R. not coming within that class his intervention .should be dismissed. Held, per Foumier and Taschcreau, .TJ., that the bequest to " poor relatives " was absolutely null for uncertainty. Ross V. Ross \xv., 307 INVENTION. 1. — Combination — Old Elements — New and Useful Result — Previous Use. See Patent of Invention, 1. 2. — Patent — Novelty — Infringement. See Patent of Invention, 2. JUDGE— JUDGMENT. 131 2.— Patent— Manufacture and Sale un- der — Guarantee — Failure of Patent. Patent. See Guarantee, 2. JUDGE. 1.— Collision — Rule of the Road — Opinion OF Assessors— Delegation of Judicial Functions. See Admiralty Law, 1. 2.— Disqualification — Appeal— Quorum in SUCH Case— 52 Vic. c. 37. s. 1 - Practice. See Quorum, 3. — Disqualification — Resignation of Judge — Re-hearing of Appeal. See Practice, 29. JUDGMENT. 1.— Action— Bar to — Foreign Judgment- Estoppel — Res Judicata — Judgment Obtained After Action Begun— R. S. N. S. (5 ser.) c. 104, s. 12, s.-s. 7; Orders 24 and 70, Rule 2; Order 33, Rule 38. A judgment of a foreign Court having the force of res judicata in the foreign country has the lilje force in Canada. Unless pre- vented by rules of pleading a foreign judg- ment can be made available to bar a domes- tic action begun before such judgment was obtained. The Delta (1 P. D. 393), dis- tinguished. The combined effect of orders 24 and 70, Rule 2, and' s. 12, s.-s. 7 of c. 104 R. S. X. S. (.J ser.) will permit this to be done in Xova Scotia. The provision of B. S. N. S. (5 ser.) c. 104, Order 35, Rule 38, that evidence of a judg- ment recovered in a foreign country shall not be conclusive, in an action on such judg- ment in Nova Scotia, of its correctness, but that the defendant may defend such suit as fnlly as if brought for the original cause of action, cannot be invoked in favour of the defendant in Nova Scotia, who has brought an unsuccessful action in a foreign court against the plaintiff. Law et at. v. Hansen xxv., 69 2.— .Judgment against Firm — Liabilitt of Reputed Partner — Action on Judg- ment. In an action upon a promissory note against M. I. & Co., as makers, and J. I. as indorser, judgment was rendered by de- fault against the firm, and a verdict found in favour of J. I., as it appeared by the evidence that he had indorsed without con- sideration for the accommodation of the holders, and upon an agreement with theui that he should not be held iu any manner liable upon the note. Held, in a subsequent action on the judg- ment to recover from J. I. as a member of the tirni who had made the note, that the verdict in the former suit was conclusive in his favour, the said agreement meaning that he was not to be liable either aft maker or indorser. Isbcster v. Ray, Street d Co. . . xxvi., 7i> 3. — Criminal Code, s. 575 — Confiscation of Gaming Instruments, Moneys, Etc. — Action to Recover. In an action to revendicate moneys seized and confiscated under the provisiona of sec. 575 of the Criminal Code. Held, per Strong, O.J., that a judgment declaring the forfeiture of moneys so seized cannot be collaterally impeached in an action of revcndication. O'yeil V. The Attorney-General of Canada, xxvi., 122 4.— Joint Stock Company — Ultra Vires Contract — Consent Judgment on — Action to Set Aside. A company incorporated for definite pur- poses has no power to pursue objects other than those expressed in its charter, or such as are reasonably incident thereto, nor to exercise their powers in the attainment of authorized objects in a manner not author- ized by the charter. The assent of every shareholder makes no difference. If a company enters into a transaction which is ultra vires, and litigation ensues ia the course of which a judgment is entered by consent, such judgment is as binding on parties as one obtained after a contest, and will not be set aside because the transac- tion was beyond the power of the com- pany. CharlelMia et al. v. Delap et ah . . xxvi., 221 5. — Evidence — Admissions — Nullified In- struments. A will, in favour of the husband of the testatrix, was set aside in an action by the heir-at-law, and declared by the judgment to be «n acte faux, and therefore to be null and of no effect. In a subsequent petitory action, between the same parties: Held, Girouard, J., dissenting, that the judgment declaring the will faux was not 132 JUDGMENT OF DISTRIBUTION. evidence of adtnission of the title of ths lieir-nt-lttw by reason of anytliing tlie devisee liad done in respect of the will, first, because the will having been annulled was for all purposes unavailable, and secondly, because the declaration of faux, contained in the judgment, did' not show any such admis- sion. Durochcr v. Durochcr xxvii., 3G3 Vic. c. 48 (Ont.)— 57 Vic. c. 51, s. 5 (Ont.)— 58 Vic. c. 47 (Ont.)— Statute, Construction of — Appeal from Assess- ment—Final Judgment — " Court of Last Resort." See Statute, 34. 15. — Appeal — Jurisdiction- Discretionary Order— Default to Plead — R. S. C. c. 65 — Ontario Judicature Act, Rule 135, ss. 24 (a) and 27— R. S. O. c. 44, s. 796. See Appeal, 65. JUDGMENT OF DISTRIBUTION. Appeal — Collocation and Distribution — Art. 761 C. C. P. — Hypothecary Claims — Assignment — Notice— Regis- tration — Prete-nom — Arts. 20 and 144 C. C. P. — Action to Annul Deed — Parties in Interest— Incidental Pro- ceedings. The appeal from judgments of distribu- tion under article 761 of the Code of Civil Procedure is not restricted to the parties to the suit, but extends to every person having an interest in the distribution of the moneys levied under the execution. The provisions of article 144 of the Code of Civil Procedure that every fact of which the existence or truth is not expressly denied or declared to be unknown by the pleadings filed shall be held to be admitted, applies to incidcntial proceedings upon an appeal in the Court of Queen's Bench. The nullity of a deed of assignment can only be invoked' by proceedings to which all persons interested in the deed have been made parties. Overtin v. Oosselin xxvii., 514 JUDICIAL PROCEEDINGS-JURY, 133 JUDICIAL PROCEEDING. 1.— Appi'al — Jurisdiction — Judicial Pro- CEEDiNo — Opposition to Judgment— C. C. P. Arts. 484-4l)3-R. S. C. c. ,135, s. 29— Appealable Amount— 54 & 55 Vic. c. 25, s. 3, s.-s. 4 — Retrospective IjEGISLATION. An opposition filed under the provisions of articles 484 and 487 of the Code of Civil Procedure of Lower Canada, for the pur- pose of vacating a judgment entered by de- fault, is a " judicial proceeding " within the meaning of sec. 29 of " The Supreme and Exchequer Courts Act," and wlu-re the ap- peal depends upon the amount in contro- versy, there is an apiJeal to the Supreme Court of Canada when the amount of prin- cipal and interest due at the time of the filing of the opposition under the judgment sought to be annulled, is of the sum or value of $2,000. Turcotte V. Dansereau xxvi., 578 2.— Appeal — Jurisdiction— Amount in Con- troversy—Opposition Afin de Dis- TRAiRE— Demand in Original Action— R. S. C. c. 135, s. 29. Sec Opposition, 2. JUDICATURE ACT. (Ontario) — Practice — Added Parties — Orders 46 and 48. See Practice, 22. i JURISDICTION. 1.— Or Court of Probate — Accounts of Executors and Trustees — Res Judi- cata. See Trusts, 3. '. — Action for Lands — Lex Personam. See Court, 1. Redem,ption — Foreign Rei SiTJE — Action in 3.— Action — .Turisdiction to Entertain — Mortgage of Foreign Lands — Action TO Set Aside— Secret Trust— Lex Rei SlT^. See Lex rei sitae. 4. — Appeal — .Tudicial Proceeding — Opposi- tion to .Judgment — Appealable Amount — Retrospective Legislation — Arts. 484-493 C. C. P.— R. S. C. c. 135, s. 129—54 & 55 Vic. c. 25, s. 3, s.-s. 4. See Judicial Proceeding. 1 5.— Appeal — Jurisdiction— Expropriation of Lands — Assessments — Local Im- provements— Future Rights— Title to Lands and Tenements— R. S. C c. 135 8. 29 (bj— 5G Vic. c. 29, s. 1 (D). See AK)eal, 51. 6.— Appeal— Interlocutory Order— Trial BY Jury— Final Judgment— R. S. C. c. 135, s. 24— Arts. 348-350 C. C. P. Seer Appeal, 52. 7.— Form op CoMMriMENT — Territorial Division— Judicial Notice— R. S C c. 135, s. 32. See Habeas Corpus, 1. And see Appeal. JURY. 1 . — Finding of — Verdict Unwarranted- Promissory Note — Consideration — Accommodation — Discharge — Agree- ment—New Trial. The appeal was from a decision of the Su- preme Court of New Brunswick, affirming, by an equally divided court, the verdict for defendant at the trial. The action was on a promissory note indorsed by defendant, who pleaded that it was indorsed on the express understanding that he was not to be called upon to pay it, and that he was discharged by the bank subsequently taking security from the makers. At the trial the defendant had a verdict, the jury finding that the bank, on taking security, had' agreed that the note in suit should be paid out of the proceeds of collateral held by the bank. On motion, pursuant to leave reserved, for judgment for plaintiffs or a new trial, the Court en banc was equally divided, and the verdict stood. The Supreme Court of Canada, Gwynne, J., dissenting, ordered a new trial, on the ground that the finding of the jury did' not warrant the verdict for the defendant. St. Stephen's Bank v. Bomieas. 6th Ma v. 1895 xxiv., 710 2. — Finding on Question of Fact — Inter- ference WITH ON Appeal. See Master and Servant, 1. 3. — Railway Company— Loan of Cars- Reasonable Care— Breach of Duty- Negligence — Risk Voluntarily In- curred — " Volenti Non Fit Injuria." See Master and Servant, 5. i34 JUSTICE OF THE PEACE— LACHES. 4.— Answerb to Questions— Railway CJo.— Negligence. — Writ OP Prohibition. See Prohibition, 1. JUS PUBLICUM. 1.— Extinction op — 44 Vie. c. 1, s. 18 (D.)— Foreshore op Harbour — Right op C. P. R. Co. TO use. See Foreshore. 2. — Public Street — Obstruction — Dedica- tion — Right op Owner or Occupier to Compensation. See Dedication, 1. LACHES. 1. — Equity Suit — Specific Performance — Agreement to Convey Land — Posses- sion. In a suit for specific performance of an agreement by the devisee of landi to convey to P., it appeared that the agreement of sale to P. was executed in 18iS4, and the suit was not instituted until four years later. P. was in po.ssession of the land during the interval. Held, that as the evidence clearly showed that P. was only in possession as agent of the trustees under the will, and caretaker of the land, and' as by the terms of the agree- ment time was to be of the essence of the contract, the delay was a sufficient answer to the suit. Porter v. Hale xxiii., 2G5 2. — Trustee— Administrator op Estate — Release by Next op Kin — Recession op Release — Laches — Estoppel — Delays. See Trusts, 1. LANDLORD AND TENANT. '35 LANDLORD AND TENANT. l.-R. S. O. (1887) c. 143. s. 28— Construc- tion OF Statute— Distress— Goods of Person Hol,dinq " Under " Tenant. The Ontario Landlord and Tenant Act (R. S. O. [1887] c. 343, a. 28), exempts from dis- tress for rent, the property of all persons ex- cept the tenant or person liable. The word tenant includes a sub-tenant, assignees of the tenant and any i)er8on in actual occu- pation under or with consent of the tenant. Held, reversing the judgment of the Court of Appeal, that i)ersons let into possession by a house agent appointed bj' assignees of ii tenant for the sole purpose of exhibiting the premises to prosiK-ctive lessees, and with- out authority to let or grant possession of them, were not in occupation " under " the .said assignees, and their goods w^re not liable to distress. Faricell et al. v. Jameson . . xxvi., 588 2. — Loss BY Fire — Cause of Fire — Negligence — Civil, Responsibility- Legal Presumption — Rebuttal of — Onus of Proof— Hazardous Occupa- tion-Arts. 1053, 1064, 1071, 1G26, 1027, 1G29 C. C. To rebut the presumption created by ar- ticle 1629 of the Civil Code of Lower Can- ;ida, it is not necessary for the lessee to prove the exact or probable origin of the tire, or that it was due to unavoidable ac- cident or irresistible force. It is sutBcient for him to prove that he has used the pre- mises leased' as a prudent administrator (en hon pire de famille), and that the tire occur- red without any fault that could be attri- buted to him, or to persons for whose acts he should be held responsible. Judgment of the Court of Queen's Bench for Lower Canada affirmed. Strong, C.J., dissenting. Murphy v. Labbi xxvii., 126 3.— Loss BY Fire— Negligence— Local Pre- sumption — Rebuttal of — Onus of Proof— Agreement, Construction of — Covenant to Return Premises in Good Order— Art. 1G29 C. C. A steam sawmill was totally destroyed by tire, during the term of the lease, whilst in the possession, and being occupied by the lessee. The lease contained a covenant by the lessees " to return the mill to the lessor at the close of the season in as good order as could be expected considering wear and tear of the mill and machinery." The lessees, in defence to the lessor's action for damages, adduced evidence to show that necessary and usual iirecauticns had boea taken for the safety of the piemises, a aight- watchman kept there making regular rounds, that buckets tilled with water were kept ready, and force-pumps provided for use in the event of tire, and they submitted that as the origin of the tire was mysterious and un- known it should be assumed to have occur- red through natural and fortuitous causes, for which they were not responsible. It api)eared, however, that the night-watchman had been absent from the part of the mill where the tire was tirst discovered for a much longer time than was necessary or us- ual for the making of his rounds, that dur- ing his absence the furnaces were left burn- ing without superintendence, that sawdust had been allowetl to accumulate for some time in a heated spot close to the furnace where the tire was actually discovered, that on discovering the fire the watchman failed to make use of the water buckets to quench the incipient tlames, but lost time in an at- tempt to raise additional steam jjressure to start the force-pumps before giving the alarm. Held, that the lessee had' not shown any lawful justification for their failure to re- turn the mill according to the terms of the covenant; that the presumption established by article 1629 of the Civil Code against the lessees had not been rebutted, and that the evidence showed culpable negligence on the part of the lessees, which rendered them civilly responsible for the loss by fire of the leased premises. Murphy v. Labbe (27 Can. S. C. R. 12(;), approved and followed. Klock V. Lindsay. Lindsay v. Klock, xxvili., 453 4.— Rental to Agent for Use of Prin- cipals—Possession BY Principals— Con- trol OF Premises. Sec Negligence, 3. And see Lease. LEASE. 1.— Lease for Lives — Renewal — In-ser- TiON of New L'ife — Evidence of Inser- tion—Counterpart of Lease — Custody of — Duration of Life — Presumption. By indenture made in 1805, F. demised certain premises to C, to hold for the lives of the lessee, his brother and his wife. " and renewable forever." The lessee covenanted that on the fall of any of said lives he would, within twelve months, insert a new life and pay a renewal fine, otherwise the right of renewal of the life fallen should be forfeited, and if any question should arise 136 LEASE. it would be incumbent on the one interested in the premises to prove the person on Avhose death the term was made terminable to be alive, or in default such person would be presumed to be dead. In 1884 a purchaser from the assignees of the reversion entered into iK)ssession, and in 1890 an action was brought by persons claiming through the lessee to recover possession, and for an ac- count of mesne profits. On the trial a coun- teri)art of the lease, found among the pai>ers of the devisee of the lessor, was received in evidence, upon which was an indorsement dated in 1852, and signed by such devisee, by which a new life was inserted in place of one of the original lives, and receipt of the renewal fine was acknowledged. Held, affirming the decision of the Su- preme Court of Nova Scotia, that the words " renewable forever," in *y> ? habendum, taken in conjunction with the lessee's cov- enant to pay a fine for inserting a new life in place of any that should fall, conferred a right to renewal in perpetuity notwith- standing there was no covenant by the les- sor so to renew; that the indorsement was an operative instrument, though found in pos- session of the owner of the reversion, or at all events it was an admission by their pre- decessor in title binding on defendants and entitled' plaintiffs to a renewal for a new life so inserted, but the right to further re- newal was gone, exact compliance with the requirements of the lease in the payment of the tines being essential and the evidence having shown that the original lessee was dead, and the proper assumption being that his brother, the third life, who was a mar- ried man in 1805, was also dead in 1884, even if the lease itself had not provided that death would be presumed in default of proof to the contrarj'. Held, per (J Wynne, .!., dissenting, that the term granted was for tjie joint lives of the three persons named, and ceased upon the falling of any one life without renewal as provided; and the fines not having been paid on the death of the lessee and his brother, there was a forfeiture which entitled de- fendants to enter. Tlie person in possession pleaded that he was a purchaser for value without notice and entitled to the benefit of the Ifecistrr Act. K. S. N. S. [5 ser.] c. 84. " Held, that the memorandum indorsed on the lease was not a deed within sec. 18 of the Act, nor a lease within s. 25; that if a ppecnlative purchaser having just such an estate as his conveyance gave him, the per- son in nossession would not be within the protection of the Act; and that there was sufficient evidence of notice. Semble, that section 25 of the Nova Scotia Act, K. S. N. S. [5 ser.] c. 84 applies only to leases for years. Clhich V. Pernette xxiv., S.*-.") 2. — Mines and Minerals — Lease of Min- ing Areas— Rental Agreement— Pay- ment OP Rent — Forfeiture— R. S. N. S. (5 SER.) c. 7—52 Vic. c. 23 (N. S.). By R. S. N. S. (5 ser.) c. 7, the lessee of mining areas in Nova Scotia was oblig.'d to perform a certain amount of work there- on each year on pain of forfeiture of his lease, which, however, could only be effected through certain formalities By an amend- ment in 1889 (52 Vic. c. 23), the lessee is I)ermitted to pay in advance an annual rental in lieu of work, and by sub-sec. (ft, the owner of any leased area may, by dupli- cate agreement in writing with the Com- missioner of Mines, avail himself of the pro- visions of such annual payment, and " such advance payment shall be construed to com- .nence from the nearest recurring anniver- sary of the date of tlie lease." By s. 7 all leases are to contain the provisions of the Act respecting payment of rental, and its refund in certain cases, and by s. 8 said s. T was to come into force in two months aifer the passing of the Act. Before the Act of 1889 was passed' a lease was issued to E. dated June 10th, 1889, for twenty-one years from May 21st, 1889. On June 1st. 1891, a rental agreement under the amending Act was executed, under which E. paid the rout for his mining areas for three years, t!ie last payment being in May. 1893. On May 22nd, 1894, the commissioasr declared the lease forfeited for non-payment of rent for the following year, and issued' a prospecting license to T. for the same areas. E. ten- dered the year's rent on June 9th, 1894. and an action was afterwards taken by the Attorney-General, on relation of E. to set aside said license as having been illegally and improvidently granted. Held, affirming the judgment of the Su- preme Court of Nova Scotia, in such action, that the phrase " nearest recurring anniver- sary of the date of the lease" in sub-see. (<•) jf sec. 1, Act of 1889, is equivalent to " next or next ensuing anniversary," and' the lease being datt^ on June 10th. no rent for 1894 was due on May 22nd of that year, at which date the lease was declared forfeited, .nid E.'s tender on .Tune 9th was in time. .1/- tnrney-Oeneral v. SIheraton (28 N. S. Rep. 492) approved and followed'. Held, further, that though the amending Act provided for forfeiture without prior formalities of a lease in case of non-payment of rent, such provision did not apply to leases LEASE. 137 existing when the Act was passed ia cases j where the holders executed the agreement to | pay rent thereunder in lieu of wo/k. The forfeiture of E.'s lease was, therefore, void for want of formalities prescribed by the original Act. Temple v. The Attomey-Oeneral of Nova Scotia xxvii., 355 3. — Mortgage — Leasehold Premises — Terms of Mortgage — Assignment or Sub-lease. A lease of real estate for twenty-one years with a covenant for a like term or terms was mortgaged by the lessee. The mortgage after reciting the terms of the lease, pro- ceeded to convey to the mortgagee the In- denture and the benefit of all covenants and agreements therein, the leased property by description and " all and singular the engines and boilers which now are or shall ! at any time hereafter be brought and placed upon or affixed to the said premises, all of which said engines and 1x>ilers are hereby declared to be and form part of the said leasehold premises hereby granted and mort- gaged or intended so to be, and form imrt of the term hereby grantetl and mortgaged;" the habendum of the mortgage was, " To have and to hold unto the said mortgagees, their successors and assigns, for the residue yet to come and unexpired of the term of years created by the said' lease less one day thereof, and all renewals, etc." Held, reversing the judgnu'ut of the Court of Appeal, that the premises of the said mortgage above referred to contained an express assignment of the whole term, and the habendum, if intended to reserve a por- tion to the mortgagor, was repugnant to the said premises, and therefore void; that the words " leasehold premises " w(>re quite suffi- cient to carry the whole term, the word " pre- mises " not meaning lands or property but referring to the recital which described the lease as one for a term of twenty-one years. Hihl^ further, that the habendum did not reserve a reversion to the mortgagor; that the reversion of a day generally without stating it to be the last day of the term is insufficient to give the instrument the char- acter of a sub-lease. Jameson v. The London and Canadifin Loan end Agency Company xxvii., 435 4. — Vendor and Purchaser — Sale of I>EASED Premises — Termination of Lease— Damages— Art. IfiOS C. C. The Court of Qtioen's Bench for Lower Canada (Q. R. 7 Q B. 293). reversed the decision of the trial court, and held;— That the purchaser of real estate to be delivered forthwith could not require the vendor to eject the tenants, the existence of leases being no impediment to immediate delivery of the premises sold, and every sale being subject to existing leases up to the time of the expiration of the current term, and further, that if the purchaser refused to carry out the agreement for sale on the ground of the existence of such leases, he could not have the sale set aside (reaciliic), with damages against the vendor. On appeal, the Supreme Court of Canada affirmed the judgment appealed, for the na- Bons stated in the Court of Queen's Bench, and dismissed the appeal with costs. Alley V. The Canada. Life Assurance Co., 14th June, 1898 xxviii., €08 5. — Hire of Tug — Conditions — Repairs — Negligence— Compensation. The company chartered' the tug " Beaver " from K., by written contract, dated at Que- bec, 22nd May, 1895, in the words follow- ing: " It is agreed between the undersigned that Mr. Kaine charters the tug Beaver for not less than one month from date, at forty- five dollars i^er day of twenty-four hours. If kept longer than a month the rate of forty dollars per day. Mr. Kaine to furnish tug, crew, provisions, oil, etc., and everything necessary, except coal and pilots above Mon- treal. Tlie tug to leave here tomorrow morning's tide, the tug to be discharged in Quebec." The company took possession of the tug; put her in charge of their pilot (who as- sumed the control, employment and naviga- tion of the vessel), and used the tug for their purposes until Sth July, 1895, when, while still in their possession, the pilot took her, in the daytime, into waters at the foot of the Cornwall Rapids, in the River St. Law- rence, where she struck against some sab- merged hard substance and sunk. She was raised a few days afterwards, towed to port and placed in d^ock for repairs at Montreal. The orders were to make the necessary re- pairs to put the vessel in the same condition as she was immediately before the accident, and on 30th July. K. was notified that the repairs were completed, that the tug would be put out of dWok the following day, and he was requested to receive the tug it Mon- treal. K. answered that the discharge was to be made at Quebec, that she wris not in as pood condition as when leased, and re- onested the company to join in a survey, vvhich. however, they declined to do. The survey was made by a naval arcJiitect, who reported that, in addition to the repairs 138 LEGACY— LEGAL MAXIMS. already made, it would cost $2,494.90 to restore the vessel to the same condition as when leased to the company. On 1st August K, took possession of the tug, under protest, and brought the axition for the amount of this estimate, in addition to the rent accrued with fees for survey and protest. The com- pany admittew the rent due, and tendered that portion of the claim into court. The Superior Court rendered judgment for the amovnt of the tender, dismissing the action as to the remainder of the claim, on the ground that K. had been sufficiently com- pensated by the repairs which had been made by the charterers. The Courts of Review and Queen's Bench increased the verdict to the full sum claimed, $4,909.90, by adding the amount of the surveyors estimate and the fees. On appeal to the Supreme Court of Can- ada; — Held, that the contract between the parties was a contract of lease; that the taking of the vessel, in the daytime, into the waters where she struck was primd facie evidence of negligence on the part of the company, and that as the company did not add^uce evidence sufficient to rebut the presumption of fault existing against them, they were responsible, under the Civil Code of Lower Canada, for the damages caused to the ves- sel during the time it was controlled and used by them. EeJd, further, that the proper estimate of damages under the circumstances, is the "ost of the repairs which should be assumed to be the measure of the depreciation in value oc- casioned by the accident, and that no sub- stantial error arose from regarding the con- dition and value of the vessel at tlie com- mencement of the lease as that in which she ought to have been discharged. Girouard. J., dissented from the majority of the court, and was of opinion that the Superior Court judgment should be restored. Collins Bay Raftiiig Co. y. Kaine, 14 Dec. 1898 xxix G. — Dominion' License to Cut Timber — Disputed Territory— Implied Cove- nant — Warranty of Title — Quiet En- joyment. See Crown Lands, 1. 7. — Lease op Chattels — Fropertt, Real. AND Personal — Immovables by Des- tination — Movables Incorporated with Freehold — Severance from Realty — Contract — Rej^olutory Con- dition—Conditional Sale — Hypothe- cary Creditor — Unpaid Vendor— Arts. 379, 2017, 2083, 2085, 2089, C. C. -See Contract, 30. And sOG Receipt. LEGACY. Will — Bequest of Partnership Business — Acceptan-cb by Legatee — Right op Legatee to an Account. See Will, 9. LEGAL MAXIMS. 1.— Res Magis Valeat Qlam Pereat — Application — Verba Fortius Accipiun- tur Contra Proferentem — Patent Ambiguity. The intention of the parties to a deed is paramount, and must govern regardless of consequences. Res magis valeat qvatn pereat is only a rule to aid in arriving at the intention, and does not authorize the Court to override it. V\'here there is an ambiguity on the face of a deed incapable of being explained by extrinsic evidence the maxim verha fortius accipiuntur contra profercntum cannot be applied in favour of either party. Barthel v. Scotten xxiv., 367 2.—" Locus Regit Actum "—Lex Domicilii — Lex Rei Sit^— Holograph Will Executed Abroad — Form of Will. In 1805 J. G. R., a merchant, then and at the time of his death domiciled in the City of Quebec, whilst temporarily in the City of New York, made the following will in accordance with the law relating to holo- graph wills in Lower Canada: " I hereby will and bequeath all my property, assets or m^ans of any kind, to my brother Frank, who will use one-half of them for public Protestant charities in Quebec and Cr.rluke, say the Protestant Hospital Home, French Canadian Mission, and amongst poor rela- tives as he may judge best, the other half to himself and for his own use. excepting $2,000, which he will send to Miss Mary Frame, Overton Farm." A. R. and others, lieirs-at-law of the testator, brought action to have the will declared invalid. Held, Tascheroau, J., dissenting, that the will wfis valid. TTeld. further. Fournier and Taschereau, .T.T., dissenting, that the rule locus rcqit actum was not in the Province of Quebec, before the Code, nor since under the Code itself (art. ~). imperative, but permissive only. ITrld. also. Tnscherean. .T.. dissenting, that the will was valid even if the rule locus regit LEGISLATION— LEGISLATURE. 139 actum did apply, because it sufflciently ap- peared from the evidence that by the law of the State of New York the will would be considered good as to movables wherever situated, having been executed according to the law of the testator's domicile, and good as to immovables in the Province of Que- bec, having been executed according to the law of the situation of those immovables. R088 V. R0S8 . . . . XXV., 307 3.—" Volenti Non Fit Injuria "—Reason- able Care— Breach op Duty — Risk Voluntarily Incurred — Negligence. .See Negligence, 27, 28. And see Railway Company, 11. 4.— Omnia Pr^sumuntur Contra Spolia- TOREM — Evidence — PRESuMPTiors. .See Evidence, 14. 5.— De Minimis Non Curat Lex. See Canada Temperance Act, 2. (1.— Verba Fortius Accipiuntur Contra Proferentem. Sfc Municipal Corporation, 20. ".— Sic Utere Tuo ut Alienum Non L^DAS. See Nuisance, 1. ^•—Qvi Jure Suo Utitur Xeminem L.edit. See Nuisance, 1. 9.— In Jure Non Remota Causa Sed Proxima Spectatur. See Carriers, 2. 10-— Cujus Dare Ejus Est Disponere. Sec Composition and Discharge. 11— Volenti Non Fit Injuria. See Master and Servant, 7. 12.— Le Rescixdant et le Rescissoire Sont Accumulables. See Opposition, 1. 13— T'surpateur N'acquiert Que Pied a Pied. See Arbitration, 3. . LEGISLATION. Revenue — Customs Duties — Imported^ Goods — Importation into Canada — Tariff Act — Construction — Retro- spective Legislation— R. S. C. c 32 — 57 & 58 Vic. c. 33 (D.)-58 & 59 Vic. c. 23 (D.). By 57 & 58 Vic. c. 33, s. 4, duties are to- be levied upon certain specified goods " when such goods are imported into Canada." Held, reversing the judgment of the B^x- chequer Court, King and Girouard, JJ., dis- senting, that the importation as defined by sec. 150 of the Customs Act. (R. S. C. c. 32), is not complete until the vessel con- taining the goods arrives at tiie port at v.-bich thev are to be landed. Section 4 of the Tariff Act, 1895 (58 & 53 Vic. c. 23), provided that " this Act shall be held to have come into force on the 3rd of May in the present year, 1895." It was not assented to until July. Held, that poods imported into Canada on May 4th, 1895, were subject to duty under said Act. TM Queen v. The Canada Sugar Refining Co., xxvii., 395 (Affirmed on appeal to Privy Council, 83e (1898) A. C. 735). LEGISLATURE. 1. — ConstitlTtional Law— British NoRTa America Act, ss. Go. 92 — Act Respect- ing THE Executive Administration of THE Laws of the Province— Provin- cial Penal Legislation. The Local Legislatures have the right «i;id power to impose punishments by fine and imprisonment as sanctions for laws which they have power to enact. B. N. A. Act, s. 92. s.-s. 15. Attonu^z-Oairrnl of Canada v. Aitorney- Oencral of Ontario xxiii., 458 2. — Power to Rep'^ ■ Previous Acts- Rights IN Relation to Education- Manitoba Constitutional Act — Appeai*. prom Act or Decision. Sec Constitutional Law, 3. 3. — Powers — Sale of Liquor — Prohi- bition— .■)3 Vir. c. 5fl, s. 18 (O.)— 54 Vic. c. 4(i (O.) — Local Option. See Constitutional Law, 7. 4. — Powers — Prohibitory Laws — Salht of Liquor — Local Option — Canada Temperance Act. See Constitutional Law. 8. 140 LESSOR AND LESSEE— LEX REI SIT^.. •5. — Constitutional Law — Powers of Executive Councillors — " Letter of Credit " — Ratification by Legisla- ture — Obligations Binding on the Province — Discretion op Government as to Expenditures — Petition of Right — Negotiable Instrument — " Bills of Exchange Act, 1890 "— " The Bank Act," R. S. C. c 120. See Constitutional Law, 11. -6. — Odnstitutional Law — Marital Rights — Married Woman — Separate Estate — Jurisdiction of North-west Terri- ' TORiAL Legislature— Statute, Inter- pretation of— 10 Vic. c. 7, s. 3. and Amendments— R. S. C. c. 50— N. W. Ter. Ord. No. 10 of 1889. See Constitutional Law, 16. T.— Canadian Waters— Property in Beds — Public Harbours — Erections in Navigable Waters — Interference WITH Navigation — Rights of Fishing — Power to Grant — Riparian Pro- PRIETOR.= — C REAT LaKBS AND NAVIG- ABLE Rivers — Operation of Magna Charta — Provincial Legislation — R. S. O. (1887) c. 24, s. 47—55 Vie. c. 10, ss. 5 to 13, 19 and 21 (O.)— R. S. Q. Arts 1375 to 1378. Sec Constitutional Law, 17. LESSOR AND I.ESSEE. 1. — Crown Lands — Abitration and Award — Use and Occupation — Action for Possession— Condition Precedent. The appeal was from a decision of the Court of Appeal for Ontario affirming the judgment of the Queen's Bench Division, which had dismissed the appellant's action. The Algoma Trading Co., one of the appel- lants and plaintiffs, leased certain Crown lands to the respondent Shea, the lease con- taining a covenant by Shea not to remove gravel or sajnd from the premises. Shea afterwards ascertained that no patent for the land had been issued to the company, and applied to the Crown Lands Department for a patent tliereof to himself, and also sold gravel off the premises to the Cana- dian Pacific Railway Co. The Algoma Trading Co. then pressed the claim they had previously made to the Department and the Commissioner of Crown Lands ruled tbat it should issue to them on pnyment to Shea for his improvements. Shea refusing to agree to any terms of comrtensation the company served him with a notice of arbitra- tion, and an award was eTentually made which was not t^Ken up as Shea refused to pay his share of the arbitrators' fees. The Algoma Trading Co. having assigned their patent to the plaintiff Boulton, au ac- tion was brought by him and the company against Shea claiming arrears of rent, pay- ment for use and occupation, damages for breach of the covenant not to remove gravel and delivery of possession. The Supreme Court, Gwynne, J., dissent- ing, affirmed the decision of the Court of Appeal that plaintiffs were not in a posi- tion to bring the action until Shea had been paid for his improvements. Boulton V. Shea, 13th March, 1893, xxii.. 742 2. — Water Lots — Filling in — " Buildings AND Erections " — " Improvements." The lessor of a water lot who had made crib- work thereon filled it in with earth, t^ the level of adjoining dry lands, and thereby made the property available for the con- struction of sheds and warehouses, claimed compensation for the work so done under a proviso in the lease by the lessor to pay for " buildings and erections " upon the leaser! premises at the end of the term. Held, affirming the judgment of the Court of Appeal, that the crib-work and earth- filling were not " buildings and erections " within the meaning of the proviso. Adamsati v. Rogers xxvi., 1,"') LEX DOMICILII. Will. Form of — Holograph Will Executed Abroad — Quebec Civil Code. Art. 7 — Locus Regit Actum— Lex Rei Sitje. See Will, 8. LEX BEI SITAE. 1. — Action — Jurisdiction to Entertain— Mortgage of Foreign Lands — Action TO Set Aside— Secret Trust. A Canadian Court cannot entertain au action to set aside .-: mortgage on foreign lands on the ground that it was taken in pursuance of a fraudulent scheme to defrauil creditors of the original owner through whom the mortgagee claimed title, it not being al- leged in th.e action, and the Court not being able to assume, that the law of the foreign country in which the lands were situate corresponded to the statutory law of the province in which the action was bvough*. Bi/rtiR V. Ttaridson (21 O. R. 547), approve.1 and followed. Purdom y. Pavey d Co xxvi., 412 LIBEL— LICENSE. I4» 2.— Form op Will — Holograph Will Executed Abroad — Art. 7 C. C. Locus Regit Actum — Lex Domicilii. See Will, 8. lilBEI.. 1. — Slander — Privileged Statements — Public Interest — Charging Cor- ruption Against Political Candidate — Justification — Challenge to Sue — Costs. See Costs, 3. 2.— Master and Servant— Hiring op Per- sonal Services — Municipal Corpora- tion — Appointment op Officers — Summary Dismissal — Libellous Reso- lution — Statute, Interpretation of — Difference in Text of English and French Versions — 52 Vic. c. 79, s. 79 (Q.) — " A Discretion " — " At Pleasure." See Master and Servant, 8. I.ICENSI:. 1. — Constitutional Law — Powers of Pro- vincial Legislatures— Direct Taxa- tion — Manufacturing and Trading Licenses — Distribution of Taxes — L'niformitt op Taxation — Quebec Statutes 55 & 5G Vic. c. 10 and 56 Vie. c. 15 — British North America Act. 1807. The provisions of the Quebec Statute 55 & 50 Vic. c. 10, as amended by 56 Vic. c. 15, do not involve a regulation of trade and ■ ommerce, and the license fee thereby im- posed is a direct tax and intra vires of the legislature; the license required to be taken nut by the statute is merely an incident to the collection of the tax and does not alter its character. Where a tax has been imposed by com- Jretent legislative authority, the want of uni- formity or equality in the apportionment of the tax is not a ground suflicient to justify the Courts in declaring it unconstitutional. Hank of Toronto v. Lambe (12 App. Cas. 575), followed. Attomey-Omeral v. Tfte Quern In- ■^urance Co. (3 App. Cas. 1090), distin- Kuishod. Forlier v. Lamhe xxv., 422 2. — License to Sell Lands — Nova Scotia Probate Act— R. S. N. S. [5 ser] c. 100; 51 Vic. (N. S.) c. 2^ — Executors and Administrators — Estoppel — Res Judicata. An executrix obtained from the Probate Court a license to sell real estate of a de- ceased testator for the payment of his debts. Judgment creditors of the devisees moved to set aside the license, but failed on their motion, and again in appeal. The lands were sold under the license and the executrix paid part of the price to the judgment cre- ditors, and they received the same knowing the moneys to have been proceeds of the sale of the lands. Afterwards the judgment cre- ditors, still claiming the licensJe to be nulL issued execution against the lands, and the purchaser brought an action to have it de- clared that the judgment was not a charge thereon. Held, that the judgment upon the motion to set aside the license was conclusive against the judgment creditors, and they were precluded thereby from taking collat- eral proceedings to charge the lands affected, upon grounds invoked or which might have been invoked upjn the mo- tion. Held, further, that the judgment creditors, by receiving payment out of the proceeds of the sale, had elected to treat the license as having been regtilarly issued, and wen- estopped from attacking its validity in ans- wer to the action. Clark et al. v. Phinwy xxv., 633 3.— License to Street Railway Car- Payment FOR HoRSE-CAR — By-LAW — ^Tax ON Working Horses. See Assessment, 4. 4.— License to Cut Timber— Disputed Ter- ritory—Dominion License — Orders-in Council — Warranty of Title — Brbach OF Contract. See Crown Lands, 1. 5. — Sale of Liquor — Charter of City — Cumulative Taxes — Special Tax — Validity of By-law. See Municipal Corporation, 12. 0.— License to Enter Lands — Trespass— - Damages — Easement — Equitable In- terest—Municipal By-law — Notice. See Municipal Corporation, 21. 7. — CoNSTiTU"rioNAL Law — Mu^^CIPAL Cor- poration — Powers of Legislature — License — Monopoly — Highways and Ferries- Tolls— Ferry — Disturbance of Licensee — Club Associations, Com- panies AND Partnerships — North-west Territories Act, R. S. C. c. 50, sa. 15 AND 24— B. N. A. Act. s. 92. s.s. 8, 10 AND 1.5— Rev. Ord. N. W. T. (1888) c. 2R — N. W. Ter. Ord. No. 7 of 1891-92, s. 4. See Municipal Corporation, 26. 142 LIEUTENANT-GOVERNOR— LOCAL IMPROVEMENTS. LIEUTENANT-GOVERNOR. EiBPRESENTATIVE OP THE QUEEN — PrOVIN- ciAX, Government. The Lieutenant-Governor of a province is as mufli the representative of Her Ma- jesty the Queen for all purposes of Provin- cial Government as the Governor-General himself is for all purposes of the Dominion Government. Attomey-Chcneral of Canada v. Attorney- Ovneral of Ontario xxiii., 458 And see Constitutional Law, (J and 14. LIFE ESTATE. Will, Construction of — Death Without Issue — Executory Devise Over — Con- ditional Fee — Estate Tail. Bee Will. 12. LIFE INSURANCE. See Insurance, Life. LIMITATION OF ACTIONS. 1. — Easement — Necessary Way — Implied Grant — User— Obstruction of Way — Interruption of Prescription — ^Acqui- escence— R. S. N. S. (5 SER.) c. 112— R. S. N. S. (4 SER.) c. 100—2 & 3 Wm. IV. (Imp.) c. 71, ss. 2 & 4. K. owned lands in the County of Lunen- burg, N. S., over which he had for years utilized a roadway for convenient purposes. After his death the defendant became owner of the middle portion, the parcels at either end passing to the plaintiff, who continued to use the old roadway, as a winter road^ for hauling fuel from his wood lot to his resid- ence, at the other end of the property. It appeared that though the three parcels fronted uiK>n a public highway, this was the only practical means plaintiff had for the hauling of his winter fuel, owing to a dan- gerous hill that prevented him getting it o£C the wood-lot to the highway. There was not any formed road across the lands, but merely a track upon the snow, during the winter months, and the way was not ased at any other season of the year. This user was enjoyed for over twenty years prior to 1891, when it appeared to have been first disputed, but from that time the way was obstructed from time to time up i;o March, 1894, when the defendant built a fence across it at was allowed to remain undisturbed, ana caused a cessation of the actual enjoyment of the way, during the fifteen months immediately precedirg the commencement of the action in assertion of the right to the easement by the plaintiff. The statute (R. S. N. S. 5 ser. c. 112), pro- vides a limitation of twenty years for the acquisition of easements, and declares thit no net shall be deemed an interruption of actual enjoyment, unless submitted to or acquiesced in for one year after notice there- of and of the person making the same. Held., that notwithstanding the customary use of the way as a winter road only, the cessation of user for the year immediately preceding the commencement of the action was a bar to the plaintiff's claim under the statute. Held, also, that the circumstances under which the roadway had been used did not supply sufficient reason to infer that the way was an easement of necessity appur- tenant or appendant to the lands formerly held in unity of possession, which would, without special grant, pass by implication upon the severance of the tenements. Knock V. Knock xxvii., 6G4 2. — Seignorial Tenure — Charges Running with the Title — Servitude — Edits et Ordonnances (L. C). See Servitude, 2. 3. — Title to Lands — Sheriff's Deed — Nullity — Equivocal Possession. See Evidence, 30, LIQUOR LAWS. 1. — Sale of Liquor — Prohibition— Sale by Retail — Powers of Legislature. -See Constitutional Law, 7. 2.— Sale of Liquor — Prohibitory Laws- Powers OF Legislature — Local Option — Canada Temperance Act. ^ee Constitutional Law, 8. LITIGIOUS RIGHTS. Title to Lands— Usurper in Possession- Pleadings— Art. 1582 C. C. Where there is no litigation pending or dispute of title to lands raised except by a defendant who has usurped possession, and holds by force, he cannot when sued set up against the plaintiff a defence based upon a purchase of litigious rights. Powell v. Watters xxviii., 133 LOCAL IMPROVEMENTS. 1. — Municipal Corporation — Pavements- Assessment OF Owners — Double Taxa- tion— 24 Vic. (N. S.) c. 39-53 Vie. (X. S.) c. 60, s. 14. See Highway, 2. LORD CAMPBELL'S ACT— MANDAMUS. 143 2. — Municipal Corporation — Bt-i^w — Assessment — Local Improvements — Agreement with Owners of Properti —Construction of Subway— Benefit to Lands. See Municipal Corporation, 28. LORD CAMPBELIi'S ACT. Action by Widow under— Previous Action BY Deceased in his Lifetime — Dif- ferent Causes of Action— Identity or Material Issues— Evidence in First Action — Subsequent Use of. Sec Evidence. 3. BIACHINERT. See Immovable Property. " Movables. MAGISTRATE. Canada Temperance Act — Search War- rant — Magistraie's Jurisdiction — Constable — Justification of Minis- terial Officer— Goods in Custodia Legis — Replevin— Estoppel— Res Judi- cata — Judgment Inter Partes. -See Canada Temperance Act, 2. And sec Justice of the Peace. MAGNA CHARTA. Canadian Waters— Property in Beds- Public Harbours— E]rections in Navi- gable Waters — Interference with Navigation— Right of Fishing — Power to Grant — Riparian Proprietors — Great Lakes and Navigable Rivers- Operation of Magna Charta— Pro- vincial Legisuation— R. S. O. (1887) c. 24, s. 47—55 Vic. 10. s.s. 5 to 13, 19 and 21 (O.)— R. S. Q. Arts. 1375 to 1378. Where the provisions of Magna Charta are not in force, as in the Province of Que- bec, the Crown in right of the province may grant exclusive rights of fishing in tidal waters, except in tidal public harbours, in which, as in public harbours, the Crown in right of the Dominion, may grant the beds and fishing rights. Gwynne, J., dis- senting. Per Strong, C.J., and King and Girouard, JJ. — The provisions of Magna Charta re- lating to tidal waters would be in force in the provinces (except Quebec), unless re- pealed by legislation, but such legislation has probably been passed by the various Pro- vincial Legislatures and these provisions of the Charter, so far as they affect public harbours, have been repealed by Dominion legislation. In re Jurisdiction over Provincial Fisheries. xxvl., 444 MAINTENANCE. Will— Sheriff's Deed — Proof of Heir- ship — Rejection of Evidence — New Trial. See Evidence, 27. MAI.ICIOUS PROSECUTION. Probable Cause — Forgery. S., being a holder of a promissory note indorsed to him by the payees, sued to re- cover the amount, but his action was dis- missed upon evidence that it had never been signed by the person whose name appeared as maker, nor with his knowledge or con- sent, but had been signed by his son without his authority. The son's evidence on the trial of the suit was to the effect that he never intended to sign the note, and if bo had actually signed it with his father's name, it was because he believed that it was mere- ly a receipt for goods delivered by express. Immediately after the dismissal of the suit, S. wrote to the payees asking them if they would give him any information which would help him in laying a criminal charge in order to force payment of the note and costs. He also applied to the express company's agent, by whom the goods were delivered, and the note procured, and »as informed that there was a receipt for the goods in the delivery- book, but that the signature was denied and could not be proved. However, with- out further inquiry, and notwithstandinii the warning of a mutual friend against tik- ing criminal proceeding. S. laid information against the son for forgery. The Police Magistrate at Montreal, upon the investiga- tion of the charge, declared it to be un- founded and discharged the prisoner. Held, reversing the judgments of both courts below, that, under tne circumstances, the prosecution was without reasonable or probable cause, and the plaintiff was entitled to substantial damages. Charlebois v. Surveyer . . . . xxvii., 55(5 MANDAMUS. 1. — - School Corporation — Decision oi- Superintendent of Public Instrit"- tion — Appeal — Final Judgment — Practice— R. S. Q. Arts. 2055, 20.5&— 55 & 50 Vic. c. 24, ss. 18 and 19 (Que.^. Under the provisions of article 2055 of the Revised Statutes of Quebec, as amended 144 MANDATE-MARITIME LAW. by 55 & 5G Vic. c. 24, ss. 18 and 19. cer- tain ratepayers of a school district appealed to the Stiporintendeut of Public Instruction for the Province of Quebec, who thereupon rendered a decision and gave orders and directions respecting the erection of a school house, which, however, the School Com- missioners ueglected to perform. Held, allirming the judgment appealed from, that iu such cases, the decision of the Superintendent of Public Instruction was final; that no appeal therefrom would lie to the Superior Court, and that the proiier remedy to enforce the execution of the orders and directions of the Superintendent was by mandamus. Lea Commisnairea d'Eoole de St. Charlct v. Cordcau et al., 'Jth December, ISOo. 2. — Ai-PEAL — Jurisdiction— Court of — Re- view— 54 (Sc 55 Vic. c. 25, s. 3 (D.) — Costs. .S'cc Appeal, 33. 3_CoxTRACT, Construction of— Statute, Construction of— 12 Vic. c. 183. s 20— Contract, Notice to Cancel — Gas Supply Shut off for Non-payment of Gas Bill on Other Premises. -Sec Contract, 38. MANDATE. 1. — Termination of — Partnership Moneys — Sequestration of — Contre-lettre. In November, 1S8G, G. B. by means of a contre-h'ttre became interested in certaiu real estate transactions iu the City of Montreal, efEected by one P. S. M. In December, 1886, G. B. brought an action against P. S. M., to have a sale made by the latter to one Barsalou declared fraudulent, and the new purchaser restrained from paying the balance due to the parties named in the deed of sale. A plea of compensation was tiled and pending the action a sequestrator was appointed, to whom Barsalou paid over the money. In September, 1887, another action was instituted by G. B. against P. S. M., asking for an account of the differ- ent real estate transactions they had cou- j formably to the term« of the contre-lettre. \ To this action a plea of compenmtion was also tiled. The Superior Court dismissed the first action on the ground that G. B. had no right of action, but maintained the second action ordering an account to be taken. The action ordering an account to be taken. The Court of Queen's Bench aflBrmed the judg- ment of the Superior Court, dismissing the first action and P. S. M. acquiesced in the judgment of the Superior Court on the se- cond action. On appeal to the Supreme Court of Canada, from the judgment of the Court of Queen's Bench, dismissing th'.- first action: Held, reversing the judgment of the court below, that the plea of compensation was un- founded, G. B. having the right to put an end to I'. S. :M.'s mandate by a direct action, and therefore until the account which had been ordered in the second action had beeu rendered, the moneys should remain in the hands of the sequestrator appointed with the consent of the parties. Bury V. Mwrphy . . xxii., 1:37 2. — Partnership — Division of Assets — Art. 1898 C. C. — Debtor and Creditor Account. In the Province of Quebec, where there is no other arrangement between the part- ners, the partition of the property of a com- mercial partnership must be made accord- ing to the rules laid down in the Civil Code in relation to the partition of successions, iu so far as they can be made to apply. Fpou the dissolution of a partnership, where one of the partners has been entrusted with the collection of moneys due as ih(^ numdatary of the others, any of his co-part- ners may bring suit against him directly either for an account under the mandate, or as for money had and received. Lefeiv-re v. Aubry xxvi., 602 MANITOBA, Constitutional Act — Legiflation in R:;- spect to Education — Legislative Powers — Right to Repeal— Appeal to Governor-General in Council — 33 Vic. c. 3, s. 22, s.-s. 2— B. N. A. Act, s. 93, s.-s. 3. See Constitutional Law, 3. MARINE INSURANCE. See Insurance, Marine. MARITIME LAW. 1. — Deviation — Putting into Port Over- night — Stress of Weather. On appeal from a judgment of the Su- preme Court of Nova Scotia (24 f.i. S. Rep. 205), w^hich held that it was not a deviation for a coasting vessel on a voyage from Ma- home Bay, N. S., to Fortune Bay in New- foundland, and thence, etc., to put into an intermediate port over night to escape MARITIME LAVV.I M5 thrciiti'iifd liiul weather, the Supiviue Court of Canada atfiriiU'd thi> deeiision of tlu' court appealed from, and dismissed the appeal with costs. The Xoio ,ScoHa M(M-i>ie Insurance Co. v. Eiaenhauer et ah, Gth November, 1894. 2. — Collision — Negligence— Kule of the Road — Steamer — Sailing Vessel — Opinion op Assessors — Delegation op Judicial Functions. The action was for damapes hy a 'ol- lision on the Bay of Quint6 between plain- tiff's schooner and a steamer belonging to defendant. In the marine protest by the captain of the schooner the cause of the action was alleged to be that the steamer's wheel was put to port when it should have hccn put to starboard, just before the col- lision. The action was twice tried, the first trial having been set aside on the ground that the Judge, by adopting the opinion of assessors^ had dele-gated his judicial func- tions (VS Out. App. K. 2!>8). The second' trial resulted in a verdict for plaintiff, which was affirmed by the Court of Appeal for Ontario. The Supreme Court of Canada affirmed the judgment of the Court of Appeal, sustaining plaintiff's verdict, and dismissed the appeal with costs. Collier v. TTn'^ftt, Gth May, 1895, xxiv., 714 3. — Collision — Rules op the Road — Nar- row Channel — Navigation, Rules op — R. S. C. c. 79, s. 2, Arts. 1."). 10. 18, 19. 21, 22 AND 23—" Crossing '* Ships— " Meeting " Ships — " Passing " Ships — Breach op Rules— Presumption of Fault — Contributory Negligence — ^Ioiett op Damages— 36 & 37 Vic. (Imp.) c. 85, s. 17— Manoeuvres in " Agony op Collision." If two vessels approach each other in the position of " passing " ships, (with a side light of one dead ahead of the other) where unless the course of one or both is changed, they Avill go clear of each other, no statutory rule is imposed, but they are governed by the rules of good seamanship. If one of two " passing " ships acts con- sistently with good seamanship, and the other persists, without good reason, in keep- ing on the wrong side of the channel: in star- boarding her helm when it was seen that the helm of the other was hard to port, and the vessels are rapidly approaching: and. af- ter signalling that she was going to port, in reversing her engines and thereby turning s.c.D. — 10 her bow to starboard, she is to blame for a collision which follows. The non-observance of the statutory rule (art. 18), that steamships shall slacken speed, or stop, or reverse, if necessary when ap- proaching another ship, so as to involve risk of collision, is not to be considered as a fact contributing to a collision, provided the same could have been avoided by the imping- ing vessel by reasonable care exerted up to the time of the accident. Excusable manoeuvres executed in " agony of collision " brought about by another ves- sel, cannot be imputed as contributory negli- gence on the part of the vessel collided with. The rule that in narrow channels steam- ships shall, when safe and practicable, keep to the starboard (art. 21), does not override the general rules of navigation. The Lever- inijton (11 P. D. 117). followed. The " Cvha " v. McMillan .. . . xxvi., 651 4. — Affreightment— Carriers — Charter- party — Privity of Contract — Negli- gence — Stowage — Fragile Goods — Bill op Lading — Condition— Notice — Arts. 1674, 1675, 1676 C. C— Contract Against Liability for Fault of Ser- vants—Arts. 2383 (8); 2390, 2409; 2413, 2424 2427 C. C. The chartering of a ship with its company for a particular voyage by a transportation company, does not relieve the owners and master from liability upon contracts of afifreightment during such voyage where the exclusive control and navigation of the ship are left with the master, mariners and other servants of the owners, and the contract had been made with them only. The shipper's knowledge of the manner in which his goods are being stowed under a contract of afifreightment does not alone ex- cuse shipowners from liability for damages caused through improper or insufficient stow- age. A condition of a bill of lading, providing that the shipowners shall not be liable for negligence on the part of the master or mariners, or their other servants, or agents, is not contrary to public policy, nor pro- hibited by law in the Province of Quebec. Where a bill of lading provided that glass was carried only on condition that the ship and railway companies were not to be liable for any breakage that might occur, whether from negligence, rough handling or any other cause whatever, and that the owners were to be " exempt from the perils of the seas, and not answerable for damages and los.seg by collisions, stranding and all other accidents 146 MARRIAGE-MARRIED WOMAN. of navigation, evt-n tho»};h the damage or loss from these may be attributable to some wrongful act, faulty neglect, or error in judg- ment of the pilot, nuister, mariners, or other servants of the shipowners; nor for break- age or any other ilaniage arising from the nature of the goods shipped," such provisions apply only to loss or damage resulting from acts done during the carriage of the goods, and do not cover damages caused by neglect or improper stowage prior to the commence- ment of the voyage. The Ulenyoil &7ea«w/iip Company v. Pilkiiig- ton. The Olengoil Steamiihip Company v. Ferguson, xxviii., 14G 5.— Collision at Sea — Negligence— De- fective Steering Gear— Question of Fact— Interference with Decision op Local Judge in Admiraltt. See Appeal, 19. (i. — Foreign Vessel Fishing within British Waters op Canada— Three- MiLE Limit— License— R. S. C. c 94, s. 3 — Evidence— Onus Probandl See Fisheries. 3. MARRIAGE. Conditions in Restraint of — " Dying Without Issue '' — " Revert " — Contin- GENCii3s — Annuity — Dower — Election BY Widow— Devolution op Estates Act, 49 Vic. (O.) c 22— " The Wills Act of Ontario," R. S. O. (1889) c. 109, s. 30. See Will, 10. MARRIAGE SETTLEMENT. Don Mxn'UEL — Property Excluded prom, BUT Acquired After Marriage — Resiliation for Value. Where by the terms of a don mutml by marriage contract a farm in the possession of one of the sons of the husband under a deed of donation was excluded from the don mutuel, and subsequently the farm in question became the absolute property of the father, the deed of donation having been resiliated for value, it was held that by rea- son of the resiliation the husband had ac- quired an independent title to the farm, and it thereby became churgeJ. for the amount due under the drm mvHi^i by marriage con- tract, viz., .$.5,000. and that after the hus- band's death the wife (the respondent in this case) was entitled, until a proper inventory had been made of the deceased's estate, to retain possession of the farm. Taschereau and (Jwynne, JJ., dissenting. Martindale v. Potcera xxiii., 597 MARRIED WOMAN. 1. — Dissolution of Partnership — Bbnep.t Conferred During Marriage— Simula- tion — Fraud. On 10th April, 1880, J. S. M., a retired partner of the firm of McL. He B., composed of himself and W. M., his brother, agreed to leave his capital, for which he was paid interest, in the new firm to be constituted of the said W. M. and one II., an employee of the former firm^ and that such capital should rank after the creditors of the old firm had been paid in full. The new firm was to carry on business under the same firm name up to 31st December, 1889. .1. S. M. died on iSth November, ISSC. His wife, separate as to property, had an account in the l)ooks of both firms. On l<>th April. 18iK>, an agreement was entered into be- tween the new firm and the estate of J. S. M. and his widow, by which a large balance was admitted to be due by them to the estate and the widow. The new firm was declared insolvent in .January, 1891. Claims wen- filed by the widow, and the estate of J. S. M. against the insolvents, and the Mer- i chants Bank of Canada contested them on j the grounds, inter alia, that they had been j creditors of the firm and continued to ad- vance to the new firm on the faith of the agreement of April, 188(5, that the widow's moneys formed part of the capital of .T. S. M., and that the dissolution was simu- latetl. (Q. R. 2 Q. B. 431). The Supreme Court of Canada reverseil the judgment of the Court of Queen's Bench, {nr Lower Canada (appeal side), and re- stored the judgment of the Superior Court, I District of ^Montreal, Fournier and King, I .LL, dissenting, and Held, that the dissolution of the partner- ship was simulated: that the moneys which appeared to be owing to ttie widow, affcer having credited her with her own separate moneys, were in reality moneys deposited by her husband in order to confer upon her, during marriage, benefits contrary to law. and that the bank had a sufficient interest to contest these claim,?, the transaction being in fraud of their rights as creditors. The ilercha^nts Bunl; of Canada v. McLachfnn. The Me^chwtits Bank of Canada v. McLaren. 2nd April, 1894 xxiii.. 14S MASTER AND SERVANT. 147 2,— Constitutional Law— Marital IIightb —Married Woman— Sepatiate Estate —Jurisdiction of Xorth-west Terri- torial Iveqislature — Statute — Inter- pretation OF — Hi Vic. c. 7, s. 3 and Amendments- K. S. ('. c. OO— N. \V. Ter. Ord. No. 16 of 188S). The provisions of Ordinance No. 10 of 1889, respecting the i>ersonal proi)erty of inarried women, are intra vires of the Legis- lature of the North-West Territories of Can- ada, as being legislation within the definition wer for disposing of sui-li property, or allow her to enter into contracts which at common law would be void. Mowv v. Jackson (22 Can. S. C. It. 3101. referred to. Lea v. Wallace et al. (33 N. B. Kep. 492), reversed. Wallace et cl. v. Lea xxviii., 595 5.— Estoppel — Conveyance by Married Woman — Agreement — Hecital — Bona Fides. See Fraudulent Conveyances. MASTER AND SERVANT. 1. — Common Employment — Negligence — Questions of Fact — Finding of Jury ON. A gas company, engaged in laying a main in a public street, procured from a plumber the services of H., one of his workmen, for such work, and while engaged thereon H. was injured by the negligence of the servants of the company. In an action for damages for such in- jury: Held, affirming the decision of the Supreme Court of New Brunswick, that" by the evi- dence at the trial negligence against the company was sufficiently proved. Held, further, that whether or not there was a common employment between H. and the servant of the comjmny was a question of fact, and it having been negatived by the finding of the jury, and the evidence war- ranting such finding, an appellate court would not interfere. St. John Gas Light Co. v. Hatfield, xxiii., 164 2.— Contract— Proprietor of Newspaper — Engagement of Editor — Dismissal — Breach of Contract. A. B. and C. B. who had published a news- paper as partners or joint owners, entered into a new agreement, by which A. B. as- sumed payment of all the debts of the busi- ness and became from that time sole pro- prietor of the paper, binding himself to con- tinue its publication, and, in case he wished to sell out, to give C. B. the preference. The agreement provided that: "3. Le dit Charles Bfilanger devient, ft partir de ce jour, directeur et redacteur dn dit journal, son nom devant paraitre comrae directeur en tete du dit journal, et pour ses services et son influence comme tel, le dit Arthur 148 MASTER AND SERVANT. Bfilingrr hii nlloiie quatre conta piastres par annw, taut par impressions, aiiiionees, etc., tiu'cii ardent jusiiu'au nioiitaiit ile cette HOiiune, ot le dit Artlinr Bf-laiiRer ne pourra inettre tin iV <'t't ennaKcineiii saus K." con- senteuieiit du dit Charles liC-laiij'i-r." The paper was published for some t mo under this agreement as a supi>orter of tiie liiberal party, when C. B., without instructions from or permission of A. B., wfote editorials vio- lently opposing the candidate of that party at an election, and was dismissed from his position on the p:iper. He then brought an action against A. B. to have it declared that he was " ri'dncinir et directeitr " of the news- paper and claiming damages. Held, reversing the decision of the Court of Queen's Bench, that C. B.. by the agree- ment, hid become the employee of A. B., the owner of the paper; that he had no right to change the political colour of the paper with- out the owner's consent; and that he was rightly dismissed for so doing. Bilanger v. Belan^er xxiv., 678 3.— Negligence of Servant — Deviation FROM Employment — Resumption— CoN- TRIBUTORT NEGLIGENCE — InFANT — EVI- DENCE. A tradesman's teamster, sent out to de- liver parcels, went to his supper before com- pleting the delivery. He afterwards started to finish his work and in doing so ran over and injured a child. Held, affirming the decision of the Supreme Court of New Brunswick, that from the moment he had started to complete the busi- ness in which he had been engaged he was in his master's employ just as if he had re- turned to his master's store and made a fresh start. Merritt y. Hepmalal xxv., 150 4. — Tortious Act — Public Work — Con- tractor—Liability OF Railway Com- pany. A company building a railway is not liable for injury to proi)erty caused by the wrong- ful act of their contractor in borrowing earth for embankments I>om a place, and in a manner, not authorized by the contract. Kerr v. The Atlantic and N. W. Ry. Co., xxv.. 197 5.— Railway Company — Loan of Cars — Reasonable Care — Breach op Duty — Negligence — Risk Voluntarily In- curred — " Volenti Non Fit Injuria." A lumber company had railway sidings laid in their yard for convenience in shipping lumber over the line of railway, with which the switches connected, and followed the practice of pointing out to tlie railway com- |tany the loaded cars to be removed, the rail- way coini\iny thereupon sending their loco- motive and crew to the respective sidings in the lumber yard and bringing away the cars to be despatched from their di'pot as directed by the bills of lading. Held, that in the absence of any special agreement to such effect, the railway com- pany's servants while so engaged were not the employees of the lumber company, and that the railway company remain liable for the conduct of the persons in charge of the locomotive used in the moving of the cars; and ihat where the lumber company's employees remained in a car lawfully pur- suing their occupation there, the persons in charge of the locomotive owed them the duty of using reasonable skill and care in moving the car with them in it, so as to avoid all risk and injury to them. The Canada Atlantic Railway Company v. Hurdman xxv., 205 6. — Principal and Aoent — Master and Servant — Insurance Agent — Duty — Appointment — Acting for Rival Com- pany — Divided Interests — Dismissal. To act as agent for a rival insurance com- pany is a breach of an insurance agent's agreement " to fulfil conscientiously all the duties assigned to him, and to act constantly for the best interests of (his emi)loyer)," and is sufficient justification for his dis- missal. Judgment of the Court of Appeal for On- tario (22 Ont. App. R. 408), affirmed. Kovtmwre v. The Canada Accident Assurance Co., 22nd February, 1896 . . . . xxv., 691 7.— Negligence — " Quebec Factories Act " I R. S. Q. Arts. 3019-3053— C. C. Art. 1053 — Civil Responsibility— Accident,. Cause of — Conjecture — E\^DENCB — Onus op Proof — Statittable Duty^ Breach of — Police Regulations. The plaintiff's husband was accidentally killed whilst employed as engineer in charge of the defendant's engine and machinery. In an action by the widow for damages the evidence was altogether circumstantial and left the manner in which the accident oc- curred a matter of conjecture. Held, that, in order to maintain the action it was necessary to prove by direct evidence or by weighty, precise and consistent pre- sumptions arising from the facts proved, that the accident was actually caused by the MASTER AND SERVANT. 149 positive fault, imprudence or neglect of the person sought to lit- churned with respon- sibility, and such proof being entirely want- ing tilt' action must be dismissed. The provisions of " The (juebec Factoriea Act," (U. S. g. arts. HOVJ to 30.">3, inclu- sively), are intended (o operate only as police regulations, and the statutable duties there- by imposed do not affect the civil respon- sibility of employers towards their employ- ees, as provided by the Civil Code. The Montreal Rollmg Mills Co. y. Corcoran, xxvi., 505 8.— HmiNQ OF Tersonal Services— Muni- cipal. Corporation- — Appoi.ntment of Officers — Summary Dismissal — Libellous Resolution — Statute, In- terpretation OF— Difference in Te.xt OF English and French Versions— 52 Vic. c. 79, s. 79 (Q.)— " A Discretion " — " At Pleasure." The charter of the City of Montreal, 1889, 52 Vic. c. 79, section 79. gives power to the City Council to appoint and remove such ollicers as it may deem necessary to carry into execution the powers vested in it by thv? charter, the French version of the Act stat- ing that such iwwers may be exercised " d «« discrvtioti," while ^he English version has the words " at its pleasure.' IleUI, that notwithstanding the apparent difference between the two Acrsions of the statute, it must be interpreted as one and the same enactment, and the City Council was thereby given full and unlimited iwwer. in cases where the engagement has been made indefinitely as to duration, to remove officers summarily and without previous notice, upon payment only of the amount of salary accrued to such officer up to the date of such dismissal. Davis V. Citv of ilo^ttreal . . . . xxvii., 539 0.— Negligence — Injuries Sustained bt Servant — Responsibility ^- Contribu- tory Ne:gligence — Protection of Machinery. Where an employee sustains injuries in a factory through coming in contact with machinery, the employer, although he may 1)6 in default, cannot be held responsible in damages, unless it is shown that the ac- cident by which the injuries were caused was directly due to his neglect. Tooke V. Begeron xxvii., 567 10.— Negligence — Accident. Cause of — Contributory Negligence— Evidence. In an action for damages by an employee for injuries sustained while operating nn embossing and .stamping press, it appeared that when the accident causing the injury occurred, the whole of the employee's haii'l was under the press, which wis unneces- sary, as only the hand as far as the second knuckle needed to be inserted for the piir- Iiose of the operation in which he was » n- gaged. It was alleged that the press was working at undue 8i)eed, but it was proved that the speed had l)een increased to that extent at the instance of the employee him- self, who was a skilled workman. llclil, reversing the judgment of the Court of Queen's Bench, that the injury occur- red by a mere accident not due to any negli- gence of the emi)loyer, but solely to the heedlessness and thoughtlessness of the in- jured man himself, and (he employer was not liable. liurland v. Lee xxviii.. 34S 11.— MiiSTER AND Servant — Negligence — Evidence — Probable Cause of Acci- dent. Evidence which merely supports a theory propounded as to the probable cause of in- juries received through an unexplained ac- ci(]ent is insufficient to support a verdict for damages where there is 110 direct fault or I negligence proved against the defendant, and I the actual cause of the accident is purely ; a matter of speculation or conjecture. The Canada Paint Co. v. Trainor, xxviii., 352 12.— Negligence — Fault of Fellow Ser- vant — Employer's Liability — Arts. 1053, 1056 C. C. I The defendants carried on the manufac- ture of detonating cartridges or caps made by charging copper shells with a composition of fulminate of mercury and chlorate of potash, a highly explosive mixture, requiring great care in manipulation. It vs, when dry, liable to explode easily by friction or con- tact with flame, but has the property of inirning slowly without exploding when saturated with moisture. It was the duty of defendants' foreman, twice a day, to pnv vide a sufficient quantity of the mixture for use in his special compartment during the morning and in the afternoon, and to keep it properly dampened with water, for which purpose he was furnished with a sprinkler. It was also the foreman's duty to fill the empty shells with the fulminating mixture as they were handed to him set on end in wooflen plates, and then pass them on. properly moistened, through a slot in his compartment, to a shelf whence they were re- moved by another employee and the charges ISO MASTER AND SERVANT. pressed down to the bottom of the shells by moans of a prossinj; machine worked by ('.. at a table near by. An explosion took place which api)earod from the evidence to have oriKinated at the i)ressing machine, and niif.'ht have occurred either through the fulminate in the shells having been allowed to become too dry from carclesi-^ness in sprinkling, or from an accumulation of the mixture adhering to and drying upon the metal portions of the pressing machine. It was the duty of C, the person operating the pressing machine, to keep it dean and prevent the mixture from accumulating and drying there in dangerous quantities. When the explosion occurred, the foreman and C. and another employee were killed, but a fourth employee, Avho was blown outside the wreck of the building and survived, stated that the first flash appeared to come from the pressing machine, and the explosion fol- lowed immediately. The theory ])roiK>unded hy the plaintiff, the father of C.^ assumed that nothing was known of the actual cause of the explosion, nor where it in point of fact originated, but inferred from a supposed condition of things, that the fulminate had not been sufficiently dampened, and, that this indicated carelessness on the part of the fore- man, and raised a presumption that the explosion originated through his fault. The evidence of the survivor led *^o the conclu- sion *;hat the explosion originated through t'.'s .leglect to clean the pressing machine. There was evidence to show that the defend- ants had taken all reasonable precautions to diminish risk of injv.ry to their employees in the event of an explosion, and that con- formity with rules prescribed and instruc- tions given by them to their tnnployces for the purpose of securing their safety, would be sufficient to secure them from injury. Held, Taschereau and King, JJ., dissent- ing, that as it apix-ared under the cirouni- stances of the case, that the cause of the accident was either unknown or else that it could fairly be presumed to have been caused by the negligence of the person in- .iured, whose personal representative brof.ght the action, that there could not be any sueh fault imputed to the defendiuits as would render them liable in damages. DoniinUm Cartridge Co. y. Cairns, xxviii., 361 (Leave to appeal was refuse5. which were the property of C. D. A., the continuing partners agreeing to pay off a mortgage thereon as one of the old firm's debts. They neglected to pay and the prop- erty was sold by the sheriff under a foreclo- sure decree, when they purchased and took a deed describing the lands as in said mort- gage, one side being bounded by " the wind- ings of the shore " of Sydney Harbour, and including a " water lot," nart of which was known as the " Stone ballast heap." in front of the shore lands. They immediately re-mortgaged the lands by the same de- scTiption adding a further or alternative description, and, at the end, the followins ■words: — " Also all and singular the water lots and docks in front of the siud lots." —although in fact they then owned none ex- cept those covered by the description in the deed from the shi'riff, and they gave at the same time a collateral bond to the mortgagees for the amount of their mort- gage. They then conveyed the equity to C. D. A., giving him a bond of indemnity against the mortgage they had so executed. Some time afterwards T. A. and B. A. acquired by grant certain other water lots in front of the mortgaged property, and used and occupied them as part of their busi- ness premises along with the mortgaged lands. C. D. A. sold the equity of redemp- tion subject to the mortgage, and T. A. and B. A. settled their obligation under the indemnity bond by a compromise with the assignees of C. D. A., paying .$8,000, and obtained their discharge. Upon proceedings l)eing taken by the as- signees of tht? niortagagees to foreclose the mortgage, and against T. A. and B. A. upon the collateral bond, T. A. and B. A. pad the amount due. and the foreclosure proceed- ings were continued for their benefit. Held, that the liability of the mortgagors was fully satisfied and discharged by the (oniproniise. and as they weie afterwards obliged to pay the outstanding eucunibrmce tl'ev were entitled to take an assignment and enforce the mortgage by foreclosure proceedings against the lands. Per Gwynni-. .T — The mortgagors were only entitled t > 154 MORTGAGE. foreclosure for the realization of the amount actually paid by them in compromising their lialiilily under the indemnity bond. Held, further, that as the construction of the mortgage depended uix)n the state of the proi>erty at the time it was made parol evi- dence -would be admitted to explain the am- biguity in the description of the lands in- tended to be effected; that as there was no specific descriptions or recitals tending to show that any other proiH'rty was intended to be covered by the mortgage beyond what would be satisfied by including the water lot described as the " Stone ballast heap," the after-acquired water lots would not be charged or liable to contribute ratably to- Mards redenii)tion of th" mortgage: th;it even admitting that the description wa» sufficient to include the after-acquired pro- perty, such property was not liable to con- tril'ute towards payment of the mortgage debt. Imrio V. Archibald et al xxv., otjS 5. — Agreement to Charge Lands — Sta- tute OF Frauds — Registry. The owner of an equity of i'l^lemption in mortgaged lands, called the Christopher farm, signed a memorandum as follows: — " I agree to chai'ge the east half of Lot Xo. 10, in the seventh concession of Lough- borough, with the payment of two mort- gages held by G. M. G. and Mrs. II. respec- tively, upon the Christopher farm * * » amounting to ^750 * * * and I agree on demand to execute proper mortgages of said land to carry out this agrt'cment. or to pay off the said Christopher mortgages." Held, aftirming the judgment of the Court of Appeal, that this instrument created a present equitable charge upon the east half of Lot 10, in favour of the mortgagees named therein. Rooker v. HoofsMtcr xxvi., 41 6. — Chattel ^Mortgage — Mortgagee in Possession — Negligence — Sale under Powers—" Slaughter Sale." A mortgagee in possession wlio sells the niortgagcfl goods in a reckless and impro- vident manner is liable to account not only for what he actually receives. Init for what he might have obtained for the goods had he acted with a proper regai-d for the in- terests of the mortgagor. Rciiniv V. niock (t al xxvi.. .350 7. — Mining Machinery — Registration — Fixtures— Interpretation of Terms —Bill of Sale— Personal Chattels— R. S. N. S. (5 SER.) c. 92, ss. 1, 4 and 10 (Bills of Sale)— 55 Vic. (N. S.) c. 1, s. 143 (The Mines Act)— 41 & 42 Vic. (N. S.) c. 31, s. 4. The " fixtures " included in the meaning of the expression " Personal Chattels " by the tenth section of the Nova Scotia " Bills of Sale Act," are only such articles as are not made a permanent portion of the land and may be passed from hand to hand with- out reference to or in any way affecting the land, and the " delivery " referred to in the same clause means only such delivery as can be made without a trespass or a tor- tious act. An instrument conveying an interest in lands and also fixtures thereon does not re- (luii'f' to be registered under the Nova Scotia ••Bills of Sale Act" (R. S. N. S. 5 s< :-. c. 02), and there is no distinction, in this respect, between fixtures covered by a licensee's or tenant's mortgage, and thor^e covered by a mortgage made by the owner of the fee. Waimr v. Dan ct al., . . . . xxvi., 3S8 8. — Mortgage Loan to Pay off Prior P]ncumbrance£ — Increased Rate of Interest — Assignment of ^Mortgage — Purchaser of Equity of Redemption — Accounts. When a loan is effected for the purpose of paying off encumbrances, at once or as they become due.- at the option of the new mortgagees, and one of the encumbrances at a lower rate of interest than the new mortgage is not due, and the prior mort- gagee refuses to accept pre-pay ment, the new mortgagee (annot treat that mortgage as paid oft", and charge the mortgagor with interest at the increased rate on the amount thereof, unless he has set apart the amount of the prior encumbr.nnce and notified the mortgagor to that effect, but must, until the lirior mortgage is fully paid, charge inter- est at the increased rate only on the amount actually paid to the prior mortgagees. An assignee of a mortgage takes it sub- ject to the actual state of the accounts be- tween the mortiiagor and mortgagee, and cannot, even where it contains a formal re- ceiiit for the whole mortgage money, claim more in respect of it than has been advanced, and cannot, in such a case as the present, charge the mortgagor with tlie increaseil ra te. The fact that the purchaser of the equity < : redemption has been allowed the full ainiiiint of the mortgage .as between the MORTGAGE. »S5 mortgagor and himself does not make him lialilf to pay that sum to the mortgagees. Judgment of the Court of Appeai i"or On- tario (23 Ont. App. R. IS'.t), a hmed. London Loan Co. v. ilanley, 20th May, 1S9G, xxVi., 443 {).— Leasehold I'remises— Terms of Mort- gage — Assignment or Sub-lease. A lease of real estate for twenty-one years with a covenant for a like term or terms was mortgaged by the lessee. The mort- gage after reciting the terms of the lease procecdtHl to convey to the mortgagee the indenture and the benefit of all covenants and agreements therein, the leased pro- perty by description and " all and singular the engines and boilers which now are or shall at any time hereafter bo brought and jilaced upon or affixed to the said premises, nil of which said engines and boilers are hereby declared to be and form part of the said leasehold premises hereby granted and mortgaged or intended so to be and form part of the term hereby granted and mort- gaged:" the Iwlwndiim of the mortgage was: ■• To have and to hold unto the said mort- gagees, their successors and astigns, for the residue yet to come and unexpired of the term of years created by the said lease less one day thereof and all renewals, etc." Held, reversing the judgment of the Court of Appeal, that the premises of the said mortgage above referred to contained an express assignment of the whole term, and the IwhtiHliim, if intended to reserve a portion to the mortgagor, was repugnant to the said premises and therefore void; that the words ■■ leasehold premises " was quite sufficient to carry the whole term, the word " prem- ises " not meaning lands or property, but referring to the recital which described the lease as one for a term of twenty-one years. JfiUI, further, that the habendum did not reserve a reversion to the mortgagor; that the reversion of a day generally without stating it to be the last day of the term is insufficient to give the instrument the , character of a sub-lease. i I Janiexon v. The J.ondon and Canadmn Loan ' and Ayencu Compaiiy xxvii., 435 10. — LsASEHOLn rJsTATE — ASSIGNMENT OF Equity of Redemption — Acquisition of Reversion by Assignee — 1'riority — : Merger. ! The assignee of .a term, who takes the j assignment subject to a mortgage and after- | wards acquired the reversion, cannot levy ' out of the mortgaged premises, to the pre- judice of the moitgagees. the ground rent reserved by the lease which he was himself under an obligation to pay before becoming owner of the fee. Emmett v. Quinu (7 Ont. Apix R. 3(Xi), disriuguished. Judgment of the Court of Appeal (24 Ont. App. R, 5iil).) affirmed. Mackenzie v. Biiildiny ifc Loan Asuoeiation^ xxviii., 407 (Leave to appeal to Privy Council refused). 11. — Appeal — .Jurisdiction — Matter im CONTROVER.- Y — INTEREST OF SeCOND Mortgagee — Surplus and Sale of Mortgage' 1 Lands — (iO & (il Vie. c. '3i. s. 1 (D.)— Statute, Construction of— 1'ractice. While an action to set aside a Sfcond mortgage on lands for .$2,200 was p"nd;ng. the mortgage!; lands were sold under a prior mortgage, and the first mortgagee, after satisfying his own claim. , paid the whole surplus of the proceeds of the sile, amount- ing to .$27''', to the defendant as subs - (luent incumbrancer. Judgm.'nt was after- wards rendered declaring the second mort- gage void, and ordering die defendant to pay the plaintiflF, as assignee for the bene- fit of creditors, the .$270 so received by him thereunder, and this judgment was affirmed on appeal. Upon an application to allow an appeal bond, on further appeal to the Suitrenu- Court of Canada, objections were taken for want of jurisdiction under the clauses of the Act. GO & 61 Vic. c. 34. but they wt re over- ruled by a Judge of the Court of Appeal for Ontario, who held that an interest in real estate was in question and the appeal waw accordingly proccedeil with, and the appeal case and factums printed and delivered. On motion to quash for want of jurisdic- tion when the appeal was called for hear- ing; Held, that the case did not involve a ques- tion of title to real estate or any interest therein, but as was merely a controversy in relation to an amount less than the sum or value of one thousand dollars, and that the Act. 00 &: 01 Vic. c. .34, prohibited an appeal to the Supreme Court of Canada. Jermyn v. Tcio xxviii., 497 12.— Title to IjAnd — Entail — Life Estate — Fiduciary Substitution— Privilegf s AND Hypothecs — Mortgage by Insti- tute — Preferred Claim — Prior 1n- ci'mbrancer — Vis Major— 10 Vic. c. ?ri — Rp.gistry Laws — Practice — Sheriff's 156 MORTGAGE. Sale — Chose Jugee — Parties— Estop- pel.— Sheriff's Deed — Deed Poll — Im- provements ox Substituted Propertt — Grosses ItEPERATioxs — Art. 2172 C. C— 29 Vic. c. 26 (Can.). The institute, greve de substitution, in pos- session of land and curator to tlio substi- tution. uiK)!! judicial autliority, mortgaged the land under the provisions of the Act for the relief of sufferers by the great Montreal Fire of 1852 (16 Vic. c. 25). for a loan which was expended in reconstructing buildings uiwn the property. On default in payment the mortgagee obtained judg- ment against the institute, and caused the lands to be sold in execution by the sheriff in a suit to which the curator had not been made a party. Held, that, as the nio'tgage had been judi- cially authorized and was given special pre- ference by the statute, superior to any rights or interests that might arise under the sub- stitution, the sale by the shenfE in execu- tion of the judgment so recovered discharged the lands from the substitution not yet open and effectually passed the title to the pur- chaser for the whole estate, including that of the substitute as well as that of the vreve de substitution, notwithstanding the omission to make the curator a i)arty to the action or proceedings in execution against the said lands. An institute, girve de substitution, may validly affect and bind the interest of the substitute in real estate subject to a fidu- ciary substitution in a case when? the bulk of the property has been destroyed by vis major in order to make necessary and ex- tensive repairs (grosses reparations), upon obtaining judicial authorization, and in such case the substitution is charged with the cost of the grosses reparations, the judicial authorization operates as rrs judicata, and the substitute called to the substitution is estopped from contest.ation of the necessity and expense of the repairs. The sheriff seized and sold lands under a writ of execution n gainst a defendant, de- scribed therein, and in the process of seizure, and also in the deed by him to the purchaser, as grevc de substitution. Held, that the term used was merely de- scriptive of the defendant and did not*limit the estate seized, sold or conveyed under the ■execution. Held, further, per TascL rcau. J., that article 21 72 of the Civil Co.le of Lower Can- ada, as intenireted by the statute, 29 Vic. c. 26 (Can.), applies to hypothfcs and charges ' only, and does not require renewal of regis- tration for the preservation of rights in and titles to real estate. Judgment of the Court of Queen's Bench attirmed, Taschereau and King, JJ., dis- senting. Chif dit Vadtbonea:ur v. City of Montreal, 13th Oct., 1898 xxix. 13— Assignment of Equity— Covenant or- Indemnity — Assignment of Covenant— ItiGHT OF Mortgagee on Covenant in Mortgage. C. executed a mortgage on his lands in favour of B., with the usual covenant for payment. He afterwards sold the equity of redemption to D. who covenanted to pay off the mortgage and indemnify C. against all costs and damages in connection therewith. This covenant of D. was assigned to the mortgagee. D. then sold the lands, subject to the mortgage, in throe parcels, each of the purchasers, assuming payment of his pro- portion of the mortgage debt, and he assign- ed the three respective covenants to the mortgagee who agreed not to make any claim for the said mortgage money against D. un- til he had exhausted his remedies against the said purchasers and against the lands. The mortgagee having brought an action against C. on his covenant in the mortgagee. Held, reversing the judgment of the Court of Appeal (24 Ont. App. K. 492), that the mortgagee being the sole owner of the cove- nant of D. with the mortgagor, assigned ti> him as collateral security, had so dealt with it as to divest himself of power to restore it to the mortgagor unimpaired, and the extent to which it was impaired could only be deter- mined by exhaustion of the remedies provid- ed for in the agreement between the mort- gagee and D. The mortgagee, therefore, had no present right of action on the covenant in the mortgage. McCuaig v. Barber, 21st Nov., 1888, xxix. 13o.— Corporation — By-law — Bonus tg Mortgagors — Ccnditions of — Con- struction OF Terms. See By-law, 1. 14. — Foreclosure of — Order for Posses- sion — Defence to — Illegal or Im- moral Consideration — Purchaser of Equity of Redemption — Right to Set UP Defence. See Practice, 7. 15. — Chattel Mortgage — Affidavit of Bona Fides- Compliance wtth Stati'- tory Form— R. S. X. S. 5 ser. c. 92, s. 4. See Chattel Mortgage, 1. MOVABLES— MUNICIPAL CORPORATION. 157- 16.— Action for Redemption — Foreign ] Lands — Lex Rei Sit^ — Action in Personam— Jurisdiction of Court, Sfc Court, 1. 17.— SiRETYSHip- Appropriation of Pay- ments — Reference to Take Accounts. See Principal and Surety, 1. Ig.—JURISDICTION TO SET ASIDE MORTGAGE- ON Foreign Lands— Secret Trust — Lex Rei Sit^. See Lex rei sitae, 1. 10.— Property. Real and Personal,— Im- movable.? BY Destination — Movables Incorporated with Freehold — Sever- >N-CE from Realty— Contract— Reso- lutory Condition — Conditional Sale — Hypothecary Creditor — Unpaid Vendor— O. C. Arts. 379, 2017, 2083, 20S5, 2089. Sai Contract 30. 20.— Construction of — Trade Fixtures- Chattels — Tools and Machinery of a " Going Concern " — Constructive Annexation. See Immovable Property, 2. 21.— Implied Covenant — Married Woman — Disclaimer. See Deed, 11. 22. — Obligation to Indemnify Grantor Against Mortgage — Conveyance Sub- ject to Mortgage — Assignment of Right of Action — Principal and Surety — Implied Covenant. See Action, IG. 23. — Title to Land — Sheriff's Sale — Deed — Action to Vacate — Petition — Exposure to Eviction — Actio Con- dictio Indebiti — Refund of Price Paid — Substitution not yet Open — Prior Incumbrance — Arts. TC). 710, 714, 715, C. C. P.— Arts. 1511, 1535, 1586, 1591, 2060. C. C. Sec Substitution, 3. MOVABLES. 1.— Vendor and Purchaser — Unpaid Ven- dor — Conditional Sale — Suspensive Condition — Movables Incorporated "WITH Freehold — Immovables by Des- tination — Hypothecary Charges — Arts. 375 et aeq., C. C. A suspensive condition in an agreement for the sale of movables, whereby, until the whole of the price shall have been paid, the property iu the thing sold is reserved to the vendor is a valid condition. In order to give movable property the character of immovables by destination, it is ue('essary that the person incorporating the movables with the immovable should be. at the time, owner both of the mov- ables and of the real property with which they are so incorporated. Lalni v. Be'aud (20 Can. S. C. R. 419). and fUiatrault v. Ooldie (Q. R. 2 Q. B. 3(58), distinguished. Decision of the Court of Queen's Bench afBrmed, Girouard, J., dissenting. L« Bamquc d'Hochelaga v. The JVaterous Engine ll'orfcs Co xxvil., 4(K; 2. — Property, Real and Personal — Im- movables BY Destination — Movables Incorporated with Freehold — Sever- ance FROM Realty — Contract — Reso- lutory Condition — Conditional Sale — Hypothecary Creditor — Unpaid Vendor— O. C. Arts. 379, 2017, 2083, 2085, 2089. See Contract, 30. MUNICIPAL CORPORATION. 1. — Local Improvement — Notice to Rate- payers — By-law — Variance from No- tice— R. S. O. (1S87) c. 184, s. 022. On a proposal for the construction of a stone road-way as- a local improvement on one of its streets, the Corporation of the City of Toronto notified the owners of pro- perty to be r fleeted thereby, as required by the Municipal Act, R. S. O. (1887). c. 184, s. 022, s.-s. 2, of the intention to construct such local improvement, describing it as .-i " macadam roadway " and that payment of the cost should be assessed specially on the properties benefited payable " in five and twenty " equal annual payments. In the by- law passed for its construction the work was described as " a macadam and granite set roadway and stone curbing," and the cost was to be paid in five years. On a;i application to quash the by-law it was not shown that the work as described in the by-law was identical with that mentioned in the notice. Held, affirming the decision of the Court of Appeal for Ontario (19 Ont. App. R. 713), that the by-law was invalid on account of the variances from the notice, and that it had been properly quashed. The City of Toronto v. Gillegpie, lat May,. 1893. 158 MUNICIPAL CORPORATION. 2. — By-law — Street Railway — Construc- tion Beyond Limits of Municipality — Validating Act — Construction of. The lorporatiou of the Town of Port Ar- thur passed a by-law entitled " a by-law to raise the sum of !?7r>,0(HI for street railway IHirposes, and to authorize the issue of de- l>enturcs therefor, which recitetl, inter alia, that it was necessary to raise said sum for the purpose of buildinp. etc. a street rail- way ooiinecting the Municipality of Neebing with the business centre of I'ort Arthur. At th;\t time a inuiiicipality was not author- ized to cunstruct a street railway beyoud its territorial limits. The by-law was voted upon by the ratepayers and passed, but none was submitted ordering the construction of the work. Subseiiuently an Act was passed by the Legislature of Ontario in respect to the said by-law, which enacted that the same " is hereby confirmed and declared to be valid, legal and binding on the town * * ♦ and for all purposes, etc., relating to or affecting the said by-law, and any and all amendments of the Municipal Act ♦ * * * shall be deemed and taken as having been complied with." Held, reversing the decision o< l.'^ Court of Appeal, Taschereau. J., dis > uting. that the said Act did not dispense \\ M\ the re- quirements of ss. 5(>4 and oO") of the Muni- cipal Act requiring a by-law providing for construction of the niihvay to be passed, but only confirmed the one that was passed as a money by-law. Held, also, that an erroneous recital in the preamble to the Act that the Town Coun- <-il had passed a construction by-law had no effect on the question to be decided. Diryer v. Toicn of Port Arthur . . xxii., --11 3.— Mu^^c:PAL Corporation — Ownership op Roads and Streets — Rights of Pri- vate Property Owners — Ownership ad Medium Filum Vi^ — R. S. X. S. [5 ser.] c. 45—50 Vic. c. 23 (N. S.). That the ownership of lands adjoining a highway extends ad medium filum. vice is a presumption of law only which may be re- butted, but the presumption will arise i though the lands are described in a convey- ance "as bounded by or on the highway. Gwynne, .T., contra. In construing en Act of Parliament the title may be referred to in order to ascertain the intention of the legislature. The Act of the Nova Scotia Legislature. 50 Vic. c. 23. vesting the title to highways and the lands over which the same pass in the Crown for a public highway, does not apply to the City of Halifax. The Charter of the Nova Scotia Telephone Company authorizing the construction ami working of lines of telephone along the sidt s of, and across and under, any public higli- way or street of the City of Halifax, pro- vided that in working such lines the com- pany should not cut down nor mutilate any trees. Held, Taschereau and Gwynne, J.T., dis- senting, that the owner of private property in the city could maintain an iction for ilamages against the company for injuring ornamental shade trees on the street in front of his property while constructing or work- ing the telephone line, there being nothing in the evidence to rebut the presumption of ownership ad medium, or to show that the street had ben laid out under a statute of the province or dedicated to the public before the passing of any exi)ropriation Act. O'Connor \. K. S. Telephone Co. . . xxii., 27t) 4. — Ontario Municipal Act — Bridges — — Width of Stream — R. S. O. (1887) c. 184. ss. 532, 534. By the Ontario Municipal Act, R. S. O. [1887] c. 184, s. 532. the council of any county has " exclusive jurisdiction over all bridges crossing streams or rivers over one hundred feet in width within the limits of any incorporated village in the county and connecting any main highway leading through the coiuity," and by s. 534. the County Council is obliged to erect and main- tain bridges on rivers and streams of said width. On rivers or streams one hundred feot or less in width the bridges are under the jurisdiction of the respective villages through which the streams flow. Held, reversing the decision of the Court of ApiM'al. that the width of a river at the level attained after heavy rain, and freshets each year should be taken into consideration in determining the liability under the Act; the width at ordinary high-water mark is not the test of such liability. The Tillage of Xctc Hamburg v. The County of ^Yaterloersons as well as W. He kept no clerk or n>;ent in charge of such merchandise, but when sales were made a delivery order was given upon which the warehouse keeper acted. Once a week a commercial travel- ler for W., residing in Ix>ndon. attended there to take orders for poods, including the kind so stored, but the sales of stock in the warehouse were not contined to transactions entered in London. Helil, afHrming the decision of the Court of Appeal, that W. did not carry on busi- ness in London within the meaning of the said section, and his merchandise in the warehouse was not liable to be assessed at London. City of Limdon v. Watt . . . . xxii., 300 G. — By-laws — Power to License, Regu- late AND Govern Trades— Prohibi- tion OF Trading in Certain Streets- Ontario Municipal Act, R. S. O. (1887) c. 184— Repugnancy. The power given to Municipal Councils by sec. 49.1 (3) of the Ontario Municipal Act, to pass l)y-Iaws for licensing, regulating and governing hawkers, etc., in their respective trades does not authorize the Toronto City Council to prohibit the carrying on of these trades in certain streets. Fournier and Tas- chereau, JJ., dissenting. A by-law of the City Council provided that no license should be required f i< m any pedler of fish, farm and garden produce, fruit and coal oil, or other small articles that could be carried in the hand or in a small basket. Held, affirming the decision of the Court of Appeal, Gwynne and Sedgewick, .IJ., dissenting, that a subsequent bylaw fix- ing the amount of a license l\v for »isn- hawkers and pedlers was not void for re- pugnancy. Virgo v. The City of Toronto . . xxii., 447 7. — City op A'ancouver — Right to Extend Streets to Deep Water — Crossing of Railway— Jus Publicum — Implied Ex- tinction BY Statute — Injunction — 44 Vic. c. 1. R. IS — Powers op Canadian Pacific Railway Company to take AND usp Foreshore — 49 Vic. c. 32, (B. C). By 44 Vic. p. 1, s. 18. the Canadian Pa- cific Railway Comoan,T " have the right to take, use and hold the bench and land be- low high water mark, in any stream, lake, navigable water, gulf or sea, in so far as the same shall b«' vested in the Crown, au Vic. <•. 32. s. 213 (B. C). vests in the city all streets, highways, etc., and in 1892 the city began the construction of works extending from the foot of (Jore Avenue with the avowed object to cross the railroad track at a level and obtain access to the harbour at dee]) water. On application by the Rail- way Company for an injunction to restrain the City Corporation from proceeding with their work of construction, and crossing the railway; Held:, affirming the judgment of the court l)elow, that as the foreshore forms part of the land recjuired Ijy the railway company, as shown on the plan deposited in the office of the Minister of Railways, the jus publicum to get access to and from the water at tlie foot of (iore Avenue is subordinate to the rights given to the railway company by the statute (44 Vic. e. 1. s. 18 a), on the said foreshore, and therefore the injunction was properly granted. Tlw City of Vaiwoui-er v. The Canadian Pacifio Railicay Co xxiii., 1 8. — Public Street — Encroachment on- Building " upon " OP. " CLOSE TO " THE Line— Charter op Halifax, ss. 4.54, 455 — Petition to Remove Obstruc- tion — .Judgment on — Variance. By s. 54 of the Charter of the City of Halifax any person intending to erect a building upon or close to the line of the street must first cause such line to be located b.v the City Engineer and obtain a certificate of the location: and if a building is erected upon or close to the lii e without such cer- tificate having been obtained the Suprem" Court, or a .Tndjre thereof, may. on petition of the Recorder, cause it to be removed. A petition was presented to a Judge, under this section, asking for the removal of a porch built by R. to his house on one of the streets of the city, which, the petition al- leged, was upon the line of the street. A i6o MUNICIPAL CORPORATION. porch had been erected on the same site in iSilu and n-nioved in 1««">; while it stood the portion of the street outside of it. nnd since Its reuioval the lortion up to the house, lind been used as a public sidewalk; on the hesirinj,' of tlie ixnition the original line of the street could not be proved, l>ut the Judge held that it was close t.) the line so used by the public and ordered its re- moval. The Supreme Court of Nova Scotia reversed his decision. Un ai)peal to the Supreme Court of Can- ada: Hil<}, thit the evidence would have justi- fied the .Judge in holding that the porch was upon the line^ but havmg held that it was close to the 'line while the petition only called for its removal as upon it, his order was properly reversed. City of Halifax \. Reeves . . . . xxiii., 340 9. — Privatb Road — ItiOHT of Passage — Government Moneys in Aid of — R. S. Q. Arts. ITlfi. 1717 and 1718— Arts. 407 AND 1581) C. C. The proprietor of a piece of land in the parish of Charlesbourg claimed to have him- self declared proprietor of a heritage purged from a servitude being a right of passage d limed by his neighbour, the defendant. The road was partly built with the aid of riovernment and municipal moneys, but no indemnity was ever paid to the plaintiff, and the privilege of passing on said private road was granted by notarial agreement by the plaintiff to certain parties other than the defendant. Held, reversing the judgment of the Court of Queen's Bench for Lower Canada, (ap- peal side), that the mere granting and spend- ing of a sum of money by the Government and the municipality did not make such pri- vate road a colonization road within the meaning of art. 1718 R. S. Q. Chamberland v. Fortier . . . . xxiii., 371 10. — Drainage — Action fob Damages — Reference — Drainage Trials Act, 54 Vic. c. 51 — Powers of Referee^ — Negugencb — Liability op Munici- pality. Upon reference of an action to a referee under The Drainage Trials Act of Ontario (."4 Vic. c. 51). whether under s. 11. or s. 19, the referee has full power to deal with the case as he thinks fit. and to make, of h'F own motion, all necessary amendments '„o enable him to decide according to the '-ery right and justice of the case, and ma'^ con- vert the claim for damages under said s. 11 into a claim for damages arising under sec, T)!*! of the Municipal Act. In a diuinage scheme for a single township the work may be carried into a lower adjoining munici- pality for the purpose of finding an outlet without any i)etition from the owners of land in such adjoining townshii» to lie affec- ted thereby, and such owners m.-iy be as- sessed for benefit. ,Stei)h4-n v. McGiUhray (18 Out. App. R. 51(ii, and Sisiiuuri v. Horcheater (14 O. R. 21>4). distinguished. One whose lands in the adjoining muni- cipality have been damaged cannot, after the by-law has been appealed against and confirined and the lands assessed for bene- fit, contend before the referee to whom his action for such injury has been referred under the Drainage Trials Act, that he was not liable to such assessment, the matter having been concluded by the confirmation, of the by-law. The referee h:is no jurisdic- tion to adjudicate as to the propriety of the route selected by the engineer an*! adopted by by-law, the only remedy, if any, being by appeal against the project proposed by the by-law. A municipality constructing a drain can- not let water loose just inside or anywhere within an adjoining municipality without being lial)le for injury caused thereby to lands in such adjoining municipality. Where a scheme for drainage work to be constructed under a valid by-law proves defective and the vrork has not been skil- fully and properly performed, the munici- pality constructing it are not liable to per- sons whose lands are damaged in conse- (luence of such defects and improper con- struction, as tort feasors, but are liable under see. 591 Muncipal Act, for damage done In construction of the work or consequent thereto. A tenant of land may recover damage suf- fered during his occupation from construc- tion of drainage work, his rights resting upon the same foundation as those of a free- holder. Township of Ellice v. Hilea. Totcnship of Elliee v. Crooks . . xxiii., 429 11. — B f-LAW — Water StippLT — Rates to Consumers — Discrimination. T. nder the authority given to municipal corporations to fix the rate or rent to be paid by each owner or occupant of a build- ing, etc.. supplied by the corporation with water, the rates imposed must bo uniform. Patterson. ,T., dissenting. A by-law of the City of Toronto excepting Government in.stitutions from the benefit MUNICIPAL CUKPORATION. i6i of a discount on ratos paid within i tvrtain time is invalid as rt'u'ards suidi i-xeoption. Patterson, J., dissenting. Attot'My-Oeniral of Canada v. City of Torovto xxiii., 514 12. — Quebec License Laws— 55 & 50 Vic. c, 11, s. 2 annual value of the pre- mises, and sub-see. (g) providing for a tax on persons, among others, of the occupation of the petitioner. At the end of sub-see. (g) is the followini-': " the whole, however, sub- ject to the provisions of the Quebec License Act." The Quebec License Act (art. 927 R. S. Q.), limits the powers of taxation for any municipal council of a city to $200 upon holders of licenses. Held, attirming the judgment of the court Itelow. that the power granted by .55 iV: .5<> Vic. c. 51, to impose the several taxes was independent and cumulative^ and as the spe- cial tax did not exceed the sum of !f200, the by-law was intra vires, the proviso at the end of sub-section ig) not applying to the whole section. Taschereau and Gwynne, JJ., dissenting. Webster v. City of Sherbrooke . . xxiv., 268 13. — Ditches and Watercourses Act, K. S. O. (18S7) c. 220— Requisition for Drain — Owner of Land — Meaning of Term "Owner." By sec. G (n) of the Ditches and Water- courses Act of Ont. (R. S. O. [1S87] c. 220), any owner of land to be benefited thereby may file with the clerk of a municipality a requisition for a drain if he has obtained " the assent in writing thereto of (including himself) a majority of the owners affected or interested." Held, affirming the judgment of the Court of Appeal, that " owner " in this section S.C.D.— 11 ' ■ ^'! docs not mean the aHsensed owner: that the holder of any real or substaiiliiil interest i-; an "owner affected or interest<'d;" and that a nu're tenant at will can neither file thi- requisition nor be inchn^t'd in the majority re(iuired. Qu(rre—\t the person filing the requisition is not an owner within the meaning of that term are the proceedings valid if there is a majority without himV Toirnshiit of Osyoodc v. York . . xxiv., 282 14. — Negligence — Repair or Street — Accumulation of Ice - ■ Defective Sidewalk. D. brought an action for damages against the Corporation of the Town of C. for in- juries sustained by falling on a sidewalk where ice had formed and been allowed to remain for a length of time. Held, Gywnne, J., dissenting, that as the evidence at the trial of the action showed that the sidewalk, cither from improper con- struction or from age and long use, ha.— CoKSTRlCTION OF St>TUTK — By-LAW— KxcLuaivK UioHT (!RAXTf;i> PY — Sta- TITB CONFIR.MINO — HxTKNPION OF Privileqe — 1."» Vic. c. 71). s. -"i (Quk.)— C. S. ('. c. Co. Ill ISSl a immicipal li.v-linv of St. Ilya- ; ciiitlit' >:raiit«.'(l to a comiiaiiy iiu-orporatrtl '• uiiilt'r a >.'<'iieral Act (C. S. f. c. .'as iu said city, and in ISSL' said eonipany olitained a sjk?- <'ial Act of incorporation. (4.1 \ . c. 7!>. of wliicli provided tliat " all tlie powers and privile;ri's .-unferred upon the said eonipany, as oit'anized under tlu' said jreneral Act, cither Ity the terms of the Act itself or liy resfilution. liy-law or afrretMnent of th:' r;aid ("ity of St. Ilyacinthc, are lierel)y reaftirmed and conHrmed to the company as Diiorporati'd under the present Act, in- : ,'alvanic or other artificial liglit. and to i mannfacture, store and sell heat and motive ! power derived eitlier from pas or other- ; wise, and to convey the same by gas or otlierwise ♦ ♦ * with the same privilege, and sul)ject to the same liabilities, as are '. aiiplii-alile to the mannfacture, use and dis- j posal of illuminating gas under the provi- j sions of tliis Act." j Held, atflrming the decision of the Court j of Queen's Bench, that the above section ; y the same party, his heirs or assigns, is not restricted to interests de- rived uniler written instruments susceptib e of registration, but applies to all interests. If tlie owner of land gives iH-rmission to the municipality to construct a drain through it, the municipality, after the work has been done, has an interest in the land to which the registry laws apidy whether the agree- nu'iit conveys the property, creates an ease- ment or is a mere license which has become irrevocable, and if there has been no by- law authorizing the land to be taken such interest is, under th*' said section, invalid as against a registered deed executed by an assignee of the owner, a purchaser for value without notice. Rosa v. llunta- (7 Can. S. C. R. 285)}, distinguished. The City of Toronto v. Jarvia . . xxv., 237 22.— Public Highway— Registered Plan — Dedications — User — Statute, Con- struction OF — Retrospective Statute —40 Vic. s. IS (O.I— Estoppel The right vested in a municipal corporation by 4(! Vic. c. IS (O.), to convert into a public highway a road laid out by a private i)er- soii on his property, can only be exercised in respect to private roads, to the use of which the owners of proiierty abutting there- on were entitled. Gooderham et al. v. The City of Toronto, xxv., 24(1 23.— Special Tax — Ex Post Facto Legis- L.VT10N— Warranty. Assessment rolls were made by the City of Montreal under 27 & 28 Vic. c. GO and 29 and 30 Vic. c. 50, apportioning the cost of certain local improvements on lands bene- fited thereby. One of the rolls was set aside as null and the other was lost. The cor- poration obtained iwwer from the legislature by two special Acts to make new rolls, but in the meantime the property in question had been sold and conveyed by a deed with war- ranty containing a declaration that all taxes. 1 64 MUNICIPAL CORPORATION. both special and' general, had been paid. New rolls were subsequently made assessing the lands for the same improvements and the purchaser paid the taxes and brought action against the vendor to recover the amounts so paid. Held, aflBrming the judgments in the courts below, Gwynne, J., dissenting, that as two taxes could not both exist for the same pur- pose at the same time, and the rolls made after the sale were therefore the only rolls in force, no taxes for the local improvements had been legally imposed till after the ven- dor had become owner of the lands, and that the warrant J- and declaration by the ven- dor did not oblige her to reimbyrse the pur- chaser for the payment of the special taxes apportioned against the lands subsequent to the sale. La Bangue Ville Marie v. Mot-rison, xxv., 289 24.— ^Municipal Br-L,Aw— Special Assess- jiENTS — Drainage — Powers of Council AS TO Additional Necbjssart Works — —Ultra Vires Resolutions— Executed Contract. Where a municipal by-law authorized the construction of a drain benefiting lands in an adjoining municipality which was to i>ass under a railway where it was apparent that a culvert to carry off the water brought down by the drain and prevent the flooding of adjacent lands would be an absolute I necessity, the construction of such culvert i was a matter within the provisions of sec. 573 of the Municipal Act (R. S. O. [1887] c. 184), and a new by-law authorizing it was not necessary. Taschereau, J.^ dis- senting. The Canadian Pa^ciflc Raihce apportioned between the parties to the agreement. In connection with the work a roadway had to be made, running east of King Street to the limit of the subway the street being lowered in front of the company's lands, which were to»- some ex- tent, cut off from abutting as before on cer- tain streets; a retaining wall was also found necessary. By the agreement the company abandoned ali claims to damages fop injury to its lands by construction of the works. The city passed a by-law assessing on the company its portion of the cost of the road- way as a local improvement, the greater part of the property so assessed being on the approach to the subway. Held, that to the extent to which the lands of the company were cut off from abutting on the street as before the work was an injury, and not a benefit to such lands and therefore not within the clauses of the ^Municipal Act as to local improvements; that as to the length of the retaining wall the work was necpssarj- for the construc- tion of the subway and not assessable; and that the greater part of the work, whether K)r not absolutely necessary for the construc- tion of the subway, was done by the cor- poration under the advice of its engineer as the best mode of constructing a public work in the interest of the public, and not as a local improvement. Held, further, that as the by-law had to be quashed as to three-fourths of the work affected, it could not be maintained as to the residue which might have been assessable as a local improvement if it had not been coupled with work not so assessable. Notice to a property owner of assessment for local improvements under sec. (i22 of the ^lunicijial Act cannot be proved by an afflflnvit that a notice in the usual form was mailed to the owner: the court must, upon view of the notice itself, decide whether or not it complied with the requirements of the Act. In the result the judgment of the Court of Appeal (28 Ont. App. R. 250), was affirmed. City of Toronto v. Canadian Pacific Railicay Co xxvi., 682 29. — Negligence — Snow and Ice on Side- walks — By-law — Construction op Statute— 55 Vic. c. 42, s. 531 — 57 Vic. c. 50, s. 13— Finding of Jury— Gross Negligence. A by-law of the City of Kingston requires frontagers to remove snow from the side- walks. The effect of its being complied with was to allow the snow to remain on the crossings which therefore became Higher than the sidewalks, and when pressed down by traffic an incline more or less steep was formed at the ends of the crossings. A young lady slipped and fell on one of these inclines, and being injured brought an ac- tion of damages against the city and ob- tained a verdict. The Municipal Act of On- tario makes a corporation, if guilty of gross negligence, liable for accidents resulting from snow and ice on sidewalks; notice of action in such case must be given, but may be dispensed with on the trial if the court is of opinion that there was reasonable ex- cuse for the want of it, and that the corpor- ation has not been prejudiced in its defence. Held, affirming the decision of the Court of Appeal, Gwynne, J., dissenting, that there was sufficient evidence to justify the jury in finding that the corporation had not fulfilled its statutory obligation to keep the streets and sidewalks in repair; Com- nail V. Derochie (24 Can. S. C. R. 301), fol- lowed; that it was no excuse that the differ- ence in level between the sidewalk and cross- ing was due to observance of the by-law; that a crossing may be regarded as part of the adjoining sidewalk for the purpose of the Act; that "gross negligence" in the Act means very great negligence, of which the jurj- found the corporation guilty; and that an appellate court would not interfere with the discretion of the trial judge in dis- pensing with notice of action. The City of Kingston v. Drennan, xxvii., 46 30.— Appeal— Jurisdiction — Expropriation of Lands — Assessments — Loc.\l Im- provements — Future Rights — Title TO Lands and Tenements— R. S. C. c. 135. s. 29 (6); 56 Vic. c. 29, s. 1 (D.). A by-law wa's passed for the widening of i6'j MUNICIPAL CORPORATION. ;i iKirtion of a street up to a certain houKi- lofTited line_ and for the necessary exi)r(i- priations therefor. Assessments for the ex- propriations for certain years having heeu made whereby proprieto-s of a part of the street were relieved from contrihuting any proportion to the cost, thereby increasing the burden of assessment on the properties actually assessed, the owners of these pro- perties brought an action to set aside the assessments. The Court of Queen's Bench affirmed a judgment dismissing the action. On an application for leave to appeal, Held, that as the effect of the judgment sought to be appealed from would be to increase the burden of assessment not only for the expropriations then made, but also for expropriations which would have to be made in the future, the judgment was one from which an appeal would lie, the matter in controversy coming within the meaning of the words "and other matters or things where the rights in future might be bound," contained in sub-see. (6), of sec. 29 Su- preme and Exchequer Courts Act, as amended by iJG Vic. c. 29, s. 1. Stevenson v. The City of Montreal, xxvii.. 187 31.— Waterworks— Extension of Works- Repairs — By-law — Resolution — Agree- ment IN Writing — Injunction — High- ways AND Streets— R. S. Q. Art. 4485 —Art. 1033a C. C. P. By a resolution of the Council of the Town of Chicoutinil, on 9th OctoluT, 1890. based upon an application jireviously made by him, Ij. obtained p<'rmission to construct waterworks in the town and lay the neces- sary pipes in the streets wherever he thought proper, taking his water supply from the River Chicoutimi at whatever point might be convenient for his purposes, upon condition that the works should be c(nnmenced within a certain time and completed in the year 1892. He constructed a system of water- works and had it in operation within the time prescribed, but the system proving in- sufficient a company was formed in 1S95 Milder the provisions of R. S. Q., art. 4485, and given authority by by-law to furnish a proper water sujiply to the town, where- upon L. attempted to perfect his system, to alter the position of the pipes, to con- struct a reservoir and to make new excava- tions in the streets for these purposes with- out receiving any further authority from the council. Hild, reversing the judgment appealed from, Gwyune. J., dissenting, that thtse were not merely necessary repairs but n.'w works, actually part of the system reijuire i to be completed during the 3-ear 1892, and which after that date could not be pro- ceeded with except upon further permission obtained in the usual manner from the council of the town. Held, further, that the resolution and the application upon which it was founded t-nn- stitute 1 a " contract in writing "' and a " written agreement " within the meaning of art. 103oa of the Code of Civil Proce- dure of Lower Canad.i, and violation of its conditions was a sufficient ground for in- junction to restrain the construction of the new wivrks. La Tille de ChicQutimi v. Lcgarc, xxvli., SJ ) 32.— Assessment and Taxation — Exemp- tions — Real 1'roperty — Chattels — Fixtures — Gas 1'ipes — Highway — Title to 1'ortion — Legislative Grant OF Soil— 11 Vic. c. 14 (Can.)— 55 Vic. c. 48 (Ont.) — " Ontario Assessment Act, 1892." Gas pipes which are the property of a pri- vate corporation laid under the highways of a city are real estate within the meaning of the " Ontario Assessment Act of 1892 " and liable to assessment as such, as the/ do not fall with'Ti the exemptions mentioned in the sixth section of that Act. The enactment effected by the first and thirteenth clauses of the company's Act of incorporation (11 Vic. c. 14), operated as a legislative grant to the company of so much of the land of the streets, so.uares and public places of the city as nii^ht be found necessary to be taken and held for the purposes of the company and fur the convenient use of the gas works, and when the openings where pipes may be laid :ire made at the place designated by the City Surveyor, as provided in said charter, and they are placed there, the soil they occupy is land taken and held by tl e company un- der the provisions of the said Act of im o:- poration. The proper method of assessment of the pines so laitl and fixed in the soil of th" streets, squares and public places in a city ought to be separately in the respective wards of the city in which they may 1 e actually laid, as in the case of real estate. The Consumern' (las Co. v. City of Toront->. xxvii.. 45.1 MUNICIPAL CORPORATION. 1:37 33.— Drainage— Assessment — Inter-muni- cipal Obligations as to Initiation and Contributions — By-law — Ontario Drainage Act of 1873—30 Vic. c. 38 (0.)-3G Vic. c. 31) (O.)— K. S. O. (18S7) c. 184 — Ontario Consolidated Muni- cipal Act of 18U2— 55 Vic. c. 42 (O.). The provision of the Ontario Muuiciral Act (55 Vic. c. 42, s. 590), that if a drain constnicted in one municipality is used iis an outlet or will provide jin outlet for tlK- water of lands of another the lands in the latter so benefited may be assessed for their proportion of the cost, applies only to dra ns properly so called and does not include ori- ginal watercourses which have been deei)- ened or enlarged. If a municipality constructing such a drain has passed a by-law puri)orting to assess lands in an adjoining municipality for contribution to the cost a person whose lauds might appear to be affected thereby, or by any by-law of the adjoining nmnici- pality proposing to levy contributions to- ward the cost of such works, would be en- titled to have such other municipality re- strained from passing a contributory by-law, or taking any steps towards that end. by an action brought before the passing of such contributory by-law. Broughton v. Ony and Elma . . xxvii., 495 34.— :Master and Servant— II iuing of Personal Services — Appoint:^R\-t of Officers — Summary Dismissal — Libel- lous Resolution— Statute, Construc- tion of — Difference in Text of Eng- lish AND French Version?— .j2 Vic. c. 79, s. 79 '.(i.t- •■ A Discretion '* -" At Pleasure." The Charter of the City of Montreal, 1SS9 (52 Vie. c. 79 1, section 79 gives pov^er to the City Council to appoint and remove such officers as it may deem necessnrj- to <-any inti> execution the powers vested in it by the charter, the French version of the Act stating that such powers may be exercised " a sa discretion," while the Englsh version has the words " nt its pleagure." Held, that notwithstanding thi' apparent difference between the two versions of the statute, it must lu' interpreti'd as one and the same enactment and the City Council ^.as thereby given full and unlimited power, in cases wheri' tlie engagement has been made indefinitely as to duration, to remove officers summarily and withont previous notice, ujion payment only of the amount of salary accrued to such olficer up to the date of such dismissal. Davis V. tity uf iiuntical . . . . xxvii., 539 35. — Public Marxet— Nuisance— LicENti.vr; Traders and Hucksters — Obstrucf- ing Streets and Sidev/alks — Loss of Kent — Da.mages. The Court of Queen's Bench, reversing the decision of the Superior Court, District of Montreal, held that the City of Montreal was not responsible for injury to the owner of property in the vicinity of a public market by reason of the street being encumbered 01 market days, provided reasonable efforts were made by the civic officials to prevent crowds from becoming stiitionary or pre- venting free access and egress to or from tlie premises (Q. R. 7 Q. B. 1). On appeal to the Supreme Court of Canada the judgment of the Court of Que 's Bench was affirmed. Davidson et ah v. The City o 'ontrca\ Oth May, 1898 xxviii., 421 30. — Assessment— ExTPwA. Cost of Works- Drainage— R. S. O. (1887) c. 174 — li» Vic. c. 18 (Ont.) — By-laws— Uepairs— Misapplication of Funds — Negligence — Damages — Reassessment — Lnter- MUNiciPAL Works. Where a sum ampiy sufficient to coui- plete drainage works, as designed and an- thorizetl bj- the by-law for the complete construction of the drain, has been paid to the municipality which undertook the works, to be applied towards their construction, and was -misapijlied in a manner and for a puriKJse not authorized by their by-law, such municipality cannot afterwards, by another by-law. levy or cause to be levied from the contriluitors of the funds so paid any further sum to replace the amount so misapplied or wasted. Tln> Toirnship of f?omhya v. The Toicnshitt of Chatham xxviiu, 1 37. — Highway — Encroachment upon Street — Negligence — Nuisance — Ob- struction OF Show-window — Muni- cipal Officers — Action for Damages — M1SFEA.SANCE During Prior Ov.-nership — Non-feasance— Statutabie Duty. An action does not lie against a municipal oorjioration for damages in respect of mers! non-feasance, unless there has been a breach of some, duty imposed by law upon the <'or- ixiration. The Municii,aiitu of Pirtou v. Oel- dert (18931 A. C. 524. and Th" Municipal Conn. ciJ of Siidncj/ v. Rourkc (1895) A. C. 4.33, fol- 'oAved. 1 68 MUNICIPAL CORPORATION. An action does not lie against a muni- cipal corporation by the proprietor of lands for damages in respect thereof, through the mistake or misfeasance of the corporation or its officers, alleged to have occurred prior to the acquisition of his title thereto. A municipal corporation is not civilly re- sponsible for acts of its officers or servants other than those done within the scope of their authority as such. City of Montreal v. Mulcair et al., xxviii., 458 38. — High-ways — Old Trails in Rupert's Land — Substituted Roadway — Neces- sary Way— R. S. C. c 50, s. 1U8— Reser- vation in Crown Grant — Dedication— User — Estoppel — Assessment op Lands Claimed as Highway — Evid- ence. The user of old travelled roads or trails over the waste lands of the Crown in the North- West Territories of Canada, prior to the Dominion Government Survey thereof does not give rise to a presumption that ihe lands over which they passed were dedi- cated as public highways. The lands over which an old travelled trail had formerly passed, leading to the Hudson Bay Trading Post at Edmonton, N. W. T., had been enclosed by the owner, divided into towns lots and was for several years assessed and taxed as private pro- perty by the municipality, and a new street substituted therefor as shewn upon regis- tered plans of sub-division and laid out upon the ground had been adopted ns a boundary in the descriptions of lands abutting there- on in the grants l>y letters ratent from the Crown. Held, reversing the decision of the Su- preme Court of the North-West Territories that under the circumstances there could be no presumption of dedication of the lands over wliicli the old trial passed as a public highway, either by the Crown or by the priva'te owner, notwithstanding long user of the same by settlers in that district prior to the Dominion Government Survey of the Edmonton Settlement. neiminck v. Town of Edmontou, xxviii., 501 39.— By-law— Construction op Statute— R. S. Q. Art. 4.")29 — Approval of Electors. rnder the provisions of Art. 4."»29 R. S. Q.^ money By-laws for loans by town coriiora- tions require the approval both in number and in value of the municipal electors who are proprietors of real estate within the municipality, as ascertained from the municipal rolls. The Town of Chicoutimi v. Price, 12th Oct., 1898 xxix. 39a.— Municipal Corporation — By-law — Railway Aid — Subscription for Shares — Debentures — Division of County — Erection of New Municipali- ties — Assessment — Sale of Shares at Discount — Action en Reddition de CoMPTEs — Trustee — Debtor and Credi- tor—Arts. 78, 164, 939 Mun. Code, Que.— 24 Vic. c. 30 (Que.)— 39 Vic. c. 50, (Que.). An action en reddition de comptea does not lie against a trustee invested with the ad- ministration of a fund, until such adminis- tration is complete and terminated. The relation existing between a County Corporation under the provisions of the Municipal Code of the Province of Quebec, and the local nmnicii)alities of which it is comi>osed, in relation to money by-laws, is not that of agent or trustee, but the County Corporation is a creditor, and the several local municipalities are its debtors for the amount of the taxes to be assessed upon their ratepayers respectively. Where local municipalities have been de- tached from ai county and erected into separate corporations they remain in the same position, in regard to subsisting money by-laws, as they were before the division and have no further rights or obligations than if they had never been separated there- from, and they cannot either conjointly or individually institute actions against such County Cori)oration to compel the rendering of special accounts of the administration of funds in which they have an interest, their proper method of securing statements being through the facilities affoided by article 1(34 and other provisions of the Muni- cipal Code. The Toicnf.hip of Ascott v. The County of Compton; The Village of LcnnoxrilJe v. The County of Compton, 14th Dec, 1898 . . xxix. 396.— Expropriation — Widening Streets — j ExcEssfE Valuatidn — Assessment — j Setting Aside Roll — .~>2 Vic. c. 79, s. 228 (Que.) A piece of land forming part of a lot num- , bered ,32. was l)enefite(l by the widening of St. Nicolas Street, in Montreal, on which it fronted. The expropriation commissioneis, ; in error, supposed that the whole lot ^'2. (in- I eluding the river front in rear owned by an- other person). ,vas liable to b-> charged for NAVIGABLE WATERS. 169 the improvement, and placed it on the as- sessment roll providing for the expense of enlarging the street, basing the amount charged against it upon the valuation of the whole lot. Afterwards, becoming aware of their mistake, instead of preparing a new loll to equalize the assessments on the lands benetited, they imposed the whole sum thus assessed upon the part of lot 32 fronting on St. Nicolas Street, and. in order to make it bear such an assessment, gave it an ex- cessive valuation. The Coui-t of Queen's Bench [Q. II. 7 Q. B. 214], reversed the decision of the Superior Court, District of Montreal, and held, that the expropriation commissioners had proceeded illegally in making the assessment thereby causing grave injustice to the owner of the land in question and annulled and set aside the assessment roll. On appeal to the Supreme Court of Can- ada, after hearing counsel for the appellant, and without calling upon counsel for the re- spondent, the court dismissed the appeal, and affirmed the judgment of the Court of Queen's Bench. City of 3Iovt)xal v. Ramsay, 21st Nov., 1898, xxix. 40.— Bt-law — Bonus — Conditions of — Con- struction OF Term in Condition. f^ee By-law, 1. 41.— By-law — Tax on Working Horse- Charter OF Street Railway Co.— Payment for Horses by. See Assessment, 4. 42.— Public Street— Dedication— Obstruc- tion — Right op Owner or Occupier to Compensation. See Dedication, 1. 43.— Action for Personal Injuries — Third Party Added as Defbxdanp — Admissibility of Evidence. See Evidence, 3. 44. — By-law — Drainage — Petition for Drain — Withdrawal of Name— Im- proper Construction — Repairs. See Drainage, 1. 4r». - • High School District — Townships Detached — By-law. Se*' Schools, 1. 40.— Rv-law— Petition to Anni-l- R. S. Q. .\rt. 4389— Right of Appeal— R. S. C. c. 13.^. s. 24 (g). See Appeal, 22. 47. — Sale of Liquor— Local Option— 53 Vic. c. 56, s. 18 (O.)— 54 '^'ic. c. 46, ^O.)- Powers of Local Legislature. See Constitutional Law, 7. 48. — Obstruction of Street — Accumula- tion of Snow — Street Railway. .See Negligence, 14. 49. — Construction op Drain — Action for Damage:s — Reference — Appeal from Referee's Report — Confirmation by Lapse of Time. See Practice, 17. 50. — Action of Warranty — Negligence — Obstruction of Street — Assessment of Damages — Questions op Fact. See Appeal, 44. 51.— Highway — Private Way — Widening Streets — Special Assessments — Res Judicata. See Res Judicata, 10. 52. — Municipal Regulations — Edits et Ordonnances^ L. C. See Servitude, 2. ! 53.— By-law — Widening Streets - I PRiATiON — Title to Lands. See Appeal, G2. EXPRO- 54. — Statute, Construction of — 55 Vic. c. 42. ss. 397, 404. 4G9, 473 (Ont.)— City Separated from County — Mainten- ance of Court House and Gaol— Care AND Maintenance op Prisoners. See Arbitration, 4. NAVIGABLE 'WATERS. i 1. — Constitutional Law — Title to Alveus j — Crown — Dedication op Public ! Lands — Presumption of Dedication — User — Obstruction to Navigation — j Public Nuisance — Balance of Conven- j ience. I The title to the soil in the beds of navi- j gable rivers is in the Crown in right of the Provinces, not in right of the Dominion. Dixon V. Snftsinger (23 V. C. C. P. 235), dis- cussed. By 23 Vic. c. 2. s. 35 (Can.), power was given to the Crown to dispose of and grant w.nter lots ii^ rivers and other nuvigable waters in Upper Canada, and the power to grant the soil carried with it the power to dedicate it to the puV)lic use. I70 NAVIGATION -NEGLIGEN'CE. The user of a bridfre over a navigable river for thirty-tive years is sulticieiit to raise a presuuiption of dedication. If a province before Confederation hp.d so dedicated tlie lied of a. navigable river for the i(un)oses of a bridge that it could not have objected to it as an obstruction to navigation the Crown as representing the I)oniinion. on assuming control of the navi- gation, was bound to permit the mainten- ance of the bridge. An obstruction to navigation cannot be justified on the ground that the pu" 'ic bene- fit to be derived from it outweighs the in- convenience it causes. It is a public nuisance though of very great public benefit and the obstruction of the slightest iwssiljle degree. The Queen v. Moss xxvi., 322 2.— Constitutional Law — Municipal. Cor- poration — Powers of Legislature — License — Monopoly — Highways and Ferries — Navigable Streams — By- laws AND Resolutions — Intermuni- cipal Ferry — Tolls— Disturbance of Licensee — North-west Territories Act. R. S. C. c. 50. ss. 13 and 24— B. N. A. Act (18G7) s. 92. s.s. 8. 10 and 1.->— Re%-. Ord. X. W. Ter. (1S88» c. 28— Ord. X. W. T. Xo. 7 OF 1891-92. s. 4— Companies. Club Associations and Partnerships. Ste Constitutional Law, 14. 3. — Canadian Waters— Property in Al- veus — Public Harbours — Erections in Navigable Waters — Interference WITH Xavigation— Rights of Fishing- Power to Grant — Riparian Pro- prietors—Great Lakes and Xavi- gable Rivers— Operation of Magna Charta — Provincial Legislation— R. S. O. (1887) c. 24, s. 47-.") Vic. c. 10. ss. r. to 13. 19 and 21 (O.)- R. S. Q. Arts. 1375 to 1378. See Constitutional Law, 17. NAVIGATION. 1. — Constitutional Law — Xavigable Waters — Title to Alveus — Crown — Dedication of Public Lands — Prl~umption of Dedication — User — Obstruction to Navigation — Public Xuisance— Balance of Convenience. .S're Constitutional Law, 15. 2. — Canadian Waters — Property in Alveus — Public Harbours — Erections IN Xavigable Waters— Interference with Xavigation — Right of Fishing- Power TO Grant — Riparian 1'r i- prietors — Great Lakes and Navigable Rivers — Operation of Magna Ch.vrta — Provincial Legislation— R. S. O. (1887) c. 24, s. 47—55 Vic. c. 10. ss. 5 to 13, 19 and 21 (O.)— R. S. Q. Arts. 1375 to 1378. Sec Constitutional Law, 17. 3. — Maritime Law — (.'ollision— Rules or the Road — Xarrow Channel— Xaviga- tion, Rules of — R. S. C. c. 79, s. 2. Arts. 15, H!, 18. 19. 21. 22 and 2*- •' Crossing " Ships — "Meeting"' Ships — " Passing " Ships— Breach of Rules — Presumption of Fault— Con rRiar- tory Xegligence — Moiety of Damagf*? -30 & 37 Vic. (Imp.) c. S.">. s. 17- Manceuvres in " Agony of Coll"sion." Sec Ships and Shipping, 2. NEGLIGENCE. 1. — Ix)ADiNG OF Steamer — Accident — Xeglect of I'sual Precaution — Liability of Employer. When two stevedores are independently engaged in loading the same steamer. an the horses; and tlint he did ni> more than any reasonable man would have done under the circu'.istances. Totni of Prcacott v. Conntll . . . . xxii., 147 3.— Passenger Vessel.— Use of Wharf— In- vitation TO Public — Accident in Using Wharf — Proximate Cause— Excessive Damages. A company owning a steamboat making weekly trips between Boston •and Halifax occupied a wharf in the latter city leased to their agent. For the purpose of getting to and from the steamer there was a plank sidewalk on one side part way down the wharf and persons using it usually turned at the end and passed to the middle of the wharf. Y. and his wife went to meet a passenger expected to arrive by the steamer between seven and eight o'clock one even- ing in November. They went down the plank sidewalk and instead of turning off at the end, there being no lights, and the uight dark, they <'ontinued straight down the wharf which was narrowed after some distance, and formed a jog, on reaching which Y.'s wife tripped and as her husV)and tried to catch her they both fell into the water. Forty-four days' aferwards Mrs. Y. died. In an action by Y. against the company to recover damages occasioned by the death of his wife it appeared that the deceased had not had regular and continuiil medical treatment after the accident and the doctors who gave evidence at the triiil differed as to whether or not the immersion was the proximate cause of her death. The jury when asked: Would the deceased have recovered, notwithstanding the accident, if she had had regular and continual attend- ance? replied, " very doubtful." A verdict was found for the plaintiff with $1,.">00 dam- age.s. which the Supreme Court of Nova Scotia set aside, and onlered a new trial. On appeal from that decision: Held, that Y. and his wife were lawfully upon the wharf at the time of the accident; that in view of the established practice they had a right to assume that they were invited by the company to go on the wharf and as- sist their friends in disembarking from the stennier; and that they had a right to ex- pee caught in the groove whereby he was in- jured. In an ac^'ion by the owner against the company it appeared that the rail, at the place where the accident occurreTi which L. had been travelling was some dis- tance from the station platforai, the train being longer than the platform, and L. fear- ing that the car would rot be brought up to the station, the tinie fcr stopping bar- ing nearlv e'ai'sed, got out of the end of the car. the distance to the ground from the- steps being about two feet and a half, and in so doing he fell and broke his leg which had to he amputated. The action was for $.5,n(Mt damages, alleging negligence «72 NEGLIGENXE. •and want of proper accommodation. The de- fence was contributory negligence. Upon the evidence the Superior Court whose judg- ment was affirmed by the Court of Queen's Bench, gave judgment in favour of L. for the whole amount. On appeal to the Su- preme Court of Canada: Held, reversing the judgments of the courts below, that in the exercise of ordin- ary care, L. could have safely gained the platform by passing through the car for- ward, and that the accident was wholly attributable to his own default in alight- ing as he did and therefore he could not re- cover. Fournier, J., dissenting. The Quebec Central Kailicay Co. v. Lortle, xxii., 33lj 6. — Railway Company— Ixjury to Em- ployee — Finding of Jury — Interfer- ence WITH ON Appeal. W. was an employee of the G. T. It. Co., whose duty it was to couple cars in the To- ronto yard of the Co. In performing this duty on one occa&ion, under specilic direc- tions from the conductor of an engine at- tached to one of the cars being coupled, his hand was crushed owing to the engine backing down and bringing the i;ars to- gether before the coupling was made, On the trial of an action for damages resulting I from such injury the conductor denied hav- ! ing given directions for the coupling, and j it was contended that W. improperly put i his hand between the draw bars to lift out the coupling pin. It was also contended that the conductor had no authority to give directions as to the mode of doing the work. ; The jury found against both contentions | and W. obtained a verdict which was ! afHrmed by the Divisional Court and Court | of Appeal. j Held, per Fournier, Tascherean and Sedgo- ; wick, ,IJ., that though the findincs of j the jury were not satisfactory upon the | evidence a second Court of Appeal could not interfere with them. Held, per King, J., that the finding that specific directions were given must be ac- cepted as conclusive; that the mode in which the coupling was dbne was not an improper one, as "\V. had a right to rely on the engine not being moved until the coupling was made, and could properly perform the work in the ir st expeditious wny, which it was shown he did; that the conductor was empowered to give directions as to the mode of doing the work if. as was stated at the trial, he believed that using such a mode could save time: and that W. was Injured by conforming to an order to go to a dangerous place, the person giving the order being guilty of negligence. a mi Trunk Railvay Co. v. Wec^ar, xxiii.. 422 7. — Drainage — Adjoining Municipalities — Defective Scheme — Tort Feasors. A municipality constructing a drain can- not let water loose just inside or anywhere within an adjoining municipality without being liable for injury caused thereby to lands In such adjoining municipality. Where a scheme for drainage work to be constructed under a valid by-law proves de- fective and the work has not been skilfully and properly performed, the municipality constructing it are not liable to persons whose lands are damaged in consequence of such defects and improper construction, as tort feasors, but are liable under sec. ."Ol. Municipal Act, for damage done in con- struction of the work or consequent thereon. Toirmhip of EUice v. HUes. Township of EUice v. Crooks . . xxiii., 429 And see Municipal Corporation, 4. 8. — Building — Want of Repair— Damages —Art. 1055 C. C. — TRt:sTEEs— Personal Liability of — Executors— Arts. 921, 981o, C. C. The owner of property abutting on a highway is under a positive duty to keen it from being a cause of danger to the public by reason of any defect, either in structure, repair, or use and management, which rea- sonable care can guard against A. T. sued J. F. and M. W. F. personally as well as in their quality of testamentary executors and trustees of the will of the late J. F. claiming $4,000 damages for the death of lier husband who was killed by a window falling on him from the third story of a building, which formed part of the gen- eral estate of the late .T. F., but which had been specifically bequeathed to one G. F. and his children, for whom the said J. F. and ^I. W. F. were also trustees. The judgment of the courts below held the ap- pellants liable in their capacity of executors of the general estate and trustees under the will. Held, that the appellants were responsible for the damages resulting from their negli- gence in not keeping the bnilding in repair as well personally as in their quality of trustees (iFhrritierit fidttciarics) for the bene- fit of G. F.'s children; but were not liable as executors of the general estate. Ferricr y. Trepannier xxiv., 80 NEGLIGENCE. J 73- !>.— Workman in Factory — Evidence — (QUESTIONS OF Fact — Interference WITH ON Appeal. W., a workman in a factory, to get to the room where he worked had to pass through a narrow passage, and at a certain point to turn to the left wliilc tlie passage was con- tinued in a straight line to an elevator. In going to his work at iu» early hour one morning he inadvertently walked straight along the passage and fell into the well of the elevator, which was undergoing repairs. Workmen engaged in making such repairs were present at the time with one of whom W. collided at the opening, but a linr us- ually placed across the ojicning was down at the time. Un appeal in an action against his employers in couse(iuence of such accident. Held, atHrraing the decision of the Court of Appeal, Strong, C.J., hcsHantc, Tasi-her- eau, J., dissenting, that there was no evi- dence of negligence of the defendants to which the accident could be attributed and W. was properly non-suited at the trial. Field, per Strong, C.J., that though the case might properly have been left to the jury, as the judgment of non-si.it was affirmed by two courts it should not be in- terfered with. Hcadford v. McClary Mfg. Co. . . xxiv., 291 10.— Municipal Corporation — IIepair of Street — Accumuuation of Ice — Defec- tive Sidewalk. I), broufcht an action for damages against the corporation of the Town of C. for in- juries sustained by falling on a sidewalk where ice had formed and been allowed to remain for a length of time. Held, Gwynne, J., dissenting, that as the evidence at the trial of the action showed that the sidewalk, either from improper con- struction or from ape and long use, had sunk down so as to allow water to accumu- late upon it whereby the ice causing the accident was formed, the corporation was liable. Held, per Taschereau, J.— Allowing the ice to form and remain on the street was a breach of the statutory duty to keep streets :n repair for which the corporation was liable. Town o'l Cornwall v. DeiocJiic . . xxiv., 301 11.— Crown— Negligence of Servants or Officers— Common Employment — Law op Quebec— 50 & 51 Vie. c. 16, s. 16 (c). A petition of right was brought liy F, to recover damages for the death of his son caused by the negligence of servants of the Crown while engaged In repairing the La- chine Canal. lltid, atlirming the decision of the Ex- chequer Court, Taschereau, .!._ dissentiuy;, that the Crown was liable under 50 & 51 Vic. c. 10, s. IG (c); and that it was no ans- wer to the peititon to say that the injury was caused by a fellow servant of the de- censed, the case being governed by the law of the Province of Quebec, in which the doc- trine of common employment has no place. The Qt^een v. Filion xxiv., 482 12.— Street Railway— Wrongful Eject- ment FROM Car — Exposure to Cold — Consequent Illness — Damages — Ke- moteness of Cause. In an action for damages from being wrongfully ejected from a strt'et car, illness resulting from exposure to cold in conse- quence of such ejectment is not too remote a cause for damages; and where the evi deuce was that the person ejected was pro- perly clothed for protection against the severity of the weather, but was in a state of perspiration from an altercation with the conductor when he left the car and so liable to take cold, the jury were justilied in tind- ing that rai attack of rheumatism and bron- chitis which ensued was the natural and pro- bable result of the ejectment, and in award- ing damages therefor. Gwynne, J., dis- senting. Toronto By. Co. v. Orinsted . . xxiv., 570 13. — Street Raii way Car— Colli.5Ion with Vehicle — Excessive Speed — Contribu- tory Negligence. Persons crossing the street railway tracks are entitled to assume that the cars will be driven moderately and prudently, and if an accident happens through a car going at an excessive rate of speed the street railway company is responsible. The driver of a cart struck by a ear in crossing a track is not guilty of contribu- tory negligence because he did not look to see if a car was approaching if. in fact, it was far enough away to enable him to cross, if it had been proceeding moderately and prudently. He can be in no worse position than if he had looked and seen that th^re was time to cross. Gwynne, ,T.. dissenting Toronto Ry. Co. v. Gomell .. . . xxiv., 5S2 14.— Obstruction of Street— Accumula- tion OF Snow— Question of Fact- finding OP Jury. An action was brought against the City of Toronto to recover damages for injuries in- curred by reason of snow having been pilecT J 74 NEGLIGENCE. on the side of tlie strt-ets, and the street railway (.ouiiiaiiy ^va^^ Ijroiiglit in as third party. 'i he evidence was that the snow troiii the sidewalks was placed on the road- way ininu'dialely adjoining by servants of the eity and snow from the railway tracks was placed by servants of the railway com- pany uiHjn the roadway innnediately adjoin- ing the track without any iH-rniission from the city, thus raising the roadway next to the track, where the accident occurred, to a height of about twenty inches above the rails. The jury found that the disrepair of the street was the act of the ra Iway company, which was therefore nmde liable over to the city for the damages assessfil. The company (onteuded on appeal that the verdict was perversi> and contrary to evi- dence. Held, nfflrining the decision of the Court of Appeal, that under the evidence given of the manner in which the snow from the track had been placed on the roadway im- mediately adjoining, the jury might reason- ably be of opinion that if it had not been so placed there the accident would not have hapitened. and that this was the sole cause of the accident. Toronto Ry. Co. \. The City of Toronto, xxiv., 589 15. — Use of Dangerous Machixert — Orders of Superior — Keasonable Care. O. was employed in a factory for the pur- pose of heating rivets, and one morning, with another workman, he was engaged in oiling the gearing, etc., of the machinery which worked th drill in which the rivets were made. Hav. g oiled a part the other workman went away for a time, during which O. saw that the oil was running off the horizontal shaft of the drill and called the attention of the foreman of the machine shop to it. and to the fact that the shaft was full o^" ice. The foreman said to him, " Run hi-i up and down a few times and it will thaw her off." The shaft was seven feet from the floor and on it was what is called a buggy which could l>e moved along it on wheels. Depending from the buggy ivas a straight iron rod into the hollow end of which was inserted the drill secured by a screw, and attached to the buggy was a lever over six feet long. O. when so directed by the foreman tried to move the buggy by means of the lever but found he could not. He then went round to the back of the spindle and not being able then to move the buggy came round to the front, put his two hands upon a jacket ;i round the spindle 1 and put the weight of his body against it; 1 it then moved and he stepped forward to i recover his balance, when the screw securing ' the drill caught him alR)ut the middle of thf ■ body and he was seriously injured. In an action against his employers for dani£.grs it was shown that O. had no experieuci.' in the mode of moving the buggy and that the j screw should have been guarded. Held, nttirming the decision of the Court of ; Appeal, (Jwynne, .1., dissenting, that the jury I were warranted in finding that there wiis i negligence in not having the screw guarded; I that as the forei.ian knew that O. had no I experience as to ire ordinary mode of doing what he was told, he was justitiedi in using any reasonable mode; that he acted within his instructions in using the only etticit-nt means that he could; and that under th(? evidence he used ordinary care. Hamilton Bridge Co. v. O'Connor, xxiv., 598 1(5. — Master and Serva.n't — Employers' I^iabilitt AriT— Evidence- -New Trial — Imprudence. A workman in defendants' mill, brought an action for damages in consequence of being injured while passing over a set of cogs which were left uncovered, and upon which he slipped and had his leg dragged in by the cogs before they could be stopped. The jury found that there were other passage ways for plaintiff to use in fulfilling his duties, but that none of them was sutticient and the way used was more expeditious; that the non-covering of the cogs left a de- fective way; and that the plaintiff was not unduly negligent. The trial Judge held that the plaintiff voluntarily incurred the risk and dismissed the action. His decision was re- versed by the full court and a verdict entered for plaintiff with damages as assessed by tlie jury. On further appeal the Supreme Court of Canada reversed the decision of the Supreme Court of British Columbia and ordered a new trial, on the ground that it was not sufliciently established that plaintiff had of reasonable and practical necessity to pass over a set of cogs, which, being uncovered, were in a dangerous and defective state as charged in the statement of claim. British Columbia MiUa Co. v. Scott, 11th March, 1895 xxiv., 702 17. — Infant — Imprudence. The action was brought by plaintiff, as next friend to his infant son, to recover damages for injuries sustained by the son from a portable mirror falling uixin him when w'tli her in defendants' shop in Toronto. The NEGLIGENXE. 175 trial Jiiilgf found that tluTC wns no eviil- fhcf of n('nliK»'"< •' I'.v ilt'ffuiiants to lie sub- initti'il to till' jtiry, and disniissed the action. Till* I)ivisi(inal Court rt-versed his decision nnd ordcrt'd a new trial (2." (). U. TSt, and its judu'incnt wis attlrnu-d by tlie Court of Ainical for Ontario (til Out. App. U. V>2A). Tlu> Supreme Court of Canada alllrnud the judsnicnt ajiju-nlcd from and dismissed the apiieal witli costs. T. Eaton Co. V. timigater, 2ud April, 1895, xxiv., T(I8 18.— Street Railway— Defective Appl>i- ANCE8 — Absence of Buffers on Cars. The plaintiff was n motornian in the em- ploy of the defendant company and his action was brought under tlie Workman's Com- pensation Act to recover damages for iu- juries sustained while coupling together a street car and trailer. The main ground of negligence charged was the abscuce of bufiers to protect the employees from injury in coupling. The plaintiff had a verdict at the trial which, on motion for a new trial, was affirmed by the Divisional Court and by the Court of Api)eal for Ontario. The Supreme Court of Canada held that there was negligence on the part of the com- pany in not having proi)er appliances to prevent injury, and that a new tiial had been properly refused. The appeal was dismissed with costs. The Toronto Railtcay Co. v. Bond, l.oth May, 1895 xxiv., 715 19.— Street Railway — Accident to Work- men ON Track— CoNTRiBirroRY NegliIQ- ence — New Trial — Practice. The plaintiff, a workman in the employ of the company, was injured by a car striking him while working on the track. In nn action for damages the company defended on the ground that he had not been reason- ably careful in looking out for the cars. The trial Judge held that plaintiff was the cause of his own misfortune and could not hold de- fendants liable. This judgment was affirmed by the Divisional Court but reversed by the Court of Api)eal for Ontario, which ordered a new trial. The Supreme Court of Canada affirmed the decision of the Court of Appeal, Gwynne, J., dissenting, but on counsel for the com- pany stating that a new trial was not dc- sirod. judtrment was ordered to be entered for plaintiff with .%"00 damages, the amount assessed by the jury at the trial, and the apneal was dismissed with costs. The HamUton fftreet) Eaihray Co. v. ilforoM, 2(vth May, 1895 xxiv., 717 20.— Action in Warranty— Joint Specula- tion— I'artnership OR Ownership 1'ar iNDIVia. W. and D. entered into a joint siH'culation ill the purchase of real estate; each looked after his individual interests in tlie oper- ations resulting from this co-pBrtnersliii>; no power of attorney or authority was given tt» enable one to act for the other, and they did not consider that any such authority ex- isted by virtue of the relations between them; all conveyances required to carry out sales were executed by each for his un- divided interest. Lpou the death of W. and D., the business was continued by their re- presentatives on the same footing, and the representatives of W. subsequently so.d their interest to T. W., who purchased on behalf of, and to protect, some of the lega- tees of W., witliout any change being made in the nmiiner of conducting the business. A iMjok-keeper was employed to keep the books required lor the various interests, with instructions to pay the moneys received at the office (vf the co-proprietors into a bank, whence they were drawn upon cheques bear- ing the joipt signatures of the parties inter- ested, and the profits were divided eijually between the representatives of the parties interested, some in cash, but generally by cheque drawn in a similar way. M. N. D., who looked after the business for the repre- sentatives of D., paid diligent attention to the interests confided to him and received their share of such profits, but J. B. C, who acted in the W. interest, so negligently looked after the business as to enable the book-keeper to embezzle moneys which re- presented part of the share of the profits coming to the representatives of W. In an action brought by the reprt^sentatives of W. to make the representatives of D. bear a share of such losses: HehT, affirming the judgment of the Su- perior Court, and of the Superior Court sitting in review, that the facts did not establish a partnership between the parties, but a mere ownership par indivis, and that the representatives of D. were not liable to make goofl any part of the loss, having by proper vigilance and prudence obtained only the share- which belonged to them. Even if a partnership existed, there would be none in the moneys paid over to the par- ties after a division made. Archihald v. deLisle. Bal-er v. dcLisJe. Motrat V, deLisle XXV., 1 176 NEGLIGEN'CE. 21.— 1'rincipal, and Agent— Negligence of i Agent — Lending Money for 1'rin- ■ ciPAL — Financial Bkokers — Liability for Loss — Measure of Damages.' Fiiuiiieiul brokers who invest inuuey for a clieut are his ageuts iu the trausactiou if they profess to be acting.' for him and iu his ; interest tluiiiKh tlieir reumueratioii may eume ! from the borrower i An a^fnt wlio invests moneys for his prin- | cipal without talking proper precautious as to j the sullieieney of the security is guilty of i negligence, and if the value of the security proves less than the amount invested he is j liabh' to his principal for the loss occasioned \ thereby. The measure of damages in such a case is not the amount loaned with interest, but tlie difference between that amount and the actual value of the land. Taschoreau and (4wynne, JJ., dissenting. Lotc<^nburg et ah v. IVoJ/q/ . . . . .\xv., 51 22. — Master and Servant — Negligence ok Servant — Deviation from Employ- ment — Resumption — Contributory Negligence — Infant — -Evidence. A tradesman's teamster, sent out to de- liver parcels, went to his supper before ci>m- pleting the delivery. He aftei-wards started to finish his work and in doing so he ran over and injured a child. Held, affirming the decision of the Su- preme Court of New Brunswick, that from the moment he had started to complete t!ie business in which he had been engaged he was in his master's employ just as if he had returned to the master's store and made a fresh start. The doctrine of contributory neg]igenc(> does not apply to an infant of tender age. Gardner v. (Iracf (1 F. & F. 35!)). followed. Mcrritt v. Htpenstal -^kv., 150 23.— Master and Servant— Negligence— " QuEHEc ]<'actories Act "— R S O Arts. 3(>19-30.-)3-C. C. Art. KV).-^- Cn-T Responsibility— Accident. Cai-se 01 Conjecture — Evidence — Onus ov Proof— Statutable Duty, Breach of— Police Regulations. The plaintiffs husband was accidentally killed whilst (uiploycd as engineer in charge of tiie defendant's engine and machinery. Tn .nil action l)y the wi Ice on Sidewalks— By-law— Construc- tion OF Statute— 55 Vie. c. 42. s. 5.'51 — 57 Vic c. 50, s. 1,3— Finding of .Jury- Gross Ne^,ligence. A by-law of the City of Kingston requires frontagers to remove snow from the side- walks. Tlie effect of its iK'ing complied with was to allow till- snow to remain on rbt^ crossmgs which therefore became high-;- than the sidewalks, and when pressed down by traffic an incline more or less steep was fi>rmed at the ends of the crossings. A .young lady slipped and fell on one of flies' inclines, at.d being severely injured brought an action for damages against the citv an I olitained a verdict. The Muncipal AVt of Ontario makes a coriwiration. if guilty of gross negligence, liable for accidents ri'snlt- mg from snow or ice on sidewalks: notice of action in such case must be given, b it may be disp1 Yic. c. 2!>, s. 2(i2 (D.)— Railway Crossings — Packing Railway Frogs, Wing-rails, Etc. The proviso of tlie fourth subrsection of section 202 of " The Railway Act " (51 Vic. c. 29 (D.), does not apply to the fillings referred to in the third sub-section, and con- fers no power upon the Railway Committtee of the I'rivy Council to dispense with the filling in of the spaces behind and in front of Tlie railway frogs and crossings and the fixed rails and switches during the winter months. Judgment of the Court of Appeal for Ontario (24 Ont. App. R. 183), reversed. TVashiiigton v. The Grand Trunk RaiUcay Co., xxviii., 184 (On appeil this decision was affirmed bv the Privy Council, 24th February, 189'J.) 31.— Master and Servant — Accident. Cause of— Contributory Negligence- Evidence. In an action for damages by an employee for injuries sustained while operating an embossing and stamping press, it appeared that when the accident causing the injury occurred, the whole of the employee's hand was under the press, which was UTineccs- sary, as only the hand as far as the sec- ond knuckle ntx>ded' to be inserted for the purpose of the operation in which he was engage*!. It Mas alleged that the press was working at undue si)eed: but it was proved that the si)eed liad been increased to such evteiit at the instanne of the employee him- self. x\-ha was n skilled v.nrkmnn. ffrlil, reversinsr the judgment of the Court of Queen's Bench, that the injury occurred by a mere accident not due to any negli- gence of the employer, but solely to the heed- lessness and thoughtlessness of the injured man himself, and the employer was not liable. Burland y. Lee xxviii., 348 32. — Master and Servant — Evidence — Probable Cause of Accident. Evidence which merely supports a theory proiK)unded as to the probable cause of in- juries received through an unexplained ac- cident is insufficient to support a verdirt for damages where tliere is no direct fault or negligence proved against the defendant and the actual cause of tlie accident is purely a matter of speculation or conjec- ture. The Canada Paint Co. v. Trainoi; xxviii., "52 33.— Fault of Fellow Servant— Master AND Servant — Employer's Liability —Arts. 1053, 105(5, C. C. The defendants carried on the manufac- ture of detonating cartridges or caps made by charging copper shells with a composition of fulminate of mercury and chlorate of IKjtash, a highly explosive mixture, requir- ing great care in manipulation. It is, when dry, liable to explode easily by friction or contact with flame, but has the property of burning slowly without exploding when saturated with moisture. It was the duty of defendants' foreman, twice a day, to pro- vide a sufficient quantity of the mixture for use in his special compartment during llie morning and in the afternoon, and to kccTi it properly dampened with water, for whiih purpose he was furnishe- perly moistened, through a slot in his com- partment, to a shelf whence they were re- moved by another employee and the charges I)ressed down to the bottom of the she!!*! l)y means of a pressing machine worked by C, at a table near by. An explosion took place which appeared from the evidence to have originated at the pressing macliin-, and nisrht have occurred either throug'i the fulminate in the shells having been al- lowed to become too dry from carelessness in the sprinkling, or from an aeoumulaMim of the mixture adhering to and drying upon the metal portions of the pressing maeliino. It WIS the duty of C. the person op"ratiiii: the pressing machine, to keep it clean an 1 prevent the mixture from accumulating nnd drying there in dangerous quantities. When NEGLIGENXE. 179 the explosion occurred, the foreman and C. and another employee were killed, but a lourth emplojee, who was blown outside the wreck of the building and survived, stated that the first fiash appeared to come frou» the pressing machine, and the explo- sion loUowed immeiliatelj-. The theory pro- pounded by the plaintiff, the lather of C, assumed that nothing was known of the actual cause of the explosion, nor where it in i)oint of fact originated, but inferred from a suiiposed condition of things, that the fulminate had not been suHicieutly dani- penetl, and that this indicated careless- ness on the part of tlie foreman and raised a presumption that the explosion originated through his fault. The evidence of the sur- vivor led to the conclusion that the explosion originated through C's neglect to clean the pressing machine. There was evidence to show tiiat the defendants had taken all rea- sonable precautions to diminish risk of in- jury to their emi)loyees in the event of an explosion, and that c-onformity with rules prescribed and instructions given by them to their employees for the purpo>e of secur- ing their safety, would be sufficient to secure them from injury. Held. Taschereau and King, .J.I., dissent- ing, that as it appeared under the circum- .stances of the case, that the cause of the aceiilent was either unknown or else that it coulil fairly l>e presumed to have been caused liy the negligi'uce of the person in- jured, whose personal representative brought the action, that there could not be any GU<'h fault imputed to the defendants as would render them liable in damages. nMiinion Cartridge Co. v. Cainiis. xxviii., oUl 34.— Landlord and Tenant— Loss by Fire — NEGL.IGENCE — KeBUTTAU OF — LeOAL rRESCMPTioN— Onus of Proof— Con- struction OF Agreement— Covenant to Return Tremises in Good Order— Art. 1*529 C. C. A .steam sawmill was totally destroyed by fire during the term of the lease, whilst in the [xissession of and occupied by the lessees. The lease contained a covenant by the lessees " to return the mill to the lessor at the close of the season in as good order as could be expected considering the wear and tear of the mill and machinery." The lessees, in defence to the lessor's action foint, and, for a number of years, travellers had been allowed to make use of the permanent way in order to reach the nearest highways, there being no other pas- sage way pro^ided. In an action by his administrators for dam- ages: i8o NEGLIGEN'CE. Held, Tast'hereau and King, JJ., ilisseut- ing, that notwithstanding thu long user of the poruiaueut way in passing to and from the highways by passengers taking and leav- ing the company's trains the deceased could not, under the circumstances, be. said to have been there by the invitation or license of the company at the time he was killed and that the action would not lie. Grand Tiiink Kailicay of Canada v. Anderson et al xxviii , 541 30. — Master and Servant — E-mployer's Liability — Concurrent Findings op Fact — Contributory Negligence. In an action by an employee to recover damages for injuries sustained there was some evidence of neglect on the part of the employers which, in the opinion of both courts below, might have been the cause of the accident through which the injuries were sustained, and both courts found that the accident was due to the fault of the defendants either in neglecting to cover a dangerous part of a revolving shaft tem- porarily with boards or to disconnect the sh.;*'t or stop the whole machinery while the plainiilf was recpiired to work over or near the shaft. Held. Taschereau, J., dissenting, that al- though the evideuce on which the courts below based their findings of fact might ap- pear weak, and there might be room for the inference that the primary oause of the injuries might have been the plaintiff's own imprudence, the Supreme _Court of Canada would not, on appeal, reverse such concur- rent tiiulings of *'act. The Qeorge Matthetcs Co. v. Bouchard, xxviii., 5S0 37.~Master and Servant — Employers' Liability — Use of Danghrous Ma- terial— Insulation OF Electric AVires - -Cause or Death — Findings of Fact Arts. 1053, 1054 C. C. Persons dealing with dangerous material are obliged to take the utmost care to pre- sent injuries being caused through their use by adopting all known devices to that end. and where there is evidence that there was a precaution which might have been taken by a company making use of elec- trical currents to prevent live wires causing accidents, and that this precaution was r.ot adopted the company must be held re- sponsible for damages. The Citi<:cn.'<' TJ'/ht £ Potcer Co. v. Li'pitre. 6th October. 1S9S xxis., 1 37o. — Use of Dangerous M.\terial — E vidence— Trespass. Work on the construction of a railway wii.s going on near the unused part of i public cemetery in connection »vith which were used detonating caps containing fulminate. M., a boy of fifteen years of age, in passing through the cemetery with some companions, found some of these caps lying about on the bank above the works, in front of a tool box used by one of the gangs of workmen, and put them in his pocket. Liter on the same day he was scratching the fulminate end of one of them with a stick when it exploded and injured his hand. On the trial of an action against the contractors for damages, there was no direct evideuce as to how the caps came to be where they were found, but it was proved that when a blast was about to take place, the workmen would hurriedly place any explosives they might have in thjir possession under their tool box. and then run away. It also was proved thnt caps of I the same kind were kept in the tool box near i which those in question were found by M., I and were taken out and put back by the I workmen as occasion might require. 1 Held, reversing the judgment of the Court I of Appeal, that in the absence of evidence of circumstances leading to a different con lu- sion. the act of placing thy caps where they were found could fairly be attributed to the I workmen, who alone were shown to have had the right to handle them; that it was incum- bent on defendants to exercise a high degree of caution to prevent them filling into the hands of strangers; that the act of M., which caused the cap to explode did not neces- sarily import want of due caution, and if his negligence contributed to the accident the jury should have so found; and that whether or not M. was a trespasser, was also a <;U('S- tion for the jury, who did not pass upon it. JIakins v. Piggott, 21st Nov., 1898, xxix., ISS I 376. — Sparks from Railway' Engine — Rubbish on Railway Berm— Damages BY Fire — Findings of Jury— Eviden :i: — Conc^-rrent Findings of Courts Appealed prom. In an action against a railway compnny for damages in consequence of plaintiffs' property being destroyed by fire alleged to he caused by sparks from an engine of the com- pany the jury found, though there was no direct evidence of how the fire occurred, that the company negligently permitted an accumulation of grass or rubbish on th"ir road opposite plaintiffs' property which, in case of emission of sparks or cinders would he dangerous: that the fire originated from or by reason of a spark or cinder fro'u an engine: and that the fire was communicated by the spark or cinder falling on the com- NEGLIGENCE. i8i I)any"s premises and spreading to plaintiffs' property, .^v verdict against the company was sustained Ijy the Court of Appeal. Held, affirming tlie judgment of tlie latter court (25 Ont. App. li. 242), and following Seneaa<^ v. Central Vernuint Railway Co. (-H Can. S. C. R.* U4): Gioryc Malthiics Co. v. Bouchard (28 Can. S. C. K. 580); that the jury having found that the accumulation of rubbish along the railway property caused the damages, of which there was some evid- ence, and the finding having been affirmed by the trial court and Court of Appeii. it should not be disturbed by a second appellate court. Grand Trunk Ry. Co. v. RainviUe et al., 21st November, 1898 xxix., 201 38.— Thespasser — D.vngerous Way — Con- tributory Negligence — Cause of In- juries — Warning of Danger. B. was aboard a ship on the point of de- parture from the port of Montreal, and was injured by tackle falling from a derrick used in stowing part of the cargo. In an action for damages the jurj- found that the accident was caused through imperfect hitch- ing of the tackle, but that B. improperly re- mained in a dangerous iKJsition after being warned to "' stand from under."' The jury alsa found that B. was not. at the time, employed iit his work and duty, but was aboard the ship with rojisonable expectation of being engaged for the voyage. Field, that B. was a trespasser; that his fault and imprudence constituted the prin- cipal and immediate cause of his injuries, and that the owner and master of the ship was not responsible in damages, under the cir- cumstances, oven if B. had any lawful, cause or right to be abroad the ship and although there may have been fault in the hitching of the tackle. Roberts v. Haiclhis, 14th December, 1898. xxix., 218 SO.— Railway Co. — Accident at Crossing- Statutory Requirments — Notice of Approach. I^cf Appeal, 5. 4ri.— Railway Co. — Breaking of Rail- Latent Defect — Arts. 1053, 1073, 1'>T5 C. C. ^ec Railways. 4. 41.— Collision at Sea— Steamship— Defec- tive Steering Apparatus — Question OF Fact. •*>'fc Appeal. 19. I 42.— Master and Servant— Commo.x Em- I PLOYJiENT — Finding of Jury— Question I OF Fact. I See Master and Servant, 1. 43. — Action for Personal Injuries — Death op Plaintiff — Subsequent Action under Lord Campbell's Act — Evidence. See Evidence, 3. 44. — Collision — Rule of the Road — Steamer — Sailing Vessel. See Admiralty Law, 1. 45. — By Servants of the Crown— Injury to Property on Public Work — Li- ability OP Crown foi: Tort — 50-51 Vic. c. 16 (D.). See Constitutional Law, 9. 46. — Railway Company — Carriage op Goods — Limitation of Liability — Rail- way Act, 1888, s. 240 (3;. See Railways, 8. 47. — Withdrawal of Case from Jury — Evidence — Reasonable Care — New Trial — Questions for the Jury. See Evidence, 6. 48.— Railway Company— Loan of Cars — Reasonable Care— Breach of Duty — Risk Voluntarily Incurred — " Volenti Non Fit Injuria." -S'ee Railways, 11. 49.— Jury — Answers to Questions — Rail- way Co. — Act of Incorporation — Change of Name. Sec Railways, 12. 50. — ^lumciPAL Corporation — Repair of Streets — Liability for Non-feasance. Sec Municipal Corporation, 25. 51. — Negligence — Obstruction of Street — Assessment of Damages— Questions of Fact — Action of Warranty. Sec Appeal, 44. 52.— Chattel Mortgage — Mortgagee in Possession — Wilful Default — Sale under Powers — " Slaughter Sale "— Practice — Assignment for Benefit of Creditors — Revocation of. Sec Sale, 4. I82 NEGOTIABLE SECURITY— NEW TRIAL. TiS.— Maritime Law— Collision— Rules of ' THE IkOAD — Narrow Channelt— Navi- gation, HULES OF— II. S. C. c. 7'J, s. 1, Arts. 1,''., 10, IK, IJ), 2L 22 and 23— "Crossing" Ships— '* Meeting " Ships " I'assinq " Ships— Breach of Rules— I Moiety of Damages — 3(; and 37 Vic. (Imp.) c. 8.">. s. 17— Manceuvkes in " Agony of Collision." I See Admiralty Law, 2. 54.— Railway Co.— Carriage of Goods- Connecting Lines— Special Contract —Loss by Fire in Warehouse — < Negligence — Pljading. j Sec Railways, 15. I Go.— Appeal — Questions of Fact— Second Appellate Court. i Sec Appeal, 01. I 56.— Drainage — Intermunicipal Works— ' Damages — Extra Cost — Misapplication ■ of Funds — Repairs— Assessment — R. S. i O. (1S77) c. 174—10 A'ic. c. 18 (Ont.). ] See Municipal Corporation, 36. j 57. — Fragile Goods — Stowage — Contract ; Against Fault of Servants — Charter 1 Party — Affreightment. See Carriers, '4. 58. — Hire of Tug — Conditions — Repairs — Negligence — Compensation. See Lease, .^. NEGOTIABLE SECURITY. Fraudulent Conversion — Past I>ue Bonds — Debentures Transferable by De- livery — Equity of Previous Holders — EsTi "PPEL — -Implied Notice — Innocent Holder for Value — C. C. Arts. 1487, 1490. 22<12 and 22S7. A bmid fide holder ac(iuiring commercial paper after dishonour takes subject not merely to the equities of prior parties to the paper, but also to those of all parties havinp an interest therein. In re Kuropenn Ber was not of the (luality contracted for. The plaintiff ob- tained a verdict and a new icial was moved for on a great number of grounds only two of which were relied on in aigiiiuent. Tiic rule for a new trial was made absolute un- less the plaintiff tiled a consent to his ver- dict being reduced, and such consent being filed the rule was discharged and the ver- dict stood for the reduced amount. Another action was brought by S. against C. for damages in not supplying timl>er up to the standard the contract reijuired. In this action a verdict was given for the de- fendant, and a new trial was moved for, the main ground urgeil being that plaintiff was entitled to nominal damages at least. The court was of opinion that the pliiinti.T was entitled to nominal daniiiges, but re- fused a new trial to enable him to have :i verdict therefor. (31 N. B. Rep. 25i>, 265). S. appealed fr(jm Imth decisions to the Su- preme Court of Canada Both appeals were dismissed, the Supreme Court being of opinion that the objections to the verdicts for improper reception and rejection of evidence were properly over- ruled by the court below and the new trial to enable S. to recover nominal damages was jtroperly refused. Scammcl v. Clarke, 1st May, ISM. xxiii,. on7. 2. — New Trial — Negligence— Master an'd Servant — Common Fault^;.7ury Trial — Assignment hf Facts — Arts. 353 it 414 C C. P.— Art. 427 C. P. Q.— Incon- sistent Findings — Misdirection — Pleading. In an action to rec(n-er damiiges for in- juries alleged to have been caused by negli- gence, the pliiintiff must allege and make atlirniative proof of facts sufficient to show the breach of a duty owed him by. and in- consistent with due diligence on the part ot. the defendant, and that the injuries were thereby occasioned; and where in such nn action the jtiry have failed to find the de- fendants gtiilty of the particular act of mgli- gt-nce charged in the declaration as consti- I tuting the cause of the injuries, a verdict j for the plaintiff cannot be sustained and a new trial should be granted. I Coirans et al. v. Mar/ihaU . . . . xxviii., IGl 3. — Appeal from Order for— Jurisdiction j — Final Judgment. ' See Appeal. 7. NOTICE. "83 4.— Action for Negligence — Excessive 1)amages — Finding of Jury. See Negligence, 3. 0.— Action on Insurance I'olicy — Findings of Jury — Answers to Questions — Evidence. See Insurance, Fire 1. 7.— Equity Suit— Construction op Sta- tute— Persona Designata — 53 Vic. c. 4. s. 85 (N. li.). See Statute, 15. S.— Employers' Liability Act to Workmen — Evidence. See Nogligenee, 10. Injury 'J. — Improper Admission of Evidence — Objection at Trial— Relevancy. Sec Evidence, 9. lU. — Negligence — Reasonable Care — Question for Jury — Withdrawal of Case from Jury — Evidence. Sec Evidence, 6. 11.— Findings of Jury — Answers to Ques- tions — Negligence— Railway Company — Act of Incorporation — Change of Name. Sec Railways, 12. NOTICE. 1. — Mortgage — Agreement to Charge Lands — Statute of Frauds — Registry. The solicitor of the mortgagee wrote the memo, ou one of his letter forms under the printed words " Dear Sir," his own name being at the lx)tt the time when the hearing was to take place. The motion was opposed by counsel for the resp mdeut, who objected that proper notice of the mo- tion had not been given as rey the horses are a source of annoyance and inconvenience to the neiiih- houring residents the proprietor is liaijle in damages for the injury caused thereby. Gwynne, J., dissenting. Drysdale v. Diigas xxvi., 20 2. — Constitutional Law — Navigable Waters — Title to Bed of Stream- User — Obstruction to Navigation — I'uBLic Nuisance— Balance of Con- venience. An obstruction to navigation cannot be justified on the ground that the public bene- fit to be derived from it outweighs the incon- venience it causes. It is a public nuisance though of a very great public benefit, and the obstruction of the slightest iwssible de- gree. The Qttem v. Moss xxvi., 322 3.— Municipal Corporation — Highway- Encroachment UPON Street — Negli- gence — Obstruction of Show-window — Municipal Officers — Action for Damages — Misfeasance During Prior Ownership — Nonfeasance — Sta- tutable Duty. An action does not lie against a munici- pal corporation for damages in respect of mere non-feasance, unless there has been a breach of some duty imposed by law upon the corporation. — The MmviHnnUty of Piotou y. Gcldert (1893) A. C. 524. and The ilunicipal rovneil of Sydney v. Bourlce (1805) A. C. 433. followed. NULLITY— OPPOSITION. 185 An action docs not lie against a munici- pal cori'oration l)y tlic proprietor of lands for (laniaKOS iii respect thereof, through the mistake or misfeasance of the con>oration or its officers, alleged to have occurred prior to the ac(iuisition of his title thereto. A niunicii)al corporation is not civilly re- sponsilrle for acts of its officers or servants other than those done within the scope of their authority as such. City of Montreal v. ilulclair et al., xxviii., 4r)8 4. — Street Obstruction* — Street IIailway — Height of Rails — Statutory Oblioa- tion— Accident to Horse. See Negligence, 4. 5.— Municipali Corporation- — Public Mar- kett — lice.nsing traders and hucks- TERS — Obstructi.n'g Streets and Side- ■WAL.KS — Loss of Rents — Damages. See Municipal Corporation, 35. NULLITY. 1.— Assignment — Prete-nom — Notice — Registration — Action to Annul, — Parties in Interest. The nullity of a deed of assignment can only lie invoked by proceedings to which all persons interested in the deed liave been made parties. Quertin y. Goaselin xxvii., 514 2.— Sale— Donation in* Form or— Gifts in Contemplation of Death — Mortal Illness of Donor — Presumption of Nullity — Validating Circumstances— Dation en Paiement— Arts. 762, 989 C. C. During her last illness and a short time before her death, B. granted certain lands to V. by an instrument purporting to be a deed of sale for a price therein stated, but in reality the transaction was intended as a settlement of arrears of salary due by B. to the grantee, and the consideration ac- knowledged by the deed was never paid. Held, reversing the decision of the Court of Quwn's Bench, that the deed could not be set aside and annulled as void under the provisions of article 702 of the Civil Code, as the circumstances tended to show that the transaction was actually for good con- sideration (dation en paiement), and conse- quently legal and valid. Talade v. Lalonde xxvii., 551 3.— Evidence— Estoppel— C. C. Arts. 311 a.vd 1243. See Admissions. 4. — Assignment for Benefit of Creditors — Prefere.nces— Moneys Paid under Voidable Assign.ments— Liability of Assignee. See Assignment, 3. 5.— Title to Lands— Sheriff's Deed — i^imitation of actions — equivocal i'ossession. Sec Evidence, 30. G.— Life Insurance— Wagering Policy- Waiver — Estoppel — 14 Heo. III., c. 48 (Imp.)— Arts. 2480, 2590 C. C. »S'fe Insurance, Life, 3. OPPOSITION. 1.— Appeal — Jurisdiction — Judicial Pro- ceeding—Opposition to Judgment. An opposition to judgment under Art. 484 C. C. P. is a •' judicial proceeding " within the meaning of sec. 29 of " The Supreme and Exchequer Courts Act," and there is an appeal to the Supreme Court if, at the tiling of the opposition, the principal and interest due under the judgment sought to be annull- ed amount to !?2,000, where such appeal depends upon the amount in controversy. Tfucotte v. DwHScreau xxvi., 578 2. — Service of Action — ^Judgment by De- fault — Opposition to Judgment — Reasons of — " Rescissoire " joined WITH " Rescixdant " — Arts. lf>. 89 et acq., 483, 489 C. C. P.— False Return of Service. No entry of default for non-appearance can be made, nor ex. parte judgment ren- dered, against a defendant who has not been duly served with the writ of summons, al- though the papers in the action may have actually reached him through a person with wl'.om they were left by the bailiff. The provisions of articles 48.3 and follow- ing of the Code of Civil Procedure of Lower Canada (respecting oppositions to judgment) relate only to cases where a defendant is legally in default to appear or to plead and have no application to an ex parte judgment rendered, for default of appearance, in an, action which has not been duly served upon the defendant, and the defendant may at any time seek relief against any such judg- ment by opposition, and have it set aside notwithstanding that more than a year and a day may have elapsed from the rendering 1 86 ORDINANCES-PARTNERSHIP. ORDINANCES. .*fc Statutes. OWNERSHIP. Joint Speculation- — Partnership or Ownership I'ar Indivis. See Fiirtuership, 4. PARDONING POWER. Representative of Crown — Conferring Prerogative Upon— I^egislative Au- thority. Qiiwrc: Is tlu> piiwcr of ( oiifi'n'ing liy Icjris- latioii upon tho reprosentativo of the Crown, of till- srimc, ancl without iilh-Kinj; or estali- lishiiijr that he lias a good lU-ft-nce to the action on tlie nii-rits. An opposition askini; to have a jiidftnient ' pet asiile. on tlie jjronnd that the ilefendant has not iicen duly served witli the aetion, wiiiili also .'illeKcs tile defend:int"s (jrouuds of defence uinia the merits, sliiiuld nut be disniissiil merely for the reason that the lynrinniiirr had thus been inipruperly joined with the riHcinddnt. Turvottf V. DiDisirKiv x.wii.. ."iS.*? 3. — Appeal — .Turishiction — Amount in ('((NTRovEiiSY — Opposition Akin de iMsTRAiRf: — Judicial I'roceeding — De- mand IN Original Action— R. s. C. c. ISr., s. 20. An opiMisition nflii t}f (Ustruiri', for the wiihdrawiil of >:ouds from seizure, is a " judi- roo(ls soiiKlit to 1h' withdrawn frmn seizure and not the amount demanded by the plain- tiff's action or for which the execution is- sued. Tiiicotic v. I'nmycrmii (I'fi Can. S. C R. 548). and McCorkUl v. Knight (3 Can S. C. R. 233: Cas. Dig.. 2 ed. CUD. followed: VliomjHiiij- V. Laprirrc (Cas. Dig. 2 ed. 42(>), and Ofiidrmi v. McDovyaU (Cas. Dig. 2 ed'. 420), discussed and distinguished. A'iw<7 €t at. V. Diipuis (lit Oilheit, xxviii., 388 4. — Appeal — Collocation and Distribu- tion — Hypothecs— Arts. 20. 144 a^d 701 C. C. P. — Assignment — Notice — Registration — Prete-nom — Action to Anni l Deed — Parties in Interest- Incidental Proceedings. Sec Judgment of Distribution. such as a Ciilunial (Jovernnr, the prerngative of pardoning in the InifK-rial Parliament, only, or, if not. in what legislature debtor AND Creditor — Account. See Partnership, 8. 2. — Will — Co.vstruction of — Donation — Substitution — I'artition, I'er Stirpes or I'er Capita — Usufruct — Alimen- tary Allowance— Accretion Between Legatees. See Substitution, 1. PARTNERSHIP. 1. — Dissolution of I'art.nership — M.^rried Woman — Be.nefit Conferred During Marriage — Simulation — Fraud. On 10th April, 18,S0. J. S. M., a retired partner of the firm of McL. tV B., composed of himself and W. M., his brotlier, agreed to leave his capital, for which he was paid interest, in the new firm to be constituted of the said W. ^L and one R.. an employee of the former tirni, and that sudi capital slionld rank after the creditors of the old tirni had been paid in full. The new firm Avas to carry on business under the same firm name up to 31st Dec. ISSO. .T. S. M. died on ISth Nov. 188(5. His wife, separate as to property, had an iicconnt in the books of both firms. On Kith Aiiril, 1800, an agreement was entered into between the new firm and the estate of J. S. M.. and his widow, by which a large balance was ad- mitted to be due b.v them to the estate and tlie widow. The new firm was declared in- solvent in .Tannary, ISDl. Claims were filed by the widov.- and the estate of ''. S. M. .''gainst the insolvents, and the ^Merchants Bank of Canada contested them on the PARTNERSHIP 187 jjrouuds, infer alia, that they had becu cre- ditors o.." the firm iiiui coiitiiuifd to iidvame to the new tirm ou the faith of the ajrree- nu'iit of A')ril, l.SJSt!, that tlie Avi\v's luuiicyH formed part of the capital of .1. S. M., and that tlie dissolution was simulated. (Q. R. li Q. H. 4H1I. The Supreme Court of Canada reversed the judgment of the Court of CJucen's Beuch for Lower (.'anada, (appeal side), and re- storcil the judgment of the Suiieriur Cciurt, District of Montreal, Fournier and King, JJ.. dissenting;, and Held, that the dissolution of the partner- ship was s.iimuleted: that the moneys which appeared to be owing to the widow, after having credited her with her own seiiarate oioiioys. Mere iu reality moneys deposited by her husband in order to confer up n her, i duriiii: marriage, benefits contrary to law, ; and that the bank had a sutHcient interest to contest these claims, the transaction being in fraud of their rights as creditors. The Mcrvhanta Bunk of Cuimda v. McLarhhin. The Merchants Bank of Canada \. ilclAinn, 2nd April, 1S"J4 xxiii., 14;j 2.— DissoLtJTiON — Winding-up— Extra Ser- vices OF ONE Partner — Contract to Pay for. If tlie business of winding ui) a partner- shi;) concern is apportioned between the part- ners and each "inilcrtakes to perform the share allotti'd t> him, one of them canu(jt afterwards claim to be paid salary or other reiinineratiou merely for the ri'ason that liis share of the woriv has been mnr(> laborious or dirticult than that performed by his co- partner, in the absence of any express agree- ment to that effect, or one to be implied from the conduct of the parties. Liggett v. Hamilton xxlv., G'io 3.— Retired Partner — Continuance of Firm Name — Notice of Dissohtion — I'romissory Note— Bill Heads— New Business. The action was against the defendant, S. Wigle, as a member of the tirm of S. Wigle iS: Son. on promissory notes made by said firm in favour of plaintiff. The defence was that the defendant had retired from the tirm long before the notes were given, and although his son had carried on the busi- ness under the name of S. Wigle & Son, he had no interest iu it: also that at the most he could only he liable in respect to the business of a general country st was, tlierefore liable on tiie notes. The Supreme Court of Canada affirmed the jtidgment of the Court of Appeal for Ontario and dismissed the appeal With costs. Wiyle V. TViJ/wms, 6th May, 189.". xsiv.. Tia 4. — Joint Speculation— I'artnership or Ownership Par Indivis. W. & D. entered into a joint speculation in tlie purcdiase of real estate; «'ach look 'd after his individual interests in the opera- tions resulting from this co-pariuiTship; no power of attorney or authority wis given to enable one to act for the other, and they did not consider that any such authority existed by virtue of the relations Vtctwecn them; all conveyances required to carry out sales were executed by each for his undivided in- terest. Upon the death of W. and D., the business was continued by their reju-esenta- tives on the same footing, and the representa- tives of W. subsequently sold their interest to T. AV., who lunvdiascd on behalf of, and to protect, some of the legate(>s of W., without any change being made in the manner of conducting the business. A bouk-keeper was employed to keep tlie books rfcpiired for the various interests, with instructions to^ pay the moneys received at the olliee of the co-proprietors into a bank, whence they were diawn upon checiues bearing the joint signa- tures of the parties interested, and the pro- fits were divided t-qually between the reprt>- sentatives of the jiarties interested, some in cash, but generally by cheQUes drawn in a similar war. M. N. P., who looked after the- business of the representatives of I)., paid dilisrent attention to the interests confined to him and received their share of such pro- fits, hnt J. C. B., who acted in the W. inter- est, so nr>gligent!y looked after the busine-^s as to enable the book-keeper to embezzle mon'^ys which represented part of the share of the profits coming to the representatives of W. In an action brought by the repre- sciitatives of W. to make the representatives of D. bear a share of such hisses: Held, affirming the judgment of the Su- l)erior Court, and of the Superinr Court sit- ting in review, that the facts did not estab- j88 PARTNERSHIP. lish a partnership between the parties, but ■a mere ownership par indivis, and tlmt the representatives of D. were not liable to make good any part of the loss, having by proper vigilance and prudence obtained only the share which belonged to them. Even if the partnership existed, there ■would be none In the moneys i)aid over to the parties after a division niar of the firm who had made the note, that the verdict in the former suit was conclusive in his favour, the said agreement meaning that he was not to be liable either as a maker or indorser. labeater v. Ray, Street d Co. 70 7. — Will — Legacy— Bequest of Partner- ship Business— Acceptance by Legatee — Right of Legatee to an Account. J. and his brother carried on business in partnership for over thirty years and the brother having died his will contained the following bequest: " I will and bequeath unto my brother J., all my interest in the business of J. & Co., in the said City of St. Cath- arines, together with all sums of money ad- vanced by me to the said business at any time, for his own use absolutely forever, and I advise my said brother to wind up the said business with as little delay as pos- sible." Held, in a subsequent action on the judg- Appeal, that J., on accepting the legacy was under no obligation to indemnity the testa- tor's estate agair^t liability for the debts of the firm in case the assets should be insuffi- cient for the puriwse and did not lose his right to have the accounts taken in order to make the estate of the testator pay its share of such deficiency. Robertson v. Junkin xxvi., 192 8. — Partnership— Division of Assets — Art. 1898 C. C— Mandate — Debtor and Creditor — Account. In the Province of Quebec, when there is no other arrangement between the partners, the partition of the property of a commer- cial partnership must be made according to the rules laid down in the Civil Code in relation to the partition of successions, in so far as they can be made to apply Upon the dissolution of a partnership, where one of the partners has been entrusted with the collection of moneys due as the PATENT OF INVENTION, 189 maiiJaturj- of the others, auy of h'.6 co-part- uers may bring suit agaiust him directly either lor au aceouut under the mandate, or lor aioijey had and received. Lifibiic V. Aubry xxvi., U02 yu. — Accounts — Stated and SErTL,ED AccuLNT — Estoppel— Managing 1'art- NER. One of the two partners constituting a tirm had the sole management and control oi its affairs, the other lacking business capacity. The managing partner at intervals presented statements of the business to his co-partner, who signed them on being assured of their correct ne;-:s, and in 181>1 mutual releases of all (lamis and demands were executed by each, based on the statements so furnished by the active partner. In an action against the latter to have these releases set aside and the accounts reopened, it was found at th" trial, on the evidence of an accountant who had examined the books of the tirm, that a large loss would result to the plain- tiff if the accounts were maintained as settled, and the Judge made a reference to a Master to take the accounts. On appeal from his judgment the reference was re- stricted to certair. specified items. Held, reversing th(> judgment of the Court of Appeal for Ontario and restoring that of the trial Judge, but varying it so as to make the inquiry begin at a date beyond which the plainlift" did not desire to go. that all it was necessary to establish in order to set aside the releases pleaded and to open the accounts was the fact that in the accounts as settled there were such errors or mistakes as would inflict material injustice upon the pliintifl: if the accounts should be held to be closed. The appeal was allowed with costs. West v. Benjamin, 14th Dec, 1898, xxix., ^82. 9.— Dissolution — Terms of — Change of Relations — Principal and Surety- Discharge OF Principal. See Mortgage, 3. 10.— Insurance of Members — Registered Declaration — Evidence to Contra- dict. See Evidence, 8. 11.— Interest in Partntership Lands- Dealings Betv.een Partners— Laches and Acquiescence. See Statute of Limitations. 1. 12.— Real Estate Transaction— Significa- tion OF Transfer— Condition Pre- cedent TO Right of Action— Act of Resiliation. 'S'ec Signification. 13. — Construction of Statute— 20 & 21 Vic. c. 54, s. 12 (Imp.) — Criminal Prosecution — Embezzlement of Trust- Funds— Suspension OF Civil Remedy — Stifling Prosecution — Partnership. .S'cc Criminal Law, 0. PATENT OF INVENTION. 1. Combination — Old Elements — New and Useful Result — Previous Use. In an application for a patent the object of the invention was stated to be the con- nection of a spring tooth with the drag-bar of a st^eding machine and the invention claimed was " in a seeding machine in which independent drag-hais are used a curved spring tooth, deta^hably connected to the drag-b.i?3, the wife of D. on his death, would have been entitled to an allowance equal to one-half of his pension. Held, reversing' the decision of the Court of Review, Strong, C.J., and Sedgewick, J., dissenting, that D. after his retirement was not a i)ermanent official of the Government (if Quebec, and the transaction was not therefore, a resignation by him of office and a return by the Government, under art. G88, of the amount contributed by him to the pi'nsion fund, that the policy of the legis- lation in arts. (iSo and ODO is to make the right of a retired official to his pension in- alienable even to the Government; that D.'s wife had a vested interest jointly with him during his life in the pension and could maintain proceedings to conserve it; and therefore that the surrender of the pension should' be cancelled. Dionnc v. The Queen xxiv., 451 PETITION OF BIGHT. 1.— Contract for Public Work— Extras- Final Certificate — I'leading. Hee Conti'act, 5. 2.— Railway Subsidy — Application — Dis- cretion OF Crown — Trust. See Constitutional Law, 6. 3.— Constitutional Law — Powers of Ex- ecutive Councillors — " Letter of Credit " — Obligations Binding on Provincial Legislatures — Government Expenditures — Negotiable Instru- ment — " Bills of Exchange Act," 18(10— " The Bank Act," R. S. C. c. 120. See Constitutional Law, 11. PLEADING. 1.— Sufficient Traverse of Allegation BY Plaintiff— Objection First Taken ON Appeal. The plaintiff by his stateme'it of claim alleged a partnership iM'tween two defen- dants, one being married whose name on a re-.irrangnient of the partnership was snlv stitnted for that of hor husband without her knowledge or authority. TTHd reversing tlie judgment <'i the court below that a denial bv the married woman that " on the date alleged or at any other time she enteied into partnership with the .)ther defendant " was a sufficient traverBe of plaintiff's allegation to put the party to proof of that fact. Held, also, that an objection to the suffi- ciency of the traverse woum nut In- enter- tained when taken for the first time on aj)- peal,. the issue having been tried on the as- sumption that the traverse was sufficient. Mylkta v. Jackson j:xiii., 48j 2. — Signification op Transfer — Issue- Defense au Fonds en Fait. The want of signification of a transfer or sale of a debt as a bar to an action by the transferee is put in issue by a defense au fonds en fait. MurpJiy V. Bury xxiv., GCS 3.- -Bailees— Common Carriers — Express Company— Receipt for Money Parcel — Co.NDiTioNS Precedent — Formal Notice of Claim — Pleading — Money Had and Received — Special. Pleas — " Never Indebted." An express company gave a receipt for money to be forwarded with the condition indorsed that the company should not be liable for any claim in respect of the package unless within sixty days of loss or d image a claim should be made by written state- ment with a copy of the contract annexed. Held, that in an action to recover the value of the parcel, on the common count for money had and received, the plea of "never indebted." put in issue all material facts necessary to establish the plaintiff's right of action. The Northern Pacific Express Companu v. ilartin et al ^^vi., 13r. 4.— Res Judicata— Defence by— Judica- TtJRE Act. Under the .Judicature Act of Ontario res judicata cannot be relied on as a defence un- less specially pleaded. Cooper V. Afo/son't Bank . . . . xxvi., 611 r>. — Railway Company — Carriers — Con- necting Lines — Special Contract — Loss BY Fire— Nejgligence. In a statement of claim, to anticipate and reply to matters of defence is a highly im- proi>er practice. The Lake Erie and Detroit Raihcau Co. v. Sales xxvi., 6C.3 192 PLEADING. C. — Sheriff— '''respabs— Sale of Goods by Insolvent— Bona Fides — .Iudgment of Inferior Tribunal — Estoppel — Bar to Action— Kes Judicata — Fiiaudulent Preferences — Pleading. K. was a trader and in insolvt-nt circum- stances when he sold tlie whoU' of his stock in trade to D. At the time of this sale I), was aware that two of K.'.s creditors hid recovered judgments against him. The sher- iff afterwards seized the goods so sold, under executions issued ui)on judgments subst?- quently obtained, and uiion an interpleader issue tried in the County Court the jury found that K. had sold the goods with intent to prefer the creditors who held the jirior judgments, but that 1). had purchased in good faith and without knowing of such intention on the jiart of the vendor. Judg- ment was tliereupon entered against D. in the County Court and the judgment was affirmed by the Supreme Court of British Columbia, on tanc. In an action afterwards brought by D. against the sheriff for trespass in seizing the goo. 9. — Joint Stock Company — Irregular Organization — Subscription for Shares — Withdrawal — Surrender — Forfeiture — Duty of Directors — Powers — Cancellation' of Stock — Ultra Vires — " The Companies Act " — " The Winding-up Act " — Contribu- TORiES — Construction of Statute. After the issue of an order for the wind- ing-up of .a joint stock company incorporated under " The Companies Act." (R. S. C. c. 119). a shareholder cannot avoid his liability .is a contributor}- by setting up defects or illegalities in the organization of the com- panv as, under the provisions of the Act, such grounds may be taken only upon direct proceedings at the instance of the Attorney- General. The powers given directors of a joint stock company under " The Companies Act." (R. S. C. c. 119). as to forfeiture of shares for non-payment of calls, are intended to bo ex- ercised only when the circumstances of the- PLEDGE— POLICY. 193 shareholder render it oxpediout in the inter- ests of the eomimny, and they cannot lie em- ployed for the benefit of the shareholder. Common v. McArthur, 14th December, IS'JS, xxix., 23U !(».— PETiTION OF RiGHT — CONTRACT FOR I'uBi.ic Work — Final. Certificate — Extras — Certificate not Pleaded. See Contract, 5. 11.— Defense en Fait^Status of Plain- tiff— Special Denial — Art. 144 C. C. P. -See Practice, 13. PLEDGE. 1.— Trustees and Administrators— Fraud- ulent Conversion — I'ast Due Bonds, Transfer of — Negotiable Security — Commercial Paper — Debentures Transferable by Delivery— Equity OP Previous Holders— Art. 2287 C. C. —Estoppel — Brokers and Factors — Pledge — Implied Notice — Duty of Pledgee to Make Inquiry — Innocent Holder for Value— Arts. 1487, 1490 and 2202 C. C. Quebec Turnpike Trusts bonds issued un- der special Acts and Ordinances (Rev. Stats. Que., 1888, Sup. p. oO.^), are payable to I.eariM- and transferable by delivery. Certain of these bonds belonging to the estate of the late D. D. Young, had been used as exhibits and marked as such in the case of yoiiny v. Itattmy, and having lieen afterwards lost were advertised froker's knowledge of the agent's insolvency, were notice to pledgw of defects in the pledgor's title; and that the owners of the bonds, having by their act enabled their agent to transfer them by didivery, were estipped from assertiiig their title to thc- detriment of a bona fnlr holder. IfrhJ. also, (atlii'tning the opinion of the trial judge), that a bono fidr holder acqnif Jng conmierci.'il paper after dishonour t ikos S.C.D.— 13 subject not merely to the etiuities of prior parties to the paper but also to those of all [larties having an interest therein. In re KuroiKon Bank. Ex parte The Oriental Com- mfrcial Bank (5 Ch. App. 358), followed. Young ct aJ. v. J/acA'ider ssv., 272 2.— Title to Land — Sale— Right of Re- DE.MPT10.N — Effect as to Third Parties —Pledge— Delivery and Possession of Thing Sold. Real estate was conveyed to S. as security for money advanced by him to the vendor, the deed of sale containing a provision that the vendor should have the right to a re-con- veyii'ice on paying to S. the amount of the purchase money, with interest and expenses disbtirsed, within .a certain time. S. sub- se(piently advanced the vendor a further sum and extended the time for redemption. The right ■>f redemption Mas not exercised by the vendor within the time limited, and S. tO(di possession of the property, which was subse(iuently seized under an ex(>cution is- sued by v., a judgment creditor of the ven- dor. S. then tiled an opposition claiming the property under the deed. Held, reversing the judgment of the Court of Queen's Bench, that as it was shown that the parties were acting in good faith, and that they intended the contract to be, as it purported' to be, ««« vente d remiri, it was valid as such, not only between themselves but also as respected third persons. Salvas V. Vassal xsvii., 08 3. — Construction of Contract — Agree- ment to Secure Advances — Sale — Delivery — Possession — Bailment to Manufacturer. .s'(c Contract. 3'J. POLICE REGULATIONS. I I Master and Servant — Negligence — I " Quebec Factories Act "— R. S. Q. : Arts. aOKt to SOoH— Art. 1053 C. C— I Civil Responsibility — Accident, Cause i OF — Conjecture — Evidence — Onus of Prc^of— Stati:t.\ble Duty, Bre.-^ch of ! -Police Regulations. Sec Master and Servant, 7. POLICY. 1. — Of Insurance Against Fire — Condition IN — Particular Account of Loss — Finding of .Tury— Evidence. Sec Insurance. Fire. 1 194 POSSESSION— PRACTICE. 2.— Of Insurance Against Fire— Condition Against Assigning— Breach— Chattel Mortgage. See lusurance, Fire, 2. 3. — Marine Insurance — Misrepresenta- tion-Intent to Deceive — Materi- ality. See Iusurauc-c\ Marine. 1. ^. — Life Insurance — Condition — Note tJiVEN FOR Premium- Non-payment- Demand FOR i'AYMBNT AFTER MATURITY Waiver. Bee lusurauce. Life, 2. 5._Of Insurance Against Fire- Change OF Title— Chattel Mortgage. See Insurance, Fire, 3. POSSESSION. 1.— Action on Disturbance— Possessory- Action — " Possession Annale " — Arts. })4tj AND 948 C. C. P.— Nature of Possession of Unenclosed Vacant Lands — Boundary Marks — Delivery OF Possession. In 1890, (J. purchased a lot of land 2."» feet wide, and the vendor pointed it out to him, on the ground, and showed him the pickets markiu;; its width and depth. The lot remained vacant and unenclosed up to the time of the disturbance, and was asses- sed as a 25 foot lot to G., who paid all uiuui- ciiwil taxes and rates thereon. In 1895 the adjoining lot, which was also vacant and unenolosod, was sold to another person, ^^l'o commenced laying foundations for a build- ing, and in doing so, encroached by two feet on the width of the lot so purchased by G., who brought a iwssessory action within a couple of months from the date of the dis- turbance. HcJd. that the posxcs/^ion iinnalc. re<]uired by article 940 of the Code of Civil Prooe- S C. C. P., the Sheriff can- not proceed to the sale of property under a writ of ve^uliiioiii exponas unless said writ is issued by an order of the Court or a .Tudge. Bissonctto v. Laurent (1.") Rev. Leg. 44) ap- proved. Taschereau and Gwynne, JJ., dis- senting. On the qu(>stion of want of jurisdiction raised by respondent it was held thit a judgment in an action to vacate the Sheriffs sale of an immovible is appealable to the Supreme Court under section 29 (h), of the Supreme and Exchequer Courts Act. Dufintnc v. Dixon (l(i Can. S. C. R. 50(5) followed. Lefcuntun r. Vcronneau .. .. xxii., 203 196 PRACTICE. r>n.— In tlu'ir doclirntion the plaintiffs iillcgctl that tlif defendant had been in posses- sion of cert.-iin property since Ittii May, 1.S70, iind after tin- cwiuiio they moved the eourt to amend the declaration by substituting for the " Dth May, 1870," the words " 1st Dec, 188G." The motion was refused by the Su- perior Court, which held that the admission amounted to a judicial avowal from which they could not recede, and this decision was alHrmed by the Court of Queen's Bench. On appeal to the Supreme Court, it was Held, reversing the judgment of the court below, Fournier, J., dissenting, that the mo- tion should have been allowed by the Super- ior Court, so as to make the allegation of l)Ossession conform with the facts as dis- closed by the evidence. Art. 1245 C. C. liakcr V. La Sociiti dc Consti-uction Mctro- politaine xxii., 304 U.— Pbactii^e— Pakties to Action— Tres- pass TO Mortgaged Property — First AND Subsequent Mortgages— Owner OP Equity of Redemption — Transfer of Interest before Action. Under the Nova Scotia Judicature Act the owner of the equity of redemption can main- tain an action for trespass to mortgaged pro- perty and injury to the freehold though after the trespass and before action brought he has parted with his equity. — Gwynne, J., dis- senting. Mortgagees out of i>ossession cannot, after their interest has ceased to exist, maintain an action for such trespass and injury com- mitted while they held the title. I'er (J Wynne, .T. — A mortgagee in posses- sion at the time the trespass and injurj- is committed is the only person damnified thereby and can maintain an action therefor aftc- he has parted with his interest, nor is he estopped therefrom by having con- sented to a sale to one of the trespassers of the personal property as to which the trespass was committed. The tort feasors could not set up such estopix^l even though the amount recovered from them with the sum received by such mortgagee for his in- terest should exceed his mortgage debt Brool-ficld v. Broicn xxii., 398 7. — Conveyance — Ii-legal or Immoral, Consideration — Foreclosure — Order FOR Possession — Pleading — Parties. T'nder the .Judicature Act of Ontario an action for foreclosure is not to be regarded as including a right to recover possession of the mortgaged premises as in ejectment. and the rule that in such iction the plaintiff may obtain an order for delivery of pos- session doi'S not apply to a case in which the mortgage sought to be foreclosed is held void and plaintiff claims iwssessiou as ori- ginal owner and vendor. Under said Judicature Act, as formerly, the idea to an action on a contract that it was entered into for an immoral or il- legal consideration must set out the particu- lar facts relied upon as establishing such consideration. Quaic: Can the purchaser of the equity of redemption set up such defence as against a mortgagee seeking to foreclose, or is the defence confined to the immediate parties to the contract? Clark V. Uayar xxii., 510 S. — Information of Intrusion — Subsequent Action — Res Judicata — Beneficial In- terest in Land. In proceedings on an information of in- trusion exhibited by the Attorney-General of Canada against the apiM-llaut, it had been adjudged that the appellant, who claimed title under a grant from the Crown under the Great Seal of British Columbia, should deliver up possession of certain lauds situate within the railway belt in that province. riw Qucin v. Funccll (14 Can. S. C. R. 392). The appellant having registered his grant and taken isteps to procure an indefeasible title from the Regis,. ar of Titles of British Columbia, thus preventing grantees of the Crown from obtaining a registered title, another information was exhibited by the Attorney-General to direct the appellant to execute to the Crown in right of Canada a surrender or conveyance of the said lands. Held, that the proceedings on the informa- tion of intrusion did not preclude the Crown from the further remedy claimed. FartrcJl v. The Queai xxii., 553 8. — Suit in Equity— Alternative Relief- Amendment — Variance from Relief Cl^vimed by Bill. At the hearing of a. suit by P. to enforce performance of an agreement by the devisee of land under a will to convey it to P. he claimed to be entitled to a decree, in the event of the case made by his bill failing, on the ground that the said will was not registered according to the registry laws of New Brunswick, and was therefore void as against him an intending purchaser, and C. had an interest in the land he had agree'l to sell to him as an heir-at-law of the estate- PRACTICE. 197 lliUl. that on a bill olaiiuiiig title under the will, 1'. foiilil not have relief based on the proposition that the same will was void against him, and no ameuduient could be perniitii'd to malic a ease not only at var- iauee with, but autogonistie to, that set out in the bill, especially as such amendment was not asked for until the hearing. Porter V. Hah xxiii., 2()5 g.—EXECUTORS AXD TRUSTEES— ACCOUNTS — .TuRisDicTiox OF Probate Court — Res Judicata. A Court of I'robate has no jurisdiction the passing of accounts containing items over accounts of trustees under a will, and relating to the duties of both executors and trustees is not, so far as the latter are con- cerned. V)inding on any other court, and a Court of E«iuity, in a suit to remove the executors and trustees, may investigate such accounts again and disallow charges of tin? trustees which were passed by the Probate Court. Grant v. Maclarcii xxiii., 310 10.— Public Street — En'croachmext on'— Building " upon " or " close to " the Line — Charter of Halifax, ss. 4.>4, 4.">."> — Petition to Remove Obstructio.n" — .Judgment on — Variance. By sec. 4.'»4 of the Charter of the City of Ilalifix any person intending to erect a building upon or close to tlic line of the street must first cause siich line to be loca- ted by the City Engineer and obtain a certi- ficate of the location: and if a building is erected uix)n or close to the line without such certificate having been obtained the Su- preme Court, or a .Judge thereof, may, on petition *of the Recorder, cause it to be re- moved. A i)etition was presented to a .Judge, under this section, asking for the removal of ,a porch built by R. to his house on one of the streets of the city which, the petition alleged, was upon the lino of the street. A porch had been erected on the same site in lS."i and removed in 18S4: while it stood The portion of the street outside of it. and since its removal the portion up to the house, had lieen used as a public side- walk: on the hearing of the petition the original line of the street could not be proved, but the .Judge held that it was close to the line so used by the imblic ;ind ord.^red its removal. The Supreme Court of Nova Scotia reversed his decision. On appeal to the Supreme Court of Canada: lliJd, that the evidence would have justi- fied the Judge in holding tiiat the porch was upon the line but having held that it was close to the line while the petition only called for its removal as upon it, his order was proiK'i-ly reversed. Citu of Halifax v. Kwrcs . . . . xxiii., 340 11.— Game Laws— Arts. 140o-1400 R. S. Q. — Seizure of Furs Killed out of Seaso.n— JU.STICB of the Peace— Juris- diction — PnoHiniTioN, Writ of. Under art. 141).% read in connection with art. 140y R. S. Q., a game keeper is authorized to seize furs on view on Itoard a schoon(>r, without a search warrant, and to have them brought before a Jusitce of the I'eace for examination. A writ of prohibition will not lie against a magistrate acting under st>cs. 140."(-14Ui» R. S. Q. in examination of the furs so seized where he clearly has jurisdiction, and the only com- plaint is irregularity in the seizure. Companif of Adventurers of Emjtand v. Joan' nette xxiii., 4ir> 12. — Municipal Corporation — Drainage- Action FOR Damages — Reference — Drainage Trials Act, 54 Vic. c. 51— Powers of Referee. Upon reference of an action to a referee under The Drainage Trials Act of Ontario (54 Vic. c. 51), whether under s. 11, or s. 19, the referee has full i>ower to deal with the case as he thinks fit, and to make_ of his own motion, all necessary amendments to enable him to decide according to the ver>' right .Hid justice of ;he case, and may con- vert the claim for damages under said s. 11 into a claim for damages arising under sec. 5!>1 of the Municipal Act. One whoso lands in the adjoining muni- cipality have been damaged cannot, after the by-law has been apiK'aled against i nd confirmed, and the lands assessed for bene- fit, contend before tlie referee to whom his action for such injury has been referred un- der the Drainage Trials Act. that he was not liable to such assessment, the matter having been concluded by the confirmation of the by-law. The referee has no jurisdiction to adjudi- cate as to the propriety of the ro\ite selected by the engineer and adopted by by-l.aw. the only remedy, if any. being by appeal against the project pronosed by the by-law. A tenant of land may r(>cover damages suffered during his occupation from construc- tion of drainage work, his rights resting 198 PRACTICE. upon the same foundation as those of u fite- lioliler. Toirnahip of Ellicc y. llilcg. Touiiship of ElHce \. VruokK . . xxiii., 4'iU la.— Defense en Fait— Status ok I'lain- TiFF— Special. Denial— Aht. 144 C. C P. The iiiiiility assumed by the iilaiutiff in the writ and declaration is considered ad- mitted unless it be specially denied by the defendant. A diffnuc en fait is not a special denial within the meaning of art. 144 C. C. P. Martindalc v. Poiriin xxiii., ijOT 14.— Set-off— .Ti'DGMENT Against Stranger TO Cav.se — 1'rete-nom. A def<'iidant cannot set up by way of com- pensation to a claim due to plaintilT a judg- ment (purchased subseciuent to the date of the action), against one who is not a party to the cause, and for whom the plaintiff is alleged to be a pr6te-iiom. Bury V. Murrnn xxiv., 77 15. — Amendment — St'MxiONr.T. Party in Differe.vt Capacity — Xew Writ. Where parties are V)efore the court qua executors and the same parties should also be summoned qua trustees an amendment to that effect is sufficient and a new writ of summons is not necessaiy. Ferrier v. Trepantticr xxiv., 86 16. — Practich: — Equity Suit — New Trial — Construction of Statute as to — I'ersdna Designata — ,")3 Yic. c. 4, s. So (N. B.). 53 Vic. c. 4, s. S." (N. B.). relating to pro- ceedings in e(iuity, provides that in an equity suit " either party may apply for a new trial to the Judge before whom the trial was held." 7/(7(7, reversing the decision of the Supreme Court of New Brunswick, Taschereau, J.. dissenting, that such api)lication need not be made before tlie individual iK-fore whom the trial was had but could be made to a Judge exercising the same jurisdiction. Therefore, where the .Tudge in efiuity wlio had tried' a cai-e resigned his office an appli- cation for a new trial could be made to his successor. Footncr v. Figcs, (2 Sim. 319), followed. Bradshaw v. Baptist Foreign Mission Board. xxiv., 351 IT.— Reference — Report of Referee- Time FOR Moving Against- Notice or Appeal— Cons. Rules S4S. ,S4i)— Exten- sio.N of Ti.me — Confirmation of Report by Lapse of Time. In an action by V. against a municipality for damages from injury to property by the negligent constructiun of a drain, a refer- ence was iirdered to an dllicial rel'erei' "for iiii|uiry and report imrsnant to sec. 101 of the .ludicalure Act and rule .V)2 of the High Court of Justice." The referee reiiorted that the drain was improperly constructed, and that V. WIS entitled lo ."ftiOO damages. The muincipality appealed to the Divisional Court from the report, and the court held that the appeal wjis too late, no notice having been given within the time retiuired by Cons. Rule S4S, ind refused to extend the time for appealing. A motion for judgment on the report was also made by V. to the court on which it was claimed on behalf of the municipality that the whole case should be gone into upon the evidence, which the court refused to do. Held, atlirming the decision of the Court of Appeal, that the apiK'.al not having Ijeen brought within one month from the date of the report, as re(iuired by Cons. Rule 848, it was too late; that the report had to be filed liy tlie jvarty appealing before the ap- p«'al (duld be brought, but the time could Hot be enlarged liy his del.'ty in filing it; and that the refusal to extend the time was an exercise of judicial discretion with which this court would not interfere. Held. also. (Twynne. J., dissenting, that the report having been confirmed by lapse of time uid not appealed against, the court on the motion for judgment was not at lil)erty to go into the whole case upon the evidenct>, but was bound to adopt tlie refer- ee's findings and to give the judgment which those findings called for. Freehorn v. Tan- diisen (1.") Ont. I'. R. lif>4). approved of and followed. Totntship of Colchester South y. Talad. xxiv.. 022 18. — Administration Proceedings — .Juris- diction OF Referee — General r>iREC- tions. A referee before whom administration proc(>edings are taken has no aiithority to make an order depriving a solicitor of his lien for costs on a fund in court on the ground that adverse parties had a prior claim on such fund for costs which said solicitor's client had been personally ordered to pay> PRACTICE. 199 tlip nilniinistration ordor not liavintr sh dir- ,.(tf: sii ii iiitfiffri'iu'c witli tho solicitor's /xtHid /«wm' rife'lit to the fund. Bell V. 1Vr;o;if xxiv.. fiEO 1!).— Husband and Wife— runciiAsi: of Land by Wife— Ue-8ai>f.— (Jahnishef. OF I'URCHASE MoNEV ON— DeBT OF Husband — Statute of Elizabeth — Hinderi.vo or Deleaving Creditohs. D. having entori'd into an aKreemont to liiiichiso land had tho oonveyance mode to liis wife who p.-iid the furchaso nionoy and (ititiiincd a (•crtiticate of ownership from the rejristrar of deeds. I>. having' tran^loned to her all his iiitenst l>.v dceil. She sohl the land to M. and executed a transfer ac- kuowled;;iiig i)ayinent of the purchase money, which transfer in some way came into the possession of M.'s solicitors, who ha. to determine the title to the money under the garnishee order, and the money was, by consent, paid into court. Fhe judgment (reditors claimed the money on the gr(mnd that the transfer of the land to D.'s wife was voluntary and void under the Stattite of Elizabeth, and th.it she therefore held the land and was entitled to the purchase money on the resale as trustee for I). Held, reversing the decision of the Supreme Court of the North-West Territories, that under the evidence given in the case, the original transfer to the wife of D. was honn fide: that she paid for the land with her own money and bought it for her own tise: and that if it was not bona fide the Supreme Court of the Territories, though exercisitip the functions and possessing the jiowers formerly exercised and possessed by courts of ecpiity, could not, in those statutory pro- ceedings, grant the relief that could have been obtained in a suit in equity. H(1d. further, also reversing the judgment appealed from, that even if the proceeilings were not hoitci fide the garnishee proceed- ings were not properly token: that the pur- cha.se money was to have been paid by M. on delivery of deed of transfer, and the ven- dor never nndertook to treat him as a deb- tor: that if there was a debt it was not one which !>., the judgnnnt debtor as against whom the garnisliee procc'edings were taken, coidd maintain an action 011 iu his own riglit and for his own exclusive beiielit: that I>.'s wife was not precluded, Viy having assented to the issue and to the money being paid into court, from claiming that it could not Ih- attached in these pro- ceedings; and that the only relief possible was by an independent suit. iHmohoi V. Hull xxiv., GS3 20.— Appeal, for Costs— Action^ in War- ranty— I'rocsedings BY Warrantee Before .Tudoment on Principal De- mand. It is only IS regards the principal action that the action in warranty is an incidental demand. Between ilie warrantee and the warrantor it is a princiiml action and inay be brought after judgment on the principal acti.m, and the defendant in warranty has no interest to objc'-t to the manner in which he is called in where no (luestioii of juris- diction arises and he sutlers no prejudice thereby. But if a warrantee elect to take proceedings against liis warrantors In'fore he has himstdf been condemned he does so at his own risk, and if an unfounded action has been taken against the warrantee and the warrantee does not get the costs of the action in warranty included iu the judgment of dismissal of the a( ti«>n against the prin- cipal i»laintilT, he must bear the conse- riuences. Arrhihdld v. dcT.islc. llaher v. diLixlc. Moinit v. dcLisle ^xv., 1 21.— Case in AprEAD— Additions made to .7udgm3nts after institution of Appeal. Per Taschereau, J.- Where a court had pronounced judgment in a cause before it. and after proceedings in appeal had been instituted certain of the .Tudges filed docu- nu'iits with the Prothonotiili-y purporting to be additions to their res])ective ojiinions in the case, such documents wi>re improperly allowed to form part of the case on appeal and could' not be considered by the appel- late court. Mayhew rf Stone xxvi., 58 22.— Devolution of Estates Act. 49 Vic. (O.) c. 22 — Added Parties— Orders 4fi & 48. Ontario Judicature) Act— R. S. O. (1887) c. 109. s. 30. A testator divided his real estate among his three sons, the iioition of A. C . the eld- est, being charged with the payment of TOO PRACTICE. I $l.rKtO to each of liis l.ri>tlii'rs. ninl its pro- jxirtioii of the widow's dower. The will also proviilod that " nhoiiid any of my three Boiis without lawful issue and h-ave a wiflow, she shall li.'ive the !»tiin of htty dol- lars per aiiiiuin out of the estate s(j long us she remains unmirried, and the iialance of the estate siuill revert to his l.rotiiers with the said tiftv dollars on her marria«e." A. C died after the testator, leaving a widow, but no issue. Held, tliat the mortgagee of the reversion- ary interest of one of his brothers in the lands devised to A. ('. was iniiiroperly addeil, in the Master's Olliee, as a parly to an ad- ministration aetioli. and rould take olijee- tion at any time to the proeeeding either by way of appeal from the report lU' on further directions, and was not limited to the time mentioned in Order 45S of the Supreme Court of Judicature, which refers only to a motion to discliarge or vary the decree. Coicun tt al. v. -Ulvn vt ul x.wi., li'.CJ 23.— Rkplevin — Equitablk Title — Prin- CIP.\L AND AgE.NT — ADVAXCE.S TO AGENT TO I{rv Goods— Trust Goods Mixed WITH Those ok Agent. I'nder the )»ri>sent system of iirocednro in Ont.irio an eciuitable title to chattels will support an action of replevin. Carter v. Long d Bixbn <. . . . xxvi., 4:W 24. — Appeal— Collocation and Distribu- tion—Art. 7(51 C. C. P.— Hypothec-art Claims — Assignment — Notice — Regis- tration — Prete-no.m — Arts. 20 and 144 C C. P. — Action to Annul Peed — Parties in Interest — Incidental Proceedings. The appeal from judgments of distribu- tion under article 7<>1 of the Code of Civil Procedure is not restricted to the parties to the suit, but extends to every person having an interest in the distribution of the moneys levied under the execution. The provision of article 144 of the Code of Civil Procedure that every fact of which the existence or truth is not expressly de- nied or declared to lie unknown by the nlead- ings tiled shall be held to be admitted, ap- I)lies to incidental pn>ceedins:s ui>oii an ap- peal in the Court of Queen's Bench. The nullity of ,i deed of assignment can only be invoked by proceedings to which all persons interested in the deed h.ave been made parties. Giiert'm v. Gosselin xxvii., 514 25.— .Vction — Service of— .Judgment by IJekault— Opposition to .Iuhoment — Reasons oe — " Uescissoire " .Ioined with •' Uescindan-t "—Arts. It!. MO ei urn.. AK\, 4.SS>, C. C. 1'.— False Uesturn OF Service. No entry of defatdt for iion-api>enranc»- can 1h' maile, nor e.i- purtr judgment ren- dered, against a defendant who has not iH'en duly served with the writ of summons, al- though the paiMTs in the action may have actually reached him through a i)ersoii with whom they were left by the bailiff. The iirovisions of articles 4S.''. and follow- ing of the Code of Civil I'rocediire of Lower Canada, relate only to cases where il tlefeii- dant is legally in default to appear or to plead and have no application to an rx pnrto judgment rendered for default of appear- ance, in an action which has not been duly served upon the defendant, and the defen- dant ma.v\ at any time seek relief against any such judgment and have it set aside, notwithstanding tint more than a year and a day may have elapsed from the rendering of the same, and without alleging or estab- lishing that he has a good defence to the ac- tion on the merits. An opposition asking to have a judgment set aside, on the ground that the ili'fendanr ■has not been duly served with the action, which also alleges the defeiKbnU's grounds of defence upon the merits, should not be dismissed merely for the reason that the rcxrissolre has thus been improperly joined with the nsriiKUiiit. Twcottv v. Ditiifirrcan xxvii., oS:> 20. — Costs — Repayment of — Reversal or Supreme Court .Judgment — Practice. A judgment of the Su])renie Court of Can- ada allowing an appeal with costs (20 Can. S. C. R. 4S1 1, was carried, in further ip- peil. by the respondents to Her Majesty's Privy Council, where the decision was re- versed (d.snsi A. c. :*or,: os l. J. i4i. The respondents had. however, in the mean- time paid the costs under the order of thi! Supreme Court. On motion in the Supremo Court of Can- ada, on behalf of the said respondents, it was held that they were entitled to an ordei- directing the re-payment to them of the costs so paid, the amount of such costs to be set- tled upon an inquiry before the Registrar of the Supreme Court of Canada. (Motion granted with costs). Thiqgnn v. The Loiulcm and Canadian Loan and Agency Co. et al., 23rd March, 1S93. PRACTICE. 30t 27 —Appeal— SpKriAL Tase— .Tcdoment Ap- ' imrtics Iiii.l not Ir-oij siimmoiif.l. The Court PEALED FRuM— U. S. C. o. 13'), 8. 44— of Qiir.iis Hfiiili, ig. It. 3 (J. B. r..VJ>, re- I'RACTICE, Till' Siiprcme Coiu-t of I'anada will not hear nn !ii)iM'al wln-n tin- jiiil}:nii'nt iipiM-aleil ; friiiii iloos not iippi'iir in tin- ciisf lilcil. | Niitc— Bct'oro thf hoarinK. attention was dra.vn to tlu> fmt tlmt tlio lornnil jiKlynifnt or cinlcr i>t' ilu' court Ih'Idw was not in tlio piiritiil " Case." Upon couusol undertaking to hav»» it taken out. printetl and added to the " Case," the court consented to hear the appeal, but tlie Chief Justice intimated that, in future, no apjieal woidd lie heard if the •• Cise " did not contain the formal jud?,Muent of the court helow. rite Town of 8t. Stephen v. Tliv Cuuiity of Charlotte, 8th Xovoniber, ISIM. 2S.— Appeal— iMsMissAL for Want of Appearance — Application to Rein- state. On motion to reinstate an appeal wliicli had been dismissed because no counsel had appeared for api)ellant when the case was called, the only Ki'oiiud stated for askiiij; the induljrence of the conrt was that coun- sel had been present not loiij^ before the case was .ailed and had felt satisfied that it would not bo reached that day. but that the cases before it liad been unexpectedly disposed of. The court declined to reinstate the appeal and refused the motion with costs. Foi-an V. Uandlvy, 13th March, ISOu, xxiv.. 706 -f^. — Appeal — Resignation- of .Ti'noE — Disqualification— Re-heauinc, —Prac- tice. M'luTi. OHO of the .Indoles who sat durins the hearing of an appeal in which judjrinent had been reserved, resigned his commission before the jndsment was rendered, and there- by became dis(]uilified from adjndicatii): up- on the apjieal. the practice of the Supreme Conrt of Canada i.s to order that the case should be re-heard at the next followin;; ses- sion of the court. TCHght V. The Queen, l.'th March, 1805. 30. — Will — Action to Annul— Capacitt to Make — Evidence op Capacity — Onus — Parties — Mis en Causes. An action for annulment of !\ will, the execution of -which was procured when, as alle;red. the testator was not capable of mak- ing it, was dismissed because nil necessary rersed this -Iccision, held that the execu- tion of the will had In-en i>rocured by undue intluence, and annulU'd it. The Supreme Co\irt of Canada alllrmed the (h'cision of the Court of (.Queen's I5ench, as to parties, holding that the Superior C lUrt slionld itself have suniinoned the parties deemed necessary. It also athrmej ti:e judg- ment as to the will { coiniiletiiig the proofs of relation- ship and completing the re< ird so as to in- clude the jiidgnieius cm motions in the courts below to reject the evidence put in on that imint. The court, after hearing counsel for both parties, ordered that the case should be remitted to the trial court for the purpose of re;>eiving evidence as to the relationship of the jdaintifC and the identity of the de- ceased, and no other evidence, but, as n condition preceilent to such indulgence, thrt the r.Iaintiff should pay to the defendants, appellants, the costs incurred by them in the Court of Queen's Bench, appeal side, ancl in the Suiierior Court for Lower Canada, such costs to be jmid within .a time limitrd and in default, the appeal to star 1 allowed, and the action to be dismissed with costs to the defendants in all the courts without further order, said costs to be taxed at the diligeui-e of said respondents, the record be- ing retained in the Supreme Court office for the time mentioned, when, if it appeared tliat the costs had been taxed and paid. 202 PRACTICE. then that the record shonhl be remitted to the trial court for the iniriioses above nien- tioued. C; Wynne, J., dissented, and King, J., while concurring as to remitting the record, did not feel disposed to make the iilaintiff jiay the costs of the Court of (Queen's Bench. Davidson H al. y. Tremhhxy, 10th May, 1895. 32.— New TRiAiy— Consent Order— Neglig- ence— Street lUlLAVAY— ACCIDE.NT TO Workman on TrvVck— Contributory Negligence. Tile Iilaintiff. was injured by a car strik- ing him while at his work on the track. In an action for damages the cop:i.any de- fended on the grnnncisiou was attirmed by the Supreme Court of Canada, Gwynne, ,T., dissenting. On. counsel for the company stating that a new trial was not desired, judgment was ordered to be entered for plaintiff with $.">(H) damages, the amount assessed by the jury at the trial, and the appeal was dismissed with costs. The Ramilto-ii ,'itrect Raihcay Co. v Voran 20th May, 1895 xxiv., 717 33.— School Corporation — Decision op- Superintendent OF Public Instruc- tion — Appeal — Final Judg.ment - Mandamus— K. S. Q. Arts. 2055, 205(*)— 55 & .')6 Vic. c. 24, ss. 18 and 19 (Que.). Under the provisions of article 20.")5 of the Revised Statutes of Ouebec, as amended by .^•5 & 50 Vic. c. 24, ss. IS and 19. certain ratepayers of a school district appealed to the Superintendent of I'nblic Instru<'tion for the I'rovince of Quebec, who thereuiion ren- dered a decision and gave orders and direc- tions respec'ting the erection of a school house, which, Imwever. the School Commis- sioners neglected to perform. Held, affirming the judgment appealed from, that in such cases, the decision of the Sup«'rintendent of Public Instruction was lin::!. that no appeal therefrom wotild lie to the Stiiierior Court_ and that the proper re- medy to enforce the execution of the orders and directions of the Superintendent was by mandamus. Leu CommisHoirex d'h'colc dc St. Charles v. Cordcau tt al., Irth December, 1S95. 34. — Findings of .Jury — Answers to (.Juestioxs— New Trial — Negligence— Kailway- Company — Act of Incorpora- tion—Change of Name. Where it appeared on the argument before the Supreme Court of Canaila. that the jury h:id not properly answered some of the ques- tions submitti'd to them at the trial, a new trial was ordered. Pudsei/ V. The Dominion Atlantic Ry. Co., 22nd Febrnarj-. ISOt! x.w., 091 Note.— In other respects the judgment of the Supreme Court of Nova Scotia (27 N. S. Kep. 4y)Sl, was alBrnied. 35. — Testamentary- Succession — Execu- tors—Balance Due by Tutor— Prac- tice — AcTifiN for Account — Provis- ional Possession — Envoie en Posses- sion — Parties. The appeal was from tlie judgment of the Court of Queen's Bench for Lower Canada (Q. K. (i Q. B. ,341. which reversed the de- ,iioi>). „f n testamentary succes- sion against an executor who has had the administration thereof should implead all the heirs as plaintiffs, that failure in the joinder of any one of them would be fatal and the defendant conld not be compelled to call them in as parties to the action, I and further, that, in a case where therp were several executors, such actions must be brought against them jointly and conld not be validly instituted against one of them even with the extra judicial consent of the others. The Supreme Court of Canada affirmed the decision of the Court of Queen's Bench, and dismissed the appeal with costs. Cream et al. v Dnridson. 1st Mav. 1S9V, xxvii.. ;'G2 PRACTICE. 20J 36.— Delay in Proceedings— Motion to Dismiss for Want of Prosecution — Interlocutory Application — Jurisdic- tion of Judge in Chambers — S. C Rules 26, 39, 53. In a case whit-h had not been inscribed on the roll for hearing, a motion was made on behalf of the resiKiiidcnt, liefore the full court, to dismiss the appeal for want of pro- secution, under the 53rd rule of practice of the Supreme Court of Canada. The court refused to hear the motion, as it was an interlocutory proceeding within the jurisdiction of a Judge in Chambers, and directed that the motion should be made in Chambers. Fovrniff v. Baraalou, 3rd May, 1898. 37.— Habeas Corpus— Change in Relation OF I'arties 1'ending Appeal. Upon the calling for hearing of the appeal (which was from a judgment of the Su- preme Court of British Columbia, refusing a writ of Habeas Corpus, for the i)0ssessi()n of Quai Sing, a Chinese female, under agej, counsel for the respondent produced to the court an order cf the Supreme Court of British Columbia, dated subseciuently to the judgment appealed from, V>y which it ap- lieared that the respondent, the matron of a rescue home, haoal had been regularly inscribed on the roll for hearing at the May sittings of the Supreme Court of Canada, and on 18th May, 1898. the case being called in the order in which it appeared upon the roll, no person appeared on behalf of tho appel- lant. Counsel ajtpeared for the respondent and asked that the appeal should be dismis- sed for want of pro.secution. The court re- ferred to the fact that the case had been called in its proper place on the roll on the previous day and allowed to staml over be- cause counsel were not present on the part of the appellant, and the apjujal was dismis- sed with costs. On 20th May, 1898, application by motioa was made on behalf of the apiu'llaut to have the apiieal reinstated and restored to its place on the roll for hearing on such terras as the court might deem appropriate, the ground stated for reciuesting such iudnlgeuce- being that counsel for the apiK'Uant were under a misapprehension as to the time when the hearing was to take place. The motion was oi)posed by counsel for the respondent, Avho objected that proper notice of the mo- tion had not been given as required by the rules of practice. The court refused to hear the motion or to make an order staying the issue of the certilicate oj the judgment already rendered, dismissing the appeal, but under the circum- stances the motion was dismissed without costs. The Han Mines {Limited) v. Jfowe, 20th May, 1898. 39.— Winding-up Act— Moneys Paid out op Court— Order Made by Inadvertence. —Jurisdiction to Compel Repayment— R. S. C. c. 129. ss. 40. 41, 94— Locus Standi of Receiver-General— 55 & 56 Vic c. 28, s. 2— Statute, Construc- tion OF The liquidators of an insolvent bank passed their final .'iccoinits and ]iaid a balance, re- maining in their hands, into court. It ap- peared that by orders issued either through error or by inadvertence the balance so de- I>osited had been paid out to a person who was not entitled to receive the money, and the Receiver-General of Canada, as trustee of the residue, intervened and applied for an order to have the money repaid in order to be disposed of under the provisions of the Winding-up Act. IteUt, affirming tho decision of the Court of Appeal for Ontario, that the Receiver- (ieneral was entitled so to intervene al- though the three years from the date of the deix.sit mentioned in the Winding-up Act had not e.xpired. TTeJ(f, also, that even if he w.as not so en- titled to intervene the i)rovincial courts had jurisdiction to compel repayment into court of the moneys improi>erly paid out. Hogahoom v. The Reeeirer-Ornnnl of Camda. In re The Central Bank of Canada, xxviii., 192- 204 PRACTICE. 40. — Appeal — Jurisdiction — Amount in Controversy — Affidavits (Jonflicting AS to Amount— The Exchequer Court Acts— 5<) & 51 Vic. c. IG, ss. 51-53 (D.) —54 & 55 Vic. c. 20, s. 8 (D.)— The Fatent Act— R. S. C. c. 61, s. 3G. On a motion to quash an appeal where the respondt'nts tiled affiiluvits stating that the amount in controver.'fy was less than the amount fixed by the statute as necessary to give jurisdiction to the appellate court, and affidavits were also filed by the appellants, showing that the amount in controversy was sufficient to give jurisdiction under the stat- ute, the motion to quash was dismissed, but the appelhiiits w- re ordered to pay the costs, as the jurisdiction of the court to hear the appeal did not apjM'ar until the tiling of the appellant's affidavit in answer to the mo- tion. DresclKl ct al. v. The Ancr Incandescent Light Manufacturing Co x.Kviii., 268 41.— Appeal— Privt Council Cross-appeal — Practice — Costs. Where the respondent has taken an appeal from the same judgment as is complained of in the appeal to the Supreme Court of Canada, to the Judicial Committee of Her Majesty's Privy Council, the hearing of the appeal to the Supreme Court will be stayed imtil tlu> Privy Council appi'al has been de- cided, upon the respondent unilertakiug to proceed with diligence in the appeal so taken by him. In the case in questicm the costs were or- dered to be costs in the cause. Eddy V. Eddy, 4th October, 1S9S. 42. — Appe.\l— Question of Local Practice —Inscription for Proof and Hearing — Peremptory List — Notice — Kequete Civile. Where a grave injustice has been inflicted upon a party to a suit, the Supreme Court of Canada will interfere for the purpose of granting relief although the question in- volved uixiii the appeal may be one of mer(> local practice only. Lambe v. ArniHtrong (27 Can. S. C. R. 390), followed. Under a loci practice prevailing in the Superior Cuurt in the District of Montreal, the plaintiff obitiincd an order from a judge fixing the day peremptorily for the adduction of evidence and hearing on the merits of a case by precedence over other cases pre- viously inscribed on tht roll and without notice to the defendants. The defendant did not appear, and judgment by default was entered in favour of the plaintiff. Held, reversing the judgments of both courts below upon the defendant's requeie chile, that the orc^pr was improperly made for want of notice to the adverse party as re(iuired by the rules of practice of the Supreme Court. The Eastern Toicnahips Bamk v. Swan, 21st November, 1898 xxis., 193 i 43.— Vacating Sheriff's Sale— Petition- Exposure to Eviction— Refund of Price of Adjudication Paid — Arts. 700, 710, 714, 715 C. C. P. The provisions of article 715 of the Code of Civil I'rocedure of Lower Canada do not apply to sheriffs sales which have been perfected by payment of the price of adjudi- cation and execution of the deed, nor does that article give a right to have such a sale vaoated and the amount paid refunded. The procedure by petition for vacating I sheriff's sales can only be invoked in cases i where an action would lie. The Trust and Loan Co. V. Qumtal (2 Dor. Q. B. 190), fol- lowed. The joinder of the curator to an unopened substitution is not necessarj- in an action uix)n the obligation in a mortgage which has priority over the instrument creating the sub- stitution, and a sheriff's sale in execution ot a judgment upon such an obligation against the grevv de substitution has the effect of dis- charging the lands from the unopened sub- stitution, notwithstanding that the curator has not been made a party to the action or i proceedings. Chef dii Vadtboncaur v. Thr I City of Motttreal (29 Can. S. C. R. 9), fol- ! lowed. Dcschamps v. Bury, 14th December 1898. xxix., 274 44. — Appeal — Election Petition — Dissolu- I TioN OF Parliament — Abatement of I Proceeding-^ — Return of Deposits — I Payment our of Court Below. I Sec Election l.nw, 1. I 45.- Action Confe.ssoire — Intervenant— .Joint Condemnation — Procedure — In- TERFr.. NCE wrvH on Appeal. ! See Ser-iriile, 1. 40.— Appeal-Disqualification of .Judge— Quorum in Such Case— 52 Vic. c. 37. I s. 1. '' See Quorum. PREFERENCE— PREMIUM NOTE. 205. 47._Xew Trial— Improper Reception and Rejection of Evidence — Nominal. Damages. See New Trial, 1. 4S,_Opposition — Contestation — Removal, from Superior Court — Venditioni Ex- ponas — Appeal.. Sec Appeal, 20. , 49.— Appealt— Final. Judgment — Petition FOR Leave to Intervene— Judgment ON — Interlocutory Proceeding. See Appeal, 41. 50.— Money Counts— Notice of Claim- Special, Pleas—" Never Indebted." Sec Action, 5. 51.— Action of Warranty— Negligence — Obstruction of Street— Assessment of Damages— Questions of Fact. See Appeal, -14. 52.— Adding Parties— Orders 40 and 4S, Ontario Judicature Act. Sec Will, 10. It 53. — Chattel Mortgage — Mortgagee in I'ossEssiON — Negligence— Wilful De- fault — Sale Under I'owers — " Slaughter Sale " — Assignment for Benefit of Creditors — Revocation of. See Salp, 4. 54.— Appeal — Time Limit — Commencement of — Pronouncing or Entry of Judg- ment — Security — Delay in Filing — Extension of Time— Order of Judge —Vacation— R. S. C. c 135, ss. 40, 42, 46. See Appeal, 41), 50. 55. — Preliminary Objections— Service of Election Petition — Bailiff's Return Cross-examination. Sfe Election Law. 7. 56. — Questions of Practice — Appeal- Duty OF Appellate Court. Sec Appeal. 56. 57. — Appeal — Jurisdiction — Discretionary Order— Default to Plead — R. S. C. c. 135. ss. 24 (a) and 27— R. S. O. c. 44, s. 65 — Ontario Judicaturi^ Act, Rule 796. See Appeal, 05. 58.— Jury Trial— Assign.ment of Facts- Arts. 353, 414 C. C. P.— Art. 427 G. P. y. — Inconsistent Findings — Mis- direction—New TiUAL— I'leadings. See New Trial, 2. 59.— Plea of Litigious Rights— Usurper in I'OSSESSION — Title to L.\nds — Art. 1582 C. C— Impeachment of Titles by Warrantor. See Litigious Rights. 60.— Trustee— Misappropriation — Surety — Knowledge by Cestui Que Trust — Estoppel — Parties. See Trusts, 10. 01.— Marine Insurance — Partial Loss on Cargo— Stranding — Evidence — Jury Trial. Sec Evidence, 34. 02. — Title to Land — Entail — Life Estate — Fiduciary" Substitution — Privileges and Hypothecs — Mortgage by Insti- tute — Preferred Claim — Prior 1n- CUMBR.\NCER — \'lS MaJOU — REGISTRY Ij.vws— Sheriff's Sale — Sheriff's Deed — Chose Jugle — I'arties — Estoppel — Deed Poll — Improvements on Sub- stituted Property — Grosses Repara- tions—Art. 2172 C. C— 29 Vic. c. 26 (Can.). Sec Mortgage, 12. 63. — Cross-appeal Pending in Privy Council — Stay of Proceedings. Sec Appeal, 1, 79. PREFERENCES. Sec Assignment. " Debtor aud Creditor. " Fraudulent Conve.vances. " Fraudulent PrelVrcnces. " Insolvi'iie.v. PREMIUM NOTE. 1. — Accident Insurance — Renewal op I'oLicY — Pay.me.st of I'remium — Pro- missory Note — Instructions to Agent — Agent's Authority — Finding op Jury. See Insurance, Accident, 1. 2. — NoN-p.\Y-MENT— Forfeiture— Conditions —Collateral Agreement. See Insurance, Life. 1. 2o6 PREROGATIVE— PRLNCIPAL AND AGENT. PREROGATIVE. Op Crown— I'ardonixo Power — Repre- sentative OF Crown — Legislative Authority to Confer. See Ci)iistitutii>ui»l Law. ."). PRESCRIPTION. 1.— Accounts— Action— Promissory Note— ack.\-owledgment and security by Notarial Deed— Novation— Arts. 11(5!> AND 1171 C. C— Onus Probandi— Art. 1213 C. C. -Prescription— Arts. 2227, 22G0 C. C. A prescription of thirty years is biibsti- tutPtl for tliat of tivo years only ixlu'Ve the admission of the ileht from the debtor re- sults from a new title which changes the commercial obligations to a civil one. In an action of account instituted in 1887, plaintiff claimed inter alia the sum of ■$2,3(!1.10. being the amount due under a deed of obligation and constitution d'hypo- thequc, executed in 186G, and which on its face was given as security for an antece- dent unpaid promissory note dated in 1802. The deed stipulated that the amount was payable on the terms and conditions and the manner mentioned in the said promissory note. TIk- defendants pleaded that the deed did not effect a novation of the debt, and that the amount dre by the promisson' note was prescribed by more than five years. The note was not produced at the trial. Ilehl, reversing the judgment of the Court of Queen's Bench for Lower Canada (ap- peal side), that the deed did not effect a novation. Arts. IKI'J and 1171 C. C. At most, it operated as an interruption of the prescription and a renunciation to the bene- fit of the time up to then elapsed, so as to prolong it for five years if the note was then overdue. Art. 22ti4 C. C. And as the onus was on the plaintiff to produce the note, and he had not shown that less than five years had elapsed since the maturity of the note, the debt was prescribed by five years. (Art. 22(30 C. C.) Pari V. I'ar6 xxiii., 243 2. — Commencement of Prescription— Con- tinuing Damage — Tortious Act. The proscription of a right of action for injury to proi>erty runs from the time the wrongful act was committed, notwithstand- ing the injury remains as a continuing cause of damage from year to year, when the dam- age results exclusively from that act, and could have been foreseen and claimed for at the time. Kerr et al. v. The Atlantic and Xorth-Wtxt Raiitcay Co xxv., I!t7 3.— Purchase of Land — Registered Hypo- thec — Knowledge of — 1'resumption of Good Faith— Art. 2251 C. C. See Title to Land, 2. 4. — Right op Succession — Sale by Cd for under the above cited statutes. Hild, atfirming the judgment of the Court of Queens Bench. Fournici and Taschereau, JJ., dissenting, that neither the advertise- ment, nor the marks upon the bonds, nor the broker's knowledge of the agent's insol- vency, were notice to pledgee of defects in the pledgor's title; and that the owners of the bonds, having by their act enabknl their agent to transfer tlu-m by delivery, were es topped from asserting their title to the detri- ment of a hoiia fide holder. Yomtg et al. v. MacXuler . . . . xxv., 272 4.— Principal and Agent— Master and Servant — In-surance Agent — Duty— Appoint.vient — Acting for Rival Com- pany — Divided Interests— Dismissal. To act as agent for a rival insurance com- pany is a breach of an insurance agent's agreement "to fulfil conscientiously all the duties assigned to him. and to act constantly for the best interests of (his employer)'' and is sulficient justification for his dismissal. .Judgment of the Court of Appeal for On- tario (22 Ont. App. R. 408), affirmed. Eastmure v. The Caniada- Accident An9urance Co.. 4th :»Iarch, 189t! xxv., G91 5. — Assignment of Debt — Confidential Relations — Knowledge of Book- keeper. A railway contractor being in ditliculties. his sureties took an assignment of the con- tract and assumed financial control of the business which was carried on as usual, the oidy accounts thereof being kept by the con- tractor's book-keeper through whom the dis- bursement of all moneys was made and who appeared from the evidence to have been acting in the most confidential relations with the sureties, at least in so far as concerned the earning on of that contract. Held, that under the circumstances, the book-keeper must be regarded as the agent of the sureties in respect of the contract in (luestion_ and that consequently they were bound by his knowledge of an assignment and ailniission of a debt accruing due to a sub-conti"actor. ifcoullar It al. v. ilcCoU, 24th March, 189(J. 0.— Agent's Authority — Representatio.n BY Agent — Principal Affected by —Advantage to Other Than Prin- cipal — Knowledge of Agent — Con- structive Notice. M'here an agent does an act outside of the apparent scope of his authority, and makes a representation to the person with whom 2o8 PRINXIPAL AND AGENT. he ic-ts to fldvanoo the private ends of hiin- Belf or some one else other than his princi- pal such representation cannot be called that of the principal. In such a case it is immaterial whether or not the person to whom the representation was made believed the agent had anthority to make it. The local manager of a bank having re- ceived a draft to l>e accepted, induced the drawer to accept by representing that cer- tain goods of his own were held by the bank as security for the drafts. In an action on the draft against the ac- ceptor: //(■/(/, afiinning the decision uf the Supreme Court of New Brunswick, that the bank was not be said to adopt what the manager said taking the benefit of the acceptance it could not be said to adopt what the manager said in procuring it which would burden it with responsibility instead of conferring a benefit; and that the knowledge of the manager with which the bank would l>e aftecteil should be confined to knowledge of what was material to the transaction and the duty of the mana- ger to make known to the bank. Richards v. i*'"i'>- of Sova Scoiiii. xxvi., oSl 7._Tkust — rRixeip.A.L AND Agext— Ad- VA.NCES TO Agent to Buy Goods- Trust Goods Mixed with Those ok Agent — Keplevin— Equitable Title. If an agent is entrusted liy his principal with money to buy goods the money will be considered trust funds in his hands ami' the principal has the same interest in the goods when bought as he had in the funds producing it. If the goods, so bought are mixed with those of the agent the principal has an ecjuit- able title to a quantity to be taken from the mass (Miuivalent to the portion of the money advanced wliich has been used in the pur- chase as well as to the unexpended balance. Carter v. Long <& Bishy xxvi., 43U 8.— Fire Insurance— Conditions in Tolicy Breach — Waiver — Kecognition of Existing Risk After Breach— Au- thority OF Agent. A policy of tire insurance on a factory and machinery contained a condition making it void if the said property were sold or con- veyed or the interest of the parties therein changed. Held, afiinning the decision of the Supreme Court of New Brunswick, that by a chattel mortgage given by the assured on said pro- Iierty his interest therein was changed and the policy forfeited under said condition. HtUl, further, that an agent with powers limited to receiving and forwarding appliia- tions for insurance had no authority to waive a forfeiture caused by such breach. Torrop v. The Imperial Fiix Insurance Co., xxvi., ij)S5 i). — Accident Insurance — Kenewal of Policy — Payment of Premium — Pro- missory Note — Instructions to Agent — Agent's Authority — Finding OF Jury. A policy issued by the Manufacturers" Ace. Ins. Co.. in favour of P., contained a pro- vision that it might be renewed from year to year on payment of the annual premium. (Ine conditi>)n of the policy was that it wai< not to take effect unless the premium was paid prior to any accident on account of which a claim should be made and anoth- r that a renewal receipt, to be valid, must be printed in office form, signed by the manag- ing director, and countersigned by the agent. P. having been killed in a railway accident payment on the ]x>licy was refused on the ground that it had expired and not been re- newed. In action by the widow for the in- surance it was shown that the local agent of the company had reipiested P. to renew and had received from him a promissory note for .fl.") (the premium being $16), whicfi the father of the assured swore the agent agreed to take for the balance of the premium after being paid the remainder in cash. He also swore that the agent gave P. a paper pur- porting to ])e a receipt and gave secondary evidence of itj« contents. The agent's evi- dence was that while the note was taken for a portion of the premium it was agreed between him and P.. that there was to be no insurance until it was paid, and that he gave no renewal receijit and was paid no cash. Some four years l)efore this the said agent and all agents of the company had received instructions from the head otlice not to take notes for premiums as had l)een the practice theretofore. The note was never paid but remained in possession of the agent, the com- pany knowing nothing of it. The jury gave no general verdict, but found in answer to questions that a sum was jiaid in cash and the noic given and accepted as payment of the balance jf the premium, and that the paper given to P. by the agent, as swoni to by P.'s father, was the ordinary renewal receipt of the company. Tpon these find- ings judgment was entered against the com- pany. Held, afhrining the judgment of the Su- preme Court of Nova Scotia. Owynne. T.. ilissenting. that tlie fair conclusion from tr.e PRINCIPAL AND AGENT. 209 ("Tidencc was. that as the ajreiit had liot'n euip'oyJ to complete the contract and had lieen ciitrustod with the renewal receipt P. nii^ht fiiirly expect that lie was authorized to tike a premium note having no knowledge of any limitation of his authority, and the policy not forbidding it; and that notwith- standing there was no general verdict, and the s])ecific (pie^tion had not been passed upon by the jury, such inference coulil be drawn by the court according to the prac- tice in Nova Scotia. Ileld^ further, that there was evidence up- on which rea.«onable men might find aw the jury dill; that an inference might fairly be drawn from the facts that the transaction amounted to payment of the premium and it was to be assumed that the act was within the scope 01 the agent's employment; the fact that the agent was disobeying instructions did not prevent the inference though it might be considered in determining whether or not such inference should be drawn; an. and aftorwards liecanie further in arrears until on the loth t'f (Jctoljer, ISliM, one W. S. joined him in a note for tlie $l,2ri(» for immediate discount by the company, anil executed a mortgage on tention it could not be assuinod that the deferred i)aym -nts in the mortgage were to be expedited so as to be co iiistanii ex- tinguished liy entries of credit in the general account which in •hided the dt'bt secured by the mortgtage: and that there iH'ing sonic evidence tlmt the moneys credited in the gen- eral account represented premiums of insur- ance which did not lielong to the debtor. Iiut wen' merely collected by him and remit- ted for policies issued through his agency, the rule in Clayton's case a.s to the appro- priation of the earlier items of cn-dit to- wards tlie extinguishment of the earlier items of debit in the genera! .-iccount wouM not ai>ply and there should have been a re- his lands as collateral to the note and re- ! ft'r™"' to the master to take the account. iiewals that might be given, in which it was declared that payment of the note or re- newals or any part thereof was to be con- sidered as a payment upon the mortgage. The company charged J. 11. S. with the iialance then in arrears which included the sum secured by the note and mortgage, and continued tlu' account as before in their led- ger, charging J. II. S. with prendums, etc., and the notes which they retired from time to time as they beciime due, and crediting inone.vs received from .1. li. S. in the or- dinary course of their business, the note and its various renewals being also credited in this general account for cash. "SX. S. died on ."th December, ISIH, and afterwards the (umpaiiy acceitted notes signed liy .1. H. S. alone for the full amount of his indebted- ness, whicli had increased in the meantime. i!:aking debit and credit entries as pre- viously in the same account. On the .31st July. 1S1>3. J. II. S. owed on this account a balance of .$l.'.t:2(!. whieh included $1,098 aecrued since 1st .January. 1S!)0, and after he ii;td been credited with general payments there remained due at the time of trial .$1,000. The note W. S. signed on .^th Oc- tober, 181)0, was payable four months after date with interest at 7 per cent, and the mortgage was expressed to be payable in four etjual instalments of $.312..">0 each, with interest on un|)aid principal. Hfhh Taschereiu and (Jirouard, .1.1. . dis- senting, that the giving of the accomodation notes wit'iout reference to tlie amount se- cured had not the eff(>ct of releasing the surety as being an extension of time granted without liis eonsent and to his prejudice: that the renewal of notes secured by the col- lateral mortgage was prima facie an admis- sion that, at the res])ective dates of renewal, at least the amounts mentioned therein -were still dtie ui>on the s»>curity of the mortgage; that in the absence of evidence of such in- J The Agricultural Insurance Co. v. ^argcant. I xxvi.. U'.t I I 2.— Giving Time to Principal— Keserva- j TioN OF Rights Against Surety. , Where a creditor sives his debtor an »"x- tension of time for payment a f(n-mal agree- ment is not re(iuired to reserve his rights ; against a surety, but such reservation may I be made out from what t(Kjk place when the j extension was given. Wyke v. Rogers (\ \ De(}. M. & G. 4(18). followed. I Per (Jwynne. .T.. dissenting. The evidence in this case was not sufficient to show that the remedies were reserved. Gorman v. Dixon xxvi., ST 3.— Vendor and Purchaser— Agreement FOR Sale of Lands— Assignment by Vendee— I'rixcipal and Surety— De- viation from Terms of Agreement- Giving Time— Depriving Surety of Rights — Secret Dealings with Prin- cipal — Release of Lands— .\rrears op Interest — Novation — Discharge of Surety. An agreement for the purchase and sale of certain specified lots of '.and in consider- tion of a price payable partly in cash and partly by deferred instalments on dates speci- fied wa,s subject to payments being made in ailvance of those dates under proviso that " the company -will discharge any of saiil lots on payment of the proportion of the pur- chase price applicable on each." ThT? ven- dee assigned all his interest in the agree- ment to a third party hy a written assign- ment registered in the vendors' offlci> and at the time there were several conversa- tions between the three iiarties as to the substitution of the assignee as i)urchaser of the lots in the place of the original vendee. The vendors afterwards accepted from the assignee several payments upon interest an 1 PRINCIPAL AXD SURETY. ill upon account of the iirincii)al remaining ihie from tini»> to time iis lots ami parts o*" 'ots wiTf sold liy liini. iind without thi' kiiow- IciU'o of th(> VfUclcf nrranKcd a sehwlule a|iliiirtioniii>r the amounts of payments to he liiade for releiises of hits sold liased on their siip.iosed values, and in fact released lots and parts of lots so sold and conveyed them to »uli-i)iirchasers upon payments according to this scliednle and not in the ratio of tlie full numlier of lots to the unpaid balance of the price and without payment of all in- liTcst owiiijr at the time sales were made. The vendors charged the assignee with and accepted fi'oui him compound' interest and iilsu alliiwed the assignee an extension of Tiuio for the i>aymenT of certain interest dverdiu' and thus dealt with him in resi>ect til tile proi)ert.v in a nnuiiu'r different from the provisions of the agreement in reference to the conveyance of lots to snli-pnrchasers. Ilild. tliat the dealings lietween the ven- diirs and the assignee did imt effect a nova- tion liy the snhstitut'on of him is debtor in the place of the oiiginal vendee, or re- lease rhe vendee from liability under the original agreement. Held. also, that though the course of deal- ing did not change the relation of the parties ti> that of princiiKil creditor, debtor and surety, notice to the vendors of the assign- ment and their knowledge that the vender held the land as security for the perform- ance of tlie assignee's obligations towards Inm. boiuid th(> vendors so to deal with the I i-iiperty as not to affect its value injnrionsl.v or impeile him in having recourse to it as a security. In a suit taken b.v the vendors against the Vendee to recover interest overdue, equit- alile ciinsiderations would seem to be satis- tied by tr<^ating the company as h.iving got from the third part.v on every release of a part of a lot the full amount that they ought to have got from him on a release for an entire lot and as having received on each transfer all arrears of interest. In the absence of any sure indication in the agreement the ratio of apiM)rtionnu'nt • if payments for the release of lots sold shnuld be established by adopting the simple jiritliiuetical ruh> of (dividing the amount of the deferred instilments stated in the agree- ment by th.e total number of lots mentioned therein. ll'iVsoM V. The Lnni] Scrvrity Co.. xxvi.. 149 4. — Prixctpal, and Si-rety — Guarantee Bond — Defai'lt of Principal — Non- disclosure BY Creditor. W. was appointed agent of a company in l.Sl)l to sell its goods on commission, and gave a bond with sureties for the faitlifnl discharge of hh: duties. His ^pl)ointnu•nt was reiu'wed year after year, a lU'w bond with the sunn- sureties being given to the company on eay him. Where a creditor has released one of ■;ev- eral sureties with a n>servation of his re- course against the others and a stitiulation against warranty as to claims they might have against the surety so released by rea- son of the exercise of such recourse reserved, the creditor has not thereby rendered himself liable in an .action of warranty by the other sureties. MacdonaW v. WhltficUl. WhitflcM V. The Merchants' Ban!: of Canada. xxvii., !)4 212 PRIN'CIPAL AND SURETY. f, —Action'— Surf;ttsiiip—1'romissory Note — Qualified Indorsement. D. intlorHoil two promissory notes, votir aval, iit the same time maikiii^ them with the words " not ne^otiabU- and c'VfMi as se- curity." The notes were intended as se- curity to the firm of A. & R. for advances to a third person on the publication of cer- tain Kuide-hixiks which were to be left in the hands of the tirm as further security, the proceeds of sales to be applied towards re- imbursement of the advances. It was also agreed that payment of the notes was not to be required while the books remained in the pos.session of the firm. The notes were l>rofcsted for iion-i)ayment. and, A. having diero the action is founded '.iiwn the instrument it- self. Roliei-tson v. Darts xxvii., rt~l 7. — Indorser of Note — Release of Maker — Reservation ok Rights — Satisfac- tion OF I'rincifal Debt — Release of Debtor— Release of Surety. The plaintiff and the defendants .T. and H. were creditors of the other defendant. The debtor borrowed .$(!00 from the plaintiff, giv- ing him a note for that amount, indorsed by .T. and H.. the indorscrs also assigning to the plaintiff, to the extent of .^(".00, a chattel mortgage upon the debtor's property. The debtor, not being able to pay the claim against him, i-old out his business to a third party, who was accepted by both creditors as their debtor and an agreement was en- tered into by the jdaintiff and the new debtor by which time was given to the latter to pay his debt. Imt in the negotiations that took place no mention was made of the $600 note. An a. tion was brought against both the maker and the indorscrs of the note, which, on tii" trial, w.is dismissed as against the maker, liut the trial judge, hnldiii); that the plaintiff had reserved his rights as jigainst the indorscrs, gave judgment against tliein. This judgment was atlirmed by tin? Divisional Court (-- O. R. 'J.'S.'ti, but was reversed by the Court of Appeal. Held, affirming the judgment of the Court of Appeal for Ontario i2ll Ont. App. R. iMISi. that the indorscrs were relieve parr of the trust fund hail been placed by the trustee temporarily with F. F. & Co., await- ing investment on good security, would not be held to be knowledge, assent or acquies- cence by C. in the misconduct of the tnis- te<> which led to the loss of the funds. i:V> N. S. Rep. 173. .si/ft nomine. Eastern Trust <'n. r. Forrest et aJ.) On appeal, the Supremo (^onrt of Cinada aflirnied the decision of the Supreme Court of Nova Scotia, rii hanc, and dismissed the appeal with costs. Bni/ne et al. v. The Eastern Tru-<3 J) —IliGHT OF Action— Conveyance Subject I TO MoRTOAC.E— Obligation to Indem- ! NiFY — Assignment of — Pkincipal and Surety— Implied Contract. ft seq. C. C. Sc, Movables, 1. 3.— Collocation and Distribution— Art. 7t!l C. C. I'.— Hypothecary Clalms — Assignment — Notice — Prete-nom — Arts. 20 and 144 C. C. P.— Nullity of Deed — I.vcidental I'roceedings — Appeal — Parties. Sre .ludgnicnt of Distributiou. And see Mortj:af:i'. PRIVY COUNCIL. 1 .—Appeal— Privy Council Cross-appeal, — Practice — Costs. Where the resiwndcnt has taken an ap- lieal. from the same jiniv'inent as is eoni- llained of in the appeal to the Supreme <'onrt of Canada, to the .Inilicial Copiinittee of Iler Maj.^stv's rvivy Council, the hearinff C'f the appeal to the Supreme Pourt will he r:tayed until the Privy Council appeal has 1 een decided, i.pon the ref.i)ondent undertak- iuir to proceed with dilijience in the appeal so taken liy him. In the case in question the costs were or- dered to be costs ill the cause. Eddy V. Edd;/. 4th October, ISOS. ?.— Reversal of Supreme Court .Judg- ment — Reimbursement of Costs Paid UN-DER Supreme Court Order. Src Practice. 211. r..— Cross-appeal Pending in— Stat of Proceedings— Practice. f^ee Appeal. 1. PROBABLE CAUSE. See Malioious prosecution. PROCEDURE. 8ee Practice, PROHIBITION. I.-Game Laws— Arts. 140.>-14()!) K. S. Q. —Seizure of Furs Killed out of Season— .TusTiCE of the 1'eace— Juris- diction. Under art. 14ii."» read in connection with art. 1409 R. S. Q., a game keeper is authorized to seize furs on view on board a schooner, witiiont a search warrant, anil to have them brou;.'lit before a .Tustice of the Peace for examination. A writ of prohibi- tion will not lie atiaiiist n magistrate acting under sees. 140.V14O!> R. S. Q.. in ex- amination of the furs so seized where he clearly has jurisdiction and the only com- plaint is irre;.'ularity in the seizure. Company of Adiciitiinrs of England v. Jean- iiette xxiii., 4ir> 2.— Sale of Liquor— '^alb by Retail— 53 Vic. c. r.O. s. 18 (O.) -54 Vie. c. 4cotMliiij:s could lie takfu tor narnisihuu-ut. This was canifd out; tho broker rocoivt'd tlic proct't'ds of the diKCouiitt'd note ainl wliilc prcti'iidiiiK' to jiay it over was siTvcd witli tin- KH'iiishoc pro- (.•«'SH itiid forliidih'u to pay uuirc than thi- liaijincc at'trr dt-diictinii uf the aiuoiiiit id' the jiiiljimcnt and co-ts; and lie olTcrcd this ainonnt to tiu' maker of the note wldeh was refused. I'., the indorser. then hroii;:nt an action ti restr.'iin il. and the broker from dealing' with the discounted note, and for its ihliveiT to liiniself. Jlilil. allinninj; the (h-eision of the Court of ApiK^al. tiiMt the liroker was aware that the note was indorsed liy 1'. for the purpose of settlinjr the suit on the former note; that the broker and M. were partners in the transaction of diseountinj; tli< note and the lirok( r's knowledge was M.'s knowh-dKe; that the proin'rty in the note never passed to tlie ln-oker and M. could only take it subject to the conditions under which the liroker held it; tliat the broker not being tlie liolder of the note there was no debt due from him to tlie maker and the garnishee order had no effect as against V.: and th.-it the note was held by ^1. in bad faith and 1*. was entitled to recover it back. Millar v. I'liiiiinur xxii.. 253 2. — Transfer — Overdue Note — Equities Attaching — Agreement Between Vendor and 1'ayee — Holder for Value ^VITHouT Notice — Evidence. An agreement between the maker and payee of a promissory note that it sliall only be used for a particular purpose, constitutes an equity which, if the note is used in vifv- lation of that ngreeinent, attaches to it In the hands of a bond fldt holder for value who takes it after dishonour. Strong, C..T., aiu'. Tas'-hereau. .T., dissenting. MacArthur v. MacDotccll . . . . xxiii., uTl 3.— roNsiDDR\TioN — Transfer of Patent KiGHT — Bills of Exchange Act, 53 Vic. c. 33, s. 30, s.s. 4 (D.). C. & F. were partners in the minufacture of certain articles under a patent owned by E. A creditor 'if F. for a debt due prior to the partnership induced C. to purchase a half in.erest in the patent for $700. and join witJi F. in a promissory note for Sl.tHlO in favour of sai president of an incorjorated company niad(> a jn-omissoiy note in the company's name without authority. :;nd dis- counted it with the comiiany's bankers, the proceeds being credited to the company's ac- count and paid out by cheques in the com- pany's name to its creditors, whose claims should have lieen jiaid by the presiclcnt out of fnnils which lie had previously misappro- priated, the bankers, who had taken the note in good faith are entitled to charge the amount ther-'of at maturity against the com- pany's account. .Tudgment of the Court of Appeal for On- tario (23 Ont. App. K. fiCl, attirnied. The Bri(l(jeirater Cheese Factory Company v. Murphy, 21st May, 1S90 xxvi., 443 rUliLlC INSTRUCTION— PUBLIC WORK. fj_ _ Action — SrnETYHiiip — . imloiNfil two iirtiiiiissury iiutos, iiour iiral, at till' siiiiu' time iiiarkiiiK tlifiii with I lie words " not nf!.'otiiiIili' i\nd tiWvu as sc- 1 iirity." Tlu' notes wrre iiitfiKlfd ns secur- ity to the tirin of A. iV: K. t'^r ndvaui-es to a tliird person on the iiiil)lieatiiin of certain -iiide-liooks wliich were to lie U-ft in tlie lianils of the tirni as further security, tlio pioeeeds of sales to be i.pidied towards re- iniliursenient of the advances. It was also ,11,'rc'd tint payment of the notes was not Id lie retpiired while the hooks remained in the possession of the firm. The notes were protested for nou-iiaynient. and. A. IiMvinK dietl. U. as s\irvivin>; i.artner of the linn and vested with all rifilits in tlie notes. >ued the nudv'.-r and indorser jointly and severally for the full amount. At the time of the nctioii. some of the hooks were still in the posst'ssiou of U. and it appi-ared that lie had not renderi'd the iiulorser any state- ment of the financial situation between the priuciiiai delitor anil the tinu. Ilihh that the action was not based uiioii the real coiitratt between the parties and that the [diintiff was not, under the cir- cumstaiues, entitled to recover in an action uiion the notes. Hvhl. further, iier Sedgewick, J., that neither the payee of n iininnssnry note nor the drawiu- of a bill of exchanf,'e can main- lain an action a^'ainst an indorser, where the action is founded upon the instrument it- self. Ifiihd-tKdit V. Ddiix xxvii. oTl 7.— SUBSTITLTIOX OF I>EBTOR OX — DISCHARGE OF Maker— IIeservatiox of Uights Against Indorser — Sl'rety. Su- Surety, 2. .S.— Security for by Deed — Novation — Arts. IIUI) and 1171 C. C— rRESCRip- TION. /See Prescription, 1. !'.— .ToiNT and Several — Security for Mortgage Debt — Release of Co- maker. >S'ENT of rUBLIC I.NSTRUCTION— Appeal— Final .liiHjMEXT— Mandamus I'RACTR'E. .S(( Maudaums, 1. PUBLIC LANDS. I Constitutional Law— NAVKiAiu.i; Waters ! —Title to Hed of Strea.m— Crowns- Dedication OF I'uBLic Lands by— ruksumption of dedication — i'ser — Obstruction to Navioatihn — Public I Nuisance— Balance of Convenience. i Sec Constitutional Law, l.">. And sec Crown — Crown lands. PUBLIC WORK. 1. — Crown — Co.vstruction of Public Work — Interfere.vce with I'ublic Rights— Injury to Private Owner. The P^xche(iuer Court of Canada refused compensation to the suppliant for injury to his i)roiierty' by the ciuistruction nf a public Work. 'llie supiilia'it iwncd ;i siiw-mill in Cape Kri'ton. and claimed that he was prevented from raftinp his lumber to a shiiipiug point, as formerly, by the construction of a bridge across a imnd some distance from the mill, in connection with the building of the Cape lireton Railwa.v. The Excheiiuer Court held (."i Ex. C. R. 2."1), that the right alleged to be interfered with was a riglit common to the public, and that an imlividual affecte*! by the interference was not entitled to com- pensation. The Supreme Court dismissed an aj^peal from this decision with costs. Archihald v. The Qiiifii. 13th :\Lircli, 1S03. xxiii., 147 '2. — Lvterferexce with 1'rivate Property — Injury' to Property Caused by Public Work — Dajiages Peculiar to Property in Question— Compensation —Eminent Domain. The Exchequer Court of Canada (4 Ex. C. R. 43!>i, awarded the suppliant damages for injurious affection of liis wharf at St. John, N. B., caused by tlie construction of a branch of the lutercolonial Railway ;i6 QUORUM. alont: tho water front of C(Mirten;i.v Bay, hdliliiiK. at the same tinu-. that in order to entitle tile owner of property to compensa- tion for allejreil injury caused through the (onstructinu of a iiublie work, it should aiipear th:it there was an interference with some right incident to his property, such as a right of way by land or water, which ditVers in kind from that to which Her Majesty's subjects are ordinarily exposed and that it was not enough that the inter- ference sliould lie greater in degree only than that «hich is suffered in common with the pulilic. On appeal to the Supreme Court of Cm- ada. the decision of the Ex<-he(ruer Court ^\as affirmed and the appeal dismissed with (lists. The Qiirrn v. Rohivson. Cth May, 189."), XXV.. (>92 3. — Statute. Construction of — Public Works — Railways and Canals— R. S. C. c. ."T, s. 23 — Contracts Binding on THE CrOnVN— (JOODS SoLD AND DELI- VERED JN Verbal Order of the Crown Officials — Supplies in Excess of Tender — Errors and Omissions in* Accounts Rendered— Findings of Fact —Interest— Arts. KHIT & 1U77 C. C — ."".O A: .-)1 \'ic. c. 10. s. 33. The provisions of the twenty-third sec- tion of the '■ Act respecting the Department of Railways and Canals" (R. S. C. c. 37(. which reiiuires all contra<-ts affecting the Department to lie signed by the Minister, tile deputy of the Minister or some jierson espeiially authorized, and countersigned by the secretar.v, have reference only to con- tracts in writing made by the dei>artment. (Gwynne, .T.. cuiitra.) Where gin)ds have been bought by and delivered to officers of the Crown for i)ublic works, under orders verbally given by them in the pcrt'ormance of their duties, payment for the same may be recovered from the Crown, tlu-re Vieing no statute recjuiring that all contracts by tho Crown should be in writing. (Gwynne and King. J.T.. coiitraA Where a claim agiinst the Crown arises in the Province of Ouebec and there is no contract in writing, the thirty-third section of '• The Excheijuer Court Act " dot's nut apply, and interest may lie recovered against the Crown, acconling to the practice prevail- ing in that province. The Queen v. Henderson et aK . . xxviii.. 420 4. — Contract for — Authority of Govern- ment Engineer to Vary Terms- Delay. fiee Contract, 10. 5.— Injury to Property by— Obstruction OF Canal— Evidence of Use of Canal See Expropriation. 2. G. — Injury to Property on— Liability of Crown for Tort — ."iO <5c 51 Vic. c. 10 (D.). See Constitutional I.^'^-.. it. 7. — Contract — Final Certificate of En- gineer — Previous Decision — Necessity TO Follow. See Res .Judicata. G. 8. — Contract — Public Work — Progress Estimates — Engineer's Certificate— Revision by Succeeding Engineer- Action FOR Payment on Monthly Certificate. See Action, G. 9. — Progress Estimates — Arbitration - - Engineer's Certificate — Approval by Head of Department — Final Esti- mates — Condition I'recedent — Arbi- tration. See Contract. 37. 10. — Contract Binding on the Crown- Public Work — Fok.mation of Con- tract — Order-in Cou.vciL — Ratifica- tion — Bre.\ch. See Contract, 4G. QUORUM. Appeal — Disqualification of Judge — Quorum in Such Case— 52 Vie. c. 37, s. 1— Practice. Where a .Tudge of the Supr(>me Court of Canada had. before his appointment, sat during the Jiearing of the cause upon the appeal in the court below, he is disqualified from sitting or taking part in the hearing or adjudication of an appeal from the judg- ment rendered therein to the Surireme Court of Caiiiida. notwithstanding that he did not give any o]iinion nor take any part in the adjudication in the court below nor in the trial < mrt. The opinion of the court was asked by His Lordshii*. Mr. .Justice King, as to his qualiticatioii to sit on the api)enl to the Supreme Court of Canada, under the above mentioned circnmstances. Ilis Lordship Sir Henr.v Strong. C..T., was of opinion that under the first section of the Act. 52 Vic. c. 37. Mr. .Justice King was disipialitied. Fournier. Taschereau and Sedgewiek. .T.T.. concurreil. His I^ordship Mr. .Justice Iving thereupon retired from the Bench and the RAILWAYS. 217 liearinfT of tlie appoal was proceeded with Ijt'fore the four other .Indoles. < oustitiiting n ■quorum under the statute cited. Grant V, McLarai. 9th May, 1S94. RAILWAYS. 1.— Title to Land — Texa.vt for Life— coxvey.\xce to iv.vilway company BY— Railway Acts — C. S. C. c. 00, s. 11, s.-s. 1—24 Vic. c. 17, s. 1. By C. S. C. c. 0(5, s. 11 (Railway Act), all coriioratioiis and persons whatever, ten- ants in tail or for life, grcci's dc substitution. guardians, etc.. not only for and on behalf (if theinselv«'s, tlieir h(>irs and successors, liiit also for and on helialf of those whom tliey rej>reseiit * * * seized, possessed of or interested in any lauds, may contract for. sell and convey unto the company (railway company), all or any part thereof: and any contract, etc.. so made shall lie valid and j effectual in law. If (1(1. atKrmins the decision of the Court ' ■of Aiipeal. that a tenant for life is author- ized iiy tills Act to convey to a railway com- jiany in fee. but the company must pay to the I'eniainderman or into court the proportion of the purchase money repivsont- in? the remainderman's interest. MidlinuJ rnilirnji of Caimdn \. Yuuiig, xxii., IIMI *J.— AfeSESSAlENT AND T.VXES- TaX ON RAIL- WAY — Nova Scoti.a. Railway Act — Exemption — Mining Co. — Construction OF Railway- by— R. S. X. S. 5 ser. c. 5:>. By R. S. N. S. -> ser. c. .-.:], s. 9!), s.-s. 30. the road, bed. etc.. of all railway com- panies in the province is exempt from local taxation. By s. 1 the first part of the Act from sees. ."> to So inclusive applies to every railway constructed and in operation or thereafter to be constructed under tlie a\i- thority of any \ct of tlie legislature, and by s. 4. part 12. applies to all railways con- structed under authority of any special Act, and to all companies incorporated for their <-onstructioii and working, by s. ."). s.-s. 1"). the expression '"the i-onipany " in the Act means the company or party a\ithorized by the special Act to construct the railway. //(/(/. revv-rsiiig the decision of the Su- preme ('ourt of Nova ^^cotia, Gwynnc. J., dissenting, that part one of this Act applies to all railways constructed under provin- cial statutes and is not (exclusive of those m(>iitioned in part two: that a compiny in- corporated liy an Act of the legislature as a mining comrtany with power " to construct and make such railroads and branch tracks as might be necessary for the transportation of coal from the mines to the place of ship- ment and all other business necessary and usually performed on railroads."' and with other powers connected with the working of mines " and operation of railways." and em- powered by another Act (49 Vic. c. 4."i | N. S.]» to hold and work the railway " for gen- eral traffic and the conveyance of passengers and freight for hire, as well as for all pur- IMJses and operations connected with saiu mines in accordance with and subject to the provisions of part second of c. r>3, R. S. N. S. 5 ser.. entitled " of railways,' " is a rail- way company within the meaning of the Act; and that the ri'ference in 49 Vic. c. 14.J, s. 1, to part two does not prevent said raihvay from "oming under the operatiou of the first part of the Act. hitPinatioiial Coal Co. v. The County of Cniw liirtcrii xxii., 305 3.— 1»ASSENGER— PfRCHASE OF TiCKET BT— Production of Ticket to Condi'ctor — Refusal to rRODUCE— Ejectment from Tr.un — Liability of C^ompany — Ceneral Railway Act, r>l Vic c. 29 (D.), s.s. 247 AND 248. By sec. 24S of the (lencral R.ailway Act (."1 Vic. c. 29). any passenger on a r.'iilway train who refuses to pay his fare may Ik- put off the train. //(/(/. reversing the deiision of the Court of Appeal. Fournier. .T.. dissenting, that the contract between the person buying a rail- way ticket and tlu' company on whose line it is intended to be used in)plies that such ticket shall be produced and delivered up to the conductor of the triin on which such person travels, and if he is put off a train for refusing or lieing unable so to prr Canada (appeal side), that where the breaking of a rail is shown to be due to the severity of the climate and the sud- denly great variations of the degrees of tem- perature, md not to any want of cire or skill upon the part of the railway company in the selection, testing, laying and use of such rail, the comi)any is not liable in dam- ages to a passenger injured by the derail- ment of a train through the breaking of 2l8 RAILWAYS. such rail. Foiirnior, .1., I'lsseiitoil, and was of Diiinidii that the acciilont was cuiscd liy a latent (It-fcct in tlic rail, and that a railway ninipany is rcsiionsiliic, nndt'r Iho ("udc, for injuries resulting from snch a defect. Canailifin I'ariftc liii. Co. v. Vluilifoii.r, xxii.. 721 't.—ra & r.2 Vic. c. oi, ss. n. 14 (Qie.i-Tx- TKRPRETATION — ART. IJ), R. S. Q. — Kailway Subsidy — Discretionary Tower of LlEfTENAKT-s of hiiid iier mile for .SO miles of the Hereford Railwiy: that by nn Order in Council dated (ith August. 1SSS. the land subsidy was (ou- verted into a money subsidy, th? 0th section of said c. !tl. ."1 & ."(2 Vic., enacting that "it shall be lawful." etc.. to convert: that tlie company completed the construction of their line of ■.•ailwiy. relying niton the said sulisidy and Order in Council, and built tht> railway in accordance with the Act ol vV- ~>- Vic. c. ill. and the provisions of the Rail- way Act of Canada. ."»! Vic. c. 2t(. and they claimed to lie entitled to the sum of .'?4!1.0tl(). balance due on said subsidy. The Crown •lemurred im the ground that the statute was permissive only, and by exception pleaded hitir dJin. th.'it the money had licen paid liy Order in Council to the sub-con- tractors for Work necessary fur tlu' construc- tion of the road: that the iiresideut had by letti'r agreed to accept an additional sub- sidy on an extension of their line of rail- way to settle diflicultit's and signed a re- ceipt for tin- balance of .'«(i,."i(i(t due on ac- <-oniit of the tirst susidy. The petition of right was dismissed. Jhlil. that the statute and ihicuments ro- lled on did not create a liability on the part of the Crown to pay the money voted to the Jippellatit company, enforceable by petition of right: Taschereau and Sedgewick, J.J.. ilissenting: but assuming it did the letter and receipt signed by the president of the company did not discharge the Crown from such obligation to pay the subsidy, and pay- ment by tlie Crown of the sub-<ropriation of the subsir into an arrangement for the "use and working" or "management and working" of its road cojiferred upon the c(Uiipany a larger right uian that of making a forwarding agree- ment or of conferring running powers: thai the company could lawftdly lease a portion of its road to a foreign company and trans- fer to the latter all its rights and privileges in respect to such i»ortion. and tlie foreign company in such cas(> would be protected from lialtility for injury to property occur- ring without negligence in its use of the road so leased, to the same extent as thi- Canada Southern Railway Co. is itself pro- tected. Michiyan Cciitrul lid. Co. v. WfaUiuun. xxiv.. 3ir,» 7. — Carriage of (tOods — Carri.\ge over Connecting Lines — Contract for — Authority of Agent. E.. in Br. Col., being about to purchase g Is from O. in Out., signed, on re«iuest of the frieght agent of the Xorthern Paoi- tic Railwjiy Company in British Columbia, r, letter to (i. asking him to sliip goods via (irand Trunk Railway and Chicago & N. W., care Northern I'acitic Railway at St. Paul. This letter was forwirded to the freight agent of the Northern Paciti' Rail- way Comiiany at Toronto, who sent it t > a., ami wrote to him " I enclos<' you card of advice and if you will kindly fill it up when yon m;ike the sliipment send it to me. I will trace .'ind linrr'- them through and advisi- you of delivery to eonsij-'nee.'' O. shiiijied th(> goods iis suggested in this letter ib'liverabli' To his own order in Brifi-h Columbia. RAILWAYS. !I9 IhhJ. afflnuiiig tho Jocisiou of the Court of AiU'wl. that on arrival of tla- goods at St. 1 anl, the Northern racitie Kaihvaj Coin- Iiany was bouml to acei';)t delivery of them for carriage to British Colmuliia ai:d to ex- IK'dile such carriage; that they were in the care of said conii>any from St. I'aul to British Columbia: that the freight agent at Toronto had authority so to hind the coni- Iiany: and that the company was liable to G. for the value of the goods which were delivered to E. at British Columbia without an order from G. and not paid for. yorthcrn Pacific Ri/. Co. v. (iKint, xxiv.. S.— ("OXSTKUCTION OF STATUTE — IiAILWAY Act. 18S8, s. :i4(; (o)— Carriage of Goods— Special Contract— Negligence — Limitation of Liability for. By see. 240 (3) of the Railway Act. 1.SS8 u>l Vie. c. 1'!) ID.]), '• every person aggrieved by any neglect or refusal in the premises shall have an action therefor against the company, from which action the company shall liot be relieved by any notice, condi- tion or declaration, if the damage arises from any negligence or omission of the com- liany or of its servants." Hiltl. affirming the decision of the Court of Api>eal, that this provision does not dis- able a railway company from entering into a special contract for the carriage of goods luid limiting its liability as to amount of ilamages to be recovered for loss or injur.v to such goods, arising from negligence. Vojul V. Grwnd T runic liaiitnn/ Co. (11 Can. 8. C. B. i\12). an, item 173. of *' steel rails weighing not less than twenty-five i>ounds per lineal yard, for use on railway tracks."' docs not iipl)ly to rails to be used for street railways Avhich are sub.ierescription — Commencement— Con- tinuing DA.^L^GE — Tortious Act — I'uBLic Work— Contractor—Liability of Company for Act of. The prescription of a right of action for injury to property runs from the time the wrongful act was committed, notwithstand- ing the injury remains as a (ontinuing cause of damage from year to year, when the dam- age results exclusively from that act and could have been foreseen and claimed for at the time. A company building a railway is not liable for injury to property cau.sed liy iht> wruig- ful act of their contractor in liorrowing Cii-th for embankments from a place, and in a mai:ner. not authorized by the ontract. Kerr V. The Atlantic and yorth-ic(.loyees remained in a <'ar lawfully pur- suing their occupation there, the pers^ms i:i charge of the locomotive owed, them the dutv of using reasouable skill and care in 220 RAILWAYS. niovinji tlu> car with them in it, so as to ' avoid ail rislv uf injury to tlii'in. i On tlio trial of an action for danuigos I in consi'(]iU'ncc ol an ('nii)lo.vec of thi? lunilier | (•(pMipany licinfr killed in a loaded car which \ was lieinjr slmnted the jnry hail 'imnd that " the deceased voluntarily accei)ted the risk of shuntinj: " ami that the death of the deceased was caused hy defendant's negli- trence in the slinnting. in giving the car too (itrong a iiush. Held, tliat the verdict meant only that de- ce.'i.'ed Had voluntarily incurred the risks , jittending the shuuting of the cars in a care- j lid and skilful manner, and that the maxim ■■ rohnti iwii pt injiiria '' had no application. Smith v. liakfi- (llSDl] A. C. oiry), apidied. The Canada Atlantic Raihcay Company v. Eurdmun xxv., :i05 12. — FixDi.xGs OF Jury — Answers to Ques- tions — New Trial— Negligence — It.viL- W.A.Y Co.MPA.vY — Act of Incorporation — Change of >.'ame. t Where it api)eared on the argument before ; the 8u])reme Cou^-t of Canada, that the jury had not properly answered some of the questions submitted to them at the trial, a new trial was ordered. Note. — In other respects the judgment of the Supreme Court of Nova Scotia (27 N. S. Kep. 408), was atHrmeil. Pudnvy v. Thr Dominion Atlantic Railiray Co., 2L'i!d February. I«t0 . . . . xxv.. G!>1 13. — Railway Ticket — Right to Stop Over. By the sale of a railway ticket the con- tract of tlie railway company is to con- vey the purchaser in one continuous journey to his destination: it gives him no right to stop at any intermediate station. Craig v. Virat Wintrni liy. Co. (24 U. C. Q. B. r>0!>i; Biiffos V. The Crund Tninli Itaihray Co. (24 r. (,'. Q. B. uUii: and <'nnniu(iham \. The Grand Trnnk Kailuay Co. (0 Ij. C. .Tur. Ti": 11 L. C. Jur. 107), approved and fi)l- lowed. Coonibn v. The Qnccn xxvi., 13 14.— R.\iLWAY Company — Negligence — Sparks from E.ngine or " IIot-rox "— Damages by Fire— Evidence— Burden of Proof — C. C. Art. 1(1.">3 — Questions of Fact. In an actiim against a railway company for damages for loss of proi)ert,v by tk-e ■p.lleged to have been occasioned by sparks from an engine or hot-lx)x of a passing ■train, in which the court appealed from held that there was not sufficient proof thit the (ire occurred through the fault or negligence- of the company and it was not shown that such finding was clearly wrong or errmi- eons, the Sui)reme Court would not interfere with till- finding. Scni'sac v. Teitnoint Central Ruilicny Co., xxvi., >m 15. — Carriage of Goods — Connecting Lines — Special Contract — Loss by Fire in Warehouse — Negligence. In an action by S., a merchant at Merlin, Out., against the Lake Erie and Detroit River Railway Co.. the statement of claim alleged that S. had purchased goods from parlies in Toronto and elsewhere to be de- livered, some to the G. T. R. Co., and the rest to the C. P. R. and other companiis. by the said several companies to be. and the same were, transferred to the Lake Erie, etc., Co., for carriage to Merlin. That on receipt Ij.v the Lake Erie Co. of the goixls it liecame their duty to carry them safely to Mt'rlin and deliver them to S. There was also an allegation of a contract by the Lake Erie for storage of the goods and delivery to S. when re(]uested, and a lack of proper care whereliy the gooils were lost. The goods were destroyed by fire wliile stored in a building owned by the Lake Erie Co. at Merlin. Held, reversing the decision of the Court iif Appeal, that as to the gooils delivered t^ the G. T. R. to be transferred to the Lake Erie as alleged, if the cause of action stated was one arising ex delicto it must fail as the evidence showed that the goods were re- ceived from the a. T. R. for carriage un- der the terms of a si)ecial contract ccmtaincd in the bill of lading and shipiiing note given by the G. T. R. to the consignors, and if it was a cause of action founded nu ccm- tract it must also fail as the ((uitract under which the goods were received by the G. T. R. provided among other things, that the compan.v would not l)e liable for the loss of goods by tire, that goods stored shouM be at sole risk of the owners, and that the provisions should apply to and for the bene- lit of every carrier. Held, further, that as to the goods deliv- ered to the (ompanies other than the (i. T. R. to be transferred to the Lake Erie, the latter com])any was liable under the con- tract for storage: that the goods were in its possession as warehousemen, and the bills of lading contained no clause, as did thiise of the G. T. R., giving subsequent carriers the l>enefit of their jirovisions: and that the two courts lu'low had held that the loss RAILWAYS. 221 was caused by the neglipenco of sei'vants of tlu' Lake Erie, and such tindiug should uot be interfered with. Held, also, that as to poods carried on a bill of lading issued by the Lake Erie Co., the company was not liable as there was :in express provision therein that owners should incur all risk of loss of goods in charge of the company, as warehouso- nieii: and that such condition was a roa- siinable oiw as the company only undertakes to warehouse goods of necessity and for convenience of shipi)ers. The Lake Erie and Detroit River Railiray Co. V. Sales et al • . . . . xxvi., COS IC— Construction of Statute— 51 Vic. c. 29. s. 2t»2 (D.^— Railway Crossings- Packing Railway Frogs, Wing-rails, Etc. — Negligence. The proviso of the fourth suh-section of section 202 of " The Railway Act " (51 Vic. c. 29 (D.t, does not apply to the fillings referred to in the third sub-section, and con- fers no power ni)on the R.-iilway Committee of the Privy Council to dispense with the filling in of the spaces behind and in front of railway frogs or crossings and the fixed rails and switches during the winter months. Judgment of the Court of Ajipeal for On- tario (24 Ont. App. R. 183), reversed. M'ashiiKjtoit V. Grand Trunk liaiUray Com- lifiiiii xxviii.. 184 (Memo. — This judgment was affirmed on appeal to the Privy Council, 24th Febv.. isont. 17.— Appeal— .TuRisnicTioN— 54 & 55 A'ic. c. 25. s. 2 — Prohibition — Expropriation OF Lands — Arbitration — Death op Arbitrator Pending Award — 51 Vic. r. 20. ss. 150. 157— Lapse of Time for ^Laking Award— Statute, Construc- tion OF— Art. 12 C. C. The provisions of the second section of the statute. .54 & 55 Vic. c. 25. giving the Supreme Court of Canada jurisdiction to hear appeals in matt(>rs of prohibition, ap- iily to such appeals from the Province of Quebec as well as to all other parts of Can- ada. In reljitiou to the expropriation of Ir.nds for railway puriioses. sections 1.50 a:nl 157 of "The Railway Act" (51 Vic. c. 2;). D.), provide as follows: — " 150. A majority of the arbitrators at the first meeting after their ai)pointment. or the sole arbitrator, shall fix a day on or before which the award shall be niade: and. if the same is not made on or before such day, or some other day to which the time for making it has been pro- longed, either by consent of the parties or by resolution of the arbitrators, then the sum offered by the where the arbitrator appointed by the proprietor died before the award had been made and four days prior to the date fixed for making the same: that in such a case the jiroprietor was entitled to be allowed a reasonable time for the appointni'iit of another arbitrator to fill tho vacancy thus caused and to have the arbi- tration proceedings continued although the time so fixed had expired without any award having been made or the time for the mak- ing thereof having been prolonged. Shannon v. The Monfrral Park and Island Railiray Comimny xxviii., 374 18. — F].minent Domain — Expropriation op Lands — Arbitration — Evidence — Find- ings of Fact— Duty of Appellati: Court— 51 Vic. c. 2!» (D.). On an arbitration in a matter of the ex- proytriation of land under the i)rovisions of " The Railway Act " the majority of the arbitrators appeareil teared to have proceeded upon a wron;; priiieipU' in the estimation of the indemnity thereby 31 warded. Oraml Trunk Raihran of Canada v. Couiml. xxviii.. 531 19. — Regular Depot — Traffic Facilities- Railway Crossings — Negligence — ■\Valking on I.,ine of Railway — Trespass — Invitation — License — 51 Vic. c. 21>. sp. 240. 2M. 273 (D.). A pnssenfrer abroad a railway train storm- l:ound. at a place called I^ucan Crossing, on the (irtnd Trunk Railway, left the train and atti-mpted to walk through the storm to his home a few miles distant. Whilst ]iroceeding along the line of the railway, in the direction of an adjacent ptddic high- way, he was struck by a locomotive »'ngine juid killed. There was ni> depot or agent maintained by the company at Lucan Cross- ing, but a room in a small building there was used as a waiting room, passenger tickets were sold and fares charged to and from this point, and. for a number of years, tra- vellers liad lieen allowed to make use of the permanent way in order to reach the nenr- «'St highways, there being no other passage way provided. In an action by his administrators for damages: — Held. Taschereau and King. .T,T.. dissent- ing, tliat notwithstanding the long user of the permanent way in passing to and from the highways by passeng(>rs taking and leav- ing the company's trains, the deceased could not. under the circumstances, be said to have been there by the invitation or license of the company at the time he was killed, and that the ai 'on would not lie. Grand Trunk Railtra!) of Cnnadn v. Anderson ftal xxviii., 541 20. — Negligence — Accident at Crossing- Notice OF Approach. f!(€ Appeal. 5. 21. — Train Extending Beyond IM.atform —A cciDENT to Passenger— Contribu- tory Negligence. See Negligenc(>. ."i. 22.-44 Vic. c. 1. s. IS— Powers of Canadian Pacific Railway Com- pany TO Take and Use Foreshore — 10 Vic. c. 32 (B. C.)— City of Vancouver — Right to Extend Streets to Dekp Water — Cr<.3sing of Railway— Jus Publicum— Implied Extinction by Statute — Injunction. iS'fc Municipal Corporation. 7. " Foreshore. 23.— Injury' to Employee— Negligence ok CoNDucTOR — Authority — L'nsatisfai- tory Findings of Ji-ry- — Appeal fp.om. iS'tc Negligence. amage by Fire- Findings OF .TuRY" — Evidence — Con- current Findings of Courts Appeal- ed from. iRff Negligence. o~h. RATABLE CONTRIBUTION. Water Lots — -Vccretion to Lands — After Acquired Property — Falsa Demon- STRATio — Discharge of Mortgage. See Mortgage. 4. REAL PROPERTY. Gas Pipes — Fixtures — Assessment — Exemption from Taxes — Title to Portion of Highway-. See Assessment, 7. his. And see Immovable Property. REAL PROPERTY ACT. Registration— Execution — T'nregistered Transfers— Equitable Rights — Sales UNDER Execution— R. S. C. c. 51; 51 Vic. (D.) c. 20. See Registry Laws. 3. RECEUER— REGISTRY LAWS. 223 RECEIVER. <)f Stolen rROPERTY— Unlawful Appro- priation — SiMULTANKOCS ACTS— APPRO- PRIATION BY Bailee or Trustee. Ste Criminal Law, 2. REDEMPTION (DROIT DE REMERE). Title to Land— Sale — Right of Redemp- TKiN— Effect as to Third Parties- Pledge— Delivery AND Possession of Thing Sold. Sa Pk'tlKo, 2. REFEREE. Agreement Respecting Lands — Bounda- ries — Referee's Decision — Bornage — Arbitr.vtion— Arts. "J41-y45 and 1341 et seq. C. C. P. Sec Arbitration, 3. REGISTRY LAWS. 1. — Trespass — Damages — Easement — Equitable Interest — Municipal By- law. Registration of — Notice — Regis try Act, R. S. O. c. 114. R. S. O. (1877) c. 114, "s. 83. providiiiK that no lien, charge or interest afft'ctin>r land shall be valici as against a rogistercd instruinont executed by the same inirty, his heirs or assisns. is not restricted to inter- ests derived undcM- written instruments sus- ceptible of refjristration but applies to all interests. If the owner of land gives permission to the municipality to construct a drain through it, the municipality, after the work has been done, has an interest in the land to which the registry laws apply whether the agree- ment conveys the property, creates an ease- ment or is a mere license which has become irrevoeable. and if there has been no by-law authorizing the land to be taken such in- terest is, under the said section, invalid as ng.iinst a registered deed executed for value without notice. 7.'os.9 v. Hunter (7 Can. S. C. R. 2S0( distinguished. The City of Toronto v. -/arris . . xxv., 237 -.—Mortgage — Agreement to Ch.\rge Lands— Statute of Erauds— Registry. The owner of an '(luity jf redemption in mortgaged lands, called the Christopher farm, signed an agreement which his soli- citor wrote on one of his letter for.ns under the printed words " Dear Sir." his own name being at the bottom on the left side and he niado an affidavit, as subscribing witness, to have it registered. In an action arising out of this agreeiiu lit it was contended that the solicitor was not a subscribing witness, but only the person to whom the letter was ad- dressed. Held, attirndng the judgment of the Court of Apiieal, that the solicitor signed the agreement as a witness and the registration was, therefore, regular, but if not, as the document wis upon the registry a subse- . and it having been registered the court would presume that such certifi- cate had been obtained. Kooker v. Hoofntcttvr xxvi.. 41 3. — Real Property Act — Registration — Execution — Unregistered Transfers — Equitable Rights — Sales under Execution. The provisions of sec. 1)4 of the Territories l£eal I'roperty Act (R. S. C. c. 51), as amended by 7>1 Vic. c. 20 (D.), do not displace the rule of law that an execution creditor can (mly sell the real estate of his debtor sul)ject to the charges, liens and eiiuities to which the same was subject in the hands of the execution debtor and do not give the execution iTeditor any superiority of title over prior unregistered transferees, but merely protect the lands from iutermeiliate sales and disiwsitions by the execution debtor. If the sheriff sells the purchaser by prior- ity of registration of the sheriff's deed would under the Act take priorit.v over previous unregistered transfers. JcUctt v. Wilkie. Jrllett v. Thr Scottish. Ontario and Monitoha Land Co Jclhtt v. PoircU. JrUttt v. Erratt . . . . xxvi., 2S2 4. — Registered Deed — Priority oveh Earlier (Jrantee — Postponement — Notice. To postpone a deed which has acquired l»riority over an earlier conveyance by regis- tration, actual notice, sutflcient to make the conduct of the subsequent purchaser in tak- ing and registering his conveyance fraudu- lent, is indispensable. The yor Brunan-ici; Railuay Co. v. KrUy. xxvi., 341 224 REMAINDER— REPLEVIN, 5. — MfiRTGAOE— Mining Machinery— Kegis- TKATioN — Fixtures — Interpretation of Terms — Bill of Sale — Personal Chattels— It. S. N. S. (.") ser.i c. i)2, ss. 1, 4 AND 10 (Bills of Sale)— ."► Vic. (N. S.) c. 1, s. 143 (The Mines ActI. The "fixtures" iiicliulcd in tlu- niosiniiifi of tlio I'Xpri'ssioii " IVrsDiial Chattels " by the tenth section of the Nova Scotia " Bills of Sale Act," are only such articles as are not made a perniaiient portion of the land and may he i)assed from hand to han (O.) — Agree.ment not to Register — Void Mortgage — Possession by Creditor. See Chattel Mortgage, 4. 9.— Public Highway— Kegistered Plan— Dedication — User — Construction of Statute — Retrospective Statutes — Estoppel- 40 Vic. (O.) c. IS. Scv Highway, 1. 10.— Agreement Charging Lands — Sta- tute of Frauds — Registration — Proof of Executio.n. Sec Notice, 1. 11. — Assignment for Benefit of Crf,ditors — R. S. N. S. (.'>TH PER.) c. !»2— Chattel Mortgage— Statute of Elizabeth. .Sec Chattel Mortgage, 5. 12.— Unpaid Vendor— Hypothecary Crei i- tor — Resolutory Co.vdition — 1m- .movarles by destination — movablkr I.vcorporated WITH Freehold — C. •'. Arts. 371), 2017, 2083, 20S5, 2089. Sec Contract, 30. 13.— Sale by Sheriff— Sheriff's Deed— Reoistratio.n' of — Absolute Nullity. See Sale, 7. 14. — Tit:.e to Land — Entail— Life Estatr — Fiduciary Substitution — I'rivilege.s AND Hypothecs — Mortgage by Insti- tute—Preferred Clai.m — I'riob Incum- brancer — Vis Major — 1'ractice — Sheriff's Sale — Sheriff's Deed — Chose Jugee — Parties — Estoppel — Deed Poll — Improveme.vts on Substi- tuted Property— (J ROSSES Reparations Art. 2172 C. C— 29 Vie. c. 20 (Can.). See !Mongage, 12. •' Substitution, 2. REMAINDER. Statute, Construction op — Estates Taii, Acts Abolishing — R. S. N. S. (I ser.> c. 112— R. S. N. S. (2 SER.) c. 112— R. S. N. S. (3 SER.) c. 111-23 Vic. c. 2 (N. S.) —Will— Construction of— Executory Devise Over—" Dying without Issue " — " Lawful Heirs "— " Heirs op thb Body' '' — Estate in Remainder Ex- pectant — Statutory Title — R. S. N. S. (2 SER.) C. 114, ss. 'JS AND 24— TiTLB BY Will — Conveyance by^ Tenant in Tail. Sec Will, 17. REPLEVIN. 1. — Debtor and Creditor — Agreement — Conditional License to Take Posses- sion op Goods— Creditor's Opinion' of Debtor's Incapacity, Bona Fides of — Replevin— Conversion. Sec Debtor and Creditor, 0. 2. — Canada Temperance Act — Search Warrant — Magistrate's .Jurisdiction- Constable — Justification of Minis- terial Officer- Goods in Custodia Legls — P]sTOPPEL — Res Judicata — Judgment Inter Partes. Sec Canada Temperance Act. 2. 3.— Of Confiscated Gambling Instru- ments, Moneys, Etc. — Crimi.nal Code. s. 57."v — " The Canada Evidence Act. lSft3 " — Rules of Evidence — Impeach- ment OF Forfeitt-re — Constable. Sec Criminal L.iw, 5. REPRESENTATION— RES JUDICATA. 225 4. — Trust I^Joods — Advances to Buy Goods— Equitable Title. *'(«■ Aftiou, K. '• Principal and Agi-nt, 7. Aiul mc Kevfuditution. REPRESENTATION. By Heirs— 1'artituin pi.n Stirpes or per Capita — Usufruct — Accretion Be- tween Heirs. iicc Substitution, 1. REQUETE CIVILE. 1. — PHrriTioN in Revocation of .Tudgmeni — Concealme.vt of Evidence — Jurisdic- tion— C. I'. Q. Art. 1177— U. S. C. c. VS'^, s. 07. W'lu'iv judj-'iueiit on a c-isi' in j'ppi'al has bt'en rendfi-cd liy tlie Siiiiri'iiH' Court of Canada and ccrtitit'd to the pnnn'r olHccr of the fonrt of original jurisdirticii, the Su- preme Court has no jurisdiction to enter- tain a petition irequvtc ciiik\ for revocation of its judjrnient on the firound that the ovt- pc^site i)arty su(ceede as a bar, it ought to havi' been specially pleaded by way of estoppel, by a plea setting up in de- tail all the facts ncv-essary to constitute the estoppel, and that fr-mi the evidi'iice in the case it appeared that no sudi estopiK'l could have been estabhshed. Taschereaii, J., dis- sented. Darivs v. McMiUan, 1st May, 1S93. 2. — iNFORMATirr viF Intrusion — Subse- quent Action— Beneficial Interest in- land. In proceeilings on an information of intru- sion exhibited by the Attorney-General of Canada ag.iinst the appellant, it had been adjudged thit the appidlaiit, who claimed title under a grant from the Crown under the (Jreat Seal of British Columbia, slunild deliver ui> imssession of certain latuls sit- uate within the railway belt in that province. The (JiKTii V. Fanrcll tl4 Can. S. C. R. 3;>2i. The appellant liaving registered his grant and taken steps to iirocure an indefeasibb* title from the Registrar of Titles of Britisu Columbia, thus preventing grantees of the Crown from obtaining a registered title, another information was exhibited by the Attorney-General to direct the appellant to 226 RES JUDICATA. ♦"XCfiitf to the Crown in rifrlit of ("!iiiii«l:i ii t-urrondcr or i-onvcyanco of tln' said lands. //(/*/. tliiit tln' jnd;:iiiiiit in inlrnsion \v:i.-« tonclusivc av'iiiii^t tlio apiifllant as to the title, '"'n" Qui I II v. Funnll (14 <'an. S. <". U. o!)2». and Mtiniirlith of an interest of his. M.'s interest in a .L'old mine. Imt faiU'd to recover as thr- cotirt helri'eeinent as alleged, hut ;id- mitted that he had agreed to give S. one- eiglith of his interest in the jiroctM-ds of the mine when sold, and it liaving been after- wards sold S. hronght another action for pa.vment of such share of the i)roceeds. llrlil. reversing the decision of the Sn- I reme Crmrt of Xova Scotia. Fournier and Tascherean. .7.1.. dissenting, that S. was not estopped by the first judgment against him from bringing another action. nr](l. also, that the contract for a share of the proceeds was not one for sale of an interest in land within the Statute of Frauds. Stuart v. ilott xxiii., 384 4 — Action— Bar to — Foreign .Judgment- Estoppel — .TuDGMENT Obtained after Action Begun— R. S. X. S. ."i ser.. c. 104. s. 12. s.-s. 7: Orders 24 and 70, Rule 2; Order S.". Rule 38. A judgment of a foreign court having the force of res judicata in the foreign coun- try has the like force in Canada. Unless prevented by rules of pleading a foreign judgment can be made available to bar a domestic action begun before such judg- ment was obtained. Thr DvUa d P. D. 393). distinguished. The combined effect of the orders 24 and 70, rule 2. and s. 32. s.-s. 7 of c. 104 R. S. X. S. (.") se.'.), will permit this to be done in XcTa Scotia. Law ct al. v. Hansen xxv., 09 5. — Title to liAND — Action en Bornage — Surveyor's Report— .Judgment on — Acquiescence in Judgment ^ Chose .Tugee. In an action en hornaor between M. and B. a surveyor was appointed by the Su- perior Court to settle the line of division between the lands of the respective parties, anil his rciHirt. imliiatinu' the iiosition of the lioundary line, was homologated, and the court directed that boundaries should be placed at certain points, on said line. M. appealed from that juiignie;it to the Court of Review claiming that the report gave B. more land than he claimed and that the line should follow the direction of a fence between the properties that had existed for over thirty years. The Court of Review- gave effect to this contentijtn and ordered the bouitdaries to be i>laced according to it. in whivh judgment })oth parties acipiiesced and another surv -yor was .-tppointed to exe- cute it. lie reported that he had placed the boundaries as directed by the Court of i Review, but that his measurements showeil I that the line indicated was not in the line of I the old fence and his report was rejected ! by the Sujierior Court. The Court of Re- view, however, held that the report of the first surveyor, having been homologated l)y ! the court, was final as to the location of the fence and that the judgment had been properly executed. The Court of Queen's Keiich reversed this judgment, set aside the last report and ordered the surveyor to place I the boundaries in the true line of the old fence. Held, reversing the decision of the Court of Queen's Bench, that the judgment of the Court of Review in which the parties acquiesced was chose jugve between them not only that the division line between the properties must be located on the line of the old fence, but that such line was one start- ing at the point indicated in the plan and report of the first surveyor. The Court of Review was right, therefore, in holding that the surveyor executing the judgment I could do nothing else than start his line at the said point. Mercier cf rir. v. Barrette . . . . xxv., 94 (5. — Contract — Public Work — Final Cer- tificate of Engineer — Previous De- cision — Xecessity to Follow. The Intercolonial Railway Act provides that no contractor for construction of any part of the road should he i>aid except on i the certificate of the engineer. ai)i>roved by I the commissioners, that the work was coni- I>leted to his satisfaction. Before the sup- pliant's Avork in this case was completed the engineer resigned, and another was ap- pointed to investigate and report on the ursettled claims. His report recommended that a certain sum sho.ild be paid to the contractors. TTrUl. per Tascherean. Sedgewick and King. .T.J.. that as the court in McGreevy v. RES JUDICATA. 227 Thr Queen (IS Can. S. f. R. 371 1. hnil. nn.lfr prtM'isi'ly tlu' same stati- of facts. \u-Ul that thf coiitravtor cutilii not rccuvfr that di'fi- sioii shoiihl he followt'il. and the jmljiiiK'Ht of the Exilioiiicr I'mirt disinissiny: tlic immI- tioii of right atllrmeil. Ilrlif. per (Jw.vmic, J., that independently of McGreery v. The Queen the contractor could not recover for want of the final <"er- tilicate. Held, per Stroiii.'. C.T.. that as in MvGicrij/ V. The Queen, a majority of tiie juilges wi're not in accord on any proposition of law on wliicji the decision depended, it was not an authority binding on the court, and on tlu? merits the contractors were entitled to judgment. Uvgs et al. V. The Queen xxv., 5(>1 7.— Canada Temperance Act — Search Warrant— Magistrate's Jurisdiction- Constable — .Justification of Officer — (tOods in Custodia Legis — Replevin- Estoppel, — Judgment Inter Partes. A search warrant issued under " The Can- ada Temperance Act." is good if it follows the prescribed form, and if it has been issued by competent authority and is valiil on its face it will afford justification to the officer (xt'cnting it in either criminal or civil pro- <'xe<'Utiug it in either criminal or civil pro- bad in fact and may have been qui shed or set iside. Taschereau, J., dissenting. The statutory form does not require tlr; premises to be searched to be described by metes and bounds or otherwise. A judgment on certiorari quashing the viirrant would not estop the defendant from justifying under it 'n i)roeeedings to replev.v the goods seized where he was not a party to the jiroc^odings to set the warrant aside, and such judgment was a judgment inter parkx only. Taschereau. J., dissenting. ^^leeth V. nurlbert xxv., G20 8.— XovA Scotia Probate Act — R. S. N. S. r. SER.. c. 100; 51 Yic. (X. S.i c. 2r,— Executors and Admi.vtstrators — liiCENSE to Sell Lands — Estoppel. An executrix obtained from the Probate Court a license to sell real estate of a Jt^- ceased testator for the payment of his debts. ■Tiidgnieiit creditors of the devisees moved to set aside the license, but failed on their motion and again in appeal. The lands were frt]i\ under the license and the executrix paid part of the price to the judgment cred-. itors. and they received the same knowing the moneys to have been proceeds of the sale of th(» lands. Afterwards the judgment creditors, still claiming the license to be null. issued execution against the lands, and the imrcliaser broiigjit an action to liave it de- chired that the judgment was ni)t a charge thi feon. //(/(/. that the judgment upon the nioiiou to set jiside the license was concln-ive against the judgment creditors and they Were precluded thereby from taking col- liiter.-il proceedings to c-harge the iiuds afft'cted. upon grounds invoked or which might have been invoked upon tlio mo- tion. Hchh fui'ther. that the judgment creditors, by receiving p.ayment out of the [iroceeds of the sail', had elected to treat the license as having been regtilarly issued, and v.ere estopped from attacking its validity in ar.s- I wer to the action. i Clarke v. Phinney xxv.. 633 ', 9. — Debtor and Creditor — Security j Realized by Creditor — Appropriation j OF Proceeds— Res Judicata. Under the Judicature Act. estoppel by res judicata cannot be relied on as a defence to an action unless sin-cially pleaded. Cooper It ul. v. ilolsons Bank . . xxvi., 611 10.— Municipal Corporation — Highway — Private Way — Widening Streets — I.,ocAL Improvement — Special Assess- ment. Prior to the proceedings which gave rise to the action, the City of Montreal deter- mined to widen Stanley Street between Sherbrooke and St. Catherine Streets, and passed a by-law to provide for the expro- priation of sufficient land, back of the ori- ginal line of the street, to carry out the intended widening. In the assessment roll prepared to meet the cost of this widen- ing, u rate was set upon all property on the street. not only between St. Catherine and Sherbrook.' Streets, but northward to the extreme northerly limit of Stanley Street on the confines of Mount Royal Park. W. attacked this assessment roll, claiming th.it his property, on the upper part of Stanley Street, should not be assessed for the widen- ing in question as the said ui>per part of Stanley Street was a private way. The : Superior Court gave judgment in favour of i W.'s contentions, and (juashed the assess- i ment roll. Further exprojiriations to carry i cut the i)roi>os"d widening between St. Catli- I erine and Sherbrooke Streets, were then pro- I ceedwl with, and assessment rolls prepared ; by which the whole cost of these expropria- : tions was thrown upon the proprietors be- . tW(>en St. Catherine and. Sherbrooke Streets. ' no part being rated against W. or other 228 RES JUDICATA. proprietors on the iipp«"r pnrt of Stanley Stn-t't. Ohjoctioiis were thereupon filed to set nside these assessment rolls on the groiinerly releasing; the property on the upper part of Stanley Str«'et from any jiurtion of the nssessnient. iind W. was ealled into tin- case to defend his interests. The Superior Court lield. 1st. Thit the former jndjjment in the aetion hetweiMi W. and the City of Montreal was res judicata and that the upper portion of Stanley Street was a private way and therefore ex- empt from assessment; and 2nu. Even if that iioint had not been st-ttled hy the former jnd;.'ment. that the iietitioners had failed to prove that the street was not a private way. This jndjrmt'nt was affirmed hy the Court of Queen's Bench (Q. R. »! {}. B. H»7l, and uiton further appeal:— The Suprenif Court of Canada atTirmed the decision of the Court of Queen's Bench, and dismissed the appeil with costs. sttvciiHon ft (it. V. The City of Montreal »(• White. Mis (n Cause, Tth June, ISO", xxvii.. 593 11. — Petitory Action- — Encroachment — Constructions under Mistake of Title—Good Faith— Common Error— BoRNAGE — Arts. 412. ■^\'^. 41iO et srq.. 1047, 1241 C. C— Indemnity— Demoli- tion of AVorks. An action to revendicate a strip of land upon which an encroachment was admitteil to have taken place by the cre.'tion of a buildinjr extendinj: Iteyond the boundary line, and for the demolition and removal of the walls and the eviction of the defendant, in- volves (ptestions relatinfr to a title to land, independently of the controversy as to bare ownershiri. and is apiiealable to the Supreme Court fif Canada uncler the provisions of the Stipreme and Exchequer Courts Ai't. Where, as the result of a mutnal error rc-srK'otinp the division line, a proprietor had in good faith and with the knowledjre and consent of the owner of the adjoiuins lot. erected valuable buildincs upon his own pro- perty and it afterwards appeared that his walls encroach slightly upon his neiRlibour's land, he cannot be compelled to demolish the walls which extend beyond the true liound- ary or be evicted from the strip of land they occupy, but should be allowed to retain it upon payment of reasonable indemnity. In an action for revendication under the cin-umstances above mentioned, the judjr- meiit previously rendered in an action en homage between the same parties cannot be set lip as »t« jurJieata, against the de- fendant's claim to be alloweil to retain the k'round encroached upon by iiayinu reason- aide indemnity, as the objects and causes of the two actions were different. Delnrnie v. CiiKson xxviii., 00 12.— Company — Forfeiture of Charter — Estoppel— Compliance with Statute- Action— Res .TU'DICATA. In an action apainst a River Improvement Company for repayment of tolls allcired to have been unlawfidly collected, it was al- lepe(l that the dams, slides, etc., for which t(dls were claimed were not pi iced on the properties mentioned in the letters pitent f;ir the con^pany: that the coniitany did not com- ply with the statutory requirements that the works should be completed within two years from the date of incorporation, whereby tlie corpornte powers were forfeited: that false returns were made to the Comnrssioner of Crown Lands tipon which th.' schedule of tolls was fixed: that the company by it-i works and improvements obstructed nivi- >:able waters, contrary to the provision* of the Timber Slide Companies Act, and could not exact tolls in res|)e:istenc ' by claiming that its corporate powers wer.' forfeited. Eardy Lumher Co. v. Piekcrcl Rirer Tmpi-ove- ment Co., 14th Dec, 1898 xxix. 12n. — Court of Probate — Jurisdiction — Accounts of Executors and Trus- tees. See Trusts, 3. 13. — Partnership — .Tudgment Against Firm— Liability of Reputed Partner Action on Judgment — Agreement Against Liability. See I'artnership. (!. " Promissory Note, 4. RETRAIT SUCCESSORAL— RIPARIAN PROPRIETORS. 229 14.— Title to Land— Entail— Lifk Estate — FiDl'CIARV SrnSTITUTION— I'rivileoes AND Hypothecs— MoRTOAQE iiv Insti- tute — I*REFERKEI> ('LAIM — I'RIOR 1n- ovmhrancer — \'is Major — Ueuistry Laws — Practice — Shkriff's Sale — Chose .Fl'oee — Parties — EriXdppEL — Deed Poll — Impovements ok Si-b- stituted Property — Chussks Uepab- ATioN— Art. LMTi: C. C— 'Jit Vic. c. 20 (Can.). Sec Mortgage, 12. •• Substitutiou. 2. RETRAIT SUCCESSORAL. Rights of Succession— Sale by Co-heir— Sale by Curator Before 1'artition— Art. 710 C. C. — Prescription. When :i co-licir has .assi;;ii('(l liis sliaro in a succi'ssinii licfnrc icirtition any other C'O-lu'ir may (laiin siicli sliart' iipcm rciinlmrs- iu^; tlif imrchaser Thi'ri'ot' the in'iic of such nssifjiinifiit and su'-li claiiii is iiniirescrin- tiijjf so long iis the pirtiliou has uot taiveu place. A sale by a eurator of the assets of an in- (•olvfUt, even though authorizcil liy a Judge, whieh iiiclmles an undivided share of a siictession of which tliere has lii-eii no partition does not deprive the other eo-heirs of their right to exert i>e by direc-t action against the purchaser tlieie- of the irtmit succcssoral of such undivided hereditary right.s. Ihe heir exercising the rrtrait succcssoral is only Itound to reiiul)urse the price paid l)y the original purchaser, and not lionnd in his fiction to tender the moneys paid by the pur- chaser. Baxter v. Phillips xxiii., 317 i REVENDICATION. Of Moneys Seized in Gambling House- Rules of Evidence — Impeachment of Judgment Declaring Forfeiture. See Criminal I>aw, 5. And sec Replevin. REVENUE LAWS. Revenue — Customs Duties — Imported Goods — Importation into Canad.\ — Tariff Act — Construction — Retro- spective Legislation — R. S. C. c. 32 — ;'t5 & .57 Vic. c. 33 (D.)— 58 & 59 Vic. c. 23 (D.)- f^ee Statute. Construction of. 31. REVERSION. 1. — Mortgage — Leasehold Premises — Terms of Mortgage— Assiunme.nt or Sub-lease. &'(r Lease, 3. 2. — Mortgage — Leasehold Estate — assmnment of eguity of redemption — AcQuisiTiij.N OP Reversion by AssiG.NEE— Priority— Merger. .S'fr Mortgage. 10. " Merger. REVIEW, COURT OF. Ait!;al from Court of Review— Appeal TO Privy Council — Appealable Amount— 54 & TCy Vic. (D.) c. 25. s. 3, s.-s. 3 & l~C. S. L. C. c. 77. s. 2.>- Arts. 1115. 1178 C. C. P.— R. S. Q. Art. 2311. Sec Statute. Construction of. 29. RIPARIAN PROPRIETORS. Ca.nadiak Waters— Property in Beds- Public Harbours — Erections in Navi- gable Waters — Interference with Xavioation— Right ok Fishing— Power to Grant Riparian Proprietors — —Great Lakes and Navigable Rivers —Operation of Magna Charta— Pro- vincial Legislation— It. S. O. (1S.S7) c. 24. s. 47—55 Vic. c. 10, ss. 5 to 13. 19 and 21 (O.)— R. S. Q. Arts. 1375 to 137S. Riparian proprietors before Confederation had an exclusive right of fishing in uoii- navigable. and in navigable non-tidal, lakes, rivers, streams and waters, the beds of ^^hicll had been granted ti> them by the Crown. Rnhrrtmti v. The Queen ((5 Can. S. C. R. ."2). followe.l. The rule that riparian proprietors own art meiTium fiJiim nquw does not apply to the great lakes or navicable rivers. Ter (i Wynne. J.— R. S. O. 24. s. 4-; ultra r'trex so far >s it assumes to authorize the sale of land covereil with water within public harbours. The margins of navigable rivers ami lakes may lio s(dil if there is an nmlerstanding with the I>ominion Govern- ment for protection againt interference with navigation. The Act of 1S02 and R. S. Q. arts. 13i.. to 137S are valid if passe assent to it. Fiider the provisions of U. S. O. c. 122. in order to enable the assignee of a chose in action to sue in his own name, the assign- ment must be in writing, but a written i- strument is not recitiired to restore the is- signor to his original right of action. Where creditors refused to iiccept tlie b<>nefit of an assigniiieiit under Ii. S. O. c. 124. and the assignor was notified of su
  • .".— < 'ontract — Sale of Goods by Sample — Objections to Invoice — I{easo.vabh; Time— Acquiescence— Evidence. if a niercliant reci ives tin iiivoi<'e and r - tains it for n considerable time without any objection, there is a presumption against liii'i tliiit the price stated in tlu' invoice was that agreed uiiou. Judgment of the Court of Queen's Bench, that tile evidence was sullicient to rebut the presunijif ion. reversed, (Jwynne, .7.. dis- senting, anil holding that the ajipeal de- ]iemled on mere matters of fact as to which an -Viciellate Court should not interfere. Kcanuy v. Lttrllicr xxvii., 1 ti. — Title to Land — Kight of IIedemption —Effect as to Third Parties— Pledge — Delivery and Possession of Thing Sold. Real estate was conveyed to S. as secur- ity f(U' mo.iey advancei? by him to the ven- dor, the deed of sale containing a provision that the vendor should have the right to a re-conveyance on paying to S. the iimount of the purchase mom-y. with interest and ex- l)enses disbursed, within a certain time. S. subsec|iicntly advauicd the vendor a further sum and extended the time for redem'itiou. The right of redemption was not <'X»'rciscd by the veiidor within the time limited, ami S. took possession of the property, which was subse(|uently seized nnder an execu- tion issued by Y. a judgment creditor of the vendor. S. then tiled an opposition claim- ing the property under the deed. llctd, reversing the judgment of the Court of <>iieeii's Keiich. that as it was shown th;it the jiarties were acting in good faith, and that they intended the contract to be. is it I)urported to be, vne vcntc li rt'mar. it was valid as such, not only betnecu theti;- selves but also as respected third persons. Salrag y. Vassal xxvii., ^tfii"d, and had not lii'cn annnlU-d l.y the order for n-sali'. m- iirinr to the i>io- ccfdint's for folic eitvhirc. Jhlil. that thf shcrilT'ts deed having Ih'i'H it.5.iu'd iniiiroiK'ily and without autiionty should In- treated as an absolute nullity not- withstanding that it had been ref;istered iiiid iiiipeared upon its faee to have been regularly issueil. aiul it was not necessary to have it annuileil before taking proeeed- iiiu's for folle tjiclivir. I.tniilic v. Ariiislri))iestination — Hypoth- ecary ('iiARGES — Arts. ',' (t «;(/. <". t'. A suspensive condition in an agrernuut for the sah' of movables, whereby, until the whole of the price shall have been paid, the proiKTty in the thing sold is reser.;'d to the vendor is a valid condition. La lUinuuv (I'llochcUKja v. fh- ^rnlCl■ous Enijiuc M'urlis Co x.wii., 400 !».— Title to Lands— Donation in Form of Sale — (Jifts in Contemplation of 1»eath — Mortal Illn?:ss of Donor — Puesvmption of Xullitv — Validating Circumstances— Dation en 1'aiement— Arts. 702, OS'J C. C. During her last illness and a short time litf"!! 10.— Construction of Contract — Agree- me.vt to Secure Advances— Sale of ftoorj.s — Pledge — Delivery of Posses- sion-Arts. 4:M. 102,-, 1020. 1027, 1472, 1474, 14!r2. I'.t".t4 c, C. C.— Bailment to Ma n l" iwcturer. K. 14. made an agreement with T. for the purchase of the output ni" his sawmill dur- ing the season of IS'.h;, u meinoramlum being executed between them to the etTect that T. S(dd and K. K. purchased all the lumber that he should saw at bis mill dur- ing the season, delivered at Hadlow wharf, at Levis; that thi' purchasers should have the right to refuse all lumber rejected by their culler: that the lumber delivered, cul- led and piled on the wiiarf should be paid for at prices stated: that the seller should pay the purchasers $M>0 per huinlred deals, Quebec stamlard. to meet the cost of tinload- ing cars, classification .'ind piling on the wharf: that the selh • should manufacture the lumber according to specifications fur- nished by the iiurchasers: that the purchas- ers slu.uld make payments in cash onco a month for the lumber deliv<'red. less two and a half per cent; that the purchasers should advance money u:>on the sale of the lumber (Ui condititm that tJie seller should, at the option of the purchasers, furnish col- lateral security on his proiH>rty, including the mill and machinery belonging to him, and obtain a iironiissory note from his wife for the auKuint of each cullage. the advances being made on the culler's certiticates show- ing receipt of logs not exceeding .«"2.- per hundred logs of fourteen inches standard; that all logs paid for by the purchasers should be their property, and should be stamped with their name, and that all nd- vances should bear interest at a rate of 7 per ct'ut. Before the river drive commenced, the logs were culled and reicived on behalf of the Iiurchasers. and stamiied with their usual mark, and they paid for them a total sum averaging .*:42.o;5 per hundred. Somt? of the logs also bore the seller's mark, mid a small quantity, whiih was buried in snow and ii'e. were not si;'.mped. but were received on behalf of the purchasers along with the others. The logs were then allowed to re- main in the actual iwssessiou of the seller. During the season a writ of execution is- sued against the seller umter which all niovaldc property in his possession was seized, including a (juantity of the logs In (|uestiou. lying along the river-drive and at the mill, and also a iiuautity (d" lumber into which part of the logs in ijuestion h.-id been mantifactured. at the seller's mill. Hrhl (Taschereau. .T.. taking no part in the judgment upon the merits), that the con- tract so made between the parties consti- tiUeil i\ sale of the logs. and. as .a necessary 232 SAVINGS BANK— SCHOOLS. consequence, of the deals ami lii.iinls into which part of tlit-ni had lu-cn nianiifactui-fil. KiiKj it 'il. V. Diiinds dit Gilbert, xxviii., 3SS 11. — Vendor and Purchaser — Sale of Leased Premises ^ Termination op Lease— Damages— Art. ItJOS C. C. Tlu> Court of Quet'ii's P.enfh for Lower Cuiada IQ. I{. 7 Q. B. 2',m. revfiswl th- ih'cisiiiii (if 'hi' trial court aiul holil: That the purchaser of real estate to l)e delivered forthwith <-ould not reiiuiie the vendor to eject the tenants, thi' existence of leases beiiifj no iinpediinent to immediate delivery of the premises sold, and ever.v sale beinii subject to existing: leases up to the time of the I'X'.dration of the current term, and fur- ther, that if the pnreiiaser refused to carry out the ajireemeiit for sale on the jrround of the existence of such leases, lie could not have the sale set iside U-c8ciUieK with daniajres against the vendor. On ajipeal the Supri'ine Court of Canada allinned the judgment api)ealed from for the reasons stated in the Court of Queen's Bench anil dismiss(>d the appeal with costs. AJlen V. The Canada Life Assurance Co., 14th June. ISitS xxviii., 008 12.— Sale of Land— Building Restric- tions — Construction of Covenant — Description— Street Boundaries. ■S'w Contract. 2. 1?>. — Sale of Goods — Contract for Deals —Place of Delivery— Warranty As to Quality' — Acceptance — Arts. 1()73, 1473. 1507 C. C. .Str Contraot, 3. 14.— Sale of Goods— Person to Whom Credit was <}iven — Assignment in Trust — Power op Attorney by Trustee— Authcrity of Attorney to Use Principal's Name — Evidence. S:ee Delitor and Creditor. 2. 15.— Sale of Land Subject to Mortgage- Indemnity OF Vendor— Special Agree- ment — I'uRCHASER Trustee for Third Party. See Mortgage. 2. in.— Contract for Sale op Land— Agree- ment to Pay Interest-Delay— De- fault of Vendor. •'^fi' Vender and Purchaser. 2. 17.— Sale of Land— r>E8CRiPTioN in Deed —Extent — Terminal Point - Ni^mber OF Rods. -Srr Deed. 1. IS. — Title to Land — Sale by Auction- Agreement AS to Title — Breach- Rescission of ('ontract. .S'ff Vendor and Purchaser. 4. 19.— -Sale of Timber — Delivery — Time of Payment — Prem.\ture Action — Vendor and i'urchaser. See Contract, 10. 20.— Sale of Bonds — Trustees and Admin- istrators — I'^RAUDULENT CONVERSION— Past Due Bonds— Negotiable Security — (."o.MMERCIAL PaPER — DEBENTURES Transferable by Delivery— Equity of Previous Holders — Estoppel — Brokers and Factors- I*ledge—Im- plied Notice- Innoce.vt Holder for Value— I'rincipal and Agent. See Pledge. 1. 21. — Ships and Shipping — Notice of Aba.ndonment — Sale of Vessel by Master — Necessity for Sale — Marine Insurance — Constri'ctive Total Loss. See Insurance. Marine, 5. 22.— Sale of Machinery — Resolutory Condition — Immovables by Destina- tion — Movables Incorporated with the Freehold — Sever.ance from Realty — Hypothecary Creditor— Un- paid Vendor. See Contract. 3ii. 23. — Sale of Land — Error— Rescission of Contract. See \eudor and I'urcliaser, 11a. SAVINGS BANK. Lo.\N BY — Pledge of Securities — Validity op Pledge- R. S. C. c. 122, s. 20. .^'«T Debtor and Creditor. 5. SCHOOLS. By-law— High School DiSTncT— Town- ships Ihetached. The ajipellant moved to quash a by-law of the (juint.v of Elgin, passed to detacdi certain township:^ from tlie high school dis- tricts t<) which they had bwii attached up to that time. The grounds upon which the by-law was atticked were that it was ulra vire.t of the county council; that the dis- tricts could only be changed li.v consent of the municipalities interested: and that it did not i>rovide for the continued liabilit.v of the municipalities detached for debts pre- viously incurred. The motion to quash was made before Mr. .Justice Rol^ertson, who dismissed it with costs, and liis decision was aft1rm'>d b.v the Court of Appeal for Ontario <21 Ont. App, R. 583>. SCHOOL FUND AND LANDS— SERVICE OF PROCESS- The SiiiM'eme Coiii-t of Caiiaiia, affirmed the jiiditiiient of the court lielow, ami dis- missed the appeal with costs. WHiton V. The County of Elgin, ISth March, ! ISiio sxiv., 70(5 ; 2.— School Corporation — Decision of ] SrPERINTENDENT OF PUBLIC InSTRUC- j TtoN — Appeal — Final Judgment — Mandamus — Practice. AVc Mandamus, 1. SCHOOIi FUND AND I.ANDS. ^S'w Coustitutional Law. SEAL FISHING. Imperial Act, 5i> & 57 Vic. 23 ss. 1. 3 and 4 — Order in Council under — Judicial Notice— Russian Cruiser — War Vessel, — Presence within 1'rohibited Zone- Burden OP Proof. See Evidence, 5. SEARCH W^ARRANT. 1. — Canada Temperance Act — Magis- trate's Jurisdiction — Constable — Jus- tification OF Officer — (jOods in Cus- todia Legis — Replevin — Estoppel — Res Judicata. A search warrant issued under " The Can- /ida Tenr.ierance Act" is good if it follows the prescrilH^d form, and if it has been is- sued hy competent authority and is vai'.d on its face it will aftord justitii atiou to the officer executing it in either criminal or civil proceedings, notwithstanding that it may be bad in fact and may have been ([Hashed or sei aside. Taschere.ui, J., dissenting. The statutory form does not require the premises to be searched to be described by metes and bounds or otherwise. A judgment on certiorari quashing the j wirrant would not estop the defendant from justifying under it in proceedings to replevy the gooebt — Debtor and Creditor — Security for Debt — Security Rkal:zed BY Creditor — Appropriation of Pro- ceeds — Res Judicata. See Banking, 4. 2. — Security for Appeal — Time Limit — Commencement of— r)ELAY in Filing — Extension of Time — Order of Judge —Vacation— R. S. C. c. 135. ss. 40, 42, 46. See Appeal, 49. 3.— Security for Appeal— Time Limit — Commencement of — Pronouncing or Entry' of Judgment — Security- — Ex- tension OF Ti.ME — Order of Judge — R. S. C. c. 135, ss. 4(1, 42, 4(3. See Appeal, 5<>. SEIGNORIAI. TENURE. Title to Lands — Deed of Concession — Construction of Deed — Words of J -imitation — Covenant by' Gr.^nte? — Chaf.ges Running with the Title — Servitude — Condition, si Voluero — Prescriptive Title — Edits et Ordon- NANCES (L. C\ — ilu'NICIPAL REGULA- TIONS— 23 Vic. (C.) c. So, Sec Servitude. 2. SEIZIN. Possessory Action — Vacant Lands — Boundary Marks — Delivery of Pos- session. See Evidence, 29. SEPARATE ESTATE. Constitutional Law — Marital Rights — Married Woman — Separate Est.\te — Jurisdiction of North-west Terri- torial Legislature — Statute — Inter- pretation OF — 40 Vic. c. 7, s. 3 and Amendments— R. S. C. c. 50— N. W. Ter. Ord. No. 16 OP 1S89. See Mairied Wo.iian, 2. SERVICE OF PROCESS. 1. — Service of Election Petition— Certi- fied Copy' — Bailiff's Return— Cross- examination— Production op Copy. Sec Election Law, 7. 2. — False Return of Service of Summons —Judgment by Default — Opposition to Judgment— Arts. !(>, 80 et s"'/.. 483, 489 C. C. P. See Action. 1.5. And S'(( Signitication. 234 SERVITUDE. SERVITUDE. 1. — Action — Keal or Appark.vt Servitude — Kkgistration— 44 4S: 4."> Vic. c. 10. ss. ."> AND <; (Ql-K.l— .\.RT. l.'US C. ('.— I'rO- CEDURE ^Matters in' Appe.a.l. Hy (Ic.'d (if smI.' (latfil 2n(» in the I'arish of Sto. M:ir>:uerite dc Bliiirlindic, district f>f IlK'i'>ille. rescrvt-d for Iiiniself, :is owner of Lot 37<». a oarrinjre road to ln> kept open and in order by the vendee. The re- spondent Ferdais as assi;;iiee of the owner of I^ot '.ilO continued to enjoy the use from McI)., interveiiant. witliout any mention of any servitude and the ori- ginal title deed creating: tlie servitude was not re^'istered within the time preserihed l)y 44 iV- 4."» Vic. (Que.), c. IC. ss. ."» and il. In an action confrsxnire hrou^ht hy F. asi.iinst ('. the latter tiled a dilatory exception to t'linhle liiin to call AIcD. in warranty- and McD. having: intervened pleaded to the ac- tion. C. never pleaded to the merits of the action. The .Tudge who tried the case dis- ndssed Mel'.'s intervention and maintained the action. This judt'nient was affirmed hy the Court of Queen's Bench. On appeal to the Supreme Court of Canada: HvUJ. affirniinK the judgment of the court helow, that the deed created an apparent servitude, (which need not ho reiiisteredl. and thit there was sufficient evidence of an ojien road having lieen used hy F. and his predeccsssors in title as owners of Lot Xo. 370 to maintain liis .ictioii coiifcxgoiir. Held, also that though it would appear hy the procedure in the case that McD. and C. had heen irreirularly coiidcnined jointly to i>ay the amount of the judgment, yet as .Mcl>. had [deaded to the merits of the ac- tion and had taken up fait at camr for C. with his knowledge, and hoth courts h;id held them jointly liahle. this court would not interfere in such a matter of practice and jirocedure. .Uarditnald v. Frrdais xxii., 2G0 2.— Title to Lands— Seignorial Tenure- Deed OF Concession— Construction op Deed — Words of Limitation — Cove- nant nv Grantee— Charges Running with the Title— Conditio.v. si Voluero — Prescriptive Title— Edits & Ordon- NANCEs (L. C.I— Municipal Regula- Tu.vs— 1'.-? Vic. Can. I c. S."). In 17(;s the Seigneur of Berthier granted an island called " I'TIe du Milieu." lying ad- jacent to the " ('ommon of Berthier" to M. his lieirs and assigns i»cs hoirs ft a>jant» cauMi). in consideration of certain tixed an- nual iiayments and suliject to the following stiimlation: — "en o\itre a t-ondition qu'il fera a ses frais, s'il le jmjc uvccssnirc. une cloture honne et valalde, it I'Spreuve des anmiux di' la Commune, sans anciin recours ni gar- antie A cet egard de la part de sieur seig- neur, lesiiuellcs conditions out et6 acceptSe-i du st piiitit on tlie boundary of the defeiulant's land, but the latter claimed the riirht to con- tinue to use the way. In an action (negatoire) to prohibit further use of way: Held, affirming the decision of the Court j of Queen's Bench, that there was no title in writing sufficient to establish a servitude i across the plaintiff's land over the roadway so permitted l)y nuu'e tolerance: that the ■ effect of the agreement between the pur- : chaser was merely to establish servitudes ; across their respective lands so far as might j be necessary to give each of the owners ac- ' cess to the road so purchased from the near- j est practicable point of their respective I lands across intervening pror-erties of the others for the purpose of the cultivation of j their lands beyond the mountain. i Riou V. Biou xxviii., 53 4.— Necessary Way — Implied Grant— User — Ob.structiox of Way — Prescription > Limitation of Action— R. S. X. S. (5 i SER.) c. 112. ^cc Limitation of Action, 1. And see Easement. SHELLEY'S CASE. Iil'LE IN — 1 lEVISE OF LiFE EsTATE — RE- MAINDER TO Issue in Fee. .^(t Will. SHERIFF. 1. — Title to Land — Entail — Life Est.vte — FiDCCIARY St'BSTITrTION — I'rivileges AND Hypothecs — Mortgage by Insti- tute — I'reperred Claim — Prior In- ciMHRANCER— Vis Major— It) Vic. c. 12'> IJeoistry Laws — Practice — Sherip'f's Sale— Chose .Iugee — Parties— Estop- pel — Sheriff's Deed — Deed Poll — i.mprovements ox sfbst'tuted pro- PERTY — Grosses Reparations. The institute, girre de siibstHu i',)i. in pos- session (if liuid and cnrntor to tii,. suhstitn- tiiiii. upon judicial authority, mortgaged the land under the prnvisions of the Act fur the relief of sufferers by the great Mo:itreil Fire of 18.".2 (lU Vic. c. 2oi, for a loan which was exiicnded in reconstructing buildings up- on the property. *>n default in payment the mortgagee obtained judgment against the institute, ami catised the lands to be sold in execution by the sheriff in a suit to which the curator hail not been made a party. IleUI. that, as the mortgagee had been judi- cially authorized and was given special pre- ference by the statute, stiperior to any rights (rr interests that might arise under the substitution, the sale by the sheriff ia execution of the judgment so recovered dis- charged the lands from the substitution not .vet open, and effectually passed the title to the inirchaser for the whole estat<'. including- that of the substitute as well as that of the grerv 'le mibstitutio-tt, notwithstanding the omission to make the curator a party to the action or proceedings in execution against the said lauds. The sheriff seized and sold lands under a writ of execution against a defendant de- scribed therein, and in the process of seizure and also in the deed to the purchaser at sheriff's sale, as grerf d^ substitution: Held, that the term used was merely de- scriptive of the defendant and did not limit the estate seized, sold or conveyed under the execution. .ludgment of the Court of (}ue»'n's Be:jch for Lower Canada affirmed. Taschereau and King, ,TJ., dissenting. Chef dit Vadehoiicfrur v. The City of Mnn- tnal. Kith October. INKS xxix.. 2. — Title to Land — Sheriff — Vacating Sale — Exposure to Eviction — Actio Condictio Indebiti — Petition — Refund of Price Paid — Prior Incumbrance — Substitution xot yet Open — Dis- charge OF Incu.mbrances. The procedure by jietition proviiled by the Code of Civil I'rocedure of Lower Canida for vacating sheriff's sales can be invoked "ul.v in cases where an action would lie. Thr TruDt and Loan Co. v. Qiii'iital (2 Dor. Q. B. llHii, followed. The ai'tio condictio Indchiti for the re overy of the price paid by the purchaser for lands lies onl.v in cases of actual eviction. Mere exposure to eviition is not sufficient ground for vacating a sheriff's sale. The provisiniis of article 714 of the Code iif Civil I'nicodure do not ajiply to sheriff's sales which have been perfected liy payment of the price of adjudication and the execu- tion of th(> deed, nor does that article give a right to have the sale vacated and the .■imouut s'p ]iaid refunded. 236 SHIPS AND SHIPPING. A sheriff's ssilo in execution of a judg- niont Li),'ainst tlie owner of lamls, grcii d€ gubstitution. based njMin an oliligaiion in a niortga^ie liavinjj: iiriority over tlie instru- ment by wliieli tile substitution was created, discliarKes the lands from the unopened sul>- stitution witiiout the necessity of making the curator to the sulistitution a party to the proceedings. ('h(f dit \udeUnnrii:ur v. The City of Mijiilnal (2!) Can. S. C. li. ft», fol- io we(3. Deachamp.s v. liury, 14th December, 1898, xxix. ■3. — Rale of Goods by Sheriff — Trespass — Sale of (iOOds by Ixsolve.nt — Bona Fides — .Ttdgment op Infehiou Tri- bunal — I'^STOPPEL. — Ues J UDICATA — BaR TO AcTio.v — Fraudulext Preferences — I'leadixg. See Fraudulent Preferences, 1. Land — Writ of Venditioni Order of Court ^r Judge 4. — Sale of Exponas- FOR. flee Practice, 5. I> — Sheriff's ItEED — Registration of — Absolute Nullity— Folle Enchers— Resale for False Bidding. See Appeal, 50. ■6. — Deed by — Champerty — Maintenance. See Evidence, 27. 7. — Title to Land — Prescription — Limita- tion OF Actions — Equivocal Posses- sion — ^[ala Fides— Sheriff's I>eeij— Nullity. See Appejil. •',!». SHIPS AND SHIPPING. 1. — Chartered Ship — Perishable Goods — Ship Disabled by Excepted Perils — Transshipment — Obligation to Trans- ship — Repairs — Reasonable Time — Carrier— Bailee. Tf a chartered ship lie disaliled by excepted perils from completing the voyage the owner does not ne.>essarily lose the IxTiefit of his contract, luit may forward the gonds by oilier means to the iilace of destination au'l earn the freijrht. The option to transship must be exercised within a reasonable tii. and if rejiairs are •decided uixui they must he effected with rea- .sonahle despatch or otherwise the owner of the cargo beccmies entitled to his goods. Qi/frrr.— Is the ship-owner liged to trans- fihip? If the goods are such as would perish before repairs could be made the ship-owner slioul.l cither transship, deliver them up or sell if the cargo owner does not object, and his duty is the same if a portion of the cargo, severable from the rest, is perish- able. And if in such a case the gooils are sold without the consent of the owner tiic latter is entitled to recover from the ship-owner the anioiint they would have been worth to him if he had received them at the port of shipment or at their tlestination at the time of the breach of duty. Otren v. Outerbridye xxvi., 272 2. — Maritime Law — Collision— Rules of the Road — Narrow Channel— Naviga- tion. Rules of— R. S. C. c. 79, s. 2, Arts. 15, 16, 18, 19. 21, 22 and 23— " Crossing " Ships — " Meeting " Ships — " Passing " Ships— Breach of Rules — Presumption of Fault— Contribu- tory Negligence — Moiety of Damages — .'it! AND 37 Vic. (Imp.i c. 85, s. 17— Manceuvrhs in " Agony of Collision." If two vessels approacli each other in the jMisition of ■• i>assing " ships (with a sidt; light of one dead aheail of the other), where unless the course of one or liotli is t hanged they will go clear of each other, no statu- tory rule is imposed, but they are governed by the rules of good navigation. If one of two "passing" ships acts con- sistently with good s«:imaiishii> and the other ticrsists. without good reason, in keep- ing on the wrong side of the chann-l; in stiirboarding the helm when it was seen that the helm of the other was hard to port and the vessols are rapidly approaching; and. ,Mfti>r signalling that she was going to putt, in turning her Imiw to starboard, she is to blame for a collision which follows. The non-observance of the stitiitory rv.l" (art. IS1, that steamships shall slacken speed, or stop, or reverse, if necessary, when approaciiing another 8hip, so as to in- volve I cnllision, is ni>t to lie considered ;is !! fact contributing to a collision, provided the (olli-iion could li;ive been :ivoided by the inii)iiiging vessel by re.ison;ible care cx- (•rted up to the time of the collision. Excusable manoeuvres executed in " igony of collision " brought alwut liy another ves- s«d. although in contravention of statutory rel'-s. cannot be imputed as cdiitributory i'c!.'lig..n(.o on the part of the vessel collided with. Tlu> rule that in narrow channels steam- ships shall, when safe and practicable, keep SIGNIFICATION. -J/ to th<> starboard (art. 21), does not over- riih' tin- Ki'iit'i'iil i">ilt^ t'f navigation which wiiiild also apply to aiipropriatt' cases. Thv I.( iirinytou (11 P. D. llTi, followed. Thf " Cuha ■' V. McMillan . . . . xxvi., (iol 3. — Maritime Law — Affreight.ment — Carriers— Charterpakty—I'rivity of Contract — Negligence — Stowage — Fragile Goods— Bill of Lading— Con- dition — Notice — Arts. Ifi74. lG7o, 1G7G C. C— Contract Against Liability for Fault of Servants— Arts. 2383 (Si; •2390. 2409; 2413. 2424. 2427 C. C. Tl!L' chartering of a ship with its coin- }i;.n.v for a particular voyage by a transpor- tation (.-onipany does not relieve the owners and master from liability upon contracts of affreightment during such voyage w'lrr" the exclusive control and navigation of the ship lire left with the master, nuiriners and other servants of the owners and the contract had liccn made with them only. The sl>ii)per's knowledge of the manner in wliicli his goods are being stowel under a coniract of affreightment does not alone ex- cuse ship-owners from liability for damages caused through improper or insuUicient stowage. A cdiulition in a bill of lading, providing tl'.at the ship-owners sliall not be liable for negligence on the part of the master or mariners, or their other servants or agents is iK>t contrary to public polic.v nor pro- hibited by law in the I'rovince of Quebec. Where a bill of lading provided that glass was carried only on condition that the ship and railway companies were not to be liable fur any breakage that might occur, whether from negligence, rough handling or any other cause whatever, and that the owners were ti> be " exempt from the perils of the seas, niul not answerable for danuiges and losses hy collisions, stranding and all other ac- <-!dents of navigation, even though the dam- age or loss from these may be attributable to some wrongful act. fault, neglect or error in judgnu'iit of the pilot, master, mariners or other servants of the ship-owners; nor for lireakage or any other damage arising from tile nature of the goods shipped." sudi pro- visions applied only to loss or damage re- sulting from acts done during the carriage (if the goods and did not cover damages inused by neglect or improper stowage prior to the commencement of tiie voyage. The Glcngoil Steamship Company v. Pilking- ton. The Olengoil Steamship Company y. Foviison, xxviii., 14G 4. — Collision at Sea — Negligence — De- fective Steering Gear— t^fESTioN of- Fact — Interference with Decision of Local Judge in Ad.miralty. See Appeal, 19. 5. — Marine Insurance — Constructive Total Loss— Notice of Abandonment Sale of Vessel by Master — Necessity FOR Sale. .S'fc Insurance, Marine, 5. (5. — Foreign Fishing Vessel.s— " Fishing " — Convention of 1818 — Three Mile Limit— 59 Geo. III. c. 38 (Imp.,)— R. S. C. c. J»4 and c. 95. Sec Fisheries, 3. 7. — Hire of Tug— Conditions— Kepairs — Negligence— Compensation. See I>ease, 5. SIGNIFICATION. Of Transfer — Condition Precedent to- Kight of Action— Partnership Trans- action in Heal Estate— Act of Uesili- ATioN, Effect of. The signification of a transfer or sale of a debt or right of action is a condition pre- cedent to the right of action of the trans- feree or purchaser against the debtor, and the necessity of such signification is not removed by proof of knowledge by the deb- tor of the transfer or sale. The want of such signification is put in issue by a defense an fouds en fait. M. and B. entered into a specula''. m to- gether in the purchase of renl estate the title to which WIS taken in the name of K. and the first instalment i>f purchase money was acipiired from a brother of ^I., to whom B. gave an n as the obligation for the first instahnent was transferred to M.. but with- out any siguification in either case. Subse- pecitic performance; that the evidence showed the lease granted by Xorthcote to have been merely colorable and 'an attempt to raise money on the land by indirect ' means: and that the decree should go for I specific performance the whole purchase money to be paid in to a trust company. yortheotc v. Vigeon, 20th February, 1893, xxii., 740 2. — Contract — Title to Land — Objections TO Title — Waiver. To entitle a party to a contract to a de- cree for specific performance, he must have been promiit himself in performani e of the obligations devolving upon him and always ready to carry out the contract within a reasonable time, even although time might STATUTE. 239 ni>t have lit-on of tho ossonce of the agree- nn'iu. Sp<- party asking; pcrfonnanct' has ilo- clart'il his inability to carry out the agreo- nit lit on his part. A pnrcliascr of lanil who takes possession of the property and exercises acts of owner- ship liy niakin;: n'pairs and inipnivenients will Ik- held to have waived any objections to the title. Olijections to title cannot be riised where the purchaser has made a tender of a blank deed of niortnafie for execution for the pur- P'lse of carrying out tho purchase. Wallace ct al. v. /{(sslcin d a!., Hist Nov.. ber, IfSii.S xxix. 3. — Contract for Purchase of Land — Agree.ment to I'ay Interest — Delay- Default OF Vendor. Sec Vendor and Purchaser, 2. 4.— Agreement for Services — IIemuneka- TioN — Relationship of Parties. See Contract, 14. 5. — Vendor and Purchaser — Sale of Lands — Waiver of Objections— Lapse OF Time — Will, Construction of — Executorv I)evise Over — Defeasible Title— Kescission of Contr.\ct. See Vendor and Purchaser, G. STATUTE. 1.— Construction of — 54 & 5.j Vic. c. 25 — Appeal to Supreme Court. Hehl. iH'V Strong. CI., and Fournier and Sedgewick. .T.T., that the right of appeal given by J54 & 55 Vie. c. 25. does not ex- it nd to cases standing for judgment in the Superior Court prior to tlie passing of the s;:id Act. Couture v. Bnuchind. 21 Can. S. C. It. 1S1. followed. Taschereau and Gwynne, J.T.. dissenting. Per Fournier. .!.— That the statute is not aiiplicahle to cases already instituted or pending before the courts, no special words to tliat effect being used. WilUtims V. Ininc xxii., 108 -■—Construction of — Title to Land- Tenant FOR Life — Conveyance to Railway Company by— Railway Acts— C. S. C. c. GO. s. 11. s.s. 1—24 Vic. c. 17. s. 1. By C. S. C. c. GG. s. 11 (Railway Act), all corporations and persons whatever, tenants in tail or for life, grhrs (/<■ substitution. guardians, etc., not only for and on behalf of themselves, their heirs and successors, but also for and on liehalf of tliose whom they represent * * * seized, possessed of or interested in any lands, may contract for, sell and convey unto the comiiaiiy (railway company) all or any part thereof: and any contract, etc.. so made shall bt> valid and effectual in law. Held, aflirming the decision of the (jnirt of Appeal, that a tenant for life is author- izetl by this A<'t to convey to a railway com- pany in fee, but the company must pay to the remainderman or into court the pro- jiortion of the purchase money representins the remainderman's interest. Midland RaiUruy of Canada v. Younff, xxii., 190 3. — Construction of — Married Woman's Property — Separate Estate — Con- tract BY Married Woman — Separ.\te Property Exigible — C. S. V. C. c. 73 — 35 Vic c. 1G (O.)- R. S. O. (1877) cc. 125 and 127—17 Vic c. 19 (O.). A woman married between 1S."»;> and 1872 acquired, in 1879 and 1882, lauds in Ontario as her separate property, and in 1887, before the Married Woman's Property Act of that year )R. S. O. c. 1.32), came into force, she became liable on certain promissory notes made by her. Held, reversing the decision of the Court of Appeal, that the liability of her separate property to satisfy a judgment on said pro- missory notes depended on the construction of the Married Woman's Real Estate Acts of 1877 (R. S. O. cc. 1-25. 127), and The Mar- ried Woman's I'roperty Act, 1884 (47 Vic. c. 19). read in the light furnished by certain clauses of C. S. U. C. c. 73}; and that her (apacity to sue and be sued in respect there- of <'arried with it a corresponding right on tile i)art of her creditors to obtain the fruits t>f a judgment against her by execution on such separate property. Moore v. Jaekson xxii., 210 4. — Construction of — Municipal Corpora- tion— By-law— Street Railway — Con- struction Beyond Limits of Muni- cipality — V.alidating Act. The Corporation of the Town of Port Ar- thur passed a by-law entitled " a by-law to raise the sum of $75,000 for street railway jniriioses. and to authorize the issue of de- bentures therefor." which recited, inter alia, that it was necessary to raise said sum for the purpose of building, etc.. a street rail- way connecting the municipality of Neeli- ing with the business centre of Port Arthur. 240 STATUTE. At that time a uiiiiiiciiinlity was ncit niuhor- izftl to I'oiistriu't a street railway lieyoud itsi tcrintorial limits. The liy-Iaw was voted updii liy tlie rateiiaycrs and jiassed. hut none was suliiiiitted orderiiiK the coiistnietinn of the work. Suhsetiuentiy an .\(t was passed hy the I.e>.'islatiire of Ontario in resiieet to tlie said hy-law which enacted tliat the same " is hereliy conlirnied and dec lared to tie valid, leptl .and liinding on the town ♦ ♦ * and for all jmiiMjses, etc., relating to or uffectiu:; the said hy-law any and ail amend- ments of the Mnnicipal Act * * * shall lie det-nied and taken as having been coni- Iilied with." //(7(/. reversing' the decision of the Court of Aiipeal. Tascherean. .1., dissenting, ih.it the said Act did not dispense with the re- quirements of ss. ."i(»4 and .">(>.■> of the Muni- cipal Act requirinp a by-law providing: for the lonstr.K-tion of the railway to be passed, but only confirmed the one that was passed as .1 money by-law. Held, also, that an erroneous recital in the preamble to the Act that the Town Council had pissed a construction liy-law had n) effect on the question to lie decided. Dtcya- V. 7'oi(»i of Port Arthur . . xxii., 241 5.— CoxsTRucTioN OF— Reference to Title — Intention" of Legislature — .'lO Vic. c. 23 (X. S.i— Applicvtion of. In coiistrnin;!: an Act of I'arlianient the title may be referred to in order to ascer- tain the intention of the legislanire. The Act of the Xova Scotia I..esislai:nre, .'lO Vic. c. 23. vestinj: the title to liijihways and the lands over which the same pass in the Crown for a public highway, does not apply to the City of Halifax. O'Connor v. Xora Scotia Tclcphwie Co., xxii.. 37(3 ♦1. — Ontario Municipal Act — Bridges — Width of Stream— R. S. O. i1S8") c. 184. ss. r)32. .-.34. By the Ontario Municipal Act. R. S. O. riSST] c. 1S4. s. -.:J2. the council of any county has " exclusive jurisdiction over all bridges crossing streams or rivers over one hundred feet in width within the limits of any incoriwrated village in the county, and connecting any main highway leading through the county," and by s. .-|34 the ctiunty council is obliged to erect and main- tain bridges on rivers and streams of said width. On rivers or streams one hundred feet or less in width the bridges a.e under the .iiirisdictioii of the respective villages through which they flow. //<7rf, reversing the decision of th- Cniit of Appeal, that the width of a river nt the level attained after lu'.-ivy rains and freshets eacli year should be taken into consideration in determining the liability under the Act; the width at ordinary high-water mark ia not the test of such liability. Villayr of Sfir Hamburg v. The County of Waterloo xxii., 20G 7. — O.ntario Assessment Act — Unauthor- ized Assessment — Validation — R. S. 0. (l.S*(7,l c. Itt3, s. »i5. Section ti,") of the Ontario Assessment Ait (R. S. O. [1SS7] c. 193), does not enable the Court of Revision to make valid an as- sessment which the statute does not author- ize. Ci'ty of London v. M'att xxii., 300 8. — Application of— .-)4 & 55 Vic. c. 25, b. 3 — Appeal to Supreme Court. The statute 54 & 55 Vic. c. 25, s. 3, which provides that " whenever the right to ap- peal is dependent upon the amount in dis- pute such amount shall lie understood to be that dem.anded and not that recovered, if they are different." does not apply to cases in which the Superior Court has rend- ered judgment or to cases arguetl and stand- I ing for judgment loi dvUhvrt) before that court, when the Act came into force. 'Wil- liams V. Irrini (12 Can. S. C. R. lOSt, ful- i lowed. I Coiran v. Evans; Mitchell v. Trciiholnx ; \ Mills V. Limoges xxii., 331 ! 0.— .-)4 & .55 Vic. c. 25 — Reference to Supre.me Court. Quwrr. — Per Tascherean, J. — Is sec. 4 of 54 & .5.5 Vic. c. 25, which purports to author- ize a reference to the Supreme Court for hearing " or " consideration, intra vires of the I'arliainent of Canida? In re Certain f>tatutes of the Province of Manitoha. Relating to Education . . xxii., 577 10. — Constitutional Law — Local Legisla- ture — Powers op Lieutenant — Governor. Inasmuch as the Act 51 Vic. c. 5 (O.I, de- clares that in matters within the jurisdicti' n of the Legislature of the Province, all powers, etc., which were vested in or exer- cisable by the (Jovernors or Lieutenant-Gov- ernors of the several provinces before Con- federation shall be vested in and exercisable by the Lieutenant-fJovernor of that Pro- vince, if there is no proceeding in dispute which has been attempted to be justified STATUTE. 241 uikUt "(1 Vif. 0. ."> (O.I, it is iinitossihle to ' Miy that tin- |M»wt'rs to Ik- .-xtTtiMd \>y the s!ii(l .\ (O.I. is iiUra vinn of tin- I'roviticial LevislaKirc. AttortKy-llrnrial of ramnla v. AtlinKji- (hiteral of Ontario xxiii., 45S 11.— Criminal Law— Betting on Election — Stakeholder— li. S. C. c. 159, s. 9— AccE.ssoRY— R. S. C. c. 145, s. 7. IJ. S. C. C. I.VJ. s. 9, pi'itvidcs inter alia tliat "'every one wlio liecoiiics the etistoiliin or (lefHisitary of any money » * * stakerl, watered or ii!e(lj:c.i iijioii the result of any pal otTeuders. 1{. S. ('. i c. 14.5. Ktg. V. Dillon (1(1 Out. 1'. 11. 3521. ' overruled. Walsh V. Trcbilcock xxiii.. (Vj5 12.— Construction of— Quebec License Laws— 55 & 5(t Vic. c. 11. s. 2<»— City of Sherbrooke— Charter— .55 & .5ii Vic. c. : 51. s. .55— Powers of Tax.\tion. By virtue of the first clause of a by-law ; passed under 55 & 5<> Vic. c. 51, an Act coiisolidatini,' the Charter of the City of j Sherbrooke, ihe :ii>pellant sas taxed " five i cents on the dollar on the annual value of ! the premises in which he can-ied on his i occupation as a dealer in spirituous liquors, and in addiiion thereto, under clause three of the same by-law. was taxed a special tax of two hundred d(dl:irs also for the same o< cupation. Section .55 of the Act .55 it 5G Vic. e. 51, enumerates in sub-sections from a to ; the kinds of taxes authorized to be imposed, sub-sec. Uj\ authorizing the impositi(m of a business tax on all trades, occnpations. etc based on the annual value of the premises and sulHseo. (f/i providing for a tax on per- sons, among others, of the occupation of the I'etitioner. At the end of sub-sec. (r/i is th • fallowing: '• the whole, however, subject to the provisions of the Quebec License Act." ine Quebec License Act, (art. 927 II. S B.C.D.— 16 Q.I limits the powers of taxation for any .Municipal Coun<'il of a City to .<*_*<•<» upon liobU-rs of licenses. Ih'lil. attinniug the jiidgnicni of the court below, that the power grantecl by 55 A: 5t» Vic. c. .51. to impose till several taxes was independent and cuniiilativc, and as the special t;ix did not exceed the sum of !?1!ection (yi >ot applying to the wh(de section. Taschereau and Ciwynne, .T.I.. dissenting. U'lhstcr v. I7if City of Shcrbrookf, xXiv., 208 1.'}.— Municipal Corporation— Ditches and Watercourses Act. K. S. O. (1887.1 c. 22(1 — Requisition for LIrain— Owner op Land— Meaning of Ter.m Owner. By section d (hi of the Hitches and Water- courses Act of Ont. (1{. S. O. [1.SS7] c. 220), any owner of laud to be benefited thereb.v may tile with the clerk of a municipality a reiiuisitiou for a drain if he has obtained "the assent in writing thereto of (including hiniselfi a majority of the owners affected f iii;il;iii« ii fur\vanlin« a^'rec- iiiciit i n>- ttttcl from liaUility for injury to propi'-ty occurring without ncv'lip'iK't' in its use of the rcail so leased, to the same oxtont as the Canada Southern Uailway Co. is itself protected. Michiaan Cnitial lOI. Co. v. ttV«/?«jnN. xxiv., Ii09 1.'.— rRACTicE— Kqvity SriT— Nkw Trial- CoNSTRfCTION OF STATUTE A.S TO— PkK- soNA Design-ata— 53 Vic. c. 4. s. H'. (N. B.). ;";] Vie. C-. 4, s. S") iN. B.l. relatinj: to pro- ceedings in equity, provides that in an equity suit "either party may apply for a new "trial to the -hidtn' before whom the trial was lield." _ „ , o Held, reversing the decision of the Su- preme Court of New Brunswick, Tascher- eau. J.. diss(>nting, thiit such application need not he made liefi.re the individual be- fore wlioni the trial was liad V)Ut could be made to a .liidge exercising the same juris- diction. Therefore, where the Judge m e(iuity who had tried a case resigned his othce an ai)plieation for a new trial <'ould be made to his successor. Fnotncr v. Fines <2 Sim. 31!)), followed. BradKhtiir v. Itaptht Foreign Mission Board, xxiv.. 351 15a. — Constitutional Law — Dominion ♦ Jovernmknt— Liability to Action for Tort— Injury to Troperty ox Public Work— Non-feasance— 39 Vic. c. 27 (,D.) K. S C. c. 40, s. I'.— 50 & 51 Vic. c. 1G (D.).' 50 & 51 Vic. c. 1«, ss. K! and 58 confers upon the subject a new or enlarged right to maintain a petitiim of riglit against the Crown for damages in respect of a tort (Tas- chereau. -T.. expressing no opinion on this piMIlt). By 50 & 51 Vic. c. 10. s. 16 (D.). the Exchequer Court is given jurisdiction to hear and determine, infer alia: " (d) Every claim against the Crown arising under any law of Canada " * • • Held, per Strong. 'J..T.. and Fournier. .T., that the words " any claim against the Crown " in sub-sec. I'H without the addi- tional words would include a claim for a tort: that the added words "arising under any law of Canada " do not necesaiarily mean any prior existing law or statute law of the Dominion, but might be interpreted as meaning the general law of any Province of Canaila. and even if the meaning be n- stricted to the statute law of the Dominion the effect of s. .5S of .50 rovision as to delivery of the roll to the collector was imperative and its non-delivery was a suflicient answer to a suit against the collector for failure fo c(dlect the taxes. //(•/(/. also, that such delivtu-y was neces- sary in the case of the roll for municipal taxes provided for in the previous section as well as to that for provincial taxes. Toirn of Trenlon v. Dyer . . . . xxiv.. 474 17.— Construction of— Retroactive Effect — Municipal Corporation — Turnpike lioAD Co.— Erection of Toll Gates- Consent OF Corporation. A turnpike road company had been in ex- istence for a numlier of vcars and had erected toll gates and collected tolls there- for, when an Act was pa.ssed by the Quebec Legislature. .52 Vic. c. 43. forbidding any such comi>any to place a toll or other gate within the limits of a town or village with- out the consent of the coriwration. Section 2 of said Act provided that "this Act shall have no retroactive effect." which section was repealed in the next session by 54 Vic. c. 30. After 52 Vic. c. 43 was passed, the company shifted one of its toll gates to a iwint l>eyond the limits of the village, which limits were subse«iuently extended so as to STATUTE. 243 brtnj; suif Tt'2 \"\i'. I-. 4."., iiiailc tliat Ai't rctri>acfivo ninl that the shifting of tht- toll jratt- without tlip coiisi'iit of the (•oriH>ratioii wax a violation of said Ai-t. Hrlil. .itlirnii:i>: thf decision of the Court of yui'firs Hciifh. that as u statntt' is nf^ver rotroactive uidcss iiiadf so in express ttTiiis. sec. 1* liad no effect and its repeal could not make it retroactive; that the shifting of the toll jrate was not a violation of the Act. which oidy ajiplied to th<' erection of new- Kates: iind that the extension of tlie limits of the village could not affect the jire-exist- iiiK rights of the compan.v. ViUage of S't. Joiirhim de la Pointc Claire v. ^ The I'ointe Claire Tumiiikf lioad Co., xxiv.. 4SC 1^ — CoNSTBfCTIOX OF — BRITISH XORTH America Act. ss. 112. 114. ll,".. IKi. 118 -.•Jt? A'ic. c. 30 (n.)-47 Vic. c. 4 (D.)— Provincial Subsidies — IIalf-yeari.t I'ay-mexts — Deduction op Interest. By section 111 of the British North Anier- ioa Art. Canada is made liahle for the debt of eacli province existing at the union. By sec. 112. Ontario and Quebec are jointly liable to Canadii for any excess of the debt of the Province f>f Canada at the time of the union over $ti2.r)00,t)(Xt, and chargeable with "1 per cent, interest thereon. Sections 114 and ll.'i make a like provision for the debts of Xova Scotia and New Brunswick ex- ceeding eight and seven millions respectively, and l)y sec. llC. if the debts of those pro- vinces should be less than said amounts they are entitled to receive, by half-yearly pay- ments in .advance, interest at the rate of "> per cent, on the difference. Section 118. after providing for annual payments of fixed sums to the .several provinces for support of their governments, and an additional sum per head of the population, enacts that " such, grants shall be in settlement of all future demands on Canada and shall be r'uid lialf-yearly in advance to each province, but the (iovernnient of Canada shall deduct from such grants, as against any province, all sums chargeable as interest on the public debt of that province in excess of the sev- eral amounts stipulated in this Act." The debt of the Province of Canada at the union exceeded the sum mentioned in s. 112. and on apiieal from the award of arbitrators ap- IMiinted to adjust the accounts between the Dominion and the Provinces of Ontario and Quebec; — field, affirming s*aid award, that the sub- sidy of the Provinces under section 118 was liayable from the 1st of .Inly. \sr,~. i,nt in- terest on the excess of debt shoulil not be deducted until 1st .Fanmiry. INtlS; that un- less expressly provided interest is never to be paid before it accrues due; and that there is no express provision in the British .North America Act that interest shall be deducted in advance on the excess of debt under section 118. By SU Vic. 0. 30 (D.). passed in 187:5, it was declared that the debt of the l*rovinominion iiiid the J'rovinces should be cal- culated as if the last mentioned Acts hail directed that such increas4> should be !illi>wed from the cc)ming into force of the British North America Act, and it also provided that the total amount of the half-yearly pay- ments which would have been made on account of such increase from .Tuly 1st, 18)(7, to .l.-inuary 1st. bS73. with interest at ."> per cent, from the da.v on which it would have been so paid to .Tuly 1st. 1SS4. sliould be d(^emed c.-ipital owing to the respective pri>- vinces bearing interest at '< per cent, and payable after .Tuly 1st. 1S84. as i)art of their yearly subsidies. Held, itlirming the said award. (Jwynne. .!.. dissenting, that the last mentioned Acts did not authorize the Dominion to deduct interest in advance from the subsidies payable to the provinces half-yearly, but leases such deduc- tion as it was under the British North America Act. Dominion of Canada v. Provinces of Ontario and Queher. xxiv.. 41(8 19.— Construction of— Railway Act, 188S, s. 24G (3)— Railway Co.— Carriage of Goods — Special Contract — Negligence — Limitation of IjIability for. B.\ section 24('. CJi of the Railway Act. 1888 (51 Vic. c. 2!* LD.J). "every person aggrieved by any neglect or refusal in the premises shall have an action therefor against the company, from which action the company shall not be relieved by any notice, condition or declaration, if the daniiige arises from any negligence or omission of the com- pany or its servants." Held, affirming the decision of the Court cf Appeal, that this provision does not disable a railway company from entering into a st)ecial contract for the carriage of goods and limiting its liability as to amount of damages to be recovered for loss or injury to such goods arising from negligence. Togel v. 244 STATUTE (h-nnd Tnink Hailiray Co. ill Can. S. C. R. G12), and Bate v. Canadian I'aviflc liaiUca]/ Co. (15 Ont. App. R. 38S» (listiiifruislied. Roherison v. The Graml Trunk Ry. Co., xxiv., Cll 20. — CONSTRI'CTIOX OF STATUTE — SPECIAL Act— Repeal of by (iEXERAL Act— Re- ; PEAL BY Implication. A jiciuTiil later statute (and a fortiori a , Statute passed at the same time) does not ! alir(ii*ite an earlier special Act by mere im- I plication. , The law does not allow an interpretation that would have the effect of revoking or altering; a special enactment liy the construc- tion of jteneral words, where the terms of ' the sjK'cial enactment may have their proper operation without such interpretation. City of Taiwouver v. Bailey . . . . xxv.. 62 21.— Bt-la\>-— Petition- to Quash— Appeal — 1(» Vic. (Que.) c. 2!>— .":} Vic. (Que.I c. 70- -Judgment Quashing — Appeal to Sur'REME Court from— R. S. C. c. 135, s. 24 {ij). Section 4'-5!) i.f the Town (,'orporations Act (40 Vic. I Que. I c. 2;tl. not having heeu ex- cluded from the charter of the City of Ste. CunSgonde (53 Vic. c. 70) is to he read as \ a part of it and prohibits an apiical to the : Court of Queen's Bench from a judgment of the Superior Court on a petition to (luash a by-law presented tindi-r sectiwi 310 of said | charter. | Where the Coutt: of Quee Ts Bench has quashe. s. 2 (0.». that expression is extended to simple contract creditors of the mortgagor or bargainor suing on behalf of themselves and other creditors, and to any assignee for the general V)enetit of creditors within the meaning of the Act respecting assignments and iireferences " (R. S. O. ilSS7t c. 124). By section 4 of 55 Vic. c. 2t;. a mortgage so void shall not, by snbseqtient possession by the mortgagee of the things mortgaged, be maet'ore such f iking of possession." Held, reversing the dei ision of the Court of Appeal, that under this legislation a mortgage so void is void as againr-t all creditors, those becoming such after the mortgagee has taken iiossession as well as before, and not merely as against those having executions in the Sheriff's hands at the time possession is taken simple contract creditors Avho have connne'iced pn»ee>liugs to set it aside and an assignee appointed be- fore the mortgage was give.): that the wordi; " suing on behalf of themselves and other creditors." in the amending Act. only indicate the nature of proceedings necessary to set the mortgage aside. ;ind 'hat the same will enure to the benefit of tie general body of creditors; and that such mortgage will not be made valid by subse<.uent taking of p<:)S- session. C1ark.fon it al. v. McM ister . . . . xxv., !,)i> 23. — Construction of Statute— By-law- Exclusive Right C ranted by — Statute Confirming — Extension of I'RiviLEG.'i— 45 Vic. c. 7l>. s. 5 (Que.)— C. S. C. c. Ci'i. In ISSl a municipal by-law of St. Hya- cinthe granted to a compiny incoiiiorated under a general Act (C. S. C. c. t;5), the exclusive privilege for twenty-five years of inannfacturing and selling gas in said city, ami iu 1S,S2 said company obtained a speci \\ Act of incoriioratiim (45 Vic. c. 7'.). Que". s. 5 of which provided that all the powers and privileges conferred upon the said com- pany, as organized under the said general Act, either by the terms of the Act itself or bv resolution, by-liw or agreement of tb. said City of St. Hyacintlie. hereb'y le- afflrmed and confirmed to the comjiany a ^ incorporated under the present Act. includ- ing their right to break up, etc., the stretts * * * and in addition it shall be lawful for the company, in substitution for gas or in connection therewith, or in addition theri'- to, to manufacture, use and sell electrii', galvanic or other artificial light, and to manufacture, store and sell heat and motive power ilerived either from gas m- otlierwise * * * with the san)e privileges, and sub- ject to the same liabilities, as are applicable to the manufacture, use and disitosal of il- luminating gas under the provisions of this Act." , ,, . ;/(,';ht with the sniiie privi- lege as was :ippli<'alile to gas did not con- fer sucii nionoi)oly. Imt gave a new privilege as to electricity entirely unconnected with the fonner purposes of the conip;iny and that the word '" privilege " there used could he referred to the right to break up streets and should not, therefore, be construeil_ to mean the exclusive privilege clainieil. Iltltt. also, that rt w;is a private Act not- withstanding it contained a clause declar- ing it to be a public Act. and the city was not a party nor in any way assented to it: and that in c()nslniing it the court would truat it as a contract between the promoters and the legisl.-iture and ajiply the maxim verha furtius a('cii)uiiilur contra jiroff rent tin especially where exorbitant powers are con- tc^rred. i,a Cfjmpagnio pour I'Eclniragc an gaz dc St. IIijt'cinth'3 V. La Compnffmc dcs pouroirs HydrauUqucs dc ."^7. TltKUiiithe . . xxv., K'S 24.— Registry Act, 11. S. O. c. 114— Muni- cipal By-law, Registration of — XOTICE. R. S. O. (l^(7Ti c. 114. s. 83. providing Ihat no lien, charge or interest affecting land shall be valid as against a registereii instru- ment executed by the same part.v. his heirs or assigns, is not restri<-ted to interests de- rived under written instrunients susccptil.le of registration. Imt applies to all interests. City of Toronto v. Jarria . . . . xxv.. 237 25.— PrBLic Highway— 40 Vie. (O.) c. IS— Registered Plax — Dedicatiox— User- Construction OF Statute— Retrospec- tive Statute — Estoppel. The right vested in a municipal corpora- tion by 4 20. — Mortgage — Mining Machinery — Registration — Fixture.s — I.nterpreta- tion op Terms — Bill of Sale— I'er- sonal Chattels— R. S. X. S. (."> ser.) o. 02. ss. 1. 4 AND 10 (Bills of Sale)— .jo Vic. (X. S.) c. 1. s. 143 se covered by a murtgage made liy the owner of the fee. Wai'ner v. Don ct al xxvi.. 388 27. — Constitutional Law — Marital Rights — Married Woman— Separate Estate -.Jurisdiction of Xorth-west Terri- torial Legislature — Stati-te — Inter- pretation of — 40 Vic. c. 7, s. -3. and Amendments?— R. S. C. c. 40— X. W. Ter. Ord. Xo. ir, OF 1S8». The provisions of Ordinance Xo. 10 of 18S!). respt>ctiiig the personal property of married women, are intra rirc.i of the Legis- lature of the Xorth-Wost Territories of Canada, as being legislation within the de- finition of property and civil rights, a sub- ject ujion which the Lieutenant-* iovernor in Council was authorized to legislate by the ord(>r of th»> (Jovernor-Oeneral in Council jiossed miller th(> provisions of " The Xorth- West Territories Act." The pi'ovisions of said Ordinance Xo. 10 are not inconsistent with sections .']<■> to 40. inclusively of " The Xorth-West Territories .Vet." which exempt from liability for her husband's debts the jiersoual earnings and business prolits of a married woman. The words " her persoiiil property." used in. the said Ordinance Xo. 10 are unconfinod by any context, and must be interiireted not as having reference only to " the ixmsoumI earnings " mentioned in s. .30. but to all the l^ersonal proi>erty belonging to a woman, married subsequentl.v to the Ordinance^, as* well as to all the personal i>ro)>erty ac it was enacted. Ttriltiflxinh v. O-ray-Jonrn (." Man. I-. R. 33i. distinirui>>erate only as iwlice 246 STATUTE. regulations .iiid the statutable duties thereby iuipcised (li> not affect the civil resixmsiliility of ciniiloyers towards their employees as Iirnvided by the Civil (.'ode. 'Ihe Moiitnal Rolling Mills Compainj v. Coy- coran xxvi., 595 20. — Appeal frcm Court of Keview — Appeal to Privy Council — Appeal- able Amount— 54 & 55 Vic. c. 25 (D.), s. 3. s.s. :} AND 4— C. S. L. C. c. 77. s. -J.'t— Arts. 111.5. 1178 C. C. T.— R. S. Q. Art. 2311. In aiiii':':ils to I he Supreme Court of Can- ada frmii the Court of Keview (which, by 54 li: 55 Vic. c. 25, s. 3. s.-s. 3, must be ap:>ealable t'l the Judicial Committee of the I'rivy Council I. the amount by which the right of appeal is to be determined is that demanded, and not that recovered, if they are different. Dufrcsnc v. Gucvranont (2(5 Can. S. C. R. 21(jt, followed. Citi.-cna Light and Poiccr Co. v. Parent, xxvii., 310 30. — MlNE.S AND illNERALS — LeaSE OF Mining Areas— Rental Agreement — Payment of Rent — Forfeitures— R. S. N. S. (5 ser.) c. 7—52 Vic. c. 23 (X. S.i. By R. S. X. S. (5 ser.) c. 7, the lessee of mining areas in Xova Scotia was obliged tn Iierforni a certain amount of work thereou each year on pain of forfeiture of his lease, which, however, could only be effectecl through certain formalities. By an amend- ment in 1SS1» 1 52 Vie. c. 23 >. the lessee is permitted to pay in advance an annual rental in lieu of work, and by sub-sec. (c) the owner of any leased area may, by dupli- cate agreement in writing with the Commis- sioner of Mines, avail himself of the pro- visions of such annual j)ayment and " such advance payments shall be construed to com- mence from the nearest recurring anniver- sary of the date of the lease."' By s. 7 til leases are to contain the provisions of the Act, respecting payment of rental and its refund in certain cases, and by s. 8 said s. 7 was to come into force in two months after the passing of the Act. Before the Act of 1S,S!> was passed a lease was issued to E. dated .lune Idth, bSS!». for twenty-one years from May 21st. lS>i!». On .Tune 1st. IS'.ll. a rental agreement under tlie amending Act was executed, under which E. paid the rent for his mining an-as for three years, the hist payment Inking in May. 1803. On May 22nd. 1S04. the commissioner declared the le.iso forfeited for non-payment of rent for the fol- lowing year and issued a prosi)ecting license to T. for the same areas. E. tendered the year's rent on June 0th. 1S!M. and an actii ii was afterwards taken by the Attorney-tTcn- ernl. on relation of E.. to set aside said license as having been illegall.v and improvi- dently granted. Held, atlirming the judgment of the Su- preme f^onrt .)f Xova Scotia in such action, that the phrase " no'arest recurring anniver- sary of the date of the h-ase " in sub-sec. lel of s. 1, Act of ISSO, is eiiuivalent to next or next ensuing .'luniversary." and the lease being dated on June It'.th no rent for 1804 was due on May 22nd of that year, at which date the lease was declared for- feited, and E.'s tender on June 0th was in time. Attorney-General v. I'^heratoii |2S X. S. Rep. 4021. aiiproved and followed. Held, further, that though the amending Act pntvided for forfeiture without prior formalities of tin- lease in case of non-pay- ment of rent, such provision did not apjily to leases existing when the Act was passed in cases where the holders executed the agreement to pay rent thereunder in lieu of work. The forfeiture of E.'s lease was., therefore, void for want of the formalities prescribed by the original Act. Temple v. The Attorney-General of So'ii -Scotia xxvii., 355. 31. — Revenue — Customs Duties — Import- ed Goods — Importation into Canada — Tariff Act — Construction — Retro- .spective Legislation— R. S. C. c. .3'2— 57 & 58 Vic. c. 33 (D.)— 58 & 50 Vic. c. 23 (D.). By 57 tfc 58 Vic. c. 33. s. 4, duties are to be levied upon certain specitied goods " when such goods are imported into Canada."' Held, reversing the judgment of the Ex- cheijuer Court. King and ti ouard. J.I,, dis- senting, that the importation as defined by s, 150 of the Customs Act (R. S. C. c. 32) is not complete uinil the vessel containing tlio goods arrives at tlie port at which they are to be landed.— Section 4 of the Tariff Act, 1805 (.58 & .50 Vic. c. 2.".l. provided that ■■ this Act shall l)e held to have come into force oil the 'Jrd of May in the present year 1805."' It was not assented to until July. Held, that the goods imported into Canada oil May 4th. 1805, were subject to dut.y under said Act. The Queen v. The Canada i^iujar If' fining Co., xxvii., 305 [On appeal to the Privy Coiuicil this deci- sion was affirmed. See dSOSt .\. ('. 7.">5.] STATUTE. 247 32. — Master and Servant — Hiring of I'ersonal Services — MrNiciP.A.L Cor- poration — Appointment of Officers — Su.MMARY Dismissal — Libellous Keso- lution — Difference in Text of Eng- lish AND French Versions of Statute —."2 Vic. c. Tl>, s. 7!> is of Xov.-i Scotia, IS.'d. (1 ser.) c. 112, provided as follows: "All estates tail are abolished', and every estate which would hitherto hiive been adjudged a fee tail shall hereafter be adjudged a fee simple: and. if no valid remaiiuli'r be limited thereon, shall be a fee simple absolute, and may be conveyed or devised by the tenant in | tail, or otherwise shall descend to his heirs ■ as fee simple." In the revision of 1S.")8 (R. | S. X. S. 2 ser. c. 112) the terms are identical. In lSti4 (R, S. X. S. 3 ser. c. llli the provi- sion was changed to the following: " All estates tail on whicii no valid remainder is limited are abolished, and every such estate shall hereafter be adjudgeil to lie a fee simple absolute, and may be conveyed or devised by the tenant in tail, or otherwise shall ilescend to his heirs as a fee simple." This latter ' statute was repealed in 1805 (28 Vic. c. 2) I when it was provided as follows: " -\11 estat(>s t:iil are ibolished, and every estate which hitherto would have been jidjudged a fee tail shall hereafter be adjudged a fee simple and may be conveyed or (h'vlsed or descend' as such," Z.. who died in ISoit, by his will, made in \S7u. devised lands in Nova Scotia to his son, and in default of lawful heirs, with a devise over to other relatives, in the course of descent from the first donee. On the (h'ath of Z., the son took possession of the property as devisee under the will, and held it until ISOl. when he sold the lands in (luestion in this suit to the appellant. llrfd. per Tasdu'reau. Sedgwick and King. .T.T.. that notwithstanding the reference to " valid remainder " in the statute of 1851 all estates tail where thereby abolished, and further, that subsequent to that statute there could be no valid remainder expectant on an estate tail, as there could not be a valid estate tail to support such remainder. Held, further, per Taschereau, Sedgewick ar.d King. .T.T., that in the devise over to persons in the course of descent from the first devisee, in default of lawful issue, the words " lawful heirs." in the limitation over, are to be read as if they we.e " heirs of his Imdy ": and' that the estate of the first de- visee was thus restricted to an estate tail and was consequently, by the o]teration of the statute of 1S.51, convertiMl into an estate in fee simi)le and could lawfully be conveyed by the first devisee. llchl. per (t Wynne and (lirouard, .T.T.. that estates tail having a remainder limitxjd theretin W(>re not abolished by the statutes of 1S.51 or 1S(>4. but continued to exist until all estates tail were abolished by the statutes of 1805: that the first devisee, in the case in question, took an estate tail in the lands devisod and having held them as devisee in tail up to the time of the passing of the Act of 1805, the estate in his po-;sessiiui was then, by the operation of that statute, convertcl into an estate in fee simple which could be lawfully conveyed by him. Enn^t V. Zirickrr xxvii.. .594 34. — Appeal—.Turisdiction— 52 Vic. c. 37, s. 2 (D.) — Appointment of Prf.sipixg Officers — County Court Judges — 5,5 Vic. c. 4S (Ont.i— .5S Vic. c. 47 iOnt.1— Appeal from Assessment — Final .Judgment. liy ,52 Vic. c, 37, s. 2, imendiuLT " Tiie Supreme and Exchequer Courts Act," an appeal lies in certain cases to the Supreme Court of Canada from courts "of last resnrt created under iiroviui-ial legislation to 240 STATUTE. adjiulicate coiifcniiiif: the assessment of pro- porty f(ir provincial nr nmnicipal purposes, in cases wliere tlie person or persons presiding fiver sucli eunrt is or are appointed h.v pro- viiiciiil or inunieipal authority." By the (Jnt:irio Aet. .">."> Wr. c. 4S. as amended liy ."•s Wf, <■. 47. an appeal lies from ridings of imuiiripiil eonrts of revision in matters of assessment to file County Court Juilf^es of llie connty court ilistriet where the property has lieen assessed. On an appeal from the decision <)f the County Court .Tudires under the Ontario statutes: Ifchl. Kinjr. .T.. dissentintr. that if the Connty Court .Fuili-'es constituted a "court of last resort '" witliin the meaniiii: of ."2 Vic. e. 31. s. 2. the persons presidinj: over such court were not api>ointed liy provincial or miinicii(;il authority, and the appeil was not authorized by the said Act. Jfcld. per Owynne. J., that as no binding effect is given to the decision of the Connty Court .fudges, nniler the Ontario Acts cited, the court appealed from was not a " court of last resort " within tlie meaning of ."2 Vic. e. ;J7. s. 2. OHfDT.— Is the decision of the Connty Court .Tuilges a •■ final judgment " within the mean- ing ot ••- Vic. c. Thf Vity of Toronto v. Thv Toronto RuiUrai/ Co sxvii., " 30.— Railways— 51 Vic. c. 29, s. 202 (D.l- IJailway" Crossings— Packing Railway Frogs. Wing-rails, Etc.— N'egligenck. The proviso of the fourth srb-section of section 2ti2 of "The Railway Act" t.">l Vic. c. 2J> (D.I. I does not apply to the tillings referred to in the third suii-section and con- fers no i)ower upon the Railway Committee of the I'rivy Council to eal for Ontario (24 Ont. App. R. lS.3i reversed. ^y(lflhinilton v. Ch-und Trunk I'l/. Co.. xxviii.. 1S4 (Memo. — On appeal to the Privy Council this decision was atlirmed. 24th rebru;iry. is!>;/.i 37.— Winding-up Act— Moneys Paid Out of Court — Order Made by- Inadvertence — .TURISDICTION TO CoMPEL RePAY'MENT — R. S. C. c. 120, ss. 40, 41, !>4— Lo<:us Standi of Receiver-(5eneral— ."5 & ."»> Vic. c. 2S, s. 2 — Statute, (Construction OF. The lio.nidators of an insolvent bank passed their final accounts and paid a balance, remaining in thi-ir hands, into court. It appeared that b.v orders issued either through error or by iiiadv(>rtence the balance so de- posited had been i)aid out to a per.ion who was not entitled' to receive the nione.v, and the Receiver-(4eneral for Canada, as trustee of the residue, intervetied and ajiplied for an order to have the mone.v repaid in order to be date of the deposit j mentioned in the Winding-up Act had not : exi)ire,i. Hthl. also, that even if he was not so en- titled to intervene the iirovincial courts had jr.risdiction to compei repayment into court jf the moneys improperly paid out. Hognhonm v. Thr Jirrcirpr-Gnwrnl of CnnniUi. In re Thr Cintrul Hunk of Cnnadn. xxviii.. 1!»2 3S.— Civil Service — Superannuation — R. S. C. c. IS — Abolition of Office — Discre- tionary Power— .TuRiSDicTioN. Employee; in the Civil S<»rvice of Ci.nada. who may oe retired or removed from otfice under the provisions of the eleventh section of " The Civil Service Stiperannuation Act " STATUTE. 249 s(>luto rijjht to jiny suiiiTiinniiiirion allowain-c muier vhat softiou. such alluwamo licing by the terms of the Aft eutirt'ly in the Uiseretiun of t e exeiutive autliority. Baldersmi v. The Qiiefii . . . . xxviii., 2'>1 .3t>.— COXSTRUCTION OF CONTRACT— 12 ViC. C. INj. s. lilt— Contract. Notice to Cancel — (iAS Supply Shut off for Non- payment of Gas Bill on other Premises — Mandamus. The vet to auieiid the Aet incorporating the New City Gas Company of Montreal, anil to extend its powers (12 Vie. c. 1S2), jiroviiles: " That if any person or person.s. r body corporate supplied with gas by the company, shall nejrleet to pay an.v rate, rent or oharj:e due to the said New City Gas Company, at any of the times fixed for the payment thereof, it shall lie lawful for the company or any person actiii;: umler their authorit.v, on giv- ing twenty-four hours previous notice, to stop the jras from enterini: the premises, service pi])es. or lamps of any such person, eompan.v or bod.v. l)y cutting; off the ser- vice pipe or pipes, or by such other means .as the company shall see fit. and to recover the .aid rent or eharj.'e due up to such time, toiiether with the expenses of cuttiuf; oft' the jras. in any competent court, notwitlistand- inj: any contract to furnish for a lonjier time, and in all (>ases where it shall be lawful for the said company to cut off tiL'd take away the supi)ly of }:as from any house, buildinji or premises, under the provisions of this Act. it shall be lawful for the com- pany, their airents and workmen, upon K'vinjr tv,-ent.v-four hours iirevious notice to the occupier or person in cliary;e. to enter into any such house, liuilding or premises, be- tween the hours of nine o'clock in the fore- iMon and four in the afternoe construed strictly; that the couijiany has not been thereliy vested with power to shut off gas from all tlie buildings and iireniises of the same pro- prietor or occupant, when he liecomes in default for the payment of bills for gas con- sumed in one of them only: and that the provision that the notiH'2 (Leave has been granted to appeal from this judgment lo the I'rivy Council. Se' il.v.tSi A. C. Tl.s.) 4<».— ruGLic Works— Railways and Canals — li. S. C. c. 37. s. 23 — Contracts Binp- iNG ON THE Crown — (Joods S 41.— Married AVoman- Separ.\te Property — Conveyance — Contracts— C. S. N. B. c. 72. Section 1 of C. S. N. B. c. 72, which r>ro- vides that the i)roperty of a married woman shall vest in her as her separate property, free from the control of her husband and not liable for payment of his debts. di>es not. except in the case specially provided for, enlarge her jiower for disposing of such property or allow her to enter into contracts which at ciiuimon law would lie void. Moore V. ./(iclnoii (22 <'an. S. C. It. 21iH. referred to. I.(a V. Wallace d al. {33 N. B. llep. 4'.t2>. re- versed. W'tlhiee et al. v. i-frt xxviii., .V.i." 42. — Mi'Nii^iPAL Corporation— o." Vic. c. 42. ss. 3!I7. 404. 407. 473 (Ont.i — City Separated from County — ^I.\inten- ance of Court House and Gaol— Care and Maintenance of Prisoners. No compensation can be awanled liy arbi- trators to a county council in respect of the 2 50 STATUTE. use. liy a city sciiaratcd fniiu that county, of tile court !ion»o ami ;i!iol unless tlu' tiucs- tion is siK'citically referred to tlieni by a by-law of each niuniciiiality. A claim for conipentiation for the care and maintenance of prisoners stands, as far as the nieaniii}; to hp driven to the word "city" is concerneil. upon the same basis as a claim for the use of the court liouse and ;:aol. .Tuil).'nient of the Court of Appeal l(jr On- tario (1.'4 Out. Anp. K. 40;)i. affirmed. Coinitu of Varlcton v. City of Ottaiai, 18th March. INKS xxviii., (106 4.3.— Patent of Ixvextion— Canadian 1'a- TENT— KXPIRATIOX OF FoREIGN I'aTEN T — U. S. C. c. CI. s. N— .-.". iV .-,(•, Vic. r. 24. s. 1. The E.\clit^(iuer Court of Canada (li Ex. C. R. .">(. declared a certain patent to bo a Koml. valid and subsisting,' patent, and that it had been infrin^'ed by the defendants, and held that, the exiiression " any foreign patt'iit " occurring: in the conclndinj: clause of the eighth section of " The I'atent Act," must be limited to foreign i)ateuts in exis- tence when the (,'anadiaii pitent was granted. On Appeal, the Supreme Court of Can- ada artiniu'd -he judgment of the Exche 44. — .Joint Stock Company — Irregular Organization — Subscription for Shares — "\Vithpr.\wal — Surrender — Forfeiti're — Duty of E>irectors — Powers — Cancellation of Stock — Ultra Vires — " The Companies Act " — " The Winding-up Act " — Contribt;- tories— Pleading. After the issue of an order for the wind- ing-up of a joint stock company, inc-orporated tinder •• The Companies Act," (U. S. C. o. ll!>l. a shareholder cannot avoid his lia- bility as I contributory liy setting up de- fects or illegalities in the organization of the comiiany, as. under the provisions of the Act, such grounds may be taken only upon direct proceedings at the instance of the Attorney-* Jeneral. The powers given directors of a joint stork company under "The (,'oinpanies Tct " (K. S. C. c. ll'.H. as to forfeiture of shares for non-iiayment of calls, are inti-nded to be ex- ercised only when the circumstances of the sharehtdders render it expedient in the in- terests fif the <'oni-iany. and they cannot be emiiloyed for the lieiietit of the shareholder. Common v. McArthur. 14th December. IS'.tS. xxix., •j:5!> 45. — Construction of — Controverted Elections Act— R. S. C. c. 9, s. 3iV- .TuDiciAL Discretion. .S'fc Election Law, 2. 40. — XovA Scotia Railway Act — Tax ox Railway — Exemption — Mining Co.— Construction of Railway by — R. S. X. S. 5 SER. c. .jS. See Railways, 2. 47. — 54 & .JO Vic. c. 25. s. .3 — Application of — Appeal to Supreme Court — Amount in Controversy. Sec Aiipeal, 10. 48. — Railway Belt in British Columbia — Statutory Conveyance to Dominion — I're-emptiox Prior to — Federal and Provincial Rights — I..ands Act of 187.3 .\ND 1879 (B. C.f— 47 Vic. c. (D.). .•"•'re Constitutional L.iw, 1. 49.- R. S. X. S. .-. SER. c. 92, Mortgage — Affidavit avith St.^tutory Form. •s'fc Chattel Mortj^age, 1. s. 4 — Chattel — Compliance 50. — AFanitoba Constitutional Act — Matters Relating to Education^ I'OWERS (>F PrO\INCIAL LEGISLATURES — Repeal— Right of Appeal to (Jover- nor-General in Council— .j.3 Vic. c. 3, s. 22, s.s. 2 iD.i— B. X. A. Act, s. 9:?, s.s. 3. Kie Constitutional Law, 3. 51 . — Construction of — Foreshore — Pro- perty IN — Right of C. P. R. Co. to Use— .Tus Publicum— Access to Har- bour. Sfr Foreshore. STATUTE. -It. S. N. S. r» sEK. c. !»li— Kills uf Sale —Statutory Form— Complianch with. ( Cliattel MoitfeMso, 2. .j:',.— .'o Vic. c. 50. s. IS (O.)- (t>.i — Constitutionality Local LEGiiSLATUKE. .s'(c C4 Yic. c. 40 - Powers of .".4.— IJ. S. X. S. .") sER. c. ,S4— Registry— Ln'i orsement on Lease — Lease for Lives— I'rotection. .^■(c Lease, 1. ."..—Customs Duties— •">() & ."1 Vic. c. 39. Items 88 and 173— E.xemption from I»UTY— Steel Kails for Use on Iiail- ways— Application to Street Rail- ways. NiC Customs Duties, 1. ."iC,.— '• Bills of Exchange Act, ISOO "— ••The Bank Act.- R. S. C. c. 120- CONSTITUTIONAL LaW — OBLIGATIONS Binding on 1'rovincial I.,egislatures— < ;oVERNMENT ExPr.NI>ITURES — XEGOTI- .■.BLE Instrument — '' Letter of Credit" — I'owers of Executive Councillors. .Vw: Ctmstitutional I>aw, 11. i;l.— Repair of Streets — Pavements — Assessment of Owners — Double Taxation— •J4 Vic. c. :j!» (N. S.i— .j3 Vic. c. t». s. 14 iN. S.t. See Municipal Corporation. -7. (•,2.— Snow and Ice on Sidewalks— By-uaw —."5 Vic. c. 42. s. .">31 (Ont.i- .")7 Vic. c. 50, s. 13 (Ont.». >S'cc Nef:lii.'t'n<-o, 25. g3, _ Convention of 1818 — Fisheries — Three Mile Limit— Foreign Fishing Vessels— ■• Fishing "- .">'J < Jeo. III., c. 38 I Imp. I— R. S. C. c <>4 & c. 95. .S'te Fisheries, 3. G4. — Appeal— .TuRiSDicTioN— ."4 iS: 55 Tic. c. 25. s. 2— Expropriation— Death of Arbitrator- 51 Vic. c. •J!>. ss. l."8,— Canadian Waters— Property in Beds — I'uBLic Hai.bours — Erectio.ns in Navigable AVaters — Interference with Navigation- Right of Fishing — Power to Grant — Riparian I'roprie- TORs— Great Lakes and Navigable Rivers— Operation of Magna Charta —Provincial Legislation— R. S. O. (1887) c. 24. s. 47—55 Vic. lO.i c. 10. ss. 5 TO 1.3. 19 AND 21— R. S. Q. Arts. 1375 TO 1378. .S'fc Fisheries, 2. 59.— Landlord and Tenant— R. S. O. (ISSTi c. 143. s. 28 — Distress — Goods of Per- son Holding " I'nder '' Tenant. .S(r Landlciril aiul Teiianr. 1. 00. — Appeal — Time I^imit — Commence- ment OF, Prono'-ncing OR Entry of .Tudgment — Security — Extension of Time— Vac.\tion— It. S. C. c. 1.35. ss. 40, 42. 40. '•"■'(f An«'al. 40. .50. »S'ce Appeal, 74, 00.— 00 & 01 Vic. c. 34, s. 1 ( D. )— Appeals from Ontario to Supreme Court of Canada— Matters in Controversy — Interest of Second [Mortgagee- Sur- plus ON Mortgage Sale. 'S'fc Appeal, 77. 07. — Insurance. I.,ife — Conditions and Warranties — Indorsements on Policy- Inaccurate St.\tements — Misrepre- SE.NTATIf>NS — LaTENT DiSEASE — MA- TERIAL Facts— Cancell.\tion of Policy — Rettrn of Premium— Construction OF Statute— 55 Vic. c. .39, s. 33 (Ont.). .':aid finii until paid, and the as- signtH' is ])erniitted to continue in tlie same j possession and control of liusiuess as he pre- viously liad, tlioujih no one of these provi- sions taken l).v itself would have such ^-ffect. A jirovisiiin that "assignee shall only l)e liahle for such moneys as shall come into his hands as such as>:ignpe. unless there he gross negligence or fraud on his part " will also void the assignment nnder the statute of Elizalieth. Atithority to tiie assignee not onl.v ti> pre- fer parties to accommodation i>aper. Iiut also to pay all " costs, charges anil exjieuscs to arise in consequence " of stich paper, j'? i badge of fraud. Kirk V. Chisholm xxv; , 111 ■2. — hin-dering or delaying * reditors — Husband and AVipe — Purchase of Land bv Wife — Ke-sale — (Jarnish- MENT OF Purchase Money for Hus- band's Debt. .S«' Practice, lit. 3. — Assignment for the Benefit of Creditors — Preferred Creditors- Money T'AID under VOIDA3LE ASSIGN- MENT — Ijability of Assignee — Hinder- ing AND Delaying Creditors. Sic Assignment. 3. 4. — Insolvency— Pressure — Assignment of Expected Profits — I-'raudulent Preferences — Assets Exigible in Execution. See Fraudulent Preferences, 3. o. — Assignment for Benefit of Creditors —Affidavit of Bona Fides— Prefer- ences — Conditions of Deed. Sec Fraudulent Convevances. €. — AssiG.NMEN-r for Benefit of Creditors ■ — Preferred Creditors — Money Paid under Voidable Assignment — Levy- AND Sale under Execution. Sre Debtor and Creditor. 13. STATUTE OF FRAUDS. 1.— Memorandum in Writi.ng— Uepudiatino, CONTR.VCT BY--:29 Car. IL, c. 3 . A writing containing a statement of all I the terms of u contract for the sale of goods i re(iuisite to constitute a memo, under the I 17th section of the Statute of Fr.-inds, may ! he used for that purpose though it repudiates I the sale. Martin y. Ilauhucr et al xxvi.. 142 2. — Sale of Lvterest in Land— Agree- ment TO Transfer Proceeds of Sale of Mine. jy 2.— Title to Land— Actual Possession- Defective DOCVMENTARY TiTLE. ft'ce Title to Land, '). 4._Trustees under Will — Disclaimer— I'OSRESSION OF LaND. Hic Will, 4. STATUTE or MAINTENANCE. Title to Land— Crown Grant— Disseisin OF Grantee — Tortious I'ossession— Conveyance to Married Woman- Effect of Execution of. by Husband —Statute of Maintenance. :V_* Hen. Vin., c. i) — Statute of Limitations. Ill 18'JS ccrtiiin laud in I'ltpor Ciinada was jri-anted by the Crown to King's College. In 1S41. while one M. who had entered on the land was in possession. King's College conveyed it to G. In 1S4U G. conveyed to the wife of M.. and M. signed the convey- ance though not a party to it. In_ an action by the successors in title of M.'s wife to recover possession of the land the defen- dants, claiming title through M.. set up the statute of limitations, alleging that M. had hoen in possession twenty years when the land was conveyed to his wife, and that the conveyance to G.. in 1S41. the grantor not being in iiossession. was void under the sta- tute of maintenance, and G. had. therefore, nothing to convey in 1S49. Held, that it was not proved that the pos- session of M. began before the grant from the Crown, but assuming that it did M. could not avail himself of the estate of uiaintcn- ance as he would have to establish disseisin of the grantor, and the Crown could not be disseised: nor would ♦^*.e statute avail as jigainst the nat(>nlee as the original entry nor being tortious the possession would not become adverse without a new entry. Hdd. further, that if the possession liegan after the grant, the deed to (J. in 1S41 was not absolutely void under the statute of maintenance, but only void as against the party in possession, and M. being in posses- sion a conveyance to him would have been good under s. 4 of the statute, and the deed to his wife, a person appointed by him, was equally good. Further. M. by his assent to the convey- ance to his wife and' subsequent acts was estopped from denying the title of his wife's grantor. irc66 V. Marsh xxii., 437 STATUTE OF MORTMAIN. Will — Kkvocation — Revival — Codicil — Intention to Revive — Reference to- i>ate— re.moval op executor — statute OF MoRT-MAiN — Will Executed i'nder Mistake— Ontario Wills Act, R. S. O. (1887» c. 10»— !» Geo. II., c. 3(! (Imp.). //(/(/. iior < J Wynne .ind Sedgewick, .1.1., that the Imiierial Statute, It Geo. 2, c. 3«! (thfr Mortmain Actt. is in force in the Province of Ontario, the courts of that i»rovince hav- ing so held *t>oc d. Andergon v. Todxl, (2 U. ('. Q. B. 82); Corporation of Whitby v. Liscombc (23 Gr. li. and the legislature having re- cognized it as in force by excluding its- operation from acts authorizing corporations to hold lauds. MncdointtU v. Piirccll. Ckanj V. I'urccll xxiii., 101 STOCK. 1.— In Company— Payment on— Appropria- tion OF Payment by- Directors— Por- tion Treated as Paid up— Formal. Resolution. See Compan.v, 1. 2.— In Company- Consideration— Transfer OF Property' — Sale by Promoter to Company-— Secret Profit — Winding-up- — Contributory. Sec Company. 2. 3.— Discount Shares— Calls for Balances — Powers — L'ltr.\ Vires — Fraud — Breach of Trust —Directors— Trus- tees — CONTRIBUTORIES. Sec ('ompany. 7. 4.— Subscription for Shares— Forfeiture — Cancellation — Directors — Ultra Vires— Powers. See Company, 8. STREET RAILWAY. 1. — Street Railway- Co. — Agreement with Municipality — Ex Majori Cauttela. See Contract. 0. 2. — Defective Appliances — Absence of' Buffers on Tram Cars. .Sfcc Negligence, 18. 5. — Accident to Workman on the Line of- Railway— Contributory- Neoligence — Looking out for the Cars— New Trial. — Consent Order. See Negligence, 19. 254 SUBSTITUTION. 4.— Customs Duties — Exemptions from Duty- Steel Kails for Use on Rail- ways. Str C'lisliiins T)iififs. 1. SUBSTITUTION. Will— ( 'o.vsthuction of— Donation— Parti- TIO.N". I'EU STIKP^:^^ OH FEIl ( "aPITA— UsuFHUCT — Alimentary Allowance — Ac-fUETioN Between Leg.\tees. Tlio liitc Josciih IJoehoii made his will in 1S52 by which ho ih'viscd to his two sisters the usufruct of all his estate aiul the pro- perty therein to their children, naming Pierre Dupras. his uncle, as his testamen- tary exe.-utor, and directin;; that his estate should he realized and the pri'<-ee; to these directions the words " entin placer la masse liquide de ma succession A interet ou autrenient. de la maniSre (lu'il croira le plus avantapeux. pour en fournir les revenus ;1 mes (lites sieiirs et oonserver le fonds pour leurs enfants." and providing that these legacies should be considered as an alimen- tary allowance and should be non-transfer- able and exempt from seizure. By a codicil in 1890 he appointed a nephew as his testa- mentary executor in the place of the uncle, who had died, and declared: — " 11 sera de plus I'administrateur de mes dits biens jus- qu'au deces de mes deux soeurs usufruit6res, nommees dans mon dit testament, et jusqu'au partage definitif de mes biens entre mes heritiers propriStiires, et il aura les pou- voirs qu'avait le dit Pierre Dupras dans mon dit testament." neld.Gwynuo. J., dissenting, that the tes- tamentary dispositions thus made did not create a substitution, but constituted merely a devise of the usufruct by the testator to his two sisters and of the estate (subject to the usufruct), to their children, which took effect at the death of the testator. Held, also, that the charge of preserving the estate — " conserver le fijuds "- imposed upon the testamentary executor could not be construed as imposing the same obliga- tion upon the sisters who were excluded from the administration, or as having, by that term, given them the property subject to the charge that they should hand it over to the children at their decease, or as being a modification of the preceding clause of the will by which the property was devised to the children directly, subject to the usu- fruct. IlrUl. further that the property thus de- Tised was subject to partition between the children per capita and not pw stirpeg. noUn v. Duguay xxvii.. 34" I 2.— Title to Lani.— Kntail— Life Estate — Fii'UCiARY' Substitution — Privilehes and Hypothecs— MoRtoAGE by Insti- j TUTE— Preferred Claim — Prior Incim- BRANCER— Vis Major — Itj Vic. c. 2."— I IiEGisTRY Law.s — Practice — Sheriff's Sale — Chose Jugee — Parties— Estop- pel— Sheriff's Deed— Deed Poll— Im- provements on Substituted Property —(Crosses Reparations— Art. "JIT'J <'. C— 2'J Vic c. 20 (Can.). The institute, ijrrvi- de aiibstitutUin. in pos- session of land and curator to the suli- stitution, upon jud?»ial authority, mortgaged the lands under the provisions of the Act for the relief of sufferers by the great Mon- treal fire of 1852 (10 Vic. c. 2.">i. for a loan which was exiu'iided in constructing build- ings upon the property. On default in pay- ment the mortgagee obtained judgment against the institute, and caused the lauds to be sold in execution by the sheriff in a suit to which tlie curator had not been made a party. Itild. that, as the mortgage had been judi- reaa and Kinv. .I.T., dis- senting. ClK'f (lit Xailfhoncftur v. City of Montreal. VMh October, 1808 xxix.. !» 3.— Title to Land — Sheriff — Vacati.ng Salf.— Exposure to Eviction— Actio CoxDicTio IxDEBiTi— Petition — Refund OF r«icE I'aid— Prior Incumbrance— Substitution not yet Open — Dis- charge OF Incumbrances. The procedure liy jietition provided by tlie Code of Civil Procedure of Lower Canada for vacatiiii; sheriffs siles can be invoked only in cases where an action would lie. Tlir Trust and Loan Co. v. Quintal, (2 Dor. Q. B. 100), follow.'d. The actio cmidictio indrbiti for the recovery of the price paid by the purchaser for lands lies only in cases of actual eviction. Mere exposure to eviction is not sutlicient ground for vacating a sheriff's sale. The provisions of article 714 of the Code of Civil Pr.tcedure do not apply to sheriff's sales which have been perfected' by payment of the price of ailjudication and the execu- tion of the deed, nor does that article give a right to have the sale vacated and the amount so paid refunded. A sheritT's sale in execution of a judgment against the owner of lands, grcve de substitu- ti'iii. based upon an obligation in a mortgage having priority over the instrument by which the substitution was created, discharges the lands from the unopened substitution with- out the necessity of making the curator to the substitution a part to the proceedings. Chrf dit Vttdeboncvur v. Citu of Montreal. (20 Can. S. C. Pv. Oi followed. Deschamps v. Bury, 14th December. 1808. xxix., 274 SUCCESSION. 1.— Acceptation of by Minor Subse- quent TO Action— Operation of. The acceptation of a succession sub.se- qtient to action, and pendente lite on behalf of a minor as universal legatee has a retro- active operation. ilartindale v. Powers xsflli.. 597 li.— Sale of Ukjht hv Co-heir— lNSf)LVEycT OF Cu-HKIR— Sale by Curator— Uetrait Successoral— Art. 710 C. C— Pre- scriptiiin. See Iletrait Successoral. ;•..— Te.sta.mentary Executors — Balance I>UE BY Tutor— Practice-Action for Account — Provisional Possession — e.woie en i'ossessiox — parties — Extra-.Iudicial Consent to Por.m of Action. .Siii'al til tlu- Privy Council was (iisiiiisscd for want of proscciitinn. See " (.'anutlian (Ja/.t-ttf." vol. :i4. [lam- U24i. 2.— SrtiKTY — I)is( HAKOK OF — Rkseiivatiox (;F Khjhts Against — I'rumissory Note — Discharge of Maker. Wlicrc tin- holilcr of a in'oniissory note hail a;.'n'<'il lo acicpt a third party jis his ih'litor ill lii'ii of the niakiT. //.'iiu'nt of tho Court of AiiiK'al. that as acconlint: to tin- evidence there was a coiiiplete novation of the maker's deht secured by the iHite and a release of the maker in resitect thereof, the iiulorsers on tile note were also released. HolliiUiu V. ./(ickxijii it- Hnlktt . . xxii., 471) 3. — IXSURA.NCE — (JVARANTEE — NOTICE TO Ix- SLKER OF Defalcation— Diligence. A Kuamntee iioli'-y insuring the honesty of W., an eniidoyee. was frranted upon the express ronditions, (1) that the answers con- taiiUMl in the application contained a true statement of the manner in which the busi- ness was conducted and accounts kept, and that they would he so kept, and (2l that the employers should, ininiediately upon its be- coiuiuf; known to them, jiive notice to the j;uarantors that the employee had become vruilt.v of any criminal offence entailing or likely to entail loss ti» the einiiloyers and for which a claim was liable to be made uniler the policy. There was a defalcation in W.'s accounts, and the evidence showed that no proper suiiervision had been exercised over W."s b(]oks, and the puarantors were not notified until a week after employers had full kiiowled>;e of the defalcation, and W. had left the country. HrUI. attirmiiif; the jud«ment of the court below, thiit IS the employers had not exer- cised the stipulated supervision over W., and had not >;iven immediate notice of the defiilcatiou. they were not entitled to re- cover under the policy. Ilarhiiiir Connninximifru of .)to)itrc:].■> And •"(c Princi;ial and Surety. TAXES. 1.— Street Railway Co.— Repair of Road- way—Local Improvemex""^ — Termina- tion OF Fra.vchise. .S'(i' Assessment, ;{. 2. — Street Railway Co. — Payment for H0R.SE-CARS — MfNICIPAL By^-LAW— TaX ox AVorking Horses. Sic Assessiuent, 4. 3.— Special Tax— Ex Post Facto Legisla- tion—Warranty. — oS Vic. (N. S.^ c. GO, s. 14. See Municipal Corporation. 27. 7. — ^Municipal Corporation — By-law — Assessment — Lotal Improvements — Agreemext with Owners of Property —Construction of Subway — Benefit to Lands. See jlunicipal Corporation, 28. TENANT-TERRITORIAL DIVISIONS. =57 8__Appeal— lyOCAL Improvements— Assrsfi- i 4.—" Dying without Issie "— " Kevekt "— MENT — Expropriation ok Lani ■ — Contingencies — Executory Devise Future Kiqhts. 1 Over. *>'€«• Apiieal, 51. N-2 Vic. c. ! 37 (D.) See Statute. 34. 1 14.—" Extra Salary "— " Additional, Re- muneration "—The Civil Service Act. Sec Statute, 3.'). TERRITORIAL DIVISIONS. Habeas Corpus — .Turippiction— Form of Commitment— .Tudicial Xotice— R. S. C. c. 135, s. 32. See Justice of the Peace, 1. TIME— TITLE TO LAND. TIME. I 1. — Appeal — Time Limit — Commence- ment OF — PROXOrNCING OR EnTRY OF JUDGMENT — SECfBlTT — EXTENSION Op Time — Order of Judge — 11. S. C. c. 135, ss. 40. 412, 4tJ. See Vacation. I 2. —Appeal — Time Limit -- Commence- ment OF — I'ROXOrNCING OR EnTRY OF Judgment — Security — Extension oj' Time— Order of Judge— II. S. C. c. 135, | Pi-'. 41 >. 42. 4t!. .Vff Appoal. 40. ."0. TITLE TO LAND. 1.— MiNiciPAL Corporation — Ownership of Koads and Streets — Rights of Private Property Ov. ners — Owner- ship ad Mediu-m Filum Vi.e— R. S. N. S. 5 ser. c. 45—50 Vic. c. 23 (X. S.I. That the ownership of lands adjoining a highway extends od medium flliim r/ff is a presumption of law only which may lie re- butted but the presumption will arise though the lands arc described in a conveyance as bounded by or on the highway. Gwynne, J., contra. O'Connor v. Sora f>cotia Telephone Co., xxii., 276 2. — Action en Declar.\tion :i'Hypotheque — Translatory Title — Prescription under— Good Faith— Arts. 2251. 2202. 2253 C. C. — Judicial Admission — Art. 1245 C. C— Art. 320 C. C. P. The respondents having lent a snin of money to one Liboiron, stibsequently. on the 9th May, 1870, took a transfer of his pro- perty by a deed en dation de paitment, in which the registered title deed of Liboiron to the samo was referred to and by which it also appeared that the appellants hud a bailleurs de fonds claim on the property in question. Lil)oiron remained in possession and sub-let part of the premises, collected the rents and continued to pay interest to the ipp.'llants for some years on the bailleurs de fonds claim. In 1SS7 the appellants took out an action en declaration d'hypothique for the balance due on their hailleurs de fonds claim. The respond<,>nts pleaded that they had acquired in good faith the property by a tranr-latory title, and had become freed of the hyiothec by ten years possession. Art. 2251 C. C. Held, reversing the judgments of the courts below, that the oral and documentary evi- dence iu the case as to the actual knowledge on the respondents' part of the existence of this registered hypothec or haiUeurs de fonds claim was sutticient to rebut the pre- sumption of good faith when they purchased the property in 1870, and therefore they eonld not invoke the prescription of ten years. Fournier, .!., dissented. In their declaration the appellants alleges] that the respondents had been iu possession of the proi)erty since 0th May, 1870, and after the enquete they moved the court to amend the declaration by substituting for the 9th May. 1870. the words " 1st Dec. 188t5." The motion was refused by the Superior Court, which held that the admission amounted to a judicial avowal from which they could not recede, and the Court of tiueen's Bench affirmed this decision. On appeal to the Supreme Court it was Held, reversing \he judgment of the court below, Fournier. J., dissenting, that the mo- ti<»n should have been :\llowed by the Superior (^ourt so as to make the allegation of possession conform with the facts as dis- closed by the evidence. Article 1245 C. C. Baker v. La Societv de Construction Metro- politai-ne xxii., 3G4 3.— Crown Grant — Disseisin of Grantee— Tortious Possession — Conveyance to Married Woman— Effect of Execu- tion of. by Husband — Statute of Maintenance, 32 Hen. VIII., c. t>— Statute of Limitatio.ns. In 1828 certain land in L'pper Canada was granted by the Crown to King's Col- lege. In 1841. while one, M., who had en- tered on the land was in possession. King's College conveyed it to G. In 1849 G. con- veyed to the wife of M.. and M. signed the conveyance though not a party to it. In an action by the successors in title of M.'s wife to recover possession of the land, the defen- dants, claiming title through M., set up the statut^e of limitations alleging that M. had been in possession twenty years when the land was conveyed to his wife, and that the conveyance to (}., in 1841, the grantor not being in possession, was void under the sta- tute of maintenance, and G. had, therefore, nothing to convey in 1849. Held, thai it was not proved that the pos- session of M. began before the grant from the Crown, but issnming that it did M. could not avail himself of the statute of maintenance as he would have to establish disseisin of the grantor, and the Crown TITLE TO LAND. 259 could not he rtissoised; nor would tho statute avail as against the patentee as the original entry not being tortious the possession would not I>ecome adverse without a new entry. Held, further, that if the possession began after the grant the deed to G. in 1S41 was not absolutely void under the statute of niaintenant-e, but only void as against the party in iwssession, and M. being in pos- session a conveyance to him would have been good under s. 4 of the statute, and the deed to his wife, a person appointed by him. was equally good. Further. JL by his assent to the conveyance to his wife and sub- sequent acts was estopped from denying the title of his wife's grantor. Webb V. Harsh xxii., 437 4.— Old Survey — Error in — Boundaries — Possession— Statute of Li.mitations. .Vpi'crtls were taken from decisions of the <' art of Appeal for Oiitiirio affirming the judgments at the trial in favour of the re- spondent in each case. They had, respec- tively, brought actions against the appellant for trespass to laud which were defended on the ground of want of title in the plain- tiffs and title b.v iwssession in the defendant. At the trial evidence was given by plaintiff of a survey of the lands, and defendant's land adjoining, made in 1S<>0. by a provin- cial land surveyor, in which, as he reported to the Crown Land I>epartment. he had made a mistake owing to a bend in the circumference of his compass and which he corrected by moving the posts he had planted as the line was traced. The defendant claimed that the line as first run was the true line. As to possession the evidence was that defendant had cut timber on the land in dispute for many years, and also tapped maple trees for sugar, but had not fenced the land until some six or seven years prior to the action. The trial judge found that plaintiffs had respectively proved title to their land and that the acts of ownership shown by defendant were mere acts of trespass committed either wilfully or in ignorance as to boundaries and not such as would enable his possession to ripen into a title. The Supreme Court attirmed the decision of the Court of Appeal in both cases and dismissed the appeals. Hortmi V. Casey: Ilorton v. Ilumphrirs. 24th June. 1S1».3 xxii.. 739 o. — Disseisin— Adverse Possession — Paper Title — .Toint Possession — St.xtute of LiMITATIGIsS. A deed executed in 1856 purported to con- vey land partly in Limenburg ami partly in Queen's County. N. S., of which the grantor had been in possession up to 1850. when C. entered upon the iwrtiou in Lunen- burg County, which he occupied uutil his death in 1888. The grantee under the deed never entered uixm any part of the laud, and in 1800 he conveyed the whole to a son of C. then about '24 years old, who resided with ("., from the time he took possession. Both deeds were registered in Queen's County. The son shortly after married and went to live on the Queen's County portion. He died in 1872, and his widow, after living with C. for a time, married P. and went back to Queen's County. P. worked on the Lunen- burg land with C. for a few years, when a dispute arose and he left. C. afterwards, by an intermediate deed, conveyed the land in Lunenburg County to his wife. On one occasion I*, sent a cow uiwu the land in Lunenburg County, which was e in his actual possession and in that of those claiming through him; that neither he nor his successors in title ever had actual possession of the land in Lunenburg County; that the possession of C. was never interfered with by the deeds exe- cuted: and having corrtiftued in possession for more than twenty years. C. had a title to the land in Lunenburg County by prescription. Parks X. Cahoon xxiii., 92 n.— Boundaries — Road Allowance — Evi- dence. The action was for possession of land, the parties being at issue as to the bound- aries between their adjoining properties. The decision depended upon the existence or non-existence of a road allowance between the lots, and the trial judge held that proof of certain monuments having been placed on the lots by early surveyors was incompatible with its existence. His decision was re- ' versed by the Court of Appeal for Ontario (21 Ont. App. R. 110). The Snprfine Court of Canada h(>ld that the evidence was sufficient to show that there was a road allowance; that the decl- 26o TITLE TO LAND, sion of the trial judfro wiis rifrhtly over- ruled, and dismissed the appeal with costs. CuUUr*n V. Kenny, l.lth Jan.. 18;»5, xxiv., 099 7. — Boundaries — Evidence— Pkescription. The plaintiffs, the Rector and Wardens of St. Paul Church, London. Ont., brought the action for possession of land fenced in by defendants, who pleaded title to a part of the lands, and a right of way over the remainder. The Court of Appeal for On- tario (21 Ont. App. K. 323). reversed the decision of the Chancery Division and gavo judgment for plaintiffs who. however, claimed a greatCv width of land than the judgment allowed and tiled a cross-appeal to defen- dant's appeal from such judgment. The Supreme Court of Canada atBrnied the judgment appealed from and the appeal and cross-appeal were both dismissed with costs, the court adopting the reasoning of Mr. Jus- tice Maclennan in the Court of Appeal. Ferguson ct al. v. Iniics ft al., 11th March, 1895 xxiv., 703 8. — Possession — Crown Patent — Prior Grant — Prescription. The action was for possession of land, ))laintiffs claiming title by possession and de- fendants through a grant from the Crown in l,S!t2, and a conveyance from the owner of adjoining land. It was shown that the Crown had granted this land before the be- ginning of the present century, and the courts below held that the Crown had noth- ing to grant in 1S92. having by the prior grant parted with its title and never re- sumed it, and there was nothing to show that the owner of the adjoining land had any title to the locus. The Supreme Court of Canada affirmed the judgment of the Supreme Court of Nova Scotia i.">7 N. S. Rep. 74). which had affirmed the trial court judgment, dismissing the plaintiff's action. Chishotm ct al. v. Rohiuson ct al., 11th March, 18!).") xxiv.. 704 I).— Action en Bornage— Surveyor's Re- port — .TVDOMENT ON — ACQUIESCENCE IN .Judgment— Chose Jugee. In an action cm homage between !M. and B. a surveyor was appointed by the Superior Court to settle the lino of divisiou between the lands of the respective parties, and his report, indicating the position of the liound- ary line, was homologated, and the court directed that boundaries should be placed ' at certain points on said line. M. appealed from that judgment to the Court of Review claiming that the report gave B. more land i than he claimed, and that the line should follow the direction of a fence between the properties that had existed for over thirty years. The Court of Review gave effect to this contention and ordered the boundaries to be placed according to it, in which judg- ment both parties acquiesced and another surveyor was appointed to execute it. He rei>orted that he had placed the Iwundaries as directed by the Court of Review, but that his measurements showed that the line in- dicated was not the line of the old fence, and his report was rejected by the Superior Court. The Court of Review, however, held that the report of the first surveyor, having been homologated by the court, was final as to the location of the fence, and that the judgment had been properly executed. The Court of Queen's Bench reversed the judg- ment, set aside the last reiwrt and ordered the surveyor to place the boundaries in the true line of the old fence. Held, reversing the decision of the Court of Queen's Bench, that the judgment of the Court of Review in which the parties ac- quiesced was vltr:j:eant a I'antre." Hrld. reversiiiir the (lecisifni of the T'oiirt of Queen's Beiu-Ii. Stronj:. C.J., (lisseutiut'. that the clause (luoted did not iniitose merely a personal ol)lif:ation on the i;rantee. but created a reil chauf^e or servitude upon Tile du Milieu for the benefit of the " Common of Bertliier." That the servitude consisted in sufferius inroads from the cattle of the Common wherever anil Mheuever the grantee tlid not oxclnde them from his island by the con- struction of J good and sntlicieut fence. This servitude results not only from thi> terms of the seignorial grant, but also from the circumstances and conduct of the parties from a time immemorial. That the two lots of land although not contiguous wore sufficiently close to permit the creation of a servitude by one in favour of the other. That the stipulation as contained in the original grant of 17r>S was not merely facul- tative. That the servitude in (luestiou is also suffi- ciently estaljlished by the laws iu force in Canada iii the time of the grant in ITtJS, respecting fencing and the maiulenauce of fences in front of habitations or settlements. La Commune dc lierthwr y, iJinin. xxvii., 147 11. — Appeal — Jurisdiction" — Petitory ACTIO.V — EnCRO.VCHMEXT — COXSTKI'C- TioN.s Under Mistake of Title — Good Faith — Common Error — Demolition of Works — Right of Accession — Indem- nity — Res .Tudic.a.t.\ — Arts. 412. 413, 42'J ct seq.. 1047, 1241 C. C An action to revendicate a strip of land upon which an encroachment was admitted to have taken place by the erection of a building extending beyond the boundary hue, itnd for the demolition and removal of the walls and the eviction of the defendant, in- volves nueslions relating to a title to land, indt pendently of the controvi'rsy as to bare ownership, and is appealable to the Supreme Ci'Urt of Canada under tin- provisions of the Stipreine and Excheciuer Courts Act. Where, as the result of a mutual error respecting the division line, a proprii>tor had in good faith and with the knowledge and consent of the owner of tlie ndjoining lot. erected valuable buildings upon his own prop- erty and it afterwards appeared that his walls encroached sliglitly ui>on his neigh- bour's land. I'c cannot be (ompelled to I'.e- niolish the walls which extend V>oyond the true Ifoundary or be evicted from the strip of land they occupy, but should lie allowed to retain it upon [layment of reasonable in- demnity. In an ai-tion for revendication under the circumstances above mentioni'd. the judg- ment previously rendered in an action t/t boniuye between the same parties cannot be set up as ns judicata against the defendant's claim to be allowed' to retain the ground en- croached upon by paying reasonable indem- nity, as the objects and causes of the two actions were ilifferent. An owner of land need not have the divi- sion line between his proiK-rt.v and contig- uous lots of land established by regular homage before commencing to build thereon when there is an existing line of separation which has been recognized as the boundary. Delorme v. Ciisstm xxviii., tJG 12. — Form of Deed — Signature by a Cross— IS) Vic c. l.~), s. 4 (C\n.i— Regis- try Laws — I..itigious Rights — Acquies- cence — Evidence — Commencment of Proof — Warrantor Impeaching Title —Arts. 1025, 1027, 1472, loS2, ir)S3, 2134, 2137 C. C- Where the registered owner of lauds was present but took no part in a deed, subse- (luently executeil by the representative of his vendor, granting the same lands to a third person, the mere fact of his having been present raises no presumption of ac- quiescence or ratification thereof. The conveyance by an heir-at-law of real estate which had been already granted by his father during his lifetime is an aljsolute nullity and cannot avail for any purposes whatever against the father's granti-*' who is in possession of the lands and whose title is i-egistered. Writings under private seal which have been signed by the parties but are ineffective on account of defeats in form, may never- theless avail as a commencement of iiroof in writing to be supplemented by secondary evidence. The grintees of the warrantors of a title cannot be iiermitted to plead technical ob- jections thereto in a suit with the person to whom the warranty was given. Where there is no litigation penended in reconstructing buildings up- on the property. On default in payment the mortgagee obtained judgment against the institute, and caused the lands to be sold in execution by the sheriff in a suit to which the curator had not been made a party. Held, that, as the mortgage had been judi- cially authorized and was given special pre- ference by the statute, superior to any rights or interests that might arise under the sub- stitution, the sale by the sheriff in execution of the judgment so recovered discharged the lands from the substitution not yet open, and effectually passed the title to the pur- chaser for the whole estate, including that of the substitute as well as that of the greve de substitution, notwithstanding the omission to make the curator a party to the action or proceedings in execution against the said lands. An institute, gritvi' de substitution, may validly affect and bind the interest of the substitute in real estate subject to a fidu- ciary substitution in a case where the bulk of the proiK'i'ty has been destroyed by via major in order to make necessary and ex- tensive repairs igrosms nparations\. upon ob- taining judicial authorization, and in such case the substitution is charged with the cost of the grosses irparatians, the judicial authorization operates as res judicata, and the substitute called to the substitution is estoppi ,1 from contestation of the necessity and exiwnse of the repairs. The sheriff seized and sold lauds under a writ of execution against a defendant de- scribed therein and in the process of seizure and also in the deed by him to the pur- chaser, as greri- de substitution. Held, that the term used was merely de- scriptive of the defendant and did not limit the statute seized, sold or conveyed under the execution. Held, further, per Taschereau, J., that article 2172 of the Civil Code of Lower Canada, as interpreted by the statute, 21( Vic. c. 20 (Can. I, applies to hyjKithecs ami charges only, and does not retiuire renewal of registration for the preservation of rights in and titles to real estate. Judgment of the Court of Queen's Bench affirmed, Taschereau and King. J.J., dis- senting. Chef dit Vaderbo-ncaur v. City of Montreal. 13th Oct. 18"J8 xxix.. t> 14.— Waiver— Objections to Title. A purchaser who takes possession of the property and exercises acts of ownership by making repairs and improvements will be held to have waived any objections to the title. Objections to title cannot be raised where the purchaser has made a tender of a blank deed of mortgage for execution for the pur- pose of carrying out the purchase. Wallace et al. v. Hesslein et al.. 21st Nov.. 1898 xxix.. 171 15. — Tenant for Life— Conveyance to Railway Company by— Kailway Acts— C. S. C. c. 66, s. 11, s.-s. 1—24 Vic. c. 17 s. 1 (O.). See Statute. 2. 16.— Rail-way Belt in British Columbia— L'nsurveyed Lands — Pre-emption — P^ederal and Provincial Rights. See Constitutional Law. 1. 17. — Agreement to Convey — Defect in Title — Devise in Fee with Restric- tion Against Sale— Special Legisla- tion — Specific Performance — Vendor and Purchaser. See Specific Performance, 1. ?»» 18. — Trespass — Damages — Easement — Equitable Interest — Municipal By- law — Notice — I!egistration — R. S. O. (1877) c. 114. See Municipal Corporation, 21. 19.— Public Highway— Private Roads- Registered Plan-Dedication — User- Construction of ."Statute — Retrospec- tive Statute— Estoppel — 1(5 Vic. (O.) c. 18. See Municipal Corporation, 22. TOLLS. 263 20.— Vendor and Purchaser— Sale of Lands— Waiver of Objections— Lapse OF Time— Will, Construction or— Executory Devise Over— Defeasible Title — Rescission of Contract. See Will, 7. •Jl. —Mortgage of Trust Estate— Equity Running ■with Estate — Equitable Re- course — Construction of Deed — De- scription of Lands — Falsa Demon- stratio — Water Lots — Accretion to Lands— After Acquired Title— Con- tribution to Redeem— Discharge of Mortgage — Parol Evidence to Ex- plain Deed — Estoppel by Deed. SCO Deed, 3. 22.— CONSTITITIONAL LaW — PROVINCE OF Canada — Treaties with Indians— Sur- render OF Indian Lands — Charge upon Lands— B. N. A. Act, s. 109 — Annuity TO Indians— JtEVENUE fhom Lands— In- crease OF Annuity. See Constitutional Law, 13. 23.— Real Property Act— Registration — Unregistered Transfers — Equitable Rights — Sales under Execution— R. S. C. c. .'.1: 51 Vic. (D.i c. 20. Sec Registry Laws, 3. 24. — Constitutional Law — Navigable Waters — Title to Alveus — Crown —Dedication of Public Lands— Pre- su.mption of Dedication — User — Obstruction to Navigation — Public Nuisance — Balance of Convenience. See Constitutional Law, 15. 25.— Canadian Waters— Property in Beds — Public Harbours — Erections in- navigable Waters — Interference with N.wigation — Right of Fishing— PoV.-ER to Gr^NT— ItlPARIAN PROPRIE- TORS— GrEAT Lakes and Navigable Rivers— Operation of Magna Charta — Provincial Legislation— R. S. O. ; (1887) c. 24, s. 47—55 Vic. (O.) c. 10, ss. j G to 13. 1S> AND 21— R. S. Q. Arts. 1375 to 1378. S(c Fisheries, 2. 20. — Right of Redemption— Third P.\rties — Delivery and Possession of Thing Sold. Sea Pledge, 2. 27. — Ambiguous Description — Possession— Presumptions in Favour of Occupant. See Deed, 0. 28.— Statute. Construction of— EsVf.TES Tail, Acts Abolishing— R. S. N. S. (1 SER.i c. 112— R. S. N. S. (2 ser.) c. 112— R. S. N. S. (3 SER.) c. 111—23 Vic. c. 2 (N. S.) — Will — Constructio.n of — Executory Devise Over — " Dying without Issue " — " Lawful Heirs " — " Heirs of the Body " — Estate in Re- mainder ExPECTAN"r— Statutory Title — R. S. N. S. (2 ser.) c. 114, ss. 23 and 24— Title by Will— Conveyance by Tenant in Tail. Sea Will, 17. 29. — Sheriff's Deed — Nullity — Mala Fides — Prescription — Equivocal Pos- session. See Evidence, 30. 30. — Appeal — Jurisdiction — Matter in Controversy — Interest of Second Mortgagee — Surplus on Sale of Mortgaged Lands — GO & Gl Vic. c. 34, s. 1 (D.) — Construction of Statute — Practice. -See Appeal, 77. 31.— Sheriff's Sale — Deed — Action to Vacate — Petition — Exposure to Eviction — Actio Condictio Indebiti — Refund of Price Paid^Substitution Not Yet Open— Prior Incumbrance — Arts. 706, 710. 714. 715 C. C. P.— Arts. 1511, 1535, 1586, 1591, 20(30 C. C. See Action, IS. " Sheriff, 2. '• Substitution, 3. TOLLS. 1. — Company — Forfeiture of Charter — Estoppel — Compliance with Statute — Action — Res Judicat.\. In an action against a River Improvement Company for repayment of tolls alle::ed to have been unlawfully < olkcted, it was al- leged that the dams, slides, etc.. for which tolls were claimed were not placed on the properties mentioned in the letters patent for the company: that the company did not comply with the statutory requirements that the works should be completed within two years from the date of incorporation, where- by the corporate powers wore forfeited: that false returns were made to the Commissioner of Crown Landy. upon which the schedule of tolls was fixed: that the company by its works and improvements obstructed navi- gable Wfiters. contrary to the provisions .f the Timber Slide Companies Act. and could 264 TORTS— TRADE MARK. not exact tolls in rospoct of sucli works. By a consiMit jud^iiit'ut in .\ roniu'r action between the same parties, it hail been agreed that a valuator slumld ln' apiioiuted "ny the ('iiiimiissi.iiH'r of Crown Lands '.vhose re- port was to be accepted in j>lace of that pro- vided for by the Timber Slide Companies Act. and to be acted upon by the Com mis- sion. -r in ti.xing the schedule of tolls. //(/(/. alhrmin^r the juil^nicnt i;f the CoiMt of Apiieal for Ontario, that the aliovc grounds of inipcachnicut wi-re covered by the etmsiiit JMilj-'nicnt, and w» re rf8 judicaUi. Held, further, that plaintiffs having' treated the company as a cori)or ition. usinj; the works and payinj: the tolls fixed by the Commissioner, and having in the present a'lion s;u'd the company as a I'orporation. were precluded fr'>m impugninj: its leiral existence by claiming that its corporjite powers wc!'e forfiiled. By II. S. O. (1SS7), c. ItiO. s. 54. it was pro- vided that if ;t company such as this tlid not complete its works within two years from the date of incorporation it should for- feit all its corporate and other powers " un- less further time is granted by the county or counties, district or districts, in or adjoin- ing which the work is situate, or by the Commissioner of I'ublic Works. S(i>ibl(\ — The non-comiiletiou of the works within two years would not ipso factn. for- feit the charter but only afford grounds for proceedings by the Attorney-General to have a forfeiture declared. Another ground of objection to tin- im- position of tolls ivas that the Commissioner, in acting on the report of the vahmtor ap- pointed under the consent judgment erron- eously based the schedule of tolls upon the report as to expenditure instead of as to actual value, .-ind the statement of claim asked that the s. hedule be set aside and a new scale of tolls fixed. Hill!, that under the statute the schedule could only be altered or varied by the Com- missioner, and the court could not inter- fere, especially as no application f(>r relief had been made to the Commissioner. llariUi LiinilKr Co. v. PickcrrJ Hirer Improre- mait Co.. 14th P "cember. INKS .. xxix.. 211 2.— COXSTITUTIOXAL LaW — MTXtCIPAL. CoR- pcRATioN — Powers of I.kgislati're — License — Monopoly — Higiiv.wys .\nd Ferries— Navigaei^e Streams — Bv laws AND Kesolvtions — Intermtnicipal Ferry — Tolls — DisTfRBANCE of License — Nortji-west Territories Act. IJ. S. C. c. .-(». ss. 13 and 24-B. X. A. Act (IStiTl s. ;»2. ss. S. 1(» and 1<^— Rev. Ord. X. W. Ter. (1S88i c. 28- Ord. N. W. T. Xo. 7 OF lSJn-02. .i. 4- CoMPANiES, Club Associations and I'artnerships. Src Constitutional Law. 14. TORTS. Commence-mext of Frescriptiox of A.'tion — Continuing Damages— Liability of E.mployer for Act of i'ontractor. .'>'ff Master and Servant, 4. TRADE. 1. — Partial Prohibition of — By-law of Municipal Council — I'ower to License. IiEgulate and (Jovern — Ontario Municipal Act. It. S. O. ilis87i c. 184. Sec Municipal Corporation, 0. 2. — Constitutional I^aw — Powers of Pro- vincial Legislatures — Direct Taxa- tion — Manufacturing and Trading Lice.nses — Distribution of Taxes — Uni- formity OF Taxation — Quebec Sta- tutes ."•"» & ."»■) Vic. c. 10 AND ~)*i Vic. c. IT) — British Xorth America Act. 1^(17. See Constittitional Law, 12. TRADE CUSTOM. Contract for Sale op elivery — Inspection — Evidence of ^Mercantile Us.\ge — Contra t Mad: Abroad. See Contract. V2. TRADE MARK. Jurisdiction of Court to IJestraix In- fringement — Ei- I'ECT OF — Rectification OF Register. In the certit!cal(> of registration the plain- tiffs' trade-mark was described as consist- ing of " the representation of an anchor, with the letters '.1. D. K. & Z.' or the words ' .Tohii DeKiiyper iV Son. Rotterdam, etc' as i>er the annexed (h'awings and applica- tion." In the applieaiioii the trademark was claimed to consist of a device or repre- sentation of an anchor inclined from right to left 'ii combination witii the letters "'.I. D. K. & Z." or the words " .Tohn DeKuyi)er. etc.. Rotterdam." which, it was stated niigbt be branded or stnnn>ed upon barrels, kegs, cases, boxes, capsules, casks, labels and other packages containing geneva sold by plaintifl's. It was also stated in the applica- tion that on bottles was to be ,'iHixed a irinted libel, a copy or fiic-.thnile of which was attached to the application, but there TRADE UNIOX-TRESl'ASS. 26; was no oxprcss claim of tho lalx'l itsi'lf as a tradc-niaik. This ialnl was wliitc and in tin' sliain' of a heart, with an ornamental bordor of the same shape, and on the label was printed the device or representation of the anchor with the lett»'rs ".I. 1». K. & Z.." {".nd the words '•.I.ilin OeKnyper \ Son, Jtotterdam." and also the words " (icnnine Hollands (Jeneva." wlii white. Hihl. 'itlirini'ig the jiidguu nt of th" Ex- chequer Court, that tlie label did not form an essential feature of the i>!ainti£fs' trade- mark as registered, but that, in view of the plaintiffs' prior use of the white heart-shaped lal-.el in Canada, the defendants had no ex- clusive right to the use of the saiil lal)el. and that ihe entry of registration of their trade-mark should be so rectitied as to make it dear that the heart-shaped label formed no part of such trade-mark. Tasehereau aud <; Wynne. .I.T,. dissenting on the ground that the white heart-shaped label with the scroll and its constituents was the trade- umrk which was protected by registration, and that the defendants' trade-mark was an infringement of such" trade-mark Ih-KufiiH'i- DeKtiyiK'r Van hiilhrii: Van TRADE UNION. Diilkai V. xxiv.. 114 Cai'se of Action — Combination in Re- straint OF Trade — Strikes— Sociai. Pressi-re. \Vorkmen who in carrying out the reirnla- tions of a trade union forliidiling them to work at a trade in company with non-union w•">». attirmed. Pcirault V. Gatithier et al xxviii.. 241 TRANSACTION. Compromise to ruEVKNT Litigation — Nullified I.vstri'ments — Estoppel — Evidence — Ad.mission — C. C. Arts. 311, 1243-1245 AND litis <;eO. III.. C. 'jS (iMi'.t- It. S. C. cc. !»4 iV '.ri— Three Mile Li.mit— Foreign Fishing Vessels — " Fishing." Where fish has been enclosed in a seine more than three marine miles from thi- coast of Nova Scotia, and the seine 'pursed up and Secured to a foreign vessi'l, and the vessel was afterwards seized with the seine still so attacheil within the three mile limit, her crew being then engaged in the act of bailing the tish out of the seine: //(/(/, (the Chief .lustice and (iwynne. .T.. dissentingi. affirming the decision of the court below, that the vessel when so seized was " fishing " in violation of the convention of ISIS between Great Britain an d the Uuiteil States of America and of the Im- perial Act 59 Geo. III., c. 38, and the Re- vised Statutes of Canada, c. !t4. and conso- Quently liable with the cargo, tackle, rig- ging, iipparel. furnit\ire anil stores to l>e condemned and forfeited. The .v/i//) ■■ Firihrii-h U()-)inj. Jr.." v. 77i • Queen xxvii., 271 2, — Tre.\ties with Indians - Constiti'- TiON.\L Law — Province of Can.vda— Indian Treaties — Surrender of Indian Lands— Annuity to Indians — Reve.nue from Indian Lands — In- crease OF Annuity — Charge upon Lands — British North America Act, 1S(!7. s. lUK. .S'ec Constitutional Law, 13. TRESPASS. 1.— On Public Streets— Action by Owner OF Private Property— Ub>ami:xtal Shade Trees — Ownership ad Medium Filum Vi.e— Presi-mption. The charter of the Nova Scotia Telephone Company authorizing the construction and 266 TROVER— TRUSTS. working iililic high- way or street of the City of Halifax pro- vided that ill workiiijr sneli lines the com- pany should not cut uown or mutilate any trees. Held, Tascherean and Gwyiine, .'.!., dis- sentinj:. that the owner of private property in the city could maintain an :tction for dama^'es iiKainst the conipuny for injuring ornamental shade trees on the street in front of his prop«'rty while constructing or work- inK the teleplione line, there lieinjr nothiiiK I in the evidence to reliut the presumption of ', ownership , ss. 240, 350, 373 (D.) for conversion of her interest. , UcUl, atlirming the decision of the Supreme Court of New Brunswick, that the ship's husband was agent of the uninsured owner in respect of the vessel and his conduct pre- cluded her from bringing th > action; tliat he might have taken possession before the ves- sel was libell' '1; and that the insured owner was not depi id of her interest by any ac- tion of the underwriters, but bj' the decree of the court under which she was sold for salvage. Rourke y. Union Ins. Co xxiii., 344 TRUSTS. 1. — Trusts — Will— Executors and Trus- tees—Breach OF Trust — Presumptio.v — Constructive Notice— Inquiry— Lia- bility of Assignee. After all the debts of an estate are paid, and after the lapse of years from the testa- tor's death, there is a sufficient presumption that one of the several executors and trus- tees dealing with assets is so dealing Qti& trustee and not as executor, to shift the burden of proof, Etcart v. Oordon (13 Gr» 40), discussed. W. a.'d C were executors and trustees of an estate, under a will. W.. witli- out the eoncurrPEce of C, lent money of the estate ol mortgage, and afterwirds assigned the mortgages which were executed in favour of himself, described as " trustee of the estate and effects of " (the testator). In the assignment of the mortgages he was- described in the same way. W. was after- wards removed from the trusteeship and aii action was brought by tlie new trustees against the assignees of the mortgages to recover the proceeds of the same. Held, reversing the judgment of the Court of Appeal, that in taking and assigning said mortgages W. acted as a trustee and not as an executor; that he was guilty of a breach of trust in taking and assigning them in his owi. name; ih.*t his being described on the face of the instruments as a trustee was constructive notice to the assignees of the trusts, which put them on inquiry; and that the assignees were not relieved as per- sons rightfully and innocently dealing wit'> trustees, inasmuch as the breach of trur t consisted in the dealing with the securities themselves and not in the use made of the proceeds. Cumming v. Landed lianUing & Loan Co., xxii., 24(T 2. — Trustee— Administrator of Estate — Release to. by Next of Kin— Rescis- sion OF Release— Laches. The appeal was from a decision of the Su- preme Court of Nova F^cotia, reversing th;? judgment at the trial for the defendant!*. E. M. died in 1S71. and his brother and partner, H. M.. obtained from his widow and his father, as next of kin, a release of TRUSTS. 267 their respective interests in all real and per- sonal property of the deceased. In getting lliis release he representtnl that the estate would he sacrificed if sold at auciion. and tlie most could be made of it l>y letting,' him liMve full control of the property. He then t(Hik out letters of administration to E. M.'s estate, hut took no further proceedings in till- Trobate Court, and managed the prop- tTty as his own until he died in 188S. Dur- ing that time he wrote several letters to the widow of E. M., in most of which he stated that he was dealing with the property for her benefit, and would see that she lost noth- ing by giving him control of it. After his death the widow brought an action against Ills executors, asking for an account of the partnership between her husband and H. M., and of his le.ilings with tlu> i)r<>perty since her husband's death and payment of her share: she also asked to have the release set aside. The defendants relied on the re- lease as valid, and also pleaded that plain- tiff by delay in pressing her claims was pre- cluiled from maintaining her action. The Supreme Court of Canada held, <; Wynne. J., dissenting, that the release should be set aside: that it was given in ignorance of the state of the partnership business and E. M.'s affairs, and the plain- tiff was dominated by the stronger will of H. M.; that the latter had divested him- self of his legal title by :ulniitting in his letters a liability to the plaintiff, and must be treated as a trustee: that as a trustee lapse of time would not bar plaintiff from proceeding against him for breach of trust; and that the delay in pressing plaintiif's cliiim was due to H. M. himself, who post- poned from time to time the giving of a statement of the business when demanded' by the plaintiff. The appeal was dismissed with costs. Hack V. Mack, 13th March, 1S94, xxiii., 146 3. — Executors and Trustees — Accounts — Jurisdiction of Probate Cot-rt — Res Judicata — Misconduct — Judicial Dis- cretion — Removal of Trustee. A court of probate has no jurisdiction over accounts of trustees under a will, and the passing of acionnts containing items relating to the duties of both executors and trustees is not. so far as the latter are concerned, binding on any other court, and a court of equity, in a suit to remove the executors and trustees, may investigate such accounts again and disallow charges of the trustees which were passed Viy the Probate Court. The Supreme Court of Canadi, on appeal from a decision that the said charges were projK-rly disallowed, will not reconsider the i items so dealt with, two courts having pre- 1 viously exercised a judicial discretion as to the amounts md no question i»f principle being invnlveil. i A letter written by a trusfi under a will to the Cintui que triixtH threatening in case proceedings are taken against him to make disclosures as to mali)ractices by the testa- tor, which might result in heavj penalties being exactttl from the estate, is such an improper act as to call for his immediate removal from the trusteeship. Oraiit V. yfaclaren xxiii., 310 ; 4.— Trust T'nder Will— Infancy — Dis- claimer—Possession of Land— Statute ! OF Limitations. A son of the testator and one of the exe- ■ cutors and trustees named in a will was a minor when 'lis father died, and after coui- i ing of age he never applied for probate, : though he knew of the will and did not I disclaim. With the consent of the acting trustee he went into possession of a farm belonging to the estate and remained in ixissession over twenty years, and until the period of distribution under the clause above set out arrived, and then claimed to have a title under the statute of limitations. I Held, artirming the decision of the Court ' of Appeal (18 Ont. App. R. 2\ sub nomine ^yrigh^ v. BcU). that as he held under an ex- i press trust by the terms of the will the rights 1 of the other devisees could not be barred by the statute. Hovghton v. Bell xxiii., 40^ 5.— Joint Stock Company— Shares Paid FOR BY Transfer of Property- Adequacy OF Consideration — Pro- moter Selling Property* to Company —Fiduciary Relation — Winding-up — Contributory'. There is a distinction between a trust for a company of property acquired by promo- ters and afterwards sold to the company and the fiduciary relationship engendered \ by the promoters, between themselves and i the company, which exists as soon as the latter is formed. A promoter who purchases property with the intention of selling it to a company to- be formed does not necessarily hold such property in trust for the prospective com- Iiany. but he stands in a fiduciary relation to the lattor and if lie sells to them must not viol.ate any of the duties devolving upon him in respect to such relationship. 268 TRUbFS. If hi' sells, for instance, through the lue- (liiiiii of a lioanl of directors, who are not iiideiicmieiit of liiiu the cuiitract may Vk? re- 8cinaid by the company when formed, md li.v a secret amuiiement with the vendor a part of the price, when the ajireemeiit is carried out, comes into tlu- luinds of the promoter, that is a si'crct profit whieh he cannot retain: and if any part of such secret profit consists of paid-up shares of the compan.v issued as part of tlie purchase price of the property such shares may. in winding-up proceedings, he treated, if held by the promoter, as unpaid shares, for whicli the promoter may be made a contributory. In rv lltnn Mfg. Co. Edyar v. Sloan. xxi!i.. 044 (?.— Power to Borrow Money— I'romissory Note — Charge ox Estate — Exercise of Power. The defendant was trustee of the estate of one Sinionds. and the action wis brought to recover money lent to a former trustee, one Lee. The trust deed to l-ee gave him power to borrow money on mortgage. He obtained $2.(100 from the plaintiff, which he repri'sented was for the use of the esi.ite. giving him a promissory • ite signed " O. II. Lee, trustee of E. I. h londs," and in- dorsed by (}. H. IjQe. The .Indge in Etjuity gave judgment for the plaintiff, holding that Ia^c having power to borrow on mortgage. was a<'ting within his powers in borrowing from plaintiff, but if not he got the money on the proiu'se that he would exercise the power. The Suprt-..ie t'ourt of New Bruns- wick reversed this judgment, holding that there was no evidence of such promise, and the estate never liaving had the benefit of the money the trustee would not have been entitled t > indennuty. and the plaiiititT's riLrlit was oidy to be placed in the same position as the trustee. On further appeal the Su- preme Court of Canada, after hearing coun- sel for appt'llant. affirmed the judgment of the Supreme Court of New B; unswick. and dismissed the appeal without calling upon <'Ounsel on the other side. Vonni,}- V. I'rooHi. lldth February. ISO.". xxiv.. 701 ".— Trcstee— AccoiNT of Trust Funds— Ab.v.ndo.vme.vt bv Cestui que Trusp — Evide.nce. The liolder of two insurance iwlicies, one in the Providence Washington Ins. (Jo., and the other in the Delaware Mutual, on which actions were in'uding. assigned the same to M. as security for .idvan es :iiid authnrized him to proceed with the said actions and col- lect tlie .noneys [laid by the insurance com- panies therein. By a subse»iuent assign- ment .1. beeame entitletl to the lialance nf said insurance moneys after M.'s claim was paid. The actions residted in the polii-y of the Providence Washington being paid in full to the solicitor id' M.. and for a defect in the other polic.v the plaintiff in the action thereon was non-suited. In 1S.S(j M. wrote to .1. informing him that a suit in eromised by the company paying some- what less than half the amount of the policy. Before the above letters were written J. had brought suit against M. for an account of the funds received under the assignment, and in ISST. more than a year after they were written, a decree was made in said suit referring it to a referee to take an account of trust funds received by M.. or wliicii might have been received with reasonable diligence, and of all claims and charges thereon prior to the assignment to J., and the acceptance thereof, which decree was attirmed by the full court and by the Su- preme Court of Canada. On the taking of said account M. contended that all claim on the Delaware policy had been abaiidoneil l.y the above correspondence, and ot)jected to :iny evidence relating thereto. The re- feree took the evidence and charged M. with the amount received, but on exceptions by M. to his report the same was disallowed. I H(ld. reversing the judgment of the Su- preme Court of New Brunswick, that the TRUSTS. 269 sum pniil by the Dclnwnre ronuiniiy was projKTly allowed l>y the ri'fiTec: that tlif iil- Icp'd iilpiiiKliiiiinciit took idace ln-furc tho iiinkint; of the decroe which it would have iiffcctcd Mild should liiiv«' liccn so nrnt'd; that M. not liaviii« taken stops to have il dealt with hy the decree tonlil not raise it on the tiikintr of the account; and that, if open to him, the aliandonnient was not estaldished as the proc.'edin;.'s .i>.'ainst the Delaware Conijmny were carried on after it exactly as before, and the money paid by the com- pany must be held to have been received by tlie solicitor as solicitor of M.. and not of the iirijiinal holder. Ilehl. further, that the referee, in charging M. with interest on money received from the date of receij)t of eanyment to same fixed date had not proceeded upon a wrong principle. J01K8 V. McKcan xxvii., -149 8.— Powers of Liquidators to Buy or Sell Property of which they are Administrators— Art. 1484 C. C. In an action where no si)eciMl demand has l>een made to that effect, the court cannot declare the nullity of a deed of transfer alleged to have been made in contravention of the provisions of art. 1484 of the Civil ("ode of Lower Canada, prohibiting a (i. M. entereil Into an .•igrcement for the purchase of a parcel of land in Hali- fax, and entered into possession and com- menced to build a house on one of the lots. In 1877 he was called upon to carry out his agreement, and to i)ay the purchase money, but being then financially embarrassed, he could not make the payment. The house was not then completed although he was !>ble to occupy it. He applied to a build- ing society for a loan, but. as there were judgments recorded against him. which Would have a priorit.v, he caused the deed for the land to be executed in the name of AV. M., his nephew, and then procured the loan upon it as security. W. !M. aftor- w.trds took possession of the projierty. and an action was brought against him by G. M. to compel him to execute a conveyance, and for an a< tint of rents and profits. 'I'lie tri il jtldge held, that the deed had been taken in the name of tho nephew for thfr purpose of hindering, delaying and defrntld- ing creditors and refused the relief aaked for. The court '•»' '"""' reversed this judg- ment and ordered W. M. to convey tla- prol)- erty to L was entitled to relief as the more excus- able of the two. MackiHxie v, Macketuie, 20th February, lS'.t7. 10,— Trustee— MisAPPROPRiATio.N— Surety Evidence— Knowledge by Cestui que Trust— Estoppel— Parties. Fumls held liy F. as trustee for C, were misapiiropriated by being deposited with the- firm of F. F. & Co.. of which F. was a member, and after being so kept on deposit for a period of upwards of six years, were lost in ctuiscqucnce of the failure of the lirm. In an action against the defendants, who were sureties for F., to comoi-l them to make goinl the funds so misappropriated and lost, the defence relied upon the knowledge of the misappropriation on the part of C, which knowledge was sought to be shown by the fjict that payments of interest were made to (."., from time to time, by che(iue of tho insolvent firm. Tht' Supreme Court of Nova Scotia en 6aH? held, that the manner in which these pay- ments were made was not evidence of know- ledge on the part of C, that she was bound' to communicate to the sureties: that at nmst it showed nothing more than assent by C. to the deposit of the income to which she was entitled with the firm of which her trustee w;is a member. The court also held, that the trial judge could have disposed of the contention raised on behalf of the defendants without making C. a party to the suit. And it also seemed to the court, that knowledge I on the part of C. that some pnrt of the i trust fund had been placed by tne trustee temijorarily with F. F. & Co.. awaiting in- vestment on good security, would not be held to be knowledge, assent or actiuiescenee by C. in the misconduct of the trustee whiclt led to the loss of the funds. (30 X. S. Rep. 17,3, «ub nomine. Eastern Tnist Co. v. Forrest, et al). ■VfO TRUSTS. On appeal, the Supreme Court of Canada affirmed the decision of the Supreme Court of Nova Scotia, en banc, and dismissed the appeal with costs. Baynt ci al. v. The Eastern Trusts Co. et al., •9th November, 1897 xxviii., GOG 11. — Construction of Statute— 20 & 21 Vic. c. ;j4, s. 12 (Imp.*— Application— Criminal, Prosecution— Embezzlement OP Trust Funds — Suspension op Civil, Remedy— Stifling Prosecution — Part- nership. The Imperial Act. 20 & 21 Vic. c. 54, s. 12, provides that " Nothing in this Act con- tained, nor any proceeding, conviction or judgment to be had or taken thereon, against any person under this Act, shall prevent, lessen or impeach any remedy at law or in equity, which any party aggrieved by any offence against this Act might have had if this Act had not been passed: * * * and nothing in this Act contained shall affect or prejudice any agreement entered into, or se- curity given by any trustee, having for its object the restoration or re-payment of any trust property misappropriated." Held, affirming the judgment of the Su- preme Court of British Columbia (5 B. C. Itep. 571), that the class of trustees refer- red to in said Act were tho.se guilty of mis- appropriation of property held upon express trusts. Semble, that the section only covered agree- ments or Securities given by the defaulting trustee himself. Quwre. — Is the said Imperial Act in force in British Columbia? If in force it would not apply to a prose- cution for an offence under K. S. C. c. 204 (The Larceny Act* s. 58. An action was brought on a covenant given for the i>uri»ose of stifling a prosecution for the embezzlement of partnership property under It. S. C. c. 2G4. s. 58, which was not re-enacted by the Criminal Code. 1892. Held, that the alleged criminal act, having " ■ 1 connuitted before the Coce came into lurce, was not affected by its provisicns. and the covenant was illegal at common la-x. Further, the partnership property not hav- ing been held on an express trust, the civil renuHly was not preserved by th^ Imperial Act. Maicr v. McCraney et ah, 21st November. 18518 xxix.. 182 12.— For Benefit of Creditors— Power op Attorney to Assignor— Sale of Goods to Assignor— Authorit-x to USE Trustee's Name — Evide.nce. .S're Debtor and Creditor. 2. 13. — Purchase of Land by— Mortgage- Indemnity to Vendor— Liabilitt of Purchaser. See Mortgage, 2. 14. — P^raudulent Appropriation by Trus- 1 tee— Unlawful Receiving — Simulta- [ NEOus Acts. See Criminal Law, 2. 15.— Trust imposed on Crown— Railway Subsidy — Application — Discretion. See Constitutional Law, 0. IG.— Trust under Will— Liability for Negligence— Care of Estate Pro- perty. See Executors, 1. 17.— Director of Company — Sale to- Fiduciary Rel.\tionship— R S C c 129, s. ai. See Winding-up Act, 2. 18.— Assignment for Benefit of Creditors —Inspector op Insolvent Estate- Guarantee BY Creditor and Inspec- tor ON Sale of Assets— Account for Profit. See Insolvency, 2. 19.— Trustees and Executors— Legacy in Trust — Discretion op Trustee — Vagueness or Uncertainty as to Beneficiaries— Poor Relatives— Pub- lic Protestant Charities — Charif- able Uses— Persona Designata See Will, 8. 20.— Fraudulent Conversion — Deben- tures Transferable by Delivery— Estoppel— Lmplied Notice— Past Due Bonds. See Negotiable Security. " Pledge. 1. 21. — Mortgage of Trust Estate— Equity Running with Estate— EqurrABLE Re- course — Construction of Deed — De- scription OF Lands — Falsa Demon- stratio — AVater IjOts — Accretion to Lands— After Acquired Title— Con- tribution TO Redeem— Discharge of Mortgage— P^ROL Evidence to Ex- plain Deed— Estoppel by Deed. See Mortgage. 4. TUTOR— USUFRUCT. 271 22.— Constitutional Law — Province of Canada— Treaties with Indians— Sur- render OF Indian Lands — Charge up- on Lands— B. N. A. Act s. I(t9— An- nuity TO Indians — Revenue from Ijands— Increase of Annuity. See Constitutional Law. IS. 23.— Mortgage on Foreign Lands — Ac- tion to /SetI Asidej — Jurisdiction — Secret Trust— Lex rei Sit.e. Sec Lex rei Sita\ 24.— Principal, and Agent — Advances to Agents to Buy Goods— Trust Goods Mixed with Those of Agent — Re- plevin—Equitable Title. See Principal and Agent, 7. 25.— Municipal Corporation — Railway Aid — Debentures — Sale of Shares at Discount — Trustee — Debtor and Creditor — Division of County — Erec- tion OF New Municipalities— Assess- ment — Action en Reddition de Comptes —Arts. 78. l.'>4. 930 Mun. Code Que.— 24 Vic. c. 30 (Que.)— 2ft Vic. c. 50 (Que). See Municipal Corporation. SOa. TUTOR. 1. — Testamentary Succession — Executors — Balance Due by Ti-tor — Action for Account — Provisional Possesston — Parties to Action — Envoie en Pos- session. See Executors, 2. 2.— Nullified Instruments — Evidence — Admissions — Compromise — " Transac- tion "—Estoppel— C. C. Arts. 311 and 124.3-124-.. See Deed, 7. ULTRA PETITA. 1.— New Matter Set up in Reply— Fail- i-RE to Demi-r or Object to Proof- Issues Joined — Estoppel. See Pleadinp. 7. ULTRA VIRES. -Joint Stock Company— Ultra Vires Con- tract — Consent Judgment on — Action TO Set Aside. See Company. 4. UPPER CANADA IMPROVEMENT FUND. See Constitutional Law, 20. USAGE. Sale of Goods by Sample — Delivery — Evidence of Trade Custom. See Contract, 12. And See Custom of Trade. USER. 1. — Constitutional Law — Navigable Waters— Title to Bed of Stream— Crown— Dedication of Public Lands BY — Presumption of Dedication — Obstruction to Navigation— Public Nuisance— Balance of Conveniences. See Constitutional Law, 1'). 2.— Roadway — Construction of Deed — Servitude — Art. 549 C C. See Deed, 8. " Easement, 3. 3.— Highway— Old Trails in Rupert's Land — Necessary Way — Substituted Roadway— Dedication— Evidence. See Crown, 3. " Highway, 3. 4.— Highway— Old Trails in Rupert's Land — Substituted Roadway — Dedica- tion by the Crown. See Dedication. USUFRUCT. Will— Construction of— Donation — Sub- stitution — Partition, Per Stirpes or Per Capita— Alimentary Allowances — Accretion Between Legatees. The late Joseph Rochon made his will in 18.-)2, by which he devised to his two sisters the usufruct of all his estate and the prop- erty therein to their children, naming Pierre Dupras, his uncle as his testamentary exe- cutor, and directing that his estate should 1)8 realized and the proceeds invested ac- cording to the executor's judgment, adding to these directions the words " enfin iilncer la masse liquide de ma succession A intf-rt't OH autrement, de la maniftre qu'il croiri le plus avantageux, pour en fournir les revenus a mes dites soeurs et conserver le fonds pour leurs enfants." and providing that these legacies should be considered as an alimen- tary allowince. and should be non-transfer- able and p-vcmpt from seizure. By a codicil in 1890 be appointed a nephew as his testa- meiitiiry oxocntnr in the place of the uncle, who had died, and declared:— " II sera de plus I'administrateur de mes dits biens 272 USURY— VENDOR AND PURCHASER. jus(jirjiu df'cfis <]e nies deux suL'urs usu- fniitifeii's, iionma'es dans nion dit ti'stameut, et jusQu'au partage dfitinitif de mes biens «'ntre mes hSritiers proiirifetaires, i-t il aura le.s pouvoirs cju'avait lo dit Pierre Uupras dans nion dit testament." Held, Gwyune. J., disseutiii^, that the tes- tamentary dispositions thus made did not create a substitution but constituted merely a devise of the usufruct by the testator to his two sisters and of the estate (subject to the usufruct), to their children, which took effect at the death of the testator. Held, also, that the charge of preserving the estate — " conserver le fonds " — imposed upon the testamentary executor could not be construed as iiiposing the same obligation upon the sisters who were excluded from the administration, or as having, by that term, given them the property subject to the charge that they should hand it over to the children at their decease, or us being a modification of the preceding clause of the will by which the property was devised to the children directly subject to the usufruct. Held, furthtT, that the proi)erty thus de- vised was subject to partition between the ■ children per capita and not per stirpes. Roltin v. D-uguay sxvii., 347 - USURY. I Building Societies — Participating Bor- \ ROWERS — Shareholders— C. S. L. C. c. r>S-42 & 43 Vic. (Q.» c. 32— Liquidation — Expiration of Classes — Assessments [ ON Loans — Notice of — Interest and : Bonus— Usury Laws— C. S. C. c. 58 — Art. 1785 C. C— Administrators and Trustees — Sales to — Prste-nom— Ar.T. 1484 C. C. See Building Society. VACATION. Appeal— Time Limit— Commencement of — Pronouncing or Entry of .Judgment— Security— Extension of Time— Order OF Judge— Vacation— R. S. C. c. 135, ss. 40. 42. 40. The delay of sixty days for appealing to the Supreme Court of Canada, prescribed by section 40 to the Suprenu' uid Exchequer Courts Act is not suspended during the vaca- tion of the court established by the rules. The yeirg Printing Co. v. Maerae et at.. xxvi.. 695 VENDITIONI EXPONAS. See Appeal, 50. •' Practice, 5. " Salo, 7. VENDOR AND PURCHASER. 1. — Sale of Land — Sale Subject to Mort- gage — Indemnity of Vendor — Special. Agreement — Purchaser Trustee for Third Party. L. E. agreed in writing to sell land to C. F. and others subject to mortgages there- on. C. V. to hold same in trust to pay half the proceeds to L. F. and the other half to himself and associates. When the agree- ment Avas made it was understood that a Minipany was to be formed to take the prop- erty, and before the transaction was com- pleted such company was incorporated and L. F. became a member, receivinj; stock as- part of the consideration for his transfer. C. F. tiled a declaration that he held the property in trust for the company, but gave no formal convoy.iace. An action havin? been brought against L. F. to recover in- terest due on a mortgage against the prop- erty. C. F. was brought in as third party to indemnify L. F.. his vendor, against a judg- ment in said action. Held, reversing the decision of the Supreme Court of Nova Scotii, T.-ischereau and King, .TJ.. dissenting, that the evidence showed that the sale was not to C. F. as a pur- chaser on his own behalf but for the com- pany, and the company and not C. F. was liable to indemnify the vendor. Fraser v. Fairbanks xxiii., 7i> 2. — Agreement to Pay Interest — Delay — Default of Vendor. Under a contract of purchase of real estate providing that " if from any cause what- ever," the purchase money was not paid at a specified time interest should be paid from the date of the contract the vendor is relieved from payment of such interest while the delay in payment is caused by the wilful default of the vendor in performing the obligations imposed upon him. A contract containing such provision also provided for the payment of the purchase mcmey on delivery of the conveyance to be prepared by the vendor. A conveyance was tendered which the vendee would not accept, whereupon the ven- dor brought suit for rescission of the con- tract which the court refused, on the ground that the conveyance tendered was defective. He then refused to accept the purchase money unless interest from the date of the contract was paid. In an action by the ven- dee for specific performance: HrUI. affirming the decision of the Court of Appeal, .hat the vendee was not ol)lige<1 to pay interest from the time the suit for rescission was begun as until it was decided VENDOR AND PURCHASER. '-73 the vendor was assertinp the failure of the contraet. and insisting that he had ceased to be bound by it, and alter the decision in that suit he was claiming interest to which he was not entitled, and in both cases the vendee was relieved from obligation to ten- der the purchase money. By the lerms of the contract the vendor was to remain in possession until the pur- cliase money was paid and receive the rents and profits. Held, that up to the time the vendor be- came in default the vendee, by his agree- ment. w:is precluded from claiming rents and profits and was not entitled to thorn after that time as he had been relieved from payment of interest and the purchase money had' not been paid. Hayes v. Elmsley xxiii., G23 3. — Contract of Sale — Interest Fayablb BY Purchaser — Delay — Duty to Pre- pare Conveyance. A person in possession of land under a contract for purchase by which he agreed to jiay the purchase money as soon as the con- veyances were ready for delivery and in- ttrest thereon from the date of the contract is not relieved from liability for such interest unless the vendor is in wilful default in carrying out his part of the agreement and the purchase money is deposited by the vendee in a bank or other place of deiwsit in an account separate from his general current account. The vendor is not in wilful default where ilelay is caused by the necessity to perfect the title ow.-ng to some of the vendors being infants nor by tendering a conveyance to which the vendee took exception but which was altered to his satisfaction while still in the hands of the vendors' agent as an escrow and before it was delivered. Fouruier and Taschereau. JJ., dissenting. A provision that the purchase money is to be paid as soon as the conveyance is ready for delivery does not alter the rule that the conveyance should be prepared by the pur- chaser. Fournier and Taschereau, JJ., dis- senting. Stevenson v. Datis xxiii., 029 4. — Sale of Land — Sale by Auction- Agreement AS TO Title — Breach of — Determination of Contract. W. bought property at auction signing on purchase a memo, by which he agreed to pay 10 per cent, of the price down and' the balance on delivery of the deed. The auc- tioneer's receipt for the 10 per cent, so paid B.C.D.— 18 Stated that the sale was on the understand- ing that a good title in fee simple clear of .xU encumbrances up to the tirst of the ensuing month was to be given to W., otherwise his deposit to be returned. After the date so specified, W., not having been tendered a deetl which he would accept, caused the ven- dor to be notified that he considered the sale oft' and demanded repayment of his deposit, in reply to which the vendor wrote that all the auctioneer had been instructed to sell was an equity of redemption in the property; that \V. was aware that there was a mort- gage on it and had made arrangements to assume it; that a deed of the c(iuity of redemption had been tendered to W.: and he was required to complete his purchase. In an action against the vendor and auc- tioneer for recovery of the amount deijosited by W.: Held, reversing the decision of the Supreme Court of Nova Scotia, that the vendor having repudiated the agreement, W., being entitled to a title in fee clear of encumbrance, and not bound to accept the equity of redemption, could at once treat the contract as rescinded and sue to recover his deposit. Wrayton v. Xaylor xxiv., 29o 5. — Sale of Timber— Delivery — Time for 1'aymext — I'remature Action. By agreement in writing I. agreed to sell and the V. H. L. Co. to purchase timber to be delivered " free of charge wiiere they now lie within ten days from the time the ice is advised as clear out of the harbour, so that the timber may be counted * * * Settle- ment to be finally made inside of thirty days in cash less 2 per cent, for the dimension timber which is at John's Island." Held, affirming the decision of the Court of Appeal, that the last clause did not give the purchaser thirty days after delivery for pay- ment; that it provided for delivery by ven- dor and payment by purchasers within thirty days from the date of the contract; and that if purchasers accepted the timber after the expiration of thirty days from such date, an event not provided' for in the contract, an action for tlie price could be brought imme- diately after the acceptance. Victwia Harbour Lumber Cu. v. Jrnhi. xxiv.. i;()7 0. — Agreement for Sale of Land — Objection to Title — 'Waiveu— Lapse OP Time — Will— Devise — Defeasible Title — Rescission. An agreement for the sale and purchase of land contained the provision that the vendor should examine the title at his own expense 274 VENDOR AND PURCHASER. and hare ten days from the date of the ayrpeniont for that purpose, and should be •' deemed to have waived all oVijections to title not raiseil within th;it time." Upon the investigation of the title by the purchaser it appeared thit the vendors derived title through one P. a purchaser Troiii one B. S., a devisee under a will by which the land in question was devised by the testatrix to her daughter the said B. S. and certain other land to another daughtet; the will contained the direction that " if either daughter should die without lawful issue the part and por- tion of the deceased shall revert to the surviving daughter," ajid a gift over ni case both daughters should die without issue. At the time of the agreement B. S. was alive and had children. An objection was taken to the title but not within the ten days from the date of the agreement. The purchasers brought a suit for specific performance of the contract. Held, reversing the judgment of the court below, that although B. S. took an estate in fee simple subject^to the executory devise over in case she should die without issue living at her death, inasmuch as the pur- chaser would get a present holding title accompanied' by possession, the objection taken did not go to the root of the title and was one to which effect could not be given, not having been taken within the time limit- ed by the agreement. Armstrong et al. v. Nasert.v in the thing sold is reserved to the vendor is a valid condition. In order to give movable property the character of immovables by destination, it is necessary that the person incorporating the movables with the immovable should he, at the time, owner both of the movables and of the real property with which they are so in- corporated. Lainv v. Bcland (2fi Can. S. C. II. 419>, and FiUatraidt v. OoUie (Q. R. 2 Q. B. 3fi8), distinguished. Decision of the Court of Queen's Bench affirmed, Girouard. J., dissenting. L' Banque d'Hochela{ia v. The Wateroua En- g; -^ vVork8 Co xxvii., 406 10.— Principal and Agent— Mistake— Con- tract — Agreement for Sale- of Land — Agent Exceeding Authority — Specific Performance — Findings of Fact. Where the owner of lands was Induced to authorize the acceptance of an offer made by a proposed purchaser of certain lots of lautl through an inc-orrect representation made to her and under the mistaken ifnpression that the offer was for the purchase of certain swamp lots only whilst it actually included sixteen adjoining lots in addition thereto, a contract for the sale of the whole property made in conse(iuence by her agent was held not binding upon her and was set aside by the Court on the ground' of error, as the parties were not ad idem as to the subject matter of the contract and there was no actual consent by the owner to the agree- ment so made for the sale of her lauds. Hurray v. jDikins xxviii., .">0o 11. — Sale of Leased Premises — Termina- tion OF Lease— Damages— Art. 1(503 C. C. The Court of Queen's Bench for Lower Canada (Q. R. 7 Q. B. 293>, reversed the decision of the trial court, and held; that the purchaser of real estate, to be delivered forthwith, could not require the vendor to eject the tenants, the existence of leases being no impediment to immediate delivery of the premises sold, and every sale being subject to existing leases up to the time of the expiration of the current term, and further, that, if the purchaser refused to carry out the agreement for sale on the ground of the existence of such leases, he could not have the sale set aside iresciUee), with damages against the vendor. On appeal, ihe Supreme Court of Canada affirmed the judgment appealed from for the reasons stated in the Court of Queen's Bench, Q. R. 7 Q. B. 293, and dismissed the appeal with costs. Alley V. The Canada Life Assurance Co., 14th June, 1898 xxviii., G08 l^o_ _ Contract — Rescission — Innocent Misrepresentation— Common Error- Sale of Land— Failure of Consider- ation. An executed contract for the sale of an interest in land will not be rescinded for mere innocent misrepresentation. But where, by error of botli parties and without fraud or deceit, there has been a complete failure of consideration a Court of Equity will rescind the contract and comf)el the vendor to return the purchase money. Thus where, on the sale of a mining claim, it turned out that the whole property sold 276 WAIVER— WARRANT. was inohuk'd in prior claims whereby the pur'-haser K'>t nothing for his money the con- tract was rescinded though the vendor acted in good faith and the transaction was free from fraud. Cole V. Pope xxix., 291 12. — TiTi^E TO Land — Agreement to Con- vey Land— Title under Will— Ke- STRiCTioN — Part Performance — Special Legislation— Compliance with Terms of. See Specific Performance, 1. 13. — Contract of Sale— Contre Lbttre — .Absolute Sale— Deed for Security — Principal and Agent. Sec Contract, 13. 14. — Purchaser of Lease for Lives — Registry Act — Protection. See Lease, 1. 15. — Property, Real and Personal — Im- movables BY Destination — Movables Incorporated with Freehold — Sever- ance from Realty — Contract — Resolu- tory Condition — Conditional Sale— Hypothecary Creditor — Unpaid Ven- dor— C. C. Arts. 379, 2017, 2083, 2085, 2089. See Contract, 30. IC— Deed — Construction op — Title to Lands — Ambiguous Description — Evidence to Vary or Explain Deed — Possession — Conduct op Parties — Presumptions from Occupation of Premises— .Arts. 1019, 1238, 1242, 1473, 1599 C. C.-47 Vic. c. 87, s. 3 (D.); 48 & 49 Vic. c. 58, s. 3 (D.)-45 Vic. c. 20 (Q.) See Deed, 0. 17.— Sale of Leased Premipes- Termina- tion op Lease — Art. 1GG3 C. C— Damages. See Lease, 4. 1. — Title to Land — Objections to Title. A purchaser who takes possession of the property and exercises acts of ownership by making repairs and improvements, will be hold to have waived any objections to the title. Objections to title cannot bo raised where the purc>'aser has made a tender of a blank deed of mortgage for execution for the pur- pose of carrying out the purchase. Wallace et al. v. Hesslein et al., 21st Nov., 1898 xxix., ilJ 2. — Life Insurance— Condition in Policy- Payment OF Premium by Note — Renewal of Note— Demand op Pay- ment after Dishonour. See Insurance, Lite, 1. 3. — Insurance against Fire— Mutual In- surance Company — Contract — Ter- mination OF — Notice— Statutory Co.v- ditions — R. S. O. (1887) c. 107 — Estoppel. See Insurance, Fire, 4, 4. — Debtor and Creditor — Composition and Discharge — Acquiescence in- New Arrangement op Terms op Settlement — Waiver of Time Clause — Principal and Agent — Deed of Discharge — Notice of Withdrawal FROM Agreement — Fraudulent Pre- ferences. See Debtor and Creditor, 8. 5. — Fire Insurance — Conditions of Policy — Breach — Recognition of Existing Risk after Breach — Agent's Au- thority. See Contract, 31. " Insurance, Fire, G. " Principal and AgtJt, 8. WARRANT. 1.— Criminal Code, s. 57.">— Persona Desig- NATA — Officers de Facto and de Jure — " Chief Constable " — Confiscation OP Gaming Instruments, Moneys, Etc. — Ministerial Officer. A warrant issued under s. 575 of the Criminal Code to seize gaming instruments would be good if issued on the report of a person who filled de facto the office of " de- puty high constable," though he was not such de jure. O'A'etl V. The Attorney-Oeneral of Canada, xxvi., 122 2.— Form in Statute— Canada Temper- ance Act— Search Warrant — Magis- trate's .Jurisdiction — Constable — Justification of ^Itntsterial Officer — .TiTDGMENT Inter Partes. See Canada Temporance Act, 2. " Res .Judicata. 7. " Search Warrant, 1. WARRANTY— WATERCOURSES. 277 WARRANTY. 1. — Action in Warranty — Proceedings Taken by Warrantee before Judg- ment ON 1'rincipal Demand. It is only as regards tho principal action that the action in warranty is an incidental demand. Between the warrantee and the warrantor it is a principal action, and may be brought after judgment on the principal action, and the defendant in warranty has no interest to object to the manner in which he is called in where no question of juris- diction arises and he suffers no prejudice thereby. But if a warrantee elect to take proceed- ings against his warrantors before he has himself been condemned he does so at his own risk, and if an unfounded action has been taken against the warrantee, and the warrantee does not get the costs of the ac- tion in warranty included in the jtidgment of dismissal of the action against the prin- cipal plaintiff, he must bear the conse- quences. Archbald v. deLisle. Baker r. deLisle. Motrat V. deLisle xxt., 1 2.— Action of — Proceedings en Garantie — Assessment of Damages — Questions of Fact. The Supreme Court will not interfere with the amount of damages asssessed by a judg- ment appealed from if there is evidence to support it. In cases of Jelit or quam-delit a warrantee may before condemnation take proceedings «!• (inrantie, and the warrantor cannot object to being called into the principal action as a defendant en garantie. ArchibaUl v. deLisle <2-i Can. S. C. R. 1), followed. The Montreal Gas Co. v. St. Laurent. The City of St. Henri v. St. Laurent, xxvi., 17G 3.— Suretyship — Recourse of Sureties inter se — Ratable Contribution — Action of Warranty — Banking— Dis- charge OF Co-surety— Reserve of Recourse — Trust Funds in Possession OP A Surety— Arts. 1156, 1959 C. C. Where one of two sureties has moneys in his hands to be applied t<^wards payment of the creditor, he may be compelled by his co-surety to pay such moneys to the creditor or to the co-surety himself, if the creditor has already been paid by him. When a creditor Has released one of sev- eral sureties with a reservation of his re- course against the others and a stipulation against warranty as to claims they might have against the surety so released by rea- son of the exercise of such recourse re- served, the creditor h.'is not thereby rendered himself liable in an action of warranty by the other sureties. Macdonald v. Whitfleld. M'hitfleld v. The Merchants Bank of C<^nada, xxvii., 94 4. — Title to Lands — Impeachment by j Warrantor. I The grantee of the warrantors of a title I cannot be permitted to plead technical ob- ■ jection thereto in a suit with the person to I whom the warranty was given. I Poirell V. Wattera . . . . . . . xxviii., 133 \ 5.— Sale of Deals— Quality— Breach of Contract — Place of Delivery — . Acceptance. See Contract, 3. G.— Special Tax— Local Improvements- Ex Post Facto Legislation — War- ranty. See Municipal Corporation, 23. " Vendor and Purchaser, 7. And see Conditions and Warranties. WATERCOURSES. 1.— Municipal Corporation— Assessment- Extra Cost of Works— Drainage— R. S. O. (1877) c. 174— 4fi Vie. c. 18 (Ont.)— By-law— Repairs — Misapplication or Funds— Negligence — Damages — Inter- municipal Works. Where a sum amply siiflBcient to complete drainage works as designed and authorized by the by-law for the complete construction of the drain has been paid to the munici- pality which undertook the works, to be ap- plied towards their construction, and was applied in a manner and for a purpose not authorized by their by-law, such municipal- ity cannot afterwards by another by-law levy or cause to be levied from the contributors of the funds so paid any further sum to re- place the amount so misapplied or wasted. The Toicnship of Somhra v. The Toirnnhip of Chatham xxviii., 1 278 WATER LOTS— WILL. 2. — Adjoining Proprietors of Land — Different Levels— Injury by Surface Water — Watercourse— Easement. O. and S. were adjoining proprietors of laud in the Village of Frankford, Out., that of O. being situate on a higher level than the other, In 1875 iniitrovenients were made to a drain discharging upon the premises of S., and a culvert was made connecting with it. In 1887, S. erected a Imilding on his land and cut off the wall of the culvert which projected over the line of the street, which resulted in the flow of water through it being stopped and backed up on the land of O., who brought an action against S. for the damage c.qused thereby. Ileld. that 8. having a right to cut off the part of the culvert which projected over his laud was not liable to O. for the damage so caused, the remedy of the latter, if he had any, being against the municii)ality for not properly maintaining the drain. Ostrom v. ,S'i7/s ct al xxviii., 485 And ace Drainage. WATER LOTS. !■— Filling in — " Buildings and Erec- tions " — •• Improvements " — •' Lessor and Lessee. See Lessor and Lessee, 2. 2. — Crown Grants — Title to Bed of Navigable Waters— Dedication— User — Obstruction to Navigation — Nuisance. See Constitutional Law, 15. " Navigable Waters. "WATER RATES, City of Toronto — By-law — Discbimina- Tio.N in Hates— Government Build- ings. See Municipal Corporation, 11. WATERS CANADIAN. 1.— Three-mile Limit — Fishing Within— License — Forfeiture — Burden of . Proof— R. S. C. c. 93. s. 3. See Fisheries. 1. 2. — Canadian Waters— Property in Beds — Public Harbours — Erections in Navigable Waters — Interference with Navigation — Right of I'-ishing- Power to Grant— Riparian Proprie- tors—Great Lakes and Navigable Rivers— Operation of Magna Chabta —Provincial Legislation— R. S. O. (1887) c. 24, s. 47— ."> Vie. lO.) c. 10, ss. 5 to 13, ID and 21— R. S. Q. Arts. 1375 to 1378. See Constitutional Law, 17. 3.— Treaty of 1818 — Construction of — Fisheries — Three-mile Limit — Con- struction of Statutes — 51) (Jeo. HI., c. 38 (Imp.»— R. S. C. c. 94 and c. !».5— " Fishing " — Foreign Fishing Vessels. iSee Fisheries, 3. WATERWORKS. Municipal Corporation — Waterworks — Extension of Works — Repairs— By- law — Resolution — Agreement i.n Wp.iting— Injunction — Highways and Streets— R. S. Q. Art. 4485— Art. 1033a C. C. P. See Municipal Corporation, 31. WIIiL. 1. — Construction of — Division of Estate — Right to 1'ostpone. T. F. F. who, in partnership with his brother J. F., carried on business as manu- facturers of l)oots and shoes in ilontreal, by his last will left all his property and es- tate to be equally divided between his two brothers, il. W. F., the appellant, and J. F., the respondent. The will contained also the following provision: — But it is my ex- press will and desire that nothing herein con- tained shall have the effect of disturbing the business now carried on by my said brother Jeremiah and myself, in co-partnersliii) un- der the name and firm of Fogarty iS: Brother, should a division be requested between ihe said Jeremiah Fogarty and Michael William Fogarty, should the latter not be a member of the firm, for a period of five years, com- puted from the day of my death, in order that my brother, the said .Teremiah Fogarty, may have ample time to settle his business and maki> the division contemplated between them and the said Michael William Fogarty, and in the event of the death of either of them, then the whole to go to the survivor. T. F. F. died on the 29th April. 1SS9. On the 30th April. 18S9. a statement of the aft'airs of the firm was made up by the hook- keciier, and J. W. and M. W. F., having agreed upon such statement, the balance shown was equally divided between the parties, viz., .$24.14(!..34 being carried to the credit of ^I. W. F.. in trust, and !R24.14i'..n4 being carried to J. F.'s general account in the books of the firm. At the foot of the WILL. 279 statcniont a memo, dntctl 12th June, 1889, was sijrncd hy both partii's, di-claring that the said amount had that day been distri- buted to them. Ou the (ith March, 1890, M. W. F. brought an action against J. F., claiming that ho was entitled to .524,14(!.;M, with interest, from the date of the division and distribution, viz., 3()th April, 1889. J. F. pleaded that under the will ho was en- titled to postpone payment until five years from the testator's death, and that the action was premature. riehh affirming the judgment of the court below, that J. F. was entitled under the will to five years to make the division contem- plated, and that ho had not renounced such right by signing the statement showing the amount due on the .'50th April, 1889. Fognrty v. Fo' estate of J. S. being absolute, and that of T. G. subject to an executory devise over in case of death at any time and not merely during the lifetime of the testator. Coiraii v. Allen [2G Can. S. C. R. 292t, followed. Held, also, that the word " equal " indi- cated the respective shares which the two devisees were to take in the area of the prop- erty devised and not the character of the estates given in those shares. Frasei- v. Fraser xxvi., 310 12. — Will, Construction of — Dhath With- out Issue — Executory Devise over — Conditional Fee — Life Estate — Estate Tail. A testator died in 1S.")0 having previously made his last will, divided into numlu'ved paragraphs, by which he devised his prop- erty amongst certain of his children. By the third clause he devised lands to his son F. on attaining the age of 21 years — "' giving the executors power to lift the rent, and to rent, said executors paying F. a., former rents due after my decease up to his attain- ing the age of 21 years." and by a subsequent clause he provided that " at the death of any one of my sons or daiighters having no issue, their property to be divided equally among the survivors." F. attained the age of 21 years and died in 1803, un- married and without issue. Hrhl. that neither the form nor the language used in the will would authorize a departure from the general rule as to con- struction according to the ordinary srram- matical meaning of the words used by th«^ WILL. 28j testator, and that, as there would be no ab- surdity, repugnauce or inconsistency in such a construction of the will in question, the subsequent clause limiting the estates be- queathed by an executory devise over must be interpreted as referring to the property devised to the testator's sons and daughters by all the preceding clauses of the will. Held, further, that the gift over should bo construed ns having reference to failure of issue at the death of the first devisee who thus took an estate in fee subject to the executory devise over. Ciairford et al. v. Broddy ct o/. . . xxvi., 34."> Testamentary 13.— AViLL — Execution of • Capacitt. A testate t' was suffering from a disease wiiich had the effect of inducing drowsiness or stupor during the time he gave the in- structions for drafting, and when he exe- cuted his will, but as the evidence showed that he thoroughlj' understood and appre- ciated the instructions he was giving to the draftsman as to the form his will should take and the instrument itself when subse- quently read over to him, it was held to be a valid will. McLaughlin v. ilcLeVan ct al. . . xxvi., (j4G 14. — Undue Influence — Evidence. In order to set aside a will on the ground that its execution was obtained by undue influence on the mind of the testator it is not sufficient to show that the circumstances attending the execution are consistent with the hypothesis that it was so obtained. It must be shown that they are inconsistent with a contrary hypothesis. Adams v. McBeath xxvii., 13 1.". — Construction of — Donation — Substi- tution—Partition. Per Stirpes or Per Capita — Usufruct — Alimentary Allowance — Accretion Between Leg- atees. The late Joseph Rochon made his will in 1S.")2 by which ho devised to his two sisters the usufruct of all his estate and the prop- erty therein to their children, naming Pierre Diipras, his uncle, as his testamentary exe- cutor, and directing that his estate should be realized and the proceeds invested according to the executor's judgment, adding to these directions the words " enfin placer la masse liquide de ma succession ft inten't on autrc- ment, de la mani^re qu'il croira le plus avan- tageaux, pour en fournir les revenus ft mes- dites soeurs et conserver le fonds pour leurs eiifants," and providing that these legacies should be considered as an alimentary allow- ance and should be non-transferable and exempt from seizure. By a codicil in 18!K> he appointed a nephew as his testamentary executor in the place of the uncle, who had died, and declared: — " II sera de plus I'admin- istrateur de mes dits biens jusqu'au d§c6s de mes deux soeurs usufruitfires, nominees dans mon dit testament, et jusqu'au partage- definitif de mes biens entre mes hC'ritiers pro- priCtaires, et il aura les pouvoirs qu'avait le dit Pierre Dupras dans mon dit testament." Held. Gwynne, .T.. dissenting, that the tes- tamentary dispositions thus made did not create a substitution, but constituted merely a devise of the usufruct by the testator to his two sisters and of the estate (subject to- the usufruct), to their children, which took effect at the death of the testator. Held also, that the charge of preserving the estate " conserver le fonds "—imposed upon the testamentary executor could not be con- strued as imposing the same obligation upon the sisters who were excluded from the ad- ministration, or as having, by that term, given them the property subject to the charge that they should hand it over to the children at their decease, or as being a modification of the preceding clause of the will by which the property was devised to the children directly, subject to the usufruct. HrUl, further, that the property th'is devised was subject to partition between the children per capita and not p'-r gtirpcs. Robin V. Dugiiay xxvii., 31 ( 16.— Will — Sheriff's Deed — Evidence — Proof of Heirship — Rrjectiox 01=* Evidence — New Trial — Champerty— ^Maintenance. A will purporting to convey all the testa- tor's estate to his wife was attacked for un- certainty by persons claiming under alleged heirs-at-law of the testator and through con- veyances from them to persons abroad. The courts below held that the will was valid. Hrlif, affirming such decisions, that as the evidence of the relationship of the alleged grantors to the deceased was only hearsay and the best evidence had not been adduced: that as the heirship .at law was dependent upon the alleged heir havinir survived his father and it was not established and the court would not presume that his father had died before him: and that as the persons claiming under the will had no informatiot> 284 WILL. as to the identity of the parties in interest who were represented in the transactions by men of straw, one of whim was alleged to be a trustee, and there was no evidence as to the nature of Iiis trust, anil there was strong suspicion of the existence of champerty or maintenance on the part of the persons attacking the will, the latter had failed to establish the title of the persons under whom they claimed and the appeal should be dis-' missed. May V. Lopie xxvii., 443 17. — Statute — Coxstructiox of — Estates Tail, Acts Abolishing — R. S. N. S. (1 SER.) c. 112— K. S. N. S. (2 SER.) c. 112— R. S. N. S. (3 SER.) c. 111—28 Vic. c. 2 (N. S.)— Executory Devise over — Dying without Issue — " Lawful Heirs " — " Heirs of the Body " — Estate in Remainder Expectant — Statutory Title— II. S. N. S. (2 ser.) c. 114, ss. 23 & 24— Title by Will— Con- veyance BY Tenant in Tail. The Revised Statutes of Xova Scotia. 1851(1 «er.) e. 112, provided as follows: " All estates tail are abolished, and every estate which would hitherto have been adjudged a fee tail shall hereafter be adjudged a fee simple; and. if no valid remainder be limited thereon, shall be a fee simple absolute, and may be conveyed or devised by the tenant in tail, or otherwise shall descend to his heirs as a fee simple." In the revision of lS.o8 (R. S. N. S. 2 ser. c. 112i. the terms are identical. In 18G4 (R. S. X. S. 3 ser. c. Ill) the provision was changed to the following: " All estates tail on which no valid remainder is limited are abolished, and every such estate shall Tiereafter be adjudged to be a fee simple absolute, and may be conveyed or devised by the tenant in tail, or ot! erwise shall descend to his heirs as a fee & niple." This latter statute was repealed in 1305 (28 Vic. c. 2) when it was provided as follows: " All estates tail aie abolished and every estate which tail shall hereafter be adjudged a fee "hitherto would have been adjudged a fee simple and may be conveyed or devised or descend as such." Z.. who died in 1850. by Tiis will, made in 1857. devised lands in Nova Scotia to his son. and in default of lawful Tioirs. with a devise over to other relatives, in the course of descent from the first donee. On the death of 7j., the son took possession of the property as devisee under the will, and lield it until ISOL when he sold the lands in (The AVindiug-up Act), if the powers of the directors are not continued as provided by s. 34 of the Act their fiduciary relations- to the company or its shareholders are at an end and a sale to them by the liquidator of the company is valid. Chatham National Bank v. ilcKeen, xxiv., 348- 3. — Moneys Paid Out op Court — Order. Made by Inadvertence — Jurisdiction TO Compel Repayment — R. S. C. c. 129, ss. 40, 41, 94 — Locus Standi of Re- ceiver-General — 55 & 56 Vic. c. 28, s. 2 — Construction op Statute. The liquidators of an insolvent bank passed their final accounts and paid a balance, re- maining in their hands, into court. It ap- peared that by orders issued cither thro'igb error or by inadvertence the balance so do- posited had been paid out to a person who was not entitled to receive the money, and the Receiver-General for Canada, as trustee of the residue, intervened and applied for art order to have the money repaid in order to be disposed of under the provisions of the Winding-up Act. Held, affirming the decision of the Court of Appeal for Ontario, that the Receiver- General was entitled so to intervene although the three years from the date of the deposit mentioned in the Winding-up Act had not expired. ITeJd. also, that even if he was not so en- titled to intervene, the provincial courts had jurisdiction to compel repayment into court of the moneys improperly paid out. Hoijaboom v. The Rcceirer-Genr^-al of Canadn. In re The Central Bank of Canada, xxviii., 19? 286 WITNESS—WRIT. •4.— Appeal in Windino-up PRocEErTNGS — Amount in Controversy — Joint or Separate Liability — Jurisdiction — contributories. Bee Appeal, 31. 5.— Stock Subscriptions — Surrender — Forfeiture — Dlty of Directors — Cancellation of Shares — Contribu- tories — Irregular Organization — Ultra Vires—" The Companies Act." 8€€ Company, 8. " rieadiiiR, 9. " Statute. 44. <5. — Building Society in Liquidation — Administrators and Trustees — Sales to — XuLLiTT OF Transfer — Art. 1484 C. C— Practice. See Buildinjr Society. WITNESS. 1- — Agreement to Charge Lands — Sta- tute OF Frauds — Registry. See Mortgage, 5. " Notice, 1. " Registry Laws, 2. WORDS AND TERMS. See Terms, Interpretation of. WRIT. 1. — Op Venditioni Exponas — Sale of Prop- erty Under — Order of Court or Judge for. See Practice, 5. (( APPENDIX A. Cases decided on appeal to the Supreme Court of Canada during the years 1893-1898, which have not been reported or referred to in the fore- going digest. A. Adams v. Townshend. Appeal allowed with costs, but without prejudice to the plaintiff's right to raise the same questions in an action instituted for the purpose ot taking partnership accounts. Taschereau, J., dissented, be.ng of opinion that the appeal should be dismissed with costs. 31st May, 1804. B. Bank of Montreal v. Demers. Motion to quash on ground that circumstances on which special leave was granted were not shewn in the order granting special lea.e to appeal, dismissed with costs. Motion to stay proceedings pending appeal to Privy Council granted with costs {Eddy v. Eddy, p. 23, aiiie. followed). 7th March, 1899. vol. xxix. Brierly v. The Toronto, Huron & Bruce liailway Co. On motion for the dismissal of a motion for leave to appeal from the Court of Appeal for Ontario, no counsel appeared to support the motion on the day for which notice thereof had been given. The motion was dismissed with costs. 13th May, 1898.. Buhner v. Town of Westmount. Appeal dismissed without costs. 14th June, 1898. Byron v. Tremaine. Appeal dismissed with costs. 14th December, 1898, xxix. C. Canadian Pacific liailway Co. v. Conmee. On motion on behalf of the appellant and by consent of the respondent, judgment was entered varying the decision of the court appealed from in the terms of consent minutes filed. 22nd March, 1893. G. Guest V. Diack. Appeal dismissed with costs. 14th June, 1898. I. Indian Claims, In re: Ontario v. Dominion of Canada and Province of Quebec. Appeal by the Province of Quebec as to payment of contingent an- nuities to Indians awarded by the Arbitrators, under former decisini (pp. 53 and 2iM). ante), dismissed. 7th October, 1898. Insurance Co. of North America v. McLeod. Appeal allowed with costs in Supreme Court of Canada, and in the Supreme Court of Nova Scotia; new trial granted on payment of the costs of the former trial by the appellant, within thirty days, other- wise appeal to stand dismissed with costs. 21st Novembi'r, 1898. xxix. M. Maguire v. Hart. Appeal from Supreme Court of Nova Scotia (29 N. S. Rep. 181), dis- missed with costs, xxviii.. 272. 7th June, 1897. Marcotte v. La Banque Nationale. Appeal dismissed with costs. 15th May, 1898. Montreal Gas Co. v. Gaffney. Appeal dismissed with costs. 5th October, 1898. 28i> APPENDIX "A." Murray v. Jones. Appeal dismissed with costs by consent of parties upon settltmeut effected dui-'ug hearing. 2nd April, ISOo. N. National Fire Insurance Co. v. Bernard. Appeal dismissed with costs for reasons given in court appealed from. Uth May. ISUS. Nova Scotia Marine Insurance Co. v. Eisenhauser et al. On -Ith May, 18U3, an appeal was dismissed in this case on the ground that it was premature, and that no appeal could lie until after a new trial which had been ordered. The case came up subsequently ou appeal from a tinal judgment and the decision is noted al p. 144, ante. P. rage V. The Attorney-General of Ontario. By consent of parties an order was made modifying the judgment appealed from. liSth October, 1890. Peterborough, Town of v. Mason. Appeal dismissed with costs, uth March, 1890. Q. Queen, The. v. O'Neill & Campbell. Appeal allowed in part without costs, the judgment of the Excheqne" Court of Canada being reduced from ^37,827.37 to $30,954.83, and the cross-appeal being dismissed with costs. 15th June, 1897. Queen, The, v. Roche. Appeal allowed in part, the judgment of the Exchequer Court cf Canada being reduced by a number of items amounting together to !i;22,028.20. 8th May, 1895. R. Raphael v. Maclaren. On 20th February, 1898, after hearing counsel for both parties the court advised an amicable settlement between the parties, which failed, and on 0th May, 1898, judgment on the merits was delivered, allowing: the appeal in part; declaring that interest should run upon the amount of $1,555.93 from the date of action, and that all costs of both, parties in all the courts should be paid by the respondents out of the trust fund in their hands. Rt'id V. McCurry. Appeal dismissed with costs. Gth May, 1898. S. Sheets v. Tait. Appeal dismissed with costs. 13th October, 1S96. T. Taylor v. Foy. Appeal dismissed with costs. 4th March, 1896. Troop V. Everett. Appeal dismissed with costs. 9th October. 1894. W. Wallace v. Wiswell. Appeal dismissed with costs, no one appearing when the case was- called for hearing. 7th Nov., 1894. Warminton v. Town of Westmount. Appeal dismissed without costs. 14th June, 1898. Williams v. Bartling. Appeal allowed and new trial ordered with costs. 6th November, 1894.. Y. York, County of, v. Chapman. Appeal dismissed with costs, Gwynne, J., dissenting. 24th June, 1893.. APPENDIX "B." List of Cases carried to the Judicial Committee of Her Majesty's Privy Council on appeal from the Supreme Court of Canada, between 1st July, 1893, and 24th February, 1899. Adamson v. Rogers (2»! Can. S. C. R. 159), leave refused. Allan V. City of Montreal (23 Can. S. C. R. 390), leave refused. Attorni'v-General of Canada v. The Provinces of Ontario, Quebec and Nova Scotia (20 Can. S. C. R. 444), varied (1898) A. C. 700. Attorney-GeLeral of Canada v. City of Toronto (.23 Can. S. C. R. 514), leave refused, Canadian (Jazettie, vol. 21, p. 414. B. Boulton v. Shea (22 Can. S. C. R. 742), leave refused, Canadian Gazette, vol. 23. p. 298. Bropliv V. Attorney-General of Manitoba (22 Can. S. C. R. 577), varied (1895) A. C. 202. C. Cadieux v. Montreal Gas Co. (28 Can. S. C. R. 382), affirmed (1898) A. C. 718. • Canada Sujrar Refining Co. v. The Queen (27 Can. S. C. R. 395), affirmed (1898) A. C. 735. Canadian Pacific Railway Co. v. Township of Chatham (25 Can. S. C. R. (!0S), leave refused. Charlebois v. Delap (2t> Can. S. C. R. 221), reversed as to consent judg- ment, Can. Gazette, vol. 31, p. 11. Cooper v. The Molsons Bank (2(! Can. S. C. R. Gil), affirmed. Can. Gazette, vol. 30, p. StJl. Davies v. McMillan (ante p. 113. 122, 192), dismissed, non pros. Dominion Cartridge Co. v. Cairns (28 Can. S. C. R. 3G1), leave refused. E. I'^ducation in Manitoba, In re Statutes respecting (22 Can. S. C. R. 577), varied (1895) A. C. 202. P. Ferguson v. Troop (17 Can. S. C. R. 527), leave refused. Fisheries Case (2G Can. S. C. R. 444). varied (1898) A. C. 700. S.C.D. — 19 290 APPENDIX "B." 6. Gerow v. British American Assurance Co. (IG Can. S. C. R. 524 1, leave refused. Grand Trunk Railway Co. v. Beaver (22 Can. S. C. R. 448), leave refused. Can. Gazette, vol. 23. p. 320. Grand Trunk Ry. Co. v. Washington (28 Can. S. C. R. 184), afflrmi'd. Can. Gazette, vol. 30, p. 543; vol. 31, pp. 343, 415; vol. 32, p. 514. H. Hamel v. Leduc (Nicolet Election Case), (29 Can. S. C. R.), leave refused. Hayes v. Elnisley (23 Can. S. C. R. 025), leave refused. Hoggan V. Esquimault & Xanainio Railway Co. (20 Can. S. C. R. 235), affirmed (1894) A. C. 429. Huson V. Township of South Norwich (24 Can. S. C. R. 145), see " Pro- hibitory Liquor Acts " case infra, affirmed. Indian Claims Case (25 Can. S. C. R. 434), affirmed. Can. Gazette, vol. 28, D. 272. L. Lemoine v. The City of Montreal (23 Can. S. C. R. 390), leave refused. London & Canadian Loan & Agency Co. v. Duggan (20 Can. S. C. R. 481), reversed (1893) A. C. 506. Manitoba Acts respecting Education, In re (22 Can. S. C. R. 577). varied (1S95) A. C. 202. Mackenzie v. The Building and Loan Association (28 Can. S. C. R. 407). leave refused. :McLoan v. Stewart (25 Can. S. C. R. 255), varied. Meloche et al. v. Simpson et al. (29 Can. S. C. R.), leave refused. Mayl 1899. X. Nicolet Election Case (29 Can. S. C. R. 178), leave refused. North Shore Railway Co. v. City of Quebec (27 Can. S. C. R. 102), affirmed Can. Gazette, vol. 31, p. 11. Nova Scotia, Province of. et al., v. Dominion of Canada (2G Can. S. C. R. 444), varied (1898) A. C. 700. O. Ontario & Quebec v. Dominion of Canada (26 Can. S. C. R. 444), varied (1898) A. C. 700. Prohibitory Liquor Acts (24 Can. S. C. R. 170), reversed (1896) A. C. 348. Petrolea, Town of, v. Johnston, leave refused, Can. Gazette, vol. 30, p. 585. Quebec, Ontario, etc., t. Dominion of Canada (26 Can. S. C. R. 444), varied (1S98) A. C. 700. APPENDIX "B. =9» Raleigl., Township of. v. Williams (21 Can. S. C. R. 103). reversed (1893) ^ Ro^^v. The Queen (25 Can. S. C. R. 504). affirmed. S. St. Louis T. The Queen (25 Can. S. C. R. 649), leave refused. T. Toronto, City of, v. Toronto Railway Co. (27 Can. S. C. R. G40). leave ^^''S;nto, City Of, V. Virgo (22 Can. S. C. R. 447. a^med (1890) A C ^ Toronto Street Railway Co. v. The Queen (2o Can. b. C. R. J4), reversed (1S90) A. C. 551. U. Union Bank of Canada v. O'Gara (22 Can. S. C. R. 404), dismissed, non pros, Can. Gazette, vol. 24, p. 224. V. Vancouver, City of, v. The Canadian Paeific Railway Co. (23 Can. S. C. R. 1), leave refused, Can. Gazette, vol. -3, p. 6W. APPENDIX List of Cases Specially Noticed. Allen V. Flood (|18!KS] A. ('. 1; 14 T. L. It. V2'>), discussed. Sec Trade UXION. Anderson. Doe d. v. Todd (2 U. C. Q. B. 821. followed. See Statute of Mortmain; Will, 3. Arclil.ald v. deLisle (2.' Can. S. C. R. 1), followed. See Warranty. 2. Arehilmid v. Ilnbley (18 Can. S. C. II. llCl, distinnuished. See Assign- ment. 1; Chattel Mortgage. .'>. Archibald v. Huhley (18 Can. S. C. R. 11»>», followed. See Chattel Mortgage, 1. Arnislidn>; v. Henistreet (22 O. R. .'iUfS) overruled. See Fraudulent Preferences, 4: Insolvency, 3. Arpin v. The Queen (14 ('an. S. C. R. 736), distinguished. See Appeal. 37. Attorni'y-tJeneral of B. C. v. Attornej-CJeneral of ('anadi (14 App. Cas. 2[)">;. commented on and distinguished. See Res .Judicata, 2. Attorney-General of Quebec v. The Queen Ins. Co. (3 App. Cas. WM), dis- tinguished. See Constitutional Law, 12; License, 1. Attorney-CJeneral of Nova Scotia v. Sheraton (28 N. S. Rep. 492), approved and followed. See Lease, 2; Mines, 1. Bain v. Anderson et al. (24 Ont. App. 11. 2))(!), affirmed. See Master AND Servant, 13. Bank of Toronto v. liambe (12 App. Cas. .")"')), followed. See Constitu- tional Law. 12: License, 1. Bank of Toronto v. Les Cure, etc., de Ste. Vierge (12 Can. S. C. R. 2.'>), followed. See Appeal, 20. Bank of Toronto v. Terkins (8 Can. S. C. R. {)03). distinKulsUed. See Debtor and Creditor, 5. Barrett v. City of Winnipeji ([1802] A. C. 44.")). followed. See Constitu- tional Law. 3. Bate V. Canadian Pacific Railway Co. (l.l Ont. App. R. 388), distingnished. See Railways. 8; Statute. 19. Bissonnette v. Laurent (1"> R. L. 44). approved. See Practice. 5. Bripgs V. Grand Trunk Railway Co. (24 U. C. Q. B. 51(>», appntved and followed. See Railways. 13. Brittlebank v. (Jrey-.Tones (.'» Man. L. R. .3.*}). distinguished. See Consti- tutional liAW. l(i: Married Woman. 2; Statute. 27. Brown et al. v. Town of Edmonton (1 N. W. T. Rep. part 4, p. 39; 23 Can. S. C. R. 308; 28 Can. S. C. R. .^10), referred to. See Crown, 3. Building & Loin Association v_ Mackenzie (24 Ont. App. R. ,")9i)). afflrme;!. See Merger; Mortgage, 10. Burns v. Davidson (21 O. R. .^»47). approved and followed. See Action, 8; Lex Rei Srr^, 1. AFPENUIX "C." 293 O. Canadian I'acilic Ilailway Co. v. Ste. Th6r6se (Hi Can. S. C. It. UO!), dUtiii- giiislifd. Sfc Appeal. 14. Chaguou V. Nornuiud (1(5 Can. S. C. U. (Mil), followt-d. Soo Appeal, 20. ChauibtTlaiul v. Fortier (23 Cau. S. C. U. all I, referred to aud approved. See Appeal, 53. Champoux v. Lapierre (Cass. Dig., *2 ed., 42(m, discussed and distinguislied. See Appeal, 73; Opposition, -i. Chef dit Vudeboneu'ur v. City of Montreal (29 Can. S. C. It. IH, followed. Se« Practice, 43; Shekikf, 2; Substitutio.n, 3. Clayton's Case (1 Mer. i')72l, distinguished. See Pkincipal and Surety, 1. Cornwall, Town of, v. Deroehie (24 Can. S. C. 11. 301 », followed. S> o Municipal Corporation, 20; Negligence, 2.1. Couture v. Bouchard (21 Cau. S. C. It. 181), followed. See Appeal, <5; Statute 1. Cowan V. Allen (2(5 Can. S. C. It. 2J)2l, followed. See Codicil, 2. Cowen V. Evans (22 Can. S. C. It. 331), followed. See Appeal, 2. Cox V. Worrall (2(5 N. S. Itep. 3(!(5), (luestioned. See Assig.vment, 3; Debtor and Creditor. 11. Craig V. Great Western Itailway Co. (24 U. C. Q. B. 50!J), approved and followed. See Kailways, 13. Cunningham v. Cirand Trunk Itailway Co. (!) L. C. Jur. .j"), approved and followed. See Kailways. 13. Danjou v. Marquis (3 Can. S. C. It. 2i}l), followed. See Appeal. 33, 3S. "Delta." The (1 P. D. 31)3), distinguished. See Foreign Judgment; Res Judicata. 4. Dixon V. Snetsinger (23 U. C. C. P. 23r»), discussed. See Constitutional Law, 15; Navigable Waters, 1. Doe d. Anderson v. Todd (2 U. C. Q. B. 82), lollowed. See Statute cf Mortmain. Dufresne v. Dixon (1(5 Cau. S. C. It. 20(5), followed. See Appeal, 8; I'ractice. 5. Dufresne v. Guevreniont (20 Can. S. C. It. 210), followed. See Appeal, 57; Statute. 20. Durkee v. Flint (10 N. S. Itep. 487), approved and followed. See Assign- ment, 1; Chattel Mortgage, 5. E. Eddy v. Eddy (p. 23,' ante), followed in Demerg v. Bank of ilontreal (p. 287, ante). Enimett v. Quinu (7 Ont. App. It. 30(5), distinguished. See Merger; Mortgage, 10. European Bank, In it, Ej; parte The Oriental Commercial Bank (5 Oh. App. 358), followed. See Pledge, 1. Ewart V Gordon (13 Gr. 40), discu-ssed. See Trusts, 2. F. Filiatrault v. (Joldie (Q. It. 2 Q. B. 308), distinguished. See Immovable Property, 1; Movables, 1; Vendor and Purchaser. 0. Footner v. Beiges (2 Sim. 310), followed. See Practice, 1(5; Statute, 15. Freeborn v. Vanduseu (15 Ont. P. R. 204), followed. See Practice, 17. 294 APPENDIX "C." O. Gardner v. Grace (1 F. & F. 3oS)), followed. See Neoliqence, 22. Geudron v. M Appeal. 2G. Montreal, City of, v. Lemoine (23 Can. S. C. R. 390), distinguished. See Appeal, 37. Moore v. Jackson (22 Can. S. C. R. 210), referred to. See Married Woman, 4; Statute. 41. APPENDIX "C." 29; Murphy v. LabW (27 Can. S. C. R. I'Jtj), approved and followed. Sie Lanki.ord and Tenant, 3; Xexiuoence, 154. Murray v. The Queen (2G Can. S. C. It. 203), discussed and distiiiKuished. See Contract. 37. Mc. MeCorkill v. Knight (3 Can. S. C. R. 233; Cass. Dip. (2 ed.), GD4), followed. See Opposition, 3. M. Donald r. Abbott (3 Can. S. C. R. 251), followed. See Appeal, 33, 3S. JhGreevy v. The Queen (18 Can. S. C. R. 371), followed. See Res Judicata, (5. MeGugau V. Smith (21 Can. S. C. R. 2G3), followed. See Contract, 14. N. Nissouri West, Township of, v. Dorchester (14 O. R. 21>4). distingni>*h d. See Assessment, u. North British and Mercantile Insurance Co. v. Tourville (25 Can. S. C. B. 117), followed. See Appeal, 09. O. O'Brien, In re (IG Can. S. C. R. 197), referred to. See Contempt of Court. O'Dell T. Gregory (24 Can. S C. R. 601), followed. See Appeal, 58. 70. Ontario Car Foundry Co. v. Farwell; WuUbridge v. Farwell (18 Cao. S. C. R. 1), followed. See Contract, 30. Oriental Commercial Bank. Ex parte. In re European BanK (5 Ch. App. 358i, followed. See Pledge, 1. O'Shea t. O'Shea (15 P. D. .!i9), followed. See Contempt of Couht. O'SuUivan v. Harty (13 Can. S. C. R. 431), followed. See Appeal, 49. P. Perrault v. Gauthier et al. (Q. R. G Q. B. G5), aflBrmed. See Action, 17; Trade Union. Pictou, Municipality of, v. Geldert ([1893] A. C. 524), followed. See Municipal Corporation, 25, 37; Nuisance, 3. Q. Quebec Street Railway v. City of Quebec (10 Q. L. R. 205), referred to. See Contract, 7. Queen, The, v. Farwell (14 Can. S. C.R. 392), commented on and di*;- tinguished. See Practice, 8; Res Judicata, 2. R- Itaphael r. Maclaren (27 Can. S. C. R. 319), followed. See Appeal, 70. Keg. T. Dillon (10 Ont. P. R. 352) overruled. See Betting; Criminal Law, 3; Statute, 11. Richardson v. The Canada West Farmers Ins. Co. (16 U. C. C. P. 430i, distinguished. See Carriers, 2; Contract. 20. Richelieu Election Case (21 Can. S. C. R. 168), followed. See Election Law, 3. Robertson v. The Queen (6 Can. S. C. R. 52). followed. See Constitu- tional Law, 17; Fisheries, 2; Riparian Proprietors. Rodier v. Lapierre (21 Can. S. C. R. 09). followed. See Appeal, 58, 70. Ross V. Hunter (7 Can. S. C. R. 289), distinguished. See Municipal Corporation, 21. 3«/) AI'I'KNDIX "i:. i. Ht. l.iiwrciMf I'mwiinlliiK, <■•<"•, ''". v, Tin- MhIkkhc. liimk '2H I<. '". .Im. 1-7*, ri'ffrrcd (n. Hn- Him. hi-- (.aI'Imo, '^i. HiiuviiKfiiii V, •jii(iilil\i'i'KAi,. a7. Mlifilirookc. niy of, V, Ml .Mil II II my ilH rmi. M, < ', U .VM^, !li< , r.,llow< ''im. H. K, l.'J; Hi I KM I KC, 2; Hijhmtiti.ti').-*, .'{. VcniHT V. Hun Life Iiim. To. (17 <'/in. H. <'. It. .iUt). follow.-.l. Htm t'll.NliITI.iNM ANIi W'AtlltA.S'TliCM, '2 1 • "./NrilA'T, 12\ I .S'KI.'HA.N'-K, IwKK, ♦. Vi Tilicr.'H V. N'lii.-iin.M ((!» Ciin. H. <'. It. .'{."VJ), {iiiMli(Ml. H.i- Uailwayh, H; Htati.tk, I'.J. W. Wallliii.lt;.- V. I'lirw.ll (18 <-|iii. H. C. U. 1), follow.-l. H.-.- f>,KTKACT, :J0. WiilniHlcy V. <;rilllihM (i:*. Piiii. H. «'. It. 4."{4), f<,ll«w.il. H..- Api'Kai,, I!>. WaKhiiiKtoii V. . (*J4 Out. App. It. 1H.'},|, r-«-i»lii?- Appkal. 23. WcHt .NlKKoiiri V. l)orcJi('Mtfr (14 O. It. 2!M(, ■li»*tini(uiMiii'4l. H<'«* Abhi:hh.mk.nt, .">. WilliniiiH V. Irvintf (22 Can. S. <,'. It. l'»H), followcil. Htt: Htatctk, H. Whitby, Corporation of, v. IJ.troinlH' (2.'' <»r. 1), fo||.»wc«I. K<«' HTATt.'TK ok MonxMAi.v; Will, 3. Winclu-rK V. Ilinipson (lit Can. S. ('. It. 'W.t}, H), followed. fi»:t; I>ebtOh A>fr> Creditor, 7. IMiEX OF CASES DECIDED DURING THE VEARS l^i■>)^. A. PJL'iK. A'-<'ii IMi Aiiuiitti V. MtlU-iith, xxvii., i;j 1<«, •J.Ki AiJ«l«i« V, 'J'owii».;h«-()«) M;i.v, JW>4 i^!!! AiluHjH'jc V. ll'ttft-r*, xxvi.. )T/,t 14*'. 2*s4J» Awri'-iiliiinil Inx. <'o. v. KarK'-an', ixvi., 2Ii ^10 AI<'Xiui<) .,f ,M.,i,tn-il, xxiii., '.'/.fit VZ. J^t. -J^if All^^ Alliy V. Caiiii'lii I.if<- A«hiir. Co., j!X*iii., «>>8 ]:{7, SU, 'Jlti AiDxoii V. .M< il<-ti '■<». V. Iiiitfi<-I'i 71 AiH-iil, MiiiMirintiinTK* Lit'- litn. (',i>. v., xxviii., Ul'.i I^;. 127 Ainlii!«41 19>, 222 AmJ.-rKdii, HcKcwortlj v., xxiv., 'J!^* 122 AiiKiiH V. 1,'iiioi) <f t ('atiatJa v. I'rovin<-»^ of OiJtari<> ajiU QikIh'-, XXV., 4.'{4 (Imliaii ''laiiiii') ."^1, 2^7,200 Ai'liilratioii, In rrr lioiiiinioii of f'aiiada v. I'roviiu-cH of Outario and (^ucImc, xxviii,, (VMl (Common Sihoi^i Fund and laij(].>>^ 'Mi Archt.aJ.I v. IxLihii-, xxv., 1 2, 1«;, 74, 175, IbS, 109, 277 Ardiilitlil, Imrif v., xxv., '.',i'iH S»>, 15S Ardiibulfl, .Miilcaiiy v., xxviii., .72^ M, 115 Arcliibalfl ' . 'I'iic Qiu-fii, xxiii., 147 213 AniiMtroiij?, Laiiilic v., xxvii., '.'Af.f 10,230 AriimlroriK v. McL.IIuikI. xxv., 2(« 273, 2><0 ArriiKlroiit? v. Nation, xxv... 2f<-., 1808, xxix . . . .-"». I»j8 AtkiiiHon v. Stcuiirt, xxii., 3l."t 57 AtiaMti<- & North wcKtcrn Uailway Co. v. .Indah. xxiii.. 2:il 109 AtlMnti<- tV Northw.Ht«Tn Uailway Co., K.-rr v., xxv.. 107 148. 2t v., 14th December, 1898, xxix., 282 189 Bennett et ai.. Re Ferguson. Turner v.. xxviii., 38 118, 284 Bergeron v. De parois (Beauharnois Election Case), xxvii.. 232 ...31, 95, 104 Bergeron. Tooke v., xxvii., 567 149, 177 Bernard. National Fire Ins. Co. v., Gth May, 1898 2S8 INDEX OF CASES. 299 PAOE. Berthier. Les President, etc., de La Commuue v. Denis, xxvii., 147.. 234, 260 Bigamy Sections Criminal Code, In re, xxvii., 401 34, 50 Blakelcj v. Gould, xxvii., 082 114, 123 Block, Rennie v., xxvi., 350 3, 43, 1.54, 230 Boisseau, Stephens v., xxvi., 437 24, 30, 83 Bond, Toronto Railway Co., xxiv., 715 175 Bonness, St. Stephen's Bank v., xxiv., 710 133 Boston Marine Ins. Co., Mowat v., xxvi., 47 128 Bouchard, The George Matthews Co. v., xxviii., 580 1.50, l.H<» Boultbee v. Gzowski, xxix., 54 209 Boulton V. Boulton, xxviii., 592 90, 113 Boulton V. Shea, xxii., 792 140, 289 Bourne, O'Donohue v., xxvii., 054 20 Bov es, Seid Sing Kaw v.; In re Quai Sing, 17th March, 1898 20, 117, 203 Boyd v. Snider iMacdonald Election Case), xxvii., 201 94 Bradley, The Queen v., xxvii., 057 248 Bradshaw v. Baptist Foreign Mission Board, xxiv., 351 198, 242 Bradt, Dominion Grange Fire Assur. Association v., xxv., 1.54 (»4, 125 Brampton, Town of, Haggart v., xxviii., 174 89, 121 Bridgewater Cheese Factory Co. v. Murphy, xxvi., 443 32, 40, 214 Brierly v. Toronto, Huron & Bruce Ry. Co., 13th May, 1898 287 British American Assur. Co., Gerow v., xxvi., 524 290 British Columbia Mills Co. v. Scott, xxiv., 702 174 British and Foreign Marine Ins. Co. v. Rudolf, xxviii., 007 100, 129 Broddy, Crawford v., xxvi., 345 92, 282 Brookfield v. Brown, xxii., 398 152, 190 Brophy v. Atty.-Gen. of Manitoba, xxii., 577 24t», 289 Broughton v. Townships of Grey and Elma, xxvii., 495 29, 91, 107 Brown, Brooktield v., xxii., 398 1.52, 196 Brown v. Town of tidmontou, xxiii., 308; xxviii., 510 85, 119 Brown v. Leclerc, xxii., 53 17l> Building & Loan Association, Mackenzie v.. xxviii., 407 151, 15.5, 290 Buhner v. The Queen, xxiii., 488 12, 00, 77, 79 Buhner v. Westmount, Town of, 14th June, 1898 287 Burfoct, Dumoulin v., xxii., 120 57 Burland v. Lee, xxviii., 348 149, 178 Burns & Lewis v. Wilson, xxviii., 207 84, 114 Bury, Deschamps v., 14th Dec, 1898, xxix., 274 5, 204, 235, 255 Bury V. Murray, xxiv., 77 2, 100. 198 Bury v. Murphy, xxii., 137 144 Bury. Murphy v.. xxiv.. 008 191. 237 Byron v. Tremaine, 14th Dec, 1898 287 C. Cadioux v. Montreal Gas Co., xxviii.. 382 69, 116, 240, 289 Cahoon, Parks v., xxiii., 92 259 Cairns, Dominion Cartridge Co.. xxviii., 301 149. 178, 289 Caisse d'Economie Notre Dame de Quebec. Rolland v.. 405 82 Caldwell v. Accident Ins. Co. of North America, xxiv., 2(33 100 Caldwell v. Kenny, xxiv., 699 259 Campbell, Maloney v., xxviii., 228 5, 31 Campbell, St. .Tohn, City of. v., xxvi., 1 lt>4 Canada v. Ontario and Quebec. In »t Arl)ltration, xxiv.. 498 52. 243 Ginada v. Ontario and Quebec (Indian Cininist. xx/.. 434 .54, 2'.'0 Canada v. Ontario and Quebec (Indian Claims), xxix 287 Canada v. Ontario and Quebec (Fisheries!, xxvi.. 414 .55. 143. 2S9 Canada v. Ontario and Quebec (Arbitration), xxviii.. (i09 56 300 INDEX OF CASES. PAGE. Canada, Province of Quebec v. Doin. of,. In re Indian Claims, 7th Oct., 18!t8 287 Canada Accident Ins. Co., Eastmnre v., xxv., tiUl Cm. 148, li07 Canada Atlantic Ky. Co. v. Hurdman. xxv., 205 2, 148, 21^ Canada Atlantic S. S. Co., York v., xxii., I, 149, 178 Canada Sugar Kefining Co., Tbe Queen v., xxvii.. 3S».") 139, 240, 289 Canadian Agricultural Coal & Colonization Co., The Queen v., xxiv., 713. 79 Canadian Bunk of Commerce, Stevenson v., xxiii., 530 82 Canadian Coloured Cotton Mills Co. v. Talbot, xxvii., 198 104, 177 Canadian Pacific Ky. Co. v. Chalifoux, xxii., 721 217 Canadian I'acilic Ky. Co. v. Township of Chatham, xxv., 008 20, 104, 289 Canadian Pacific Ky. Co. v. Cobban Mfg. Co., xxii., 132 10, 195 Canadian Pacific Ky. Co. v. Conmee, 22nd March, 1893 287 Canadian Pacific Ky. Co. v. Fleming, xxii., 33 10, 194 Canadian Pacific Ky. Co., City of Toronto v., xxvi., (>82 10.5 Canadian Pacific Ky. Co., City of Vancouver v., xxiii.. 1...50, 112, 159, 291 Cape Breton, Co. of. International Coal Co. v., xxii., 305 27, 217 Carleton, Co. of, v. City of Ottawa, xxviii., (iOO 2(), 249 Carriere, Montreal St. Ky. Co. v., 11th Oct., 1893, xxii., 335 9- Carroll v. Provincial Natural Gas & Fuel Co. of Ontario, xxvi., 181.. 05, 87 Carson ct ah. Re Ferguson. Turner v., xxviii., 38 118, 284 Carter & Co. v. Hamilton, xxiii., 172 190 Carter v. Long & Bisby, xxvi., 430 3, 200, 208 Casey v. Horton, xxii., 739 259 Central Bank of Canada, In re; Hogaboom v. Keceiver-lJeneral of Canada, xxviii., 192 33, 203, 248, 285 Central Vermont Ry. Co., S6uesac v., xxvi., 041 102, 170, 220 Chalifoux, Canadian Pacific Ky. Co. v., xxii., 721 217 Chamberland v. Fortier, xxiii., 371 ,. 12, 160 Chapman. County of York v.. 24th .luue, 1893 288 Charlebois v. Delap, xxvi., 221 40, 131, 289 Charlebois v. Surveyer, xxvii., 550 143 Charlotte, County of. Town of St. Stephen v., 8th Nov., 1894 201 Charlotte, Co. of, Town of St. Stephen v., xxiv., 329 39, KJl Chatham National Bank v. McKeen, xxiv., 348 45, 285 Chatham, Township of, Canadian Pacific Ry. Co. v., xxv., 008 28, 1(>4, 289 Chatham, Township of. Township of Sombra, xxviii., 1 107, 277 Chef (lit Vadeboneoeur v. City of Montreal, xxix., 9 155, 235. 254. 202 Chicoutimi, Town of, v. Lggarg, xxvii., 329 08, 121, 166 Chicoutinii. T()wn of, v. Price. 12th Oct., 1898, xxix.. 135 3S. KW, 2,50 Chisholm, Kirk v., xxvi. 111 30, 42, 113, 252 Cliisholm V. Robinson, xxiv.. 704 260 Christie, Town of Toronto .Tunction v., xxv., 551 16 Churchill & Co., Nova Scotia Marine Ins. Co. v., xxvi., «»5 129 Cini(m, The Queen v., xxiii., 02 58 Citizens Ins. Co. v. Salterio, xxiii., 155 125 Citizens Light & Power Co. v. Lepitre 180 Citizens Light & Power Co., v. I'arent, xxvii., 310 19, 246 City of London Fire Ths. Co., Salterio v., xxiii., 32 125 Clirk V. Hagar, xxii., 510 ! 5S. 190 Clark V. Phinney, xxv., 0,33 1-il, 227 Clarke, Scammell v., xxiii., 307 1S2 Cliu-kson V. McMaster & Co., xxv., 9(5 42, 244 Cleary v. Purcell. xxiii., 101 44, 253, 279 Clinch v. Pernette, xxiv., .385 135 Coatsworth. Carson v.. In re Ferguson, xxviii., 38 118, 284 Cobban Mfg. Co., Canadian Pacific Ry. Co. v., xxii., 132 10, 19S INDEX OF CASES. 301 PACK. Colchester South, Township of, v. Valad, xxiv., (j22 14, 198 Cole V. Pope, xxix 275 Collier v. Wright, xxiv., 714 7, 145 Collins Bay Itafting Co. v. Kaine, xxix., 247 187 Commercial Union Assurance Co., Temple v., 21st Nov., 181)8, xxix. .48, 126 Commissaires d'Ecole de St. Charles v. Cordeau, Dth Dec, 1895. .15, 143, 202 Common v. McArthur, 14th Dec, 1898, xxix., 239 ■Hi, 1S3, 250 Common School Fund and Lauds, In re Ontario and Quebec v. Dominion of Canada, xxviii., <)09 r>(; Compagnie pour T^dairage au gaz de St. Hyaciuthe v. La cie des pouvoirs Hydraulicpies de St. Hyacinthe, xxv., I(i8 H'ui, 244 Conipton, County of, Township of Ascott v., 14th Dec, 1898, xxix. ...5, KJS Compton, County of, Town of Lennoxville v., 14th Dec, 1898, xxix... .5, 1G8 Conger v. Kennedy, xxvi.. 397 54, 147, 245 Conmee, Can. Fac Ky. Co. v., 22nd March, 1893 287 Conuell, Town of Frescott v., xxii., 147 170 Connor v. Vroom, xxiv., 701 2t»8 Consolidated Electric Ry. Co. v. Atlantic Trusts Co. et al., xxviii., 003.23. 74 Consolidated Electric Ky. Co. v. Pratt et al., xxviii.. WS 23, 74 Consumers' Gas Co. of Toronto v. City of Toronto, xxvii., 4.")3 2l>, 10 21, 30, 228. 261 D. Danserean, Turcotto v.. xxvi.. .578 17, 13.3. 185 Dansereau, Turcotte v.. xxvii.. .583 .5. 18.5, 200 Davidson. Cream et ah v., xxvii.. 372 108. 202 Davidson v. City of Montreal, xxviii., 421 ir»7 Davidson et al. v. Treniblay. 10th May. 1895 201 Davidson & Hay v. Eraser et al.. xxviii.. 272 114. 123 Davies v. McMillan. 1st May. 1893 113. 122. 192, 22ri, 28!) Davin v. McDougall (West Assiniboia Elec. Case), xxvii., 215 19, 05 Davis. Macdonald v. (Winnipeg Elec Case), xxvii.. 201 94 Davis v. City of Montreal, xxvii.. .539 149, 167, 247 302 INDEX OF CASES. PAOE. Davis, Robertson v., xxvii., 571 4, 212, 215 Davis, Stevenson v., xxiii., tj2!> 73, 273 DeKuyper, V;in Dullcen v., xxiv.. 114 2(>4 DeKuyper v. VanDulken, xxiv., 114 264 Delap, Carlebois v., xxvi., 221 46, 131, 280 DeLisle, Archbald v., xxv., 1 2, 10, 74, 175. 188, 199, 277 DeLisle, Balier v., xxv., 1 2, 16, 74, 175. 188. 199, 277 DeLisle, Mowat v., xxv., 1 2, 16, 74, 17.-.. 1S8. 109, 277 Delorme v. Cusson, xxviii., 66 21, 36, 228, 261 Demers v. Bank of Montreal, xxvii., 197 18 Demers v. Bank of Montreal, xxix 287 Demers v. Montreal Steam Laundry Co., xxvii., 537 20 Demers, The Queen v., xxii., 482 48 Denis, Les President etc., de La Commune de Berthier v., xxvii., 147.234, 260 Derochie, Town of Cornwall v., xxiv., 301 161, 173 Deschamps v. Bury, 14th Dec, 1898, xxix., 274 5, 204, 235, 255 Desparois, Bergeron v. (Beauharnois Elec. Case), xxvii., 232 . . . .31, 95, 104 Diack, Guest v., 14th .Tune, 1898 287 Dinner v. Humberstone, xxvi., 2.52 54, 164 Dionne v. The Queen, xxiv., 451 191 Dixon, Gorman v., xxvi., 87 17. 83. 210 Dominion Atlantic Ry. Co., Pudsey v., xxv., 691 202, 220 Dominion Bank, Rowland v., xxii., 130 195 Dominion of Canada v. The Provinces of Ontario and Quebec, xxiv., 498. 52. 243 Dominion of Canada v. The Provinces of Ontario and Quebec, xxv., 434. . 53, 287, 290 Dominion of Canada v. The Provinces of Ontario and Quebec, xxvi., 444.. .55, 110, 118, 143. 229, 289 Dominion of Canada v. The Provinces of Ontario and Quebec, x.xviii., 609 56 Dominion Cartridpe Co. v. Cairns, xxviii.. 301 149, 178,289 Dominion Grange Ins. Co. v. Bradt, xxv., 154 64, 125 Don, Warner v., xxvi., 388 154, 224, 245 Donohue v. Hull, xxiv., 683 199 Doyle V. !McPhee, xxiv., 65 86 Drennan, City of Kingston v., xxvii., 46 165, 177 Dreschel et al. v. Auer Incandescent Light and Mfg. Co., xxviii.. 268.. 22. 74. 204 Dreschel et al. v. Auer Incandescent Light and Mfg. Co.. xxviii., 008.190, 2.50 Drysdale v. Dugas, xxvi., 20 184 Dufresne v. Gufivrement. xxvi., 216 17 Dugas, Drysdale v., xxvi.. 20 184 Duggan V. London & Canadian Loan & Agency Co., 23rd October, 1893. 200. 290 Duguay. Robin et vir v., xxvii.. 347 2.54, 271, 283 Dumoulin v. Burfoot, xxii., 120 .57 Dupuis ait Gilbert, King et al. v., xxviii., 388 22. 09. 186, 231 Durocher v. Durooher. xxvii.. 303 8. 39. 88. 104., 130. l.'?2. 205 Durocher v. Durocher, xxvii.. 034 132, 22.5 Dwyer v. Town of Port Arthur, xxii., 241 1.58. 239 Dyer, The Town of Trenton v., xxiv., 474 102, 242 E. Eastern Townships Bank v. Swan. 21st Nov.. 1898. xxix., 193 24, 204 K.istern Trusts Co. et aL. Bayne et aJ. v.. xxviii.. 006 10(5. 212, 209 Eastmure v. Canada Accident Ins. Co.. xxv.. 091 05, 148, 207 E.nton Co. v. Sangster, 2nd April. 189-5, xxiv., 708 174 Eddy V. Eddy. 4th October, 1898 23, 204,213 INDEX OF CASES. 303. PAGE. Edgar v. Sloan, In re Hess Mfg. Co., xxiii., tJ44 4.5, 207, 285 Edmonton, Town of. Brown v., xxiii., 308; xxviii., 510 .85, 11$) Edmonton, Town of, Heiminck v., xxviii., 501 77, 119, 168^ Educational Statutes in Manitoba, xxii., 577 49, 240, 289 Eisenhauer. Nova Scotia Mar. Ins. Co. v., tith Nov., 1894 144 Eisenhauer, Nova Scotia Mar. Ins. Co. v., 4th May, 1893 288 Elgin, County of, Wilson v., xxiv., 700 232 Ellice, Township of, v. Crooks, xxiii., 429 28, 100, 172, 197 EUice, Township of, v. Hilcs, xxiii., 429 28, 100, 172, 197 Ellis V. The Queen, xxii., 7 10, 57 Elma, Township of, Broughton v., xxvii., 495 29. 91, 107 Elmsley, Hayes v., xxiii., 023 272, 29a rimployers' Liability Ins. Co. v. Taylor, 21st Nov.. 1898, xxix 124 Equitable Life Assurance Society, Labergo v., xxiv., 59 13- Equitable Life Assurance Society, Laberge v., xxiv., 595 02. Erdman, Town of Walkerton v., xxiii., 352 99 Ernst v. Zwicker, xxvii., 594 247, 284 Erratt, Jellett v., xxvi., 282 108, 223 Esquimault & Nanaimo Ry. Co., Hoggan v., xx., 235 290" Evans, Cowan v., xxii., 328, 331 11, 240 EvaiiS, King v., xxiv., 350 280 Everett, Troop v., 9th Oct., 1894 288 P. Fairbanks, Eraser v., xxiii., 79 152, 272; Fairbanks v. The Queen, xxiv., 711 109 Farwell v. The Queen, xxii., 5.53 49. 190,225 Farwell & Glendon v. Jameson, xxvi., 588 90, 135 Ferdais, Macdonald v., xxii., 200 234 Ferguson, Glengoil S. S. Co. & Gray v., xxviii., 140 40, 145, 237 Ferguson v. Innis, xxiv., 703 200 Ferguson v. Troop, xvii., 527 289 Ferguson, In re Turner et al. v. Bennett et a/., xxviii., 38 118, 284 Ferguson, In re Turner et al. v. Carson et la., xxviii., 38 118, 284 Ferrier v. Trepannier, xxiv., 80 14, 108, 172, 198 Filion, The Queen v., xxiv., 482 173' Fish, Bank of Nova Scotia v., xxiv., 709 lOQ Fisher v. Fisher, xxviii., 494 23, 3a Fisheries, Frovincial, In re, xxvi., 444 55, 110, 118, 143, 229. 289 Fleming, Canadian Pac. Ry. Co. v., xxii., 33 10, 194 F'ogarty v. Fogarty, xxii., 103 278 Foran v. Handley, xxiv., 700 201 Forsyth, Hechler v., xxii., 489 81 Fortier, Chamberland v., xxiii., 371 12, 160 Forticr v. Lambe, xxv., 422 53, 141 Fournier v. Barsalou, 3rd May, 1898 203 Foy, Taylor, v., 4th March, 1896 288 Francis v. Turner, xxv., 110 82 Frank v. Sun Life Ins. Co.. 22nd May, 1894 127 Eraser et al. v. Davidson & Hay, xxviii., 272 114, 123 Fraser v. Fairbanks, xxiii., 79 152, 272 Eraser v. Fraser. xxvi.. 310 44, 282 " Frederick Gerring, jr.," v. The Queen, xxvii.. 271 50, 111, 265 French River Tug. Co. v. Kerr Engine Co., xxiv., 703 63 Gaffney, Montreal Gas Co. v.. .5th Oct., 1898 287 Galivan, Macdonald v., xxviii., 258 ^ 21 Gauthier v. Jeannotte, xxviii., 590 T4 304 INDEX OF CASES. PAOE. Itiiuthier v. Musson, xxvii., r>7r» 4, 10.', lOt (iinithier » t al., IVrrault v.. xxviii.. 241 !), 2t>5 (icorm'p Mattlu'WH Co. v. Hoiich ml. xxviii., .580 l.'M), 18(» 3, 24.') iJoodwin V. The Quefn, xxviii.. 273 'W fjordon. Stt'pht-ns v., xxii., 01 57 Gitrnian v. Dixon, xxvi.. »7 17, 83, 210 (iosuoll. Toronto Ry. Co., xxiv., 582 173 «osselin. <;n«'rtin v.. xxvii., 514 19, 132, 18."., 200 <3on«co!i. City of Ste. Cunt'jroudo, xxv.. 78 10. 102, 244 (iovld. Blakfley v., xxvii., 082 114, 123 fiovcrnor and Company of Advontnrers of England tradinK into Hudson's Bay v. .Foannotte, xxiii.. 415 107, 213 <}rand Trunk liy. Co. v. Andorson. xxviii.. 541 180, 222 wland, Sons & Co. v., xxvi., 372 47, 83 Orant v. Madaren, xxiii., 310 12. 197, 2(57 , 209 Guest V. Diack, 14th .Tune, 1898 287 •Gu€vremont, Dufresne v., xxvi., 210 17 Gzowski, Boultbee v., xxix., .54 20{> H. Hackett v. Larkin (West Prince Election Case), xxvii., 241 95 Hagar. Clarke v.. xxii., 510 58, 190 Haggart v. Town of Brampton et al., xxviii., 174 89, 121 Hale. Porter v., xxiii. 2(55 98. 134.190 Halifax. City of. v. Lithgow, xxvi., .330 119, 104 Halifax, City of. v. Beeves, xxiii.. 340 12, 159, 197 Halifax Street By. Co. v. Joyce, xxii.. 2,58 171 Hall Mines (Limited* v. Moore. 20th May. 1898 ....21, 18:5. 203 Halstead. Bank of Hamilton v.. xxviii.. 2:{5 31. 33 Halton Election Case. Lush v. Waldie. 1.5th March, 185)3 94 Hamel V. Hamel. xxvi., 17 10 Hamel v. Leduc. Nicolet Election Case, xxix, 178 05, 290 INDEX OF CASES. 305 PAGE. Hamilton. Carter & Co. v.. xxiii.. \T2 IStO Hamilton, Lingftt v., xxiv.. (Mm IS" Hamilton Bridge Co. v O'Connor, xxiv.. .V.»8 174 Hamilton Police Benefit B^md, Miller et al. v., xxviii., 47." 33 Hamilton Street Ky. Co. v. Moran, xxiv.. 717 17."}. 2(r2 Hampson. Vineberg v.. 27th Feb.. 1HW> 92 Hundley, Foran v.. xxiv.. 70(; 201 Hansen. Law v., .xxv.. (ii» 101, 111, l.ll, 220 Harbour Conmiissioners of Montreal v. Guarantee Co. of North .Vmerica. xxii., r>42 I 2.')G Hardy Lumber Co. v. Piekerel Itiver Improvement Co.. 14th Dee.. l.S!»8, xxix 47. U7. 228. 2»« Hnrt. Maguire et al. v., xxviii., 272 .... 287 Hart. Maleard v.. xxvii., .")10 IS). 44. 10.") Harwich, Township of, v. Township of Raleish, 18th May. 18i>."» 15 Hatfield. Ames Holden Co. v., 14th Dee., 18!)8. xxix 71 Hatfield, St. John Gas Light Co., xxiii.. 1(^4 147 Haubner, Martin v.. xxvi., 142 0,"», 113, 230. 2."»2 Hawkins, Roberts v., 14th Dec., 1808, xxix.. 218 181 Hayes v. Elmsley. xxiii.. 023 272. 2!K» Headford v. McClary Mfg. Co., xxiv., 201 14. 17:5 Hechler v. For.syth, xxii., 489 81 Heiniinck v. Town of Edmonton, xxviii.. oOl 77, 110. I»i8 Hempenstal, Merritt v.. xxv., 1.50 1(5, 101. 121. 148, 17(i Henderson v. Bank of Hamilton, xxiii., 710 7."> Henderson et al.. The Queen v., xxviii.. 42.") 70. 125). 21(i. 240 'Henry L. Phillips," v. Tlie Queen, xxv.. "i'.ll 110 Hereford Ky. Co. v. The Queen, xxiv.. 1 ."0, 218 Hess Mfg. Co. In 1 -. Edgar v. Sloan, xxii' , 044 4."), 2r)7. 285 Hesslein, Wallace v.. 21st Nov.. 1898 71, 2.S8, 202, 270 Hiles. Township of Eliice v., xxiii., 429 28. 1»!0. 172, 197 Hinchinbrooke, Township of, McKay v.. xxiv., .""> 13 Hochelaga Bank v. Waterous Engine Works Co.. xxvii., 400 .... 121. 157, 231. L'75 Hogabooni et al. v. Iteceiver-Generil of Canada, In re Central Bank. xxviii.. 192 :{3. 203. 248. 2S5 Hogan. Holliday v.. 20th Feb., 1894 212 Hoggan v. Esijuimault & Nanaimo Ity. (lo.. xx., 2.'?5 2'.M) Holliday v. Hogan. 20th Feb.. 1894 212 Holliday v. Jackson & Hallet. xxii., 479 2."r. Hoofstetter. Rooker v.. xxvi.. 41 154. 183. 223 Horton v. Casey, xxii.. 7.39 2.59 Horton v. Humphries, xxii.. 7.39 259 Houghton V. Bell, xxiii.. 498 2ii7. 2'0 Howland V. The Dominion Bank. xxii.. IISO 195 HowJand. Sons & Co. v. ({rant. xxvi.. 372 47. 83 Hudson Bay Co. v. Joannette, xxiii., 415 197. 213 Hull. Donohue v.. xxiv.. »kS3 ll'O Hiunberstoue. Dinner v., xxvi.. 2.52 54, 104 Humphries. Horton v., xxii., 739 259 Hunt v. Tiplin. xxiv., 30 13. 01 Hurdman. Canada Atlantic Ry. (^». v.. xxv.. 205 2. 148. 219 Hurlbert. Sleeth v.. xxv.. 020 40. 227. 23:', Huson V. Township of South Norwich, xxiv.. 145 51. 290 Hvde V. Lindsay. 2nd Nov.. 1898. xxix 24 Imperial Fire Ins. Co.. Torrop v.. xxvi.. .585 n<;. 120. 20S Imrie v. Archibald, xxv.. 3(')8 SO. 153 s.a.D.-20 3o6 INDEX OF CASES. PAOK Indian Claims, In re, Ontario v. Canada and Quebet-, xxv., 434 . .7t'3, 287, *JSK) Innew, Ft'rguw.n v., xxiv., 703 -'W Insurunee ('o. of North America v. McLeod, 21st Nov., 1898, xxix.... 287 International Coal Co. v. County of Cape Breton, xxii., 305 27, 217 Irvine, Williams v., xxii., 108 10, 231) Irwin, Victoria Harbour Lumber (.'o. v., xxiv., (J07 03, 273 Isbester v. Kay, Street & Co., xxvi., 7'J 131, 188, 214 J. Jackson & Hallett, Holliday v., xxii., 479 250 Jackson, Moore v., xxii., 210 80, 239 Jackson, Mylius v., xsiii., 48") 12, 191 Jacques Cartier Bank v. The Queen, xxv., 84 32, 34. i\'A, <»4 Jameson, Farwell & Glendon v., xxvi.. 588 90, 135 Jameson v. London & Can. Loan it A;;ency Co., xxvii.. 475 137, 155 Jarvis, City of Toronto v., xxv.. 237 1<«, 223, 245 Jeannotte, Gauthier v., xxviii., 590 74 Jellett v. Ernitt, xxvi., 282 108, 223 .Tellett v. Towell. xxvi., 282 108, 223 Jellett V. Scottish Ont. & Man. Land Co., xxvi., 282 108, 223 Jellett V. Wilkie, xxvi., 282 108, 223 Jenkins, Murray v., xxviii.. 5(!5 70, 1.52, 275 .lermyn v. Tew, xxviii., 497 23, 155 Joanette, Hudson Bay Co. v., xxiii., 415 197, 213 Johnson's Co., Bell's Asbestos Co. v., xxiii., 225 36 Johnston, Town of Petrolia v 290 Jones V. McKean, xxvii., 249 208 .Tones, Murray v., 2nd April, 1895 288 Jordan et al. v. Provincial Provident Institution, xxviii., 554 47, 70, 127 Joyce, Halifax Street Ry. Co. v., xxii., 258 171 Judah. Atlantic & N. W. Ry. Co. v., xxiii., 231 109 Junkin, Robertson v., xxvi., 192 188,281 K. Kaine, Collins Bay Rafting Co. v., xxiv., 247 137 Kaulbach v. Sperry (Lunenburg Election Case), xxvii., 22<; 95 Kearney v. Letellier. xxvii., 1 G7, 230 Kelly, New Brunswick Ry. Co. v., xxvi., 341 87, 223 Kennedy, Conger v., xxvi., 397 .54, l-IT. 245 Kenny, Caldwell v., xxiv., 099 259 Kerr. Atlantic & N. W. Ry. Co.. xxv.. 197 148. 200, 219 Kerr Engine Co., French River Tug Co. v., xxiv., 703 «)3 King et al. v. Dupuis dit Gilbert, xxviii.. 388 22, 09, 180, 231 King V. Evans, xxiv., 356 280 King V. Roche (Marquette Election Case), xxvii., 219 19, 9.5 Kinghorn v. Larue, xxii., .347 11 Kingston, City of. v. Drennan. xxvii.. 46 1(T.5, 177 Kingston Forwarding Co. v. Union Bank of Canada, 9th Dec. 1895. .34. 192 Kirk v. Chisholm. xxvi.. Ill 30. 42, 113, 252 Kittredge, Toothe v.. xxiv., 287 2.52 Klock V. Lindsay, xxviii., 453 135, 179 Knock V. Knock, xxvii., 004 92, 142 L. Labbe, Murphy v.. xxvii., 126 103, 1S5, 177 Laberge v. Equitable Life Assur. Soc. of U. S.. xxiv., .59 13 Laberge v. Equitable Life Assur. Soc. of U. S., xxiv., .595 02 INDEX OF CASES. 307 PAOK. Lachauie v. Soci4t§ dt" Prf'ts et de Pluo"nu'Ut8 de Qiu'boc, xxvi., 2W. . 17 Luiiie V. B61uik1, xxvi., 410 tlli Lake Erie & Detroit It. Ky. Co. v. Sales, xxvi., UtJa 3.', 07. H»l. 220 Laloude et ul., Valade v., xxvii., 551 SO, 18.">, 231 Luiiibe V. Armstrong, xxvii., 301} 10, 230 Lanibe, Fortier v., xxv., 422 .TS, 141 Land Security Co., Wilson v., xxvi., 140 210, 274 Lauded Banking & Loan Co., Cunnning v., xxii., 240 Larivifire v. School Conimissioners of Three Itivers, xxiii., 72.'! 13 Larkiu v. Hackett (West I'rince Election Cusei, xxvii., 241 0."> Larue, Kinghorn v., xxii., 347 11 Law v. Hansen, xxv., (10 101, 111, l:;i, 22a Lei', M'allace v., xxviii., .")0."> 147, 240 Leaniy, McGeoy v., xxvii., 103 IS I^eaniy, McGoey v., xxvii., .■i4."» 2.">, CiS Leclere, Brown v., xxii., ."i3 170 Leduc. Haniel v., Nicolet Election Cusi>, xxix., 17S '.*.'», 2'I0 Lee, Burland v., xxviii., 34S 140. 17S Lefebvre v. Aubry, xxvi., U02 4, 144, ISO Lefeunteuni v. Beaudoin, xxviii., SO 21, 105 Lefeuntun v. V6ronneau, xxii., 203 11, lO.j L6gare, Ville de Chicoutimi v., xxvii., 32Jt CS, 121, Kid Lemoine v. City of Montreal, xxiii., 300 12. 2."), 200 Lennoxville, Town of, v. County of Croniptou, 14th Dec, ISOS, xxix. ..", 1(;S Leonard, lioyal Electric Co. v., xxiii.. 20S .59 Leonard & Sons, Williams v., xxvi., 40(! 17. 35, 43 Lepitre, Citizen's Light &: Power C Lithgow, City of Halifax v., xxvi., 33(» 110, 1(!4 Logie, May v., xxvii., 443 104, 2S3 London, City of, v. Watt, xxii., 3CK) 27, 1.5S, 240 London Lush V. Waldie, Halton Elec, Case, loth March, 1893 iH M. MacArthur v. MacDowell, xxiii., ' tl 214 Macdonald v. Davis et al. (Winni jeg Election Case), xxvii., 201 94 Macdonald Election Case, xxvii., 201 94 Macdonald, Ex parte, xxvii., 683 117, 134 Macdonald v. Ferdais, xxii., 260 234 Macdonnld v. (Talivan, xxviii., 2.58 21 Macdonald v. Purcell. xxiii., 101 44. 25;5, 279 Macdonald v. Whitfield, xxvii., 94 4, 211, 277 Macdowall, ^lacArthur v., xxiii., 571 214 Mack V. Mack, xxiii., 146 266 Mackenzie v. Building & Loan Assn., xxviii., 407 151, 1.5.5, 290 Mackenzie v. Mackenzie, 20th Feb., 1897 269 3o8 INDEX OF CASES. FAOK. Mucliinn, ( iraiit v.. xxiii., 310 lli, 15>7, L'f.T Muclurtu, Uapnat'l v., xxvii., yiJ) ID, U8« Mnclarfii, IJai.hatl v., 2M :,'M>> Matlcaii V. Stewart, xxv., 225 1, 18S, li'JO Madiidcr. Yoiiiin v.. xxv., 272 1S2, V.T,i, 2tl7 Macrae. News rriiitiiiK Co. v.. xxvi., (>!»."> IfS, 272 MiArlhur, fominoii v., 14th Dee., ISUS, xxix.. 2:H) 4r,, 1!»2, 25(» JMcKeath. ^Ailaiiis v.. xxvii., 115 103, '2Ki McClar.v MtK. To.. Ileadlonl v., xxiv., 2!ll 14, 173 M(«'oll. Stotiliar v.. 24th March, l.SDC. 207 McCraiiey, Maj McDonald v. CuniniinKS xxiv., 321 42 MeDoiiKall. Daviu v. (West Assinihoia Election Case), xxvii.. 2l.'» 1i>. !•."> McDouj;all, McGreevy v., 3rd March. 1888 Me(Je:ichie v. North American Life Ins. Co., xxiii., 148 127 Mc<;4."> 25, (!S Mc(;rivvy v. McDouKall. 3rd March, 1888 Mcintosh v. The Queen, xxiii.. 180 1. 11. 7C. McKay v. Township of llinchinhrooke, xxiv.. ."i i;{ McKeaii. .Tones v.. xxvii., 24!) 2(i8 McKeeii. The Chatham Natiomil Bank v.. xxiv., 348 4."). 28."> McKcnzie v. McKenzie. 20th Feb., 1807 2i;it McKenzie. North-West Transportation Vn. v.. xxv.. 38 34. 40. 03 McLachlan. Merchants Bank of Cinada v.. xxiii.. 143 14ii, 187 McLaren. (Jraiit v., 0th May. 1804 2U5 McLaren, Merchants Bank of Canada v.. xxiii.. 143 140, 187 Mclianshliu v. McLellan. xxvi.. (WO 28.3 McLean v. Stewart, xxv.. 22.-. 1. 188. 2!Mt McLellan. McL;iuj,'hlin v.. xxvi.. («0 283 McIiPlland. Armstronj.' v.. xxv.. 2»i;{ 27.3. 2S(» McLell.ind v. Baker, xxiv.. 410 V,l McLeod, Ins. Co. of North America v.. 21st November. 1808 287 McMaster & Co.. Clarkson v.. xxv.. 00 42, 244 Mc:Millan. The " Cnba " v., xxvi.. (mI 7. 145. 230 McMillan. Davies v.. 1st May. 1803 113. 122. 102. 22.'>. 280 McMillan v. Valois ( Vandrenil Election Case), xxii.. 1 Kt. 04, 1(»4 McNider, Youn>r v.. xxv.. 272 182. 103. 207 :Mcrhee. Doyle v.. xxiv.. (!.-> 80 ilaguire f^ al. v. Hart, xxviii.. 272 287 Major V. :McCraney. 21st Nov.. 1808. xxix., 182 77. 270 Makins v. Pijifiott. 21st Nov.. 1808. xxix 180 Alaloney v. Campbell, xxviii.. 228 T). 31 Malzard r. Hart, xxvii.. .510 10. 44.. 105 Manchester Fire Ins. Co.. Ouerin v 12t> Manito))a. In re. StitiUes relating to Education, xxii.. 577 . .40, 240, 280, 2!M> Manley, London Loan Co,, xxvi.. 443 1.54 Manufacturers' Accident Ins. Co. v. Pudsoy. xxvii., 374 12.'>. 208 ^lanufacturers' Life Ins. Co. v. Anctil. xxviii.. 10.3 00. 127 Jlarcotte v, Baniiue Nationale. 15th May. 1808 287 Marouette Elec.ion Case, xxvii. 210 10 05 Marsh. Webb v.. xxii.. 437 2.53. 2.58 ^farshall. Cowans et al. v.. xxviii.. 101 178. 182 ]klartin v. Haubncr. xxvi.. 142 0.5. 113. 230. 252 Martin. Northern Tac. Express Co. v.. xxTi.. 1.35 ,3. 40, (;.5. 101 Martin v. Sampson, xxvi.. 707 IS Mnrtindale v. Powers, xxiii,, .507 14(>. 108. 2.5.5 INDEX OF CASKS. 309 PAOI. Musoii, Town of l\-ti'rl)oroiiKh, ."tli March, ISSM! :»88 M isson, (JuuthiiT v., xxvii., 'tlTt 4, KTt, 11)4 Matthfws Co. The ({forjic. v. Bonclmnl, xxviii., r>S«» l.'O, 180 May V. Lo«if. xxvii., 44:{ 1(I4, liKl Mayes V. The Ciiioeii, \xiii., 454 tiO Mayhfw v. Stone, xxvi., .'M 7, lit, UK) Merchants Bank of Canada, Arpin v., xxiv., 14L' 14 MiTilianls Bank of Canada \. McLachhui, xxiii., 14:5 14t'.. I,s7 Men hauls Bank of Canada v.- McLaren, xxiii.. 14.'i 1^^:. 1S7 Merchants Bank of Canada. WhitfU-hl v.. xxvii.. !t4 4, -.ill, 277 Mercier v. Barette, xxv., '.M •_'•_»••. 'JtlO .Merritt v. Heinpenstal. xxv.. !.")<» It!. 101, I'Jl. 14S, 17ti Metropolitiiine, Societe. etc.. Baker v., xxii.. JVU IJM!. ^.'iS Michigan Central Ity. Co. v. Wealleans, xxiv.. :«K» 218 Midland Uy. Co. of Canada v. Yonnv;, xxii., IfMI -jn. SM) Millar v. rininnier. xxii., 2.');{ 2i:< Miller ft nl. v. Hamilton Police Fund et al., xxviii., 475 3.'i Mills V. LimoKPs, xxii.. .'Wl 11, 240 " Minnie." The v. The Queen, xxiii.. 478 09 Mitcliell v. Trenholnu'. xxii.. H:n 11. 240 Mols..ns Bank, Cwper v., xxvi.. Oil :{2, .84, I'.tl, 227, 28!) Montreal, City of, Allan v., xxiii., :«M) 12, 25, 285) Montreal, City of, Barrinuton v., xxv., 202 15, 10 Montreal, City of, Davidson v., xxviii., 421 107 Montreal, City of, Divis v., xxvii., 5.39 149, 107, 247 Montreal, City of, Lcnioine v., xxiii., 3iK) 12, 25, 290 Montreal, City of, Montreal Street Ky. Co. v., xxiii.. 259 28 Montreal, City of, Mnlcair v., xxviii., 45,S 107, 185 Montreal. City of. v. Kinisay. 21st Nov.. 1898, xxix KW Montreal, City of, Stevenson v., xxvii., 187 18, 105 Montreal, City of, Stevenson v., xxvii., .lOS 227 Montreal. City of, Vadeboncmnr v., .'ixix., 9 155, 2.'{5. 254. 202 Montreal Oas Co.. (^adienx v., xxviii., 382 9 Montreal St. Ry. Co. v. City of ^lontreal. xxiii.. 2.59 28 Moore. Hall Mine:' (Limited), 20th May, 1898 21. IS:^. 20:i Moore v. .Tackson, xxii., 210 .SO. 239 Moran. Hamilton St. Ry. Co. v.. xxiv.. 717 1 (■>. 202 Morrison, Bancjue Ville Marie v., xxv., 289 28, lOo, 274 Morse v. Phinne.v, xxii.. .50.3 41 Moss. The Queen v.. xxvi.. .322 54. 77. K'.O. 184 Mott. Stuart v.. xxiii.. 15.3 and 384 00. 220 Mowat v. Boston ^Marine Ins. Co.. xxvi.. 47 128 Alowat V. DeLisle. xxv.. 1 2. 10, 74. 175. 188, 199. 277 ^Mnlcahy v. Archiliald, xxviii., 52.3 84, 115 Mulcair rt al. v. City of Montreal, xxviii.. 4.58 107, 185 Murdoch v. West. xxiv.. .305 61 Murphy. Bridfiewater Cheese Co. v.. xxvi., 443 .32. 4(). 214 Murphy. Bury v.. xxii.. 137 144 Aiurphy V. Brry. xxiv.. 008 191 , 237 :Murphy v. Labile, xxvii.. 120 103. 1.3.5. 177 Murray. Bury v.. xxiv., 77 2. 100. 198 iMtirray v. .Tenkins. xxviii.. 505 70. 1.52. 27.'> Murr.ny v. .Tones, 2nd April, 1S95 2.88 3IO INDEX OF CASES. PAGE. Murray v. The Queen, xxvi., 203 3, G6 Murray v. Town of Westmouut, xxvii.. 571) 20. UiJ Mylhis V. Jackson, xxiii., 4.S."> 12. l9l N. Nason, Armstrong v., xxv., 2G3 273, 280 National Fire Assurance Co. v. Bernard, (itli May. 18'J8 28S Naylor. Wrayton v.. xxiv., 295 273 Neelon v. Town of Thorolil, xxii., 31M) 45 Neelon v. City of Toronto, xxv.. 571) t!4, 101 New Brunswick Ry. Co. v. Kelly, xxvi.. 341 87, 223 New (i!asy:.>w. etc.. Co. v. Tobin, 7th Nov., 1804 100 New Hamburg v. County of Waterloo, xxii.. 20(i 1,58, 240 News I'rinting Co. of Toronto v. Macrae & ^lacrae. xxvi.. (!05 18, 272 Niairnra ]>istrict Fruit Growers Stock Co. v. Walker, xxvi.. (12!) 117, 211 Nicolet Election C;ise; Hamel v. Leduc, xxix, 178 1)5, 21)0 Nixon v. Queen Ins. Co., xxiii., 2() 124 North Anu'rica, Ins. Co. )f, v. McLeod. 21st Nov.. ISltS 287 North American Glass Co. v. Barsalou. xxiv., 400 02 North American Life Ins. Co., McGeachie v.. xxiii., 148 127 North British Ins. Co. v. Tourville, xxv., 177 H;. 120 Northcote v. Vigeon, xxii., 740 238 North Easthope, Township of, Gibson v., xxiv., 707 01 Northern Pacific Express Co. v. Martin, xxvi., 135 3. 4l>. (i.5, 101 Northern Pac. Ry. Co. v. Grant, xxiv., 540 (Pi. 218 North Shore Ky. Co., City of Quebec v., xxvii.. 102 87, 103, 290 North-west Electric Co. v. Walsh, 13th Oct., 1898, xxix 4(» North- West Transportation Co. v. McKenzie, xxv., 38 34, 40, 03 Nova Scotia, Attv-Gen. of, (Fisheries), et al., Attv-Gen. of Canada v., xxvi., 444 : '. ". ... 1 10, 1 1 8, 143, Tr.\, 281), 290 Nova Scotia Marine Ins. Co. v. Churchill & Co., xxvi., 05 129 Nova Scotia Marine Ins. Co. v. Eisenhauer, 0th May, 1894 144 Nova Scotia Marine Ins. Co. v. Eiseidiauer, 4th May. 1893 288 Nova Scotia Marine Ins. Co. v. Stevenson, xxiii., 137 128 Nova Scotia Telephone Co., O'Connor v., xxii., 27(» 158. 240. 258, 205 O'Connor. Hamilton Bridge Co. v., xxiv., 598 174 O'Connor v. Nova Scotia Telephone Co., xxii., 27(; 158, 240. 258, 205 O'Dell V. Gregory, xxiv., (Mil 1-t O'Douohue V. Bourne, xxvii.. (!.54 20 Oelrichs. Trent Valley Woollen Mfg. Co. v.. xxiii.. 082 00. '20l!. 230 O'Gara v. T'nion Bank of Canada, xxii.. 404 255, 291 O'Neil V. Attoruey-General of Caiuida, xxvi., 122. .2, 48, 70, 102, 11.5, 131, 276 O'Neil & Campbell. The Queen v.. 15th J nne. 1897 288 Ontario Express and Transportation Co., In re Stephens t. Gerth, xxiv., 710 15 Ontario. Atty.-Geu. of., Atty.-Gen. of Canada v., xxiii., 458. . 50, 139, 142, 180, 240 Ontario, Atty.-Gen. of, Att.v.-Gen. of Canada v., xxiv., 170 tProhil)itory Ufpior Laws) .51 Ontario and Quebec. Dominion of Canada v.. xxiv., 498 ,52, 243 Ontario and Quebec, Dominion of Canada v.. Indian Claims, xxv.. 4.34. . 53, 287. 290 Ontario and Quebec, Dominion of Canada v., (Fisheries), xxvi.. 444.. 55, 110, 118, 143, 229. 289 Ontario and Quebec, Dominion of, Canada v., (Common School Fund and Lands,) xxviii., (!09 50 INDEX OF CASES. 3" PAOE. " Oscar & Hattie," The, v. The Queen, xxiii., 390 99 Osgoode, Township of, v. York, xxiv., 282 Kil, 241 Ostium et al. v. Sills et al.. xxviii., 485 5^:5. 2 iS Ottawa. City of, County of Carleton v., xxviii., GOG 2G, 249 Outerbridge, Owen v., xxvi., 272 -lO. 23G Oweu V. Outerbridge, xxvi., 272 i^\ -'^^ l\ Vajzv V. Attorney-General of Ontario, 28th Oct., 189G 288 railiser, Simpson v., 10th Oct., 1898, xxis 23 ran- V. rar6, xxiii., 243 20G larout. Citizens Light & Power Co. v., xxvii., 31G 19, 24G Parks V. Cahoon, xxiii., 92 2r.9 Pavey «& Co., Purdom v., xxvi., 412 3, 140 IVrnette, Clinch v., xxiv., 38."» 13."> Perrault v. Gauthier et al., xxviii., 241 5, 205 Peterboroufrh, Town of. v. Mason, "ith March, 1890 288 Pot»>rson, Snctsiuger, 23rd May, 1894 25 Petrulia, Tov.n of, v. Johnston 290 Phillips, Baxter v., xxni., 317 229 Phillips, " Henry L.," The, v. The Queen, xxv., 091 110 Phinney. Clark v., xxv., 033 141.22' Phinney, Morse v., xxii., .5(!3 41 Pickerel River Improvement Co., Hardy Lumber Co. v., 14th Dec, 1898, xxix., 211 47, 97, 228. 203 Pif;>;ott. Makins v.. 21st Nov.. 1898. xxix.. 188 180 I'ilkington et al.. The Glcngoil S.S. Co. and Grey v., xxviii., 140. .40, 145, 237 Plumnier, Millar v., xxii., 253 214 Poiiite Claire Turnpike Koad Co., The Village of St. Joachim de la Pointe Claire v., xxiv., 480 102, 2i2 Pope. Cole v.. xxix 275 Port Arthur. Town of, Dwyre v., xxii., 241 1.58. 239 Porter v. Hale, xxiii.. 2G5 98. 134. 190 I'owell, Jellett v.. xxvi.. 282 108, 223 Powell V. Watters, xxviii., 133 88, 142, 2<>1, 277 Powers, Martiudale v., xxiii., .597 140. 19S. 2.55 Pratt et al.. Consolidated Electric Ry. Co. v., xxviii., 003 .23. 74 Prescott. Town of, v. Connell, xxii., 147 170 Price. Town of Chicoutimi v., 12th Oct.. 1898. xxix 38, 108, 2.50 Prohibitory Liquor Laws. In it, xxiv., 170 .51. 2!)0 I'n.vincial Fisheries. In re, xxvi.. 444 55. 110, 118, 143, 229. 289 Provincial Natural Gas & Fuel Co., Carroll v., xxvi., 181 0.5, 87 Provincial Provident Institution. Jordan et al. r., xxviii., 554 47, 7o, 127 Pudsey v. Dominion Atlantic Ry. Co., xxv., 091 202. 220 Pudsey. Manufacturers' Accident Ins. Co. v., xxvii., 374 123. 208 Purcell. Cleary v.. xxiii.. 101 44, 253. 279 Purcell. Macdonell v.. xxiii.. 101 44, 2.5.'{. 279 Punloni v. Pavey & Co.. xxvi., 412 3. 140 Quai Sing, In re. Seid Sing Kaw v. Bowes. 17th March, 1898 20. 117. 203 Quel>ec and Dominion of Canada, Province of Ontario v. (Indian Claims), xxv., 434 53, 287, 290 Quebec and Ontario v. Dominion of Canada, xxiv., 498 .52, 2W Quebec and Ontario v. Dominion of Canada. (Common Schools" xx%-iii., 009 .50 Quebec and Ontario. Dominion of Canada v., xxvi.. 444 (Fisheries), .5.5. 110, 118. 143. 229. 289 Quebec Central Ry. Co. v. Lortie. xxii.. 3.30 171 J12 INDEX OF CASES. PAGE. Qnebeo, City of, v. North Shore Ry. Co., xxvii., 102 87, 103, 290 Quebec, City of, v. The Queen, xxiv., 420 ol, 242 Queen, The, Archibald v., xxii., 147 215 Queen, The, Balderson v., xxviii., 201 43, 248 Queen, The, v. Bradley, xxvii., 057 248 Queen, The, Bulmer v., xxiii., 485 12, 00, 77, 79 Queen, The, v. Canada Sugar Ketiniug Co., xvii., 395 139, 240, 289 Queen, The, v. Canadian Agricultural C. & C. Co., xxiv., 713 79 Queen, The, v. Cimon, xxiii., 02 58 Queen, The, v. Coombes v., xxvi., 13 220 Queen, The, v. Demers, xxii., 482 48 Queen, The, Dionne v., xxiv., 451 191 Queen, The, Ellis v., xxii., 7 10, 37 Queen, The, Fairbanks v., xxiv., 711 109 Queen, The, Farwell v., xxii., 5.53 49, 190, 225 Queen, The, v. Filion, xxiv., 482 173 Queen, The, "' Frederiek Gerring, jr ," The, v., xxvii., 271 50, 111, 205 Queen, The, Goodwin v., xxviii., 273 08 Queen, The, v. Henderson et al., xxviii., 425 70, 129, 210, 249 Queen, The, " Henry L. Phillips," The, v., xxv., 091 110 Queen, The, Hereford Ry. Co. v., xxiv., 1 50, 218 Queen, The, Jacques Cartier Bank v., xxv., 84 32, ;i4, 53, 04 Queen, The, Mayes v., xxiii., 454 00 Queen, The, McInto.sh v., xxiii., 180 1, II, 70 Qn"en, The, " Minnie," The, v., xxiii., 478 99 Queen, The, v. >[oss, xxvi., 322 54, ", 109, 184 Queen, The, Murray v., xxvi., 203 3, 00 Queen, The, v. O'Neill & Campbell, 15th June, 1897' 288 Queen, The, " Oscar and Hattie, The, v., xxiii.. 390 99 Queen, The, Quebec, City of, v., xxiv., 420 51, 242 Queen, The, v. Robinson, xxv., 092 215 Queen, The, v. Roche, 8th May, 1895 288 Queen, The, Ross v., xxv., 504 220, 291 Queen, The, St. Louis v., xxv., ()49 101, 291 Queen, The, Toronto Ry. Co. v., xxv., 24 79. 219, 291 Queen, Viau v., 13th Oct., 1898, xxix 24 Queen v. Woodburn, 21st Nov., 1898, xxix 71 Queen, The. Wright v., 15th March, 1895 201 t^ueen Ins. Co., Nixon v., xxiii., 2(5 124 Itaiuville, Grand Trunk Ry. Co. v., 21st Nov., 1898. xxix 181 Raleigh, Township of. Township of Harwich v.. 1th May, 189.5 15 Ifaleigh, Township of, v. Williams, xxi., 103 291 Ramsay, City of Montreal v., 14th Dec, 1898, xxix 108 Raphael v. Maclaren, xxvii., 319 19 Raphael v. Maclaren. 20th Feb., 1898 288 Ray. Street & Co., Isbester v., xxvi., 79 131. 188, 214 Receiver-General of Canada, Hogabooni it al. v., xxviii., 192.. 33, 20.3, 248. 285 Reeves, City of Halifax v., xxiii.. 340 12. 1.59, 197 Reid V. Creighton, xxiv., 09 42 Reid V. McCurry, Gth May, 1898 288 Rennie v. Block, xxvi., 350 3. 43. 1.54. 230 Richards v. Bank of Nova Scotia, xxvi., 381 32. 207 Rio\i V. Riou, xxviii., .53 88, 93, 234 Roberts v. Hawkins, 14th Dec, 1898, xxix 181 Robertson v. Davis, xxvii.. 571 4, 212, 275 Robertson v. Grand Trunk Ry. Co., xxiv.. Oil 219, 243 Robertson v. Junkln, xxvi., 192 188, 281 INDEX OF CASES. 313 PAOB. Kobiu €t fir v. Duguay, xxvii., 347 254, 2'il, 283 KcbiiiBou, Bank of Nova Scotia v., Gth June, 1890 103 Robiusou, Chisholiu v., xxiv., 7W 260 Robinson. The Queen v., xxv., (!92 216 Roche, King v. (Marauette Election Case), xxvii., 21!) 19, 95 Roche, The Queen v., 8th May, 1895 288 Rogers, Adamson v., xxvi., Ii59 140, 289 Rogers v. Toronto Public School Board, xxvii., 448 177 Rolland v. La Caisse d'Economie Notre Dame de Quebec, xxiv., 405 .... 82 Rooker v. Hoofstetter, xxvi., 41 154, 183, 223 Ross, The Queen v., xxv., 5«M 22(5, 291 Ross V. Ross, XXV., 307 130, 138, 281 Rourke v. Union Ins. Co., xxiii., 344 128, 230, 26ft Royal Electric Co. v. Leonard, xxiii., 298 59 Royal Electric Co. v. Three Rivers, City of, xxiii., 289 59 Rudolf, British & Foreign Marine Ins. Co. v., xxviii., (507 106, 129 S. Ste. Cunegoude, City of, v. Gougcon, xxv., 78 16, 162, 244 St. Henri, City of, v. St. Laurent, xxvi., 176 17, 277 St. Hyacinthe Gas Co. v. St. Hyacinthe Hydraulic Tower Co., xxv., 168. 168. 244 St. Joachim de la Pointe Claire, Village of, v. Pointe Claire Turnpike Road Co., xxiv., 486 162, 242 St. John, City of, v. Campbell, xxvi., 1 164 St. John City Ry. Co., Smith v., xxviii., 6t>3 23, 74 St. John Gas Light Co. v. Hattield, xxiv., 164 147 St Laurent, Montreal Gas Co. v., xxvi., 176 17, 277 St. Laurent, St. Henry, City of, v., xxvi., 176 II, 277 St. Douis V. The Queen, xxv., 649 101, 291 St. Paul Fire & Marine Ins. Co. v. Troop, xxvi., 5 128 St. Stephen's Bank v. Bonness, xxiv., 710 133 St. Stephen, Town of, v. County of Charlotte, 8th Nov., 1894 201 St. Stephen, Town of, v. County of Charlotte, xxiv., 329 39, 161 Sales, The Lake Erie & D. R. Ry. Co. v., xxvi., (itWi ^i7^, (i7, 191, 220 Salterio, Citizens Ins. Co. v., xxiii., 155 125 Saltcrio v. City of Loudon F'ire Ins. Co., xxiii., 32 125 Salvas V. Vassal, xxvii., 68 193, 230 Sampson, Martin v., xxvi., 707 18 Sanniel, Craig v., xxiv., 278 214 Sangster, T. Eaton Co. v., xxiv., 708 174 Sansterre, Guertin v., xxvii., .522 4, 37, 2 59 " Santanderino," The, v. Vanvert, xxiii., 145 12 Sargeant, The Agricultural Ins. Co. v., xxvi.. 29 210 Scammell v. Clarke, xxiii., 307 182 School Commissioners of St. Charles v. Cardeau. 9th Dec. 1895 . .15, 143, 202 School Commissioners for Three Rivers, Lariviere v., xxiii., 723 13 Scott V. Bank of New Brunswick, xxiii., 277 81 Scott, The B. C. Mills Co. v., xxiv.. 702 174 Scotteu, Barthel v., xxiv., 367 86, 13S Scottish. Ontario and Manitoba Land Co., Jellett v., xxvi., 282 lOS, 223 Scoullar v. McColl, 24th March, 18!h; 207 Seeley, Cox v., 6th May, 18!K! 34, 67, 102, 192 Segsworth v. Anderson, xxiv., 69!) 122 Seid Sing Kaw v. Bowes, In re Quai Sing. 17th March, 18!)8 20. 117, 203 Sfn^sac V. Central Vermont Ry. Co., xxvi.. 641 102. 17t;, 220 Shannon v. Montreal Park & Island Ity. Co.. xxviii.. 374 22. 26, 221 Shea. Boulton v.. xxii., 742 140, 289 Sheets v. Tait, 1.3th Oct.. 1896 28& 314 INDEX OF CASES. PAGE. Sherboroko, City of, Webster v. ,xxiv., 52 13 Sherbrooke, City of, Webster v.. xsiv., 2U8 161, 241 Sills, et ah, Ostrom v.. xxviii.. 485 1)3, 278 Simpson v. Palliser, 10th Oct., 1898, xxix 23 Sleeth V. Hurlbert, xxr., 020 40, 227, 233 £loan, Edgar v.. In re Hess Maiinfaoturing Co., xxiii., 644 45, 267, 285 Small V. Thompson, xxviii., 211) 89, 147 Smith, Corbett v., 1st May, 1893 98 Smith V. St. John City Ity. Co., xxviii., 603 23, 74 Smith et al., Thompson et al. v., xxvii., 028 284 Snetsinger v. Peterson, 23rd May, 1894 25 Snider, Boyd v. (Macdonald Election Case), xxvii., 201 94 Soci^tC' de Construction Metropolitaine, Baker v., xxii., 364 196, 258 Soci6t6 de Prets et de Placements de Quebec, Lachance v., xxvi., 200 . . 17 Sombre, Township of, v. Township of Chatham, xxviii., 1 167, 277 South Norwich, Township of, Huson v., xxiv., 145 .51, 2C0 Sperry. Kaullmch v. (Lunenburg Election Case), xxvii., 226 95 Stephens v. Boisseau, xxvi., 437 24, 30. 83 Stephens v. Gerth, In re Ontario Exp. & Transportation Co., xxiv., 716. . 15 Stephens v. Gordon, xxii., 61 57 Stevenson v. Canadian Bank of Commerce, xxiii., 530 82 Stevenson v. Davis, xxiii., 629 73, 273 Stevenson v. City of Montreal & White, xxvii., 187 18, 105 Stevenson v. City of Montreal & White, xxvii., 593 227 Stevenson, Nova Scotia Marine Ins. Co. v., xxiii., 137 128 Stewart v. Atkinson, xxii., 315 57 Stewart, Maclean v., xxv., 225 1, 188, 290 Stone, Mayliew v.. xxvi., 58 7, 16, 15)9 Stuart V. Mott. xxiii., 153 & 384 00, 226 Sun Life Ins. Co.. Frank v., 22nd May, 1899 127 Surveyer, Charlebois v., xxvii., 55t) 143 Swan,. Eastern Townships Bank v., 21st Nov., 1898, xxix., 193 24. 204 T. Tait, Sheets v., 13th October, 1896 288 Talbot, Canadian Col. Cotten Mills Co. v., xxvii... 198 104, 177 Taplin, Hunt v.. xxiv., 36 13, 61 Taylor v. Cumming et al., xxvii., 589 30, 84 Taylor ct al., Cummings v., xxviii., 337 84, 114 Taylor, Employers" Inability Ins. Co. v.. 21st Nov., 1898, xxix 124 Taylor v. Foy, 4th March, 1896 288 T. Eaton Co. v. Sangster, xxiv., 708 174 Temple, Atty-General of N. S. v., xxvii., 355 136, 151, 246 Temple v. Commercial Union Assurance Co., 21st Nov., 1898, xxix. ..48, 126 Tew, Jerniyn v.. xxviii., 497 23, 155 Thompson, Small v.. xxviii.. 219 89, 147 Thompson et al. v. Smith et al.. xxvii.. r)28 284 Three Rivers, City of, v. Banque du Peuple. xxii.. .352 38 Three Rivers. City of. Royal Electric Co. v.. xxiii., 289 59 Thorold. Town of. Neelon v., xxii., 390 45 Tobin. New Glasgow Iron. Coal & Ry. Co. v.. 7th Nov., 1894 100 Tooke V. Bergeron, xxvii., .567 149, 177 Toothe V. Kittredge. xxiv., 287 2.52 Toronto. City of, Attorney-General of Canada v.. xxiii., 514 100, 289 Toronto, City of. v. Canadian Pac. Ry. Co., xxvi.. 682 165 Toronto. City of. Consumers Gas Co. v.. xxvii.. 453 29, 160 Toronto, City of. v. Gillespie. 1st May, 1893 1.57 Toronto, City of. Gooderham v., xxv., 246 119. Ifi.*?, 245 Toronto, City of, v. Janis, xxv., 237 163, 223, 245 INDEX OF CASES. 315 PAGE. Toronto. City of, Neelon v., xxv., 579 64. 101 Toronto, City of, v. Toronto Street Ky. Co., xsiii.. 1U8 .......28, ot) Toronto, City of, Toronto Ky. Co. v., xxiv., 580 173 Toronto, City of, Toronto Ky. Co., xxvii., (140 20, 1'47, 291 Toronto, Huron & Bruce Ry. Co., Brierly v., 13th May. 1898 '.."...' 287 Toronto, City of, Virgo v., xxii., 447 l.jt), 291 Toronto Junction. Town of, v. Christie, xxv., 551 .' la Toronto Public School Board, Kogers v., xxvii., 448 177 Toronto Ky. Co. v. Bond, xxiv., 715 175 Toronto Ky. Co. v. Gosaell, xxiv., 582 178 Toronto Ky. Co. v. Grinsted, xxiv., 570 I73 Toronto Ky. Co. v. The Queen, xxv., 24 79, 219. 291 Toronto Ky. Co. v. City of Toronto, xxiv., .589 .....' 17;i Toronto Ky. Co., City of Toronto v., xxvii., (>40 20, 247. 291 Toronto Street Ky. Co., City of Toronto v., xxiii.. 198 28, 59 Torrop T. Imperial Fire Ins. Co., xxvi.. .585 <30, 120, 208 Tourville, North British & Merc. Ins. Co. v., xxv., 177 1(J, 12i'i Townshend, Adams v., 31st May, 1894 287 Trainor, Canada Paint Co. v., xxviii., 352 105, 149, 178 Trel)ilcock. Walsh v., xxiii., G95 33, 70, 241 Tremaine. Byron v.. 14th Dec. 1898 287 Treniblay, Davidson et al.. 10th May, 1895 201 Trenholme. Mitchell v.. xxii., 331 11, 240 Trenton, Town of. v. Dyer, xxiv., 474 102, 242 Trent Valley Woollen Mfg. Co. v. Oelrichs, xxiii., 082 00, 200, 230 Trepannier, Ferrier v.. xxiv., 80 14, lOS, 172, 198 Troop V. Everett, 9th Oct.. 1894 288 Troop, Ferguson v.. xvii.. 527 289 Troop. The St. Paul Fire & ^larine Ins. Co. v.. xxvi., 5 12S Trottier, Banque du Peuple v.. xxviii., 422 9, 22 Turcotte v. Darsereau, xxvi., 578 17, 133, 18.5 Turcotte v. r>anserean. xxvii., 583 5, 185, 200 Turner, Francis v., xxv., 110 82 Turner ct al. v. Bennett et al., Re Ferguson, xxviii.. 38 118. 284 Turner ft al. v. Carson et al.. Re Ferguson, xxviii., 38 118, 284 Union Bank of Canada, Kingston Forwarding Co. v.. 9th Dec, 1895. .34. 1(;2 Union Bank of Canada v. O'Gara, xxii., 404 255, 291 Union Colliery Co. v. Atty.-Gen. of B. C. et ah, xxvii.. 037 20, 132 Union Gas & Oil Stove Co., Angus v., xxiv., 104 110 Union Ins. Co., Kourke v., xxiii., 344 128, 230, 200 V. Vadeboncoeur, Chef dit. v. City of Montreal 155, 235, 2S4, 202 Valad. Township of Colchester South v., xxiv.. 022 14, 198 Valade v. Lalonde et al., xxvii., 551 80. 185, 231 Valois, McMillan v. (Vaudreuil Election Case), xxii., 1 10, 94, 194 Vancouver, City of. v. Bailey, xxv., 02 38, 244 Vancouver. City of. v. Canadian Pac Ry. Co.. xxiii.. 1.....50. 112, 1.59, 291 Van Dulken. DeKuyper v., xxiv.. 114 204 Van Dulken v. DeKuyper. xxiv., 114 204 Vanvert. The '• Santanderino " v., xxiii., 145 12 Va ssal. Sal vas v.. xxvii., 08 l»;i. 2.30 Vaudreuil Election Case (McMillan v. Valoisi, xxii.. 1 10, 94, 194 A'ermont Central Ky. Co., S6nesac v.. xxvi.. (>41 102. 170, 220 Voronneau, Lefeuntun v., xxii., 203 11, 195 3i6 INDEX OF CASES. PAGE. Viau V. The Queoii. 13th Oct., 181)8, xxix 24 Victoria Harbour Ivuniber Co. v. Irwiu, xxiv., tM)" t)3, 27S Vittori aLumher & Mfg. Co., The Win. Hamilton Mfj;. Co. v., xxvi., 9(5.' 102 Viu«'on, Xorthcote v., xxii., 740 23S Vinebcrj; \ . Hampson, 27th Feb., ISDO 92 ViiKo V. City of Toronto, xxii., 447 l.'iy, 291 Vrooni, Connor v., xxiv., 701 2(38 W. AVildie, Lash v., Halton Elec. Case, l.">th March, 1893 9* VValkcr, Niagara District Fruit Growers Stock Co. v., x.'cvi., (!29 117, 211 Walkcrtoi), Towu of, v. Erdnian, xxiii., 3.12 99 Wallace v. Hesslein, 21st Nov., 1898 71. 238, 2tt2, 276 Wallace v. Lea, xxviii., 595 ^ 147, 249 Wallace v. Wiswell, 7th Nov., 1894 288 Wiilsh, North- West Electric Co. v., 13th Oct., 1898, xxix 4t> Walsh V. Trebilcock, xxiii., 095 33, 70, 241 Warmington v. Town of Westniouut, 14th June, 1898 288 Warner v. Don, xxvi., 388 l.'>4, 224, 245 Washington v. (irand Trunk Ky. Co., xxviii., 184 178, 221, 248, 290 Waterloo, County of. The Village of New Hamburg v.. xxii.. 290 . . . .1.58, 240 Waterous Engine Works Co., Hochelaga Bank v., xxvii., 40(i 121. 157, 231, 275 Watson. Alexander v., xxiii., 070 116 Watt, City of London v., xxii., 300 27, 1.58, 240 Watters, Powell v., xxviii., 133 88, 142, 201, 277 Weallean.'*. The Michigan Central Ry. Co. v., xxiv., 309 218, 241 Webb V. Marsh, xxii.. 437 2.53, 2.58- Webster v. City of Sherbrooke. xxiv., 52 13 Webster v. City of Sherbrooke, xxir.. 208 101, 241 Weegar, Grand Trunk Ry. Co. v.. xxiii.. 422 172 West V. Benjamin, 14th Dec. 1898, xxix., 282 189 West, Murdoch v., xxiv., 305 01 West Assinniboia Election Case (Davin v. McDougall). xxvii., 215 ...19, 94 Westmount, Town of, Bulmer v., 14th .Tune, 1898 287 Westniount. Town of. Murray v., xxvii., .579 20, 90 Westmount, Town of, Warmington v., 14th .Tune, 1898 288 West Trince Election Case (Hackett v. Larkin), xxvii.. 241 95 White €t at.. Re Stevenson v. City of Montreal, xxvii., 187 18, 105 AVhite ct ah. Re Stevenson v. City of Montreal, xxvii., .593 227 Whitfield. Macdonald v., xxvii., 94 4. 211, 277 Whitfield v. Merchants Bank of Canada, xxvii., 94 4. 211, 277 Wide v. Williams, xxiv., (13 187 Willne. .Tellett v., xxvi., 282 108, 223 AViiliam Hamilton Mfg. Co. v. Victoria Lumber & Mfg. Co.. xxvi.. 90... 102 Williams v. Bartling. 0th Nov.. 1894 288 Williams v. Irvine, xxii.. 108 10, 239 Williams v. Leonard & Sons. xxvi.. 4(»(! 17, 35, 43 AVil'iams. Township of Raleigh v., xxi, 103 291 Williams. Wigle v.. xxiv.. 713 187 Wilson rt al.. Burns & Lewis v., xxviii., 207 84, 114 Wilson V. Co. of Elgin, xxiv.. IOC 232 Wilson V. The Land Securities Co.. xxvi., 149 210, 274 Winnipeg Election Case (Macdonald v. Davis), xxvii.. 201 94 Wisner v. Coulthard. xxii.. 178 189 Wiswell. Wallace v.. 7th Nov.. 1894 288 Wolloy, I»wenburg. Harriss & Co. v.. xxv.. .51 170. 207 Woodlnirn. The Queen. 21st Nov., 1898 71 Wrayton v. Naylor, xxiv., 295 273^ INDEX OF CASES. Writiht, Armistrouj? v.. xxv., 2C>S Wright V. Bell, xxiv.. »;.>«• • Wright, Collier v., xxiv.. a4 ■■■•••■■• WriSt V. The Quo-u, 15th March. l»9o 3»7 PA(*F. .273. 28(> 11)8. 238 ...7. 14.-. -MX yZv. Township „t. 0.go..ae ;^.^ «.% .. -8. 171 •iSS '.'.'.'.'.I'tJl. 241 .182. 103. 207 217. 230 Z. Zwioker. Ernst v.. xxvi... r»".)4 .247. 284