A DIGEST OF CASES DETERMINED BY THE SUPREME COURT OF CANADA FROM THE ORGANIZATION OF THE COURT, IN 1875, TO THE 1st day OF MAY, 181)3. COMPRISING THE CASES UEPORTED IN VOLUMES 1 TO 21, BOTH INCLUSIVJ"., Ol' THE OEI'ICIAL UEPOKTS OF THE COURT, AND ALSO THE UNREPORTED CASES DECIDED DURING THAT PERIOD. BY ROBERT CASSELS, ESQ. One of Her Majesty's Counsel, a7ul Ren intra)- of the Court. TORONTO : THE CAHSWELL Co (Ltd.), LAW PUBLISHERS, Etc, 18'J3. Z.S6 Entered according to Act of I'lirliameiit of C^atiiwla, in tiic year ISil.S, by KouKUT Casskls, ill thu Office of tlio Miuistor of Agricultui«, TOBONTO . FBINTED BY THK CABSWELL Co. (LTD.) 33, 30 AUBLAIOE HT. BAST. CHIEF JUSTICES AND JUDGES or TirK SUPREME COTTirj' OF CANADA. :u:- CHIEP JUSTICES. lion. Siu William Bukll Richards, Knt. , appointed 8th October, 1875. Hon. Sib William Johnstone Ritchie, Knt., appointed lltli January, 187'J. Hon. SiK IIenuy Strono, Knt., appointed 13th Uocember, IHSCJ. JUDGES. Hon. William Johnstone Ritchie, appointed 8th October, 1875. Hon. Henry Strong, appointed 8th October, 1875. Hon. Jean Thomas Taschereah, appointed 8tli October, 1875. Hon. Telesi'hore Fournier, appointed Hth October, 1875. Hon. William Alexander Henry, appointed 8th October, 1875. Hon. Henri Elzeau Taschereau, appointed 7th October, 1878. Hon. John Wellinoton Gwynne, appointed 14th January, 187!). Hon. Chuistoi'HEK Salmon Patterson, appointed 27th October, 1888. Hon. Robert Sedoewick, appointed 18th February, 18'J3. OFFICERS OF THE COURT. registrar. RoRERT Cassels, Q.C. , appointed 8th October, 1875. reporteb. Georoe Duval, Q.C, appointed 20th January, 1870. assistant reporters. Charles Harding Masters, Barrister-at-Law, appointed temporarily 17tli September, 1885. AucHiiiALD Sandwith Campbell, Solicitor, appointed Hrd Marcli, 1880. CiLVHLES Harding Masters, Barrister-at-Law, appointed Ist October, 188<'. LIBBABIAN. Harbis Harding Bligh, Q.C, appointed Ist July, 1893. MINISTERS OF JUSTICE AND ATTORNEYS-GENER.VL OF THE DOMINION OF CANADA SINCE THE ORGANIZATION OF THE COURT. Hon. EinvABD Blake, appointed lUth May, 1875. lion. RoDOLi'iiE Laklamme, appointed 8th June, 1877. lion. Jamrs McDonald, appointed 17th October, 1878. Hon. Sir Alexwder Campbell, K.C.M.G., appointed 20th May, 1881. Hon. Sib John S. D. Thompson, K.C.M.G., appointed 25th September, 1885. Ar>r>Rf:viATioNF. Civil Code of the Fru- vince of Quebec. A. J. A. Ont., Administration of Justice Act, Ontario. All. N. B., Allen's New BrnnsiiucJi lie- ports. U. C, British Columbia. B. N. A. Act, British North America Act, 18G7. C. C. or ] C. i;. p. Q. or I C. C. L. C. J Can. S. C. R., Supreme Court of Canvda Iteports. C. I.. J., Canada Law Journal. (J. I J. T., Canada Law 2'imcs. ('. C. P. or ) Code of Ciril I'ro- C ('. P. P. Q. orl cedurcoftlicPro- C G. P. L. G J vince of Quebec. C. L. P. Act, Common Law Procedure .let. C. S. N. B., Consolidated Statxites of New Brunswick. G. S. C., Co7ii[., Manitoba. :\I. C. P. Q., Municipal Code of the Pro- vince of Quebec. M. L. R., Q. B., Montreal Law Reports, Queen's Bench. M. L. R., S. C. , Montreal Law Reports, Superior Court. N. v.. New Brunswick. N. B. R., New Brunswick Reports. N. S., Nova Scotia. O. or Ont. , Ontario. Ont. R., Ontario Reports. Ont. App. R., Ontario Appeal Reports. Ont. Jud. Act, Ontario Judicature Act. P. E. I., Prince Edicard Tsla7id. P. iV B. or Puf^s. & Bur., Puijsleij and llurbidiie. New Brumwick Reports. P. Q. , Province of Quebec. Q., Quebec. Q. B. L. G., Queen's Bench of Lower Can ada. Q. L. R., Quebec Law Reports. R, S. N. S., Revised Statutes of Nova Scotia. R. S. O., Revised Statutes of Ontario. Russ. & Geld., Russell and Geldert, Nova Scotia Reports. S. C., Supreme Court. S. C. A. or ) Supreme and Exchequer S. & E. G. A. [ Courts Act. S. C. A. A., Supreme Court Amendment Act. S.C. Dig., Cassels's Supreme Court Digest. U. G. G. P., Upper Canada Common Pleas Reports. U. G. Q. B. , Upper Canada Queen's Bench Reports. U. C. O. S., Old Series of Upper Canada Reports, DIGEST OF CASES DECIDED BY THE SUPREME COURT OF CANADA, Abandonment. See INSURANCE, MARINE, 2, 5, C, 9, 15, 19. 20. Abatement. See ACTION, 5. Absent and Absconding Debtor. See CORPORATIONS, 5. Acceptance— Evidence of. See SALE OF GOODS, 6. Accident. See ACTION, 5, 8. RAILWAYS AND RAILWAY COMPANIES, 2, 7, 23, 26, 4(!, 49, 50, 57, 58, 6G, 69. INSURANCE, LIFE, 7 LANDLORD AND TENANT, li. Accord and Satisfaction. See CONTRACT, 2. Account- Decree for— Imputation of payments—Appropriation by debtor — Statute of Limitations. Set' PAYMENT, 5. 2. Action of — Proceeds of sale of timber. . ^ See TIMBER. 5. CAS. DIG. — 1. ■ _ - ■ 2 Account — Continued. 3. Action en reddition de compte — Contradictory averments in plea — Effect of — Unsworn account. In an action en reddition de compte by an assignor against his assignee, the • assignee by liis plea answered that he wtts not bound to render an account, and at the same time alleged that he had already accounted for the moneys as garnishee in another suit, but he produced an unsworn account, and asked the court to declare the same to be a true and faithful account of his administra- tion, and prayed for the dismissal of the plaintiff's action. Held, reversing the judgment of the Court of Queen's Bench for Lower Canada (appeal side) dismissing tlie plaintiff's action, and restoring the judg- ment of the Court of Review, tinit altliougli the parties hud joined issue and heard witnesses to prove certain items of the unsworn account produced, the pla'ntiff was first entitled to a judgment of the court ordering the defendant to produce a sworn account supported by vouchers, and therefore his action had been improperly dismissed, L'Heureux v. Lamarche.— xii. 460. 4. Reddition de comjytes — Settlement hi/ mandator with his man- datary ivithoat vouchers, effect of — Action en reformation de compte. Held, affirming the judgment of the court of Queen's Bench for Lower Canada (appeal side), that if a mandator and a mandatary, laboring under no legal disability, come to an amicable settlement about the rendering of an account due by the mandatary without vouchers or any for..iality what- soever, such a rendering of account is perfectly legal ; and that if subsequently the mandator discovers any errors or omissions in the account his recourse against his mandatary is by an action en ri-formation de compte, and not by an action asking for another complete account. Gillespie v. Stephens. — xiv. 709. 5. Account — Indivisibility of — By curator — Release — Effect of P. A. A. D., respondent, as representing the institutes and substitutes under the will of the late J. D., brought an action against J. B. T. D. (appel- lant), who was one of the institutes and had acted as curator and administra- tor of the estate for a certain time, for reddition of an account of three particular sums, which the plaintiff alleged the defendant had received while he was a curator. Held, reversing the judgment of the court of Queen's Bench for Lower Canada (appeal side), that an action did not lie against the appellant for these particular sums apart and distinct from an action for an account of his administration of the rest of the estate. The plaintiff in his action alleged that he represented S. D. , one of the substitutes, in virtue of a deed of release and subrogation by which it appeared he had paid to S. D.'s attorney for and on behalf of the defendant a sum of £447 7», 6Jrf,, the defendant having in an action of reddition of account settled by notarial deed of settlement with the said S. D. for the sura of $4,000 which he agreed to pay and for which amount the plaintiff became surety. 3 Account- ''"«''■'!"''(/. Held, that iih the notarial deed of settlement gave the defendant a full and complete disclmr({e of all redditions of account as curator or administrator of the estate, the plaintiff could not claim a further reddition of account of these particular sums. The plaintiff also claimed that he ropi^sented F. D, and E. D. two other institutes under the will, in virtue of two a,y u^nments made to him by them on tlie '2lHt January, IHOSt, and IStli November, IHG'J, respectively. In 18(55, and after the defendant had been sued in an action of reddition of account by a deed of settlement the said F. D. and E. D. af^reed to accept as their share in the estate the sum of 1^4,000 eacli, and t^ave the defendant a complete and full discharf^o of all further redditions of account. Held, aOirming the judj^mcnt of the Court of Queen's Bench, that the defendant '•.(Hild not be sued for a new account, but could only be sued fur the specific performance of the oblij^ations he had contracted under the deed of settlement. Dorion v. Dorion.— xx. 430. 6. Rendeiiug of accounts — Effect )f — Appropriation of payments Sfie PAYMENT, 10. Accretion — Accrues to owner of wJjacent land — Rifjht of Way — I mplied Extinction by Statide—Cubourg Ha Hjout Works —22 V. c. 7'2. By 10 Geo. IV. c. 11, the Cobourf^ Harbour Company were autliorized to construct a harbour at Cobourj^, and also to build and erect all sucli needful moles, piers, wharves, buildinf^s and erections whatsoever, as should be use ful and pi'oper for the protection of the harbour, and to alter and amend, repair and enlarf^o the same as might be found expedient. The Harbour Company commenced their work in 1820 by running a wharf, southerly from the road allowance between lots 10 and 17 of the Township of Hamilton, which now forms Division Street in the town of Cobourg. By means of the mud and earth raised by dredging and gradual accretions, which were pre- vented from being washed away by being confined by crib- work, the original wharf was widened to the full width of Division Street, and in addition they constructed a store house and placed a fence dividing it from the land which appellant (whose lot fronted on Division Street, and extended to the water's edge,) had gained by accretion since the original wharf v/as made. There- upon the appellant filed a bill complaining that his access to this alluvial land was obstructed by the store house and fence which the respondents caused to be placed on the addition to the wharf, and praying that the respondents, other than the Attorney-General, be decreed to remove them. Held, 1. That land gained by alluvial deposits arising from natural or artificial causes, or from causes in part natural and in part artificial, so long as the fact is proved that the accretion was gradual and imperceptible, accrues to the owner of the adjacent land. 2. That the store house and fence com- plained of in this case, were not constructed on any part of Division Street, but on an artificial structure constructed under the authority of a statute, on Accretion — ( 'ontinued. the line of Division Street for harbour purposes, and therefore, appellant was not entitled to be indemnified because he is denied access to his alluvial Knd throujjh the premises of the respondents. 3. That the public ri^ht of way from the end of Division Street to the waters of Lake Ontario, was extin- guished by statute by necessary implication. Corporation of Yarmouth v. SimmoM, L. K. 10 Ch. D. 518, followed. Standly v. Perry.— iii. 356. 2. Of marsh lantls. ■SV« TRESPASS, 10. Acknowledgment of Debt — Wliat sufficient. See LOAN. SALE OF LANDS, 9. Acquiescence — A knowledge of the facta necesnary to constitnte. See MORTGAGE, 10. Action — In rem, by mother of deceased child. See MARITLME COURT OF ONTARIO, 3. 2. Petitoiy — To recover church propex'ty. See PETITORY ACTION. •S. En reddition de compte — Plaintiff entitled to sworn account supported by vouchers — When unsworn account pleaded by defendant and evidence n, 433, a p. a The husband of I'espondent was injured while engaged in his duties as appellants' employee, and the injury resulted in his death about fifteen months afterwards. No indemnity having been claimed during the life-time of the husband, the widow, acting for herself as well as in the capacity of execu- trix for her minor child, brought an action for compensation within one year after his death. Held, reversing the judgment of the Superior Court, and the Court of Queen's Bench for Lower Canada (appeal side) (B''ournier, J. dissenting) (1) Tiiat the respondent's right of action under Art. 105(5, C. C. depends not only upon the character of the act from which death ensued, bui; upon the con- dition of the decedent's claim at the time of his death, and if the claim was in such a shape that he could not then have enforced it, had death not ensued, the article of the code does not give a right of action, and creates no liability what- ever on the person inflicting the injury. (2) That as it appeared on the record that the plaintiff had no right of action, the court would grant the defendant's motion for judgment non obstante veredicto. Art. 433, C. P. C. (3) That at the time of the death of the respondent's husband all right of action was prescribed under Art. 2262, C. C, and that this prescription is one to which the tribunals are bound to give effect although not pleaded. Arts. 2267 and 2188, C. C. The Canadian Pacific Railvjay Co. v. Robinson. — xix. 292. [The judgment in this case was reversed by the Judicial Committee of the Privy Council— .Sfg [1892] A. C. 481] , Adjoining Land Owners — Liabilities and rights of. See EASEMENTS. DAMAGES, 20. 6 Adjudication — By sheriff to joint purchasers — Security recjuired by Art. GH8, C C. P. — Rights of joint adjudicataires. See SHERIFF, 7. Administration Order — Proceedings under — Claim on promissory notes assigned by holder to claimant under agreement to divide proceeds — Champerty — Subse(}uent proof by original holder of notes— Statute of Limitations — Practice. See CHAMPERTY, Administrators — Action against — Evidence of plaintiff as to deal- ings with deceased not admissible — R. S. N. S. 4th Series, c. 96, s. 41. See EVIDENCE. 4. 2. With will annexed — Purchase of land by, when personal assets sufficient to pay off encumbrance. See WILL, 3. a Militia Act— 31 V. c. 40, s. 27—36 V. c. 46—42 V. c. 35— Suit by commanding officer who dies while suit pending — Right of administratrix to continue proceedings. See MILITIA ACT. 4. Sale by under Imp. Stat. 5 Geo. II. c. 7, validity of. See MORTGAGE, 18. EXECUTORS. Advances — To get out timber — Lien for. See LIEN, 2. 2. To get out timber — Proceeds of sales — Account. See TIMBER, 5. Affidavit — To support application for arrest — Reasonable and probable cause. See CAPIAS. 2. Of deceased person, not admitted as evidence on a dt^bats de coniptes. Sje EVIDENCE. 8. 3. Motion to set aside awai'd — Receiving affidavits in reply — Discretion of Court as to. See ARBITRATION AND AWARD, 7. 4. To bill of sale — Omission of words " before me " and of date — Fatal defect— R. S. N. S. 5th series, c. 92, s. 4. See CHATTEL MORTGAGE, 11. Affidavit — ('(lutiuucd. 5. To bill of sale — " Against the creditors of the bargainor " — Sufficiency of. See CHATTEL MORTGAGE, 13. 6. Newspaper Act, Manitoba — 50 V. c. 23 — Authority to publish — Deposit of affidavit or affirmation — Contents — Who may make — Authority of commissioner to take. See LIBEL, 6. NEWSPAPER. PRACTICE, 29. 7. To bill of sale — Necessity for stating occupation of grantor — Reference in affidavit to bill of sale in which occupation stated. See CHATTEL MORTGAGE, 17. Affirmation — Newspaper Act, Manitoba — 50 V. c. 23 — Authority to publish — Deposit of affidavit or affirmation — Who may affirm. See LIBEL, 6. NEWSPAPER. PRACTICE, 29. Agent — Goods sold by, as principal. See SALE OF GOODS, 2. 2. Insurance agent. See INSURANCE, FIRE, 1, 2, i, 10, 11, 26. INSURANCE, LIFE, '>, 6, 7, 8. INSURANCE, MARINE, 11, 12, 33. 3. Fraudulent receipt of. See RAILWAYS AND RAILWAY COMPANIES, 4. 4. In election — Limited powers of. See ELECTION, 17. " — What necessary to prove authority of. See ELECTION, 20. 5. In Supreme and Exchequer Courts. See PRACTICE OF SUPREME COURT. 6. Deposit in bank — Question as to agency. See BANKS AND BANKING, 4. 7. To sell land — Selling and obtaining conveyance from pretended purchaser — Trustee for principal. See SALE OF LANDS, 5. Agent — Contimied. 8. Contract by, for undisclosed principal See SALE OF GOODS, 12. 9. Husband may be general agent of wife to manage property devised to her, though will diiHicts he shall have no control of her property. See EXECUTORS, 5. 10. Real estate agents — Sale of lands by — Duty of, as to making binding agreement. See SALE OF LANDS, 12. 11. Sale of lands — Authority to deliver deed and receive 2>iirchase money — Agent exceeding mdhority — Memo, to agent — N'ew agreement. One W. sold land under power of sale in a mortgage, and F. became the purchaser, and paid ten per cent, of the purchase money, it being agreed that the balance was to be paid in notes. Shortly after the plaintiff A. brought a deed to F. and demanded the notes. F. wished to show the deed to his attorney, and it was left with him onhiade!"vering to A. a writing as follows: — " Received from E. A. a deed given by W. for a certain piece of hind bought at auction, Saturday, the thirtieth day of September, 187(5, at Midgic. The above mentioned deed I receive only to be examined, and if lawfully and properly executed to be kept, if not lawfully and properly executed to be returned to Edward Anderson. When the said deed is lawfully and properly executed to the satisfaction of my attorney, I, the said Charlea Fawcett, will pay the amount of balance due on said deed, five hundred and seventy-two iloilars, provided I am given a good warrantee deed, and the mortgage, which is on record, is properly cancelled if required." The deed was not returned to A. and an action was brought by him to recover the said sum of $i)7'2, named in the above memorandum. The action was twice tried; and on the last trial a verdict was given for the defendant, under the direction of the judge, and leave was reserved to the plaintiff, to move for a verdict in his favor for nominal c^amages, the purchase money having in the meantime been paid to W. On plaintiff moving for such leave a majority of the Supreme Court of New Brunswick set aside the verdict of the jury, and entered a verdict for the plaintiff, 19 N. B. R. 22. On appeal to the Supreme Court of Canada, Held, (reversing the judg- ment of the court below), Strong, J., dissenting, that the said memorandum did not constitute a new contract between the plaintiff and defendant to pay the purchase money to the plaintiff, who was merely the agent of W., and therefore the verdict for the defendant should stand. Per Strong J. — That the said writing did constitute a new agreement between the parties, but that if A, was merely an agent of W. in the trans- action, he could still sue, as his principal had not interfered. Appeal allowed with costs. Fawcett Y. AndoFBon. — 22nd June, 1885. 9 Agent — ' 'ontinued. 12. Priticlpal awl agent — Contract by agent of two firms — Sale of goods for lump sum, — Excess of authority. An aj^ent of two independent and unconnected principals has no authority to bind his principals or either of them by the sale of the goodo of both in one lot, when the articles included in such sale are different in kind and are sold for a single lump price not susceptible of a rateable apportionment except by the mere arbitrary will of the agent. There can be no ratification of such a contract unless the parties whom it is sought to bind have, either c^ .-essly, or impliedly by conduct, with a full knowledge of all the terms of tht agreement come to by the agent, assented to the same terms and agreed to be bound by the contract undertaken on their behalf. Cameron v. Tate.— xv. ()2'2. 13. Of mortgagee — Power of attorney — Sale of mortgaged lands — Power of sale — Exercise of — Authority of agent. See MORTGAGE, 21. 14. Executrix — Management of estate — Employment of attorney — Misappropriation of funds by attorney — Liability of execu- trix for— Art. 1711, C. C. See EXECUTORS, 11. 15. Principal and agent — Agent of hank dealing with funds con- trary to instructiovs — Discounting for his oxvn accommo- dation. K., agent of a bank and also a member of a business firm, procured accommodation drafts from a customer of the bank which he discounted as such agent, and, without endorsing them, used the proceeds, in violation of his instructions, in the businesH of his firm. The firm having become insolvent tlie (|uestion arose whetlier tliese drafts constituted a debt due from the estate to the bank, or whether the bank could repudiate the act of its agent and claim the whole amount from the solvent acceptors. Held, Gwynne, J., disserting, that the drafts were debts due and owing from the insolvents to the bank. Held, per Strong and Patterson, JJ., that the agent being bound to account to the bank for the funds placed at his disposal he became a debtor to the bank, on his authority being revoked, for the amount of these drafts as money for which he had failed to account. The Merchants Bank of Halifax v. Whidden.— xix. 53. See BANKS AND BANKING, 24. 16. Principal and Agent — Speculating in Stocks — Instructions to Broker — Brokers duty — Money paid for margins. S. , a speculator in stocks, instructed F. a stock-broker to purchase for him a certain number of shares in F. B. stock, expecting to make a profit out of a rise in the value of said stock in the market. — The facts are fully set out in the reports of the case in 6 Unt. R. 505 and 15 Ont. App. R. 541. 10 Agent — ( '<>« t in xu'd. Held, affiitning the judgment of the Court of Appeal for Ontario, that the relation between S. and F. was that of principal and agent, and F. was bnund to purchase the stock and hold it as the property of S. He could not rely on his ability to procure a like number of shares when required, as his interest would be to depreciate Lheir value so as to'obtain them cheaply, which would conflict with his duty to S. F. being about to retire from business as a stock-broker, handed over his stock transaftions, including that %vith S. to C, to which S. consented. C. acknowledf^ed to S. having received from F. the amount paid for margins on the stock which F. was instructed to buy, neither F. nor C. having purchased the stock and set it apart as the property of S. Held, affirming the judgment of the court below, that C. was liable in an action for money had and received, to refund to S. the amount so paid for margins. Present : Strong, Fournier, Henry, Taschereau and Gwynne, J.T. Cox Y. Sutherland.— 24 C. L. J. 55.— 18th Nov., 1887. Agreement — Construction of — Sale of timber — Consideration — Right to recover back money paid. C, after having examined a lot, entered into an agreement with W., the owner, whereby the latter sold all the pine timber standing on the lot to C, "such as will make good merchantable waney-edged timber, suitable for hio purpose, at the rate of $13 per hundred cubic feet," and C. paid to W. $1,000, "the balance to be paid for before the timber is removed from the lot."' C. cut $051.17 worth of first-class timber, suitable for the Quebec market, which was all of that class to be found on the lot, and sued V/. to recover back the balance of the $1,000, namely, $848.83. Held, that the true construction of the contract was that W. sold and granted to C. permission to enter upon his lot, and cut all the "good mer- chantable timber there growing, suitable for his purpose," and not merely " first-class timber " ; that there was more than sufficient " good merchant- able timber " still remaining on the lot to cover the balance of the $1,000, and that there was no evidence to show that the contract had been rescinded. Per Taschereau and Gwynne, JJ. — That the payment of the $1,000 was an absolute payment, the plaintiff believing and representing to defendant that tliere was sufficient timber to cover that amount, if not more, on the faith of which representation defendant entered into the contract, which he other- wise would not have done, and that if the plaintiff made an error, he, and not the defendant, nmst suffer the consequences of this error. Clarke v. White.— iii. 309. 2. Special agreement, non-fulfilment of — Indebitatus counts. L. sued N. ei al. to recover from them, under specially endorsed writ, the balo-nce of account due under and in pursuance of an agreement under seal providing that " L. was to run according to his best art and skill a tunnel of 200 feet for the sum of four dollars per running foot; that $150 should be advanced on account of the contract, the balance to be paid on the satisfactory 11 Agreement— ' '"«t'»"'''/. completJon of tlie work." L. made five tunnels, none of which were 200 feet, but chiiined he had done in all 204 feet. In addition to the count on the agreement the plaintiff inserted in his declaration the comr.ion counts for work and labor. Held, that there was not a sufficient fulfilment of the aj^reement and inasmuch as L. had given no particulars, nor any evidence under tiie in- debitatus counts, the rule absolute of the court below, orderinfj judf^ment to be entered for the defendants, should be affirmed and the appeal dismissed with costs. Lakin y. Nuttall.— iii. 685. 3. Additional pai'ol term in. See RAILWAYS AIsD RAILWAY COMPANIES, 6. 4. Construction of — Property in timber — Ownership and con- trol of timber until payment of dr^ft given for stumpage under the agreement. The respondents, owners of timber lands in New Brunswick, granted C, & S. a license to cut on twenty-five square miles. By the license it was agreed inter alia : " Said stumpage to be paid in the following manner : Said company sliall first deduct from the amount of stumpage on the timber or lumber cut by grantees on this license as afore-iaid, an amount e(iual to tlie mileage paid by them as aforesaid, and the wliole of the remainder, if any, shall, not later than the 15th April next, be secured by good endorsed notes, or other sutlicient security to be approved of by the said company, and payable on the 15th July next, and the lumber not to be removed from the brows or landings till tlie stumpage is secured as aforesaid. And said com- pany reserves and retains full and complete ownership and control of all lumber which shall be cut from the afore-mentioned premises, wherever and however it may be situated, until all matters and things appertaining to or connected with this license shall be settled and adjusted, and all sums due or to become due for stumpage or otherwise shall be fully paid, and any and all damages for non-performance of this agreement, or stipulations herein expressed, shall be liquidated and paid. And if any sum of money shall have become payable by any one of the stipulations or agreements herein expressed, and shall not be paid or secured in some of the modes herein expressed within ten days thereafter, then, in such case, said company shall have full power and authority to take all or any part of said lumber where- ever or however situate^, and to absolutely sell and dispose of the same either at private or public sale, for cash ; and, after deducting reasonable expenses, commissions, and all sums which may then be due or may become 'ue from any cause whatever, as herein expressed, the balance, if any there may be, they shall pay over on demand to said grantees, after a reasonable time for ascertaining and liquidating all amounts due, or which may become due, either as stumpage or damages." For securing the stumpage payable to respondents under this license, C. * S. gave to the respondents a draft upon J. & Co., which was accepted by J. & Co,, and approved of by the respondents, but which was not paid at maturity. After giving the draft C. & S. sold the lumber to J. & Co., who knew the lumber was cut on tin plaintiff's laud 12 Agreement - ' 'i»itinufr rod, company to furnish cars for lum- ber." Sif^ned "T. it W. M.," and "A. B. F." F. controlled nine-tenths of the stock, and publicly appeared to be and was understood to bo, and acted as, manaj^inj^ director or mana^jer of the company, althouf^h ho was at one time contractor for the building of the wliole road. T. ife W. M. built the fence and the C. C. R. Co. have had the benefit thereof ever since. The case was tried before Patterson, J. and a jury and on the eviduncu, in answer to certain (juestions submitted by the judtre the jury found that T. & W. M., when they contracted, considered they were contractiii",' with the company throu^jh F., and that tliore was no evidence that the company repudiated the contract till the action was brought, and that the payments made were as money whioli the company owed, not money wliich they were paying to be charged to F., and a general verdict was found for T. & W. M. for 8il2,21H..';i. On apptial to the Supreme Court of Canada, Held, (affirming the judg- ment of til!) court below) that it was projiorly left to the jury to decide whether the work porforMod, of whicli tlio C. C. R. (Jo. received the benefit, was contracted for by the company through the instrumentality of F., or whether they adopted and ratified the contract, and tint the verdict could not be set asiile on the ground of being against the weight of evidence ; (Ritchie, C.J. and Taschereau, J., dissenting, on the ground that there was no evidence that F. had any authority to bind tne company, T. A W. M. bemg only sub-contractors, nor evidence of ratification.) 2. That although the contract entered into by F. for the company was not under seal, the action was maintainable. Canada Central Railway Company v. Hurray— viii. 818. Agreement— ^''>M<"iu<'/. [In this GUBe the Judicial Committee of the Privy Council refused leave to appeal. Application refused on the ground that the question raiHcd involved no- issue except an issue of fact ; and tliat the judniw helow had differed upon a question of fact in re>{ard to an ordinary contract' of employment did not seem to be any reason for pormittinf> an appeal, having regard to the terms of the statute whi'''l> now regulates these appeals. Their Lordships also stated that they were desirous in this case " to lay down tiio rule tiiat they will in future expect [larties who are petitioning for leave to bring an appeal before this Hoard to state succinctly, but fully, in their petition the grounds upon which they make that demand. They cer- tainly expect that parties will confine themselves in future to the petition, and will not wander into extraneous matter, such as the record and proceed- ings, over which this Board, until an appeal is permitted and the papers arc sent to England by the proper authorities, have no control, and which tliey cannot accept on an ex parte statement, which an api)licatic>n of this kind is." 8. App. Cases S74.- aoth June, 1HM8. 7. 2\) pledijc, 7nonei/s by a debtor — Validity of- — Articles 19G0, 1000, 1970, a. a (r., in 1H78, being unable, on account of depression in business, to meet his liabilities, applitnl to his creditors for an extension of time for the pay- njent of their claims, showing a surplus of ^(i,000, after deduction of his bad debts. The creditors consented to grant his request, and agreed to accept G.'s notes at 4, 8, 12 and Id months, on condition that the last of them should bo endorsed to their satisfaction. N. (the respondent) agreed to endorse the last notes on condition that G. should deposit in a bank in his (N.'s) name 875 per week to secure him for such endorsation, and G. signc^d an agreement to that effect. Thereupon N. endorsed G.'s notes to an amount nf over $4,000, and they were given to G.'s creditors. On ;!lst July, 18711, G,, after having deposited $2,007.87 in N.'s name in the Ville Mario Bank, failed, and N. paid the notes he had endorsed, partly with the 82,007.87. B., as assignee of G., brought an action a^^ainst N., claiming that the payments made to N. by G. were fraudulent, and prayijig that the nioiiey so deposited might be reimbursed by N. to B., for the benefit of all G.'s creditors. Held, (affirming the judg»nont of the Court of Queen's Bench, Ritchie, C.J. and Fournier, J., dissenting), that the arrangement between (J. and N. by which the moneys deposited in the bank by G. became pledged to N., was not void either under the Insolvent Act or the Civil Code ; there was no fraud on the creditors, nor such an abstraction of assets from crei' iters as the law forbids, but a proper and legitimate appropriation of a portion of G.'s assets in furtherance and not in contravention of the rights of the creditors, giving at the most to the surety a preferential security which could not be said to have been in contemplation of insolvenoy or an unjust preference. Beau8oleil V. Normand.- ix. 711. u Agreement — ' 'imtimu'd. y. With CJovt'i'ument of Canada fui continuous possession of rail- road — Construction of. .SV<; PETITION OF RIGHT, 15. 0. For advances to get out timber. S,'c LIEN, 2. 10. Agreement fa insiur ship to (imount of advances — -H V. c. 15, (Q.) — Continuance of cause under, so as to suspend prescription. Appciil from a, jiulj,'ment of tlie Court of Queen's Bench for Lower Canada (a|)))eal side) reversing a judgment rendered by the Superior Court, at Quebec, on the I'.lth of May, ISSiJ, condemning tlie respondents, as repre- sentatives of tlie lute firm of George Burns Symes & Co., to pay the appellant a sum of ?'iO,4',)L74, with interest from the 13th of July, 187(1, and costs. The claim arose out of an alleged breach of contract by Symea (V Co., in not insuring according to agreement to the full e.xtei.t of their advances thereon the ship " lOmpress Eugenie," belonging to the appellant, the loss of which entailed upon him heavy damages. The facts of the case may briefly be stated as follows : — For several years previous to 1857, the firm of Symes & Co. had large dealings with the appellant, consisting principally in advances, which they made to the appellant on the security of ships, which the latter, a shipbuilder, constructed and disposed of through them. During the course of such transactions, on the 18th of August, 1851, the appellant assigned to Symes & Co. the ship " I'^mpress Eugenie," together with the freights and earnings of the vessel, for £18,500, in trust, to sell her at such time and place as they might judge best ; to receive the price and earnings thereof; and out of the moneys arising from such sale, freight, earnings or hire, or otherwise coining into their hands on account of the ajipellant, to retain so much thereof to pay the said sum of £18,500, and all other sums then due to them by the appellant, or which they might thereafter pay, lay out or advant;e for him, and all other moneys due for charges, expenses, interest and commission, as speci- fied in the deed. It was also stipulated in the dend tliat the said vessel and her freights should at all times be kept insured by the said George Burns Symeg & Co. to at least the full amount of the advances made by them in respect thereof, and to such further reasonable amount as the appellant might see fit, the premiums of such insurances to be deducted from the moneys arising out of the promises. The " Empress Eugenie" left the port of Quebec for Liverpool with a full cargo, but owing to the depressed state of the market she could not be sold, and it was agreed that she should be classed and coppered, in order that she might be run with freight until a more favorable opportunity occurred to , wliich, according to tlie deed of the 18th of August, 1854, tliey wore entitled to place to the credit of their advances on the " Einpresa Enneiiie." The vessel, after boinj,' clansed and coppered, was iuHured for #()H,000, and left Liverpool in destination for the port of Quebec with a carjjo, the freif{ht of which was valued at Si7,(iOO, and insured for tliat sum. Hlio was lost on her voyage. Syines it Co. credited the amount received to the appellant, and in 1857 they brouf^ht an action against him for 0. balance of i^2,i)2U Is. '.Id. on their (general account. Tiie appellant contested the account, and pleaded that Symes & Co. had nej^lected to insure the " Empress Kufjenie" totlio fulloxtentof theiradvancea, and that he had thereby lost a lar(>e sum of money, exceedin>» the amount which they claimed from him and which was thereby compensated, and he prayed that the action be dismissed. The appellant made no incidental demand. In 1873, while tht case was still pending, the record was destroyed by the burnint,' of the Quebec court house. More than two years after, the appellant petitioned under the Quebec Statute 37 V. o. 15, for leave to recommence the proceedings, which was granted to him, and he instituted the present action against the respondent as representing George Burns Symes and David Douglas Young, who had composed the late firm of Symes & Co., and were then deceased. The majority of the Court of Queen's Bench for Lower Canada were of opinion that the demand of the appellant, not having been made in the first case, conld not be deemed to be a recommencing of the cause or proceeding of which the record was burned within the meaning of 37 V. c. 15 (Q.), and was not a continuance of said cause or proceeding so as to suspend prescrip- tion within the meaning of sections 7 and 21 of that Act. But the court did not consider it necessary to enter into the consideration of the question of prescription, preferring to rest their judgment on the broader ground that the respondents were only bound to insure for the amount of their claim. On appeal to the Supreme Court of Canada, Held, Per Ritchie, C. J., and Strong and Gwynne, JJ., affirming the judgment of the Court of Queen's Bench, (Fournier and Henry, JJ., dissenting), that the amount for which Syiues & Co. were bound to insure the ship under the agreement was the amount of any balances which at any time might be due to them by api)ellant for moneys paid or laid out and expended by them on account of appellant with reference to the ship, viz., for the amount of moneys for which the ship was liable to them under the deed, and not for the cost of said ship, or the aggregate amount of all advances which they might have made, irrespective of the sums received by them to be applied on account of such advances. Appeal dismissed with costs. Gingras v. Symes.— 12th January, 1885. 11. Construction of — Estoppel — Misrepresentation. G. M. , a man of education, well acquainted with commercial business, executed a bond to pay certain sums of money, in certain events, to the Merchant's Bank of Canada. By an agreement, bearing even date with the bond, it was recited inter alia that, in consideration of a mortgage granted to 16 Agreement — < 'ontimied, the bank by M. Bros. & Co., the bank had agreed to make further advances to M. Bros. & Co., joint obHuora with G. M., and parties to the af^reement, and that the agreement was executed to secure the bank in case there should bo any deficiency in the assets of the Arm, or in the value of the property comprised in said mortgage, and to secure the bank from ultimate loss. The agreement contained also a proviso that if the firm should well and truly pay their indebtedness, then the bond and agreement should become wholly void. In a suit brought upon the said agreement against G. M., alleging a deficiency in the assets of the firm and indebtedness to the bank, G. M. pleaded that the agreement had been executed by him on repre- sentation made to him by one of his co-obligors that it was to secure the bank against any loss which might arise by reason of the refraining from the registration of the mortgage, or by reason of any over-valuation of the property embraced in the mortgage, and not otherwise. The bank, the plaintiffs, made no representations whatever to the defendants. Held, affirming the judgment of the Chancery Division of the High Court of Justice for Ontario (Gwynne, J., dissenting), that G. M. was bound by the execution of the documents, and was liable upon them according to their tenor and effect. Moifatt V. Merchants Bank of Canada. — xi. 46. [The Judicial Committee of the P. C. refused leave to appeal in this case.] 12. Between agent of vendor and purchaser — Delivery of deed — Agent exceeding authority. See AGENT, 11. 13. Agreement xvith viu7iicipality — Construction of tramway — Traction engine — Agreement to withdraiv and discontinue use — Includes steam engine. An agreement was entered into under the authority of an Act of the Legislature of Ontario, between the municipality of York and the Toronto Gravel Road Co., for a right to construct a tramway from their gravel pits to the city of Toronto. One of the clauses of the agreement was as follows : — " So soon as this agreement shall have been ratified by the said corporation,, the said company shall forthwith withdraw thsir said traction engine from the public highway of the said county, and shall discontinue the use and employment of the said traction engine, or of any other traction engine, upon or along such public highways." The company claimed the right to put steam engines upon the road, over such public highway, notwithstanding the above clause in their agreement. Held, (affirming the judgment of the Court of Appeal, 11 Ont. App. R. 765) that the use of steam engines was an infraction of the said clause. Toronto Gravel Road Co. v. County of York.— 16th Nov. 1885. — xii. 517. 14. To purchase railway — Contract for hire — Rolling stock — Refer- ence to arbitration — R. S. O. c. 50, s. 189. See RAILWAYS AND RAILWAY COMPANIES, 39, 17 Agreement — Contin wd. 15. Street railway — ProviHioii in by-law and aj^reenient purenant thereto for aHHiuain<^ ownership by corporation of city upon givinjr six niontliH previous notice, construction of. See CORPORATION S, 3<). IG. Written iiiatrument — Collateral jxirol agreement — Admissi- bility of evidence of — Work and labor — Security — Lien. Hy an aureenient in writing; H. contrixcted to cut for A. a quantity of wood and haul and deliver tlie uamu at a time and to a place mentioned, 13. to pay for the same on delivery. The at^reenient made no provision for securing to A. the payment of hia labor, but when it was drawn up there was a verbal agree- ment between the parties that in default of payment by II. the wood could be held by A. as security and be sold for the amount of his claim. Held, reversing the judgment of the court below, Henry, J., dissenting, that evidence of tlus verbal agreement was admissible on the trial of an action of replevin for tlie wood by an assignee of A., and that its effect was to give B.. a lien on the wood for the amount due him. Byers v. McMillan.— xv. 194.. 17. Agreement between two persons to buy mining land on specu- lation — Renewal of agreement from time to time — Secret agreement witli third person by one partner — Relation back of sale to date of first agreement. See PARTNERSHIP, 11. 18. User of land — Way of necessity — License — Construction of agreement. See EASEMENT, G. 19. Wi'itten agreement — Intoxication of party executing — Consid- eration. See EVIDENCE, 5. 20. To operate lines of telegraph — Trouble de droit — Lessor and lessee — Claim for reduction of rent — Trespass — Arts. 1612, 1614, 1618, C. C. See LEASE, 12. 21. To manage tug on commission — Special conti-act for rescue of tug — Action by agents of owner for salvage. See MARITIME COURT OF ONTARIO, 7. 22. Manufacture of patented articles — Substitution of new agree- ment for — Evidence. B. was the patentee of a machine called the Windsor loom, for making skirtings, etc., and in 1884, she entered into an agreement with the defendant CAS. DIG. — 2 18 Agreement -' KntimuiL ooinpnny to Hiipply tli«m with the lonmn, on which thoy were to manufacture tho (JooiIh and pay a royalty of one cent u a(]uare yard tlioreon, the minimum sum for siicii royalty to bo ^50 a month. Tho jjatent of H. waH to ox|)iro in 1801. Prior to this HKrocmt'nt, in 1SH2, 11. had j;raiit Rep. 341, con- firming! the report of a master on a reference, reversed on tlie {ground that the miiiSter had exceeded his authority and reported on matters not referred to him. Doull Y. Mcllreith.— May 2, 1887.— xiv. 739. 24. S. k E. C. Act, 8. 29 {h)—Pri>(rs Verhal by Municipal Council ordering improveinont of road — Future Rij^hts. See COKPORATIONS, 37. 25. Capias — Petition to be discharged — Final judgment in a judicial proceeding. See JURISDICTION, 52. 26. Appeal direct fi'oni Divisional Court of Ontario — Special cir- cuiuHtance.s — Decision of Court of Appeal on abstract ques- tion of law~S. & E. C. Act, R. S. C. c. 135, s. 26. See PRACTICE OF SUPREME COURT, 12. 27. Notice of — Rides of Maritime Court — Effect of — R. S. C. c. 1S7 , SH. IH and 19 — Judgvient of Swrrogdte — Pronouncing of — Entry by Registrar. Rule 2()9 of the rules of the Maritime Court of Ontario requires notice of appeal from a decision of that court to the Supreme Court of Canada to be f»iven within fifteen days from tiie pronouncing,' of such decision. A judgment of the Maritime Court was handed by the surroj^ate to the registrar, but not in open court, and was not drawn up and entered by the registrar for some time after. Held, Taschereau, J., duhitante, that notice of appeal within fifteen days from the entry of such judgment was sufficient under the said rules. Qus inorittir rinn pcr- sond— Lord Campbell's Act— C S. N. B. c. 86. See ACTION, 5. 41. Action for small amount — Proprleti/ of appeal in. Although the court cannot refuse to liear an iippeal in a case in which only twenty-two dollars is involved, yet the briiif^ingof appeals for such trifling? amounts is objectionable and should not be encourn^'eil. McDonald y. Gilbert, -xvi. 700. 42. Final judgment — Judgment on dennirrer to replication to plea not deciding any part of action — Jurisdiction. See JURISDICTION, 67. 43. Supreme Court of the N. W. T. — Appeal from Coui-t of Revision to — Origin of proceedings — S. & E. C. Act, R. S. C. c. 135, s. 24—51 V. c. 37, s. 3 (D.) See JURISDICTION, 68. 44. Award of official arbitratoi's — Compensation for land taken by expropriation — Duty of a^ipellate court. See ARBITRATION AND AWARD. 17. 45. Judgment dismissing petition to set aside judgment in action to realize mechanics' lien — No jurisdictitfn — Discretion of Court or Judge -S. & E. C. Act, R. S. C. c. 135, s. 24 (a) and s. 27. See JURISDICTION, 69. 46. Award of official arbitrators — Expropriation — Appreciation of evidence— Weight of evidence — Appeal to Suj)reme Court. See ARBITRATION AND AWARD, 18. 47. Action for partition and licitation of property — Partnerahip — Plaintiff's interest less than $2,000—8. & E. C. Act, R. S. C. c. 135, s. 29. See JURISDICTION, TO.j 25 Appeal — (Jiiutimu'd. 48. Jud(^i;ient of Q. B. L. C. quashinjif writ of appeal aa issued con- trary to Art. IIIC, C. C. P. — Not a tinal judgment from which appeal will lie — Amount in controversy — Ss. 28 & 29 S. & E. C. Act, R. S. C. c. 135. .See JURISDICTION, 71. 49. The Ontario Judicatui-e Act, 1881, s. 43, limiting appeals to the Supreme Court is altra vires of the provincial legislature. See LEGISLATURE, 17. 50. Judgment (m motion for non-suit or new trial — Notice of appeal — S. & E. C. Act, R. S. C. c. 135, ss. 41, 42 — Extension of time for giving notice — Application after time expired. See JURISDICTION, 73. 51. Judgment on motion for new trial— Construction of — S. & E. C. Act, R. S. C. c. 135, s. 24 (J)— Non-jury case. See JURISDICTION, 74. 52. Court of Appeal — Functions of — Difference between jury and and non-jar I) cases. Held, per Strong J. An appeal court exercises different functions in dealing vvitli a case tried by a judge without a jury from tliose exercised in jury cases. In tlie former case the court has the sams jurisdiction over the facts as the trial judge, and can deal with them as it chooses. In the latter the court cannot be substituted for the jury to whom the parties have agreed to assign the facts for decision. Phcenix Insurance Co. v. MoGhee.— xviii. CI. See INSURANCE. MARINE, 30. 53. Jurisdiction — Amount in controversi/ — Supreme and Exchequer Courts Act, c. 1J5, s. 29 — DanKUjes — Discretion of court of first instance as to amount. Where the plaintiff in an action for #10,00;) for damages obtains a judg- ment in the Superior Court for Lower Canada for $2,000, and the defendant appeals to the Court of Queen's Bench, where the judgment is reduced below said amount of $2,000, the case is appealable by the plaintiff to the Supreme {'curt, the value of the matter in ^lontroversy as regards him being the amount of the judgment of the Superior Court (Taschereau and Patterson, JJ., dis- senting;. The amount of damages awarded by the judge who tries the case in hia discretion in the court of first instance, should not be interfered with by a court of appeal, unless clearly unreasonable and unsupported by the evidence, or there be some error in law or fact, or partiality on the part of the judge. Levi v. Heed, 6 Can. S. C. R. 482, and Gingras v. De»ilet», Dig. " Damages," 28, followed. CosBette V. Dun.— xviii. 222. 26 Appeal — ContiniMl. 54. Validity of by-law— S. & E. C. Act, R. S. C. c. 135, ss. 24 (r/), 29 ((0 and (h) and .'50 — Constitutional question not involved in appeal — Jurisdiction. See JUHISDICTION, 70. 55. ilandanms, proceedinj^s on — Intei'locutory jud^iiu-nt in, not appealable— S. Ar E. C. Act, R. S. C. c. 185, s. 24 (r/)— The word " judfjfiiicnt" in that sub-section means final judf^inent. ,SV.' JUUISUICTION, 77. 56. Order for a new tiial — Insufficient answer by jury to one of the questions — -Not a final jud<;uient — S. & E. C. Act, R. S. C c. 13.5, s,s. 24 ((/) 80 and 61. .SVc JURISDICTION, 78. 57. Judji^iiient dii'oetin<^ petition contesting; seizure to be proceeded with at same time as main action — Not appealable — S. & E. C. Act, R. S. C. c. 185, ss. 24 and 28. .S><' JURISDICTION. 7!». 5iS. New trial ordered by court of Q. B. L. C. sua inoiiv on ground that assignment of facts and answers of jury insufficient — Not a final judgment— S. & E. C. Act, R. S. C. c. 185,ss.24, 27, 2)— Arts. 857 and 887, C. C. P. -Art. 1624, C. C— Jurisdiction. See JURISDICTION. 83. 27 Appeal — Continued. 64. Finding of coxirtw below — Questions of fact — Interference with. See EVIDENCE 63. 65. Sollcltoi' — BUI of costs — Reference to tdximj viasfer — Pro- cedure. It is doubtful if a decision affirinins? tlie master's ruling on taxation of a solicitor's bill of costs, wliich relates wholly to the practice and procedure of the High Court of Justice for Ontario, and of an ofHcer of that court in con- BtruinK its rules and e.xecuting an order of reference made to him, is a proper sr.bject of appeal to the Supreme Court. O'Donohoe v. Beatty.— xix. 350. Au(Uee HOIjICITOR AND CLIENT, 7. 66. Quest Ion of fur t — Finding of trial judge (iffirnied by Court of A/)j)eid. Held, Stronji, J., dissenting,', that the questions raised wore entirely matters of fact, as to which the decision of the trial jud^e who saw and heard the witnesses, confirmed as it was by the Court of Appeal for Ontario should not bn inf jrfered with. Bickford v. Hawkins. — xix. 3C2. 67. By-law, repealed before appeal brouijjht from judji^nient on motion to quash — Appeal as to costs — Jurisdiction — S. & E. C. Act, R. S. C. c. 135, s. 21. See JURISDICTION, 85. 68. Jurisdiction — Action to set aside a procts-verhal or hy-law — Appeal — S. J4 (g) O't^d s. 29 of the Supreme and Exchequer i'oavts Act. The municipality of the County of Verchferes passed a by-law or proch- verbal defininf> who were to be liable for the rebuilding and maintenance of a certain bridge. The municipality of Varennes by their action prayed to have the by-law or yntcis-verhal in question set aside on the ground of certain irregularities. Tlie action was maintained and the by-law set aside. On appeal to the Supreme Court of Canada : Held, that the case was not appealable and did not come within b. 29 or 8. 24 ((/) of the Supreme and Exchequer Courts Act, no future rights witiiin the meaning of the former section being in question, and the appeal not being from a rule or order of a court ()uashing or refusing to quash a by- law of a municipal corporation. County of Yercheres v. The 'Village of Varennes.— xix. 3G5. 69. Jurisdiction — Future rights — Servitude — S. & E. C. Act, R. S. C. c. 135, s. 29(/>). _ , .. ^^ - &'e« JURISDICTION, 87. 28 Appeal — Continued. 70. Expropriation for railway purposes — B. S. Q. Art. 5104, ss. 12, I(), 17, 18, 24 — Award — Action to set aside — Amount in Controv^ersy — Interest — Costs — Jui'isdictioii. See JURISDICTION, 88. 71. Final judgment — Specially endorsed writ — Order allowing judgment to be signed — Practice — Jurisdiction. Sec JURISDICTION, Si). 72. Election 2:)etition — Appeal— Dismlu t ion of Parliament — Re- turn of deposit. In the interval between taking of an appeal from a decision delivered on the 8tli November, 1890, in a controverted election petition and the February sittings (18!)1) of the Supreme Court of Canada, parliament was disHolved, and by the effect of the dissolution the petition dropped. Tlie respondent subse- quently, in order to have the coats that were awarded to him at the trial taxed and paid out of the money deposited in the court below by the petitioner as security for costs, moved before a judge of the Supreme Court in chambers (the full court having referred the motion to a judge in chambers) to have the appeal dismissed for want of prosecution, or to have the record remitted to the court below. The petitioner asserted liis right to have his deposit returned to him. Held, per Patterson, J., that the final determination of the right to costs being kept in suspense by the appeu^l the motion should be refused. Held, also, inasmuch as the money deposited in the court below ought to be disposed of by an order of that court the registrar of this court should certify to the court below that the appeal was not heard, and that the petition dropped by reason of the dissolution of Parliament on the 2nd February, 1891. Halton Election Case. Lush v. Waldie.— xix. 557. [In this case the petitioner subsequently moved before the Supreme Court of Canada for an order directing the repayment to him of the $1000 and $100 respectively deposited in the court below as security for costs. The petitioner shewed that he had made an application to obtain these moneys to the Chief Justice of the Q. B. D. of the H. C of J. for Ontario, which application had been dismissed. The Supreme Court thereupon declared that the petition having been held to be abated by the Hon. Mr. Justice Patterson and his order not having been appealed from, the petitioner was therefore entitled to be paid the said suras. — 15th March, 1893.] 73. Supreme and Exchequer Courts Amending Act, 1891,54--55 V. c. 25, 8. 3 — Appeal from Court of Review. By section 3 of the Supreme and Exchequer Courts Amending Act of 1891, an appeal may lie to the Supreme Court of Canada from the Superior Court in Review, Province of Quebec, in cases which, by the law of that i'ro\''ince, are appealable direct to the Judicial Committee of the Privy Council. 29 Appeal — Continued, A jiidtjment was delivered by the Superior Court in Review at Montreal in favour of D., the respondent, on the aame day on whichjthe Amending Act came into force. On an appeal to the "Supreme Court of Canada taken by the appellants — Held, that the appellants not having shown that thejjudtjnient was do- livered subsequent to the passin<> of tlie Amending Act tlie court had no jurisdiction. Qitere, whether an appeal will lie from a judgment pronounced after the passing of the Amending Act in an action pending before the change of the law. , HuFtubise v. Desmarteau. — xix. 502. 74. Order reatraininji^ action with liberty to apply — Judicial dis- cretion — Final judj;,'ment — Jurisdiction — S. & [E. C. Act,, R. S. C. c. 135, 88. 2 {e) and 27. See JURISDICTION, 91. 15. Leave to appeal — Windwg-up Act — Leave (jrnnted after argument of case. After a case under the Winding-up Act was argued, the appellant, with the consent of the respondent, obtained from a judge of the court below an order to extend the time for bringing the appeal, and subsequently, before the time expired, he got an order from the registrar of the Supreme Court, sitting as a Judge in Chambers, giving him leave to appeal in accordance with 8ei;tion 70 of the Winding-up Act, and the order declared that all the proceedings had upon the appeal should be considered as taken subsequent to the order grant- ing leave to appeal. Ontario Bank v. Chaplin.— xx. 1.52. 76. Trust not expressed in deed — Parol evidence of — Enforcement of — Findings of fact by trial judge affirmed by full court not interfered with on appeal. See TRUSTS AND TRUSTEES, 22. 77. Action for call of $1,000— Future rights— S. & E. C. Act, R. S. C. c. 135, H. 29 (h). See JURISDICTION, 92. 78. Tax on Bell Telephone Co. and on Quebec Gas Co. — By-law — Action to set aside — Jurisdiction — S. & E. C. Act, R. S. C. c. 135, s. 24 (g). See JURISDICTION, 93. 79. Acquiescence in judgment — Intervention — Abandonment of appeal by not appealing to intermediate Court of Appeal. See JURISDICTION, 94. ■ 80 Appeal — Cunt in iicd. HO. Election trial — J)eciHi()n — Iiiferoiicos from evidence. See ELE(rri()N, 44. 81. Ac(|uieHcence in jndoineiit — Attoiney^fJ //^'r?(,lias no autlu)rity by aj^reenient with attorney of opposite party to biiul liis client not to appeal. See JUIUSDICTION, i)r>. 82. Election case — Notice of trial — Sufficiency of, under R. S. C. c. 9, s. 81 — Not an objection to be relie*.! on in appeal under 8. 50 (/>) of said statute. See ELECTION, 4(5. 83. Jiirmliction — Action in disavotval — Prescription — Appear- ance by attorney — Service of nu7nvionf< — C. S. L.C c. H,{, s. 4^. In an action brought in 18G(> for the sum of 9H0O and interest at 12^ per cent, atjainst two brothers .1. 8. 1). and \V. McD. D., being the amount of a proniiBBory note signed by tliem, one copy of the BUninions was served at the domicile of .J. 8. D., at Three Kivers, the otlier defendant W. McD. 1)., then residing in the state of New Yorii On the return of tlie writ, the respondent tiled an appearance us attorney for both defendants, and proceedings were sus- pended until 1874, when judgment was taken and in December, 1880, upon the issue of an alius writ of e.xecution, the appellant, having failed in an opposition to judgment, tiled a petition in disavowal of the respondent. The disavowed attorney pleaded inter alia that he had been authorized to appear by a letter signed by J. S. D., saying : " Be so good as to tile an appearance in the case to which the inclosed has reference, etc.," and also pleaded prescription, ratitica- tion and insufficiency of the allegations of the petition of disavowal. The petition in disavowal was dismissed. On appeal to the Supreme Court of Canada the respondent moved to quash the appeal on the ground that the matter in controversy did not amount to the sum of »-2,000. Held, that as the judgment obtained against the appellant in March, 1874, on the appearance tiled by the respondent, exceeded the amount of $2,000, the judgment on the petition for disavowal was appealable. Held, also, that where a petition in disavowal has been served on all parties to the suit and is only contested by the attorney, whose authority to act is denied, the latter cannot on an appeal complain that all parties interested in the result are not parties to the appeal. Dawson v, Dumont. — xx. 709. 84. In Election Case — Giving notice of consent to reversal of judg- ment— R. S. C. c. 135, s. 52— Practice. See ELECTION, 47. 31 • Appeal — Continufd. 8'). In el(!cti()n case — Sorviny Supreme Court to interfere with finding of jud^c of Exche(|uer Court as to amount of compen.sation. .SV<' EXPUOI'UIATION, 18. 88. Fraudulent conveyance — Action to set aside by creditor — Ai'iount in controversy — Jurisdiction — 11. S. C. c. 185, s. 29. See JURISDICTION, 97. 89. By-law of nnmicipality as to repair of road — Jui-isdiction — "Rights in future"— S. & E. C. Act, R. S. C. c. 1.S5, s. 29. See JURISDICTION, 08. 90. Monthly allowance t)f !ji'200 payable by executor — Amount in controversy — Jurisdiction — S. & E. C. Act, II. S. C. c. 1.S5, s. 29 (/>). yce JURISDICTION, !)!). 91. Application to be adndtted as attorney — A])peal from refusal of court to grant — Security for costs — Final judgment — Jurisdiction. See JURISDICTION, 100. 92. From report of taxing officer — Final judgment. See JURISDICTION, 102. 93. Mining lands — Bormige — Injunction — Jurisdiction — R. S. C. c. 185, s. 29 (/>). See JURISDICTION, 103. 94. Action en reprise d' instance — Art. 439 C. C. P. — Will — Ren judicata— Final judgment— Art. 439 C. C. P.— R. S. C. c. 135, 88. 2, 24 and 28. S«c JURISDICTION, 104. 95. From Court of Review under Supreme Court Amending Act, 1891, 54-55 V. c. 25, s. 3 — Case argued and taken endelibere, 32 Appeal — ' 'ontinueil. (lay Act piiHHeil — Amount in controvemy under £500 Htg. — Jurisdiction— Arts. 1178 and 117M (a) C. C. P. iV* JIIHIHDICTION, 100. 96. Contempt of court — A criminal matter — .Tu. An appeal from the judgment of the Court of Appeal for Ontario by tin; appellant Bickford, who became plaintiff by order of revivor in a suit originally brought in the Court of Chancery for Ontario by one Ario Pardee against one Henry Crompton Lloyd for dissolution of partnership, and an account and winding up of the partnership dealings. A decree was made at the hearing of the cause, ordering, by consent of the parties, a reference to three arbitrators of the matters in difference in the cause. There was also a deed of submis- sion, in the same terms as the decree, subsequently executed by the parties. An award was made and published by t'oe arbitrators on the 13th August, 1878.. The respondent Lloyd's solicitor, served on the 2nd day of September, 187^,. a notice of appeal from the said award. The appellant's solicitor, on the 8tlv day of October, 1878, served a notice on the respondent's solicitor, consenting, to an order being made setting aside the award. No action being taken, thereon by the respondent, the appellant, on the 2nd day of December, 1878,. served a notice of motion for an order to set aside the award for the reasons: therein sot forth. That motion was enlarged from time to time by and at the request of the respondent ; and, after argument, an order was made by Vice- Chancellor Proudfoot, on the 2()th March, 1870, setting aside the award with costs. See 2fi Grant 375. The respondent appealed from that order to tlie Court of Appeal for Ontario, which court reversed the order of the Court of Chancery, and dismissed with costs the motion to set aside the award, on tho ground that it was made too late. See 5 Ont. App. R. 1. On appeal to the Supreme Court of Canada, Held, that the motion vvus not made within the time allowed by the statute, 9 & 10 Wm. HI. c. 15, and as no good reason was given for the delay the judgment of the Court of Appeal should be affirmed. Appeal dismissed with costs. Bickford y. Lloyd.— 21st June, 1880. 7. Arbitration hy order of court at Nisi Prius — To he entered as a verdict — Motion to set aside — Judges order — Specidl ■paper Sup. Court, (N.B.) — Affidavits in reply — New Tnattcr — Discretion of court heloiv — Con. Stats. (N.B.) c. 37, s. 17 o. The cause was referred by the Supreme Court of New Brunswick at Nisi Prius to arbitration, the award to be entered on the postea as a verdict of a jury. After the award the appellants obtained a judge's order for a stay 36 Arbitration and Awa.r d—C<»itinue(l. of proceedings, and for the cause to be entered on the motion paper of the court below, to enable the appellants to move to set aside the award and obtain a new trial, on the j^round that the arbitrators had improperly taken evidence after the case before them was closed. Before the term in which the motion was to be heard, appellants abandoned that portion of tiie order •directing the cause to be placed on the motion paper, and gave the usual notice ■of motion to set aside the award and postea, and for a new trial, which motion, by the practice of the court, would be entered on the special paper. Defend- ant, in opposing such motion, took the pi-eliminary objection that the judge's order should be rescinded before plaintiffs could proceed on their notice, and presented affidavits on the merits, and plaintiffs requested leave to read affi- davits in reply, claiming tliat defendant's afiidavits disclosed new matter. This the court refused, and dismissed the motion, the majority of the judges holding tbat plaintiffs were bound by the order of the judge, and could not proceed on the special paper until that order was rescinded, the remainder of the court refusing the application on the merits. 23 N. B. 11. 447. On appeal to the Supreme Court of Canada, Held^ reversing the judgment of the court below, that tbe cause was rightly on the special paper, and should have been heard on the merits, and the court should have exercised its discre- tion as to the reception or rejection of affidavits in reply ; Strong, J. dissenting, on the ground that such an appeal should not be heard, and also because on the merits the appeal should fail. Per Ritchie, C.J. — A Court of Appeal ought not to differ from a court below on a matter of discretion, unless it is made absolutely clear that such discretion has been wrongly exercised. Con. Stats. N.B.c. 37, s. 173, applies as well to motions for new trials, where the grounds upon which the motion is based are supported by affidavits, as in other cases. It makes no distinc- tion, but applies to all " motions founded on affidavits." Jones Y. Tuck. — xi. 197. 8. Railway Company— Arh it rat ion under 44- V. c. 4-3 (Q.) — Notary Public not disqiudijied as arbitrator. This case arises from an award made by a majority of arbitrators on tlie 1st of September, 1883, establishing at the amount of |4,471 the indemnity to be paid to the respondents for a piece of land belonging to them and of which they were dispossessed by appellants in virtue of tlie statute of Quebec, 4.5 V. c. 23. Action was taken for the above sum and costs of arbitration and law costs, amounting altogether to $4,058.20. Judgment was rendered by the Superior Court against the appellants for said amount, with interest and costs, which judgment v, ns unanimously confirmed by the Court of Queen's liench. The principal ground for defence was tiiat Mr. Charlebois, being the agent of the respondents, was disqnalilied from acting as tliei"- ;..bitrator. On aupeal to the Supreme Court of Canarla, Held, that the evidence showing that Mr. Charlebois was not in the continuous employ of respond- ents, but acted for them from time to time only, in his profesuional capacity 37 Arbitration and Avr&rd—Contimii'il as a notary public, and not in any other capacity, he was not disqualified from actin<» as arbitrator. Appeal dismissed with costs. The North Shore R. Co. v. The Rev. Ursuline Ladies of Quebec. —5th Mar. '85. 9. Official arbitrators — Appeal from — Intercolonial Ry. Exten- sion — Damages — Submission — Petition of Right — Demurrer — 4 J V- c. 6'. The plaintiffs proceded af;!iiinst the Government by petition of right for damages caused by the I. C. Ky. extension destroying their road and com- pelling them to sell their plant, etc. at a loss. The Crown demurred to the petition, and, the demurrer being argued before Sir W. B. llichards, C.J., judgment was given allowing the demurrer on the ground that the only remedy for the company was by reference to the official arbitrators. See 2 Excheq. C. R. (^an., p. 4!!;!. It was then agreed that the reference to the official arbitrators should be had, and the following special terms were agreed to : " Whereas, The Halifax Street Railway Company have made a claim upon the Government of Canada for compensation I : damages alleged to have been sustained by that company by reason of the construction of the Intercolonial Railway, and as the government and the company l.'ave failed to agree as to such compen- sation, the company has requested that such claim should be referred to the official arbitrators under the statutes in that behalf; and whereas the government is willing to refer the claim to such arbitrators on the following conditions, to which the company has agreed, namely : 1. That the company shall, before the matter is entered upon before the arbitrators furnish to tho government a statement of the various cLiims which they make in the prem- ises, classifying separately each kind of claim. 2. That the government admit their liability to make compensation to the extent only to which they are by law bound to make sucii compensation. 3. That the arbitrators shall deal with each separate kind of claim separately, reporting their findings with respect to the facts connected theresvith, and as to the amount of com- pensation (if any) which slionld be made therefor to tho company. 4. That; either party shall be at liberty to make tliis submission a rule of the Exchequer Court pursuant to c. 8 of the Act 42nd V. (187!)), Canada, and to proceed under the provisions of the said Act before that court with respect to the award, or any part thereof, as may be thought best. 5. That any judg- ment, order, rule or decisioiiof the lixchequer Court in tho premises may bo appealed from to the Sui)rsme Court pursuant to the IHh section of tho Act hist mentioned. Therefore the Government of Canada and the said company hereby refer the said claims to the full board of arbitrators upon the terms and conditions above mentioned. And whereas. The Halifax City Railroad Company, in pursuance of the terms of the above cited order in council, has lodged with the Government of Canada a claim, of which the following is a copy, viz. : In compliance with section 1 of the reference in this matter the Halifax City Railroad Company hereby furnish the following statement of their respective claims for compensation: — 1. The total loss of the railroad as a chartered property possessing exclusive privileges within the city, with all 38 Arbitration and Award— Cotttimied . its plant and real and personal properties, the estimated value of which was at the date of the government taking poBsession of the track the sum of ^200,000. 2. The company claims also damage for the dividing of their road into two portions rendering each valueless, and thus, in other words, destroy- ing the whole value 9'2l)O,O00. 3. The company claims also for damages actually done to the crossing for loss in having to sacrifice horses, plant and properties which were sacrificed in conaecjuence of the act of the government, and for general depreciation in value of their real property, and for loss of their charter and the privileges and rights guaranteed under it by the Provin- cial Legislature, $200,000. 4. The company claims interest at six per cent, per annum on the amount to be allowed for damages from the time of break- ing up the track, say 17th May, 18715, up lo the time of payment in full to the company. Therefore the Government of Canada, and the said company hereby refer the said claims to the full board of arbitrators upon the terms and conditions above mentioned." The matter was heard on the above submission before the oflicial arbitra- tors, and on the 27th August, 1680, the following award was made. After reciting the submission and the facts: — 1. We find, with regard to the first item of the claim, that the company are not entitled to recover for the loss of their railroad and its plant and real and personal properties, because that rail- road was neither totally nor partially lost by any actual interference of the igovernment with the company's property. 2. We find, with regard to the second item of the claim, that the company are not entitled to be paid any compensation, because the government have not "divided their (the company's) railroad into two portions, rendering each valueless," or destroyed the value of the railroad. 3. We find, with regard to the third item of the claim, that the company is not entitled to any compensation, because the government did no actual damage to the crossing, and because the company were not obliged to sacrifice horses, plant, or properties, in consequence of any act of the govern- ment, and did not suffer any depreciation in the value of their real estate within the meaning of the Public Works Act, 31 V. c. 12, and did not lose their charte and the privileges and rights guaranteed under it by any act of the gcvernment. 4. We find, with regard to the fourth item of the claim, that nothing is due to the company for interest. The plaintiffs appealed from this award, and Mr. Justice Henry, in the E.\cliequer Court, gave judgment in their favor for $8,000. S „ 2 Excheq. C 1{. Can., p. 441). From this judgment botli parlies appealed. Held, Henry, J., dissenting, that the appeal of the Halifax Street Railway Company should be dismissed with costs, and the appeal of the Crown allowed with costs. Halifax City Railway Company v. The Queen.— 12th May, 1885. 10. Misconduct of arbitrators —Bill to rectify award — Prayer for . general relief — Jurisdiction of Court — Practice — Factum. The bill in this case was filed to rectify an award made under a subrais- sion to arbitration between the parties, because the arbitrators had considered matters not included in the submission, aud had divided the sums received by 39 Arbitration and Awaird—Contimied. the dufondaut from the plaintiffs, on the fjroiind that defendant's brother and partner was a party to such receipt, although the partnership affairs of the defendant and his brother were eKcluded from the submission. The bill prayed that the award might be amended, and the defendant decreed to pay the amount due the plaintiff:) on the award being rectified, and that, in other respects, the award should stand and be binding on the parties. There was also a prayer for general relief. Held, affirming the judgment of the Supreme Court of New Brunswick, that to grant the decree prayed for would be to make a new award, which the court had no jurisdiction to do, but. Held, also, reversing the decision of the court below, that under the prayer for general relief the plaintiff was entitled to have the award set aside. 23 N. B. R. 392. The plaintiff's factum containing reflections on the conduct of the judges of the court below, was ordered to be taken off the files as scandalous and impertinent. Yernon Y. Oliver.— 13th May, 188'>.— xi. 156. 11. Lands taken for railway purposes — Matters considered by arbitrators — Question as to which party entitled to coats. See COSTS, 3. 12. Municipal Act — Construction of drain — Petition for — Benefit to land in adjoining municipality — Arbitration on engineer's report — Duty of arbitrators. .SVe MUNICIPAL CORPORATION, 4. 13. Awnrd of official arbitrators — Inclusive of past and future damages — Appeal — 42 ^- <^- <^- On a reference being made to the official arbitrators of certain claims made by one H. against the government for damages arising out of the enlargement of the Lachine Canal to land situated on said canal, the arbitra- tors awarded H. 19,216 in full and final settlement of all claims. On an a[)peai taken to the Exchequer Court by H. (Taschereau, J., presiding) this amount was increased to ^15,990, including #5,1)00 for damages caused to the land from 1877 to 1884 by leakage from the canal since its enlargement, and the judge reserved the right to H. to claim for future damages from that date. On appeal to the Supreme Court of Canada it was : Held, reversing the judgment of the Exchequer Court and confirming the award of the arbitrators, tiuit it must be taken that the arbitrators dealt with every item of H.'s claim submitted to them and included in their award all past, present and future damages, and that the evidence did not justify any increase of the amount awarded. Gwynne, J., was of opinion that under 42 V. c. 8, s. 38 the Supreme Court had power (although the crown did not appeal to the Exchequer Court) to review the award of the arbitrators, and that in this case $1,000 would be an 40 Arbitration and Award — Continued. ample corapenBation for any injury that the claimant's land oan be said to have sustained, which upon the evidence can be attributed to tlie work of the enlargement of tlie canal. The Queen y. Hubert.— March 1, 1887.— xiv. 737. 14. Agreement to purchase railway — Hire of i-olling stock — Refer- ence to arbitration — R. S. O. c. 50, s. 189. See RAILWAYS AND RAILWAY COMPANIES. 39. 15. A^vdrd — Validiiy of — Description of land — Fails et articles — P-U V. c. 43, s. 9, {P.Q.)-Art. 225, C. C. P. E. B. et (;/., joint owners of land situate in the city of Quebec were awarded 111,900 under 43-44 V. c. 43, a. 9, for a portion of said land appro- priated for the North Shore Railway Company. On the 12th March, 1885, E. B. et al. instituted an action afjainst the North Shore Railway Company, based on the award. The company not having pleaded foreclosure was granted, and on the 'ilst April process for interrogatories upon faitu et articles was ifsued, and returned on the 20th April. The company made default. On the 18th June the faits et articles were declared taken pro confcssiii. On the Kith May, E. B. et ol. consented that the defendants be allowed to plead, but it was only on the 7th July that a plea was filed, alleging that the arbitration had been irregular and was against the weight of evidence. On the 2nd September, E. B. et al. inscribed the case for hearing on the merits, on which day the railway company moved to be authorized to answer the faits et articles and the motion was refused. The notice of expropriation and the award both described the land expropriated as No. 1, on the plan of the railway company deposited according to law, but in another part of the notice it described it as ' forming part of a cadastral lot 234.5, and in the award as forming part of lots 2344-2345. On tlie 5th December judgment was rendered in favor of K. B. et (tl. for the amount of the award. From this judgment the railway conijjany appealed to the Court of Queen's Bench (appeal side) and that court reversed the judgment of the Superior Court, holding inter alia the award bad for uncertainty, and that the case should be sent back to the Superior Court to allow the defendants to answer the /(itix et articles. On appeal to the Supreme Court of Canada, it was — Held, (1) reversing the judgment of the Court of Queen's Bench (appeal side) that there was no uncertainty in the award as the words of the award and notice were sullicient of themselves to describe the property intended to be expropriated and which was valued by arbitrators. (2) That the motion for leave to answer faits et articles had been properly refused by the Superior Court. Taschereau, J., dissenting. Beaudet et al. y. The North Shore Railway Company. — xv. 44. [The Privy Council refused leave to appeal in this case. J 16. Street Railway — By-law and agreement providing for assuming ownership upon giving notice and fixing value by arbitration — Appointment of arbitrators by court. See CORPORATIONS, 39. 41 Arbitration and Award — Co)itinuerl. 17. Expi'opriation — Award of ojflci/il arbitrators — Compensation for land taken — Duty of Appellate Court. On an appeal to tlie Supreme Court from a judgment of the Exchequer Court increasing the amount awarded by the oDicial arbitrators to the claim- ant for expropriation of laud for tlie Intercolonial Kailway. Held, revergiuR the judgment of the Exchequer Court and restoring the award of the official arbitrators, that to warrant an interference with an award of value necessarily lart^ely speculative an Appellate Court must be satisfied beyond all reasonable doubt that some wrong principle has been acted on or something overlooked which ought to have been considered by the otticial arbitrators, and upon the evidence in this case this court refused to interfere with the amount of compensation awarded by the official arbitrators. Present — Sir W. J. Ritchie, CJ. and Strong, Fournier and Gwynne, JJ. The Queen v. Paradis.— , Jan. 1,5, 1889.— xvi. 710. The Queen v. Beaulieu. The decision of the Exchequer Court and the judgments of the Supreme Court in these cases will be found in Vol. I., Excheq. C. 11. Can., 191. IS. Aiv((rd of arhitrators increased by the Exchequer Court — Hearing of additional tvitness — Appreciation of the evi- dence — Appeal to Supreme Court — Weight of evidence. In a matter of expropriation of land for tlv^ Intercolonial railway, the award of the arbitrators was increased by the judge of the Exchequer Court from $4,155 to $10,824.25, after additional witnesses had been examined by the judge. On an appeal to the Supreme Court it was Held, affirming the judgment of the Exchequer Court, that as the judg- ment appealed from was supported by evidence, afid there was no matter of principle on which sucli judgment was fiiirly open to blame, nor any oversight of material consideration, the judgment should be affirmed. Gwynne, J., dissenting. Present — Strong, Fournier, Gwynne and Patterson, JJ. The Queen v. Charland.— April 20th, 1880. -xvi. 721. The decision of the Exchequer Court and the judgments of the Supreme Court in this case will be found in Vol. 1,, Excheq. C. R. Can., 291. 19. Contract with Crown for buildiniu^ of a bridge — Certificate of enfriiieer a condition precedent to payment — Matter improperly .sent to arbitration — 31 V. c. 12— Costs. See CONTRACT, 35. 20. Expropriation for railway purposes — Award, validity of — Riparian rifjfhts — Obstruction to acch et sortie — Right of action. See EXPROPRIATION, 10. 42 Arbitration and Avra.rd--<'ontinue(l. 21. AivKvd tiuule Jimd by sahmiasion — Motion to set aside — Grounds of objection. An ftward will not be oet aside on the ground that a memo., furnished by the arbitrator to the losing party after its publication, sliowed that the accounts between the parties were adjusted upon a wrong principle, the defect, if any, not being a mistake on the face of the award or in some paper forming part of, and incorporated with, the award, and there being no admission by the arbitrator himself that he had made a mistake. McRae v. Leinay. — xviii. 280. 2'2. Application to set aside an award — Time for applying — 9 & 10 Wm. III. c. 15, s. 2-R. 8. 0. (1887), c. 53, a. 37— Rrference back to arbitrators for re-consideration and re-determination. In the Province of Ontario, the governing statute as to the time for apply- ing to set aside an award which has been made under a rule of court or to remit it to the arbitrators for re-consideration and re-determination, is R. S. O. (1887), c. 58, s. 37, and it is not required that the application should be made oefore the last day of the term next after the making of the award, as provided by !) it 10 Wm. III. c. 1.5, s. 2. Gwynne, .1., dissenting. An award may be remitted to arbitrators for re-conaideration and re-deter- mination under the Ontario statute though the result of the re-consideration may be to have tlio award virtually set aside by a different, or even contrary, decision af the arbitrators. The court is justified in remitting an award to the arbitrators if fraud or fraudulent concealment on the part of the persons in whose favour it is made is established, or if new evidence is discovered which, by the exercise of rea- sonable diligence, could not have been discovered before the award was made. Green y. Citizens Ins. Co.— xviii. 338- t23. Contract — Public work — Sitb-contractor — Rescission — Qaantam meruit — Setting aside award. P. was a contractor with the government of Canada for building a post ortice and K. was sub-contractor to do the mason and brick work for a lump sum, the sub-contract consisting simply of an offer to give the work for the sum named and an acceptance by K. P., being dissatisfied with the work done by K., took the contract out of his hands before it was completed and finished it himself. K. then brought an action for the value of work done by him and on reference by the court to arbitration an award was made in K. 's favour. The Court of Appeal set aside the award and remitted the case to the arbi- trator for furtiier consideration, holding that though the contract did not authorize P. to take over the work and finish it at K.'s expense, and the latter was, therefore, entitled to recover on the quantum meruit, yet the cost of com- pleting the work was considerably in excess of the contract price. Held, reversing the judgment of the Court of Appeal, that as it appeared from the evidence that the arbitrator fully understood the matter and got all 43 Arbitration and Awa.rd— Continued. tliu information that could be obtained on the subject, and as no impropriety or mistake was shewn to have been committed by him, no benefit could result from sendin({ the award back for reconsideration, and the decree of the Court of Appeal was not justified. Pbesknt. — Sir W. J. Ritchie, C.J., and Fournier, Taschereau, Gwynne and Patterson, JJ. Kennedy v. Pigott. -June 14, 1889, xviii. 699. 24. Petition of right — Submission — Mediators — Award — Finality of-Art ij^u, a F. a T. McG. who claimed a large sum of money from tlie Government of the Province of Quebec under a contract he had for the construction of a portion of tlie Nortli Shore Railway, aj.'roed to submit to three mediators or tunidhlei compositeurs all controversies and ditticulties existing between the Government and himself, and the submission stated that these mediators sliould inquire int(,, inter alia, the extent of the obligation of the contract passed between the government of Quebec and the said T. McG. ; the alterations and modifica- tions made in the plans, particulars and specifications mentioned in the said contract ; what influence the said alterations and modifications may have had on the obligations of the said T. MoG. and on those of the government ; the delays caused by reasons irrelevant to the action of tlie contractor; the pecu- niary value, whether for more or for less, of the alterations or'any increase in the works; and finally, all things connected with the matter and the execution of the said lontract, and with regard to the charges and obligations of both the government and the said contractor, according to the terms of the said contract. The submission also provided that the award was to be executed as a final and conclusive judgment of the highest court of justice. The media- tors by their award, after reciting the matters in controversy between the parties, found that the government of the Province of Quebec was indebted to T. McG. in the sum of $147, -473, and annexed thereto an affidavit stating they had inquired into all matters and cMfliculties submitted to tliem as appeared in the deed of submission. This amount being much less than the amount claimed by T. McG. he filed a petition of right, asking that the award be set aside on the ground that it did not cover the matters referred to the arbitrators in the submission. The Superior Court for the district of Quebec set aside the award, and on appeal to the court of Queen's Bench for Lower Canada (appeal side) that court reversed the judgment of the Superior Court and dismissed the petition of right. On appeal to the Supreme Court of Canada — Held, aftirming the judgment of the court of Queen's Bench for Lower Canada (appeal side) that the object of the submission was to ascertain what amount the contractor T. McG. was to receive from the government, and the specification of the several matters referred to in the submission was merely to secure that in determining the amount the mediators should fully consider all these matters, and that all matters having been so considered the award was valid. Strong and Taschereau, JJ., dissenting. 44 Arbitration and AwsLrd—Continueil. Per Fournier, J., Mediators (uminbleH conri)o*itftini) are not snbject to tbo provisions of Art. 1H40, C. P. C. and their award can only be set aside by reason of fraud or collusion if ^iven on the matters referred to them. McGreevy v. The Queen.— xix. IHO. 25. Expropriation— I^. S. Q. A rf. 5164, as. 12, 16, 17, 18, 2^— Award — Arhifrat(»rs — JiLrisdiction of — Lan, 8. 48 (O.), and on that notice the amount of their personal property, other than income was put down at $2,500, but on the column of the assessment roll, as finally revised by the court of revision, the amount was put down at $2.'),000, thereby chanf^ing, without givinj^ any further notice to plaintiffs, the total value of real and personal property and taxable income from $20,000 to S43,400. Held, that the plaintiffs were not liable for the rate calculated on this last named sum, and that a notice, to be t^iven by the assessor in accordance with the Act, is essential to the validity of the tax. [Since this decision the statute has been altered.] Nicholls V. Gumming.— i. 395. 2. Assessment roll — Amendment of — Triennial assessment roll — Arts. 716 and 746 (a) M. C. (P.Q.). See PROHIBITION. 3. Assesf^ment — Improjyer — False imprisonment — Arrest — Jfl V. c. 9 {N.B)—Exec\ition issued by receiver of taxes for city of St. John — "Respondeat superior." The 41 V. 0. 9, intituled " An Act to widen and extend certain public streets in the city of St. John," authorized commissionerB appointed by the Governor 4(5 Assessment and Taxes-- ContinufU. in Council to aasess the owncra of the land who would be bonefltcd by tlie widening of the Htreets, and in their report on the extension of Cftnturbury street, tlie coinmiHsionerH ho appointed tiHsoHHed tlio benottt to a certain let at ^U<.(.4(i, and put in their report tlio name of tlie appellant (McH.)a9 tlio owner. The amount so aHHCHHed wiiH to be paid to the corporation of the city, and, if not, it was the duty of tlie receiver of taxcR, appointed by the city corporatimi, to issue execution and levy the same. McH,, iiltliouf^li asHeHsed, waH not the owner of the lot. S , tlio receiver of taxes, in default, iHstuul an execution, and for want of ^oods McS. was arrested and imprisoned until ho paid the amount at the cliamherlain's office in the city of Bt. John. The action was for arrest and falhe impriKonment, and for money had and received. The jury found a verdict for McS. on the lirst count against both defeni'ants. Held, reversing the judf^mcnt of the Supreme Court of New Brunswick, that S., who issued the warrant founded upon a void aRscssmcnt and caused the arrest to be made, was >^uilty of a trespass, and beiiif^ at tlio time a servant of the corporation, under their control and specially ajjpoiiitcd by them to • collect and levy the amount so assessed, the maxim of rfspoiideat Kiipi'iinr applied, and therefore the verdict in favor of McS. for SflS.T.Ut) against both respondents on the first count should stand. Ritchie, C.J., and Taschereau, J., dissenting.) Per Gwynne, J. — That the corporation had adopted the act of their oflicer as their own by receiving and retaining the money paid and authorizing McS.'s discharge from custody only after such payment. McSorley v. The Mayor, etc., of the City of St. John.— vi. '):U. 4. •/•' V. (P.Q.) c. 61, s. 10* — Asse.ssment for footjMiths — Validity of — Proof of error — Onus prohandi — Volantary payment — 2^ at ice, want of. On the 31st May, 1875, under the authority of 37 V. c. 51, s. 192, (F.q.), the city council of the city of Montreal by a resolution adopted a report fron^ their road committee prepared on the 30th April previous, as amended by a report of their finance committee of May 27, 1875, recommending the con- struction of permanent sidewalks in the following streets {inter alia), Dorchester and St. Catharine. On the adoption of these reports, with which an estimate indicating the (juality of flag stone required for each street, and the approxi- mate cost of the work to be made in each street, had been submitted, the city surveyor caused the sidewalks in said streets to be made, and assessed the cost of the sidewalks according to the front of the real estate owned by the pntprietors on each side of the same, and prepared a statement of the same, which he deposited with the treasurer for collection. D. A. B. possessed real estate on Dorchester and St. Catharine streets, and did not object to the con- struction of the new sidewalk. On the 3rd December, 1877, a few days after receiving a notice from the city treasurer to pay within fifteen days certain sums, in default whereof execution would issue, D. A. B. paid, without protest, ?i946.2o ; and on the 29th October, 1878, paid a further sum of ?438.90, and on the 14th November, 1878, without having received any notice, paid $700 on account of 1877 assessment. 47 Assessment and Taxes — Continued. In an action instituted by D. A. B. at^ainut tlie city of Montreal, to recover the said Huma o( nioiioy wliicli Hlie alletit'd to have paid in error, hclievinn tlio said aHsuHHMient valid, Held, afru-niiii^> the Jnd^nient of tlie court below, Henry and Owyinie, JJ., diasentin^, that D. A. D. had failed, both in allegation and proof, to make out a case for the recovery of the aHHesemont paid by her, either aa a voluntary payment made in ignorance of ita illegality, or aa a conatraiiiod payment of an illeijal tax, and tluit mere irrofjularities in the mode of proceed^ in>{ to the asseaHnicnt, althounii tiiey nii^^ht, in a proper proceeding, have entitled the ratejiayora to have had the aaHeKHment (luaahed, di an income of $-l(>,0()0, but, during the aame period, austained loaaca in its buaineaa beyond that amount. The bank, having made no gain from aaid buaineaa, diaputed the corporation'a authority to asseaa them under 22 V. c. 37 ; 31 V. c. 30 ; and 34 V. c. 18, on an income of f 46,000. Held, that under the Acta of the Assembly relating to the asaeaaing of ratea and taxes in the city of St. .John, foreign banking corporations doing buaineaa in St. .John are liable to be taxed on the grosa income received by them during the fiscal year : and that L. had been properly assessed. Henry, ,1. , dissenting. [On appeal to the Privy Council the judgment of the Supreme Court of Canada waa reveraed. See 6 App. cases 373.] Lawless y. Sullivan. — iii. 117. 7. Taxes— Sale of land for— J? V. c. 76, s. 165, {0.)— Proof of taxee in arrear. In a suit commenced by a bill in the Court of Chancery asking for an account of damagea sustained by certain trespasses alleged to have been committed by the appellant (defendant), for an injunction and for possession, the principal question raised waa whether a sale of the land for taxes, which 48 Assessment and Taxes— ^ '<'?"■ »»«/. took place on the 1st March, 1850, throuf^h and under which the respondent (plaintiff) claimed title was valid. Held, that there was no evidence to show the land sold had heen properly assessed, and therefore the sale of the land in question was invalid. Stronj^ and Gwynne, JJ., dissenting. Per Fournier, Henry and Gwynne, JJ. — Where it appears that no portion of the taxes have been overdue for the period prescribed by the stiitute under which the sale takes place, the sale is invalid, and the defect is not cured by 8. 155 of 32 V. c. 30 (O.). Strong, J., dissenting, holding that section 155 applied to a case where any taxes were in arrear at the date of the sale. McKay y. Crysler. — iii. 4H0. 8. Taxes — Sale of lands for — Indian lands — Liability to t((.ra- tion — Lists of lands attached to vxirrant — J2 V. c. S6. s. 128, (0.), and c. 108, s. 156, R. S. 0. In September, 1857, a lot in the toivnship of Keppel, in the county of Grey, forming part of a tract of land surrendered to the Crown by the Indians, was sold, and in 1809, the Dominion Government, who retained the man- agement of the Indian lands, issued a patent therefor to the plaintiff. In 1870, the lot in question, less two acres, was sold for taxes assessed and accrued due for the years 1804 to 186'J, to one D. K. , who sold to defen- dant; and as to the said two acics, the defendant became purchaser thereof at a sale for taxes in 1873. The warrants for the sale of the lands were signed by the warden, had the seal of the county, and authorized the treasurer " to levy upon the various parcels of land hereinafter mentioned for the arrears of taxes due thereon and set opposite to each parcel 6f land," and attached to tliese warrants were the lists of lands to be sold, including the lands claimed by plaintiff. The lists and the warrant were attached together by being pasted the whole length of the top, but the lists were not authenticated by the signature of the warden and the seal of the county. By section 128 of the Assessment Act, 32 V. c. 30 (O.), the warden is re(iuired to return one of the lists of the lands to be sold for taxes, transmitted to him, &c., to the treasurer, with a warrant thereto annexed under the hand of the warden and seal of tlie county, etc. Held, affirming the judgment of the court below, that upon the lands in (]uestion being surrendered to the Crown, they became ordinary luipatented lands, and upon being granted became liable to assessment. 2. That the list and warrant may be regarded as one entire instrument, and as the substantial reiiuirements of the statute had been complied with, any irregularities had been cured by the 150th section, c. 180, 11. S. O. (Fourniei- and Henry, JJ., dissenting.) ChuFoh Y. Penton.— v. 239. 9. In/i(d)ifant of the city of St. John — Taxation — Wife's separate projx'vty. Plaintiff was a resident of the city of St. John up to June, 1877, when he went with his family to Nova Scotia. In 1878, ho returned to the Province 49 Assessment and Taxes— Conthuml. of New Brunswick with his wife and family, and after leaving them in the tovn of Portland, went to Boston in search of employment. He remained iii Boston until the sprint; of 1880, liavin^ been employed in business, and paid taxes there. Whilst plaintiff was absent, his wife's father assigned to her a lot of leasehold property in the city of St. John. In the fall of 1878 she and family moved into the city and resided on her property until the spring of 1880, when the plaintiff returned from Boston and lived with his wife. For the taxes for 187i), assessed against him in respect of his wife's property, and for an income ta.x against liimself, both being included in one assessment, he was afterwards arrested and taken to jail, where he remained two days, when ho paid the amount under protest, and was released. He brought an action for false imprisonment, and obtained a verdict for |150. The full court of N. B. set aside the verdict, and granted a new trial, a majority being of opinion that the plaintiff was constructively an inhabitant of the city of St, John, and as such was liable to be assessed, and tliat there ought to be a rew trial, as it did not very distinctly appear that objections were taken at the trial, or upon what the motion for a non-suit was to depend. On appeal, the Supreme Court of Canada Held, that the plaintiff was not liable to assessment, and tliat the verdict should stand. Appeal allowed with costs. Edwards v. The Mayor, etc., of St. John— 1st May, 1883. 10. Sale for taxes — 33 V. c. 23 (O.) — Possession obtained by fraud. Sre POSSESSION, 5. ll.,S7. John Cl'y Assessment Act, 1SS.3, 45 V. c. 50, {N.B.)— C/idrtered Ixink — Assessment on capitnl stock of — Par value — Heal and pevsonal jn'operty of havk — Payment of taxes nvder protest. By section 25 of the St. John City Assessment Act of 1882, it is providevl that all rates and taxes levied and imposed upon the city of St. John shall be raised by an e(]ual rate upon the value of the real estate situate in the city, and part of the city to be taxed, and upon the personal estate of the inhabit- ants, and of persons deesned and declared to be inhabitants and residents of the said city, and upon the capital stock, income, or other thing, of joint stock companies, corporations, or persons associated in business, and after providing foi- tl'P levying of a poll ta.x such section goes on to say, " that the whole residue to be raised shall be levied upon the whole ratable property, real and personal, and ratable income, and joint stock, according to the true and real value and amount of the same as nearly as can be ascertained, provided that joint stock shall not be rated above the par value thereof." Section 28 of the Bame Act provides that, " all joint stock companies and corporations shall be assessed, under this Act, in like manner as individuals; and for the purposes of such assessment, the president, or any agent, or manager, of such joint stock companies shall be deemed and taken to be the owner of the real and personal estate, capital stock and assets of such company or corporation, and CAS. DIG. — 4 50 Assessment and Taxes — Contimud. shall be dealt with, and may be proceeded aj^ainst accordingly." J. D. L.. the president of the Bank of New Brunswick, was assessed, under the pro- visions of the above Act, on real and personal property of the bank, valued in the af^f^regate at $1, 100,000. The capital stock of the bank at the time of such assessment was only ¥1,000,000, and he offered to pay the taxes on that amount which was refused. It was not disputed that the bank was possessed of real and personal property of the value assessed. On appeal from the Supreme Court of New Brunswick, refnsinj^ a certiorari to quash the said assessment, 23 N. B. R. u'Jl. Held, Fournier, J., dissentin", that the real and personal property of the bank are part of its capital stck- and that the assessment could not exceed the par value of such stock, namely. #1,000,000. The chamberlain of the city of Saint John is authorized, without any previous proceedings, to issue execution for taxes if not paid within a certain time after notice. In order to avoid such execution the Bank of New Bruns- wick paid their taxes under protest. Held, that such payment did not preclude them from afterwards taking; proceedings to have tlie assessment quashed. Ex parte J. D. Lewin. — xi. 484. 12. Property occupied under lease hij MilUUt, Department — Not liable to municipal taxation — Prerogative of the Crown — 10-11 V. c. 17 — J.J V. c. 01, s. 58 — a S. L G. c. 4, s. 2 — 37 V. c. 51, 8. 237 {Q.)—Man. Code L. C. Art. 712—30 V. c. 21, s. IS, (Q.) The Dominion Government havinj^ leased certain property in the city of Montreal for the use of Her Majesty, with the condition that the government should pay all taxes and assessments which might be levied and become due on the said premises during the term of the lease, the corporation of the city of Montreal brought an action against the owners of the property for the municipal taxes accruing during the period of time the said property was so leased to and occupied by the government of the Dominion of Canada. On an intervention filed by the Attorney-General of Canada praying that the action be dismissed : Held, reversing tlie judgment of the court below, Strong, J., dissenting, that the property in question was exempt from taxa- tion under C. S. L. C. c. 4, s. 2. Corporation of Quebec v. Leaycrajt, 7 Q. L. R. 56, distinguished. Attorney-General of Canada v. City of Montreal.— xiii. 352. 13. Educational institution — Cons. Stat. L. C. c. 15, and J^l V. c. 0, 8. 26, (P.Q.)—Art. 712 Mim. Code, {P. Q.)— Construc- tion of. Action by the city of Montreal to recover the sum of $408, for assessment or taxes for the years 1878, 187!( and 1880, on property in said city occupied by the defendant. The property set out in the plaintiff's declaration was during the time mentioned therein occupied and used as a private boarding 51 Assessment and Taxes — Continued, and day school for girls, kept and maintained by the defendant, who employed divers teachers, and during that time had therein, on an averaf,'e, for their education, as pupils, eighty-five girls per annum. The said institution never received any grant from the plaintiff. Held, Gwynne, J., dissenting, that the said institution is an educational establishment within the meaning of 41 V. c. 0, s. 2G, (P.Q.), and exempt from municipal taxation. Wylie Y. The Corporation of the City of Montreal.— 8th March, 1886— xii. 3,S4. 1-t. Edxicational institution — Farm oivned hy — Revenue from — Not property held for the purposes for which institution estahlished — Not exempt from school taxes — 33 V. c. 10, s. IS (Q.)—C. S. L. a c. 15, s. 77—41 V. c. 6, s. 26 (Q.). The action was brought to recover the sum of $808. .50 for three years' school taxes imposed on property occupied by the respondents as a farm, situ- ated in one municipality, the productb of which, with the exception of a portion sold to cover the expenses of working and cultivating, were consumed at tiie mother house situated in another municipality. Held, reversing the judgment of the court below, that as the property taxed was not occupied by the respond- ents for the objects for which they were instituted, but was held for the purpose of deriving a revenue therefrom, it did not come within the exemptions from taxation for scliool rates provided for by s. 13, of c. 16, 32 V., (P.Q.) Held,, also, that said section 13 does not extend, as regards exemptions, section 77 of chapter 15 of the Cons. Stats. L. C, which has not been repealed, but which has been amended by the addition of s. 26, c. 6, 41 V. (P.Q.). Lcs Commissaires D'Ecoles de St. Gabriel y. Lea SoeuFS de la Congregation de Notre Dame de Montreal. — xii. 45. 15. Assessment on reed estate— In name of occupier — Description as to persons andprop)erty — Con. Stat. (N.B.), c. 100, s. 10 — Several assessraents in one warrant — One iller/cd assess- ment — Warrant vitiated by. Section 16 of chapter 100, Con. Stats, of New Brunswick relating to rates and taxes, provides that, " real estate, where the assessors cannot obtain the names of any of the owners, shall bo rated in the name of the occupier or person having ostensible control, but under such descriptions as to persons and property ... as shall be sufficient to indicate the property assessed, and the character in which the person is assessed." T. G., owner of real estate in Westmoreland County, N.B., died, leaving a widow who administered to his estate and resided on the property. The property was assessed for several years in the name of the estate of T. G., and in 1878 it was assessed in the name of " Widow G." Held, affirming the judgment of the court below, that the last named assessment was illegal, as not comprising such description of persons and property as would be sufficient to indicate the property assessed, and the character in which the person was assessed. Where a warrant for the 52 Assessment and Tsixes—CnntimK'd. collection of a sin^jle sum for rates of several years, included the amount of an assessment which did not appear to be against either the owner or the occupier of the property. Held, affirming the judgment of the court below, that the inclusion of such assessment would vitiate the warrant. Flanagan y. Elliott.— xii. 435. 16. Town of Dai'tiaoutli not liablo to contribute to assesHnient for support of schools in County of Halifax — Ratepayers of 1886 not liable to be assessed for school rates leviable in previous years. See MANDAMUS. 7. 17. Raihvfnj bridge and railway track — Assefismenff^ of — Illegal — 4^0 V. c. .'-5, ss. 3-26 and JJ7 — Injunction — Proper remedy — Extension of town limits to middle of a navigable river — Intra vires of local leg i.slat u re — 4 ->-4 i^ V. c. G:2, (P.Q.) Held, reversing the judgment of the Court of Queen's Bench for Lower Canada, (Fournier and Taschereau, JJ., disHcnting) that the portion of the railway bridge built over the. Ilicholieu river, and the railway track belonging to appellant's company wiLliin the limits of the town of SL. Johns, are exempt from taxation under sections 326 and 327 of 40 V. c. 2'J (P.Q.), although no return had been made to the council by the company of tlie actual value of their real estate in the municipality. 2. That a warrant to levy the rates upon such property for the years 1880-8'5, is illegal and void, and that a writ of injunction is a proper remedy to enjoin the corporation to desist from all pro- ceedings to enforce the same. As to whether the clause in the Act of incorporation of the town of St. Johns, (P.Q.), extending the limits of said town to the middle of the Richelieu, a navigable river, is intra vires of the legislature of the Province of Quebec, the Supreme Court of Canada affirmed the holding of the court below that it was intra vires. Central Vermont Ry. Co. v. The Town of St. Johns.— xiv. 288. [In this caae leave to appeal was granted by the Judicial Committee. After argument the judgment of the Supreme Court was affirmed. See 14 App. Cases, 590.] IH. Municipcd taxes — Special assessments — Exevijytion — 4^ V. c. 6, s. 26 (Q.) — Educational institution — Tax. By 41 V. c. 6, 8. 26, all educational houses or establishments which do not receive any subvention from the corporation or municipality in which they are situated are exempt from municipal and school assessments " what- ever may be the Act in virtue of which s-uch assessments are imposed, and notwithstanding all dispositions to the contrary." 53 Assessment and Taxes— Coh«/hm«/. Held, reversinfi the judgment of the court below, that the exemption from municipal taxes enjoyed by educational establishments under said 41 V. c. (i, 8. 2^>, extends to taxes imposed for special purposes, i:g., the construction of a drain in front of their property. (Sir. W. J. Ritchie, C.J., dissenting.) Per Strong, J. — Every contribution to a public purpose imposed by superior authority is a " tax-" Lea Ecclesiastiques de St. Sulpice de Montreal v. The City of Montreal. — xvi. 39!l. [In this case the Judicial Committee of Privy Council refused leave to appeal. See Judfj;mentof J. C. at p. 407 of vol. xvi. Can. S. C. Reports.] 19, Lien — Priot'Uy of moiic/ufje made before statute — Construction of Act— Healing clauses — Effect and application of The Halifax City Assessment Act, 1888, made the taxes assessed on real estate in saiil city a iirst lien thereon except as ajjainst the crown. Held, affirming the judgment of the court below, that such lien attached on a lot assessed under the Act in preference to a mortgage made before the Act was passed. Tlie Act provided that in case of nonpaymeuc of taxes assessed upon any lands thereunder the city collector should submit to the mayor a state- ment ni duplicate of lands liable to bu sold for sacli non-payment, to which statements the mayor should affix his signature and th ; seal of the corpora- tion ; 6ne of such statements should tlien be filed with the city clerk and the other returned to the collector with a warrant annexed thereto, and in any suitor other proceeding relating to the assessment on any real estate therein mentioned, any statements or lists so signed and sealed should be received as conclusive evidence of the legality of the assessment, etc. In a suit to fore- close a mortgage on land which had been sold for taxes under this Act tite legality of the assessment and sale was attacked. Held, per Strong, Taschereau and Gwynne, JJ., tliat to make this pro- vision operative to cure a defect in the assessment caused by failure to give a- notice required by a previous section it was necessary for the defendants to show, athrmatively, that the statements had been signed and sealed in dupli- cate and filed as required by the Act, and the production and proof of one of such statements was not sufficient. Per Ritchie, C.J., and Patterson, J., that it was sufficient to produce the statement returned to the collector signed and sealed as re(]uired, and with the necessary warrant annexed, and in the absence of evidence to the contrary it must be assumed that all the proceedings were regular and that the provisions of the statute requiring duplicate statements had been complied with. Tho Act also provided that the deed to a purchaser of lands sold for taxes should be conclusive evidence that all the provisions with reference to the sale had been complied with. Held, per Strong, Taschereau and Gwynne, JJ., that this provision could only operate to make the deed available to cure defects in the proceed- 54 Assessment and Taxes — Contimied. ings connected with the sale and would not cover the failure to give notice of asaessment required before the taxea could be imposed. Held, per Ritchie, C.J. and Patterson, J., that the deed could not be invoked in the present case to cure any defects in the proceedings, as it was not delivered to the purchaser until after the suit commenced ; therefore a failure to give notice that the land was liable to be sold for taxes, which notice was required by the Act, rendered the sale void. O'Brien v. Cogswell.— xvii. 420. 20. Ansessinent — Maiulninus to compel iiumicipiility to make — Em- ployment of physician by board of health — Dismissal — Form of remedy. See MUNICIPAL CORPORATION, 14. 21. Municipal Act, Manitoba, 49 V. c. 52, s. 020—50 V. c. 10 s. 48 (Man.) — Penalty for non-payment of taxe.s — Interest — Legis- lative jurisdiction — B. N. A. Act, ss. 91 and 92. See LEGISLATURE, 20. MUNICIPAL CORPORATION, 1(5. 22. Taxation on crown lands — Beneficial interest — Prerogative — Mortgage. See PARLIAMENT OF CANADA, 12. CROWN, 23. 28. Lands of the C. P. Ry. Co — Exemptions from taxation until sold or occupied. By the charter of the C. P. Ry. Co., the lands of the company in the North-west Territories, until they are either sold or occupied, are exempt from Dominion, provincial or municipal taxation for twenty years after the grant thereof from the crown. Held, affirming the judgment of the court below, that lands which the company have agreed to sell and as to which tlie conditions of sale have not been fulfilled are not lands " sold" under tliis charter. Held, further, that the exemption attaches to lands allotted to the company before tlie patent is granted by the crown. Lands which were in tlie N. W. T. when allotted to the company did not lose their exemption on becoming, afterwards, a part of the province of Manitoba. Rural Municipality of Cornwallis v. The Canadian Pacific Railway Co. — xix. 702. 24. T(U' iSale — ii'Tegidarlt'ws — Valididiiuj acts — Croivn lands — 4^5 V. c. IG 8. 7 {Man.)— 51 V. c. J7 s. 58 {Man). Lands in Manitoba assessed for the years 1880-81, were sold in 1882 for unpaid taxes. The statute authorizing the assessment required the municipal 55 Assessment and Taxes— Continut'd. council, after the final revision of the assessment roll in each year, to pass a by-law for levying a rate on all real and personal property mentioned in said roll, but no such by-law was passed in either of the years 1880 or 1881. The lauds so assessed and sold were formerly Dominion lands which were sold and paid for in 187!), but the patent did not issue until April, 1881. The patentee sold the lauds, and after the tax sale a mortfja-^e thereon was Riven to R. who soufjht to have the tax sale set aside as invalid. 45 V. c. Ki, s. 7 (Man.) pro- vides that every deed made pursuant to a sale for taxes shall be valid, notwith- standing any informality in or preceding the sale, unless questioned within one year from its execution, and 51 V. c. '27, s. 58 (Man.) provides that " all assessments heretofore made and rates struck by the municipalities are hereby coiiftrmed and declared valid and binding upon all persons and corporations affected thereby." Held, affirming the judgment of the court below, Patterson, J., dissent- ing, that the assessments for the years 1880-81 were illegal for want of a by- law, and the sale for taxes thereunder was void. If the lands could be taxed the defect in the assessments was not cured by 45 V. c. 10, s. 7, or by 51 V. c. 27 i. 58, which would cure irregularities, but could not make good a deed that was a nullity, as was the deed here. Held, per Gwynne, J., Patterson, J., contra, that the patents for the lands not having issued until April, 1881, the said taxes accrued due while the lands vested in the Crown, and so were exempt from taxation. Held, per Strong, J., following McKnij v. Cryxler, 3 Can. S. C. R. 43G, and O'Brien v. Coi/swell, 17 Can. 8. C. R. 420, tht.,t the operation of 45 V. c. 10, 8. 7, ift restricted to curing the defects in tlie proceedings for the sale itself as distinguished from the proceedings in assessing and levying the taxes which led to the sale. Whelan v. Ryan.— xx. 05. 25. ]\Iunicipal by-law — Annual tax on company — Validity — Ap- peal— R. S. C. c. 135 8. 24 ifj). See JURISDICTION, 1)3. 26. T(hxafion of niilivay — Statutory form — Departure from — Poivers of assessors — oJ V. c. :J7, s. IJo (N.B.) By the assessment law of the city of St. John, 53 V. c. 27. s. 125, (N.B.), tlie agent or manager of any joint stock company or corporation established abroad or out of the limits of the province may be rated and assessed upon the gross and total income received for such company or corporation di duct- ing only therefrom reasonable cost of management, etc., and such agent or n'anager is required to furnish to the assessors each year a statement under oath in a prescribed form showing the gross income and the deductions of the various classes allowed, the balance to be the income to be assessed ; and in case of neglect to furnish such statement the assessors are to fix the amount of such income to be assessed according to their best judgment, and there shall be no appeal from such assessment. 56 Assessment and Taxes — Continued. The Atlantic division of the C. P. R. runs from Megantic in the province of Quebec tlirough the state of Maine into New Brunswick. On entering New Brunswick it runs over a line leased from a N. B. Co. to the western side of the river St. John, and then over a bridjje into the city where it takes the I. C. R. road. The j^eneral superintendent has an office iu the city, but all monies received there are sent to the head office in Montreal. The superintendent was furnished with a printed form to be tilled up for the assessors as required by said Act, which was as follows : "Gross and total income received for company duriuf^ the fiscal year of , next precedint^ the lirst day of April. This amount has not been reduced or off set by any losses, etc." This latter clause the superintendent struck o>it and tilled in in the tirst place by statinf^ that no income had been received by the company, the remainder of the form, consisting of details of the deductions, was not filled in. This was f»iven to the assessors as tlie statement called for, and they disrcf^ardeil it, assessing,' the company on an income of 8140,000 without making any inquiries of the superintendent as the Act authorized them to do. A rule for a certiorari to quash this assessment was obtained, but discharged by the court on the ground that the Superin tendent had so far departed from the prescribed form that he had in effect failed to furnish a statement as required by the Act, and tlie assessment against him was final. Held, reversing the decision of the Supreme Court of New Brunswick, Foamier and Taschereaii, JJ., dissenting, that the superintendent had a right to modify the form prescribed to enable him to show the true facts as to the business of the company in St. John, and the assessors had no right to arbitrarily ii.x an amount assessable against him without taking any steps to inform themselves of the truth or falsity of the statement furnislied. Held, also, that the provision that there should be no appeal from the assessment where no statement is furnished, relates only to an appeal against over-valuation under C. S. N. B. c. 100, s. 00, and does not abridge the power of the court to do justice if the assessors assess arbitrarily or upon a wrong principle or no principle at all. Held, per Gwynne and Patterson, JJ., that the assessment law of St. John does not apply to railway companies, there being no provision made for ascertaining the amount of business done in the city as proportioned to the whole business of the company. Appeal allowed with costs. Present: Strong, C. J., and Fournier, Tascherean, Gwynne and Patter- son, JJ. Timmerman v. City of St. John.— 20th Feby., 1803. 27. In.mnmce Co. — Net Profits — Deposit with fjovernnmnt — State- men t to assessors — Vo ■ iance from forvi. By section 126 of the St. John City Assessment Law, 1889, 52 V. c. 27, the agent or manager of any life insurance company doing busmess out of the province is liable to be assessed upon the net profits made by him as such agent 67 Assessment and Taxes — C'lntimuiL or manager from premiums received on all innurances effected by him ; and the better to enable tlie assesHorsto rate such company, the a^jent or manager is required to furnish at a certain time in each year a Htatement under oath, in a prescribed form, settinji forth tlie ;;ro»a income and particulars of the losses and deductions claimed therefrom, and showing the rateable net profits for the preceding year. By the form prescribed, the deductions to be made from the gross income couaist of re-insurance, rebate, etc., actually paid and amounts paid on matured claims on policies issued by such agent or manager. In the form presented by tlie agent of a life insurance company in St. John, N. B., there was no amount entered for deductions of the latter class, but instead thereof, an item was inserted, of "70 per cent, of premiums deposited with government for protection of policy liolders," which was an addition to tlie form. The statement showed that the deductions exceeded the .gross income, leaving no net profits to be taxed. The assessors, on receiving this statement, dis- regarded the result shown thereby, and assessed the agent on net profits for the year of $(i,HOO. A rule niai for a certiorari to quash the assessment was obtained, in support of which it was sliown by alitidavit that the amount required to be deposited with the Dominion Government by the company assessed was about 7") per cant, of the premiums received, and that the amount of such deposits from timo to time returned to the company was applied for the benefit of policy-holders and formed no part of the income profits or of the company. Tlie Snpreme Court of New Brunswick discharged the rule and refused to quash the sssessment on tlie grounds that the govern- ment deposit was part of the income of the company held in reserve for certain purposes and formed no part of the expeuiliture, and that the agent had no right to strike out certain reiiuiremants of the form prescribed and substitute different statements of his own. Held, reversing the decision of the court below, Fournier and Taschereau, JJ., dissenting, that the agent was justilied in departing from the form toshov/^ the real state of the business of the company, and the deposit was properly classed with the deductions, and the assessors had no right to disregard the statement and arbitrarily assess the company as they did. Appeal allowed with costs. Present : — Strong, C.J., and Fournier, Taschereau, Gwynne and Patter- son, JJ. Peters v. City of St. John.— -iOth Feby., 18(t3- 28. Manicipdl Corporation — Wafer rates — Discount by pronifA payment — Property exempt from municipal taxation — Discrimination as to — R. S. 0. (1S87), c. 184-, s. 4^0, s-s. J — c. 19i2, ss. 19, 20. By R. S. O. (1887), c. 184, 8.480, s-s. 3 (Municipal Institutions Act) it is the duty of a municipal corporation which has constructed water-works, to supply water to all buildings on land along the line of any supply pipe, on request of the owner or occupant thereof. By c. 192, s. ID (Municipal Water Works Act) the 58 Assessment and Taxes— '"««»"«(/. corporation Ima authority to rej^ulate tlio diatribution and tiBe of water and fix the prices and time of payment therefor, and by a. 20 the corporation may pass by-lawa etc., for allowing ii diacount for pro-payment. Pursuant to these powers the corporation of the City of Toronto paased a by-law allowing a discount ou all water rates paid in the first month of the quarter for wliich they should be due but the aame was not to apply to Govern- ment or other inatitutiona, which are exempt from city taxes. A tender was made to tlie city of the amount aasesaed, on property of the Dominion Gov- ernment leas the discount allowed by the by-law which was refused and the whole amount havinj^ been paid under protest an action was brouj^ht against the city for the rebate. Held, reversin<4 the decision of the Court of Appeal (18 Ont. App. IL (i'22) and that of Fer^juson, J.,at the trial ('20 O. R. 1'.)) Patterson, J., diaaontint,', that the lef^ialature intended and enacted that the rate for water aupplied by the city should be an ecjual rate charf,'ed upon all consumers alike and the city corporation had no power to impose a greater rate for water supplied to a consumer who is not subject to civic taxation than is imposed upon consumers who are ; therefore the by-law was ultra vires in so far as it nuikea a distinction between the two classes of consumers. Per Patterson, J. The imposition of water rates is not a tax, and there is no principle on which the city can be prevented from demandin^^ a larger price for water aupplied to consumers who have paid no part of the cost of couHtructing works than it ia willing to receive from those who have. Present: Strong, C.J., and Fouruier, Taachereau, Gwynne and Pat- terson, J J. Attorney-General of Canada v. City of Toronto— '20th February, 1898. Assignment — Under foreii^n bankruptcy. See INSOLVENCY, '2. 2. In tru.st. See INSURANCE, 4. S. For benefit of creditors — Power to sell on credit — Fraudulent Preference— R. H. 0. c. J/S, s. ;?. In a dee3 of assignment for the benefit of creditors, the following clause was inserted : " And it is hereby declared and agreed that the party of the third part, the assignee, shall, as soon as conveniently may be, collect and get in all outstanding credits, etc., and sell the said real and personal property hereby assigned, by auction or private contract, aa a whole or in portions, for cash or on credit, and generally on such terms and in such manner as he shall deem best or suitable, having regard to the object of these presents." No fraudulent intention of defeating or delaying creditors was shown. Held, affirming the judgment of the court below, that the fact of the deed authorizing a sale upon credit did not, per se, invalidate it, and the deed could not on that account be impeached as a fraudulent preference of Ci'editors within the Act, R. S. O. c. 118, a. 2. Slater v. Badenach.— x. 296. 59 Assignment— Coutimied. 4. Of H (Jovenunent contract without prior consent of (loveru- nicnt — Etioct of. See PETITION OF RIGHT, 14. 5. Order for delivery of Ijonds of rnilway company. See RAILWAYS AND RAILWAY COMPANIES, I'J. a. Rii/ht of (ifisltjvee to sue under volantavji assijjvment — Arts. J') and 10 (J. G. P. {L. C.) — Assignee represents onhj ussl(fuor. Held, in the absence of astatntory title to sue as reprusentiiif,' creditors, such as is conferred by bankruptcy and insolvency statutes, an assif^neo in trust for creditors can only enforce the same ri^'lits as the person nuikin^ the assignment to him could liave enforced ; therefore the defendant could not by a plea in his own name ask to have a conveyance, made by the debtor to the plaintirt", prior to the assignment under which defendant claimed, rescinded or set aside as fraudulent against creditors. The nullity of a deed should not be pronounced without putting all the parties to it en caum- m (hvlaration de jufifiuent commun. Sembk—The plaintiff, being a second purchaser in good faith and for value, aci]uired a valid title to the property in question, which he could set up even against an action brought directly by the creditors. Burland v. Moffatt.— xi. 7(>. .SVf also Uroicii v. I'iiinunnediilt (3 Can. S. C. R. 102) (Lease 1). ■Both BurUiud v. Mojl'ott and Uniirii v. I'iiisoDicdiilt have been overruled by the Judicial Committee of the P. C, which has held, in /'«)■/(■()».< v. Jieiliuir, 13 App. Cases 120, that. Art. li» C. C. P. is applicable to mere agents or mandatories. It is not applicable to trustees in whom the subject of the trust has been vested in property and in possession for the benefit of third parties, and who have duties to perform in the protection or realization of the trust estate.] See also TRUSTS AND TRUSTEES, 1.5. 7. Of interest in tender for conti'act — Provision ao-ainst assign- nient of interest in contract. See CONTRACT, 24. 8. For benefit of creditoi-s — Accidental omission of claim from schedule of debts— R. S. O. c. 118, s. 2. See FRAUDULENT PREFERENCE, 3. 9. Condition not to assi^'n in policy of insurance — Chattel mort- gage not breach of. See INSURANCE, FIRE, 16. 60 Assignment— C"h) j)Hrtifii)afi' ill (ifter. A creditor is not debiirred from participating' in the benetltu of an as«it{n- ment in truat for the general bunetit of creditora, by nn un.4ucceatiful attempt to have such deed set aside as defective. Gardner v. Kioepfer.— xv. 3!I0. 11. Far benefit of eredlfors — OhUi'ined by DurefiM — Im/irDper iinr of criminal proceMH — Stijtiny ci'liaimd ehiinje. 8., a trader in Yurnioutli, N. 8., liad a luiinber of creditorB in Montreal, J., one of such creditors, pruferrfd a criniiiiai cliartjo af^ainst S., sent a detec- tive to Yarmouth witli a warrant, caused such warrant to be indorsed by a local mas^istrate and had S. brouf^ht to Montreal, when the other creditors there issued writs of capinn for their renpective claims. Tlie fatiierof S. came to Montreal, and in consideration of the release of S. on both the civil and criminal char^^ca, transferred all his property for the benefit of the Montreal creditors, and S. was released from t,'aol, having givon his own recofjnizance to appear on the criminal charge. In the settlement to the claims of the creditors was added the costs of both the civil and criminal suits. In a suit to set aside the transfer as being obtained by duress and to stitlo the criminal prosecution, the evidence showed that the creditors, in taking the proceedings they did, expected to obtain the security of the friends of 8. Held, affirming the judgment of the court below, "20 N. 8. Rep. 378, that the nuture of the procee'.lings and the evidence clearly showed that tlie crim- inal process was only used for the purpose of getting S. to Montreal to enable the creditors to put pressure on him, in order to get their claims paid or secured, and the transfer made by the father under such circumstances was void. Shorey v. Jones.— xv. 3'.)8. \'l. In trast for cvi'difort* — Preference — Fraiul agdinst creditors — atatide of Elizabeth — Remdtiivj trusts. A deed of assignment of property in trust for the benefit of creditors provided for the distribution of the assets by the assignee as follows: First, to pay certain named creditors in full. Secondly, if suf'ticient assets remained after such payment to pay certain other named creditors in full, or, if the assets should not be auflicient, to distribute the same pro rata among such second pieferred creditors. Thirdly, to divide the remaining assets among all the creditors not preferred in e(iual proportions according to their respective claims, and, fourthly, to pay the balance remaining after distribution to the assignor. The deed required all creditors executing it to release the assignor from any and every claim of the e.xecuting creditor against him, and provided that the assignee should not be liable to account for more money and effects than he should actually receive, nor be responsible for any loss or damage to the trust, except such as should happen through his own wilful neglect. In an action to set aside the deed : Assignment—^ 'nuthuuui. Held, at)iriiiin>{ tliu judf^iiiciit of the court below, Uvvyiiiiu and Pivttorson, JJ,, diHHoiitin^, that tiie deed was one to which it wua unrcuHonablu to expect titipreferred creditorH to boconio pivrtioH, iviid tliurj'fore, and l>ucauHo it (con- tained IV reHultin){ truHt in favor of tliu dclitur, it wan void inuli-r the Htatutc, l!) Eliz. 0. 5. Whitman v. The Union Bank of Halifax.- xvi. 410. 1:{. As.ngnmenf for hcocjlt nf rretlifors — ('usfs nf r,ir,n. L*. Under 48 V. c. 2fi, h. !), aw amended by 4i( V. c. 'in, s. 2, iin awsiKninont for tile uenonil benelit of creditorH liaH precedence of executions not completely executed by payment Hubjuct to the lien of any execution creditor for liis costs, whore there is but one execution in the Hheriff'a hai.ds, or of the creditor who has first placed his execution in the sheriff's hands when there are moio than one. Held, Gwynne and Patterson, JJ., dissentiuf,', that tlio lien created by this statute is not confined to the coats of issuin^j the execution, but covers all the costs of the action. The section of the Ontario Judicature Act, 1881, s. 43, which provides that in cases where the amount in controversy is under ?1,0()0 no appeal sluvll lie from the decision of the Court of Appeal to the Supreme Court of Canada except by leave of a jud^o of the former court, is xiltrti rirex of the lej^islature of Ontario, and not binding on this court. Remarks on an order granting such leave on appellant undertaking to ask no costs of appeal. Clarkson v. Ryan.— xvii. 2")!. 14. Debtor and creditor — AHsUjnment in trust — Release by — Authority to sign — Ratification — Estoppel. To an action by L. against A. the defence was release by deed. On the trial it was proved that A. had executed an assignment for benefit of creditors and received authority by telegram to sign the same for L. The deed was dated Hth October, 1881, and afterwards, with knowledge of it, L. continued to send goods to A., and on 5tli November, 1881, he wrote to A. as follows: " I have done as you desired by telegraphing you to sign deed for me, and I feel confident that you will see that I am protected and not lose one cent by you. After you get matters adjusted I would like you to send me a cheque for S800." * • • In April, 1885, A. wrote a letter to L., in which he said : " In one year more I will try again for myself and I hope to pay you in full." In November, 188(5, the account sued upon was stated. Held, reversing the judgment of the court below, Taschoreau and Patter- son, JJ., dissenting, that the execution of the deed on his behalf being made without sufficient authority, L. was not bound bj' the release contained therein, and never having subsequently assented to the deed, or recognized or acted under it, he was not estopped from denying that he had executed it. 62 Assignment — Continued. Held, i>er Taschereau and Patterson, JJ., that though A. had no sufficient authority to sign the deed, yet tliere was an af^reement to compound which was binding on L., and the understanding that L, was to bo paid in full would be a fraud upon the other creditors of A., who could only receive the dividends realized by the estate. Lawrence y. Anderson, -xvii. 319. 15. For hcvetit of creditors- -Construction of R. S. 0. (JSS?) c. IJ//., s. ,? — Preference — Intend — Pressure — Criminal liability. R. S. O. (1S87) c. 121, s. 2 makes void any conveyance of property by a person in insolvent circumstances made " with intent to defeat, delay or prejudice his creditors, or to give to any one or more of them a preference ovit his other creditors or over any one or more of them, or which has such effect.'' Held, afiirming the judgment of the Court of Appeal, (Fournier and Patterson, .JJ., dissenting), that the words " or which lias such effect" in this section apply only to the case of " giving any one or more of (his creditors) a preference ovi l bis other creditors or over any one or more of them." Held, further, that the preference provided against in the statute is a voluntary preference and a conveyance obtained by pressure from the grantee would not be within its terms. W. having become insolvent, and wishing to secure to an estate of which he was an executor, monies which ho had used for his own purposes, gave his co-executors a mortgage on his property for the pr pose, and proceedings were taken by a creditor to set aside this mortgage under the above section. Held, Fournier a'ld Patterson, .J.J., dissenting, that the mortgage was not void under the statute. Held, ;>£'' Strong, Taschereau and Gwynne, JJ., that there was no prefer- ence under the statute as the persons for whose benefit the security was given were not creditors of the grantor, but they stood in the relation of trustee and cestui que trunt. Held, also, per Strong and Taschereau, .JJ., that the grantor being crim- inally responsible for misappropriating the money of the estate of which ho was executor, the fear of penal conse(iuences was sufficient pressure on him to take from the mortgage the character of a voluntary preference. Molsons Bank y. Halter. — xviii. 88. 16. For benetit of creditors — Bill of sale — Defective affidavit — Absence of date and words " before nie " — R. S. N. S. 5th Series, c. 92, ss. 4 & 10. See CHATTEL MORTGAGE, 11. 17. For henepi of creditors — Fraudulent preference — R. S. 0. 1S77, c. nS—4S V.c.iJ6,s.3(0.). One N. owed defendants a sum of money which he was unable to pay in full, and be assigned to defendants all his book debts and accounts, the assign- 63 Assignment — Continued. ment providing that the book clebtB should be placed in the hands of a firm of tinancial aj^ents for collection, who sliould account to the defendants for the proceeds less the commission, and whatever amount remained in defendants' hands after their debts were paid sliould be paid over to N. riaintiffs, judj;- ment creditors of N., brought an action to set aside this assignment as having the effect of hindering, delaying and defeating them in the recove/y of their claim and giving defendants a preference over other creditors, and so being void under R. S. O. 1877, c. 118, as amended by 48 V. c. 2C, s. 2 (O.). Held, affirming the judgment of the Court of Appeal for Ontario, 15 Ont. App. K. 321, and of the Divisional Court, 14 O. R. 288, (Gwynne, J., dissent- ing), that N. being unable to meet the demands of his creditors for payment must be deemed insolvent within the meaning of the said Act ; that book debts are a species of property included in tlie provisions of 48 V. c. 2(1, 8.2 (0.), and that the assignment by N. to the defendants was void under that section. Present: — Strong, Fournier, Taseheroaii and Gwynne, J.T. Kloepi or v. Warnock.— xviii. 701. ly. x\.;s.sio^uinent of chose in action — Rioht ol" assij^nee to sue — Notice to ha given debtor — R. S. N. S. 4tli .Series, c. IH, ss. 355 & ;}59. See NOTICE, 15. LIMITATIONS, 12. 19. A.ssignnieut in trnst for creditors — Action to set aside — Refnsal by Jud;^e to instruct jnry as to what constitutes fraud un- der .Statute of Elizabeth — Taking accounts — Misdirection — New trial. ,SVc' PRACTICE, 20. 20. Agent of l)ank discounting drafts and using funds in business of liis tirni — Assignment by tirni in trust — Drafts, "debts due and owing" from insolvents to bank. See BANKS AND BANKING, 24. 21. Of personal property — Preference by — Pressure — Intent — 4^ V. c. 4^, s. 2 {Man.). By the Manitoba Act 49 V. c. 45 s. 2, "Every gift, conveyance, etc., of goods, chattels or effects • • • made by a person at a time when he is in inbolvent circumstances • • • with intent to defeat, delay or prejudice his creditors, or to give to any one or more of them a preference over his other creditors or over any one or more of them, or which has such effect, shall as against them be utterly void." Held, Patterson, J., dissenting, that the word "preference" in this Act imports a voluntary preference, and does not apply to a case where the trans- fer has been induced by the pressure of the creditor. 04 Assignment— CoHtimicd. Held, further, that a mere demand by the creditor without even a threat of legal proceedings, is sufficient pressure to rebut the presumption of a pre- ference. The words "or which has such effect" in the Act apply only to a case where that had been done indirectly which, if it had been done directly, would have been a preference within the statute. The preference mentioned in the Act bein<5 a voluntary preference, the instruments to be avoided as having the effect of a preference are only those which are the spontaneous acts of the debtor. MoUons Bank v. Halter, 18 Can. ti. C. R. 88 {See Assigument 15) ap- proved and followed. Held, ;)(')■ Patterson, J., that any transfer by an insolvent debtor which has the effect of giving one creditor a priority over the others in payment of his debt, or which is given with the intent that it shall so operate, is void under the statute whether or not it is the voluntary act of the debtor or given as the result of pressure. Stephens v. McArthur. — six. 44f). 22. Of chose in action — Parties to suit — Demurrer — Re.s judicata. See PRACTICE, 25. 'IS. Insolvency — Claim arjainst insolrent — Xofe.s held as collateral sccnrlf;/ — Pleihjr — Cullocation — Joint and several liahility. Held, afilirming the judgment of the court of Q. B. for L. C. (appeal side), that a creditor who by way of security for his debt holds a portion of the assets of his debtor, consisting of certain goods and promissory notes endorsed over to him for the purpose of effecting a pledge of the securities, is not entitled to be collocated upon the estate of such debtor in li(iuidation under a voluntary assignment for the full amount of his claim, but is obliged to deduct any sum of money he may have received from other parties liable upon such notes or which he may have realized upon the goods. Fournier, J., dissenting, on theground that the notes having been endorsed over to the creditor, as additional security, all the parties thereto became jointly and severally liable, and that under the common law the creditor of joint and several debtors is entitled to rank on the estate of each of his co- debtors for the full amount of his claim until he has been paid in full without being obliged to deduct therefrom any sum received from the eatates of the co-debtors jointly and severally liable therefor. Gwynne, J., dissenting, on the ground that there being no insolvency law in force tlie respondent was bound upon the construction of the agreement between the parties, viz., the voluntary assignment, to collocate the appellants upon the whole of their claim as secured by the deed. Benning v. Thibaudeau.— xx. 110. '24. Mortgage — Preference hy — Prexstire — P. S. 0. {Ipnil — ,/( / r /.sv lid iov . In an action broui^ht af^aini5t school trustees, judf^ment was obtained. A ratepayer of the district applied to a judf,'e of the High Court of .luatice for Ontario, unt^er section 42 of chapter 147, R. S. O. (1887), to tax the bill of the solicitor of the plaintiff. Held, /)(')' Kitchie. C.J. , and Strong and Patterson, JJ., aflirniing the judgment of the Court of Appeal for Ontario, that a ratepayer is not entitled to an order for taxation under said section. Held, also, per Ritchie, C.J., and Strong and Gwynne, JJ.. that assuming the court had jurisdiction, the subject matter was one in which the Su])rome Court should not interfere. Held, further, per Taschereau and Piilterson, JJ., that tliere wns no jurisdiction to entertain the appeal. McGugan v. McGugan.- xxi. 2('(7. Sfc, also, JURISDICTION, 101. 8. (V>.s78 — QiijintiDU meruit — Supreme a luJ Exchequer Courts. In proceedings before the Supreme and Exche(iuer Courts of (Canada an Attorney has the right to establish the ijitantiuii nuTiiit of his services by oral evidence in an action for his costs. Paradis y. Bosse.— xxi. 119. 9. Bin of eoKtst — ,SV'^ of — Mutual debts — Special services. Held, artirming the judgment of the Court of Appeal for Ontario, tliut in an action by a firm of attorneys for costs due from clients the clients cannot set off against the plaintiffs" claim a sum paid by one of them to one of the attorneys for special services to be rendered by him, there being no mutunlit^^ ami the payment not being for the general scvices covered l)y the retainer to the firm. McDougall Y. Cameron ^ . ,-,, Bickford v. Cameron » xxi. .i/.. 10. Ad litem — Promise of indemnity to sheriti' by, in course of suit — Adoption b}' client. See APPEAL, 18. Attorney General — Delegation of authority by. See CRIMINAL APPEAL, 1. 2. Of Province — Proper person to bring a suit foi- administration of charitable trust. .SVe CHARITABLE TRUST. Auctioneer — Liability of, to assignees of Ijill of lading. See BILL OF LADING. 07 B. Bail — ('(iplds — Bail ontci-ed — Onlci- lor (liscliargo of — In discre- tion of court I'L'low iind ji matter of practice in wliicli no appeal. See JUIUHDICTION, C.l. Bail Bond — Altered after execution. Sec JJOXD, 4. Bailee — Ki^ht to hold gocjds for unpaiil jmi'cliase money. Sn' SALE OF GOODS. .'). Bailment — K.-ulway company — Carriage of o()o0,000 P. E.I. Cy., or f97,333.H:i Dominion Cy. divided into shares of €10, or »:i2.44. Power to increase this capital by the issue of additional shares, of same value, was given by sections 3'.), 40, 41 & 42 of the Act, and these sections prescribed the manner of effecting this increase, and the sale of the new stock by auction, and it was provided by section 43 that " the said additional shares shall be subject to all the rules, regulations and provisions to which the original stock 69 Banks and Banking -<'""<'«»<'/. is subject, or may liereiifter be subject, by any law of this Island." The 10th section of the Act was repeakd, and re-enacted by the 3rd section of 19 V. c. 11, as follows : — " The holders of the stock of the said bank shall be charj^eable in their private and individual capacity, and shall be holden for the payment and redemption of all bills which may have been issued by the said corporation, and also for the payment of all debts at any time duo from the said corporation, in proportion to the stock they respectively hold, provided however, that in no case shall any one stockliolder bo liable to pay a RUin exceedin« twice the amount of stock actually then held by him, over and above, and in addition to the amount of stock actually by him paid into the bank, provided neverthe- less, thttt nothinji in this Act, or in the said hereinbefore recited Act contained, shall be construed to exempt the Joint Stock of the said cori)oration from being also liable for, and (Jiargeable with, the debts and engaj^einents of the same." No increase 'o the capital stock was ever made under the provisions of this Act. In 187'2, the bank havinjj a balance of not profits on hand of $27.'28().41, pursuant to a resolution passed at the f^eneral annual meetint^ of the sharehoklers, application was made to the le«{cment, the sum of #02,977.8.5 ; he admitted having; received from the revenues and sale of portions of the property a sum of 94!),();{3.0{), and havinf{ sold another portion of said property for 1^1.000 which he had not yet r^peivod. The defendant went into particulars with respect to his deal- ings with certain portions of the property. The result would have been that a considerable balance would still have appeared owing to the bank of St« Julius, if the contention of the defendant Molleiir was correct. The defendant tiled with his pleas certain statements of account. To these the plaintiff objected as not having been sworn to, as required by law, and he reiterated his coiituntions with respect to the agreement between him anil the defendant MoUour. (In the 20th May, 1S82, the Superior Court of the district of Iberville, Cluvgnon, J., presiding, by an interlocutory judgment, Held, that the defen- dant Molleur was the locuw. tenens of the bank, and that the said defendant should render a proper swon. account. This the defendant INIolleur did, not only of his dealings with the property up to the time of the institution of the action, but also up to the date of rendering said accounts, the loth August, 1882, and ho claimed that a balance was still duo to him of 1>l-i,814.l8. On the 2'.)tli January, 1888, Mr. Justice Chagnon delivereil judgment in which he re-aftirmed his previous finding, that the defendant Molleur was the prrle iioin or locum teiwux of the bank. He held, also, that the defendant Molleur was justified in paying to the bank the amount of the notes for which they held the endorsement of L'Ecuyer, there being no evidence that the hypothec held by L'Ecuyer was not a buna tide security of which the bank had a right to the benefit ; that tli« bank was justified in retaining the shares of the plain- tiff to be applied on the balance of its claim ; that the bank was entitled also to the sum of S2."),'2.t1.55, together with the amount of the bonus of $4,000, and to interest on all the amounts it was thus declared entitled to at the rate of ldin^ that Mulleur wuh not the lt>cum tenem of the bank, and revemed hia finding witli respect to the rate of intercHt. In other reHpecta it practically attirmod the jud^^nient of thu Superior Court, and aeiit the case back to that court to have tlie account rectified in accordu ntint(,tl. Tliere wan oiio point, howevur, in the juil^'inent of the Ipiirned jndijo of tho Kuperior (^oiirt from which the court was ohii^cd to (llHsent. At the time tho deed of tlie Itlth of May, lH7ti, wivh executed there were, iis already stated, certain chiinm bcin^ contuHted before the aHHi^noe. The amount of thefle claiiUH hIiouM not liave been [laid to the aHsi^'nee before tlie renult of the conteHtatioDH waH declareil, or, if paid, tlio defeiidantH niiould iiave taken proceedin^is in the intercHt of tlie plaintil'l to recover back thin amount from the aHHi^Miee. Thin amount tho plaintiff wan entitled to, in addition to the Bum found by the auditor on tho baais of the judgment of the Superior Court. In all other reapectB the judfjinent of tlx! Superior Court uhould be aflirnitMl and the appeal of the plaintilT allowed with cohIh, and the croHs appeals dismiMMed with coHtn, tho plaintiff to receive hia couts on the appeal and cro8B appeals in the Court of Queen'H liench. Lamoureux v. Molleur.- Hth March, 188ti. [In this cane the judicial committee of the I'rivy Council refused leave to appeal.] 13. Windiiio-iip of insolvent hank — Win(lin<,^-up Act, 45 V. c. 28, as HiiR-ndod l»y 47 V. c. o!). See WINDING-UP, C. 14. Surety — Ctishier of bank — Mlsconihict of — Illrgal transnctioni* — Proper hanking business — Sa net ion of directors. Tli3 surotiog of an abacondinj^ bank cashier are not relieved from liability by showinti that tho bank employed their principal in tranaactin^^ what was not properly banking business, in tho cov-rsc of which he appropriated the bank funds to his own use, the claim ajjainst tho sureties being for the moneys bo appropriated by the principal, and not for losses occasioned by such illegal transactions. Springer v. Exchange Bank of Canada— Barnes v. the same.— xiv. 71(). 15. Surety — Mortyaye to Ixi nk — Continuiny security — Present i ndebtedness of principul — Commercial pajwr — Mode if dcidiny by Ixink — Tidiiny foryed paper in renewal. McK. gave a mortgage to the iVf. Bank as security for the present indebt- ness of, and future advances to, a customer of the bank. I5y the terms of the mortgage McK. was to be liable, amongst other things, for the promissory notes, etc., of the customer outstanding at the date of the mortgage, and all renewals, alterations, and substitutions thereof. Held, per Ritchie, C.J., Fournier and Taschereau, .IJ., that the bank having given up the said promissory notes, etc., and accepted as renewals thereof, forged and worthless paper, McK was, to the extent of such worthless paper, relicTed from liability as such surety. 76 Banks and Banking — Continued. Held, ;)(.'»• Strong, J., that the bank, having accepted the renewals in the ordinary course of banking business, and it not beinj; shown that they were guilty of nej^ligence, the surety was not relieved. Held, per Gwynne, J., that as there was a reference ordered to take an account of the notes allef^ed to be forj^ed, the consideration of the surety's liability should be postponed until tlie account was taken. Merchants' Bank of Canada y. McKay.— xv. G72. 16. Shareholders in bank— VVindiiio-up— R. S. C. e. 129— Con- tributory, calls on — Double liability — Set-oft". See WINDING-UP, 7. 17. Shares — Suit respecting — Matter in controversy — Actual value of shares — Right to establish by affidavit. See PRACTICE OF SUPREME COURT, 117. IS. Tli>' Bimklng Act — R. S. C. c. 120, s. So et seq. — W^in<» director and an entry to be made in their books that the managing direc- tor lield the shares in ijuostion on behalf of tlie bank as security for the loan. The bank sub8e(iuently credited F. with the dividends accruing tiiereon. Later on the managing director pledged these shares to another banlt for his own persou'il debt and absconded. Held, allirming tlie judgment of the court of Queen's Bench for L.f!. (appeal side), that upon repayment by F. of the loan made to him, the Exchange Bank was bound to return the shares or pay tlieir value. The prohibition to advance upon security of shares of anotlier bank contained in the amendment to the gtuioral Banking Vet applies to ttie bank and not to the borrower. Per Patterson, J. — Assuming that the subseipicnt amendment of the general Banking Act forbade the taking of such security by any bank, the anieiidnifiit did not alter tlie charter of the Exciiange Bank, 85 \"ic. c. 51 (D.), under which the Exciiange Bank had power to take the shares in question in its corpor.ite name as collateral security. To take such security may have be- come an offence against the banking law, punishable from the beginning as a misdemeanour ami subject to a pecuniary penalty, but it was not ultra viren. Art. It (". C. which declares that proliibitive laws import nullity has no upplication to such a case. The Exchange Bank v. Fletcher.— xix. 27m. 2(). Inc()rpt>f;iti(jn of tliu TrusteoH of the Bank of Upper Caiiada — :U V. c. 17 (D.): 38 V. c. 40 (D.)— Validity of— B. N. A. Act l.S()7, s. !)1 — Plight of lejjfislation l)y Parliament as tt» inHolvent bank. .SV*- PARLIAMENT OF CANADA, 12. 27. Shares held in trust— Substitution — Registry— Artfi. 931, 938, 939, 1047, 1048, C. C. See TRUSTS AND TRUSTEES, 20. 79 Banks and Banking — ('(iniimifil. 2H. iJcpuKit with hank after suspension. A person who makes a deposit witli a bank after its suspension, the dtpiisit consistinj^ of che(jues of third jiarlies drawn on and acceptc?d by tlie bank in (jieition, is not entitled to be paid by privilege the anioiint of such deposit. The Ontario Bank v. Chaplin. — xx. 1")2. Ami .SVC INSOLVENCY', iij. 2!). Stock — I'raiislV'r of, to inaiiiig'er of bank or coiiip.-iiiy "in trust" — Duty of transferee to make UKinir}-. See TRUSTS AND TRUSTEES, 2:5. 80. ConipoundinLj felony — Knilie;^zleuient of liank funds \)y a^'ent — Security to bank — Bond — Consideration- -Agreement not to prosecute. ,SVc CONTRACT, 57. 31. Bank Act, R. S. (J. <\ l.Xt, s. rO—Llen on assrls-Priorit ;j of liote-ltolilei's — 7 ; r. r. •//, .'.-. ->/. Under section 79 of the liank Act, R. S. C. c. 120, the noteholders have the first lien on the assets of an insolvent bank in priority *'o the Crown. Strong and Tascliereau, J J., dissenting. rBut sue the present Bank Act, 5;i \'. c. 31, s. 5;i, passed since thi.-; decision.^ Liquidators of the Maritime Bank v. the Receiver-General of New Brunswick, -w. (■.'.•■'). 32. Bank cheques — Acceptance Jnj coshier oinl finslilmt at c future date — Liability of Bank. In 1881 G., having business transactions with the Exchaiige Bank, agreed with C, president and manager of the bank, that in lieu of farther advances, the bank would accept his cheque, but made payable at a future date. On the I'Jth October, 1881, G. drew a cheque on the Excliange Hank, and after having it accepted as follows: "Good on I'Jth Februar}-, I8;i2, T. (h'aig, presi- dent," got the cheque discounted by the People's Bank, and deposited the proceeds to his credit in the Exchange Bank. This choipu' was riiiewod on the '2'iin\ of May, and it was presented at tlie Kxcliango Bank and paid. Thereupon another cheque for the same amount was accepted in the same way and discounted by the People's Bank on the 7th Septembor, 188:i. .\t the time of the suspension of payment by the Exchange Bank, the Peopla's Bank had in its possession four cheques signed by G. and accepted by T. ( 'raig. president of the Exchange Bank, wliich were subsequently presented for pay- ment on the dates when they were payable and duly protested. The total of these cheques amounted to $(>)), 020. 04 and one of tlieni, viz., the one dated 7th September, 188;^, for S;^1,00(), was a renewal of tin cheque the proceeds of which had been paid to the credit of G. in the 80 Banks and Banking — CimtiiineiL Exchan^^e Bank. (' . was manager as well as president of the Exchange Bank. On an action bronght by the People's Bank against the Exchange Bank for the recovery of the sum of $(>(•, 020. 04, baaed on tlie four cheques in question, the Exchange Bank pleaded, iiitiT alia that C. had not acted witiiin the scope of his duties and within the limits of his powers, and tliat the bank had never authorized or ratified his acceptance of G.'s cheques. Held, per Ritchie, C.J., and Fournier and Henry, JJ., affirming the judg- ment of tlie Court of Queen's Bench for L. C, (Strong, Taschereau and Gwynne, JJ., rontm), that under the circumstances the Exchange Bank was liable for tlie acceptance by tlieir president and manager of O.'s cheques discounted by the People's Bank in good faith and in due course of business. Appeal dismissed without costs. Present: Ritchie, C.J., and Strong, Fournier, Henry, Tascliereau and Gwynne, JJ. The Exchange Bank of Canada y. The People's Bank.— 23 C. L. J. 301 — 22iid June, 1887. 33. -Letter of ^Uftnmtee by bank— Proof of loss — Account .sales. Sec (iU.VR.VNTEE. 31. Railway bomls— Mortoa^(3 of, as security for advances made by bank — Mort;L^a;^ees notes discounted by bank — Seconitinne>l. of the da to tl^ draft was drawn, which was at least two days prior to the date on whicli tliey were actually affixed. The draft was not paid, and an action was brought af^ainst II,, who pleaded " that he did not make the draft," according to provisions of Con. Stats. (N.B.), c. 37, s. 83, s-s. 4. On the trial the draft was offered in evidence and objected to on the ground that it was not sufficiently stamped, the plaintiff havin)^ previously testi- fied as to the manner in ■(vhich the stamps were put on, and having also sworn that he knew the law relating to stamps at the trme. The draft was admitted, subject to leave reserved to defendant to move for a non-suit, and at a later stage of the trial it was again offered with the double duty affixed. The trial resulted in counsel agreeing that a non-suit should be entered, with leave reserved to plaintiffs to move for verdict, court to have power to draw inferences of fact. On motion pursuant to such leave reserved, the Supreme Court of New Brunswick set aside the non-suit, and ordered a verdict to be entered for the plaintiffs on the ground that the defect in tlie draft of want of stamp should have been specially pleaded. See 23 N. B. li. 343. On appeal to the Supreme Court of Canada— Held, 1. Reversing the judgment of the court below. Strong and Gwynne, J J., dissenting, that double duty should have been placed on the note as soon as it came into the hands of the drawee unstamped, and that it was too late at the trial to affix sucli double duty, the plaintiff having sworn that he knrw the ]aw relat- ing to stamps, which precluded thu possibihty of holding that it was a mere error or mistake. 2. That under the plea that defendant did not make the draft, he wa,a entitled to take advantage of the defect for want of stamps. Per Strong, J. — That the note was sufficiently stamped and plaintiffs were entitled to recover. Per Gwynne, J.— That if the note was not sufficiently stamped the defence should have been specially pleaded. Roberts v. Yaughan.— xi. 273. 7. Notice of dishonour hy pod siojicient — 37 V. c. .^/, .s. 1 (D.). The Merchants' Bank of Halifax, appellants, as holders of promissory notes endorsed by McN., respondent, brought an action against him for their amount. The notes were dated at Summerside, and were payable at the agency of the Merchants' Bank of Halifax, Summerside. The defendant resided at the town of Summerside, and his place of business was there. Notices of dis- honour were given to the defendant hy posting such notices, addressed to the defendant at Summerside, at 1 o'clock p.m. on the day after the day on which tlie notes matured, the postage on such notices being duly prepaid in both cases. There is no local delivery by letter carriers from the post office in Summerside. No evidence was given by the de'endant that he did not receive the notices of dishonour, nor was any evidence given by the plaintiffs that the defendant had received them. The jury found for the defendant, contrary to the charge of the learned judge. A rule nisi having been granted to set aside 86 Bills of Exchange and Promissory Notes— ('"utintwd. tills verdict, and for a iiuw trial, tlio court dincliarf^cd this ri^e iii«i and directed the verdict to Htand on the f^round that the posting; of the notices of dishonour to the defendant was not Bufllcient notice of dishonour, inasmucli as both plaintiff and defendant resided in the same town, and tiio notices of dishonour should have been delivered to the dofondant iiersonally, or left at his residunco or place of businesB. Held, reversin<; the judgment of the court below, that since the passing of 37 V. c. 17, s. 1, the notices given ui the manner above sot forth were suflicient. Merchants' Bank of Halifax v. McNutt.--.\i. r2(i. H. Accoinmodation note — Collak'nil security for inortnan't! dubt of indorML'r — Payment by maker — Recourse against partner and co-mortgao'or of indorser. Sec PAllTNEllSIIIP, 'J. 9. Bank taking forged paper in renewal of notes — Release of surety. See BANKS AND BANKING, 15. 10. I-'roiniHsorji Note — Xon-negotlahle — IiulorsenLevf — Liohilifi/ of maker. H., a director of a joint stock company, signed, with other directors, a joint and several promissory note in favour of tlie company, and took security on a steamer of the company. The note was, in form, non-negotiable, but that fact was not observed by the officials of the Hamilton Bank, who dis- counted it and paid over the proceeds to the company. H. knew the note was discounted, and before it fell due be had in writing acknowledged his liability on it. In an action on the note by tlie Hamilton Bank against II. Held, affirming the judgment of the Court of Appeal, and that of the Divisional Court (9 O.K. 655), Strong, J., dissenting, that although, in fact, the note was not negotiable, the bank in equity was entitled to recover, it being shown that the note was intended by the makers to have been made negotiable, and was issued by them as such, but, by mistake or inadvertence, it was not expressed to be payable to the order of the payees. Present : — Sir W. J. Ritchie, C.J. , and Strong, Foamier, Henry, Taschereau and Gwynne, JJ. Harvey y. The Bank of Hamilton.— June 14, 1888. -.\vi. 714. 11. Promissory vote — Identity of payee — Double staviping. A promissory note made payable to John Souther & Son was sued on by John Souther & Co. Held, that it being clear by the evidence that the plainti£fs were the per- sons designated as payees, they could recover. 87 Bills of Exchange and Promissory Notes— Contimifil. It is no (il)jo('tion to tlio validity of a prominaory uoto that it is for pftv- mout of a certiiin Hiiin in curreiicy. (Currency niiiHt be lield to mean " United States Currency," wlien the note is payable in the United States. If n note is insullicitMitly Htamped, the donblo duty may bo artixentinueil. executed a bond, cne of the conditions of which was that the bonns should be repaid " in the event of the company, during; the period of twenty-ono years, ceasing to be an independent company." In 1888 the H. iV N. W. Hy. Co. became merged in the G. T. R. and, as was held on the facts proved by the trial jud<^e and the Divisional Court, ceased to bo an independent line. Held, affirming the decision of the Court of Appeal for Ontario lit Ont. App. R. 252), that there had been a breach of the above condition and the county was entitled to recover from the G. T. R. the whole amount of the bonus as unliquidated damages under said bond. Appeal dismissed with costs. Present : — Strong, C.J., and Fournier, Taschereau, Gwynne and Patterson, JJ. The Grand Trunk Ry. Co. v. County of Halton.— Feby. 20, 1893. Bonds — Collateral security — Revendication. B., as trustee for H. C. & Co., deposited with D. twelve bonds of the M. C. & S. Ry. Co., as collateral security, to be availed of only subsequent to the failure of the government to pay 'SIO.OOO subsidy previously transferred to D., and obtained a receipt from D. that on the subsidy being paid D. world return these bonds to B. The subsidy was paid and B. sued D. to recover back the twelve bonds. H. C. & Co. did not intervene. Held, that B., being a [j.^rty personally liable on the bills held by D., which the government subsidy of $10,000 transferred was intended to pay, and having complied with all the conditions mentioned in the receipt entitling him to recover possession of the bonds, was, as against D., the legal own(3r of the bonds. Drummond ^, Baylis.— ii. 01. 2. Validity of See RAILWAYS AND RAILWAY COMPANIES, 9. 8. Of Railwiiy Company — Agreement to deliver in payment of construction. See RAILWAYS AND RAILWAY COMPANIES, 19. Boundary — Eqititahle estoppel — Deserijition of land hy reference to i^lan — Construction of deed — Extrinsic evidence of boundaries. T. was th. owner of lot 9, and C. was the owner of lot 8 adjoining it on the south. Both lots had formerly belonged to one person, and there was no exact indication of the true boundary line between them. T., being about to build, employed a surveyor to ascertain the boundary. The surveyor went to the place, and asked C. where he claimed his northern boundary was. C pointed out an old fence, running part of the way across the land between the lots and an old post, and said the line of the fence produced to the post was his boundary line. The surveyor then took the average line of the fence and 93 Boundary — Cnntimicil. produced it till it met the post. He staked ont his line, C. not ol)jectiiif,'. A few days afterwards T., with his architect and builder, went on the jjround, and, in the presence of C, the builder a»{ain marked out the boundary by nieaPM of a line connecting the surveyor's marks, C. not objecting. Excavat- in)» was commenced accordiufj to that lino immediately, and T.'s house was built according to the line on the extreme ver^je of T.'s land. The first time that C. raised any objection to the boundary so marked was when the walls of T.'s house were up and ready for the roof and considerable money had been e.Npended in building;. Held, that C. was estopped from disputing, that the line run by the surveyor was the true line. Per Strong, J. — When lands are described by reference to a plan, the plan is considered as incorporated with the deed, and the boundaries of the lands conveyed as defined by the plan are to be taken as part of the description. In construing a deed of land not subject to special statutory regulations, extrinsic evidence of monuments and actual boundary marks is inadmissible to control the deed, but if reference is made by the deed to such monuments and boundaries, they control, though they may call for courses, distances, or computed contents, which do not agree v/ith those in the deed. Where there is a direct conflict of testimony the finding of the judge at the trial must be regarded as decisive and should not be overturned in appeal by a court which has not had the advantage of seeing the witnesses and observing their demeanor while under examination. Grasett v. Carter.— x. 105. 2. Buandaries — AgreeTnent as to — Whether executeiJ or executory — 2)l, 17, 50, 5H, CA), !>l, 92, Hub-Hection 1 — Powit of appointing Queen'H ('oiinsel. iii. 575. See LE(UHLATU1U:, 4. G. St'ctions 91 & 92 — InHuninco. iv. 215. See LEGISLATURE, 6. 7. SectiouH 91 & 101— Maritime Court of Ontario. iv. 648. See MARITIME COURT OF ONTARIO, I. y. Section 91, 8ub-Hection 12—31 V. c. 60 -14 & 15 V. c. 63 (Imp.). — Fishery officer, action aj^aiiiHt. v. 66. See PARLIAMENT OF CANADA, 4. 9. Section.s 91 & 92 — Licenses, merchants, trader*, etc. v. 356. See LICENSE, 1. 10. Sections 91, 92, 102 & 109— Escheat. v. 538. See LEGISLATURE, 6. 1 1. Section 91. sub-section 12 — Fisheries, regulation and protection of — Rij,jhts of ri[)arian proprietors. vi. 52. See PETITION OF RIGHT, 4. 12. Section lOH — Public harbour — Grant of foreshore by patent under great seal of pro v'ince. • vi. 707. See HARBOUR. alto ESTOPPEL, ly. xxi. 152. 13. Sections 65, 126 & 127, section 91, sub-section 3, section 92, sub-section 2 — Taxation — Filings in corrt. viii. 408. See LEGISLATURE, 7. 14. Section 91, sub-section 15 — 34 V. c. 5 (D.) (Banking Act), sections 46, 47 &4«. Sirtions 91 & 92 sub-section 9, 129— Sale of Li(|Uors— Licenses— 41 V. c. 8 (Q.V xi. 25. See LK0I8LATUUE, i:J. 20. Sections 91, 92 — Li(iuor License Act, 1.S83, and anieodin^^ Act. .SVf LKJUOU LICENSE ACT, 1H8:J. Tilh Jan., 1885. 21. Section 91, sub-section 24, .section 92, sub-.sectio/i 5, sections 109, 117— Indian lands. xiii. 577. .SV^ INDIAN LANDH. 1. Municipal — Guaranteeing cost of expropriation — Invalid. See RAILWAYS AND RAILWAY COMPANIES, 18, 5. Of Synod, altering disposition of commutation fund. See COMMUTATION FUND. 108 By-Law — Continued. 6. Of city of Quebec— Imposing license fee on transient tm & 29!). See MUNICIPAL COKPORATION, 23. 22. Of municipality for repair of i-oud — Action to recover a'nount imposed — Appeal — Jurisdiction — " Rights in future " — Supreme and E.xchequer Courts Act, R. S. C. c. l-io, s. 29. See JURISDICTION, 1)8. 23. Municipal corporation — Executory contract for purchase of fire engine — Necessity for by-law. See MUNICIPAL CORPORATION, 28. 24. Suhniission of, to ratepayers — Publication of, in adjoining municipality — jWhat, a sufficient con:pliii,nce with statute, Ontario Municipal Act, R. S. O. c. 184, s. 29.3. See MUNICIPAL CORPORATION, 29. c. Calls — Action for. See CORPORATIONS, 0, 31. Canada — Culling timber under license from old province of — Dis- pute with New Bi'unswick — Order in council of Dominion Government — Petition of right by licensee. See PETITION OF RIGHT, 20. Canada Temperance Act, 1878 — Constitutionality of. See PARLIAMENT OF CANADA, 5. 2. Conviction by J. P. — For selling contrary to provisions of — Removal by certioreds of or in tho county for public examination, and evidence of Buch deposit sent to the Secretary of State, with notice prescribed in section 5. In tho case of tho county of Pertli, the notice was deposited witli the rej^istrar of the north riding only. Thereupon a petition was sunt to tiio novorninent praying that under these circumstances no proclamation under section 7 should be issued by tho Governor General in Council. The Governor General in Council thereupon referred the following case to the Supreme Court : — There are two registrars of deeds for the county of Perth, in the province of Ontario — one for tho north riding, with an office at Stratford, und one for the south riding, with an office at St. Mary's. With a notice and petition for bringing the second part of tlie Canada Temperance Act, 1878, into force in the said county, there was laid before the Secretary of State evidence that Buch notice and petition was deposited, for the purpose and time recjuired, in the office of the registrar of deeds for the north riding of the said county. Is that a compliance, in that respect, with the requirements of tho sixth section of the said Act ? Ritchie, C.J., in giving judgment said, that in such an important matter, involving the right of a certain class of persons, it was important that every provision of the law should be strictly complied with. This, he held, had not been done. The petition might have been deposited either in the sheriff's office or in both tho registry offices. He held that the liling in the one registry office was insufficient. , Strong, J., said there could be only one construction of the Act, and no argument could be advanced to sustain the validity of the filing. He was only surprised that it had been found necessary to resort to this court to obtain a decision upon such a question. * The other judges concurred. In re Canada Temperance Act, 1878, and County Perth.— 20 C. L.J. 375. —28th Oct., 188-1. 4. Case referred by Gouernor General in Council — Petition for bringing second part of Act into force — Signatories — Withdrawal of names by. A certain number of electors of the county of Kent, in the province of Ontario, having signed a notice and petition under the provisions of the Canada Temperance Act, 1878, bringing into force in tho said county of the second part of the said Act, and the said notice and petition havmg been laid before the Secretary of State with evidence of compliance by the petitioners with the formalities prescribed by the Act, but before being submitted to the Governor General in council in the view to the issuing of a proclamation under the 7th section of the Act, some of the signatories have laid before the Secretary of State, a petition asking to withdraw their names from the said petition. Have they a right to so withdraw their names ? Opinion — The said signatories to the said petition, signed under the pro- visions of the said Act for bringing into force in the said county the second 107 Canada Temperance Act, iSyS—Continutil. part of the utiid Act, have not, uiulor thu circi.instiinces But forth in tlie said qucBtion, the ri^ht to witlidraw their aakiiowled^ed and deliberalo Higiiaturea, or to have tho saine witlidrawn front tlio waid potition. In re Canada Temperance Act, 1878, and thu County of Kent. — mh Nov., 18SJ. '). Canada Temperance Act, h. 107 — Appvopfiation of peiialties for contraverdlon of, SI V. c. 1, s. 7, s-s. 2,i — Interpretation Act — Applicable to HtatatcH relating to P. E. I. Held, 31 V. c. 1, 8. 7, 8-8. 22, Interpretation Act, does not apply to peniltiea imposed under tho Canada Temperance Act. The second part of such sub-section refers only to appropriation of penalties imposed under the provisions of the first part, relatinjj to the mode of recovering penalties where no such mode is fjiven in the Act contravened, and as section 107 of the Canada Temperance Act provides for the pi.osecution of offences in the manner directed by the Act relating to the duties of justices of the peace out of session, and for such purposes incorporates the necessary parts of the latter Act in itself, thus providinj^ a mode for the recovery of penalties under the Canada Temperance Act, the sab-section 22 aforesaid has no application. The penalties imposed by virtue of the provisions of the Canada Temper- ance Act should therefore go to tho Crown, as in cases under the said Act relating to the duties of justices of the peace out of session, which makes no specific appropriation of penalties imposed under it. (Ritchie, C.J., duhitante.) The Interpretation Act, 31 V. c. 1, applies to statutes of the Dominion relating to Prince Edward Island, whether such statutes were passed before or after the admission of the island into the Dominion. Appeal allowed with costs. Fitzgerald y. McKinlay.— 22nd June, 1885. 6 Justices of the peace — Conviction — Canada Temperance Act, 1878, sect ion lOo — Absence — Wrongful arrest — Just iji- cation. . A. and B., justices of the peace for King's county, were sued for issuing a warrant of commitment under which B. (appellant) was imprisoned. The facts, as proved at the trial, were as follows : A prosecution under the Canada Temperance Act, 1878, was commenced by two justices, A. and B., and a summons issued. On the return of the summons, on the application of the defendant, A. and B,, were served with a subpoena, to give evidence for the defendant on the hearing ; whereupon two other justices (the respondents) at the request of A. and B., under the provisions of section 105 of the Act, heard the case and convicted the appellant. A. and B. though present in the court room as witnesses took no part in the proceedings. The Supreme Court of New Brunswick ordered a non-suit to be entered. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the court below, Henry and Taschereau, JJ., dissenting, that, as the convic- lOM Canada Temperance Act. 1S7S— Continued. tirm was t^ood on its face, until set ftsidc it was a jtifltillcation for rcHpondents for iinytl>in){ done under it. Held, also, that upon the facts disclosed A. and B. were "absent," within the meaning of section 105 of the Canada Tcmperanci' Act, 1878. Appeal digmissed with coats. Byrne v. Arnold. -2'Jnd June, IHai. 7. Scriit'n)}/ — Pnivers of Count >/ Jiidfjc. Held, that a judge of the county court, on holding a scrutiny of votes under the provisions of the Canada Temperance Act, can only determine which side has a majority of the votes polled, by inspection of the ballots, and has no power to en(]uire into corrupt acts, such as bribery, etc., which mijjht avoid the election (Henry, J., dubitante). Chapman v. Rand, 22 C. L. .7. 40— xi. 312. Candidate. See ELECTION. Csipia.s~Affidavlf—Art. 798 C. C. P.— Want of renmnahle and lyrohahle cause — Damages. S., a debtor, resident in Ontario, being on the eve of departure for a trip to Europe, passed through the city of Montreal, and while there refused to make a settlement of an overdue debt with his creditors, McK., et al. who liad instituted legal proceedings in Ontario, to recover their debt, which pro- ceedings were still pending. McK., et al. thereupon caused him to be arrested, and S. paid the debt. Subsequently S. claimed damages from McK., et al., for the malicious issue and execution of the writ of cirpiag. INIcK., et al., the respondents, on appeal, relied on a plea of justification, clleging that when they arrested the appellant they acted with reasonable and probable cause. In his affidavit, the reasons given by the deponent, McK., one of the defend- ants, for his belief that the appellant was about to leave the Province of Canada were as follows :— " That Mr, P., the deponent's partner, was informed last night in Toronto by one H., a broker, that the said W. J. S. was leaving immediately the Dominion of Canada, to cross over the sea for Europe or parts unknown, and defendant was himself informed, this day, by J. E., broker, of the said W. J. S.'s, departure for Europe and otlier places." The appellant S. was carrying on business as wholesale grocer at Toronto, and was leaving with his son for the Paris Exhibition, and there was evidence that he was in the habit of crossing almost every year, and that his banker, and all his business friends knew that he was only leaving for a trip ; and there was no evidence that the deponent had been informed that appellant was leaving with intent to defraud. There was also evidence given by McK., thnt after the issue of the capiait, but before its execution, the deponent asked plaintiff for the payment of what was due him, and that plaintiff answered him "that S. would not pay him, that he might get his money the best way he could." I 1 00 CapiES — Contiiiuiil. Held, that tlio aftldavit waa defective, there bbiij« noauflicient reasomiblo and i.robablu caimu stated for boHevinn that the debtor waa leaving with intent to defraud bin cruditorH; and tliat the evidence Hliowed the respondent bad no reasonable and probable cause for iaHuintj tl>e writ of cipi.iH in (luostion. Shaw V. McKenzie.— vi. 181. 2. Issue of, in action— Bail— (Jnk.r for aiHcharge of— In discretion of court bt'Iow — No appeal. See JUliJ.SDICTION, 01. Carriers — Liability of railway company as. See RAILWAYS AND llAILWAY COMPANIES, 0. ± Crown not liable as a connnon carrier. .Sec PETITION CF IIIGHT, 10, 11. ;{. Bill of lading— Carriaj,'e of proods by sea— Excepted perils- Negligence— Ini^jvoper Stowage— Construction. See BILL OF LADING, 5. 4. Railway company— Carriage of goods beyond terminus of line —Exemption from liability- Construction of Contract- Statutory liability — Joint tort feasors— Release to one, etl'ect of. See RAILWAYS AND RAILWAY COMPANIES, 43. Common carrier—Special contract— Exemption from liability —Construction of terms— At oivner's risk against all caaxt- alties. The Commercial Travellers Association of Ontario, by written aKreement with the defendants' company, obtained for its members for the season of 1885 .special privileges in travelling; by the company's boats, one of tlie terms of the agreement being that the members sliould receive tickets at a reduced rate " With allowance of 300 lbs. of baggage free, but the baggage must be at the owner's risk against all casualties." This agreement was continued during 1886 by verbal agreement between the manager of the company and the secre- tary and traffic manager of the association. D. a commercial traveller obtained a ticket for a passage on one of the company's boats under this agreement, paying the reduced fare, and took on board three trunks containing the usual outfit of a traveller for a jewellery house valued at about 115,000. The trunks were checked in the usual way and no intimation was given by D. to any of the officials on the boat as to their contents. On the passage the contents of the trunks were damaged by the negligence of the officers of the company and an action was brought by D. and his employers to recover damages for such injury. 110 Carriers — ' '« ill forcf ill If'Mi; ; tliiit lli«' tiTiii " bayj^iij^o " in tlio iinrcciiitMit tiiuant not moroly pcrHdiiul I'afj^iano, huoIi iih ovory paHnen^'er is allowed to carry witliotit extra cliar^e, but coniinercial ba(,'^a^crfl,000, due one year after date ; ono for 53,218, duo two years after date ; and one for I^M, 218, duo three years after date, all throe hciiriiiK date Sept. .Itli, 1877, in considera- tion for which I a^roo to pay the said \V. P. Ilowland it Co. one-lialt of the net amount I receive on account of tho said notes, and I tt^;ree to use my best en- deavours to collect tho same, and if, at llio e.xpiration of two years, 1 have been unable to collect any portion of the said notes, I hereby aj^rco to return them to the said W. P. Ilowland & Co., free from any coats or diart^ea incurred by me. But, if, at any time previous to the expiration of the two years above mentioned, I have succeeded in collecting any portion of the said notes, then their portion above mentioned will be due and payable to the said W. P. Howland & Co. "Wm. H. Gates," During the currency of that aRrcement Gates applied for and obtained on the 19th September, 1884, an order for tho administration of the estate of the said A. M. Cannon, of whose personal estate Mary Ellen Cannon the do- fendant (appellant), was administratrix. The usual advertisement for creditors was published, and under it one Taylor proved a claim under the reference as a creditor of the docoa led, and his claim had been duly allowed by the Master prior to the month of Oiiah'tv, 1886. The defendant Cannon, applied by petition to have the claim of the said Gates upon the promissory notes in question disallowed, on the ground that the title by which he claimed the same was champertous and void. 112 Champerty—' 'oHtinufil. I'riiiiilfoot, •!., oil till) Hiiiil application, l)y onU'r ilivtcil 'Jiird Octohur, 1H80, U(lju(lt(t'>i tii.it OiituH'rt title Co tlio Miiid iioti'H, iiiiiiur tliii nurcoiiiiMit aforomviii, WAH cliainpiu'toim aiiil void, ami tlnvt lie <'oiild not prove in the adininiHtration by virtue of IiIh title thereto, hut he held that the adiniiiiMtration order of I'.tth Hepteinber, IHH4, wait for the Imiieflt of all the ureditorH of the eHtatuof Ouiinon, deceuHed, one of whom had |)roved a ulaiiii anil he therefore refiued to «et it Uiide. (ilt-'ported Li Oat. UeportH, p. 70.). Neither p.irty appealed from thin order. Tliprou|)oii OatcH redelivered the notes to Howland A Co., who up to tliiH time had heen in no way party or privy to tlie proeeediiif^H for udiiiiniHtriitioii. The h\\ yearH allowance by the Ktatute 'if liiinitulionH had expired before the iioteH were redelivered, but not before the date of the adiiiiiiistration order. The reference hud not been con- cliuleil, nor any report made by the MaHter. The retipundentH then applied for liberty to come in and prove their claim on the noteH, and the Muntur allowed them to do bo. From this ruling the appellant appealed. While the last mentioned appeal whh poiiilinj,', the reHpondents came before the aaid Master to prove their claim, piirHuant to the Haid leave granted, and the MaHter allowed their claim upon the Baid promiuHory notes. From this allowance the appellant appealed, and the hiHt iiieiitioned appeal came on for argument at the Hainc time au the apppeal from the MaHter'M exercise of discre- tion in granting leave to the rcHpondonts to prove their claim. Both appeals were dismiiiHcd by Proudfoot, J., who held that the order for administration prevented the bar uf the Ktatute of Limitations; and that II. A ('o. mi^ht assert their title to the notes and prove on them, notwithstanding the former agreement with U., which ho had already held to be champertous. This judgment was atllrmed by the Court of Appeal for Ontario. Un appeal to the Supreme Court of Canada Held that the appeal should be dismissed. Per Gwynno, J.— I am unable to perceive upon what right the maker of an unquestionably valid note or his personal representative can in any pro- ceeding taken by the payee to recover upon the note, institute an eiujiiiry as to what the payee may have done with tbe note in the interval elapsing between the making of the note and the proceeding taken to recover payment of it. Howland & Co. who are the payees of the note, cannot as it appears to me be affected by the adjudication in the proceeding instituted by Gates, to which they were not a party, and while the administrator's order remains in force they are entitled to prove the debt represented by the notes and to the benefit of that order in preventing the Statute of Limitations to run. If a champer- tous dealing in respect of the notes between Howland & Co. and Gates, could affect their right to prove they must have a right to insist that the dealing was not affected with the vice of champerty, notwithstanding the adjudication on the tender of proof by Gates. And if it were necessary to decide that point, I should be of opinion that in the transaction with, Gates, there was no champerty. A promissory note in the hands of the payee is as much a piece of property as an acre of land, or a horse, a quantity of merchandise, or any Other chattel and the agreement made between Howland & Co. and Gates in respect of the notes upon the occasion of their being transferred to him under 113 Champerty—' '{lit aH it appcarn to nio, to inatitutu an ou<|iiiry an to what wore tlio tt'rniH aH between the payee* and their transferee upon which the notoH were tranMforrod to the holder. Preient : Strong, Fournier, Ti\aclu'riMvn and (Jwynnf, J.J. Cannon v. Howland.— 11th Juno, iHi^'j. Chancery, Court of See COURT OF CHANCERY. Charitable Trwsi—Grant to Totmshlp of L,i,uJ /,>,' Srhnol Charitahle Ti-mt— Acceptance of by ii'at)tecH--Diiicrd[oii of Trustees — Doctrine of cyprt^s. Hy the patont or «rant of the township of CornwalliH, in Kind's county, N. S., made in 17tll, four hundred acreH of land were .lenlarcd to ho " for tllj •ohool." By a suhHcpient j^rant from the Crown in 17'.M), the said four hundre.l acroH wore declared to be vested in the rector and wardens by name of the church of Ht. John in the said towimhip, and the rector and wardens of tlio said church for the time bein^;, in special trust, to and for the uhb of one or more school or schools, as may ho di>eme4 this suit. Held, per Strong, J., that in interpreting the truat, in order to explain the apparent repugnancy in the grant in providing that the rents were to be dis- tributed among one or more s'-hools, etc., and also among all the schools in the township, the probable condition of the township in respect to the number of schools therein, at the time the grant was made, coupled with the long con- tinued usage which has prevailed in the manner of administering the trust, could be considered as a rule of guidance for such interpretation. Held, also, per Strong, J., that under the doctrine of cyprk, a reference might be made to the master to report a scheme for the future administration of the charity. Attorney-General v. Axford.— 12th May, 1885— xiii. 294. Charter — Of incorporated company — Forfeiture of, for non-per- formance of condition precedent to legal organization of company — -Proceedings — Form of — Scire facias — 44 V. c. 6 (D.)— R. S. C. c. 21, s. 4— C. C. P. Art. 997 et seq. See CORPORATIONS, 48. Charter Party^ See SHIPS AND SHIPPING, 4, 8, 11. Chattel Mortgage — Passing after acquired ])roperty — Partus seqaitur ventrem — Novas actus interveniens — Trover afjainsi sheriff. The plaintififs were the grantees and one Hackett the grantor in a bill of sale, by "ray of mortgage, which conveyed among other property, four horses. In the mortgage there was a proviso that until default Hackett might remain in possession of all the property mortgaged, but with full power to the plain- tiffs, in default of payment, to take possession and dispose of the property as 115 Chattel Mortgage—' '»Htinuv»e in evidence, that tliere mnst have been default in payment of both principal and interest money secured by the chattel mort^,'atje, and therefore it is clear plaintiffs were at law the absolute owners of the mare and entitled to take possession and dispose of hei" at any moment they thought fit, and the foal havintj been dropped while plaintiffs were such owners of the mare, the colt necessarily was their property — pdrtim seqiiitur I'entrem—Mid so no question as to after ac(]uired property as to the colt arises, and no other question has been raised in this case. It is clear therefore defendant was not justified in seizins^ and sellint,' under a ji. fa. against Hackett the plaintiff's property, and therefore they were clearly entitled to recover, and the verdict and judgment in the court below was quite correct. The appeal must be dismissed with costs. Temple y. Nicholson.— 3rd March, 1881. 2. Riirlits of the Crown as a<;ainst mortiraijee for slidaire dues. • Sec PETITION OF RIGHT, 18. 3. Security for after acquired prope^iy — Agreement not to register — Assignment in trust by mortgagor — Legal title of trustee in goods mortgaged — Eqitituhle title of mortgagee — Priority. Tn May, 1880, the defendant Davidson, being indebted to the plaintiffs in the sum of $8,000, gave them a chattel mortgage on all his stock in trade, chattels and effects then being in the store of the said defendant, Davidson, on Granville street, in the city of Halifax; and by the said mortgage the said defendant further agreed to convey to the plaintiffn all stock which during the continuance of the said indebtedness he might purchase for the purpose of sub- stituting in place of stock then owned by him in connection with his said business. These goods were never so conveyed to the plaintiffs. By the terms of the mortgage the debt due to the plaintiffs was to be paid in three years, in twelve equal instalments at specified times, and if any instalment should bo unpaid for fifteen days after becoming due, the whole amount then due the plaintiffs would become immediately payable, and they could take possession of and sell the said mortgaged goods. It was further agreed between the said defendant and the plaiutiffs that to save the business crodit of Davidson the said mortgage was not to be filed and was to be kept secret ; and it was not filed until Dec. 12th, 1881. On the 13th Dec, 1881, Davidson made an assignment of all his property, real and personal, to the defendant Forsyth in trust for the benefit of his (Davidson's) creditors, and such trust deed was executed by Davidson, Forsyth, and one of Davidson's creditors, and subsequently by a number of other creditors. At the time of the excution of this deed Forsyth had no notice of the mortgage to the plaintiffs. Forsyth took possession l r the goods in the store on Granville street and refused to deliver them to the plaintiffs, who demanded them on December 11th, default having been made in the payments under the mortgage, and the plaintiffs brought this suit for the recovery of the goods and an account. Previous to the suit being com- 117 Chattel Mortgage — ('ontimied. menced the defendant Forsyth delivered to the plaintiffs a small portion of the goods in the store, which, as he alleged, were all that remained from the stock on the premises in May, 1880. Held, affirming the judgment of the Supremo Court of Nova Scotia, Strong, J., disseiting, that the legal title to the property vested in the defen- dant must prevail, the plaintiff's title being merely equitable and the equities between the parties being equal. HcAIlistep Y. Forsyth.— xii. 1. 4. Insicficient description of goods —Com. Stdts. Man. c. 49, s. 5. One Louisa Black was indebted to the plaintiff in the sum of ^1,000, or thereabouts, and to secure the debt gave the plaintiffs a chattel mortgage on her stock in trade. In such mortgage the goods were described as " all and singular the goods, chattels, furniture, and household stuff hereinafter parti- cularly mentioned and described, and particularly mentioned and described in the schedule hereunto annexed marked A., all of which goods and chattels are now riituate and lyiu'^ on the premises situate in a building on the east side of- Maine street, in the city of Winnipeg, on *he Grace Church property, and now being occupied by the said Louisa Black as a millinery store and dwelling, which said building may be more particularly known as number two hundred and ninety-one (21)1) Main street, in the said city of Winnipeg." The schedule was merely a list of the various articles, as so many yards of ribbon, or cloth, with the price opposite each item. In many instances articles were mentioned with figures before them and figures after them, so that only a person acquainted with the character of the goods could tell anything about the quantities. The defendants were also creditors of the said Louisa Black and having obtained judgment on their respective debts, issued executions under wliicli the sheriff seized the goods on the said premises. No. 291 Main street. The plaintiffs claimed that the goods seized belonged to them under the said . chattel mortgage and the title to them was tried before the Chief Justice of the Court of Queen's Bench of Manitoba, in chambers, when judgment was given for the defendants, the Chief Justice holding the chattel mortgage void, both under the statute of Eliz., and under ch. 49 of the Consolidated Statutes of Manitoba. The Court of Queen's Bench refused to set this judgment aside. On appeal to the Supreme Court of Canada it was Held, affirming the judgment of the court below. Strong and Henry, JJ., dissenting, that the description of the goods was not such that they might be readily and easily distinguished, and the mortgage was therefore void against the execution creditors. HcCall Y. Wolf— 12th May, 1885— xiii. 130. 6. Mortgage given by Insolvent Company — Preference. See FRAUDULENT PREFERENCE, 4. 6. Condition against Assignment in Policy of Insurance — Chattel Mortgage not a breach of. See INSURANCE, FIRE, 16. .118 Chattel Mortga.f^e— Continued . 7. Fraiulideni as against creditors — Assignment in trust by mort- gagor — Suit bij creditors to set aside mortgage — Mortgagees not inclwled as plaintiff's — Trust deed not attacked. Where a trader who was in insolvent circumHtancea had ){!ven a chattel mortgage on his stock in trade to secure a debt, and shortly after executed an as-signment in trust for the benefit of his creditors, Held, affirming the judgment of the courts below, that the mortgage was void under the statute, and that certain simple contract creditors of such trader could maintain a suit, on behalf of themselves and all other creditors except the mortgagees, to set aside the mortgage without including the mortgagees as plaintiffs, and without attacking the assignment in trust. McCall V. McDonald.— xiii. 247. 8. AsHignment by directors of a joint stock company ui' ail estate and property to trustees for benefit of cre duscription in a chattel mortgage was as follows : "All and singular, tho goods, chattels, stock-in-trade, fi.Ktures, and store bnilding of the mortgagors, used in or per- taining to their business as general mercliants, said stock-in-trailo consisting of a full stock of general merchandise now being iu the store of said mort- gagors on the north half of section six, township nineteen, range twenty-eight west of the fourth principal meridian." Held, affirming the decision of the court below (1 N. W. T. Kcp. No. 1, p. 88) that the descriptiou was sufficient, McCoU v. ]\'oti}\ 13 Can. H. C. R. 130 (see Chattel Mortgage, 4) distinguished. Ilovey v. WhitUuj, 1-1 Can, S. C. R. 615 {see Corporations, 30) followed. Present : — Strong, Fournier, Taschereau, Gwynne and Patterson, JJ. Thomson v. Quirk.— June llth, iHrt!)— xviii. ()95. 13. BUI of sale — Affidavit of bonajiiles — Ailhcrence to statidory form — Proof of execution — Attesting witness. Where an affidavit of hoiui jideH to a bill of sale stated that the sale was not made for the purpose of holding or enabling the bargainee to hold the goods mentioned therein against the creditors of the bargainor, while the form given , in the statute uses the words " against (iiiij creditors of the bargainor," such violation did not avoid the bill of sale as against oxecution creditors, the two expressions being substantially the same. Gwynne, J., disoenting. The statute requires the affidavit to be made by -a witness to the execution of the bill of sale but as attestation is not essential to the validity of the instrument its execution can be proved by any competent witness. Judgment of the Supreme Court of the N.W.T. affirmed. Emerson v. Bannerman.— xix. 1. 14. Preference given by — Pressure — Intent — 49 V. c. 45, s. 2, (Man.) See ASSIGNMENT, 21. 15. Fraud against creditors — Prior agreement — Additional chat- tels in mortgage — Effect of B. sold a quantity of machinery, tools and fixtures to one P. for $8,120.90. The goods were in a factory owned by B. and were to be paid for by monthly 121 Chattel Mortgaige— Continued. payments, extending over a period of forty-eight months. P, agreed to keep them insured in favour of B. and to give B. a hire receipt or chattel mortgage, as security for payment. P. was put in possession of the property, and received letters from B. recommending him to certain merchants in Montreal, und he went to Montreal and purchased goods from L. among others. Two months after L. sued P. for the price of goods so purchased, amount- ing to about ftlOOO and after being served with the writ in such suit, P. gave B. a chattel mortgage on the goods originally purchased and other goods which it was alleged would have been included in the purchase from B. had it not been claimed that they were not in the factory at the time, but were after- war. J found to be there. P. had not given a hire receipt or chattel mortgage at the time of the original purchase from B. L. having signed judgment against P. issued execution, and caused the mortgaged goods to be seized thereunder. On the trial of an interpleader issue to try the title in said goods, judgment was given in favour of B. for the goods originally sold to P. but not for those addcl in the mortgage. The Divisional Court held, on motion to set aside this judi;ment, that the mortgage was void for the inclusion of the goods not mentioncl in the original agreement and reversed the judgment at the trial in B.'s ravour. This decision was alBnned by the Cou't of Appeal for Ontario On appeal to the Supreme Court of Canada — He d, that the judgment of the Court of Appeal should be affirmed. Present: Ritchie C.J. and Fournier, Taschereau, Gwynne and Patter- son, JJ. Brown v. Lamoi tague.— 20 C. L. J. 30G.— IJth Juno, 1889. IG. Waterlot and mill — Dealt with by instrument in form of chattel mortgage — Sufficiency of, in equity. See VENDOR AND PURCHASER, 4. 17. Bill of sale — Ajfidavit of bona fides — Adherence to statutory form — Description of grantor — R. S. xV. S. 5th Ser. c. 92, ss. 4 and 11. The Act in force in Nova Scotia relating to bills of sale, R. S. N. S. 5th Ser. c. 'J2, requires by section 4, that every such instrument shall be accom- panied by an affidavit by the grantor, and section 11 provides that the affidavit shall be, as nearly as may be, in the form given in schedules to the Act. The form prescribed begins as follows : I, A. B., of in the county of (occupation) make oath and say. An affidavit accompanying a bill of sale having omitted to state the occupation of the grantor — Held, per Strong, Gwynne and Patterson, JJ., that as the affidavit referred in terms to the instrument itself, in which the occupation of the deponent was stated, the statute was complied with. 122 Chattel Mortgage—' 'ontinnal. Per Tascherean, J., The oniiH wfta upon the i^crmns attacking the bill of Bale to prove, by direct evidence, that the grantor had no occupation, which they had failed to do. The judjjment of the Supreme Court of Nova Scotia was reversed. Smith V. McLean.— x\i. 855. 18. Preference — Bona fide advance — Consideration partly had — Efect on luhole instrament — R. S. 0. 1. Clergyman— Diocesan Chiu-ch Society of N. S.— Fund for distribu- tion among clergymen — Rule m to - Construction of. See DIOCESAN FUND. Coasting Voyage— Time policy for. See INSURANCE, MARINE, 8. Cobourg Harbour Works. See ACCRETION, J. Collision. See RAILWAYS AND RAILWAY COMPANIES, 2. 2. With anchor of vessel — Damages. Sec MARITIME COURT OF ONTARIO, 2. 3. Between tug towing raft and tug at anchor in Detroit River. See MARITIME COURT OF ONTARIO, 4. Colorable Employment. See ELECTION. Combination. See PATENT OF INVENTION, 1, 4, 5, 7. Comity of nations — Foreign corporation — Contract within Canada — Operating telegraph line — Exclusive privilege — Restraint of trade. A foreign telegraph company has a right to enter into a contract with a railway company in Canada for the exclusive privilege of constructing and operating a line of telegraph over the road of such railway company provided the contract is consistent with the purposes for wliich the foreign company is incorporated and not prohibited by its charter nor by the laws of the province 124 Comity of Nations— ''""<'«'<''/. of CivniuLv ill wliich tlie cuntraot is made. The riuht of a foreign corporation to enter into hucIi a contract, and carry on tlie buHinotia provided for thereby, iw a rifi>il nf ceHHion, dfttecl lt(t>) Fubruftry, iN'JH.and in the Huiwriur Court, nftvr ar^iinicnt.n iiiotluii wu« iiimlu by pUiiitiff tixiiHcliarxo the ti'llliM iiiaMiiiiK'h iiH it wiiH itiHoovurt'tl nt thu ar^iiiniMit tbiit a uliTioal error of a MurioiiM nature to tbu iiiturvH:)* of thit pruMunt plaiiitifT had iiiadvttrttMitly crept iiitooiiu of the authentic documontM invoked by the pUintiff in Hupport of hi* action, Huch urror \mun uh to tho dato of a itortain donation upon whicli tlio iiction in in liniy baae>i ; and inatnimdi uh Huuh clerical urror could nicjMt I'aHily be remedied by ruferrin(< to thu niinutu of the notary wlio passed tlie dued or otherwiHo, thiH motion waH granted, and a Hocoml motion wan maclu by the plivintilt' t/i rcyir/Mc i/'i/MfiKRv, pniyim; to be allowed to ammid thu declaration by adding under count No. 10 in the declaration the fullo\vin({, to wit : " That the date of the couHtitutinn of the rent above niuntionod waH orronoounly iniaitioned in the deed of trannfcr above related uh bein»< mido by and in virtue of t-ie contract of marriage of the said A. C, dated the 7th February, 1H28. " That tlu) Httid coimtituted rent in mado by a deed of the Ulth February, IKiO, HH it appears from an authentic copy of Huid deed forming part of exhibit number one of the plaintitT in tliiH cauHe, and that thu intuntinn of thu i)artiefi to thu Raid deed of trauHfur at thu timu of thu uxecution thuruof wan to trauHfer the arruarH of rent couHtitutcd by the Haid defendant on the Kith February, 1H30. The said rent bcin({ the only one duo by the said A. C, to the said S. N." Held, adirmin^ the judtitnent of the courts below, that the error in the trauHfur, as to the date of the deed under which the life-rent was due, was a mere clerical error. There was no other life-rent to which the transfer could apply but the one in question. The claim was sufficiently identified by the description of the deeds and the date of their rc^^istration, under the special allegations of the plaintifl and the evidence which he has adduced. Pilon V. Brunet— V. 818. 2. Movable property f^foverned by law of ownor'H interniitioniil domicile. Art. 12(50, C. C, is subject to Art. 6, C C. See DOMICILE, 2. Commutation Fund — MemJ»er of Synod — Trust, construction of — Vested rights — liij-hiw. The sum received for commutation under the Clergy Reserve Act was paid to tlie Church Society of the Diocese of Huron, upon trust to pay to the com- muting clergy their stipends for life, and when such payment should cease theu *' for the support and maintenance of the clerj,'y of the Diocese of Huron in such manner as should from time to time be declared by any by-law or by-laws of the Synod to be from time to time passed for that purpose." In 18(10, a by law was passed providing that out of the surplus of the commutation fund, clert,'y- men of eight years and upwards active service should receive each >200, with a provision for increase in certain events. In 1873, the plaintiff became entitled under this by-law, and in 187t5 tlie Synod (the successors of the Church Society) repealed all previous by-laws respecting the fund, and made a different appropriation of it. 187 Commutation Fund— (^nuihnixl. Held, utUrmiii;< tlio judrtmont of the Court o( appoal for Ontario, (Foiirnier and Honry, JJ., iliHHuntinK), tliat uiKlur tlio ti«rniM of tlui Irimt there wiiK no contract betwoon tlio plaintilT ami ilofoixlantit ; tlio triiHtooH had powor, from timo to timp.to paitH by lawH roKulatinn the fund in <|uoation and niakiuK a different appropriation of it. for the Mupport and inaintonanoo of the tl.r«y of the dioooae, and the plaintiff inuHt ho aHHumud to havo ac(:ept<'il IiIh Mtiprnd with that knowledge and on that condition. See case um reported in 21» (irant, 848 and Out. App. U. 411. Wright V. Inoorporated Synod of the DIocete of Huron— xi. 1)5. Companies' Act, 1862 (Imp.)— OhUt iimkiii;; chIIh ii;;iiiii,st piust iiu'iiil)er — Action — Decliimtion, form of — Di'murrer. Stf.'COHrOUATIONH, 15. Company. See nKNKFIT HOCliyiY. COIiroUATIONS. RAILWAYS AND RAILWAY COMPANIKK. WINDING UP. Compromise— Deed of — Action to Hot asido for fraud and coercion. See PARTITION. Condition Precedent. See CONTRACT, 8, 85, 88, 89, 48. INSL'RANCE, MARINE, 3. PETITION OF RIGHT. I. 2, 8, U'. RAILWAYS AND RAILWAY COMPANIES, i». SALE OF LANDS, 2. TRUSTS AND TRUSTEE??, 21. Consignment— Of j^'oods — Payment— Property, See SALE OF GOODS, 7. Conspiracy— Between Deputy Returning Officer and Candidate's agent to interfere with franclii.se by marking ballots. See ELECTION, 21. Constitutional Law— B. N. A. Act, 1867, ss. 91 & 92— Brewer's Licenses. ii. 71. See LEGISLATURE, 2. 2. Legislative Assembly — Power of, to punish for contempt. ii. 159. See LEGISLATURE, 9. 128 Constitutional Law — Contimml. 3. B. N. A. Act, ]8()7, as. 18, 41, 91, 92, s-s. 13 & 14, ss. 101, 129 — Dominion Controverted Elections. iii. 1. See ELECTION, 4. LEGISLATURE, 1. 4. B. N. A. Act, 1867, s. 91, s-s. 27, 38 V. c. 47— Power of police and stipendiary magistrates to try in a summary manner felonies and misdemeanours. 15th Nov., '79. .Sec HABEAS CORPUS, 2. 5. B. N. A. Act, 1867, .s. 91, s-s. 2, s. 92 — Canada Temperance Act, 1878 — Power to prohibit sale of intoxicating liquors. iii. 505. See PARLIAMENT OF CANADA, 5. 6. B. N. A. Act, 1867, ss. 9, 17, 56, 58, 59, 91, 92, s-s. 1— Power of appointing Queen's Counsel. • iii. 575. See LEGISLATURE, -4. 7. Right of the Crown to plead prescription — C. Code, Art. 2211 — Interruption of, by petition of right. iv. 1. See PETITION OF RIGHT, 3. 8. B. X. A. Act, 1867, s.s. 91 & 92— Insurance. iv. 215. See LEGISLATURE, 5, 9. B. N. A. Act, 1867, ss. 91, 101— Maritime Court of Ontario, power to create. iv. 648. See MARITIME COURT OF ONTARIO, 1. 10. B. X. A. Act, 1867, s. 91, s-s. 12—31 V. c. 60—14 & 15 V. c. 63 (Imp.) -Fishery officer, action against. v. 66. See PARLIAMENT OF CANADA, 4. 11. B. X\ A. Act, 1867, ss. 91 & 92 — Licenses, merchants, traders, etc. V. 356. See LICENSE, 1. 12. B. X. A. Act, 1867, ss. 91, 92, 102 & 109— Escheat. v. 538. • See LEGISLATURE, 6. 129 Constitutional Lsivr—Continunl. 18. B. N. A. Act, l2, h-h. 5, ss. 109 & 146— Public lands- Transfer to Dominion — Precious niet:i.ls. xiv. 345. See MINES AND MINERALS, 2. 34. B. N. A. Act, 1867, h. 92, s-s. 9, 15— Quebec License Act, 41 V. c. 3, and amendments — 43 V. c. 19 (D.) — Licensed brewers. XV. 253. See LEGISLATURE, 14. 35. B. N. A. Act, 1867, s. 91, s-ss. 10, 13, s. 92, s-s. 16— Taxation of ferry boats. xv. 566. See LEGISLATURE, 15. 36. B. N. A. Act, 1867, ss. 91, 92, s-s. 14, ss. 101, 129— Conferring jurisdiction on the court of vice-admiralty. xvi. 757. 16th Jan., 1884. See PARLIAMENT OP CANADA, 8. 37 New Brunswick Liquor License Act, 1887, 50 V. c. 4 — Validity of — Prohibition of sale of liquor — Powers of mayor of city — Disqualifying liquor .sellers — Effect of. xvii. 44_ See LEGISLATURE, 16. STATUTE, 3. 38. Ontario Judicature Act, 1881, s. 43, limiting appeal to Supreme Court, declared ultra vires. xvii. 251. See LEGISLATURE, 17. 39. By-law respecting sale of meat in private stalls in city of Montreal— 37 V. c. 51, s. 123, s-ss. 27 & 31 (P. Q.)— Power of Provincial Legislature to pass — B. N. A. Act, s-s. 9 of s. 92, " Other Licenses." xvii. 495. See LEGISLATURE, 18. 40. Insolvent bank — R. S. C. c. 120 — Prerogative of Crown — Deposit by insurance company under Insurance Act — R. S. C. 124 - Priority of note holders. xvii. 657. See CROWN, 21. 41. 47 V. c. 84 (Q.) — By-law under — Business tax — Liquor dealer. xviii. 594. ^ ^ See JURISDICTION, 76. i 132 Constitutional La.w—C(»itiuuen. 43. B.N. A. Act, 1867, ss. 91 & 92— Interest— Legialative authority over — Municipal Act, Manitoba -49 V. c. 52, s. 020 (Man.) — 50 V. c. 10, .s. 48 (]\I. in.) — Taxation — Penalty for non-pay- ment of taxe.s — Additional rate. xix. 204. See LEGISLATURE, 20. 44. Education — Authority to ley rcHponduntH to have verdict stand for the full amount awarded by the jury, Held, (Jwynno, J., dia- sentinf,', that at the time uf chu injury complained of, the contract for the erection of W.'s building bein^; in contravention of the provisions of a valid by-law of the city of Bt. John, the defendant W., his contractors and his a^ent (S.) were all equally responsible for the consequences of the im))roper building of the ille({al wall which caused the injury to McM. char^^cd in tli'; declaration. That the jury, in the absence of any evidence to the contrary, could adopt the actual loss of rent as a fair criterion by which to estiiblish the actual amount of the damaj^e sustained, and therefore the verdict should stand for the full amount claimed and awarded. Per G Wynne, J , dissenting: That W. was noi, by the terms of thecontiuct, liable for the injury, and, even if the by-hvw did make the building,' a nuisance, the plaintiff could not, under the pleadings in the case, have the benefit of it. The defendants appeared by the same attorney, pleaded jointly by the same attorney, and their defence was, in substance, precisely tlio same, but they were represented at the trial by separate counsel. On examination of plaintiff's witness, both counsel claimed the right to cross-examine the witness. Held, aflirming the ruling of the judge at the trial, that the judge was right in allowing only one counsel to cross-examine the witness. Walker v. McMillan.— vi. 241. 5. Sale of goods — Payment — Appropriation— »Non-8uit. Tlie Albert Mining Company (respondent) brought this '.etion to recos'er for coal sold and delivered to appellants during the years IHliO, 18()7 and 18()8. 8. and M. and McG. were partners carrying on business under the name of the Albertine Oil Company, the defendant H. furnishing the capital. The contract for the coal wws made by S. who was a large stockholder in the plaintiff company and entitled to yearly dividends on his stock. The agreement, as proved jy plaintiffs, was that S. purchased the coal for the Albertine Oil Company, the members of which he named, that the president of the plaintiff company told S. they would look to him for payment, as the other partners were poor ; that the terms of sale were cash on delivery on board the vessels ; and that S. agreed that the dividends payable to him on his stock should be applied in payment for the coal ; that in consequence of this arrangement the plaintiffs credited the Albertine Oil Company with the amount of S.'s dividends as they were declared from time to time down to August, 18G0, leav- ing a balance of $912 due to S. It also appeared that the coal delivered was charged in the plaintiffs' books to the Albertine Oil Company, and that the bills of lading on the shipments of the coal were also made out in their name and that some time afterwards a notice signed by S. and INI. was given to the plaintiffs, complaining of the inferior quality of the coal, and claiming damages in consequence. In the latter part of the year 1868, S. repudiated the agree- ment to appropriate his dividends to the payment of coal, and refused to sign the receipts therefor in the plaintiffs' books. He had signed the|receipt for the dividend of 18 JG. IM7 Contract <'i'Htitaif-e. See SHIPS AND 8HI1TINO. 5. 8. Condition precedent —Direction to jury — Implied promise, when 2M>'t perfonndnce. In April, 1872, the defendant Morrow, Kave the plaintiffs, Waterous, et nl., an order by letter for certain mill machinery, which the plaintiffH were to pnt in complete operiition to the defendant's satisfaction in a building to be provided by the defendant. All the machinery, with the exception of a slab saw, was supplied, and the mill wus pnt in operation in the summer of 1872. The defendiint found fault with the machinery, and after alterations and repairs made by the plaintiffs in 1873, the defendant put additional machinery into tlie mill and worked it until 1875, when it was destroyed by tire. The defendant had insured the whole machinery, includin>< that sup- plied by the plaintiffs, for iljOO, the additional machinery put in by himself beinn valued at S'i.oOO. The defendant receive for ironwork for two turn-tables purchased by plaintiffs for the work, and deducting a payment on account by a note for $8,000. The engineer made another estimate, apparently in amendment of his previous one, dated the same day, establishing the amount at S22,131.!)3, without reference to the amount of the note for $8,000. The defendant contended that the estimates of the engineer did not establish correctly eitlier the amount of work done or value of materials, but were merely progress estimates to enable work to progress generally under the contract, until a final examination and acceptance of the works, and that, as a matter of fact, the plaintiffs had been fully paid all they were entitled to. The Superior Court for Lower Canada, Caron, J., awarded Boomer A Son $15,042.44, deducting the turn-tables. This judgment the Court of Queen's Bench affirmed with the exception of a further deduction of $2,006.03 for whicli there appeared to have been no estimate given. Contract -Cimtimieil. < )n appual to tlib Riiprctnaroiirt of Ciiiiada, Held, iilllrMiiiiK tliu Jiiili;mcnt of tlio court IjuIow. tliiit tliu propor coiieliixioii froni tlu- vviiK'nco >vaH, tliiit tliu certitlciitd in iitioNtion waa delivered to tlio plaiiitiffH ah a tliml uHtiinato, iiitoiiiliii^ to rcprwii'iit aH corroct tlio duht of tlio itk» — Soj';>fi-tH«'i)fiil (IcdihikI — Srt- tif'inent of accoantfi, vot fiKfl — VrvHcvlptUni, iiUei'viiptidii of — G. C. P. Ai't.>iJfr),,14(i — Technictd objection not takev u) court below — Rule of Pvlvy Council. By written contract of the 'iiril .Tivnuary, IrtiW, tho plaintiff contracted with the dufuiidiintH to soil thoir ^ooiU in tiie Maritime ProvincoH, the onj^ayo- inent to continue for a period of five yeara, aubjoct to co-partnership or buHini'Hrt chani^eH. By the contract ho was to liavct 5 por cent. coinniiHHicn on all t,'i)')d8of defundants' nianufacturo and 'JJ pur cunt, on all other noodn. Thin coniniisHion was to be paid to him on all aaloa, no matter whether hucIi buIcr liad beon etlectod by him or had been made direct to purchasors by dofendatits without his kiiowle.l^u or intervention. The pluiulitl wau opening up an entirely new market for defendants' ^oods. Tiio plaintiff entered upon his duties under the contract, and in two years succeeded in estabUshin)^ a trade for defendants. On tlio ")tii December, 1870, the dofendunts terminated the ent,'a(iement, alle^^iii^ that they did so in cense- quenco of the interruption to their business by the late tire and some chan>jcs they expected to make in their business firm the ensuing year. The plaintiff objected to his a;{ency beinj; terminated, and at the expira- tion of the five years brouj^lit this action to recover n balance of SI, 000 for unpaid commissions due, and S10,000 dama),'e8 for breach of contract. On goin^ to proof plaintiff examined defendant Ames, who produced from defendants' led^ters a full statement of sales effected by defendants in Maritime Provinces up to the .'5th December, 1870. Tlieroupon plaintiff made a supplemental demand, claiminfj J1,'J89.50 additional for unpaid commissions. The Superior Court for Lower Canada by its judgment rejected plaintiff's claim for daina<{e3 on the ground that co-partnership and business changes took place in December, 1870, in defendant's tirm, and that this by the terms of the contract entitled them to terminate it as they did. As to the plaintiff's claim for unpaid commissions for the period up to the 5th Decem- ber, 1870, the court held the same to be a good open existing demand, and referred the accounts to an accountant, who found $1,705.78 due to plaintiff for commiesiona. This report the same court by its final judgment adopted, and condemned defendants in the above sura of Sl.705.78 and interest from service of process and costs. I 141 Contract— (-'""''■"".{ht8. Thut tho roHult of tho account taken by tho accountant appointed by tho Superior Court could not bo objected to, viud thoreforo tho jud^jmont of the Huperior Court should bo anirnied. I'.T Tasoheroau, J.— Tho proHcription, if any, was interrui)ted by a letter written by dofentlauts to plaintiff before it accrued, and Walkn- v. Sic'ct ('21 L. C. Jur. 21) niuat bo followed us long as it stands unreverseil. The objection, that tho report was not duly received in evidence in tho case, according! to Articles 345 and 3U) C. C. P., had not been taken in the court below, and thu rule in tho I'rivy Council, that a purely teclmical objection not niailo in tho court below cannot bo entertained in appeal, must bo followed. Appeal allowed with coats. Fuller V. Amos.— lOtli June, IH^O. 11. Uudor Statute of Frauds — As to wliethor mem. in vvritinir cou- taiued terms of — Queation for Jury. See SALE OF GOODS, 10. 12. (.'untt'act xouH selaj priri' — Interroc/dtortcs on avtlcaldted facts — Evasive answers taken as a^rmativ'e — C. C. F. Arts, 228, 229. Tho plaintiff alleged that he made for defendant, for tho use of tho Quebec, Montreal, Ottawa & Occidental Kailway, 50,980 railway ties, accord- in(^ to tho stipulations of a contract Kornt ieinij piivi (by private writing) entered into between defendant, acting by Robert McGreevy, his brother, agent and mandatory on one part, and one Joseph Lavalleo, and one Frs. L. Duluiimo on the other part, the said Lavalleo & Duhaimo having, shortly after, made over to said plaintiff all their rights, claims and interests in the said contract, together with one horse, for fifty dollars. That of the above stated quantity of railway ties, 33,900 were delivered by plaintiff to defendant 142 C o ntract — Conti7i tied. on the line of the naid railway, and 17,080 were delivered on lauuchin>,' places on river banks (jeU»») and that the said ties were of the price and value Btipu- lated in the said contract. Plaintiff further alleged that he made for defen- dant, and delivered to him 2,822 cull ties, for which the defendant promised to pay him eight dollars per hundred and which were worth that price. Lastly he alleged having paid for defendant, for the rent of a piece of ground, forty dollars, making in all, according to the price stipulated in the said con- tract and the value of the said ties, 86,855.89. He gave credit to defendant for ?3,7()5, leaving due him a balance of $3,090.89, which he claimed. Plaintiff claimed a further sum of $1,000 for damages. Defendant met the whole claim by a general denial, and alleged that the said contract was never entered into by himself, but was entered into by the said Bobert McGreevy, his brother, in his personal name and capacity, that paid plaintiff did not fulfil his said contract nor make the said ties as stipu- lated in the said contract, and that the amount which he received was suffi- cient to pay for the ties so made. To interrogatories on articulate'' facts put to the defendant he answered, with one or two exceptions : " I do not know." The Superior Court at Three Rivers held that these answers were evasive and insufficient, and must there fore be declared to be true and proved, and on these and on the evidence adduced gave judgment and condemned the defendant to pay to the plaintiff ?3,090.89 for the balance due on the price and value of said ties, dismissing the plaintiffs claim for damages. On appeal to the Court of Queen's Bench this judgment was unanimously confirmed. On appeal to the Supreme Court of Canada Held, that the defendant did not answer the interrogatories put to him, which referred to the matters in issue, in a categorical, explicit and precise manner as he was bound to do by law (C. C. P. Arts. 228, 229). If he had no personal knowledge he should have obtained the information from his general agent, clerks and others acting for him in executing the contract. These interrogatories, therefore, were properly taken as affirmatively answered and proved the plaintiff's case. Appeal dismissed with costs. McGreevy y. Paille.— 12th February, 1881. See CONTRACT, 17. 13. Sale of goods not specified — Intention to pass property — Appro- priation. See SALE OF GOODS, 11. 14. Contract to cut lumber— Vesting of 2^roperty — Writ of rejdevin — Sherif's possession under — Trespass — Pleading — Jv.>< tertii — Justification by Sheriff under writ — Amendment, p)ower of by Supreme Court of Canada. In November, 1874, one Arbo entered into a written agreement with one Muirhead to get logs off land under Muirhead's control, the logs to be Muir- 143 Contract — < 'ontinued. head's property as cut. In December following one Marooney agreed with Arbo to cut and liaul loj^s for him from land specified in the agreement between Arbo and Muirhead, which logs were to be Arbo's property at the landing, Arbo agreeing to furnish Marooney with supplies to get the lo<;s ; Marooney cut logs under this agreement and hauled them to the landing. In November, 1876, the logs not having been driven and Arbo not Imving furnished sufficient supplies, he and Marooney rescinded their agreement, Marooney giving his note to Arbo for the supplies delivered. The logs remained on the landing, and in February, 187tJ, they were seized as the pro- perty of Arbo, who had become insolvent, under a writ of attachment, issued under the Insolvency Act of 1S75. In May, 187(5, Marooney sold the logs to the plaintifif, who drove them to the boom of the S. W. Miramichi, where they were replevied by the assignee of Arbo's estate. The plaintiff put in a claim of property in them, and the sheriff returned the v.rit of replevin, with such claim, to the attorney who issued the writ. No v/rit de prop. prob. hav- ing been issued, the sheriff kept possession of the logs, and the plaintiff brought trespass agr.inst him for taking them. The plaintiff pleaded: 1. Not guilty; 2. Goods not the plaintiff's; 3. Goods the goods of the assignee of Arbo, and defendant did acts complained of by license of such assignee ; 4. Goods the goods of Muirhead, and defen- dant did acts complained of by license of Muirhead ; 5. Goods property of defendant. A verdict was entered for plaintiff by consent for ?1, 554, the value of all the logs, subject to be reduced to «420.47, the value of logs not cut by Marooney, if the court should be of opinion that plaintiff not entitled to Marooney logs. The Supreme Court of New Brunswick reduced the verdict to the said sura of ^420.47. See 4 Pugs. & Bur. 25. Ou appeal to the Supreme Court of Canada, Held, Per Ritchie, C.J.— That the judgment appealed from should be affirmed on the following ground : It having been proved on the trial, without objec- tion, and made part of the case, that the logs in question were seized by the defendant, as sheriff, under a writ of replevin issued out of the Supreme Court of New Brunswick, directing him to take the logs in question, the sheriff was justified in taking the logs thereunder, and that as against the plaintiff it was no wrongful taking or conv-^rsion. That this defence could be given in evidence under the pleadings in the cause, or, if it could not be so given, this being a strictly technical objection, and this defence having been put forward on the trial without objection, and no such technical point reserved on the trial, if necessary, the record should be amended. Per Strong and Gwynne, J J.— The parties at the trial having rested their rights upon the question of title, viz. : were the logs the property of the plaintiff, or were they the property of Ellis, as assignee of Arbo, oi of Muirhead, and the plaintiff claiming title through Marooney, it was n«cessary for him to show title in Marooney, which he had failed to do, and therefore he could not recover for the Marooney logs. 144. Contract — Continueil. Per Foiirnier and Henry, JJ. — The lof^a wheu takeu were the property of the plaintiff, and he was therefore entitled to judgment on all the iHsues raised. Per Fournier, J. — Tlie defendant might have justifled under the writ, and the court might grant leave to add such a plea, but in that event the costs should be paid by defendant. Per Henry, J. — No effort having been made in the court below to add such a plea it was too late and contrary to precedent and justice now to admit it. Per Gwyune, J. — When the plaintiff fails to show in evidence that he was in actual possession at the time of the taking, and is therefore driven to rest on the goodness of his title to the property, a defendant maj, in rebuttal of the evidence of such title, set up a bare jus tertii without showing he liad any authority from the third person having such title. So a sheriff sued for taking the goods of the plaintiff may show, under this issue, that the goods belonged to a third party against whom he took them in execution. The several matters therefore alleged in the 3rd, 1th and 5th pleas were matters which could have been given in evidence under the issue joined upon the 2nd plea. As to the 5th plea, in view of the evidence it was quite inappropriate to such evidence, for the writ of replevin placed in the hands of the defendant as sheriff to be executed did not vest in the defendant any property in the goods, the taking of which was complained of, so as to enable him to justify the taking as his own property as is done iu the 5th plea. Appeal dismissed with costs. Swim Y. Sheriff.— 10th June, 1881. 15. Partnership between Contractors — Nature ot' contract. ,SVc' PAKTNERSHIP, 3. IG. For carriage of Steel Rails — Representation by Agent of Crown. See PETITION OF RIGHT, 17. 17. Contract for extra icorh — Becisio^i of Engineer as to price bind- ing — Interrogatories on faits et articles, when to be taken pro confessis — xlrt. IJO C. C. P. — Motion for, necessary. An action for ?37,000 which the respondents claimed Mrere due them for balance on a sum of $i03,213.SJ(5, amount of work performed under contract between appallant and respondents, and extra work agreed to between respon- dents and appellant. On appeal to the Supreme Court of Canada from the Court of Queen's Bench for Lower Canada, Held, Taschereau, J., delivering the judgment of the court, 1. The contention on the part of the respondents that the fails et articles submitted to the appellant should be taken pro confessis, because the answers thereto were not direct, categorical and precise (Art. 229 C. C. P.) was not open to the respondents, as they had failed to make a motion to that effect in the ii5 Contract — Contbnted. court of first instance. The case of McGreevy y. PailU, 5 Leg. Nowh 95, con- firmed by Supreme Court, was not in point as a motion had been regularly made and granted in the Superior Court. Nor has Doiigla* v. Ritchie, 18 L. C. Jt^r. 27-4, any application. There the defendant made default and had not answered the fails et articles at all. Here the defendant had answered, and if plaintiffs desired to have the answers set aside, it must be by motion. 2. The appellant was entitled to reversal of the judgment of the Queen's Bench as to an item of 81,882.15, which appeared to have been allowed by oversight. 3. The sum of S3,7fi5.20 added by the Court of Queen's Bench, to amount granted by the Superior Court should also be deducted from the judgment, the difference between 20 and 2i cts. per yard for earth work done in ISTs! there being sufficient evidence to establish that the engineer, who by a clause of the contract, was to fix the prices of all extra work, and whose decision the parties were bound to submit to, had fixed the price of such work at 20 eta. Appeal allowed with costs and judgment of the court below varied. McGreevy v. McCarron.— 18th June, 1883.. Sec CONTRACT, 12. IS. Not complete or binding. See SALE OF GOODS, 13. 19. Rescission of, on gi-ound of fraud and false representations. See SALE OF LANDS, 8. 20. Bwildinrj contract-Enforcement of— Violation of city hy-laxo -Liability of owner-Effect of by-law passed after con- tract made. the dtf ots^f r''*r n' ?' '"■'°*'°" °^ " ''""'^'"^ ^°^ "^^ respondent in the city of St. John, N. B., brought an action, claiming to have been pre vented by respondent from carrying out their contract. The declara on a so contan.ed the common counts, part of the work having been performed 'o'nfon TT., *'" ""'"°* *'" '^"'^^^•"^'' ^^•'^^" erected,' would'notTave rin Tct oV H '7"'"r f "" '^'^" °' *'" '''' ^^^-^^' "-^- -"-rity of an Act of the General Assembly of New Brunswick, (41 V. c 7) two days after the contract was signed. »• c. /;, iwo On the trial of the action the plaintiffs were non-suited, and an apnli- that^tLTf '° "^^^^"P^^'"^ Court of Canada, Held, Henry. J., dissenting, that he by-law of the said city of St. John made the said contract illegal s"c T:r' ''o ''I'^T' """''^ "°* '•^^°^^^- '^«^^- - ^^-^^'"«' 6 Can. b. o. K. 241, see Contract, 4, followed. CAS. ma. — 10 - 146 ContrSiCt— Continued . Per Henry, J.— That the erection of the huilding wonld not, so far as the evidence showed, be a violation of the by-law, and therefore the non- suit should be set aside and a new trial ordered. Spears v. Walker— xi. 113. .21. Action for breach of contract to supply meat — Steward's decision binding on the parties— Forfeiture of deposit- Damages. Action of damaj^es for breach of the following contract : " 2Cth April, 1880." »' Tender for supplying the Windsor Hotel, Montreal, with meat, etc., from 1st May to Ist November, 1880. " We the undersigned do hereby agree to supply the Windsor Hotel "Montreal, with joints, Ac, of meat, at the prices quoted, viz.: (here "follows a description of the articles to be supplied and the prices.) " The quantity and quality of the foregoing supplies to be satisfactory to " the steward of the hotel, and two hundred dollars («200) are now handed " the Windsor Hotel Syndicate as security for the due fulfilment of the con- " tract, to be forfeited in case of non-performance, and if at any time the " hotel steward is obliged to procure supplies elsewhere through any cause " or negligence of ours, any excess of cost then paid over the prices of this " contract shall be chargeable against the deposit of two hundred dollars. " The said deposit shall not bear interest. " This contract may be cancelled by the Windsor Hotel Syndicate a "anytime should they lease or sell the hotel, or should the hotel from any " cause be closed before 1st November next. " Should this contract be satisfactorily fulfilled the deposit of two hun- " dred dollars, or any balance of the same remaining in accordance with fore- " going terms, shall be returnable on demand to us. " All accounts to be paid weekly. (Signed) " Brown Bros. " The foregoing tender and contract accepted. (Signed) " Windsor Hotel Syndicate, " by George Iles, " Secretary House Managing Committee. " Montreal, April 30th, 1880." Plaintiff supplied meat until the 30th of June. The steward of the hotel was dissatisfied and repeatedly notified the plaintiff of his dissctisfac- tion, but did not immediately stop receiving meat. The supplies continuing unsatisfactory to the steward, and in his opinion not according to the con- tract, he so decided and reported his decision, and the contract was cm celled whereby the deposit became forfeited. The defendants had beta obliged to expend »168 more than the deposit in obtaining meat elsewhere. On appeal to the Supreme Court of Canada, Held, affirming the judg- ment of the Court of Queen's Bench for Lower Canada, that the partiw^ 147 Contract — Continiwd. having agreed to make the steward the sole judt,'e and to abide by his decision, the plaintiff was bound by it. Further, the evidence showed tliat the steward's dissatisfaction was justified by the inferiority of the meat supplied, and that there was no malajideit on his part, but that lie had acted huuA jidr under a reasonable sense of dissatisfaction. Appeal dismissed with costs (Fournier and Henry. .TJ., dissenting). Brown v. Allan— 23rd June, 1884. 22. Completed by letters — Statute of frauds. See Sale OF LANDS, 10. 23. Contract to saiv lumber — Rescission of — Finding of Jury- Right to recover on common counts for work clone. The plaintiff was employed by the defendant under a written agree- ment, not under seal, to saw lumber in the defendant's mill, of which, under the agreement, plaintiff had possession and charge. It was contended on behalf of the plaintiff at the trial that this agree- ment was rescinded, and that the plaintiff was entitled to recover on the common counts, for the work actually done up to the time of the alleged rescission. The jury found in favour of the plaintiff upon the facts bearing upon the alleged rescission, and the Supreme Court of Nova Scotia refused a rule «/.. On appeal to the Court of Queen's Bench, that court, taking into consideration the fact that the yacht "Ninio" had, sinco the institution of the action, been sold in another suit at the instance of one of U.'s creditors and purchased by C. et al., the proceeds being deposited in court to bo dis- tributed amongst B.'s creditors, credited 15. with 8225 necessary to complete the engine, allowed $750 damages on B.'s incidental demand, and gave judgment in favour of C. et al. for the balance, viz., '91,225 with costs. The fact of the sale and purchase of the yacht subsequent to the institu- tion of the action did not appear on the pleadings. On appeal to the Supremo Court of Canada and cross-appeal aa to amount allowed on incidental demand by Court of Queen's Bench, it was : — Held, reversing the judgment of the Court of Queen's Ronch, Sir W. J. Ritchie, C.J., and Taschereau, J., dissenting, that as it was shown that at the time of the institution of C. et al.'s action, it was through faulty construction ♦hat the engine and machinery therewith connected could not work according to tho Herreshoff system, on which system C. et al. covenanted to build it, their action was premature. Held, also, that the evidence in the case fully warranted the ?750 allowed by the Court of Queen's Bench on B.'s incidental demand, and therefore he was entitled to a judgment for that amount on said incidental demand with costs. Taschereau, J., was of opinion, on cross-appeal, that B. 's incidental demand should have been dismissed with costs. Bender y. Carrier, et al. — xv. 19. 32. Failure of consideration — Invpossihility of performance. When one contracts to do work for another, the preparation for which involves outlay and expense, a corresponding agreement, in the absence of any 153 Contract -Contimteil. express proviHion, will bo implied on the part of tlm person with wlinm ho contracts to fiirniHh the work; but no bucIi implication will bo miido wlioro, from circnmHtancoH iineer of ho radical a nature aH to create, according to the conten- tion of the claiinantH, a new contract between tho partioH. Held, reverHinn tho judj^ment of Henry,.!., in tho Exchequer, {See 1 Exch. C. Ileportt) HUl.) Fournier, ,T,, dinHentin^, that the engineer could not make a new contract binding on the crown ; that tho claim caino within tho original contract and tho provisiouH thereof which made the certillcate of the en»{ineer a condition precedent to recovery, and HUch certiflcato not having been obtain- ed, tho claim must bo dismiBsed. The crown havin>{ referred the claim to arbitration instead of insisting throughout on its strict legal rights, no costs were allowed. The Queen v. Starrs.— xvii. 118. .')(). Foreign corporation — Telfgrdph company — Doing business in Canada — Ejcclusive rigid — Contract for — Restraint of trade — Puhl ic interest. In Ifi ') the E. & N. A. Ry. Co., owning the road from St. John, N.B., westward to the United States boundary, made an agreement with the W. U. Tel. Co., giving the latter the exclusive right for 99 years to construct and operate a line of telegraph over its road. In 1870, a mortgage on the road was foreclosed and the road itself sold under decree of the Equity Court of New Brunswick to the St. J. & M. Ry. Co., which company, in 1883, leased it to the N. B. Ry. Co. for a term of 999 years. The telegraph line was constructed by the W. U. Tel. Co. under the said agreement, and has been continued ever since without any new agreement being made with the St. J. A M. Ry. Co. or the N. B. Ry. Co. The SV. U. Tel. Co. is an American company, incorporated by the State of New York, for the purpose of constructing and operating telegraph lines in the State. Its charter neither allows it to engage, or prohibits it from engaging, in business outside of the State. In 1888, the C. P. Ry. Co. completed a road from Montreal to St. John, a portion of it having • 165 Contract— ' "M'l'iMc/. ninninu power* ovor the line of the N. H. Ily. Co., on whicli the W. U. Tel. Go. hftd oonitruoted it* teleMrapli iini.'. The N, It. Ity. Co. having K'ven permiuion to the (', P. It. to noiiHtniut nnothor telouraph line over tlio HHme road, the W. IT. Tul Co. nppliud fornnd obtained an injunction to prevent its l)einK built. On appeal to the Hiipronie Court of Canada from the decree of the Ki|uity (!ourt ^riiiitinK the injunctiuii, Held, 1. That the aj^ruuniunt nindu in IHtl'j btitwuvn tho E. & N. A. Ry. Co. iH hindiiiK on tho preHont owncrH of tho roivd. 3. That tho contract iniulo with tho W. U. Tel. Co. \vh,h conniHti'nt with tho pnrpoHo of itH corporation, and not prohibited by itg charter nor by the lixuil hiWH of Now HrutiHwicIf, and itH ri^lit to ttntcr into hiicIi a contract and curry on tho buHinena provided for thereby in a ri^iit reco^ni/ed by the comity of nations. 8. The excluBivo right .{ranted to tho W. U. Tel. Co does not avoid the contract as bein^ atjaiiiHt public policy, nor as being a contract in restraint of trade. Held, i'C'O Wynne, J. .dissenting, that the comity of nations docs not require the courts of this country to enforce, in favor of a foreign corporation, a con- tract depriving a nviiway company in Canada of the riglit to permit a domestic corporation, created for tlie purpose of erecting telegraph linoH in the Dominion to erect such a lino upon its land, and depriving it of the right to construct a telegraph line upon its own land. Canadian Pacific Ry. Co. v. Western Union Tel. Co. ~.xvij. 151. ')7. Relating to intereHt in land — Piirt ptTfoniiance. See STATUTE OF FRAUDS. 38. Public work — Claivi fm' extra xuil (Khlifional ivork done on Intercolonial Raikcin/ — II V. c. 13, ss. 10,17, IS, and 37 V. c. 15 — Change of chief evr/lneer before final certificate (jlven — Reference of suppliant's claim to enf/ineer — Report or certificate by chief eiujlneer recommemliiiff payment of a certain .nun — Effect if — Approval by Commissioner or Minister necessary. In 1879 the respondent filed a petition of right for the sum of $608,000 for extra work and damages ariaing out of his contract for the construction of section 18 of the Intercolonial Hivilway without liaving obtained a final certificate from F., who held at the time the position of Chief Engineer. In 1880. F. having resigned, F. 8. was appointed Cliief Engineer of the Inter- colonial Railway and investigated, amongst o.-hers, the respondent's claim, and reported a balance in his favor of #120,371. Thereupon the respondent amended his petition and made a special claim for the $120,371, alleging that F. S.'s report or certificate was a final closing certificate within the meaning of the contract, which question was submitted for the opinion of the court by 156 • Contract — Cuntinutd, special case. This report was never approved of by the Intercolonial Railway Commisaiouera or by the Minister of Railways and Cauala under 31 Vic. c. 13, a. 18. The Exchequer Court, Fournier. J., presidin^j, hold that the suppliant was entitled to recover on the certificate of F. S. On appeal to the Supreme Court of Canada, Held, reversin}^ the judgment of the Exchequer Court, Ist, jier Ritchie, C. J. and Gwynne, J., that the report of F. S., assuming him to have been tiie Chief Engineer to give the final certificate under the contract, cannot be construed to be a certificate of the Chief Engineer, which does or can entitle the contractor to recover any sum as remaining duo and payable to him under the terms of his contract, nor can any legal claim whatever against the Government be founded thereon. '2nd, 2>er llitcliie, C. J., that the contractor was not entitled to be paid anything until the final certificate of the Chief Engineer was approved of by the Commissioners or Minister of Railways and Canals, 31 V. c. 13 s. 18 and ;j7 V. c. 15 ; Jones v. The Queen, 7 Can. S. C. R. 570. 3rd, per Patterson, J., that although F. S. was duly appointed Chief En,i;ineer of the Intercolonial Railway, and his report may be held to bo the final and closing certificate to which the suppliant was entitled under the eleventh clause of the contract, yet as it is provided by the fourth clause of the contract that any allowance for increased work is to bo decided by the Com- missioners and not by the engineer, the suppliant is not entitled to recover on F. S.'s certificate. Per Strong and Taschereau, JJ., (dissenting), that F. S. was the Chief Engineer and as such had power under the eleventh elause of the contract to deal with the suppliant's claim and that his report was " a final closing certificate " entitling tlie respondent to the amount found by the Exchequer Court on the case submitted. Per Strong, Taschereau and Patterson, J.J., that the office of Commissioners having been abolished by 37 V. c. 15, and their duties and powers trans- ferred generally to the Minister of Railways and Canals, the approval of the certificate was not a condition precedent to entitle the suppliant to claim the amount awarded to him by the final certificate of the Chief Engineer. The Queen y. McGreevy.— xviii. 371. 39. Public work — Sub-contract — Engineers certificate — Condition precedent. A sub-contract for the construction of a part of the North Shore Railway provided inter alia that, " the said work shall, in all particulars, be made to conform to the plans, specifications and directions of the party of the second part, and of his Engineer, by whose classifications, measuromenta and calcula- tions, the quantities and amounts of the several kinds of work performed under this contract shall be determined, and who snail have full power to reject and condemn all work or materials which, in his opinion, do not conform to the spirit of this agreement, and who shall decide every question which may or can arise between the parties relative to the execution thereof, and his decision 157 ContrSiCt— Continued . shall be conclusive and binding upon both parties hereto. The aforesaid party of the second part hereby agrees, and binds himself, that upon the certiticates of his Engineer, that the Wurk contemplated to be done under this contract has been fully completed by the party of the first part, he will pay said party of the first part for the performance of the same in full, for materials and workmanship. It is further agreed, by the party of the second part, that estimates shall be made during the progress of the work on or about the first of each month, and that payments shall be made by second party upon the estimate and certificate of his engineer, to the party of the first part, on or before the 20th day of each month, for the amount and value of work done, and materials furnished during the previous month, ten per cent, being deducted and retained by the party of the second part until the final completion of the work embraced in this contract, when all sums due the party of the first part shall be fully paid, and this contract considered cancelled." Upon completion of the contract the engineer made a final estimate fixing the value of the work done by the sub-contractor at #79,112.05, and after deducting the money paid to and received by the sub-contractor, and a clerical error appearing on the face of the certificate, a sum of $4,187.32 remained due to the sub-contractor. Upon an action brought by the sub-contractor to recover the sum of $36,312.12, the Superior Court, whose judgment was affirmed by the Court of Queen's Bench, granted the plaintiff the amount of §4,187.32 with interest and costs. On appeal to the Supreme Court : Held, affirming the judgment of the court below, that the estimate as given by the engineer was substantially such a certificate as the contract con- templated, but if not the plaintiff must fail as a final certificate of the engineer was a condition precedent to his right to recover. Guilbault y. McGreevy. — xviii. (109. •U). Con.struction of — Employment of Physician by board of health — Attendance upon small-pox patients for the season — Dismissal — Form of remedy. See MUNICIPAL CORPORATION, 14, 41. Railway Company — Contract to carry passenger — Special Contract — Reduced fare — Notice of conditions — Neo'lio-ence- See RAILWAYS AND RAILWAY COMPANIES, 58. 42. Public work — Sub-contract — Rescission — Quantum meruit — Arbitration. See ARBITRATION AND AWARD, 23. 43. Of sale — Particular chattel — Representation. See SALE OF GOODS, 20. 158 Contract— ''"«f'«"tv/. 44. SpL'cial — Common Carrier — Exemption from liability' — Baggage " at owners risk against all cawualties." See CARRIERS, 5. 45. Master and Servant — Agreement for service — Construction of — Arbitrary right of dismissal — Forfeiture of property. — See MASTER AND SERVANT, 2. 46. Siiretyship — Endorsement of note — Right to cortiviission for endorsing — Cuns'ideration. M., by at»reement in writing, agreed to become surety for McD. & S. by endorsing their promissory note, and McD. & S. on their part agreed to transfer certain property to M. as security, to do everything necessary to be done to realize such securities, to protect M. against any loss or expense in regard thereto, or in connection with the note, to pay him a commission for endorsing, and to retire said note within six months from the date of the agreement. The note was made and endorsed and the securities transferred, but McD. & S. were unable to discount it at the bank where it was made payable, and having afterwards (juarrelled with each other the note was never used. In an action by M. for his commission : Held, affirming the decision of the Court of Appeal for Ontario, Tasche- reau and Gwynne, JJ., dissenting, that M. having done everything on his part to be done to earn his commission, and having had no control over the note after he endorsed it, and being in no way responsible for the failure to discount it, was entitled to the commission. McDonald v. Manning.— xix. 112. 47. Damages to property from ivorks executed on Government raU- way — Parol tmdertakhig to indemnify owners for costs of repairs by officer of the Crown — Effect of Held, affirming the judgment of the Exchequer Court, that where by certain work done by the Government Railway authorities in the city of St. John the pipes for the water supply of the city were interfered with, claimants were entitled to recover for the cost reasonably and properly incurred by their engineer in good faith, to restore thsir property to its former safe and servicable condition, under an arrangement made with the Chief Engineer of the Government railway, and upon his undertaking to indemnify the claimants for the cost of the said work. Strong and Gwyime, JJ., dissenting on the ground that the Chief Engineer had no authority to bind the Crown to pay damages beyond any injury done. The Queen y. The St. John 'Vater Commissioners.— xix. 125. 159 Contract — Cnutinnfil. 4«. Moneys entrusted for investment — Cundition precedent— Pre- scription — Art. 2:362 G.C.— Transfer— Prcte-nom. H. having funds belonjjing to one T. J. C. for investment, agreed to invest them with M. of Winnipeg in a certain land speculation, and after correspondence accepted and paid M.'a draft for $2,375, mentionint,' in the letter notifyinj^ M. of the acceptance of the draft the understanding H. had as to the share he was to get and adding : " I also assume that the lands are properly conveyed, and the full conditions of the prospectus carried out, and if not, that money will be at once refunded." The lands were never properly conveyed and the conditions of the prospectus never carried out. T. J. C. transferred so>i$ seing ])rii't' this claim to the plaintiff who brous^ht an action against M. for the amount of the draft. Held, affirming the judgment of the Superior Court for L. C. and the Court of Q. B. for L. C. (appeal side). (1.) That the action being for +■ recovery of a sum of money entrusted to the defendant for a special purpose, the prescription of two years did not apply.— Art. 2262 C. C. (2.) That the conditions upon which the money had been advanced were conditions pre- cedent and not having been fullilled, M. was bound to refund the money. (3.) That the transfer «oiw .leiHi/priW of the claim to plaintiff had been admitted by M., and the plaintiff, even if considered as a pn'tc-nom, had a sufficient legal interest to bring the present action. Moodie v. Jones.— xix. 2tJG. 49. Construction of railway— Bond — Condition — Mutuality. H. tendered for the construction of a line of railway pursuant to an advertisement for tenders, and liis offer was conditionally accepted. At the same time H. executed a bond reciting the fact of the tender and conditioned, within four days, to provide two acceptable sureties and deposit 5 per cent of the amount of his tender in the iJank of Montreal, and also to execute all necessary agreements for the conimencument and completion of the work by specified dates, and the prosecution thereof until completed. These conditions were not performed and the contract was eventually given to other persons. In an action against H. on the bond : Held, affirming the judgment of the Court of Appeal for Ontario, that the agreement made by the bond was unilateral ; that the railway company was under no obligation to accept the sureties offered or to give H. the contract ; that the bond and the agreement for the construction of the work were to be contemporaneous acts, and as no such agreement was entered into H. was not liable on the bond. The Brantford, Waterloo and Lake Erie Railway Co. v. Huffman.— xix. 33H. 50. Sub-Contract for mason work — Quality of work — Conversation between the parties — Claim for increa.sed price. See EVIDENCE, 56. ^. 160 Contract — Continued. 51. Corporation — Contract of — Seal — Performance — Adoption — Municipality — By-law — Manitoba Municipal Act, IS84, s. 111. A corporation is liable on an executed contract for the performance of work within the purposes for which it was created, which work it has adopted and of which it has received the benefit, though the contract was not executed under its corporate seal, and this applies to municipal as well as other corporations. Ritchie, C.J. and Strong, J., dissenting. In section 111 of the Manitoba Municipal Act, 1884, which provides that municipal corporations may pass by-laws in relation to matters therein enumerated, the word " may" is permissive only and does not prohibit corporations from exercising their jurisdiction otherwise than by by law. Ritchie, C.J. and Strong, J., dissenting. Bernardin v. The Municipality of North Duiferin.— xix. 581. 52. Sale of land or equity of redemption — Matters for future arrangement — Statute of frauds. See SALE OF LANDS. 29. 53. Engineer's certificate — Finality of — Bulk sum contract — Deductions — Eng ineer's poivers — Interest. In a bulk sum contract for various works and materials executed, per- formed and furnished on the Quebec Harbour Works, the contractors were allowed by the final certificate of the engineers a balance of §52,011. The contract contained the ordinary powers given in such contracts to the engineers to determine all points in dispute by their final certificate. The work was completed and accepted by tlie commissioners on the 11th October, 1882, but the certificate was only granted on the 4th February, 1886. In an action brought by the contractors (appellants) for 8181,241 for alleged balance 'of contract price and extra work, Held, 1. That the certificate of the engineers was binding on the parties and could not be set aside as regards any matter coming within the jurisdic- tion of the engineers, but that the engineers had no right to deduct any sum from the bulk sum contract price on account of an alleged error in the calcula- tion of the quantities of dredging to be done stated in the specifications and the quantities actually done, and therefore the certificate in this case should be corrected in that respect. 2. That interest could not be computed from an earlier date than from the date of the final certificate fixing the amount due to the contractors under the contract, viz., 4th February, 1886. Strong and Gwynne, JJ., were of opinion that the certificate could have been reformed as regards an item for removal of sand erroneously paid for to other contractors by the commissioners and charged to the plaintiffs. Peters y. The Quebec Harbour Commissioners.— xix. 085. 161 Contract — Contimwil. 54. Construction of- — Telephone service — Tranavnisaion of nieaaage — Use of wires. The Bell Telephone Co. carried on the business of executing orders by telephone for meBsen^er boys, cabs, etc., which it sold to the Elec. Desp. Co., agreeing among other things not to transmit or give, in any manner, directly or indirectly, any orders for messengerB, cabs, etc., to any person or persons, company or corporation, except to the Elec. Desp. Co. The O. N. W. Tel. Co. afterwards established a messenger service for the purposes of which the wires of the Telephone Co. were used. In an action for breach of the agreement with the Elec. Desp. Co. and for an injunction to restrain the Telephone Co. from allowing their wires to be used for giving orders for messengers, etc. Held, Ritchie, C. J., doubting, that the Telephone Co., being ignorant of the nature of communications sent over their wires by subscribers, did not " transmit" such orders within the meaning of the agreement ; that the use of the wires by subscribers could not be restricted ; and that the Telephone Co. was under no obligation, even if it were possible to do so, to take measures to ascertain the nature of all comrauuicationa with a view to preventing such orders being given. Electric Despatch Company of Toronto v. Bell Telephone Company of Canada. — xx. 83. .5.3. Foi' use of booms — Consideration — Boomage charges — Estoppel by conduct — ComjDensation. Set' ESTOPPEL, 18. .5(). Deed of land — Undi.sclosed trust — Deed in name of third party — .Specific performance — Collusion. See SPECIFIC PERFORMANCE, 5. .57. Bond — Illegal consideration — Stifling prosecution. In an action on a bond executed by J. to secure an indebtedness of L. to plaintiff bank the evidence showed that L., who had married an adopted daughter of J., was agent of the bank, and having embezzled the bank funds the bond was given iu consideration of an agreement not to prosecute. Held, aflirniing the judgment of the court below, that the consideration for said bond was illegal and -J. was not liable thereon. The People's Bank of Halifax v. Johnson.— xx. 541. 58. Contract— Carriage of mails— Authority of P. M. G. to bind the Crown— R. S. C. c. 35. ' ' ' ' " '' An action will not lie against the Crown for breach of a contract for carrymg mails for nine months at the rate of $10,000 a year, made by parol with the Postmaster-Geuerivl and accepted by the contractor by letter, notwith- standing it was partly performed, as, if a permanent contract, being for a C.\S. DIG. — 11 162 Contract— '"""'""/(•(/. Inr^or mim than >1,000 it could not be made without the authority of an order in council, and if temporary it was revocable at the will of the PoHtnuiHter- Gencral. Humphrey v. The Queen.— xx. f)!)!. 69. For rescue of stranded tug — Action by agents — Salvage. See MARITIME COURT OF ONTARIO, 7. CO. Application for insurance — Agreement to forward — Escrow. See INSURANCE, MARINE, 33. 61. For exchange of lands — Time, essence of contract — Extension — Conduct of party seeking relief. See SPECIFIC PERFORMANCE, 7. 62. Municipal Corporation — Executory contract for purchase of fire engine — Necessity for by-law. See MUNICIPAL CORPORATION, 28. 63. Of towage, authority to make. See MARITIME COURT OF ONTARIO, 8. AGREEMENT. PETITION OF RIGHT, 10. SALE OF GOODS. SALE OF LANDS. Contributory — Right of action agiiinst, in winding up proceedings under the Imperial Companies' Act, lcS(52. See CORPORATIONS. 15. 2. Of Bank of P.E.T.— Lial)ility of, under 18th V. c. 10, & 19th V. c. 11, (P.E.I.) See BANKS AND BANKING, 7. 3. Right of set off by, in action against. See BANKS AND BANKING, 8. 4. Of joint stock company — Subscx'iption for stock — Payment by services. See CORPORATIONS, 2. 163 Contributory— CoH«««M^(/. 5. Of iuHolvent Company who is also creditor, cannot set off debt due to liiin by Company — Wiudin<,' up — Bank Act R. S. C. c. 120. See WINDING UP, 7. Conversion by Sheriff. See COllPORATIONS, 5. TllOVER. Copyright. — Infringement of — Souree of ivformation — Statutory form of notice of — JS V. c. niinueii»(h ho found tliivt tho roH[)onduiit had HiibHoribed for flfty Hliari^H and liiid Ix'cn iilliitted Hiiid llfty HliaroH, was unable to say whether roHpondetit iiai year the company suffered heavy loaaes, and, notwithstanding F. X. C.'s repeated endeavours to bo relieved from tho larger liability, brought an action against^ him to recover tho 3rd, -Ith, 5tli and (Jth calls of live per cent, on 50 ahares of $100 each, alleged to have been subscribed by F. X.C. in the capital stock of the company. Held,, Ritchie, C.J., dubitante, reversing the judgment of the court below, that the evidence showed the appellant never entered into a contract to take 50 shares; that the receipt given for a dividend of 10 per cent, on the amount actually paid (niontaiU versc') was not an admission of his liability for tho larger amount, and he therefore was not estopped from showing that he was never, in fact, holder of 50 shares in the capital stock of tho company. Cote Y. Stadaoona Ins. Co.— vi. 19B. 10. Shareholders — Rujhtft of — The Banking Act, 34, V. c. 5, 88. 19 and 68 — Resolutions by directors and shareholders not binding on absent shareholders — Equitable plea. Bank of L. brought an action against S., the appellant (defendant), as shareholder, to recover a call of 10 per cent, on twenty-five shares hold by bin* Corporations—' "iitiuunl. in tliat bank. Jty tli(< 7tli [ilea, and for ilefonco on otiuitable uroundn, dofcMi dant Haid, " that bvfore tliu iiaid call or notice thereof to t'-o defendant, the ntimiepj}t'l — Mt)rf(fiii/(' of sluires. The Ontario Wood Pavement Company, incorporated under 27 A- 2H V. c. 2.'J. with power to increano by ijy-iiiw tiio eapitivl Htock of liio company " after the whole capital Htock of the company uhali have boon allotted and piiid in, but not Hoouor," aaaumed to paaa a by-law increasing the capital Htock from Jl.tO.OOO to S2r)0,000 before tlie ori>,'inal capital stock hail been paid in. P. <•< u/., oxioution creditors of the company, whose writ had been returned unsatisllod, instituted proceediuna by way of »ci. /«. a(;ainat A. as holder of shares not fully paid up in said company. It appeared from an examination of the books that the sliares allej^od to bo held by A. were shares of the increased capital and not of that originally authorized. Held, artirmin>{ the iudj^mont of the Court of .\ppeal, that as there was evidence that the original nominal capital of 81.30,000 was never paid in, the directors had no power to iuoreaae the stock of the company, and as the stock held by A. consisted wholly of new unauthorized atock, P. et al. were uot entitled to recover. PerGwynne, J., disaentinR.— The objdction not having been taken by the defendant, or tried, the court, under s. 22, c. 38, It. S. O., should put the iiuea- tionsof fact upon which the validity and sutticiency of the objections sufO^eated by the court rested, into a course for trial in due form of law. Where a s'.tutory liability is attempted tJ be imposed on a party which can only attach to an actual legal shareholder in a company, he is not estopped by the mere fact of having received transfers of certificates of atock from queationing the legality of tlie issue of such stock. Per Strong and Henry, JJ. (GwynnOi J. contra)— Tlha.i although A., a mort- gHgee of the shares and not an absolute owner, had taken a transfer absolute in form and caused it to be entered in the books of the company as an absolute transfer, he was not estopped from proving that the transfer of the shares was by way of mortgage. 27 & 28 V. c. 23, s. 5, n-s. 19. Page Y. Austin.— X. 132. 12. ^5 V. c. 23 (D.) — Conatruction of— Foreign Company — Wind- ing-up. The Steel Company of Canada (limited), incorporated in England under the Imperial Joint Stock Companies Acts, 1862-1807, and carrying on business 170 Corporations — Coutiuiial. ill Nova Scotia, and having its principal placo of buainess at Lontlonderry. Nova Scotia, was, by order of a judt^e, on the application of the reaiHin- dents and with the consent of the company, ordered to be wound-up under 45 V. c. 23 (D.). The appellants, creditors of the Steel Company, intervenetl, and objected to the granting of the winding-up order on the ground that 45 V. c. 23, was not applicable to the company.- Held, reversing the judgment of the Suprnine Court of Nova Scotia, Fournier, J., dissenting, that 45 V. c. "23 was not applicable to such company. The Merchants Bank of Halifax y. Oillespie.— x. 312. 1.'}. Liability of, for Libel. See LIBEL. 14. B'jiiefit Society — Expulsion of member from." See BENEFIT SOCIETY. 15. IVie Imperial Companies Act, hSO.i — Order malcimj calb against past member — Rujht of action thereon — Declara- tion — De m urrer. The defendant was a holder at one time of 100 shares in Barned's Banking Company (limited) but had ceased to be a member of the company before the commenc°raent of the winding-up. An order for the winding-up of the said company having been made by the High Court of Chancery in England, and the defendant having been placed upon the list of contribu- tories, pursuant to the provisions of the Winding-Up Act, the said court, by an order made 2ni January, 1870, made a call on the defendant for a certain sum in respect of his shares in the said company, and directed him to pay it to one of the oflicial liquidators. Subsequently to this order, the plaintiffs commenced this action in the Court of Queen's Bench for Upper Canada, and their declaration bein{» demurred to by the defendant, the matter was argued in Hilary Term, 1875, and the demurrer disallowed. The case is reported in 30 U. C. Q. B. "^50. Afterwards the plaintiffs amended their declaration as suggested in the judgment then given, by charging the defendant dist.nttly as a past mem- ber, and, the amended declaration being again demurred to, the matter was argued before the Court of Queen's Bench, on 4th October, 1877, and tlie demurrer was allowed, Wilson, J., dissenting. The decision is reported in 40 U. C. Q. B. 435. From this decision the respondents appealed to the Court of Appeal for Ontario, and on 23rd December, 1878 that court delivered judjiiiient revers- ing the decision of the Court of Queen's Bench, and allowing the appeal. Reported 3 Ont. App. R. 371. The defendant appealed to the Supreme Court of Canada from that judgment, which decided that the liability of the defendant to pay the calls 171 Corporations— <'(>H^ect of the other fifty of the said shares, and ordered that the defendant shoiild, on jr before the ninth day of September, 1H70, or within twenty four days after the service of the said order, pay the said sum of three thousand six hundred i.iul twenty-five pounds to the said Harwood Walcot Banner, of 20 North John street, Liverpool, in the county of Lancaster, one of the said ofhcial liquidators, such sum being by the said order declared to be the amount due from the defendant in respect of the said calls of thirty-three pounds per share, and of thirty-nine pounds ten shillings per share. And the said order was, before the said ninth day of September, duly served upon the defendant, and the said Act of Parliament or law, during all the time aforesaid, was and is still in aill force, and was and is the law of England ; and all things happened and were done, and all times elapsed necessary to render the defendant liable to pay the said sum of money, and to entitle the plaintiffs to maintain this action for the non-payment thereof, and the said sum of money is equal to the sum of seventeen thousand six hundred and forty-two dollars of lawful money 172 Corporations — Coiuinmd. of Canada, yet the defendant had not "paid the same, and the xilaintiffs claimed thirty thousand dollars. To this declaration the defendant demurred on the following grounds :— That the declaration did not show any facta or circumstances which, under the laws in force in this province, give the plaintiffs any right of action against the defe.dant : That said declaration did not show that under the alleged Act of Parliament, or under the law of England the plaintiffs had any right of action against the defendant : That it appeared by said declaration, that the said company of the plaintiffs was being wound up by the High Court ■of Chancery in England, and under the authority of the alleged Act of Parlia- ment in the declaration mentioned, and the plaintiffs were not shown to have the power under said Act to sue or bring actions for any call made by said court : That it was not shown that any calls were made on the alleged shares before said order for winding-up was made, or that the defendant was the holder of the said shares, or any of them, at the time of making any such calls or that he ever became indebted to the plaintiffs upon or in respect of the said shares, or any of them : That it appeared by said declaration that defendant had ceased to be the holder of any of the said shares before the commencement of the winding-up of the said company, and that the defendant was at most only a past member : That under the law of this country the defendant would not be liable for any call made after he ceased to be a holder of said shares, and the declaration did not show any provision of English law that made him liable to the plaintiffs for any such call : That it appeared by the English law as set out in said declaration that a past member like the defendant was not subject to the same liability as a present member, and said declaration did not show that any debts or liabilities of the said company existed to or in respect of which defendant was liable to contribute or in respect of which he could be placed on the list of oontributories, or that he was liable to contribute any- thing : That as the plaintiffs were now suing on a law not in force in this country, and were claiming a liability which did not exist under tlie laws of this country, they were bound to show that the liability they claimed clearly existed under the English law, which they had not done : That it appeared by said declaration that after an order had been made for wind- ing up a company all power in regard to collecting or getting in the assets of the said company was invested in the said Court of Chancery, which was a specially appointed tribunal for that purpose and had special and extraordinary powers which could not be enforced in this country: That it appeared that any proceedings had were not final, and that said court had power to rectify the list of oontributories and could at any time remove the defendant's name from such list : Also, that said court had the power to restore to the defendant all or any part of the moneys which he might pay under the said order making said calls, and that the English law as presented by said declaration showed that the proceedings had were not final in their •character like a judgment, and the rights of plaintiffs, if any, could be enforced only by said special tribuual, and not by suit at law in this country. On appeal to the Supreme Court of Canada, Held, per Ritchie, C.J., and Fournier and Henry, JJ., (Strong and Gwynne, JJ., dissenting), that assuming 16 173 Corporations— ('"«'' to declare generally, nor of s. lOfi of said Act. making the order conclusive evidence that the money ordered to be paid was due, for the reason that neither of those sections applies to actions brought in this country ; and as defendant's liability, if any. was not on the order as a final judgment, but was a purely statutory liability of a limited character, it was necessary to allege iii the declaration everything required by the statute to fix the limited liability of a past member on the defendant, and which allegation, if traversed, the plaintiff ^•ould be bound to prove, and as the declaration on its face contained no .uch allegations as show any such liability of defendant as a past member it was therefore bad. ' 2. Per Henry and Taschereau, JJ.-That the declaration did not show any right under the Act in the plaintiffs to sue in their own name. Appeal allowed with costs. Reynolds y. Barned's Banking Company.-3rd Feby., 1880. Saint John City— Power of Mayor, ,(:c., to raise the level of the- streets— Raising a street in part and erecting fence on part so raised by ivhich access to the street is cut of— Nonsuit- Charter of city— Municipal Councils, powers of By the charter of the city of Saint John the corporation was given power to alter, amend and repair streets theretofore laid out. or thereafter to be laid out. The charter is confirmed by 2(5 Geo. III. c. 46. and tho right to alter the evels of streets is recognized by !) Geo. IV. c. 4. Church street was not one of the streets originally designated on the plan of the city. It was made a public street in 1811, on petition of the owners of the land through which it passes, who gave the land for the street. In 1874 the corporation raised Church 8 reet below Canterbury street, filling it in to within four or five feet of the p aintiff-s house and shop. On the embankment so made in front of the plaintiff's house and shop the corporation erected a fence. By reason of this the plamtiff had no access from the street to his house and shop, but reached hem by the narrow passage left next the house and shop running eastprlv towards Canterbury street and westerly toward Prince William street. An action having been brought against the Mayor, etc., of the city for the damage sustained by the plaintiff by reason of so filling in the street and erecting the fence, the plaintiff was non-suited by Duff, J„ on the ground that the charter and Acts of Assembly gave the defendants full authority to raise the level of the street, and that in them was vested the sole- discretion a.s to the time and manner of doing it, and that haying exercised a hon.', Me ut'niueif. tliere. Tlioro was uo evidence as to tlie nature or extent of the hole, nor was iirtirniative evidence tjiven of neglijjence on the part of any oflicer of the cor- lioratiuii. No motion for non-suit was made, and the jury were directed timt if the plaintiff knew tlie hole was there, it was contributory ne>jliyonce ; but if she bilieved it was firm ^'round there was no contributory net^ligence. Tlie jury awarded the plaintiff *H00 diimutios, and a rule ni*i for a new trial WHS di8charf,'od. Held, that there should be a new trial. Per Ritchie, C .1., and Fonrnier, J.— That the plaintiff was neither walking nor passinj,' over, travelling upon, nor lawfully usiny the said street as alleged in the declaration, and slie was, therefore, not entitled to recover. Per Ritchie, C.J. — The damages were excessive. Per Henry, J.— That the plaintiff was lawfully using the street, and there was evidence of negligence on the part of the corporation, but as the (jnestion of contributory negligence had not been left to the jury as it should have been there must bo a new trial. Per Ta.-ichereau and Gwynne, JJ. — That there was no evidence of negli- gence to justify the verdict, and a non-suit should have been granted if moved for. The Town of Portland v. Griffiths.— xi. 33,S. 24. Pvomotci'H of company — Action against company and pro- mote n^ for fraudulent misrepresentation — Action ex delicto for deceit — Fraiulident concealment — ProHpectiis, alleged misstatements iv. A suit was brought against a joint stock company, and at;ainst four of the shareholderB who had been the promoters of the company. The bill alleged that the defendants, other than the company, had been carrying on a lumber liusiness as partners and had become embarrassed ; that they then concocted t!ie scheme of forming a joint stock company ; that the sole object of the pro- posed joint stock company was to relieve the members of the firm from liersonal liability for debts incurred in the said business and induce the public to advance money to carry on the business ; that application was made to the government of Ontario for a charter, and at the same time a prospectus was is.sued which was set out in full in the bill ; that such prospectus coijtained the following paragraphs among others, which the plaintiffs alleged to be false : 1. The timber limits of the company, inclusive of the recent purchase, consist of 2'2'2J square miles, or 142,400 acres, and are estimated to yield 200 million fee', of lumber. 2. T!ie interest of the proprietors of the old company in its assets, estimated at about $140,000 over liabilities, has been transferred to the new company at $105,000, all taken in paid up stock, and the whole of the proceeds of the preferential stock will be used for the purposes of the new company. 3. Preference stock not to exceed $75,000 will be issued by the company to guarantee 8 per cent, yearly thereon to the year 1880, and over 171) Corporations—'^ '""''«"< . Even with present low prices the company, owin^ to their superior facilities, will be able to pay a handsome dividend ni the ordinary, as well as on the preference, stock, and when the lumber nuirket improves, us it must soon do, the profits will be correspondingly increased. The bill further alle<,'od that the plaintiffs subscribed for stock in the company on the faith of the statements in the prospectus ; that the assets of the old company were not transferred to the new in the condition that they wore in at the time of issuing the prospectus; that the embarrassed condition of the old company was not made known to the persons taking; stock in the new company, nor was the fact of a mort^jaj^e on the assets of the old company havint" been f^iven to the Ontario Bank, after the prospectus was Issued, but before the stock certiticates wore f^ranted ; that the assets of the old company were not worth $140, 000, or any sum, over liabilities, but were worthless ; and prayed for a rescission of the contract for taking stock, for re-payment of the amount of such stock, and for dama^^es against the directors and promot- ers for misrepresentation. There war evidence to show that the promoters had reason to believe the prospects of the new company to be good, and that they had honestly valued their assets. On the argument three grounds of relief were put forward : — 1. Rescission of the contract to subscribe for preference stock ; 2. Specific performance of the contract to take back the preference stock during the year IHSO at par ; 3. Damages against the directors and promoters for misrepresentation. The company having become insolvent, the plaintiffs put their case principally on the third ground. Held, affirming the judgment of the court below, (11 Ont. App. R. 336,) that the plaintiffs could claim no relief against the company by way of rescis- , siou of the contract, because it appeared that they had acted as shareholders and affirmed their contract as owners of shares after becoming aware of the grounds of misrepresentation, Held, alno, as to the action against the defendants other than the company for deceit, that the evidence failed to establish such a cuse of fraudulent misrepresentation as to entitle plaintiffs to succeed as for deceit. Held, also, as to the alleged concealment of the mortgage to the Ontario Bank, it having been given after the prospectus was issued it could not have been in the prospectus, and moreover that the shareholders were in no way damnified thereby, as the new company would have been equally liable for the debt if the mortgage had not been given ; and as to the concealment of the embarrassed condition of the old company, the evidence showed that the old firm did not believe themselves to be insolvent ; and in neither case were they liable in an action of this kind. Petrie v. The Guelph Lumber Company.— xi. 450. l.SO Corporations—' 'ontinuol. 25. .Muuicipul i'(irp(tniti<»ii — Af^rot'incnt liy tu tiikc st-K-k in Hiiilway c'tdiipiiiiy iiinl to piiy tor in tloliontuivs — Breiifh of iinive- uii'iit — Ki^'ht (il" Uailwuy Conipiiny to sue for special *. 'The judgment in this case was reversed by the J. C. of the Privy Council —.Set' 12 App. Cases 589. j 27. Municipal corporation — By-law o-uaranteein;,' cost of oxpropria- tion by railway ulti'ci vires — Injunction. * See RAILWAYS AND RAILWAY COMPANIES, 18. 28. Joint stock coDipany — ContribiUories — Sitbscriptlon for stock — Payment by services. The Act of Incorporation of a joint stock company provided " that no subscription for stock should be legal or valid until ten per cent, should have bsen actually and bona fide paid thereon." C. gave to the manager of the company a power of attorney to subscribe for him ten shares in the company, such power of attorney containing these words: "and I herewith enclose ten per cent, thereof, and ratify and confirm all that my said attorney may do by virtue thereof." The ten per cent, was not, in fact, enclosed, but the amount was placed to the credit of C. in the books of the company, and a certificate of stock issued to him which he held for several years. The company having is I Corporations— C-'/i^HM*-'/. fiiileil, i>ri)ceDilinj{s wore taken to have C. placed on tlio list of contributorie», in which prDOooilinKH ho navo eviilon<;e to tiio offoct, tiiat tiio Hiun to liiH credit wiiH for professional Hervii'cH to tiic I'onipany. holmvinj^ boon appointe{mont of the court below, Heury, J., diasentin^, that C. wag lightly placed on the list of contributorioH. Caiton's Caie. -xii. (lu. 20. Joint utoch comptvy — Misrepn'sentntion by ^'^''^'Ho/f/w of — Action of iniUvliUud Hltareholdern — Delay in hrlnglng ((ft ion — Partiea. Individual Hlmreholdors in a joint stock company cannot brinj? an action aj^'ainsl the promoters for dainafjes caused by allejjod misrepresentations by the latter as to the prospects of the company when formed, tho injury, if any, bein^! an injury to the company, not to tiie respective shareholders. (Stron>,', J., dissenting). If the shareholders could brinjj such action a delay of four years, during which they suffered tho business of the company to f^o on with full knowledge of the allej^ed misrepresentations, would disentitle them to relief. (Strong, ,1., dissenting.) Beatty v. Neelon.— xiii. 1. 'M. Powers of ill rectors — AssUjuuioit for hencjit of creditors — Description of property — ('/uinye of j^ossession — R. S. 0. c. 110, s. b — Interpleader issiLe — Appeal from judgment on The decision of a judge of the High Court of Justice (which by section 28 of the Judioatni'c Act is the decision of tho court) on an interpleader issue to try the title to property taken under execution on a final judgment in the suit in which it is issued, is not an interlocutory order within tho meaning of that expression in section iiii of the Judicature Act, or if it is it is such an order as was appealable before the passing of that Act, and in either ease it is appealable now to the Court of Appeal for T3ntario. An assignment by the directors of a joint stock company of all the estate and property of the company to trustees for the benefit of creditors is not tiltru vires of such directors, and does not require special statutory authority or tlie formal assent of tho whole body of shareholders. Qititre. Is such an assignment within the provisions of the Chattel Mortgage Act of Ontario, II. S. O. c. 119 ? Where such an assignment was made, and the property was formally handed over by the directors to the trustees, who took possession and subse- quently advertised and sold the property under tiie deed of assignment. Held, that if the assignment did come within the terms of the Act its provisions were fully complied with, the deed being duly registered and there being an actual and continued change of possession as required by section 5. 182 Corporations — Cnntinwii. In 'ich deed of assignment the property was described aa "all the real estate, lands, tenements and hereditaments of the said debtors (company) whatsoever and wheresoever, of or to which they are now seized or entitled, or of or to which they may have any estate, ri^lit or interest of any kind or description, with the appurtenances, the particulars of which are more partic- ularly set out in the schedule hereto, arid all and singular the personal estate and effects, stock in trade, goods, chattels, . . . and all other the personal estate and effects whatsoever and wheresoever, whether upon the premises where the debtors' business is carried on or elsewhere, and which the said debtors are possessed of or entitled to in any way whatever. The schedule annexed specifically designated the real estate and included the foundry, erections and buildings thereon erected, and all articles such as engines, etc., in or upon said premises. Held, that this was a sufficient description of the property intended to be conveyed to satisfy the section 23 of R. S. O. c. Hi) ; McCall v. Wolff (13 C. S. C. R. 130), approved and distinguished. But see now 48 V. c. 26, s. 12, passed since this case was decided. Hovey v. Whiting. — xiv. 515. 31. Joint stock company — 31 V. c. 25 {P. Q.)— -Action for adU — Subscriber before incorporation — Allotment — Non-licbility. P. signed a subscription list undertaking to take shares in the capital stock of a company to be incorporated by letters patent under 31 V. c. 25 (P.Q.), but his name did not appear in the notice applying for letters patent, nor as one of the original incorporators in the letters patent incorporating the com - pany. The directors never allotted shares to P. and he never subsecpiently acknowledged any liability to the company. In an action brought by the company against P., for 810,000 alleged to be due by him on 100 shares in the capital stock of the company. Held, affirming the judgment of the court below, that P. was not liable for calls on stock. The Magog Textile and Print Co. v. Price.— xiv. 064. 32. Action on bond against sureties of defaulting clerk of munici- pality — Defeace — No seals attached when sureties signed. See BOND, 5. 33. Municipal debentures — Future coiulitions — Municipal Code, Art. 982. Held, affirming the judgment of the Court of Queen's Bench for Lower Canada, M. L. R. 2 Q. B. 160, that a debenture being a negotiable instrument, a railway company that has complied with all the conditions precedent stated in the by-law to the issuing and delivery of debentures granted by a munici- pality is entitled to said debenture, free from any declaration on their face of conditions mentioned in the by-law to be performed in future, such as the 183 Corporations — Continued. future keeping up of the road, etc. Art. 9(52, Muuicipal Code. Fournier, .J., dissenting. Parish of St. Cesaire v. McFarlane.— Marcn 14th, 1887— xiv. 738. 34. Estoppel — Action by ratepayer — Improper construction of raunicipal ivork — Rcitepayer a contractor — Acceptance of sarplus money. A ratepayer of a municipality cannot maintain an action, on behalf of himself and the other ratepayers, against the municipality for the improper construction of a drain authorized by by-law when such ratepayer has himself been a contractor for a portion of the work and has received his share of the money voted for the work m excess of the amount expended. Judgment of the Court of Appeal for Ontario, 13 Ont. App, R. 58, aflirmed. Dillon Y. The Township of Raleigh.— March 15th, 1887— xiv. 739. 35. Municipal by-law — Sale of meat — Municipal Act, 1883, ss. 497 and 503 ; 50 V. c. 29, s. 29, Ont. — Quantity — Time and place — License. See LICENSE, 7. 36. Purchase of .shares in Mutual Building Society declared for- feited for non-payment of dues — Litigious rights — Arts. 1582, 1583, 1534, C. C. See Li::iGIOUS RIGHTS. 37. Miinicipal Council — Powers of — Improvement of roads — Proch verbal homologated — Effect of Arts. 100, 451, 705, M. a (P.Q.)—AppeaI^R. S. C. c. 135, s. 29 (6). "Where & prods verbal of a municipal council directing improvements to be made on a portion of road situated within the municipality has been duly liomologated, it cannot subsequently be set aside by an incidental procedure, but, like a by-law, it can only be attacked by a direct procedure as indicated in the Municipal Code (P.Q.) Arts. 100, 461. Parent v. Corporation of St. Stiuveiir, 2 Q. L. E. 258, approved. By a prods verbal made by the municipal council of Ste. Anne du Bout de Lisle a portion of the road fronting the land of one E. was ordered to be improved by raising and widening it. Upon R.'s refusal to do the work the council had it performed, paid ?200 for it and subsequently sued R. for the said $200. The Courf of Queen's Bench, P.Q., on appeal affirmed a judgment in favour of the municipal council for that amount. On appeal to the Supreme Court it was : 184 Corporations — Contimwd. Held, K'* Fournier, Henry and Gwynne, JJ., (Strong and Taachereau, JJ., dissenting, and Ritchie, C.J., expressing no opinion on the point), that although the matter in controversy did not amount to $2,000, yet, as it related to a charge on the appellant's Ip-nd whereby his rights in future might be bound, the case was appealable. R. S. O, c. 13fi, s. 21), Reburn v. La Corporation de la Paroisse de Ste. Anne du Bout de L'iBle. —XV. 92. 38. Railway company — Sparks from engine — Negligence — Exam- ination for discovery — Officers of corporation, locomotive superintendent and locomotive foreman, officers who may be examined. R. S. O. 1877, c. 50, s. 136. See RAILWAYS AND RAILWAY COMPANIES, 40. 39. Consti'uction of street railway — By-law — Agreement — Notice 2)recedent to assuming ownershij) by corporation — Arbi- trators — Aiipointrnent of by court. The Quebec Street Railway Company were authorized under a by-law passed by the corporation of the city of Quebec and an agreement executed in pursuance thereof to construct and operate in certain streets of the city a street railway for a period of forty years, but it was also provided that at the expiration of twenty years (from the 9th February, 1865) the corporation might, after a notice of six months to the said company, to be given within the twelve months immediately preceding the expiration of the said twenty years, assume the ownership of the said railway upon payment, etc., of its value, to be determined by arbitration, together with ten per cent, additional. Held, reversing the judgments of the courts below, Fournier, J., dissent- ing, that the company were entitled to a full six months notice prior to the 9th February, 1885, to be given within the twelve months preceding the 9th February, 1885, and therefore a notice given in November, 1884, to the com- pany that the corporation would take possession of the railway in six months thereafter was bad. Per Strong and Henry, JJ. — That the court had no power to appoint an arbiti-ator or valuator to make the valuation provided for by the agreement after the refusal by the company to appoint their arbitrator. Fournier, J., c3 V. c. 4!2— Application to company incorporated hy special charter — Collect ion of tolls — Maintenance of road — Inj unci ion. The provisions of the general Poad Companies Act of Ontario, R. 8. O. (1887), c. 15!), as amended by 53 V. c. 42, relating to tolls and repair of roads, apply to a company incorporated by special Acts, and on the report of an engineer as provided by the General Act that the road of such company is out of repair it may be restrained from collecting tolls until such repairs have been made. Judgment of the Court of Appeal for Ontario on motion for interim iujunctiou (lil Ont. App. R. 234) over-ruled and that of the Divisional Court (21 O.K. C07) approved. The Attorney-General v. The Vaughan Road Company.— 13th Dec, 1892, xxi. Corrupt Practice — Dominion election — Free railway ticket — Loan for travelling expense.s— Intent. See ELECTION, 44. 2. Promise by candidate to procure employment for voter — Evi- dence — Corroboration — Finding of trial judges. See ELECTION, 45. Costs — Charged against administrator personally — Where miscon- duct. See EXECUTORS, 7. 2. In appeal. See PRACTICE OF SUPREME COURT, 3.S-50, 111. 3. Railway company — Lands taken for railway p)itrposes — — Arhitrjition — Award — Matters considered by arbitra- tors. A railway company, having taken certain lands for the purposes of their railway, made an offer to the owner in payment of the same which offer was not accepted and the matter was referred to arbitration under the Cons. Rail- way Act, 1879. On the day that the arbitrators met the company executed an agreement for a crossing over the said land, in addition to the money payment. 189 Costs — (^iDltitUti'd. aud it appeared that t\\p arbitrators took the matter of the croBsin^' into con- sideration Ml making their award. The amount of the award was less than the sum offered by the company, and both parties claimed to be entitled to the costs of the arbitration, the company because the award waH less tlian their ofifer, and the owner because the value of the crossing was included in the sum awarded which would make it greater than the offer. Held, aftirming the judgment of the Court of Appeal, and the judgment of the Divisional Court, 5 O. K. ()7i, Gwyune, J., dissenting, that under the circumstances neither party was entitled to costs. Appeal dismissed with costd. Ontario and Quebec Railway Co. v. Philbrick.— 0th April, 1836— xii. 288. 4. Contempt of court — 11. S. C. c. 135, s. 24 (a) — Judgment not final — Party appellant led into error by action of the court below — Appeal quashed without costs. Ellis Y. Balrd.— xvi. at pp. U9, 150 & 156. Sec JURISDICTION, 53. 5. Contract with Crown — Certificate of engineer — Condition pre- cedent — Reference to arbitration under 31 V. c. 12 — Costs of proceedings refused. See CONTRACT, 35. 6. Of execution creditor — Lien for — Assignment for benefit of creditor— Extent of costs— 48 V. c. 2G, s. 9 (().)— 49 V. c. 25, s. 2 (O.). See ASSIGNMENT, 13. 7. Intestate estate — Distnbution — Paid out of estate — Order of court below — Interference with. See DISTRIBUTION OP E3TATE. 8. Solicitor's bill — Reference to taxing master — Procedure — Appeal — Jurisdiction. Sec SOLICITOR AND CLIENT, 7. 9. By-laiv — Appeal as to costs — Jarisdiction — Sujri'eme and Exchequer Courts Act, s. 21^. After the rendering of a judgment by the Court of Queen's Bench refusing to quash a by-law passed by the corporation of the village of Hunting- don, the by-law in question was repealed. On appeal to the Supreme Court of Canada: — 100 -Costs — ' 'imtinued. Held, that the only matter in dispute bet«7ecn the parties boing a mere queHtion of coBtd, tlie court would not entertain the tippuul. Hupremu and Exche(]uer Courts Act, u. 24. Hoir V. The Corporation of the Village of Huntingdon.— xix. 308. 10. Bill of— Order for taxation— R. S. 0. 1887, c. ip, s. 43— Appeal — Jurisdiction. Jiulgmont having been recovered in an action broujjht against school trustees, a ratepayer of the district applied lo a judge of the II. C. of J. for Ontario under s. 42 of c. 147 of the R. S. O. 1887, to tax the b'.ll of the solicitor of the plaintiff. Held, per Ritchie, C.J., and Patterson, J., aftirmin;^ the jud>,'ment of the Court of Appeal for Ontario, that a ratepayer is not entitled to an order for taxation under said section. Held, also, jxv Ritchie, C.J., and Patterson, J., that the matter of taxation of costs was one in which the Supreme Court should not interfere. Held, further that there was no jurisdiction to entertain the appeal. McOugan y. McOugan.— xxi. 207. SeeaUo JURISDICTION, 101. 11. Proceedings before Supreme and Exchequer Courts of Canada — Solicitor and client — Costa of — Qiuintuvi meruit — Parol, evidence — Art. o597, R. S. Q. In prooeadinjis before the Supreme and Exchequer Courts, there being no tariff as between attorney and client, an attorney has the right to establish the quuntam meruit of his aarvices by oral evidence in an action for his costs. Paradis v. Bosse. — xxi. 419. 12. Solicitors — Action on Bill of Goats — Set Off- — Mutual Debts — Special Services — Retainer. Held, affirming tho judgment of the Court of Appeal for Ontario, that in an action by a firm of attorneys for co3t3 due from clients the defendants can- not set off against the plaintiff's claim a sum paid by one of them to one of the attorneys for special services to be rendered by him there being no mutuality and the payment not being for the general services covered by the retainer to the firm. Held, per Tascbereau, J. — A decision of the Court of Appeal affirming the judgment of the Divisional Court which refused to allow such set-off is not a final judgment from which appeal will lie to the Supreme Court of Canada. McDougall V. Caraepon, Bickford v. Cameron.— xxi. 373. 101 Counsel. — Rii'lit to recover fees — A/ hy Attor- iiri/-(i(ini'al — JJ (t JJ V. c. JO, 8. J6' — Obtaininy vuyney under falae pretenne». On an indiotment, containing four counts for obtaining money by faiao pretences, was endorsed: "I direct tlwt this indictment be laid before the grand jury. MoNTUKAL, Ctli October, 18H0. " L. O. Loranger, Attorney-General ; by J. A. Mousseau, Q.C. ; C. P. Davidson, Q.C." Messrs. Mouaseau and Davidson wore the two counsel authorized to represent tlie Crown in all the criminal proceedings during the term. A jiotion supported by affidavit was made to (juash the indictment on the ground inter alia, that the preliminary formalities rocjuired by s. '2H of 3'2 ife 33 V. c. 2t(, had not been observed. The Chief Justice allowed tiio case to proceed, intimating that he would reserve the point raised, should the defendant bo found guilty. The defendant was convicted. Held, on appeal, reversing the judgment of the Court of Queen's Dench, that under 32 & 33 V. c. 29, s. 28, the Attorney-General could not delegate to the judgment and discretion of another the power which the legislature had authorized him personally to e-xercise to direct ihat a bill of indictment for obtaining money by false pretenses be laid before the grand jury; and it being admitted that the Attorrey-General gave no directions with reference to this indictment, the motion to (luash should have been granted, and the verdict ought to bo set aside. Abraham! v. The Queen.— vi. 10. 2. Indictment — Misjoinder of counts — Manslauykter — Evidence. An indictment contained two counts, one charging the prisoner with murdering M. J. T. on the 10th November, 1881 ; the other with manslaughter of the said M. J. T. on the same day. The Grand Jury found "a true bill." A motion to quash the indictment for misjoinder was refused, the counsel for the prosecutio i electing to proceed on the first count only. Held, affirming the judgment of the Supreme Court of New Brunswick, that the indictment was sufficient. The prisoner was convicted of manslaughter in killing his wife, who died on the 10th November, 1881. The immediate cause of her death was acute inflammation of the liver, which the medical testimony proved might be occasioned by a blow or a fall against a hard substance. About three weeks before her death (17th October preceding), the prisoner had knocked his wife down with a bottle ; she fell against a door, and remained on the floor insen- sible for some time ; she was confined to her bed soon afterwards and never recovered. Evidence was given of frequent acts of violence committed by the prisoner upon his wife within a year of her death, by knocking her down and kicking her in the side. The following questions were reserved, viz., whether the evidence of assaults and violence committed by the prisoner upon the deceased prior to 103 Criminal Appeal—' 'ontinmul. the loth November or the 17th October, 1881, was properly recoivod, ami' whether the* o wa« any evidence to leave to the jury to suatain t!ie charKo in the lirst count of the indictment ? Held, affirniin>,' the judgment of the Hupronio Court of Now Brunswick, that the ovidonco wan pro[)erly received, and tliat there was evidence to sub- mit to the jury tlmt the dinoaHO which caused her death was produced by the injitries indicted by the prisoner. Theal v. The Queen.— vii. 397. 3. Larceny — Un8tam,}}ed 'promissory note — Valuable security — .U li: 33 V. c. 21 (/).). S. was indicted, tried and convicted for stealing a note for tho payment* and value of ?'2i>8.33, the property of A. MoC. and another. The evidence showed that the promissory note in (juestion was drawn by A. McC. and C. 11., anil made payable to H.'s order. The said note was ^jiven by mistalie to S., it beint4 supposed that tho sum of ?258.33 was due to him by the drawers^ instead of a lows sum of ^'175. 00. The mistalte bein^ immediately discovered, 8. nave back the note to tho drawers, unstamped and unindorsed, in exchange for nuothor note of *jl75.00. An opportunity occurring,', S. afterwards, on the same day stole tho note ; ho caused it to be stamped, indorsed it, and tried to collect it. Held, on appeal, roversin}^ the judj^ment of tho Court of Queen's Bench for Lower Canada (appeal side), that S. was not f^uilty of larceny of " a note" or of " a valuable security" within the meaning; of tho statute, and that the offence of which he was t^uilty was not correctly described in the indictment. Scott Y. The Queen.— ii. 840^, 4. Witness — Contradiction of — New trial. The prosecutrix, in an indictment for rape, was asked in cross-examina- tion, after she had declared she had previously had connection with a man, other than tho prisoner, whether she remembered having been in the milk- house of G. with two persons named M., one after the other. Held, that the witness might have objected, or the judge mij^ht, in his discretion, liave told the witness alio was or she was not bound to answer the ijuestion ; but the court ought not to have refused to allow the question to be put because the counsel for the prosecution objected to t'uo question. Held, also, that since the passing,' of 32 & 33 V. c. 20 s. 80, repealing so much of c. 77, of Cons. Stat. L. C, as would authorize any court of the Province of Quebec to order or grant a new trial in any criminal case ; and of 32 i& 33 V. c. 3G, repealing s. G3 of c. 77, Cons. Htat. L. C, the Court of Queen's Bench of the Province of Quebec has no power to grant a new trial. Laliberte v. The Queen.— i. 117. 5. No right of appeal when conviction unanimous. See JURISDICTION, 8. CA8. DIG.— 13 194 'Criminal Appeal— Cnntinned. ■€. Forgery — Uttering forged order for payment of money — Try- ing for an offence other than the one for which lyrisoner extradited. The prisoner Cunningham was indicted and tried at the October Term, 1884, of the Supreme Court of Nova Scotia at Halifax, Macdonald, C.J., pre- siding. There were three counts in the indictment, charging — 1. That the said James Cunningham did feloniously offer, utter, dispose of and put off, knowing the same to be forged, a certain check or order for the payment of money, which said forged order is as follows, that is to say — No. E. 43400. Halifax, N. S., February 13th, 1884. Merchants' Bank of Halifax: Pay William McFatridge, or order, two hundred and twenty-four dollars and seventeen cents (9224.17.) (Sgd.) LONGARD BROS. And endorsed as follows : *' W. McFatridge." With intent to defraud. 2. That the said James Cunningham afterwards, to wit, on the day and year aforesaid, having in his custody and possession a certain other order for the payment of money, which said last mentioned order is as follows, that is to say — No. E. 43460. Halifax, N.S., February 13th, 1884. Merchants' Bank of Halifax : Pay William McFatridge, or order, two hundred and twenty-four dollars and seventeen cents (8224.17.) (Sgd.) LONGARD BROS. He, the said James Cunningham, afterwards, to wit, on the day and year last aforesaid, at Halifax aforesaid, feloniously did forge on the back of said last-mentioned order a certain indorsement of said order for the payment of money, which said forged indorsement is as follows, that is to say, ' W. McFatridge," with intent to defraud. 3. That the said James Cunningham afterward, to wit, on the day and year aforesaid, feloniously did offer, utter, dispose of and put off, a certain other forged order for the payment of money, which foiged order is as follows that is to say — No. E. 43460. Halifax, N.B., February 13th, 1884. Merchants' Bank of Halifax : Pay William McFatridge, or order, two hundred and twenty-four dollars and seventeen cents ($224.17.) (Sgd.) LONGARD BROS. And indorsed "W. McFatridge." With intent thereby then to defraud. Counsel for the prisoner, before the jury were sworn, pleaded to the juris- diction of the court on the ground that the indictment charged an offence or offences different from that for which the prisoner was extradited, to which plea the attorney general demurred. Judgment was pronounced sustaining 195 Criminal Appeal— Continueil. the demurrer and the trial proceeded. The prisoner was convicted on the first and third :;ouQtB of the indictment, and acquitted on the second. At the close of the trial counsel for the prisoner renewed his applica- tion, and the C. J., agreed to reserve for the opinion of the judges and sub- mitted : — (1) Whether the prisoner was indicted and tried for another and different offence, or other and different offences, than that for which he was extradited at the instance of the Government of Canada ; and if so, whether the court had jurisdiction to try and convict the prisoner of such offence or offences. (2) Whether the evidence on the part of the Crown, as reported herewith, is sufticieut to sustain a conviction on the first and tliird counts of the indict- ment or on either of those counts. The papers put iu evidence on the trial to be considered and read as part of the case. The majority of the Supreme Court of Nova Scotia (Rigby, Smith aud Thompson, JJ., McDonald, C.J., and Weatherbe, J., dissenting). Held, that the prisoner was properly convicted on the third count. (.See 6 R. & G. 31.) On appeal to the Supreme Court of Canada, Held, Per Fournier, Henry and Taschereau, JJ., (Ritchie, C. J., and Strong, J., dissenting), that evidence of the uttering of a forged indorsement of a negotiable check or order is insuf- ficient to sustain a conviction on a count of an indictment charging the uttering of a forged check or order. On the second question reserved, therefore, the judgment of the court below should be reversed and the prisoner ordered to be discharged. Per Ritchie, C.J. — The question raised by the demurrer was not properly before the Court in Appeal, the court below having been unanimous with respect to it. Per Strong, J. — The court below rightly held, on the authority of Bex. v. Faderman (Den. C. C. 572), that the question raised by the demurrer was not properly before the court, the Chief Justice having given judgment on the demurrer overruling it at the trial. Moreover, there was nothing in the law under which the prisioner was extradited to prevent the court from trying him for any offence for which he was, according to the law of the Dominion, justiciable before it. Appeal allowed. Queen y. Cunningham.— 16tb March, 1885. 7. Indictment for perjury — Evidence of special facts — Admissi- hility of. D., in answering to fails et articles on the contestation of a saisie arrit, or attachment, stated, among other things, " Ist, that he, D., owed nothing for his board; 2nd, that he, D., from about the beginning of 1880 to towards the end of the year 1881, had paid the board of one F., the rent of his room, and furnished him with all the necessaries of life with scarcely any exception : 3rd, that he, F., during all that time, 1880 and 1881, had no means of support whatever." D. being charged with perjury, in the assignments of perjury and 196 Criminal Appeal— Co7itinue(l. in the negative averments the facts sworn to by D. in his answers were dis- tinctly negatived in the terms in which they were made. Held, that under the general terms of the negative averments it was competent for the prosecution to prove special facta to establish the falsity of the answers given by D. in his answers on fails et articles, and the conviction could not be set aside because of the admission of such proof. Even if the evidence was inadmissible there being other charges in the r ime count which were pleaded to, a judgment given on a general verdict of guilty on that coimt would be sustained. Downie v. The Queen.— xv. 358. 8. Procedure — Indictment for rape — Conviction for dst^aiUt with intent — Attempt — K S. C. c. 174, «• ^'^'^ — Punishment. An assault with intent to commit a felony is an attempt to commit suoli felony within the meaning of s. 183 of R. S. C. c. 174. On an indictment for rape a conviction for assault with intent to commit rape is valid. On such conviction the prisoner was held properly sentenced to imprison- , ment under R. S. C. c. 162, s. 38. John Y. The Queen. — xv. 384. 9. Felony — Jury attending church — Preacher's remarks — Influ- ence on jury — Expert testimony — Admissibility. In the course of a trial for murder by shooting the jury attended church in charge of a constable, and the clergymen directly addrefisod them, referring to the case of a man hung for murder in P. E. I., and urging them if they had the slightest doubt of the guilt of the prisoner they were trying, to temper justice with equity. The prisoner was convicted. Held, affirming the judgment of the Court of Crown Cases reserved in Nova Scotia, that, although the remarks of the clergyman were highly improper, it could not be said that the jury were so influenced by them ay to affect their verdict. A witness was called at the trial to give evidence as a medical expert and in answer to the crown prosecutor he said, "there are indicia in medical science from which it can bo said at what distance small shot were lired at the body. I have studied this — not personal experience, but from books." He was not cross-examined as to the grounds of this statoment and no medical wituenses were called by the prisoner to confute it. The witness then stated the distance from the murdered man at which the shot must have been lired in the case before the court, and on what he based his opinion as to it, giving the result of his examination of the body. Held, Strong and Fournier, JJ., dissenting, that by his preliminary state- ment, tlie witness had established his capacity to speak as a medical expert, and it not having been shown by cross-examination, or other testimony, that there were no such indicia as stated, his evidence as to the distance at which the shot was fired was properly received. Preeper v. The Queen.— xv. 401. 197 Criminal Appeal— C'(»«f //(«<'(/. 10. Crown cases reserved — R. S. C. c. .(7^, ss. .II^G & 250 — Con- struction of — Juror — Personation of — Irrer/iUarity — Cured by verdict. B., having been found Ruilty of feloniously having administered poison with intent to murder, moved to arrest judt^raent on the ground that one of the jurora who had tried the case had not been returned as such. The general panel of jurors contained the names of Joseph Lamoureux and Moise Lamour- eus. Tiie special panul for the term of the court, at which the prisoner waa tried, contained the name of Joseph Lam.iureux. The sheriff served Joseph Lamoureux's summons on Moise Lamoureux, and returned Joseph Lamour- eux as the party summine.l. Moue Lamoureux ap;jeared in court and answered to tlie namj of Joseph, and was sworn as a juror without challenge when B. was tried. On a reserved case it was Hild, pur Ritchie, C.J., and Taaohereau and Gwynne, JJ., that the point should not have been reserved by the judge at the trial, it not being a question arising at the trial within the raeiining of R. S. C. c. 17i, s. 259. Held, also, per Taschereau and Gwynne, JJ., affirming the judgment of the Court of Queen's Bench, that assuming the point could be reserved, R. S. C. c. 171, s. 21(3 clearly covered the irregularity complained of. Strong and Fournier, JJ., dissenting. Brisebois v. The Queen.— xv. 42L 1 1 Assault on constable in discharge of duty — Serving summons — Tri(d of indictment — Witness — Competency of wife of defemlant—R. S. C. c. 162, s. 34- ; R. S. C. c. lU, s. 216. An assault on a constable attempting to serve a summons issued by a magistrate on information charging violation of the Canada Temperance Act is an assault on a peace officer in the due execution of his duty and indictable under R. S. C. c. 162, s. 34. On the trial of an indictment for such assault the wife of the defendant is not a competent witness on his behalf. McFarlane y. The Queen. — xvi. 393. 12. Criminal law — Indictment — Name of third person — Alias dictus — Proof of names — Variance. Where two or more names are laid in an indictment under an alias dictiis it is not necessary to prove them all. J. was indicted for the murder of A. J., otherwise called K. K. On the trial it was proved that the deceased was known by the name of K. K., but there was no evidence that she ever went by the other name. Held, affirming the judgment of the court below, that this variance between the indictment and the evidence did not invalidate the conviction of J. for manslaughter. Jacobs Y. The Queen.— xvi. 433. 198 Criminal Appeal— Cotuhiued. 13. Error — Writ of — On what founded — Right of Grown to stanul aside jurors when panel of jurors has been gone through — Question of laiv not reserved at tin' rit^lit to recoivo from the liijuidators of the Bank of Prince Edward Island the whole amount due to her ^lajesty, as claimed by the proof thereof, and has only a right to receive dividouds as an ordinary creditor of the above baukinf^ company." On appeal to the Supreme Court of Canada, Held, reversinj^ the judgment •of the court below, 1. That the Crown claiming as a simple contract creditor has a right to priority over otlier creditors of equal degree. This prerogative privilege belongs to the Crown as representing the Dominion of Canada, when claiming as a creditor of a provincial corporation in a provincial court, and is not taken away in proceedings in insolvency by 45 V. c. 23. 2. That the Crown had not waived its right to be preferred in this case by the form in which the claim was made, and by the acceptance of two dividends. The Queen v. The Bank of Nova Scotia.— xi. 1. 16. Grant by Province of B. C. of lands set apart for C. P. Ry. — Illegality of — Title in Crown for Dominion of Canada. See PUBLIC LANDS, 2. 17. Right of, to set up statute of limitations as a defence — Man- damus. See LIMITATIONS, 10. 18. Bond to, for faithful execution of duty bj^ government official — Evidence of execution — Proximate cause of acceptance — Estoppel. See EVIDENCE. 35. 19. Contract for public work — Final e.stimate of chief engineer — Changes in work not included — New contract — Power of engineer to make. See CONTRACT, 35. 201 Crown — Continunl. 20. Crown lands, letters patent for — Sotting nsido — Error and iniprovidento — .Snpei"i; done 80, the land was sold for non-payment. In an action to set aside the tax sale : Held, allirming the judgment of the Court of Appeal, that the Crown having a beneficial interest in the land it was exempt from taxui,lon as Crown lands. R. S. 0.(1887), c. 193, s. 7, ss. 1. QuiFt V. The Queen.— xix. 510. 24. Crown lands, (P.Q.) — Location ticket — Transfer of purchaser's rights — Registration of — Waiver by Crown — License to cut timber— CanccUation of— 23 V. c. 2, ss. 18 & 20 (Q.) ; 32 V. c. 11, s. 13 (Q.); 36 V. c. 8 (Q.). See CROWN LANDS, 1. 25. Crown lands — License to cut timber — Free grants — Patent- Interference with rights of patentee. R. S.0. 1887, c 2.5, s. 3. See CROWN LANDS, 2. 26. Crown lands, taxation of — Sale — Delay in issuing patent. See ASSESSMENT AND TAXES, 24. 27. Liability of — Neglujcnce of servant — Prescription — Arts. 2263, 2267, 21S8, 2211, C. G.—U V. c. 25— R. S. C. c. 38—50-51 V. c. 16, 8. IS — Retroactive operation. Held, reversing the judgment of the Exchequer Court, that even assuming 50-51 V. c. 10, gives an action against the Crown for injury to the person received on a public work resulting from negligence of which its officer or servant is guilty (upon which point the court expresses no opinion), such Act is not retroactive in its effect and gives no right of action for injuries received prior to the passing of the Act. Held, also, that even assuming that under the common law of the province of Quebec, or statutes in force at the time of the injury received, the Crown could be held liable, the injury complained of in this case having been received more than a year before the tiling of the petition the right of action was pre- scribed under Arts. 2262 & 2267 C. C. Per Patterson, J. — The Crown is made liable for damages caused by the negligence of its servants operating government railways by 44 V. c. 25, E. S. C. c. 38, but as the petition of right in this case was filed after the Crown — ContinMil. paaoiiiK of oO-ol V. o, '5, 1»^87, the claimant became subject to the lawa relat- ing to prescription in the province of Quebec, and his action was proscribed. The Queen v. Martin.— xx. 240. 2S. Petition of riffht (P.Q.)—R. S. Q. Art. of)7(J—S1,000 it could not be made without the authority of an ordor in council, and if temporary it was revocable at the will of the Post- niiistev-General. Humphrey v. The Queen.— sx. 591. 32. Prevorjatire — Exercise of by local government — Provincial rifjhtfi. The government of each province of Canada represents The Queen in the exercise of her prerogative as to all matters affecting the rights of the prov- ince. The Queen v. The Dank of Nova Scotia, 11 Can. S. C. R. 1, followed. Gwynne, J., dissenting. Under s. 7.) of the Bank Act, R. S. C. c. 120, the note-holders have the first lien on the assets of an insolvent bank in priority to the Crown. Strong and Taachoreau, JJ., dissenting. (But see the present Bank Act, 53 V. c. 31, 6. .53). Liquidators of the Maritime Bank v. The Receiver-General of New Brunswick. xx. 69.5. 33. Grant of part of foreshore of harbour i^y local government — Conveyance Ijy g)'antee — Claim of dower — Plea that grant void — Estoppel — Act of local legislature continuing title — Crown not expressly named. See ESTOPPEL, 19. Crown Case Reserved. See CRIMINAL APPEALS. 205 Crown Lsinds.—Croion lamU.iP.Q.) — Locutuni tickets — Transfer of patrhdner'n rii/hls — lie;/ ist rat ion itf — Wnirar h;i Crotvn — Cii II eel 1 1 it ion of lice, n si; — .'■! V. c. .J, »/?. /S d; JO — 3J V. ,: n,s. JJ{il)—,iO V.c. S(Q.). A locution ticket of certain lotH wan Kranteil to O. C. 11. in lH('i3. In IH72 O. C II. [Hit on roconl witli tlio ("ro.vn Lan>li4 Dopartniont tliat by iirrrtu^e- meiit with tlie Crown iaiiiln uti^'iit, ho iuvd por'onnecl Hettlonicnt duties on another lot known aH tho lionjeHteail lot. In 1874, O. C. II. transferred his ri^htH to appellant, paid all nionoyM due wit!) interoBt on tho lota, re^iHtercd tho transfer luidiu* 32 V. 0. 11, s IH, and tho Omwn accepted the foes for ro^{iHterinK tho transfer and for tho issuiiitj of tlio patent. In 1878 the com- niissionera canooUcil tho location ticket for dcfaidt to perform settlement duties. Held, rovor8inj» tho jud^jment of tlie Court of Q. B. for L. C. (appeal Bide), that tho retjistration by tho commissioners in 1874, of tho transfer to respondent was a waiver of tlio ri^lit of tho Crown to cancel tho location ticket for default to perform sottlomerit duties, and tho cancellation was illegally effected. Taschoreau, J., ilisaenting. Holland v. Ross.— xix. 506. 2. Crotvn lands (Ont.) — Licenm to cat timber — Free (jriint.-< — Patent — Interference with rifjhts of patentee. By section 3 of R. 9. O. (18S7), c. 25, the Lieutenant-Oovernor in Council may appropriate any public lands ... as free tjrants to actual settlers, etc., and by section 4 such grants or appropriations shall be confined to lands . . . within tho tract or territory defined in that section. By section 10 pine trees on lands located or sold witliin tho limits of the froo crant territory after March 5th, 1880, shall bo considered as reserved from the location, and shall bo tho property of Her Majesty, and section 11 enacts that patents of such lands located or sold shall contain a reservation of all pine trees on tho land, and that any liconaoe to^ut timber thoreon may, durinf' the con- tinuance of hia license, enter upon the uncleared portion and cut and remove trees, etc. The L. Co, held a license, issued May 30th, 1888, to cut timber on land within the free j^rant territory, but which had not been appropriated under section 3 of the above Act. A license was first issued to the company in 1873 and had been renewed each year since that time. Tho license authorized the cutting of timber on lands unlocated and sold at its date ; lands sold or located while it was in force ; pine trees ou lots sold under Orders in Council of May 27th, 18G'J, and pine trees, when reserved, on lota sold under Order in Council of April 3rd, 1880, upon the location described on back oi license. Regulations made by Order in Council of 27th May, ISfiO, provided that " all ^ine trees on any public land thereafter to be sold, whifli at the time of such sale or previously was included in any timber license, shall be considered as reserved from such sale and shall be subject to any timber license covering or including such land in force at the time of such sale, or granted within three years from the date of such sale, etc. All trees remaining on the land at the 206 Crown Lands--' '""<'»i»w/. tiinu tliu pntvnt iiHUOH hIiaII pafli to tlio patontoe. A (latcnt for a lot in the (reu f;rant territory wax iMHiicd to H, on IHtli Marcii, 1HH4. On tho baolt of the liccnao wai a •olicdiilo of lotH inoludfd in tiie looatioii with tlio date of Halo or location, an{ulatiiinH of 27th May, IHIV.t, to tho timber on land patented in 18Nt, and that tlie company had notice, by their license of 1888, that tho lot in question had been patented to U. more than three years previously. Lakefleld Lumber and Mfg. Co. v. 8hairp.~xi.\. C57. 3. Taxation of — Sale — Delay in issuinf^ patent. See ASKESSMENT AND TAXES, 24. 4. Rhjht of pre-emption — Lauds reserved — Ayricultm'al settlerH —47 V. c. U {B.C.). By 47 V. 0. 14,8-H. (/.), (B.C.) certain land conveyed to the E. A N. Ry. Co. waa, for four years from tho date of tho Act, thrown open to the actual "settlers for a(;rioultural purposes," coal and timber land excepted. H. and W. respectively claimed a right of pre-emption under this Act. Held, affirming the decision of tho Supremo Court of British Columbia, that the Act did not confer a right of pre-emption to lands not within the pre- emption laws of the province ; that only " unreserved and unoccupied lands " came within those laws and tho lands claimed had long before been reserved for a town site; and that the claimants were not upon the lands as "actual settlers for agricultural purposes," but had entered with express notice that the lands were not open for settlement. Hoggan V. Esquimault & Nanaimo Ry. Co., Waddington v. Esquimault & Nanaimo Ry. Co. — xx. 235. [In the case of Ilogyan v. Esquimault db Nanaimo Railway Co. an applica- tion made to the .Judicial Committee of the Privy Council for leave to appeal has been granted, and the appeal stands for argument — May 15th, 1893.] Curator— To substitution — Rights of action — Art. 154, C. C. P. See SUBSTITUTION, 3. 2. To Substitution — Action to account — Indivisibility of — Pur- chase by curator — Art. 1484, C. C. Sie ACCOUNT, 5. WILL, 21. 207 Custum and Usage. .S<.,' PEWHOLDKIt. 1. Custom of Paris— ArtH. 27}), 282 & 283. .SVe COMMUNITY. Customs Duties — Arfirh' iniporffd iv portH — Rate of (/. from there within the tiw^ limited by law for ^oods in transit to remain in a warehouse; and that no act had been done changing; its character during transit, it was therefore "tea imported into Canada from a country other than the United States but passing in bond through the United States " and under 3. 10 of the Act relating to duties on Customs (R. S. C. c. 33) not liable to duty as goods exported from the United States to Canada. [But see now 52 V. c. 14 (D.).] Present : — Sir W. J. Ritchie, C.J., and Strong, Taschereau, Gwynne and Patterson, J J. Carter, Macy & Co. v. The Queen. — xviii. 706. Cy Pres, Doctrine of — Reference to master to i-eport scheme for administration of charitable fund. See CHARITABLE TRUST. D. Dam— Demolition of— Arts 1918, 1920 C. C— Report of expert- Motion to hear further evidence — C. S. L. C. c. 51. See TRANSACTION. 2. Damage to land by construction of dam — Prescription — Pos- session—Arts 503, 549, 2193 C. C. See RIPARIAN PROPRIETORS, 4. Damages — For disturbance in enjoyment of pew. See PEWHOLDEB, 1. 2. Action of trespass for assault, against Speaker of N. S. Legisla- ture. See LEGISLATURE, 9. 3. For trespass to wharf. See NUISANCE. 4. For breach of contract for delivery of goods. See CONTRACT, 1. 209 Damages — Continued. 5. For unlawful arx'est. See CAPIAS. 6. Special and vindictive — Duty of appellate court. See JURISDICTION, 5. 7. Rent, less of, as. See CONTRACT, 4. 8. Apportionment of in case of collision. See MARITIME COURT OF ONTARIO, 2. 9. Lii^uidated by provision in contract. See PETITION OF RIGHT, 1. 10. Resulting from breach of contract with government. Sec PETITION OF RIGHT, 8. 11. Excessive. See FISHERY OFFICER, 2. LIBEL, 7. 12. Measure of— Breach of contract with captain of vessel. See CONTRACT, G. 13. At sea. See SHIPS AND SHIPPING, 5. 14. To ship. Sec SHIPS AND SHIPPING, 4. 15. Special — Exce.ssive. See LIBEL. 16. For breach of agreement; to be recovered by petition of right —Judgment obtained against joint misfeasor— Etfect of^in reduction of damatres. See PETITION OF RIGHT, 15. 17. Excessive— Application for new trial. See CORPORATIONS, 2.S ; JURISDICTION, 22. c.\.s. Dio. — 14 210 damages — Continued. 18. Light and air, interfering with. nee EASEMENT, 3. 19. Action on the case — Injunction, declaration alleging order for, obtained onallciousl]/ — Demurrer. Action for maliciously obtaining an ex parte injunction order from a judge, whereby the plaintiff was restrained from disposinj^ of certain lumber, in consequence of which he had sustained damage as was alleged. The declaration set out that plaintiff was possessed as of his own pro- perty of certain lumber, the defendants wrongfully, improperly, mnliciously and without any reasonable or probable cause, and without any notice to plaintiff made an ex parte application to a judge of the Supreme Court of New Brunswick for an injunction in a suit commenced by them in said Supreme Court on the equity side, in which suit defendants were plaintiffs and the now plaintiff with others were defendants, and procured from said judge an fx parte order of injunction whereby, etc., which order defendant caused to be served on plaintiff; that plaintiff afterwards appeared to the said suit and put in his answer, but defendants did not futther prosecute their suit, which was dismissed with costs and the order of injunction became of no further effect ; that by reason of obtaining and service on plaintiff of said order he was hindered and prevented from manufacturing, etc., said lumber for a long space of time whereby said lumber was greatly injured and part thereof lost and the plaintiff lost large gains, etc. To this declaration plaintiffs demurred. The demurrer was sustained by the Supreme Court of New Brunswick. (See 2 Pugs. & Bur. 4G9.) On appeal to the Supreme Court of Canada, Held, afdrming the judgment of the court below, that the declaration disclosed no cause of action. By the statute of New Brunswick, 2 Revised Statutes, p. 77, such an order is granted on a sworn bill, or on the bill and an affidavit, and may be granted ex parte, subject to be dissolved on sufticient ground shown by aftidavit on the part of the defendant. Here there was no allegation that the injunc- tion was dissolved, or that any application was made for its dissolution, or that the order was obtained by any nig (jestio falsi, or mpprestin veri on the part of the plaintiff, and for aught that appeared in the declaration, the judge exercised a sound discretion in granting the order. Appeal dismissed with costs. Collins Y. Everltt.— 12th December, 1879. 20. Adjoining land owners — Where defendant has allowed cellars to remain after building destroyed — Damage from tvater collecting in them and running against wall of house built by 2>htintijf- — Whether defendant liable — Action on the case — Declaration — Non-suit. The plaintiffs owned a building lot in the city of St, John on which they excavated a cellar and foundation, and built a large and valuable 211 Damages— Contmtied. building;. The soil of the bottom of the cellar and under the foundation was clay. The defendants owned the adjoining lot, on which, in 1848, (the time their ancestor, Stephenson, purchased it) there was a house. There was a cellar under the house adjoining the plaintiff 's land. S<- .phensnn, or his tenant dug another cellar joining the first one, and put i;p another house on the same lot. Those houses stood until 1871, when they were burned, leaving the cellars uncovered, thus making one large uncovered hole, bounded on the west by Charlotte Street, and on the north by the plaintiff's lot. These holes collected large quantities of water in them from the street and from the surface, and also by percolation from the land adjoining. When the plaintiff's house was built, the cellars being co-terminous with the foundation of the plaintiff's buildmg, and the soil being clay, these holes retained the water until it gradually softened the clay under plaintiff's foundation wall, and also gradu- ally destroyed the foundation of the wall itself, and escaped in that way into the plaintiff's cellar, and thereby caused the side of the plaintiff's building to settle, and the building itself to topple over and damaged it to a large extent. The declaration contained two counts. The first count for wrongfully, carelessly, negligently and improperly removing the earth and soil of the defendant's lot, and negligently continuing it so removed so that there remained holes and excavations, which the defendants so negligently man- aged and left uncovered that large quantities of water collected and remained in the holes, which they permitted to flow and escape against, under and through the plaintiffs' foundation wall and thereby did damage. Second count. The defendants improperly and negligently collected water, etc., and by their carelessness caused it to flow into the plaintiffs" premises and did damage. The only plea was the general issue of not guilty. A rule for a non-suit pursuant to leave reserved at the trial was made absolute by the Supreme Court of New Brunswick, on the ground that damage and injury must l;oth concur to afford a party a right of action, and the evidence showed only an ordinary and legitimate use of the defendants' own land, which did not constitute an injury, and therefore they were not liable: See 2 Pugs. & Bur. 523. On appeal to the Supreme Court of Canada, Held, that the declaration did not cover the appellant's case, and therefore the non-suit was correct. Appeal dismissed with costs.. The Trustees of the St. John Young Men's Christian Association v. Hutchinson, et. al. --23rd February, 1880. 21. For breach of contract to sell on cominission. See CONTRACT, 10. 22. For breach of contract for sale of goods. See SALE OF GOODS, 10. 212 Damages— Continued. 23. Damages, action for — Rule for estimating — Finding of judge of first instance not considered excessive — Defendant's abuse of authority as Justice of the Peace. The plaintiff by his declaration alleged : That, in the city of Three Rivers, on or about the fifteenth day of the month of June, 1878, the plaintiff sold to defendant a cart-load of wood, for the price of forty cents, which the defendant agreed to pay plaintiff in cash : That the plaintiff went immediately and laid the said wood in the yard of the residence of defendant : That when plaintiff asked defendant for payment the defendant refused and told phiintiff to go and immediately take his wood away if he would not wait for his payment : That then plaintiff returned peaceably to the yard of defendant and began to replace the said wood in his cart to take it away, and that when he was about to finish reloading his cart defendant entered the yard and abused plaintiff, calling him a thief, and threatening to have him arrested and imprisoned for theft if he did not leave the wood in the yard : That the defendant, abusing his capacity of magistrate, or justice of the peace, sent for some policemen or constables to have plaintiff imprisoned for theft : That in fact, two policemen or constables arrived immediately on the spot, and conformably to the order and command of the said justice of the peace, the defendant, summoned the plaintiff to unload his cart and leave the wood in the yard, and if not, they would arrest and take him a prisoner for theft : That the plaintiff at that oraer answered he was ready to leave and deliver the said wood to defendant, on condition that the latter would consent to give him the price of it ; but as defendant was not willing to pay him immediately, lie (the plaintiff) was not obliged and was not willing to leave with him the said wood, that he could not do so. because he wanted some money to provide for his own wants and those of his family : That in obedience to the orders of defendant, the said r- -"licemen arrested plaintiff and took measures to hold his person and treat him like any other prisoner, but consented that plaintiff, before being taken to jail or to a magistrate, should take care of his horse and cart and put them out of the yard of the defendant : That for the purpose of taking his cart out of the yard, plaintiff took in his right hand the reins and put his left hand on the forepart of the said cart to be nearer the said cart and not be hjirt by the posts of the gate of the yard, and afterwards made his horse slowly advance towards the gate of said yard : That plaintiff was then on the left side of the said cart and his left hand was lying on the end of the frame of the said cart, lying on the back of the shaft of the said cart, on the left side : That the said cart being an upsetting one and then heavily loaded, was kept from upsetting by a stick or piece of wood passed through an iron cramp fixed to the right shaft and rising over the frame (right side) of the said cart through a mortise in the said frame : That while plaintiff was advancing his cart out of the yard, defendant went to the right side of the cart and maliciously, and knowing that his action would cause to plaintiff grevious bodily harm, violently pulled out the stick or piece of wood passed in the said cramp and by so doing upset the said cart and caused the middle finger of plaintiff's left hand to be bruised, torn and pulled out in the middle of the third phalanx, the bone being fractured at the root of the nail and all the 213 Damages— C'outinihii . part of the said flnuer, from thore to the end of the said finger, being (VJnipletely separated from the rest oi the said finger, and caused all the other fingers and said plaintiffs left hand to be horribly bruised, broken and fractured : That in conseijuence thereof the amputation of the said middle finger of the plaintiff's left hand became necessary, and a short time after said amputation lockjaw set in, and he for a long time suffered all the convulsions and horrible pains of said disease, and was confined to bed for nearly a month, his life being despaired of, and he was rendered incapable of earning bread for his family, and was permanently disabled from using his left hand. For these various injuries to his feelings, reputation and health he claimed as damages $4,000. The Superior Court at Three Rivers (Polette, J.) was of opinion the plain- tiff had proved these allegations, and assessed his damages at §3,000. On appeal to the Court of Queen's Bench, that court reduced to $000 the amount of damages allowed to plaintiff and condemned him to pay all the costs of appeal. On appeal to the Supreme Court of Canada, Held, Taschereau, J., dissent- ing, that in view of the very serious injuries sustained by the plaintiff and of the misconduct of the defendant, who appears to have abused his position of a Justice of the Peace, the amount awarded by the judge of first instance was not so clearly excessive as to justify the pronouncing his judgment erroneous. Per Taschereau, J. — Though the amount awarded by the Court of Queen's Bench was not sufiicientlj" large, yet taking into consideration the position of the plaintiff and the nature of the injuries S3,000 was excessive. Per Fournier, J. — The abuse by the plaintiff of his position of Justice of the Peace was an important element to be taken into consideration in fixing the amount of damages. Per Gwynne, J. — The sound rule to adopt is that in mere matters of fact, or in the estimation of damages not capable of precise calculation, or not ascertainable by the application of any rule prescribing a measure of damage, this court should sustain the judgment of the judge of first instance, unless satisfied that his conclusions are clearly erroneous. Levi V. lieed 6 Can. S. C. R. 482 (See Jurisdiction, 5) approved. Appeal allowed with costs in Court of Queen's Bench and Supreme Court. Gingras y. Desilets.— 11th February, 1881. 24. Action of, against Telegraph Co. for cutting trees. See TRESPASS, 7. 214 Damages — Cimtimud. 2o. Action of (I(un(ir/('fi for mdlicloHfi proceed in r/.9 in infiolvevri/ — JJeniarrers, jiuhfriievt un ichen not final not (ippeaUthh — Pleddina — Trespum — Order hij jiuhje of court heloiv direct- in(j payment of part of verdict as condition of stay of execu- tion illefj(d — Leave granted to appeal on whole case — — Security allowed. An action for malicious proceedings in insolvency. Tlie declaration contained eight counts. " 1. For that the defendants falsely and maliciously, and without reason- able or probable cause, on the 18th day of April, 187'J, caused and procured a writ of attachment under the Insolvent Act of 187-'> and amendint; Acts, to be ifisued against the estate and effects of the plaintiff, who was then a trader, saloon-keeper and miner, residing and carrying,' on business in Cariboo, and in manner aforesaid caused and procured the said writ to be served upon the plaintiff, to be published, and the plaintiff's real and personal property, goods and effects, to be taken from him ; and after tlie issue of the said writ, and within five days from the service thereof, the plaintiff duly presented a petition to the jnd^e authorized to act in the premises, hereinafter called Ihe County Court Judge, praying that the said writ and the attachment made thereunder might be set aside ; and such proceedings were thereupon had, t):at afterwards the said County Court Judge dismissed the said petition with costs, and directed the proceedings in insolvency to go on ; that thereupon the plain- tiff duly appealed from such decision to the Supreme Court, and such proceed- ings were thereupon had, that afterwards, on the 27th day of February, A.D., 1880, the said Supreme Coui't ordered that the said decision be set aside and condemned the defendants in the costs of appeal* and the proceedings on the said writ were thereupon then ended and determined, and by reason of the premises, the plaintiff was put to inconvenience and anxiety, and incurred great pain and distress of body and mind, and was prevented from transacting his business, collecting his debts, and lost many of his debts by reason of being so deprived, as aforesaid, for a long time, of the opportunity of collecting the same, and was injured in his credit, and his business became and was destroyed, and he incurred great expense in taking and defending the several legal proceedings hereinbefore mentioned, and in re-possessin}» himself of his estate, and in journeying from Cariboo to Victoria and back for the further- ance of his interests in the premises, and in attending to the said legal proceedings ; and his property, while out of the plaintiff's possession, became damaged and deteriorated in value, and the plaintiff has been otherwise greatly injured.'' 2. The same as the first count as far as tlie asterisk ; it then proceeds as follows : " And afterwards the said County Court Judge, on the 8th day of May, A.D. 1880, having complete jurisdiction in that behalf, ordered that the said writ of attachment be set aside and annulled ; that thereupon the defendants appealed from the said order, and on the 26th day of May, 1880, caused the appeal to be set down for hearing on the 14th day of June, A.D. 215 Damages — Continued. ISSO, before the Supreme Court. That on the 14th day of June, 1880, it was considered by the said Supremo Court tliat the defendants had not proceeded with their appeal accordiiin to the law or the rules «;f prectice, and, on the application of the plaintiff, the said Supreme Court ordered that the record (if any) be returned to the officer entitled to the custody thereof, and con- demned the defendants to pay the plaintiff the costs by him incurred in the matter of the said appeal." Conclusion, as in the first count, from asterisk. " 3. And the plaintiff also sues the defendants for that a writ of attach- ment on the 18th day of April, 187i(, having been sued out under the Insolvent Act of 187f) and amending Acts by the defendants against the estate and effects of tho plaintiff, who was then a trader, saloon-keeper and minor, residing and carrying on business in Cariboo, which writ was duly served upon the plaintiff, and whereby tlie plaintiff's real and personal property, goods and effects were seized and taken from him, the plaintiff after the issue of the said writ and within five days from the service thereof duly presented a petition to the judge duly authorized in that behalf hereinaftei' called the County Court Judge, praying that the said writ and the attachment made thereunder might be set aside, and the said petition came on for hearing before the said County Court Judge on the loth day of May, 1879 ; and the defendants maliciously and %vithout reasonable or probable cause appeared before the said County Court Judge, and opposed the said petition and caused and procured the said County Court Judge to decline to hear or adjudicate upon tlie said petition. That afterwards the plaintiff obtained a summons from one of the judges of the Supreme Court, calling upon the said County Court Judge and upon the defendants to show cause why the said County Court Judge should not proceed to hear and adjudicate upon tho said petition, and on return of the said summons, to wit, on the 8th day of September, A.D. 187'J, the defendants maliciously and without any reasonable or probable cause opposed the application, and thereupon the said Supreme Court Judge on the said 8th day of September, 1879, ordered the said County Court Judge to proceed to hear and adjudicate upon the said petition. And thereupon the defendants maliciously and without reasonable or probable cause appealed from such last mentioned order to the Supreme Court, but the said Court on the 25tli day of September, 1879, confirmed the said last mentioned order and dismissed the said appeal. That afterwards in pursuance of the said last mentioned order the said petition came before the said County Court Judge for hearing, and the defendants again maliciously and without reasonable or probable cause appeared upon the hearing of and opposed the said petition, and caused and procured the said County Court Judge on the 31st day of October, 1879, to dismiss the said petition with costs and to direct the pro- ceedings in insolvency to go on. That thereupon the plaintiff duly appealed from the said last mentioned decision to the Supreme Court, and upon the hearing of tho said appeal the defendants again maliciously and without reasonable or probable cause appeared and opposed the said appeal, but the 216 Damages — Continueil. said Supreme Court on the 27th day of February, A.D. 1880, act aside the decision of the said County Court Jud>?e of the Slst day of October, 1870." • Conclusion as in first count from asteriHk. 4. The same as third count down to asterisk, it then continued as follows : — "And thereupon the plaintiff applied to the said County Court Jud;,'e in liursuanco of the said petition to set aside and annul the Haid writ, and the nttiichment made thereunder, and the defendants ajjain maliciously and with- out any reasonable or probable cause, appeared before the said County Court Judt^e and opposed such application, but the said County Court Judge, after hearing the said application, made an order settinj^ aside and annulling the said writ and attachment, and thereupon, the defendants maliciously and without reasonable or probable cause, ap))ealed from the said last mentioned order of the 8th day of May, 1880, to the Supreme court, and on the 2Gth day of May, 1880, caused the appeal to be set down for hearing on the 14th day of June, 1880. That on the said ]4tli day of June, 1h80, it was considered by the Supreme Court, that the defendants had not proceeded with their said appeal according to law or the rules of practice, and on the application of the plaintiff, the said Supreme Court ordered that the record (if any) be returned to the officer entitled to the custody thereof, and condemned the defendants to pay the plaintiff the costs by him incurred in the matter of the said appeal." Conclusion is in the other counts. 5. " And the plaintiff also sues the defendants for that, after the issuing of tlie writ of attachment as in the tliird count mentioned, the defendants maliciously and without any reasonable or probable cause, caused, advised and procured divers alleged creditors of the plaintiff to prove their alleged claims against the plaintiff, and caused, advised and procured such creditors to support the writ of attachment, and the said writ was determined as iu the tliird count mentioned, and by reason of the premises the said writ of attach- ment remained in force for a longer time than otherwise it would, and the plaintiff was put to inconvenience and anxiety, etc. Conclusion as in other counts. 6. The same as the fifth count, except that it refers to the issuing and determination of the writ " as in the fourth count mentioned." 7. "And the plaintiff also sues the defendants for that at the time of the grievance hereinafter mentioned the plaintiff was a trader, saloon keeper and miner, residing and carrying on business in Cariboo, and the defendants maliciously, and without any reasonable or probable cause, caused and pro- cured the plaintiff's houses, situate at Cariboo, to be entered and the plaintiff to be dispossessed thereof for a long time, and his goods and chattels, mines and books of account to be seized and taken from him, and the plaintiff to be deprived of the use and enjoyment of the same respectively for a long time, and by reason of the premises the plaintiff was put to inconvenience and anxiety, incurred great pain and distress of body and mind, was prevented from transacting his business, collecting his debts, and lost many of his debts 217 Damages — Cimtinucd. by reiiRou of beiii>{ ho deprived aa aforesaid for a long time of the opportunity of collecting' the same, and was injured in his credit, and his busineHs became and wftK desttoyed during the time the plaintiff was so dispossessed and depriveil of the said houses, mines, goods and chattels, and the same became greatly deteriorated in value, and the plaintiff incurred great expense in ru-possesBiiig himself of the said houses, mines, and books of account, goods and chattels, and was otherwise greatly injured." "8. And the plaintiff also sues the defendants for that the defendants with force and arms broke and entered the plaintiff's houses and mines at Cariboo, dispossessed the plaintiff thereof respectively, and remained therein and in possession thereof respectively for a lon)^ time, to wit : eighteen calendar months, and also seized and took and for the time aforesaid detained and dispossessed the plaintiff of all his books ol accounts, goods, chattels and effects, consisting principally of merchandise and furniture, whereby the plaintiff for and during all that time lost and was deprived of the use of the said houses, mines, goods, chattels and effects, and thereby the same became and were greatly damaged, lessened in value and spoiled, and divers of the plaintiff's book debts were lost." " And the plaintiff claims thirty thousand dollars." The defendants pleaded not guilty, and pleas tx'aversing the allegations in the several counts, and, as to the seventh and eighth counts, justifying under the writ of attachment. They also demurred to all the counts, except the seventh and eighth. The issues of fact were tried before the Chief Justice, Sir M. B. Begbie, and a special jury on the 2nd and 3rd of June, 1881, when the jury returned a verdict as follows: "we find a verdict for the plaintiff and award him no damages before the ICth of May, 187'J. Subsequent to that date we award him S5,000." Tiie demurrers were argued before Sir M. B. Begbie and Mr. Justice Crease on the '27th day of June, 1881, and were over-ruled. Upon the same day (the 27th June) the plaintiff moved for judgment in conformity with the verdict of the jury, which the Chief Justice pronounced ordering the plaintiff to take judgment for §5,000 with costs. On the 11th of July, 1881, the Chief Justice granted the defendants a slay of execution until the cause could be re-heard before the full court of British Columbia, on condition of the payment of §1,000 and taxed costs to the plaintiff. On application to one of the judges of the Supreme Court of Canada, the defendants were permitted to deposit ?500 in that court as security for the costs of appeal. The defendants thereupon brought their appeal to the Supreme Court of Canada, but confined it to the judgment on the demurrers, and did not appeal from the judgment of the Chief Justice ordering judgment to be entered on the verdict, being probably under the impression that that judgment should 21H D&Tmges—Ciintinuiil. be lu'iiril before tlie full court of British Columbin before an appeal would lie therefrom to the Hupreme Court of Caimda. The "case" contained the proceeclinme of the pruHH, as for ({oodii bou^lit and Hold ; and thu rosnlt waH that tliu phiin- tiffH' action was diamisacd, and tlio jud){ment dimiiHHin;^' it wuti conllrnied in tiiu Court of Ruview. Durin>{ tlio time the above-mcntionod suit was pcndin>{, defendants (who ln\d ^'iven a friund as ){uar as the costs and expenses of taking down, packing, loading and removing said press and appurtenances to Now York, including the froij^ht and other necessary charges thereon, defendants having agreed to deliver the said press free on board, freij^ht paid to Now York. Defendants fyled severally dilatory exceptions under Article 120 of the Code of Civil Prooedure, sub-section 7, setting up that plaintiffs were not resident iu the province and that no power of attorney from them bad been produced. These exceptions were dismissed by the Superior Court of Lower Canada. (Rainville, J.) The defendant's pleas to the merits raised only issues of fact. The Superior Court (Jettc, J.) gave plaintiffs 82,000, in consequence of the deterioration and damages caused to the press, and a further sum of ^160.50 for cost of transport. This judgment was confirmed by the Court of Queen's Bench for Lower Canada (appeal side). On appeal to the Supreme Court of Canada, Held, that the judgments of the courts below should be afiQrmed (Henry, J., dissenting). Appeal dismissed with costs. Mullin Y. Hoe.— 17th February, 1885. 221 Damages — Continiud. ;n. Action ii^iiiiiHt nmtiicipal corponitiun for ilefoctivo linnipiUiy — V-i W c. 61 (^D.),.y land owner in city of Queliec at^'ainst corporation for authorising use of streets Ity North Siiore Railway Co. ,SVt' CORPORATIONS, 21. 37. Street railway — Defective track — Accident. See RAILWAYS AND RAILWAY COMPANIES, 'J3. 3S. Railway Company — To husband by loss of wife — To children by loss of mother. See RAILWAYS AND RAILWAY COMPANIES, 24. 39. Corporation — Liability for damages cau.sed by defective side- walk. See CORPORATIONS, 2;{. 40. Ralhcay — Agreement by mmiicipal corporation to take stock and to pay for in debentures — Breach of Ayreement — Rtyht to sue for special damayes — Arts. 1066, 1070, 1073, 1077, mo & is.il, a a (p.q.) The Corporation of the County of Ottawa umler the authority of a by-law undertook to deliver to the Montreal, Ottawa and Western Railway Company for stock subscribed by them 2,000 debentures of the corporation of 5100 each. 222 Damag^es — ( 'imtimieil. payable tweuty-five years from date and bearing six per cent, interest, and subsequently, without any valid cause or reason, refused and nej^lected to issue said debentureis. In an action brout^ht by the company against the corporation solely for damages for their ncf^lect and refusal to issue said debentures, Held, affirming the judgment of the court below, that the corporation, apart from its liability for the amount of the debentures and interest thereon, was liable under Arts. lOfio, lOTS, 1840 and 1841, C. C, for damages for breach of the covenant. Ritchie, C.J., and Gwynne, J., dissenting. Corporation of County of Ottawa v. Montreal, Ottawa & Western Ry. Co. — xiv. 193. 41 . Rail way company — Accident — Negligence — Wharf — Ferry — Dainage.s increased by adding interest from date of demand. See PAILWAYS AND RAILWAY COMPANIES, 26. 42. Dead freiglit — Amount of agreed freight which would have been earned on deficient cargo. See SHIPS AND SHIPPING, 8. 43. Nominal damages — Court will not grant new trial when defend- ant entitled to, for technical breach of contract. See NEW TRIAL, 15. 44. Negligence in management of ferry under control of corporation. See MUNICIPAL CORPORATION, 7. 45. Misdirection as to solatmra — Keiv Trial— Art. 1056, C. C. In an action of damages brought for the death of a person by the consort and relations under Art. lOoO, C. C. which is a re-enactment and reproduction of the Con. Stat. L. C. c. 78, damages by way of solatium for the bereavement suffered cannot be recovered. Judgment of the court below reversed and new trial ordered. Canadian Pacific Ry. Co. v. Robinson.— xiv. 105. 46. For interference with servitude — Art. 557, C. C. See SERVITUDE. 47. Art. lOoG, C. C. — Solatiuvi — Crons-appeal — Notice. In an action for damages, brought against the corporation of the city of Montreal by Z. L, et al., the descendant relations of L., who was killed driving down St. Sulpice street, alleged to have been at the time of the accident in a bad state of repairs, by being thrown from the sleigh, on which he was seated, against the wall of a building, the learned judge, before whom the case was 223 Damages — (.'untimted. tried without a jury, granted Z. L. et al. $1,000 damages on the ground that they were entitled to the said sum by way of solatium for the bereavement suffered on account of the premature death of their father. Held, reversing the judgment of the Court of Queen's Bench for Lower Canada, appeal side, that the judgment could not be affirmed on the ground of solatium, and as the respondents had not filed a cross-appeal to sustain the verdict on the ground that there was sufficient evidence of a pecuniary loss for which compensation could be claimed, Z. L. et ul.'s action must be dismissed with costs. City of Montreal y. LabfUe.— March 2nd, 1888— xiv. 741. See DAMAGES, 45. 48. Railway company — Sparks from engine — Defective engine — Negligence. See RAILWAYS AND RAILWAY COMPANIES, 40, 49. Elevator — Negligence of emjyloyees — Liability of landlord — Damages — Art. 1054, G- G. — Vindictive damage? — Croas- ajJj^eal. On the 13th April, 1883, C, an architect who had his office on the third Hat of a building in the city of Montreal, in which the landlord had placed an elevator for the use of the tenants, desiring to go to his office, went towards the door admitting to the elevator, and seeing it open entered, but the elevator not being there he fell into the cellar and was seriously injured. In an action brought by C. against R., the landlord, claiming damages for the injury suffered, it was proved at the trial that the boy, an employee of R. in charge of the elevator at the time of the accident, had left the elevator with the door open to go to his lunch leaving no substitute in charge. It was shown also that C. had suffered seriously from a fracture to the skull, had been obliged to follow for many months an expensive medical treatment and had become almost incapacitated for the exercise of his profession. C had been in the habit of using the elevator during the absence of the boy. The trial judge awarded C. ?.5,000 damages, and on appeal to the Court of Queen's Bench (appeal side), P.Q., that amount was reduced to S3, 000 on the ground that C. was not entitled to vindictive damages. On appeal to the Supreme Court of Canada : — Held, affirming the judgment of the court below, that R. was liable for the fault, negligence and carelessness of his employee, and that the amount awarded was not unreasonable. Held, also that the sum of $5,000 awarded by the Superior Court was not an unreasonable amount and could not be said to include vindictive damages, but as no cross-appeal had been, taken the judgment of the Superior Court could not be restored. Stephens y. Chausse,— xv. 379. 224. Damages — Continued. 50. Municipal corporation — Construction of crossing — Elevation above level of street — Negligence. See MUNICIPAL CORPORATION, 10. 51. Railway accident, action of damages for — Death of plaintiff — Aliatenient of action — Actio personalis tnmntur cum persond — Lord Campbell's Act — C. S. N. B. c. 86 — No cause before the court and appeal (juashed. See ACTION, 5. 52. Railway company, death caused by negligence of, running thr), followed. Persons carryinf^ on a mercantile agency are responsible for the damages caused to a person in business when by culpable negligence, imprudence or want of KRill, false information is supplied concerning his standing, though the information be communicated confidentially to a subscriber to the agency on his application therefor. Cossette v. Dun.— .wiii. 222. 58. Solicitor and client — Negli<^ence of solicitor in not registering judgment. See SOLICITOR AND CLIENT, 5. 50. Dor/ — Injury committed by — Ownership — -Scienter — Evidence for jury. W. brought an action for injuries to her daughter committed by a dog owned or harboured by the defendant V. The defence was that V. did not own the dog, and had no knowledge that he was vicious. On the trial it was shown that the dog was formerly owned by a man in V.'s employ who lived and kept the dog at V.'s house. When this man went away from the place he left the dog behind with V.'s son, to be kept until sent for, and afterwards the dog lived at the house going every day to V.'s place of business with him, or his son who assisted in the business. The savage disposition of the dog on two occasions was sworn to, V. being present at one and his son at the other. V. swore that he knew nothing about the dog being left by the owner with hia son until he heard it at the trial. The trial judge ordered a non-suit, which was set aside by the full court and a new trial ordered. Held, afiirming the judgment of the court below, that there was ample evidence for the jury that V. harboured the dog with knowledge of its vicious propensities and the uon-suit was rightly set aside. Present.— Sir W. J. Ritchie, C.J., and Strong, Taschereau, Gwynne and Patterson, J J. Yaughan y. Wood.— March lOth, 1890— xviii. 703. CA8. DIO.— 15 220 Damages — Cimtmued. 00. Coininon carrier — Special contract with — Bagf^f^ge " at owner's risk against all casualties " — Exemption from liability. See CARRIERS, 5. 01. Damages to property from works executed on govei-nment railway — Parol undertaking to indemnify owners by officer of the Crown — Effect of. See CONTRACT, 47. 02. Fall of wall after fire — Negligence — Vis inajur — Art. 17, s-s. 24, 1053, 1055, 1071, C. C. See EVIDENCE, 31. 03. Libel — Special damage — Loss of custom — Pleading. See LIBEL, G. PLi.\DING, 20. ()4. 43 V. c. 8 — Government railways — Injury by overflow of water. See CROWN, 30. 05. Road company — Collector of tolls — Negligence — Liability of company-. See NEGLIGENCE, 37. 06. To passenger by breaking of rail — Liability of railway company for latent defects— Arts. 1053, 1075, C. C. Sec RAILWAYS AND RAILWAY COMPANIES, GO. 67. Libel in ncwspapei' — Action for — Additional libel in plea — Excessive d.nages — Alternative of reduction of, or new trial. See LIBEL, 7. 68. Expropriation of land for railway purposes — Value of land for l)uilding purposes — Damages resulting from want of crossing. See EXPROPRIATION, 17. 69. Discharge of steam from engine — Nuisance — "Sic utere tiio ut alienu'ni non kjedas." See NEGLIGENCE, 39. 227 Dead Freight. See SHIl'S AND SHIPPING, 8. Debats de Comptes. See EXECUTORS. 1. EVIDENCE, 8. Debentures — Issued by trustees under statutory autlun-ity. See PETITION OF RIGHT, 6. 2. Joint purchase of. See PARTNERSHIP, 2. 3. Agreement by municipal corporation to pay for stock in rail- way company^Breach — Special damages. See DAMAGES, 40. 4. Issued Ijy municipality after compliance with conditions pre- cedent to by-law — Railway company entitled to, free from future conditions on their face — Municipal Code, (P.Q.), Art. 982. See CORPORATIONS, 33. 5. Municipal aid to railway company — Debentures signed by warden de facto — 44 & 45 V. c. 2, s. 19 (Q.) — Completion of railway line — Evidence of. See RAILWAYS AND RAILWAY COMPANIES, 52. Debtor — Appropriation 1 )y. See PAYMI':NT, .'). ' 2. Assignn)ent in trust for ci'editors — Release by — Insufficient authority to sign for creditor — No subsequent assent or ratification by creditor — No estoppel. See ASSIGNMENT, 14. Deceit — Action of against company and promoters — Misrepre- sentation — Concealment — False statements in prospectus. See CORPORATIONS, 24. t 2. Conveyance of land — Setting aside for fraud and misrepre- sentation as to matter of title — Fraud to be established to same extent and degree as in action for deceit. See SALE OF LANDS, 27. 22H Deed — Ekcvow — Estopj^l. To a declaration for quiet enjoyment in a uiortgiifje to tlie plaintiffs, executed by T., the defendantB' grantee, II., one of the defendants, pleaded that T. did not, after the making of that deed, convey to the plaintilTa. The (ioed from defendants to T. was dated '22nd June, 1855, and the mortf,'af,'e from T. to the plaintiff was dated 10th AprLl, 1855. Botn were registered on the '28th July, 1855 — the deed first. It appeared that there were two mortgages from T. to the plaintiffs on another lot, when this mortgage was made, and instead of which it was given. After executing this mortgage, T. found that a deed from the defendants to him was necessary to give the legal title, and he got the deed in question. The two mortgages were not discharged until the IGth August, 1855. Held, on appeal, affirming the judgment of the Court of Queen's Bench, Ontario, that the whole transactions shewed that the mortgage was not intended to take effect until the perfecting of T.'s title and the discharge of the other mortgages for which it was given, and that the plaintiff, therefore, could recover. Also, that assuming the deed of the 10th of April to have been a completed instrument from its date, the usual covenant contained in it that the grantor was seized in fee at the date of the deed created an estoppel, and that the estoppel was fed by the estate T. acquired by deed of ■i'2nd June, 1885. (Henry, J., dissenting.) The Trust and Loan Co. v. Ruttan.— i. oiJ4. 2. Erroneous statement in — Evidence as to. See JUDICIAL AVOWAL. 8. Prohibition to alienate in a pwvdij onuroan title voiil — Art. 970, a a L. a— 18 v. c. :?50. By 18 V. c. 250, W. F. and his brother were authorized to sell certain entailed property in consideration of a non-redeemable rent representing the value of the property. On the ''un September, 18G0, the appellant and E. F. assigned to their brother, A. F., a piece of land forming part of the above entailed property, in consideration of a rotd' fonvi^re of six pounds, payable the 1st day of October of each year. The deed was registered and contained the following stipulation : " But it is agreed that the assignee cannot alienate in any manner whatsoever the said land, nor any part thereof, to any person without the express and written consent of the assignors under penalty of the nullity of the said deed." The property was subsequently seized by a judgment creditor of A. F. , and appellant opposed the sale and asked that the seizure be declared null, because the property seized could not be sold by reason of the above prohibition to alienate. Held, on appeal, affirming the judgment of the court below, that the deed was made* in accordance with the provisions of 18 V. c. 250, and it being a purely onerous title on its face, the prohibition to alienate contained in said deed was void. Art. 970, C. C. L. C. \ Query. — Whether the substitutes may not, when the substitution opens, attack the deed for want of sufficient consideration. Eraser y. Pouliot.— iv. 515. 229 Deed — Coutimtcd, 4. D V. ('. .?7, 8. 17 — Deed under, before notary — Validifi/ of. Held, per Tascliereau and Gwynne, JJ, — That a deed taken under 9 V. c. 87, 8. 17, before a notary (though not under the seal of the commisaionerH) from a i;er8on in possessiou, which waa subsequently confirmed by a judt^ment of ratification of a Superior Court was a valid deed, that all rights of property were purged, and that if any of the tiutenr.i of the petitioner failed to urg(3 thoir rif?lits on the monies deposited by reason of the customary dower, the ratifica- tion of the title was none the less valid. Chevrier v. The Queen.- iv. 1. 5. Of lend — Construction of. Held, /;('»• Strong, J. — Extrinsic evidence of monuments and actual boun- dary marks iti admissible to control the deed, but if reference is made by tlio deed to such monuments and boundaries, they control, though they call for courses, distances, or computed contents which do not agree with those in the deed. Grassett y. Carter — x. 105. ti. Intended to opei'ate as mortgage. See MORTGAGE, 9. 7. N'aiying original promise of sale. See SALE OF LANDS, 9. N, Of compromise — Action to set aside for fraud and coercion. See PARTITION. J). Missing — Evidence under law of N. S. — Certificate of registrar — Affidavit. See EJECTMENT, 3, 10. Construction of — 2'ltle to lands — Estoppel — Trust — Fiduciary arjents — Maintenance — 32 H. VIII. c. 9. Under the provisions of 8 G. IV. c. 1, generally known as the Rideau Canal Act, lit. -Col. By, who waa employed to superintend the work of making 8ai?ain8t William McQueen by virtue of the deed of the flth February, 18HJ, in tlie face of the proviso in 7 V. c. 11. McQueen v. The Queen.— xvi. 1. [In this case, the J. C. of the Privy Council refused leave to appeal] . 1 1. Absolute ill form but intendcMl to operate a.s inortijage — Evidence — Pnjof oi intention. See EVIDENCE, 02. Delegation — Of authority by Attorney-General. See CRIMINAL APPEAL, 1. 2. Of payment — Pei',sonal liability untler. See HYPOTHEC. Delivery — Of railway iron. See RAILWAYS AND RAILWAY COMPANIES, 1. 2. Of p(ilicy— Effect of. See INSURANCE, LIFE, 5. Demolition of Works — In province of Quebec, how deiimotled. Held, that demolition of works completed may properlv be demanded in a petitory action for the recovery of property and ihat the present action is one in the nature of a petitory action, Joyce Y. Hart.— 1. 321. Demurrage. See SHIPS AND SHIPPING, 8. Demurrer — In action of conversion against .sheriff. See CORPORATIONS, 5. 2. Petition of riijld. N. C, the suppliant, by his petition of right, claimed, as representing the heirs of P. W. jr., certain parcels of lands originally granted by letters patent from the Crown, dated 5th January, 1806, to P. W. senr., together with a sum of $200,000, for the rents, issues and profits derived therefrom by the Govern- ment since the illegal detention thereof. The Crown pleaded to this petition of right — 1st, by demurrer, defense au funds en droit, alleging that the description of the limits and position of the property claimed was insufficient in law ; 2nd, that the conclusions of the 282 Demurrer — Cimtinni'd. petition wero iriRufficicnt aiir) va^'tio ; 3nl, that in bo far as reHpects the rents, Ihhuch and protits thoru had buun no xi^nitlcatiou to thu Oovoruinont of the ^>ift8 or trat'HferH made by the heirH to the HUppliants. Held, that the objection taken should have been pleaded by exception i) la J'nrmi-, pursuant to Art. ll(i, C.C. P., and uh the demurrer was to all the rents, idsues and profits as well as those since the transfer, it was too large and should be diumissed, even supposinj; notification of the transfer necessary with renpect to rents, issues and profits accrued previous to the hhIu to him by the heirs of P. W. jr. Chevrier v. The Queen.- iv. I. 'i. >h\i\rr\nent on — When final jmlj^mient from wliicli appeal lies. See JURISDICTION, !), 17, IH, 21, C.?. DAMAGES, 25. 4. To action of damage for maliciou.sly obtaining injunction. See DAMAGES, lil. 5. In action on order inider Companies Aft, 1SG2 (Imp.). See CORPORATIONS, 15. 6. To action of damages for malicious proceedings in insolvency. See DAMAGES, 25. 7. To return to mandanms. See MANDAMUS, fi. 8. The plea to jurisdiction of County Court — Prohiltitioii. See PROHIBITION, 4. 9. Assignment of chose in action — Demurrer for want of paities — Res puHcata. See PRACTICE, 25. Deposit — In bank to credit of succession — Agency. See BANKS AND BANKING, 4. 2. By insurance company in bank under provisions of R. S. C. c. 124 (Insurance Act) — Insolvency of bank — Priority. See CROWN, 21. 3. In election appeal — Return of — Dissolution of parliament before appeal heard — Effect of. See ELECTION, 34. 233 Depository — Sale ot" oioods liy woi^jfht — Danmge Ix'fnre wfiiLcliiiij^ — Posscssioii rotiiiiiud hy vendor — Arts. lOt};}, 10(i-4, 12:{5, 1474, 1710, 1H02, C. C. Deputy Returning Officer — Conspiracy between, and respondent. .SVr- ELECTION, 22. Description — Of land l)y reference to plan. .SVf BOUNDARY. 2. IJy iiietes and bonnda — When parcel of land <,a'anted by HpociKc name. See EASEMENT. Detinue — Action of. See LIEN. Deviation — Murine insurance — Delay in prcsecutin;^' vo^'aj^e — Enhancement of HhIc — Implied condition in contract. See INSURANCE, MARINE, 2b. 2. Construction of policy — Loadinj; port on west coast of South America — Guano Island — Commercial usaixe. .St'.; INSURANCE, MARINE, 29. 'i. From line of railway — Extension — Description in map or plan —42 V. c. 9 (D.). See RAILWAYS AND RAILWAY COMPANIES, 54. Diocesan Fund — SapjMrt of clergymen — Condition (tx to parti- cljHition. The Diocesan Church Society of Nova Scotia liokla a fund for distribution among the CliiU'ch of England clergymen of the province, and one of the rules governing its distribution is that no clergyman receiving an income of ?1,000 and upwards from certain named aourcea shall be entitled to participate. Held, aftinning the judgment of the Supreme Court of Nova Scotia, 21 N.S. Rep. 30y, that a rector was not debarred from participating in this fund because the salary paid to liia curate, if added to his own salary, would exceed the said sum of $1,000, his individual income being less tlian that amount, Pi'esent :— Strong, Fournier, Taschereau, Gwynne and Patterson, .7.1. Diocesan Synod of Nova Scotia y. Ritchie.— Mar. 10th, 1890— xviii. 705. Director — Of company — Sale by to company — Ratification by shareholders. See CORPORATIONS, 26. 234 Discretion — Of trial juil'ju — Amoiuit of — Appointment of li(jnie money. See MORTGAGE. 4. Distribution of Rstato— Statute — Repeal of — Rd^toration of for- mer l((v — Distribution of intestate estate — Feme coverte — — Husband's rigid to residuum — Next of kin. The Legislature of New Brunswick, by 26 Geo. III. c. 11, ss. 14 A 17, re-enacted the Imperial Act, 22 & 23 Car. II. c. 10 (Statute of Distributions) as explained by s. 25 of 29 Car. II. c. 3 (Statute of Frauds), which provided that nothing in the former Act should be construed to extend to estates of Jemfn covertes dying intestate, but that their husbands should enjoy their personal estates as theretofore. When the statutes of New Brunswick were revised in 1854 the Act 26 Geo. III. c. 11, was re-enacted, but s. 17, corresponding to s. 25 of the Statute of Frauds, was omitted. In the administration of the estate of a feme coverte 235 Distribution of Estate— ^'"»»/H«f(/. her next of kin claimed the perHonnlty on tho ground tiiat the husband'it ri^litH wore swept nway by thii oiuisHion. Held, timt tht< personal property pasNed to the husband and not to the next *)f kin of the wifo. I'lr HtronK. •!. — Tiio repeal by the RoviHod Statutes of '2(1 Geo. III. o. 11, which WHS pasHt'd in the nihrinaiK^c of the Iinporial Acts, operated to reHtoro B. 25 of tlie Htatutcof FraudnnH part of tlio cuininoii law of New Brunswick. Per Gwynne, J. — When a colonial lejjislature ro-onacts an Imperial Act it enacts it ivs interpreted by tho Imperial courts, and a fortiori by other Imperial Acts. Ilenco, when tho Kutflish Statute of Distributions was re-enacted by 2(i (ico. III. o 11 (N.I).), it was not necessary to enact the interpreting section of tlie Statute of Frauds, and its omisHion in tho Uovised Statutes did not effect tho construction to be put upon the whole Act. Held, pir Uitchie, C.J,, Fournior, Gwynne and Patterson, .1.1., that the Married Woman's Property Act of New Brunswick (C. 8. N. B. c. 7 "2), which exempts tliu separate property of a married woman from liability for her husband's debts and prohibits any dealing with it without her consent only 8UNpiii(ln the husband's rights in tho property during coverture, and on the death of tlio wifo he takes the personal property as he would if the Act had never been passed. The Supreme Court of New Brunsvvick while deciding against tho next of kin on his claim to tho residue of the estate of a ffiiir nivt'rte, directed that his costs should be paid out of the estate. On appeal the decree was varied by striking out such direction. Lamb v. Cleveland.— xix. 78. Divorce — Decree for, ohtalned in State of New York — In force hi Qnel)ec — IJffect of milmiittinij to jari>*diction of foreign court — Domicile of imrties — Right of wife to sue {eftter en jugement) in Quebec xvithoiit authorization — Art. ]/(., a C. P. Appeal from a judgment rendered by the Court of Queen's Bench (appeal side) in Montreal, ou the l'.)th day of September, 1883, reversing a judgment of the Superior Court rendered on the 2oth of February, 1882. The facts of the case may be summed up as follows : On the 7th of May, 1871, the appellant (Virginia Gertrude Stevens) and respondent (Henry .Tulius Fisk) both being domiciled in the city of New York, were duly married in that city without auto nuptial contract. By the laws of the state of New York no community of property is created between persona married there without ante-nuptial contract, and the wife holds and ac(iuire8 property in her own name, entirely free from marital control, ns if she were a, feme sole. Before and at the time of her marrirge with the respondent, the appel- lant had a fortune in her own right, amounting to f 220, 775. 74, inherited from her father, and consisting of cash, bonds and other moveable property. On 236 Divorce — Continued. the 8tli of January, 1872, the appcUaut received this fortune from her trusteeH, and thereupon placed it in the hands of the reapondont, who administered and controlled it until the 25th day of September, 187(5. The respondent kept his ilomicile in New York for about ei^^hteen months after the marria^'e, when hearod and submitted to and not questioned the jurisdiction, was bound by the decree and should not be allowed to affirm that the court had no jurisdiction to pronounce it, and to claim that the marriage dissolved in New .'orit in a proceeding to whicli he was au unobjecting psfty, and which he had n° ?r before questioned, was subsisting iu Quebec. Strong, J., dissenting. — Was of opinion . iis regards the question as to the validity of the divorce, the Court of Queen's Bench was perfectly right. As regards the other question, one peculiar to French law, that as to the plaintiff's right to institute and maintain the action without the authorization of justice, from the best consideration he had been able to give the point he was of opinion the court below was right in that also. The judgments of Gwynne and Henry, JJ., will be found reported at length in 8 Legal News, p. 42, and the judgment of Fournier, J., in the same volume at p. 53. Appeal allowed with costs. Stevens y. Fisk — 12tli January, 1885. Dog — Injury coimnitted hy — Ownersliip — Scienter — Evidence for jv;ry. See DAMAGES, 50. Dol personnel. Se.: SHERIFF. 5. Domicile — Of wife for purpose of taking proceedings for di\(jrce. Sec DIVORCE. 2. Mairhnonial — Dedaration in act of marriage — Civil ■^rutus — Arts. 03, 65, 7'J, SO, 81, S3, C. C. (P.Q.) - In or about 1822, W., a native of Ireland, came to Canada and was employed as a shantyman on the Bonnechire, in the Province of Upper Canada. In 1827 he got out timber for himself, and in 1828, while in Quebec, where he was in the habit of going every summer with, rafts of timber, ho was engaged to be married to one M. Q., the widow of one McM., in his life- time of Upper Canada. W. was married to the widow in the month of September and shortly after his marriage he returned to the Bonnechire to carry on lumbering operations there as formerly, and on his way up left his wife and daughter in the neighbourhood of Aylmer, in Lower Canada. In the 238 Domicile — Contiuunl, winter lie came down for her and brought her to his home on the Bonnechire and lived there for ten or twelve years and acquired conaidornble wealth. W. declared in the presence of the priest who performed the ceratuony that he was a journalier ile la Province de Quebec,. e.ni\. he was so described in the certi- ficate of marriage. M. Q. havinf? died without a will, W. married again , and by his will left his property to his second wife, the appellant. The respondents by their action claimed there was community of property between M. Q., their grandmother, and W. according to the laws of Lower Canada, and demanded their share of it in right of heirship. The appellant disputed this claim, con- tending there was no community. Held, reversing the judgment of the court below, Fournier and Tas- chereau, JJ., dissenting, that the facts of the present case were not sufficient to prove that W. had acquired a domicile in the Province of Quebec at the time of his marriage. Also, that the certificate, acte de mariage, has only relation to residence in connection with matrimonial domicile, and therefore has relation to the ceremony of marriage and its validity alone, and not to domicile in reference to the civil status of the parties. Wadsworth y. McCord.— xii. 400. "On appeal to the Judicial Committee of the Privy Council the judgment of the majority of the Supreme Court was affirmed. The Judicial Com- mittee held — 1. That the acte de inariafle signed in 1828 did not amount to a bindint; declaration by the husband that he was domiciled in Lower Canada witli the legal effect of a contract that the wife should be commune en biens with him. Domicile for purposes of marriage in Art. 63, C. C, is used in the sense of residence. 2. Art. 1200, C.C, is subject to Art 6. If no covenants are made, the consorts, so far as the code applies, are presumed to have sub- jected themselves to the legal community of property. But movable property is governed by the law oi the owner's international domicile. See 14 Appeal Cases, Ci.'Jl.] 3. Undor Art. 47(3, C. C. P. (P.Q.), it is not necessary to serve a judgment en declaration (Vltypotlieqiie on a defendant who is absent from the province, or who has no domicile therein. Dubuc Y. Kidston.— xvi. H57 And see PRACTICE, 3. Dominion Lands Act, The — See PATENT. Donation — Articles SOJ, 103^, C. G. (P.Q.) — Donation in marriage contract — Proof of insolvency of donor at date of donation necessary to set aside. On the 27th June, 1870, L., et al, sold to M. T. a property for $12,350, of which price 13,789 were paid in cash. On Kith June, 187!), E. T.^ daughter of M. T., married J. K., and in their contract for marriage M. T. made a dona- 239 Donation — ( ontinued. tion to his daughter, E. T., of certain property of considerable value, and remained with no other property than that sold to him by L. ct , G. C. resulting from neglect to register applies only to gratuitous donations, and as the deed in this case was in effect the giving of a thing in payment, (dation en paiement) with warranty, which under Article 1592, is equivalent to sale, the testamentary executors of the donor had no right of action against the donee based on the absence of registration of the original deed of gift inter vivos. Lacoste v. Wilson.— xx. 218. Dower — Bar of, in mortgage — Non-registration of prior mortgage in which dower not barred — Sale of mortgatred land — Claim by wife to proceeds after payment of mortgage having prior claim by virtue of registration. See MORTGAGE, 29. 240 Dower — ( 'untiniwd, 2. Grant from local government of foreshore of harljour — Convey- ance by grantee — Claim of dower by wife of grantee — Plea that grant void — Estoppel. See ESTOPPEL, 19. Drains — Municipal corporation — Drainage of lands — Injury to other lamls by — Remedy for — Arbitration — Notice of action — Mandamus — Out. Municipal Act, R. S. 0. 1ip' license from his father, the adjoining owner, which license was revoked by his father's death : but. Held, afdrminj? the judf^ment of the Court of Appeal, th;it under the agreement the right of way {^ranted to the plaintiff was wholly over defendant's land, the agreement not being explicit as to the direction of such right uf way, requiring a construction in favour of the plaintiff and against the grantor. Present : Sir W. J. Ritchie, C.J., and Strong, Taschereau, Gwynne and Patterson, JJ. Rogers Y. Duncan.— Nov. 10, 18'.»0— xviii. 710. 7. Use of lioil}' of water — Britisli (yolumbia — Laud ordinance, 1865 — lli<:lit to oxclusivL' n^e. See RIPARIAN PROPRIETORS, 5. Edit de Secondes Noces, 1560. Hee COMMUNITY. Education — Educational Institution in City of Montreal — Exempt lioiu taxation — Cons. S. L. C. c. 15 — 41 V. c. G, s. 20 — Art. 712, Mun. Code (g,). See ASSESSMENT AND TAXES, 13. 2. Educational Institution — Property' held by, as a farm — i'roceeds used at another house — Xot exempt from School Taxes — 32 V. c. IG, s. 13 (Q.)— C. S. L. C. c. 15, s. 77. Sec ASSESSMENT AND TAXES, 14. 3. Con. Stats. L. ('. c. 15, hs. ,11 tt- SS—Jfi V. c. 22, s. 11 (RQ-)— Const r action of—oJ V. c. 25, s. 7 (P.Q.) — Erection of o, School House — Decision of Superintendent — Mandtnnvs. Under 40 Y. c. 22, s. 11, the Superintendent of Education for the Province of Quebec, on an appeal to liim from the decision of the school commissioners IMS Education — Continued, of St. Valeutin, ordered that the Bohool district of the municipality of St. Valentin should be divided into two dietricta with a school house in CRch. The Bcliool cominisBioners by rcHolution Hubaoquently decrtwd tlie divi- Bion, and a few days later, on a petition presented by ratepayers protesting against the division, they passed another resolution, refusing to entertain the petition. Later on, without havin>{ taken any steps to put into execution tlif decision of the Superintendent, they passed another resolution, declaring tlint the district siiould not be divided as ordered by the Superintendent, but should be re-united into one. In answer to a peremptory writ of mandnmun granted by the Superior Court ordering the school commissioners to put into execution the decision of the Superintendent of Education, the school commissioners (respondents) con- tended that they had acted on the decision by approving of it, and that as the law stood they had power and authority to re-unite the two districts on the petition of ii majority of the ratepayers, and that their last resolution was valid until set aside by an appeal to the superintendent. Held, reversing the judgment of the Court of Queen's Bench (appeal side) that the commissioners having acted under the authority conferred upon them by Con. Stats. L. C. c. 1.5, ss. '.ii A 38, and an appeal having boon made to the Superintendent of Education, his decision in the matter was final : -10 V. c. 2'2, s. 11 (P.Q.), and could only be modified by the Superintendent himself on im application made to him under 33 V. c. 25, s. 7 ; and, therefore, that the peremptory iiKindiimus ordering the respondents to execute the Superintendent's decision should issue. Tremblay v. School Commissioners of St. Valentin.— 8th March, 188(5.— xii. .546. •1. Etlucational Institution — Special Assessment iov Drain-Exemp- tion— 41 V. c. G, 8. 20 (Q.). / See ASSESSMENT AND TAXES. 18. 5. Laws with respect to — Legislative authority over — B. X. A. Act s. 93, s-s. 1 — lliglits prejudicially atfected — 33 V. c. 3 (D.)— 53 V. c. 38 (Man.). Sez LEGISLATURE, 21. (). School Commissioners — Mdmlamus — Establishment of new school district — Superintendent of Education, jurisdiction of upon appeal— Approval of three visitors — 4^ V. c. 22, s. 11 (P.q.)—R. S. Q. Art. 2055. Upon an application by appellant for a writ of mandamus to compel the respondents to establish a new school district in the parish of Ste. Victoire in accordance with the terms of a sentence rendered on appeal by the Superin- tendent of Education under 40 V. c. 22, s. 11 (P.Q.), the respondents pleaded inter alia that the superintendent had no jurisdiction to make the order, the 246 Education— o-H^^/iav/. [Htitioii in appeal not having been approved of by thi'ue qualified Bchool visi tors. The decree of the auporintundcnt alleged that the petition wuh approved of by one L., inspector of hcIiooU, an well an by three viiiitorH, Held, aflirniin^ tlio jiulKmont of the Court of Queen's Bench for Lower Canada (appeal Hide) that the {Hitition in appeal must have the approval of three visitors ({ualitied for the municipality where the appeal to the superintendent originated, and as one of the three visitors who had signed the petition in apjjenl was parish priest of an adjoining parish, and not a qualified school visitor for the munici- pality of Ste. Victoire, tlio sentence rendered by the superintendent was null and void. — Taschereau, J., dissented on the ground that as the decree of the superintendent stated that L., the inspector of schools, was a visitor, it was ]iiiiiui /(trie evidence that the fornialitieg required to give the superintendent jurisdiction had been complied with. C. H. L. C. c. 15, ». 2.j; Arts. 18(13, iHllf. It. K. Q. Hu8 V. The School Commissioner for the Municipality of tl e Pariah of Ste. Ylctolre. — xix. 477. Ejectment. .SV.' WILL, '2. LKTTEUS PATENT. 2. Powei-s of Chanceiy in action of — R. 8. O. c. 40, h. 87. See POSSESSION, 5. 3. M'lKx'iiKj deed — Evidence of execution and delirrri/ of — Certifi- cate of rey ifitrar of deeds — Affidarit of nearch — Entojfj>el. Action of ejectment. The action was twice tried. Plaiutiff.s, e.Kecutors of original plaintiff, claimed title imder a deed dated 18th June, 18.50, which Hugh McMaster, deceased, the former owner of the land in question, was alleged to have execiied, conveying said land to his son, Ronald McMaster, who, on the lOtli April, 1800, mortgaged to the original plaintiff. This mort- gage having been foreclosed, the land was purchased by the mortgagee at Biieriff's sale. * At the trial plaintiff's counsel tendered a copy of the deed of the 18tli June, 185G, certified to be a true copy by the registrar of deeds, and accom- panied by an afilidavit of one of the plaintiffs to the effect : " That the original deed of which the paper writing hereunto annexed, marked A, is a copy certified under the hand of the lute registrar of deeds, in and for the said county of Inverness, is not in my or my co-plaintiff's posses- sion, or under our control ; and I further say that we have inquired for, and been unable to procure the same." Donald McMaster, a son of the original owner, and one of the witnesses to the deed, gave the following evidence : " I went to the registry of deeds office, and proved the deed from my father, Hugh McMaster, to Ronald McMaster, his son. It was registered 17th June, 185(5. I took the deed to the registry office and left it there. * * 247 Ejectment -' '"ntinueil. ' I urn not aware of Uonald'H kiiowlci1({e of tlio deod from my fiitlior." Itoiiiild Hworo that lio iiuvcr Haw tlic dc^i-il and iiuvor heard of it until a ft>w ycarH h'jforo tlio tirnt trial in Octobt-r, IHHO, It wan agreed that phiintifT Hhoiild become non-Ruited with loavo to movu to Ret the non-Hiiit aHido, and in caxu tiie court Bhould think tiie non-suit wroiiji, thf court to enter a verdict for jilaiiitiff. The Hiiprc'me (!ourt of Nova Hcotia (Macdonald, C.J., and Hinby, Hinith, and Wentherbe, JJ.) were divided, lUnby and Weatherbe, J.I., boin;,' of opinion liiiit the prcHUin))tion was that Iln^^li McMaHtur, the original owner, having Hi;^iied tiie deed, deUvered it to Donald to takii to the registry oflico to be proved and regiHtered ; that by tluH registration he ^;iive notice to all the world that he iittd conveyed the land to Ronald, and that there waH evidence for a jury : that by liiH conduct in relation to the conveyance to Ronald ho had induced the original plaintiff to accept the mortgage from Ronald, believing tlio title to be vi:>^teil in Ronald by virtue of the deed. Therefore the defendant, who alHo claimed through IiIh father, waH oHtopjied from denying the duo execution of the deed. Macdonald, G.J., and Smith, .1., were of opinion there was not HutVicient evidence of the execution of the deed. On apiioal to the Hupreine Court of Canada, Held, that there was Buf!i- cient evidence to CBtabliHli the due execution and delivery of the deed to Ronald. The copy having been received in evidence without objection, it wan too late to object to its adminaibility. Strong, J., dubitnutr. Appeal allowed with costs, and a verdict directed to.be entered for plain- tiffs. McDonell v. McMaster.— 22nd .Tune, lH>ir>. 4. Titlo to liinil — Old <;mnt — Loss of ori<;iiml .survL-yH — Stiirtiiiii {nnnt to defiiit,' metes and Itounds, how ascertnined, ■See BOUNDARY, 3. 5. Action for recovery of land — Conveytmce hi/ Inhshaml, to vlfr. st't (ifiule a» frmulnlcnt — SftitcuwDt in plead im/s us la possession in wife — S(de hi/ sherijf iih ogninst haslxind — Iri'ei pilar it ie» in — Iridl of action after plcadivijs maiv- f (lived on demurrer. The respondent (the plaintiff), Charles Magee, brought an action of eject- mt^nt in the High Court of Justice for Ontario, Chancery Division, against the appellant, Annie Kane, and her husband, James Kane, to recover posses- sion of lot number 11 on the west side of Nicholas street, in the city of Ottawa. The case was tried at Ottawa before the Honourable Mr. Justice Ferguson, who, after hearing the evidence and argument of counsel, reserved his decision, and afterwards gave judgment in favour of the plaintiff against the defendants for possession of the land in (luestion. The facts of the case will be found fully reported in \\ Ont. R. 220. The defendant, Annie Kane, thereupon appealed direct to the Court of Appeal, which Court affirmed the judgment of his lordship. 24H Ejectment— CoiitiuHiii. The jndftment of the Court of Appeal whh lU-livorcnl by nnrtoii, J.: — He wiiB of opinion tliat Mi'h. Kant<, having lH>en treatcrl uh hui'M«-lf Imvintt poit8L>fi> Hion, had thu Hanie ri^lil to ilcfi'iul tliu poMeflHion thuH iittributud to hur aH if a Htrun^er to tlie plainlilT and not Inn wifo. Hulu 141 made it untVicient for her to Htato by way of ciefcnue that shu wuh in poMHoHMion, and diHponHed with a plea of titlu (in hur part, nnleaa liur dufenco depended uikiii an iMpiilable OHtato or riyht, or iink-Mn »in; claimed relief iiiMjn any eipntable ^ruiind. Her defence wail partly of tlie character wliicli Imd to be Hpecnilly net out, aile^;inK irroijn- laritieu, or faultu of oniiHttion and uommiiiHion in tiie conduct of the xhcritf, in the conduct of tho sale uuder ^j. /«. against James Kane; but without doubting the correctnesH of the view taken of the alloueil actH and oiniwHionH, Mrtt. Kano could not be heard to criticiue tiiose proceedings ; an far nn mIio wua concerned the plaiutitl owned the interest profesaed to be conveyed by the HhoritT, and that included whatever ri^ht her huHband had to poHHcsflion of the property, Tlio contort, tiierefore, turned on the sulliciency of the evidence concerning the titlu of James Kane. There waa no direct evidence, but HuHicient was ahown to enable tlie iiiaintiff to recover, in the ahHeiiCo of any title in Mrs. Kane, in the proceediuLis and adjudication in tiie former action between the plaintiff and Mra. Kane, in wiiich the conveyance from James Kane to his wife was declanMl fraudulent and void inider l.H VAi/.. o. .">. Tim plaintiff's position at the trial after production of these proceedin^is was the same as if he had put in evidence the patent from the Cro.vn to James Kane and then provecl, as he did, his actpiJHition of James's interest in the land. The plaintitT did not. on the evidence, reiiuiroto resort to the juilt^ment on the demurrer, but Mr. Justice IJurton did not wish to be understood as intimating any doubt of the correctness of that judjjment. The tjravamen of the demurrer was that the statement did not allege title in James Kane. It did allege the former action and judgment, but their bearing on the udmisHion of title in James was not so apparent as it might have been. An application such a.H that in I'liilippii v. Philippn, 4 Q. B.D. \'il, might have led, as in that case, to a better statement being ordered, but that is a very different thing from holding the pleading bad on demurrer. In his view of the evidence, it became unnecessary to express any opinion on the application of decisions like .Tohmusoa v. Bonkote, 2 Ch. D. 2118. On appeal to the Supreme Court of Canada it was Held, that although Anne Kane might set up the irregularities and defects in the sheriff's sale her allegations were such that she cci''d not do so without nmkini.' the sheriff a party ; but the findings of the learned Judge who tried the action on the question of irregularity and of value wore correct. The proof of title also was suflicient ; and the appeal should therefore be dismissed. Present: Ritchie, C.J., and Strong, Tascliereau and Gwynne, .TJ. Kane v. Ma^ee.— 4th December, 18S<.». Election — Clerical undue influence. Held, that the election of a member for the House of Commons guilty of clerical undue infiaenoe by hia agents is void. That sermons and threats by certain parish priests of the county of Charlevoix amounted in this case to 24!> Election — Contimuil . Hutu of nudne ititluence, and wliere ii contravention of the \)M\\ •ection of the Dominion Klcctiou* Aot, 1H74. ' /Vr Kitdiie, .1. : A oli'rjjyniiin lmn m) ri>»l)t. in the pulpit or out, by throat- enint; nny dAmii) freely wilU, Charlevoix Election Case, Braisard v. Langevin.— i. H*)- •> Ailiii inHihilltif of r('S/ton{ bribery and corruption on behalf of reHpoiuIuiit and of liisajieiitH; and truatin){ by rt(H[)ond(3nt'H ai{entft on the nomination and pollin;{ divyu. In the bill of particulars the pctitir)ni>r4 forintdatod ninuty-ui^ht ditferont char>{eH, but, in appeal, thuy only inxiHti'd upon seventeen char^{t•H, seven of which attaclu-d i)ernonally to the ilefoiulaiit, and ten to his at^entn. The respondent was examined on liia own behalf, and there were, in all, 2H0 witnosHeH hoard. The judf^mont of the Superior Court of the District of Montreal, dismiss- ing the petition on alUthe char){es, was unanimously attlrmed, except as to the charge of bribery and undue intluenoe by one Robert, hereafter more particularly referred to. It was Held, 1st. That the evidence of a candidate on his own behalf, in the provinoo of (Quebec, is admissible. 2nil. That when a multiplicity of char^jes of corrupt practices are brouyht ai^iiinst a candidate, or his aj^ents, each charge should be treated as a separate chart(e, and, if proved by one witness only, and rebutted by another, the united woij^ht of their testimony, without accompanyiuf^ or collateral circum- stances to aid the court in its appreciation of the contradictory statements, cannot overcome the effect of the evidence in rebuttal, and that, in such a case, the candidate is entitled to the presumption of innocence to turn the scale in his favour. 3rd. That drinkinj? on the nomination or poUint? day is not a corrupt practice sufficient to void an election, unless the drink is j^iven by an at.'ent on account of the voter haviufj voted or being about to viite: 39 V. c. It. s. 01 (D.), compared with 17 & 18 V. c. 102, bs. 4, 23 & M (Imp.). 4th. That a candidate, charj;ed by his opponent with having no influence, is not guilty of a corrupt practi-,0, if, in a public speech, in reply to the attack, he states " that he had had influence to procure more appointments for the electors of the county than any member." The evidence on the Kobert charge was to the following effect : Robert, long before the election was thought of, together with members of his family (tlie Pare familyl, exhibited a strong de^^ire to obtain an employment for his brother-in-law, one Kdward Honor6 Ouellette. Robert, being a political sup- porter, a client and a personal friend of Mr. Laflamme, asked him on different occasions if he could procure his brother-in-law (Ouellette) a place. The first 250 Hlection — ' 'iDithinnl. time he spoke to him with reference to it was about a year previous to the election ; but he did not gay anything to liini on that occasion about his father in-hiw (Pare). IJobert's evidence on this part of the case then >,'oe» on as follows: " Q. On wliat occasion did you sj)eak to him (Mr. Latlanime) about it ? A. It was when the question of an election arose that I spoke to hint about it. Q. Last fall ? A. Yes. Q. What was the date at which you spoke to him regardiuf^ the Pare family ? A. I cannot positively say, but it was four or five weeks before there was question of the election. It was then spoken of in the county and out of the county. Q. That was during the election? A. Yes. Q. At all events, it was at the time the election was spoken of ? A. Yes. Q. What did you say to him regardinj^ your brother-in-law and your father- in-law? A. I went to see Mr. Laflamme on different occasions, when I had some accounts to give him to collect, and I said to him : ' It would greatly please the Pare family if you could procure a place for my brother-in-law.' Q. Did j'ou say to Mr. Laflamme in what way it would please the Pare family ? A. I said this to him : ' It might, perhaps, prevent them from voting at the coming election.' Q. When you told Mr. Laflamme that the Part- family could be useful to him by not voting, what did Mr. Laflammo say ? A. He simply told me ' that he would think of me, and that if a vacancy occurred, he would do his best for me.' Mr. Laflamme, on the other hand, states : ' He (Robert) had asked me, not during th« election, but many months before, I believe, so far as my memory goes, a year before there was any talk of an election, to try and secure some office or occupation, with a slight remuneration, for his brother-in-law (Mr. Ouellette). I told him that I would consider his claims ; that he was one of my best supporters ; and, if I saw any occasion where it would be possible for me to support his claim, I would do so. The thing remained in that way; and previous to tiie election particu- larly, there was never one word said or breathed on that subject between Mf. Robert and myself. I never asked him to use this promise, and never iutendeel to do so; it was merely because he was a personal friend of mine and a man of respectability and importance that I promised to consider his claim, as I was justified as the representative of the county in doing.' " Evidence w.is given that Robert attended three or four meetings of respond- ent's committee, organized at Lachine; that he checked lists and reported his acts to some of the members of the committee. Before the election, Robert repeated to the Pare family what had taken place between him and Mr. Laflamme. At the time of the election, Robert, while conversing with the Pares in the famih' circle, was informed by one of them " they would vote for Girouard (the defeated caudidate) but that they would not make use of their influence." He then told them " Do as you please; they will use your votes as an objection to giving Mr. Ouellette a place." This conversation was not reported by Robert to any member of the respondent's committee. Held, 1. That the respondent, having a perfectly legitimate motive in promising Robert to try and get an office for his brother-in-law — his desire to please a political friend and supporter— was not guilty of a corrupt act in making such promise; and further, that the act of Robert, in relation to the votes of the Pare fam'ly, even if a corrupt one, was not committed with the knowledge and consent of the respondent. 261 Election — i'lintinufil, 2. That whether Robert was respondent's a«ent or not, the conversations which took place between him and the Par6 family do not sufficiently show a corrupt intent on his part to influence their vote, and that he is not guilty of bribery or undue influence within the meaning of the statute. — (Richards, C.J., and Strong, J., dissentmg). Per Richards, C.J., and Strong, J. — There was sufficient evidence to declare Robert to be one of respondent's at,'ents. (Henry, J., dissenting). Jacques Cartier Electicn Case, Somerville v. Laflamme.— ii. 216. 3. Preliniinaiy objections — Appeal on. See JURISDICTION, 7. 4. Dominion Parliament, lylenary iwioers of legislatioii of — The Dominion Controverted Elections Act, 1874 — Jurisdiction of Provincial Swperior Courts — Power of Dominion Par- liament to alter or add to civil rights — Procedure — British North America Act, 18G7, ss. 18, 41, 01, s-sn. 13 & 11 of B. 92, and ss. 101 cf; l.?9 — Dominion Court. The Dominion Parliament, by " The Dominion Controverted Elections Act, lf-7l," imposed on the Provincial Superior Courts and the judges thereof the d'.' > of trying controverted elections of members of the House of Commons. After tne general elections of 1878, the respondent tiled an election petition in the Superior Court for Lower Canada, against the return of the appellant as the duly elected member for the electoral district of Montmorency for the House of Commons. The appellant objected to the jurisdiction of the court lield by Mereditli, C.J., on the ground that "The Dominion Controverted jilections Act, 1874," was ultra vires. Held, affirming the judgment of Meredith, C.J., 1st. That "The Dominion Controverted Elections Act, 1874," is not ultra vires of the Dominion Parlia- ment, and wliether the Act established a Dominion Court or not, the Dominion Parliament had a perfect right to give to the Superior Courts of the respective provinces, and the judges thereof, the power, and impose upon them the duty, of trying controverted elections of members of the House of Commons, and did not, in utilizing existing judicial officers and established courts to discharge the duties assigned to them by that Act, in any particular, invade the rights of the local legislatures. 2. That upon the abandonment by the House of Commons of the jurisdic- tion exercised over controverted elections without express legislation thereon, the power of dealing therewith would fall, ipso factu, within the jurisdiction of the Superior Courts of the provinces by virtue of the inherent original juris- diction of such courts over civil rights. 3. That the Dominion Parliament has the right to interfere with civil rights, when necessary for the purpose of legislating generally and effectually in relation to matters confided to the Parliament of Canada. 252 Election — ' Ontimicd. 4. Per Ritchie, C.J., and Taschereau and G-wynne, JJ. — That "The Dominion Controverted Elections Act, 1874," estabhshed, aa the Act of 1873 did, as respects elections, a Dominion Court. Montmorency Election Case, Yalin v. Langlois.-iii. 1. [The Judicial Committee of the Privy Council refused leave to iqipeul in this case. On the general question as to the class of cases in wliicli the •Tudiciiil Committee would grant leave to appeal. Lord Selborne expressed liimst-lf aa follows : " It has been rendered necessary, by the lejjislation which lias taken place in tiie colony to make a special application to the Crown in yuch a case for leave to appeal ; and their lordships have decided on a former occasion that a special application of that kind should not be lightly or very easily granted ; that it is necessary to show both that this matter is one of import- ance and also that there is really a substantial ([uestion to be determined.'' 5 App. Cases, 117.] 5. The Dominion Controverted Elections Act, 1S74, s. S, s-s. 2 — Cross petition — Delay for prcsentinf). V. (the appellant), the sittinji member, against whom an election petition had been filed by L. (the respondent), an unsuccessful candidate, presented a cross-petition under s. 8, s-s. 2, of the Dominion Controverted Elections Act, 1874, alleging that L. was guilty, as well by himself as by his agent, with his knowledge and consent, of corrupt practices at the said election. This cross- petiiion was not filed within thirty days after the publication in the Canada Gazette of the return to the writ of election by the clerk of the Crown in Chancery, but within the delay mentioned in the last part of said s-s 2, s. 8, viz. : fifteen days after the service of the petition upon V., complaining of his election and return. The cross-petition was met by a preliminary objection, maintained by Meredith, C. J., alleging that it was filed too late. Held, on appeal, that the sitting member cannot file a cross-petition, within the delay of fifteen days mentioned in the last part of said s-s. 2 of s. 8, against a person who was a candidate and is a petitioner. Per Fournier, Taschereau and Gwynne, JJ. — The said extra delay of fifteen days is given only when a petition has been filed against the sitting member, alleging corrupt practices after the return. (Henry, J., dissenting.) Montmorency Election Case, Valin v. Langlois.— iii. 90. G. Controverted Elections Act, 1874— Gifts mul sahseript ions for charitidAe purposes — Pnyment of ajvbst debt without refer- ence to election, not bribery. Held, 1. That if gifts and subscriptions for charitable purposes made by a candidate who is in the habit of subscribing liberally to charitable purposes, are not proved to have been offered or made as an inducement to, or on any condition that, any body of men, or any individual, should vote or act in any way at an election, or on any express or implied promise or undertaking that 253 Elsction — Continued. such body of men, or individual, would, in conseciuence of such ^ift or subscription, vote or act in respect to any future election, then such fjifts or subscriptions are not a corrupt practice, within the nieiinin;,' of that expres- sion as defined by the Election and Controverted Elections Acts, 1874. 2. That the settlement by payment of a just debt by a candidate to an elector without any reference to the election, is not a corrupt act of bribery, and especially so when the candidate distinctly swears he never asked the elector's support, and the elector says he never promised it and never gave it. Taschereau and Gwynne, JJ., doubtiuf^ whether the transactions proved were not within the prohibitory provisions of tlie Act. South Ontario Election Case, McKay v. Glen.— iii. 041. 7. Elect ion appeal, notice of setthuj (hncn for hearing — Power of Ji'.dije who , ' ' the petifioii to grarit an extension of time for (jiving such notice — (S'. cC- L\ C.A. «. 4-^ — Supreme Court Rules, 56, 09. On a motion to quash the appeal on behalf of the respondent, on the ,^'round that tlie appellant had not, within three days after the Rej^istrar of the court had set down the matter of the petition for hearing, given notice in writing to the respondent, or his attoi.»cy or agent, of such setting down, nor applied to and obtained from tlie judge who tried the petition fnrther time for giving such notice, as required by the 48th section of the Supreme and Exchequer Court Act. Held, that this provision in the statute was imperative ; that the giving of such notice was a condition precedent to the exercise of any jurisdiction by the Supreme Court to hear the appeal ; that the appellant having failed to comply witli the statute, the court could lOt grant relief under llules 50 or ()!( ; and that therefore the appeal could i. t be then heard, but must be struck off the list of appeals, with costs of the laotion. Subsequent to this judgment, the appellant applied to the judge who tried the petition, to extend the time for giving the notice, whereupon the said judge granted the application and made an order, " extending the time for giving the prescribed notice till the 10th day of December then next." The case was again sot down by the Registrar for hearing by the Supreme Court at the February session following, being the nearest convenient time, and notice of such setting down v.'as duly given within the time mentioned in the order. The respondent thereupon moved to dismiss the appeal, on the ground that the appellant unduly delayed to prosecute his appeal, or failed to bring the same on for hearing at the next session, and that the judge who tried the petition had no power to extend the time for giving such notice after the three days from the tirst setting down of the case for hearing by the Registrar of this court. Held, that the power of the judge who tried the petition to make an order extending the time for giving such notice is i general and exclusive power to be exercised according to sound discretion, and the judge having 254 Election— C«»(fj» »('(/. made such an order in this case, tlie appeal carae properly before the court for hearini^. Taschereau, J., dissentint^. North Ontario Election Case, Wheeler v. Gibbs.— iii. 374. 8. The Dominiun Eleet'wni^ Act, 1S74, ss. 00 A 08 — Hiriiuj a team to l>ring voter to poll a corrupt practice — " Wilfid" o fence — Advance of moneij irhen not made in order to induce voter to procure the return of the candidate not briber ij. As to tlie case of one J. F. G., the charge was that the respondent bribed him by the payment of a promissory note for $89. Tlie evidence showed J. F. G. had been canvassing for respondent a long tmie before the nott fell due, and had always supported him. He was on his way to retire his note, which was overdue, or falling due that day, when respondent asked him to canvass that day, and promised to send him into town and have the note arranged for iiim. At the same time J. F. G. was negotiating for a loan on a mortgage to respondent, and it was at lirst stipulated that the amount of this note should be taken out of the mortgage money. The ugent of the respondent, after the election, at the request of J. F. G., paid the mortgage money in full and allowed the matter of the note to stand until J. F. G. could see respondent. J. F. G. stated that neither the note nor the mortgage transaction influenced him in any way, and that he had to pay the note and did not expect respondent to make him a present of it. Held, that the evidence did not show that the advance of money was made in order to induce J. F. G. to procure, or to endeavour to procure, the return of the respondent, and was not, therefore, bribery within the meaning of s-s. 3 of s. C)2 of the Dominion Elections Act, 1874. As to the case of one M., the evidence showed that M.'a team was hired some days before the opening of the poll by C, an agent of the respondent, for the purpose of bringing two voters to the polls. M. went for the voters, returned the day previous to the voting day without the voters and was paid fifteen dollars. Held, that the term "six preceding sections" in the !)8th section of "The Dominion Elections Act, 1874," means the six sections immediately preceding the !18th, and, therefore, the hiring of a team to convey voters to the polls, prohibited by the 96th section, was a corrupt practice within the meaning of the ySth section. (Henry, J., dissenting). Selkirk Election Case, Young v. Smith.— iv. 4'-, '*>'■-'', <-^' ^'4 — I'i'bltc 2M'(ive — (■olourahle empl(>ifmetit — Liability of candidate for tlir (ids of licrsons einployed by agent— Bribery. On a char(,'e of bribery against one T. and one A., upon which this appeal was decided, the judge who tried the petition found as a fact that A. had been directed by T., an admitted agent of the respondent, to employ a number of persons to act as policemen at one of the polling places in the parish of Bay St. Paul, on the polling day, and had bribed four voters previously known to be supporters of the appellant by giving them $2 each, but held that A. was not agent of the respondent, and therefore his acts could not void the election. Held, on appeal, thatna there was no excuse or justification for employing these voters, tlieir employment was merely colourable, and these voters having changed their votes in consequence of the moneys so paid to them, and the sitting member being responsible alike for the acts of A., the sub-agent, as for the acts of T., the agent, and they having been guilty of corrupt practices, the election was void. Taschereau and Gwynne, JJ., holding that A., thesub- ageut alone, had been guilty of bribery. Charlevoix Election Case, Cimon v. Peri'ault.— v. 138. 12. Ballots—Scrutiny— 37 V. c. 0, ks. J,.^, .fj, r,.', A 80-41 V. c. 0, ss. 5, G <.(• 10 — Effect of ncijlect vohan(li. The election petition in this case complained of the return of the respond* ent as member elect for the County of Mej^antic (I'. Q.) for the IIouso of C'omniona. The petition was met by preliminary objections, in which the Bitting! member alle>;ed, inter (ilia, that the petitioners were not electors, nor ([ualitied to votu at the election in ((uestion, etc. A day havin({ been tixeil for the liearint! of these preliminary objections, no evidence was f^iven upon them, and they were dismissed by Plamondon, .7,, who held, followinf» the practice adopted by tlie Superior Court of Quebec, sittiny as an election court in the L'lslet case J)iiriil v. Caxyrain, that the oniin prulxindi was on the respondent to support such objections. On appeal to the Supreme Court of Canada, Fouruier, Henry and tlwynne, JJ,. were of opniion that the onim prtiltaiuU was on the appellant, who by his preliminary objections had attirmed the disipialitication of the petitioner. Conlia, Ititchie, CI., and Strong and Taschereau, J.T. The court beiny equally divided, the judfjnient of the court below stood affirmed without costs. [See Election, at> and 40 j Megantic Election Case, Frechette v. Goulet. — viii. 169. 16. Dominion controverted election — Ontdrio Judicature Act, 1S81, effect of- — Presentation of lietitiov. The election petition against the election and return of the respondent was entitled in the High Court of Justice, Queen's Bench division, and was presented to the official in charge of the office of the (Queen's Bench division, and tiled and entered in the books of that office. A preliminary objection was taken that the High Court of Justice had no jurisdiction. Held, Henry and Tasclipreau, JJ., dissenting, reversing the judgment of Cameron, J., that the Ontario Judicature Act, 1881, makes the High Court of Justice and its divisions a continuation of the former courts merged in it, and that those courts still exist under new names ; and that the petition had not been irregularly entitled and filed. West Huron Election Case, Mitchell v. Cameron.- viii. 1'2(). 17. Ballots — Scrutiny — Irregularities by deputy -returning ojljicers — Numbering and initialing the ballot papers by deputy- returning officer, effect of — The Dominion Elections Act, 1674, s. 6'0 — Corrupt irt'actices — Reci iiiiinatory case. In a, polling division, No. 3, Dawn, there was no statement of votes either signed or unsigned in the ballot box, and the deputy-returning officer had endorsed on each ballot paper the number of the voter on the voter's list. These votes were not included either in the count before the returning officer the re-summing up of the votes by the learned judge of the County Court, or in the re-count before the judge who tried the election petition. Held, affirming the judgment of the court below, that the ballots were properly rejected. 200 Election — Cimtinuetl. Certain ballot paperH were objected to aH havint^ been imperfectly marked with a cross, or liavin<{ more than one croHH, or having; an inverted V, or because tttc cross was not directly opposite tlie name of the candidate, there beinu only two names on the ballot paper and a line drawn dividin>4 the paper in the middle. Held, affirming the ruling of the learned jud^'e at the trial, that theHo ballots were valid. I'er Ritchie, C.J. — Whenever the mark evidences an attempt or intention to make a cross, thou){h the cross may bo in some respects imperfect, the ballot should bo counted, miless from the peculiarity of the mark made it can be reasonably inferred that there was not an honest doHif^n simply to make a cross, but that there was also an intention so to mark the paper that it could be identified, in which case the ballot should bo rejected. Hut if the mark made indicates no design of complying; with the law, but on the contrary ii clear intent not to mark with a cross as the law directs, as, for instance, by makin^j a s'.rai^^ht line or round O, then such non-compliance with the law renders the ballot null. (See Iho Stepney Case— By Deunuiu, J., 4 O. M. & H. 37.) Division 1, Fiomhrn — Durinf< the progress of the votinj,', at the requent of one of the ajjents, who thou^jht the ballot papers were not beinj; properly marked, the deputy-returning ofl'icor, who had been putting his initials and the numbers on the counterfoil, not on the ballot papers, initialled and numbered about twelve of the ballot papers, but finding he was wrong, at the clone of the poll, he, in good faith and with an anxious desire to do his duty, and in such a way as not to allow any person to zee the front of the ballot paper, and with the assent of the agents of both parties, took these ballots out of the box and obliterated the marks he had put upon them. Held, Gwynne and Henry, JJ., dissenting, that the irregularities com- plained of not having infringed upon the secrecy of the ballot, and the ballots being unquestionably those given by the deputy-returning officer to the voters, these ballots should be held good, and that said irregularities came within the saving provisions of s. 80 of the Dominion Elections Act, 1874. Per Henry, J. — Although the ballots should be considered bad, the present appellant having acted upon the return and taken his scat, was not in a posi- tion to claim that the election was void. Bothwell Election Case, Hawkins v. Smith.— viii. G76. Jl tiuit tlio uvidi-nco in Hupi>urt of tlie ciuir^t) of bribing Mircau, ah wull an of tliu otlicr cliiir^uH of bi-Dx'iy anil trcatini^, wnM not Mn<;h ah svould jiiHtify tin Ai>|)(.'llatu ('ourt in (lriiwint{ tlio infureucu tlnit tlio rcKponiltMit intciuluil to corrupt tiio votora. Montcalm Election Case, Magnan v. Dugai.— ix. tCi. 20. Sti(( ns i>f jut liU))}er, how proved — Gift not acharitij or lihi'nd- ity — Jirlhrri/ — Shorthand writer h noten. At till) trial <>f tliep«.ilt!on tlio returning; officer, who wart aliio tlie re^intrar of tlie county of Mei^ivntic, and Hccretary of the municipality of Invornuna, was called aa a witneHx, and praducint in court, in liia oHicial capacity, the orit{inal liHt of electors for tho township of InvornoHS, and proved that the nanu- L. McM., one of the petitioners, whom he personally ku'.'W, was on the list. The original document was retaineil by the witness, and, as neither of the parties reipiested that the list should be tiled, the jud>{e made no order to tliat effect. The status of the other petitioners was proved in the same way. Held, that there was sufticient evidence that the petitioners were persons who had a ri^ht to vote at the election to which the petition related under •Al V. c. 10, 8. 7 (D.) The shorthand notes of the shorthand writer employed by the court to take down the evidence were not extended in his handwritinu, but were sii^ntd by him. Held, that the notes of evidence could not be objected to. Before setting out on a canvassing tour the appellant, the 9ittin>{ membtr' placed in the hands of one B., who was not his financial ayent, ?liiO to be usid for the purpose of the election. While visitinj^ a part of the county with which the appellant was not much acijuainted, but with which B. was wtll aciinainted, they paid an electioneering visit to one K., a leading man in that locality, who indicated to 1$. his dissatisfaction with the candidate of his party, and stated chat, although he would vote for the liberal party, he would not exert himself as much as in the former elections. The appellant then went outside, and B. asked his host, " Do you want any money for your church ? " And, having received a negative reply, added, "Do you want any money fir anytliing?'' K. then answered, "If you have any money to spare tlierc are plenty of things we want it for. We are building a town hall and we are scarce of money." B. then said, "Will 92") do? " K. answered, " Whatever you like, it is nothing to me." The money was left on the table. Then, when bidding the appellant and B. good-bye, K. said, " Gentlemen, remember that this money has no influence as far as I am concerned with regard to the 'jlection." The appellant did not at the time, nor at any subseijuent time, repudiate the act of B. This amount of %'lo was not included in any account rendertd by the appellant or his financial agent, and large sums were admittedly corruptly expended in the election by the agent of the appellant. Election — ' '(mtimud. Held, iitHrinin»{ tliu jtul^iiicnt of tlie court bolow, that the giving of thu 5'J.'> by IJ. to K. was not uii act of liljonility or charity, but a jjift out of aiipi'llaiit't* money, with a view to iiithieiico a voter favourably to the appel- laiit'H ciiiiilidature, ami that, althoUffli tlio money wan not ^iven in tlio appel- hmt'H iircsciKo, yet it was niven with hid l'jllant liad been personally nuilty of a corrupt pructu"'. Megantic Ploctlon Caio, Frechotto v. Goulet.— ix '.'7'.). 21. 7'A'' h'liiil nloii /•Jli'('fli)ii.H All, /S7'f — Wiiifrr hif inji'iif irlf/i. r,,ffi' — lirihrt'i/ — (Jorrapt pmctice — Treating/ on pollinij iho/ — Aiji'iirij. One Prinj^le, an acknowled^^ed n>{ont of the respondont and the President of the ConHcrvative Association, whoso candidato the r('s[)ondont was, iiuide a het of f.i Willi one Parker, a Liberal, that he would vot<3 against the Conserva- tive party, and deposited with a stakeholder the 8'>, which, after the election, was paid over toParkisr. At the trial Prinj,'le denied that ho was actuatud by any intention to intluuncu thu conduct of thu voter, and allc>{uil that tho bi't was made as u sportint^ but on the spur of the moment, and with the expectation tluit, as ho said. Parker, would warm up and vote; but ho also admitted in uvidonco that it passed throuj^h his mind that some ono on tho voter's side would make the money >(ood if he voted. Parker said ho had formed the reso- lution not to vote before ho made his bet, but tho evidence showed tiuvt he ilid not think lightly of tho sum which ho was to receive for his not voting', his answer to one (juestion put to him bein>{ : " Oh ! I don't know that *u would be an insult to any ono not to vote." Held, reversing tho judgment of tho court below, that tho bet in (juestiou was colorable bribery within tho enactments of s-s. 1 of s. 92 of the Dominion Elections Act, 1874, and a corrupt practice which avoided the election. The acta complained of in tho llienan-Ui'duvditt charge were also relied on as suflicient to have tho election set aside. Tlio facts of this charge were that II., a Conservative, prior to the election, canvassed, in company witli the respondent, one B. On election day H, was selected by tho asnist^int secretary of tho association (an acknowledged agent of tho respondent) to represL-nt tho respondent at the ^3urnloy poll, and obtained from him a certilicate under 0. 12 of the Dominion Elections Act, entitling him to vote at tiio Burnley poll. H. there met B. and treated him by giving him a glass of whiskey, and after B. hail voted he gave him fi2, and subsequoutly sent him ?50. The treating, according to B.'s evidence, was nothing more than an act of good fellowship ; and according to H.'s account, B. was not feeling well, and the whiskey wa8 given in consequ*!nce. B. negatived that the §2 were paid him for his vote, and II. said tha . he supposed it was a dollar bill and told B. to go and treat tlie boys with it, and that it was not given on account of any previous promise, or for his havii.g voted. The court below held that none of these acts consti- tuted corrupt i.cts so as to avoid tlie election. On appeal to the Supreme Court of Canada, Held, per Ritchie, C.J., and Henry and Taschereau, JJ. — There was suflicient evidence of II. 's agency, but it was not necessary to decide this point. 264 Election — Continued. Per Strong. J. — Tliere was no proof of H.'a agency. A', f '. r..!), HH..!.!, ./'./' :i| fli'ction caii- run. I': lii ,/"'/,'/'■ "' I riiii — A iijiiiii — JJo/iht'fti'iii- ('i- tlie time within which the trial of an election petition Hhall in: coniineiici :i| the, tune of a tieiiKion of pailiaiiien; tihall not he e.xchi'leil unleMM the court oi' juii(.;e hau or'lereil that tiie re-.))oni|eiil m pri :>ence at the trial iK ncceMwary. (/'.vynn<:, J., (liHHe.ntint/. ;ir.. ■ ..^jplicatioii made after exidratioli of '2ii, wliiiiliih lilt' II 'III I of ciiiirl.. Kitcliii:, O.J., iuhI (i wyntii;, .)., >liMtt'i; for I>'iim' to ii|i|iciil in UiiM ciiHii, lull till) •Juili':iiil (!(iiiiiiiitt, h. ,11, hh. //, h». ./', -A/, H-H. .', hikI, kh. ■)'■'/ d' /f.i -lii'ihi'rii 1)1/ Ill/nil. Afti^r tin; Iriiil of nil iliclion |iititi')n lian Iiimii ivniiinnii'MMl, tlii! trial jn(l((«' may ri'ljonin tlii; i;(i.Hi! fidtn time lo liiiiir, nil t,o liilii ■ni'iiiM com iMiiclil. VVIii:ri; l.lu; |jro(:c<(;ilin|{H for I.Ik; roiiililinr.i'iiniil, of tin; t.riiij li'ivc liiiiili Hlny(;(l (iiirini^ II H<-HHiiin of |iitrliuini-iil liy iiii onli-r of a jiii|(.'i-, aii'l ii diiy Iiiih b(t(7ii lixi'il for tint trial within tin; htatnlory |i<;rio(| of n'm inonlliH iih ho i:)ili-ii'U:ii, 'III wlii'ili (lay till! |ii'lilioiiitr>i prociiiMlml witli timir cniiii'ii' anil <;xaininiMl two witn.^HHirH after wliicli tin) liirariiii.; v« liN aiijoiirn'MJ lo a day Id^yonil tin; wtatiltory porioil an ho oxtoinloil to allow llio |ictitioni:n< to lllo anotln r lull of parliciilarH, tliom: alr>-ai|y lUird liaviii).; Ixton i\i:(.\\\ri:<{ iiiHnfticiotit. Held, llirli! WIIH Hll(fii:i(;lil i:oniiiicii(:i-iiii;!it of tlii- liial wil.liili lln: |)lo|irr linn: aiiil llii; fillilli: pi oci-cliiij^n w<:r<; vall'l nii-lir Mi-i.tujii '.Vl of 'I In; ('oiillO- v«;it«5— Ballot papers rejected — Finding of trial judge. A scrutineer appointed for a polling place ac an election under the written authority of a candidate is an agent for whose illegal acts at the polling place the candidate will be answerable. The insisting by such scrutineer of the taking of the farmer's son's oath T by a hesitating voter whose vote is objected to and who is registered on the list as a farmer's son and not as owner, when, as a matter of fact, the voter's father had died previous to the final revision of the list leaving the son owner of tlie property, is a wilful inducing or endeavouring to induce the voter to take a false oath, so as to amount to a corrupt iractice within ss. 90 iV 91 of c. 8 R. S. C, and such corrupt practice will avoid the election under s. 93. Strong and Gwynne, JJ., dissenting. PtT Strong, J. : That reading section 41 in conjunction witli section 4.5^ 8-s. 2, and the oath T in schedule A of c. 8, R. S. C. ; an enquiry on a scrutiny as to the qualification of a farmer's son at the time of voting is admissible, and if it is shown that «. larger number of unqualified farmer's sons votes than the majority were admitted the election will be void. (Taschereau, .1., contra.) •J. Secrecy of the ballot is an absolute rule of public policy, and it cannot be waived. S. 71, c. 9, R. S. C. On this appeal, certain ballot papers being objected to. Held, that it will require a clear case to reverse the decision of the trial judge who has found as a question of fact whether there was or was not evidence that the slight pencil marks or dots objected to had been made designedly by the voter. Also, that where the x is not unmistakably above or below the line sepa- rating the names of the candidates the ballot is bad. Haldtmand Election Case, Walsh v. Montague.— xv. 495. ^il, BilUry by agent — Proof of agency — Proof by conduct. An election petition charged that H., an agent of the candidate whose election was attacked, corruptly offered and paid S5 to induce a voter to refrain from voting. The evidence showed that H. was in the habit of assisting this particular voter, and that being told by the voter thut he contemplated going away from home on a visit a few days bsfore the election, and being away on election day. H. promised him $.5 towards paying his expenses. Shortly after 209 Election — CuntimiaL * the voter went to the house of II. to borrow a coat for his journey, and H.'s brother ^ave him ?5. He went away and was absent on election day. Held, that the offer and payment of the §5 formed one transaction and conbtituted a corrupt practice under the Election Act. At the election in question there was no formal orj^aniaation of the party supporting? the appellant. The county reform asHociation had been disbanded and the minutuH, re^jularly kept since 1H8'J. destroyed, as were the rouf^li minutes of every meeting of a convention of the party held since that date. In lieu of local committees vice-presidents were appointed for the respective townships, and on the approach of a contest the vice-presidents called a meelint,' of the county association, composed of all reformers in the riding,', to fjo over the lists and do all the necessary work of the election. The evidence of H.'s agency relied on by the petitioner was, that he had always been a reformer, had been active for two elections, had attended one important committee meeting and been recognized by the vice-president of his township as an active supporter of the appellant, and that he acted as scrutineer at the polls in the election in question. The trial judge held that all these elements combined, in view of tlie state of affairs regarding organization, were sufficient to constitute II. an agent of the appellant. On appeal to the Supreme Court of Canada, Held, Ritchie, C.J., dissenting, and Taschereau, J., hesitating, that the circumstances proved justified the trial judge in holdmg the agency of H. established. Haldimand Election Case, Colter v. Glenn.— xvii. 170. 82. Provincial election — Fund for — Contract relatiiirj to— Proniia- aory note—JS V. c. 7,s. ..'O'fJ (Q.)--R. S. Q. Art. //..'o. In an action on a promissory note the evidence showed that its proceeds were given to an election agent to be used as a portion of an election fund con- trolled by the maker. Held, that the transaction was illegal under 38 V. c. 7, s. 200 (Q.) (now K. S. Q., Art. 1'2">) which makes void any contract, promise or understanding in any way relating to an election under that Act, and the plaintiff could not recover. Dansereau v. St. Louis.— xviii, 587. 3.3. Election ju'tition — Preliminanj object io7ifi — Service at iJom'.- cile—R. S. a c. 0, .s. 10. Held, that leaving a copy of an election petition and accompanying documents at the residence of the respondenf with an adult member of his household during the five days after the presentation of the same is a Bufiicient service under section 10 of the Dominion^Controverted Elections Act even though the papers served do not come into the possession or within the knowledge of the respondent, (See now 54-55 V. c. 20, s. 8.) King's (N. S ) Election Case, Borden v. Berteaux.— xix. 526. 270 Hlection — Coutinin il. S'i. Election petit itm — Appf'/l — Dissolafioii of P(i.rl'i at the trial taxed and paid out of the money deposited in the court below by the petitioner as security for costs, moved before a judf^e of the Supreme ( 'ourt in cliambers (the full court haiing referred the motion to a judge in cliambers) to hiive the appeal dismissed for want of prosecution, or to have the record remitted to the court below. The petitioner asserted his right to have his deposit returned to him. Held, per Patterson, J., that the final determination of the right to costs being kept in suspense by the appeal the motion should be refused. Held, also, that ina.smuch as the money deposited in the court below oniiht to be disposed of by an order of that court, the registrar of this court should certify to the court below that the appeal was not heard, and that the petition dropped by reason of the dissolution of Parliament on t'le 2nd February, 1891, Halton Election Case, Lush v. Waldie.-^xix. 657. [In this case the court below, having refused to pay out the money deposited to the petitioner on his application, he moved before tlie Supreme Court and obtained from that court, upon its being shown that the order made by Mr. Justice Patterson had not been appealed from, a declaration that he was entitled to the repayment to him of the money deposited, both as security for costs of petition and as security for costs of appeal. — 15th March, '93.] 85. Elect tun petition — Preliminary objections — R.S.C. c. 9,8. Go' — Emjlii^ligenend riden — Copy of petition — R. S. C. c. 0, .s. 9 (h) — hescription and occupation of petitioner. Held, aftirming the judgment of the court below, that the judges of the court in Manitoba not having made rules for the practice and procedure in controverted elections the English rules of Michaelmas Term, IStJS, were in force (R. S. C. c. 9, s. 03), and that under rule 1 of the said English rules the petitioner, when filing an election petition, is bound to leave a copy with the clerk of the court to be sent to the I'eturning officer, and that his failure to do BO is the subject of a substantial preliminary objection and fatal to the pttition- Strong and Gwynne, JJ., dissenting. Held further, reversing the judgment of the court below, that the omission to set out in the petition the residenc . address and occupation of the petitioner is a mere objection to tlie form which v..u be remedied by amendment, and is therefore not fatal. Lisgar Election Case, Collins v. Ross. — xx. 1. 271 Hlection — ('untinuiii, 3G. Section opj/cal — Freliviinavy ohjedlonH — Statiui of jietltioner — Onus Prolxnidi — Court equally divided — Efi'eet of. By proliminary objections to an election petition tlie respondent claimed tlie petition sliould be dismissed because the said petitioner liad no ri{?l\t to vote at said election. On the day fixed for proof and hearing of the prelim- inary objections the petitioner adduced no proof and the respondent declared that he had no evidence and the proliminary objections were dismissed. Held, /)(')• Sir W. J. Ititchie, C.J., and Taschercau and Patterson, JJ., that the unui pvohamli was upon the petitioner to establish his status, and that the appeal should be allowed and the election petition dismissed. Per Stront,', J., that the onun jirohtindi was upon the petitioner, but in view of the established jurisprudence the appeal should be allowed without costs. Fournier and Gwynne, JJ., contra, were of opinion that the onwt prohandi was ou the respondent. The Megantic Election Case (8 Can. S. C. R. ICi)) discussed. When the Supreme Court of Canada in a case in appeal is equally divided so that the decision appealed against stands unreversed the result of the case in tlie Supreme Court affects the actual parties to the litigation only and the court, when a similar case is brought before it, is not bound by the result of the ]n'evious case. [See infra, 40.] Stanstead Election Case, Rider v. Snow. — xx. 12. 37. Election petition — Preliminary objections — Personal service at Ottawa — Security — Receipt — R. S. C. c. 9, ss. S i(: 9, s-s. (e) tO (g) and s. 10. In Prince Edward Island two members are returned for the electoral district of Queen's County. With an election petition against the return of the two sitting members the petitioner deposited the sum of iif2,000 with the deputy prothonotary of the court, and in the notice of presentation of petition and deposit of security he stated that he had given security to the amount of one thousand dollars for each respondent, " in all, two thousand dollars," duly deposited with the prothonotary, as required by statute. The receipt was signed by W. A. Weeks, the deputy prothonotary appointed by the judges, and • acknovt-ledged the receipt of $2,000, without stating that $1,000 was deposited as security for each respondent. The petition was served personally on the respondents at Ottawa. Held, 1st. That personal service of an election petition at Ottawa without an order of the court is good service under section 10 of The Controverted Elections Act. 'Jnd. That there being at the time of the presentation of the petition security to the amount of $1,000 for the costs for each respondent the security given was sufficient. S. 8 & s. 9, s-s. (e) c. i>, R. S. C. 272 Election — Cimtimwd. Hrd. That tlie payment of the money to the deputy prothonotary of the court at Charlottetown was a valid payment. S. !(, bu. (ij) c. '.), U. H. C. Queen's County, Daviei v. Hennessy, and Prince County, Perry v. Cameron (P.E.I.) Election Cases- — xx. 20. 38. Elcctlua lietition — Re-service of — Order (jranting extension (jf time — Preliminary ohjedioan — R. H. (J. c. 9,8. 10 — Dencrip" tiun of petitioner. On the ISthof April, 1891, the petitioner omitted to serveon the appellant with the election petition in this case a copy of the deposit receipt, but on the 20th April applied to a judye to extend the time for service that he mijjhtcLire the omission. An order extendinj^ the time, subHequently attirmed ou appeal by the Court of Appeal for Ontario was made and the petition was re-Hurved accordingly with all the other papers prescribed by the statute. Before the order e.xtendint{ the time had been drawn up the respondent had filed preliin- inary objections and by leave contained in the order he filed further preliminary objections after the re-service. The new list of objections included those made in the first instance, and also an objection to the power or jurisdiction of the Court of Appeal, or a jud^^e thereof, to extend the time for service of the petition beyond the five days preacribed by the Act. Held, that the order was a perfectly valid and good order, and that the re-service made thereunder was a proper and regular service. 11. S. C. c. ',), s. 10. The peiition in this case simply stated that it was the petition of Angus Chisholm, of the township of Lochiel, in the county of Glengarry, without describing his occupation, and it was shown by affidavit that there are two or three other persona of that name on the voters' list for that township. Held, aftirming the judgment of the court, below, that the petition should not be dismissed for the want of a more particular description of the peti- tioner. Glengarry Election Case, McLennan v. Chisholm.— xx. 38. 39. Election petitions — Preliminary objections — Service of peti- tions — Security — R. S. C. c. 9, s. 10, and a. 9 (e) & (g). Appeals from the decisions of the courts below dismissing preliminary objections to the election petitions presented against the appellants. The questions raised on these appeals were : 1st. Whether a personal ser- vice on the respondent at Ottawa without or with an order of the court at Halifax, or at his domicile is a good service. 2nd. Whether the payment of the security required by R. S. C. c. 9, s. 9 (c), into the hands of a person who was discharging the duties of and acting for the prothonotary at Halifax, and a receipt signed by said person in the prothonotary 's name, section 9 (g), were valid. The Court, following the conclusion arrived at in the King's County (N. S.), 19 C. a. C. R. o^C, and 'Queen's County (P. E. 1.), Election Cases, 273 Election — ('unthninl. "20 C. S. C, U. "id, liiild the servico and payment of socurity valid and a Hub- utantial comiiliuiicu with the iXMiuiieniontH uf the statute. Appealtt disniisbied with costs. Present : -Sir W. J. Ritchie, C.J., and Strong, Fonrnier, Taschoroau, Owynno mid I'littornon, .T.I. Shelburne IN.S.), White v. Greenwood; Annapolis (N.S.), Mills v. Ray; Lunenburg (N. S.I, Kaulbach v. Eisenhauer; Antigonish (N. S.), Thompson v. McOillivray ; Pictou (N. S.I, Tupper v. McCoU; and Inverness (N. S.), McDonald v. Cameron. — xx. IGD. 40. Klpction petition — Status of pditioner — Onus prohancU. The petition wna served upon the appellant on the 12th of May, 1801, and on the Kith 3Iay the appellant tiled preliminary objections, the first beinf^ as to the status of the petitioners. When the parties were heard upon the merits cif the preliminary objections no evidence was >{iven as to the status of the petitioners and the court dismissed the objections. On appeal to the Kupreme ("onrt. Held, reversing tl.e judgment of the court below, Gwynne, J., dissenting, that the onus was on the petitioners to prove their status as voters, lite StiviHeud Cane, '20 Can. S. C. R. 12, followed. Bellcchasse Election Case, Amyot v. Labrecque.— x.k. 181. 41. Election intition — Preiiminm'y examination of respondent — Order topodpone until after session — Effect of — Six months' limit— R. S. C. c. !), ss. J 4 it- 3.2. On the 23rd April, 18i)l, after the petition in this case was at issue, the petitioners moved to have the respondent examined prior to the trial so that he might use the deposition upon tlie trial. The respondent moved to postpone such examination until after the session, on the ground that being attorney in his own case it would not " be possible for him to appear, answer the interroga- tories and attend to the case in which his presence was necessary before the closing of the session." This motion was supported by an affidavit of the respondent stating that it would be " absolutely necessar\' for him to be con- stmtly in court to attend to tlie present election trim anci that it was not l^ossible "for him to attend to the present case for whiui his presence is necessary before the closing of the Musaion," and the court ordered the respondent not to appear until after the session of Parliament. Immediately after the session was over, on the 1st October, IH'.ll, an application was made to fix a day for the trial, and it was fixed for the 10th of December, 1891, and the respondent was examined in the interval. On the 10th of December the respondent objected to the jurisdiction of the court on the ground that the trial had not commenced within six months following the filing of the petition and the objection was maintained. Held, reversing; the judgment of the court below, that the order was in effect an enlargement of the time for the conimencemeni; of the trial until CAS. ma. — 18 274 Election — ' 'unlinui'il. after tho soHsiuu uf I'lirliaiiioiit and, tliiTeforo, in tliu cuiiiptitutioii ut tiniu for tho comnieiiccmeiit of tho trial tlio time occtipicil by tho suHtiioii uf I'arliaiiieiit should not bo inchidud. U. B. C. o. M, h. 82. Laprairie Election Case, Oibeault v. Pelletler. xx. 16'i. 42. Eh'd'um 2)etUion — Prelim inari/ objections — Deposit of secariti/ llS.C.c.n,H.O(f). The preliniiimry objection in tlio caHo whh that tho Hecurity and dt'iionit receii)t were illui^al, null and void, tho written receipt aif^ned by the protiiono- tary of the court beinj? au follows : — " That the security reijuirod by law hail been Kiven on behalf of tho petitioners by a sum of SI, 000 in ii Dominion note, to wit, a bank note of ftl.OCO (Dominion of Canada) bearin>^ tho iiumbor 21)14, deposited in our hands by tho said petitioners, constituting a legal tender under the statute of the Dominion of Canada now in force." The deposit was in fact a Dominion note of S1,000. Held, af{irr.iin({ tho judgment of the court below, that tho deposit and receipt complied sufficiently with section 9 (/) of tho Dominion Controverted Elections Act. Argenteuil Election Case, Christie v. Morrison.— xx. l<,)i. 48 Election petition — Status of petitioner — Wlien tobe ((etcnni)te wuntod it to lend to G., to LMiablo liini to no to Liatowol to voto. H., ti.e a^unt, lent the money to W., wlio handed it over to O. W. returned the two doilais to 8. the day before thu trial. The jiuI^uh at the election trial held that it wau a bona jlile loan by H. to \V. On appeal to the Supremo Court of (Canada : Held, roverniniL; the jii(l({ment of the court below, tliat as the deciHion of the trial judges depended on the inference drawn from the evidence their decision could bo reviewed in appeal, and that tho proper inference to bo drawn from tho undittputed facta in the present case wan that tho loan by H. to W. was a mere colourable transaction by H. to pay tho travelling expenncH of (}. within tiic provisions of section 88 of Tho Dominion Elections Act and a corrupt practice aufticiont to avoid the election under section 01 of tho said Act. Ktron^,', J., tliaaontinji, was of opinion that there was no evidence that tho loan of tho two ikiUars was made to G. with tho corrupt intent of induciu({ him to vote for the respondent. Patterson, J., dissontin({ on tho (>round that as the decision of the court below depended on the credibility of the witnesses it ouyht not to be interfered with. Per Strong and Patterson, JJ. , affirming the jud^^ment of the court below, that upon the evidence, which is reviewed in the judf^monts, tho Grand Trunk Railway tickets issued at Toronto and Stratford for the transportation nf vi iters by mil to tlio polls in this case were free tickets, and that as the free tickets had been K'ven to voters who were well known supporters of tho respondent prepared to vote for him and for him alone, if they voted at all, it did not amount to paying the travelliufj expenses of voters within tbo nieaninj^ of section H8 of Tho Dominion Elections Act. Bevthier Election Ca*i', \) Can. S. C. R. 102, followed. • ' * North Ferth Election Case, Camnbell v. Grieve, xx. 331. 45. Eledioi) — Promise to procure employment hij cundUbite — Corrupt practice — Finding of the trial jiulfjuH — R. S. C. c. S, s. S4 (h). On a charge by the petitioner that the appellant had been guilty per- sonally of a corrupt practice by promising to a voter W. to endeavour to procure him a situation in order to induce him to vote, and that such promise was Bubsecjuently carried into effect, the trial judges held on the evidence that the charge had been proved. The promise was charged as having been made in tho township of Thorold on the '28th February, 1891. At the trial it was proved that W. some time before the trial made a declaration upon which the charge was based, at the instance of the solicitor for the petitioner, and had got for such declaration employment in Montreal from the C. P. R. Co. until tho trial took place, and W. swore that the promise had been made on the 17th February. G., the appellant, although denying the charge, 27G Election — ( 'inttinucd. admitted in his examination that he intimated to W. that he would assist him, and there was evidence that after the election G. wrote to W. and did endeavour to procure him the situation, but the letters were not put in evidence, having been destroyed by W. at the request of the appellant. Held, affirming the judgment of the court below, that as the evidence of W. was in part corroborated by the evidence of the appellant, the conclusion arrived at by the trial judges was not wrong, still less so entirely erroneous as to justify the court as an appellate tribunal in reversing the decision of the court below on the questions of fact involved. Welland Election Case, GermaH v. Rothery. — xx. :^7(). 40. Election petition — Jiuhjmcnt — R. S. C. c. 0, s. Jf.3 — Enlanje- ment of time for commencement of trial — R. S. C. c. 9, s. oS — Xotice of trial — Shorthand ivriter's notes — Appeal — R. S. C. c. .9, s. 50 {h). In the Pontiac Election Case the judgment appealed from did not contain any special findings of fact or any statement that any of the charges men- tioned in the particulars were found proved, but stated generally that corrupt acts had been committed by the respondent's agents v/ithont his knowledge, and declared that he had not been duly elected and that the election was void. On an appeal to the Supreme Court on the ground that the judgment was too general and vague : Held, that the general finding that corrupt acts had been proved was a sufficient compliance with the terms of the statute R. S. C. c. 9, s. 43. On the 10th October, IS'Jl, the judge in this case within six months after the filing of the election petition by order enlarged the time for the com- mencement of the trial to the 4th November, the six months expiring on tlie LSth October. On the I'.ith October another order was made by the judge fixing the date of the trial for the 4th November, 1891, and fourteen clear days' jiotice of trial was given. The respondent objected to the jurisdiction of the court. Held, that the orders made were valid. Ss. 31, 33, c. 9, W. S. C. Held, also, 1. That the objection to the sufficiency of the notice of trial given in the case under s. 31 of c. 9, R. S. C. was not an objection which could be relied on in an appeal under s. 50 {h) of c. 9, R. S. C. 2. That evidence taken by a sliorthand writer, not an official stenographer of the court but who has been sworn and appointed by the judge, need not be read over to witnesses when extended. Pontiac Election Case, Murray v. Lyon.— xx. i)2U. 47. Election petition — Jodgment voiding election — Trial — C-om- raeucent of — Six months — Consent to reversal of judgment —R. S. d. c. 135, s. 52. Appeals from the judgments of the Superior Court for Lower Canada. In these two cases the trials were commenced on the 22nd day of Decem- ber, 1891, more than six months after the tiling of the petition, and subject to 277 HleCtion — (Dntinniil, the objtction taken by tho respondents that the court had no jurisdiction, more than six months liavng eUipsed since the tiling of the petition end no order made enhvrgin;^ the time for the commencement of the trial ; the respondents consented that their elections be voided by reason of corrupt acts committed by their agents witliout their knowledfje. On appeal to the Supreme Court upon the (juestion of jurisdiction the petitioner's counsel sij^ned and tiled a consent to the re\ersal of tlie jud>^me:it appealed from without costs, admitting that the. objection was well taken. Upon the tiling of an affidavit as to the facts stated in the respondent's consent, the appeal was allowed and the election petition dismissed without coats. E. S. C. c. 135, b. 62. Bagot Election Case, Dupont v. Morin ; Rouville Election Case, Brodeur Y. Charbonneau. — xxi. 28. •ts. Ehictioii appeal — Discontinuance — Effect of- — Practice — Cer- fijicate of registrar — Xew ivrit. By a judgment of the Superior Court in the controverted election for the electoral district of L'Assomption, the appellant was unseated for corrupt practices by agents, and upon appeal taken by him to the Supreme Court tho case was inscribed for hearing for tlie May sessions, 1892. When tlie appeal was called, no one appearing for the appellant, counsel for the respondent stated that he had been served by tho appellant's solicitor with a notice of dis- continuance, and the Supreme Court ordered that the appeal be struck off the list of appeals. The notice of discontinuance having been tiled in the registrar's office, the regTStrar certitted to the Speaker of the House of Commons that by reason of such discontinuance, the decision of the trial judges and their report, were and are left unaffected by the proceedings taken in the Supreme Court. Tlie Speaker subsequently issued a new writ for the electoral district of L'Assomp- tion. L'Assomption Election Case, Gautliier v. Brien.— xxi. •>'.}. 49. Election petition — Status of petitioner — Preliminary objec- tion — Lists of voters — Dominion Elections Act, R. 8. G. c. 8, ss. JO (b), SI, 33, 41, o.i, o8 tO 65 — The Electoral Fran- • chise Act, R. S. C. c. o, s. 32. Held, aflirming the decision of Gill, J., that where the petitioner's status in an election petition is objected to by preliminary objection, such status should be established by the production of the voters' list actually used at the election, or a copy thereof certitied by the clerk of the Crown in Chancery, R. S. C. c. 8, ss. 41, 58 & 65, R. S. C. c. 5, s. 32, and the production at the enquCte of a copy certitied by the revising officer of the list of voters upon which his name appears, but which has not been compared with the voters' list actually used at said election is insufficient proof. Gwynne and Patter- son, JJ., dissenting. Richelieu Election Cass, Paradis v. Bruneau.— xxi. 168. 278 Election — Contimieil. 50. Two petitions pending against appellant — Motion to join both petitions for trial — Refusal of by court — Election set aside on admission of bribery by agents — Judgment not appeal- able— R. S. C. c. 9, ss. 30 & 50. See JURISDICTION. 110. Electric Light. Municipal corporation — Duty to light streets — Flickering and going- out of electric light not in itself evidence of negligence. See MUNICIPAL CORPORATION, 20. Engine —Agreement to discontinue use of traction engine — Con- struction of. See AGREEMENT, 13. Engineer— Certiticate of. See PETITION OF RIGHT, 1, 2, 8. RAILWAYS AND RAILWAY COMPANIES, 9. 2. Decision of, binding as to price. See CONTRACT, 17, 53. And »ee CERTIFICATE OF ENGINEER. Error — Remedy by writ of — Causing jurors to stand aside — Right of crown to " stand aside" after perusal of panel — Question of law arising at trial— Case I'eserved. See CRIMINAL APPEAL, 13. Escheat — Property of person dying intestate i'.nd without heirs escheats to crown for benefit of proviii'^e. See LEGISLATURE, 6. Escrow. See DEED, 1. 2. Policy not countei*signed. See INSURANCE, LIFE, 5. '6. Application for insux'ance — Policy in hands of agent. See INSURANCE, MARINE, 33. 279 Estate. See DISTRIBUTION OF ESTATE. Estate Tail. See WILL, 1. MORTGAGE, G. Estoppel. See DEED, 1. 2. Etjuitable — A(ljoininrocess — Representation of indebtedness by defendants. Plaintiff held a judgment against one George Cntten, and was about to sue Ryerson and Moses, whom he understood to be Cutten's partners. Before doing so he consulted one of the defendants, by whom he was informed tli it there was a balance of some $2,700 due from the defendants to Cutten, for work performed for the defendants on the Western Counties Railway under a con- tract, and defendants suggested that this amount might be made available to satisfy plaintiff's claim, if there was a garnishee law. Plaintiff's attorney, on the strength of this representation, issued garnishee process, when the defend- ants pleaded denying that there was any debt due. Previous to the garnishee process being issued, Cutten had drawn an order, requesting defendants to pay all sums coming due to him under the engineer's monthly certificates to one Killam, but there was no evidence of any indebtedness of Cutten to Killam. Held, affirming the judgment of the Supreme Court of Nova Scotia (2 Russ. tt Geldert, 199) , Strong and Gwynne, JJ., dissenting, that the defendants were estopped by their representation from denying their indebtedness to Cutten ; and that there was not evidence of such an assignment as would prevent the attachment from operating on the fund. Appeal dismissed with costs. Shanly y. Fitzrandolph.— 28th April, 1882. 5. Lands taken for railway — Debentures issued by county for daniao;es awarded. ,SV^ JURISDICTION, 29. 280 Estoppel — i'ontinuetl. 6. When posHOHsion of laiul fraudulently ohtained thn>u;^h a ten- ant, tho posHessor cannot ()m(((jf' — Rfpairs — Use of houmsfrec—JG V. c. SI, (P.Q.). F. McC. brought an action against G. 15. for ?4,4tj4 as iluehiin for charges which he was authorized to collect under 3li V.c. 81, (P. Q ),for the use by G. B of certain booms in the Nicolet river durinj,' the vearH 1887 and 1888. O. B. pleaded that under certain contracts entered into between F. McC. and G. B. and his (luteiirn, and the interpretation put upon them by F. McC. the repairs to the booms were to be and were, in fact, made by him, and that in considera- tion thereof he was to be allowed to pass his logs free ; and, also, pleaded com- pensation of a sum of .$9,620 for use by F. McC. of other booms, and repairs made by G. H. on F. McC.'s booms, and which by law he was bound to make. Held, reversinj; the juJj'ment of the court bilow, that there was evidence that F. McC. had led G. B. to believe th it under the contracts he was to have the use of the booms free in consideration for the repairs made by him to piers, A'c, and that F. McC. was estopped by conduct from claiming the dues he might otherwise have been authorized to collect. Held, further, that even if F. McC.'s right of action was authorized by the statute the amount claimed was fully compensated for by the amount expended in repairs for him by G. Bali Y. McCaffrey.— xx. 319. And gee IlEVENDICATION, 3. 19. Title to itdtd — Foreshore of loirhour — Grant from local government — Conveyance by grantee — Claim of dower by wife of grantee — Objection to — Estoppel — Act (f local legis- lature confirrning title — Vtdiditij of — Pleading. After the British North America Act came into force the government of Nova Scotia granted to S. a part of the foreshore of the harbour of Sydney, C.B. S. conveyed this lot through the C. B. Coal Co. to the S. it L. Coal Co. S. having died, his widow brought an action for dower in said lot to which the company pleaded that the grant to S. was void, the property being vested in the Dominion government. Held, affirming the judgment of the Supreme Court of Nova Scoiia, Strong and Gwynne, JJ., dissenting, that the company having obtained title to the property from ,S. they were estopped from saying that the title ol S. was defective. 288 Hstoppel — ' 'iintinui'd. Per Strong and Gwynne, JJ., dissentiMf} : The conveyance by 8. to the C. B. Colli Co. was an innocent convoyance by which S. liiniself wonld not have been estopped and aa eatoppel must be mutual his j,'rantees would not. There were no recitals in the deed that would oatop them and estoppel could not be created by the covenants. After the conveyance to the defendant company an Act was passed by the lef^islature of Nova Scotia rati." 'mfi and confirming the title of tlie defen- dant company lo all property of the C. B. Coal Co. Held, that if the lc)>islature ccnld by statute affect the title to this pro- perty whicli was vested in the Dominion tjovernment it had not done so by this Act in whicii the Crown is not expressly named. Moreover the statute should have been pleaded by the defendants. The Sydney & Louisburg Coal and Ry. Co. v. Sword.- xxi. 152. 20. By conduct — Booms — Proprietary I'iohts — Revendicatioii. See REVENDICATiON, 3. 21. Missing deed — Execution and registration of. See EJECTMENT. 3. Eviction. Construction of lease — Entry by lessor to repair — Intent — Suspen- sion of rent. See LANDLORD AND TENANT, 7. Evidence — Special case — Farther evidence. h'eld, that when a case has, by consent of parties, been turned into a special case, and the judge's minutes of the evidence taken at the trial agreed to be considered as part of the said special case, the court has no power to add anythinf^ thereto, except with the like consent, and has no power to order any further evidence to be taken. Smyth Y. McDougall. -i. 114. 2. Admissibility of. See SALE OF GOODS, 1. S. Contradiction of witness. See WITNESS, I. 4. Evidence of lilo'mtiff not admissihle — Actions ar/ainsf ddmin- istrators — Constraction of s. 4^1, c OG, R. S. X. S., J^li scvIch. C. sued M. it R. M. accepted service and acknowledged amount due, but R. pleaded to the action. Before trial both defendants died. Then G. R. & R. R.. as administrators of R., were, before trial, made [larties to the action. 284 Evidence— ''"Ht/«Ht'(/. At the trial C. wiix •.'Xiiniined us a witiieBti ill ttupport of bin own case, hiuI when iiHJted what hud taUoii place botwuen him and the deccaHed M. & H., the learned jiid^o ridud that the evidence waH inadtnisbihlo under a. 11, c. IMi of the Kcvi»)ed Htatutos of Nova Scotia, 4tli aeries. Held, afhrniin^ tiic judgment of tiie court bolow, that under Raid aection, in an action a>{ainBt adininiHtratorn made partieH to an action alter inHUu joined, but before trial, the plaintiff cannot ffive any evidence in hin own favour of dealin^^M with a deceased defendant. Ilenry, J., dinHentin>i. Cheiley v. Murdock.— ii. 4h. 5. Rrjccfion iif — Promisftor>j nofrs — Juliif /itihillfi/ mi — Mls- tl i I't'cflon lis to i llfci'CMt. riaintiffa sued W. upon two promissory notes sitijned by one T. E. and W . The notes were dated at Halifax and made payable to plaintiffs' order in Boston, U.S. The notes were stamped, but before action brought double 8tanii)s were arti.\ed and no contract as to interest appeareil on the face of them. \V. pleaded, inter alia, that he had Binned the notes upon an under- standing,' and a-^'reemcnt that he should be liable vhereon as surety only for T. K., and that plaintiffs, without his knowlcd^je o; consent, af?recd to nive and nave time to T. K., and forbore to enforce p'.iyment when they miylit havt) been paid. At the trial W. souj^ht to cross-examine one of the plaintiffs on iin affidavit made by the witness, and to which was annexed a letter to plaintiffs from T. E. This evidence was rejected by the jud>{e, and a verdict was ^iven for plaintiffs with interest. A rule nisi to set aside verdict was dischar;iiij>f('s — »S'(*/'' nf sforl,-t ii-ti'iiih' hif ii fiif/tfi' in his aoi) —OiitiH />r<)li(iii0.(JB (for stook of ^ooda Hold by Ij.R. to liiH Hon) and 9151.07 ai)d U!)0.7fi for " cuhIi received at the counter," charj^ed by tlie ruHpondent in her account, were contested. In 1H7I, L. L. R., the Minor's fatiier, married one M. C. G., and by contract of marriage obtained from his father, L. K., two immoveable properties, en uriincctiiciit iVIioiric. At Che same time L. U., the father, retired from business and left to L. L. U, his son, the whole of his stock-in-trade, which was valued at 9'>,l()l).li:), making an inventory tliereof. L. L. 11. died in 1872, leaving; one ciiild, said M. L. II, ('. U., and L. 11., lier (grandfather, was appointed her tutor. Tiiere was no evidence that the stock-in-trade had been sold by the father and purchased by the son, or that the father fjave it to his son. However, when L. H., in Ids capacity of tutor to his (grandchild, made an inventory of his son's succes- sion, he charged his son with this amount of S.'i.lOO.O^. Held, reversing the jud^jmcnt of the court below, that it was for the respondent to prove that there had been a sale of the stock-in-trade by L. It. to his son L. L. 11., the minor's father, and that there bein^; no evidence . f such a sale, the respondent could not lej^ally charj^e the minor with that amount. As to the other two items, these were ({ranted to the respondent by the Court of Queen's Bench on the ground that, althoufrh they had been entered as cash received at the counter, there was evidence that they had been already entered in the led^^er. The only evidence to support this fact was the affidavit of one Hebert, the book-keeper of L. 11., since deceased, tiled with the reddition dc voinptcs befoi'e notary prior to the institution of this action. Held, reversin({ the jud(,'ment of the conrt below, that the affidavit of Hebert was inadmissible evidence, and, therefore, these two items could not be charf{ed against the minor. Gagnon y. Prlnoe.— vii. 386. [In this case the Judicial Committee of the Privy Council refused leave to appeal. The Judicial Committee held that they will not advise Her Majesty to admit an appeal from the Supreme Court of Canada save where the case is of gravity, involving matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is o lierwise of some public importance, or of a very substantial character. —8 App. Cases, 103— 25th November, 1882.] 9. Manslaughter — Whether evidence as to assaults committed within year of death admissible. See CRIMINAL APPEAL, 2. 2S({ Evidence — ' 'untintud. 10. Question for Jury — Contract not under seal. See AOUKKMENT, h. 1 1 Of acci'ptanco of jrooy executor. See INSURANCE, LIFE, 6. 15. Verdict against weight of. See JURISDICTION, 23. 1(1. Parol, to show I'ight to redeem. ,sVc' MORTGAGE, 8. 17. Of reasonable and probable cause. •SV.; INSOLVENCY, 9. IS. Pai'ol, to establish contract. ,SV<; SALE OF GOODS, 10. If). Withdrawal of evidence from jury. .SV<; NEW TRIAL, 3. 20. When whole evidence before the court, the case will not lie sent back for a new trial. See NEW TRIAL. 4. 21. Where verdict affi^rraed by two courts on weight of — Appeo.l. The appellant appealed from two judgments of the Court of Appeal for Ontario, affirminf^ jut'gmenta recovered against him by the respondent in two several actions brought on alleged contracts. The cases were tried before a judge without a jury, and the respondent obtamed two verdicts. Theise 2h7 Evidence — Cuntinunl. vordictH liav ii>{ beon moveil a^iiinat, were austained by tlio Court)) of (juuun's KencI) ami Cummon PleaH, ropectively, and both by the Court of Appeal for Ontiirii). On appt-tl t» thu Suproino Court, Held, tliat the judgment of the Court of Appeal hIi luld bu attirniuil. I'lr CJwyine, J. -When ii judj^e 1ii\h tried ii ciiHe without a jury and found a verdict, which verdict Iiuh been uthrnied by two courts, this court, Hitting in appeal, should not reverse the conclusion arrived at by the lower courts on the woiyht of evidence, uidens convinced beyond all roasonablo doubt that all the jud^eH before whom tiie case came have clearly erred. Appeal disniisHod with costs. [See also DellechaaBo Case— Jud^nir-it of Taacheroau, .J., H C. H. C. H. 128.J Bickford v. Howard- -18 C. L. J. 422.— 2_'nd June, IMJ. .SVi!(i/((,; Al'l'EAL, li». nUSHAND AND WIFE, 7. SALE OF GOODS, 11. 22. Of notjuy, not admisHihlo to coutrtulict riina facie evidence that A. and B. constitute said firm. McDonald v. Gilbert.— xvi. 700. 42. Goods sold and delivered — Credit— Direction to jury — Witli- drawcd of evidence from jury — New trial. In an action against McK. & M. for goods sold and delivered, the plaintiff swore that he had sold the goods to the defendants and on their creflit, and his evidence was corroborated by the defendant McK. The defence showed that the goods were charged in the plaintiff's books to C. McK. & Co., (the defend- ant McK. being a member of both firms), and credited the same way in C. McK. & Co.'s books, and, that the notes of C. McK. & Co. were taken in payment, and it was claimed that the sale of the goods was to C. McK. & Co. The trial judge called the attention of the jury to the state of the entries in the books of the plaintiff and of C. McK. & Co., and to the taking of the notes, and to all the evidence relied on by the defence, and he left it entirely, tc the jury to say as to whom credit was given for the goods. Held, affirming the judgment of the Supreme Court of New Brunswick, 27 N. B. Rep. 42, Strong and Patterson, JJ., dissenting, that the case was properly left to the jury and a new trial was refused. Present : — Sir W. J. Ritchie, C.J., and Strong, Tascheareau, Gwynne, and Patterson, JJ. Miller y. Steplienson.— June 14th, 1889— xvi. 722. 43. Demolition of dam — Report of expert — Motion to hear fur- ther evidence — Remitting case back. See TRANSACTION. 291 Hvidence — ' 'oitituu'ii, 44. Construction ot" will — Intention — AdnuHHibility of evidence to establish — Joint tenancy or tenancy in common. See WILL, 20.' 45. Municipal aid to railway company — Del)entures signed by warden dr facto — Comjiletion ot" railway — Evidence of — Onui< jirohiindi See RAILWAYS AND RAILWAY COMPANIES, 52. 46. Crown lands — Setting aside letters patent— Error and improvi- dence — Scire facias. See LETTERS PATENT, 2. 47. Marine insurance — Total loss — Finding of jury, one which reasonable men might have arrived at — Right to recover for partial loss. See INSURANCE, MARINE, 30. 48. Coinjwvy — Wivdmij-iq^ — Possession} of books by manacjer — Refusal to deliver up — Evidence. G. was the nuinat^er for the Ottawa district of a hiiiiber company whose headquarters vera in Edinburgh and whose head office for Canada was in Toronto. The company having gone into hquidation an order was obtained from the Court of Sessions in Edinburgh for the delivery of its books by the manager to the Hquidator or to some person appointed by him. This order not having been obeyed an action was brought by tlie company to recover possession of the books from G. who set up tlie defence ^liat he had already given them up, and also that the company had no locus stanch to maintain the action. The evidence given on the hearing showed that after the proceedings in liquidation were commenced G. was dismissed from his employ nient as manager, whereupon he demanded an audit of the books w'uch was com- menced but never completed, and G. swore that after handing over the books to the auditors he had never had possession of them. He also swore that they had never been in his control, having been kept in a safe of which a clerk of the company and the new manager alone had the combination. It was shown by the plaintiffs, however, that some time after the audit an agent of the liquidator went to Ottawa to get the books and saw G., who first agreed but afterwards refused to deliver them up, giving as the ground of his refusal that he was liable for the rent of the office, and for other debts of the com- pany, and that he wished to retain what property of the company he had to protect himself. The agent, with the assistance of G.'s landlord, then obtained access to the office where he saw some books which he took to belong to the company, and a safe in which be believed there were others, but G. coming in refused to allow him to remove them and ejected him fr m the 292 Evidence — Continued. office. On this evidence tbe trial judge made an order against G. directing him to doUver to the liquidator all the books and papers of the company in his possession or under his control. This decision was affirmed by the Divi- sional Court and the Court of Appeal for Ontario. On appeal by G. to the Supreme Court of Canada : Held, that the books having been shown to have been in the possession of G. at the date of the visit of the liquidator's agent to Ottawa, and the defendant not having attempted to show what became of them after that date, and his testimony that he did not know what had become of them having been discredited by the trial judge, there was no reason for inter- fering with the order appealed from. Present: — Sir W. J. Eitchie, C.J., and Strong, Foamier, Gwynne and Patterson, JJ. Grant v. The British Canadian Lumber Co.— June 12, 1890— xviii. 708. 49. Question of fact — Fiiidhirj of trial judge — Inferferencti with an appeal. T., a solicitor, brought an action against the officers of the Liberal-Con- servative Association of the East Hiding of Northumberland for services alleged to have been rendered as their solicitor and counsel in the matter of an election petition against the return of the member for the Hiding in the Legislative Assembly of Ontario. At the trial of the action the plaintiff swore that hf was duly appointed solicitor to carry on the election petition by resolution passed at a meeting of the association, and that in consecjuence of such resolution he acted as such solicitor in the conduct of the petition. Tlie defence to the action was that no such appointment was made, or if it was that the plaintiff agreed to render his services gratuitously, and the evidence given for the defendants was that the plaintiff offered his services free of charge, and that it was decided to protest tbe election in consequence of such offer. The trial judge held that no 'retainer of the plaintiff was proved and dismissed the action. His decision was reversed by the Queen's Bench Division, and their decision in its turn was reversed by the Court of Appeal for Ontario, and tlie judgment of the trial judge restored. On appeal by the plaintiff to the Supreme Court of Canada : Held, affirming the judgment of the Court of Appeal, that thi question being purely one of fact which the trial judge was the person most competent to determine from seeing and hearing the witnesses, and it not being clear beyond all reasonable doubt that his decision was erroneous, but, on the con- . trary, the weight of evidence being in its favour, his judgment should not be interfered with on appeal. Present : — Sir W. J. Ritchie, C.J., and Strong, Fournier, Gwynne and Patterson, JJ. Titus Y. ColYille.— June 12, 1880— xviii. 709. 293 Evidence — Continuiil. 50. Improper a(lmission--Cross-exinnin((tiuii--Coni'erscdiov parflij (jiven on examinatiun in chief — Belief ua to signature on, note — Evidence of counsel. To an action on a bond Uie defendants pleaded that it was given iu sottle- mont of promissory notes made by a brotlier of defendants the indorsements to wliicK were forged to the kuowiedf^e of i)hiintiffs, which settlement was the only coi. ,ideration for the execution of the bond. On the trial a verdict was ^iven for plaintiffs which was set aside by the full court and a new trial ortlered on the grcnnd of improper admission of evidence as follows: lat, evidence by a solicitor of what one of the officers of the plaintiff bank had told him relative to an admission by the alleged forger that the notes were genuine; part of this conversation, which related to a different matter, had been given in evidence by the same witness on direct examination, but the court below held that the balance could not be given on cross-examination as it was not connected with what had been already proved. 2nd, evidence by counsel for plaintiffs in the proceedings on the notes which had led to the making of the bond of his belief in their genuineness, which the court below held was not good evidence. Upon appeal to the Supreme Court of Canada from the judgment ordering a new trial. Held, That the evidence objected to was properly admitted and that the juilgment of the Supreme Court of N. B. should be reversed. Present: — Sir W. J. Ritchie, C.J., and Strong, Fournier, Taschereau, Gwynne and Patterson, JJ. Halifax Banking Company v. Smith.— Nov. 3, 1890.— xviii. 710. 51. Weight of — Admissihilitg — Grounds for admission urged at trial — New grounds taken on appeal — Effect of. In an action on a policy of insurance against lire on a stock of goods the verdict for tlie plaintiff was moved against on the grounds of its being against the weight of evidence and of improper exclusion of evidence. The first ground was mainly urged in regard to the amount of damages. As to the second ground the evidence tendered related to the fact that a quantity of unburnt matches and shavings had been found near the part of the premises in which the fire occurred where the bulk of the goods were alleged to have been burnt. The evidence was rejected by the trial judge for the reason that there was no defence pleaded that the fire was incendiary, and on s.ppeal to the full court below it was for the first time urged that it was admissible as sho'" 'ng the nature and extent of the fire in the vicinity. The verdict for the plaintiffs was sustained by the full court. On appeal to the Supreme Court of Canada : Held, Gwynne, J., dissenting, that the decision of the Supreme Court of Nova Scotia should be affirmed. Per Ritchie, C.J., that though the amount of the damages found ir the case was not satisfactory and might well have been submitted to a i iv of business men as a question proper for their determination he wor not 294 Evidence — Continuid. disBent from the judgment dismisain^i the appeal. Ah to tlio other ground the evidence w.ts rightly rejected. When evidence is tendered the jndgo and opj-oaint.; counsel are entitled to know the j^round on which it is offered and none can be urged on appeal that has not been put forward at the trial. Present :— Sir W. J. Ritchie, G.J., and Stront*, Taschereau, Gwynne and Patterson, JJ. Royal Ins. Co. v. Duffug— Dec. 'Jth, 18P* xviii. 711. 52. Afjt'cemevt for trawifer of vemcl — Ahaolute or conditional sale — FiiuliiujH of fact. In a suit for an iiccount of the earnings of a steamer transferred to the defendants by the plaintiff the case had been heard and judijment given when defendants made application to be allowed to put in newly discovered evidence, which was refused by the court below but allowed by the Supreme Court of Canada, which latter court also gave leave to both parties to amend their pleadings. The original answer of the defendants to the action alleged that the transfer of the steamer was made by the plaintiff as security for all advances made or to be made, while plaintiff claimed that it was only as security for a fixed amount. After the order of the Supreme Court of Canada defendants set up a new case, namely, that the trtinafer was absolute in consideration of an annuity of 91,000 to be paid to plaintiff during his life. This defence was raised in accordance with the newly discovered evidence which consisted of an agreement purporting to be executed by plaintiff to transfer to defendants said steamer and all power and control over the same in consideration of such annuity and to execute an absolute bill of sale thereof to defendant. Pursuant to the order of the Supreme Court evidence was taken of the execution of this agreement and resulted in a judgment by the judge in equity of Nova Scotia who heard the case, declaring that it did not contain the true agreement between the parties, that it was executed by plaintiff while intoxicated and incapable of transacting business and that the only consideration for the transfer to the defendant was the fixed sum stated by plaintiff, and he ordered an account to be taken as to the state of the general accounts between the parties. This judgment having been affirmed by the Supreme Court of Nova Scotia in banc, Held, that under the evidence and considering the nature of the trans- action and all the circumstances attending it the courts below could not have found otherwise than they did and their decision should be affirmed. Present: — Sir W. J. Ritchie, C.J., and Strong, Fournier, Gwynne and Patterson, JJ. Seeton y. King.— Dec. 11th, 1800— xviii. 712. 5.3. Receipt — Error — Parol evidence — Arts. 1^, 123^, C. C. S. brought an action to compel V. to render an account of the sum of $2,500, which S. alleged had been paid on the Cth October, 1885, to be applied to S.'s first promissory notes maturing and in acknowledgment of which V.'s book-keeper gave the following receipt : " Montreal, October 6th, 1885. Re- 295 Evideiice-- '-'"«('«»''''• ceived from Mr. D. S. the sum of two thouaand Ave hundred dollars to be applied to liis tirst notes maturint^. M. V., per F. L. " and which V. failed and neglected to apply. V. pleaded that he never hoc the $2,500 and that the receipt was j;iven in error and by mistake by his clerk. After documentary and parol evidence had been given the Superior Court for Lower Canada whose jud!.!ment was aftirmed by the Court of Queen's Bench, dismissed S.'s action. On appeal to the Supreme Court of Canada : Held. 1. That the Ihiding of the two courts on the question of fact as whuther the receipt had been f^iven tlirout^h error should not be interfered with. 2. That the prohibition of Art. 1234 C. C. against the admission of parol evidence to contradict or vary a written instrument, is not d' onlrc public, anil that if such evidence is admitted without objection at the trial it cannot subsequently be set aside in a court of appeal. 3. That parol evidence in commercial matters is admissible against a written document to prove euror. ^Etna Insurance Company v. lirodic (5 Can. S. C. B. 1), followed. Schwersenski v. Yineberg.— xix. 243. 54. Title to land — Possession — Nature of— Statute of limitations. See POSSESSION, 10. 55. Railway Co — Injur)/ to properttj htj — Question of fact av tc/ party liable. F. brought an action on the case against the G. T. Ry. Co. for having been deprived of access from his property to the street by the building of an embank- ment. The defendants claimed that the work was done by the P. & C. Lake Ry. Co. who were the parties, if any liable, to plaintiff : Held, affirming the judgment of the Court of Appeal for Ontario and of the Divisional Court, that the evidence established the liability of the defend- ants. The Grand Trunk Ry. Co. y. Fitzgerald.— xix. 359. 56. Contract — Qiudity of xvork — Conversation hetivcen the parties — Claim for increased price. R. & McR. contractors for the mason work on a portion of the line of the G. T. Ry. Co. made a sub-contract with the plaintiffs B. & S. McR., one of the defendants and S. one of the plaintiffs had some conversation on different occasions as to the quality of the work, difficulty having arisen on the point. The Supreme Court Held, afQrming the judgnlent of the Court of Appeal for Ontario and of the Divisional Court that the evidence supported the claim of the plaintiff's. Ross Y. Barry.— xix. 360. 2U6 Evidence — Contimuil. 57. J'JIcrtiov appeal — PrrHmivory ohjcrfiovs — Slutns of prtlt'iovfr — 0)nis pruhaiuil. Hy preliminary objections to an election petition the respondent claimed the petition should be dismissed because the said petitioner had no ri^ht to vote at said election. On the day fixed for proof and hearing; of the pre- liminary objections the petitioner adduced no proof and the respondent declared that he had no evidence and the preliminary objections were dismissed : Held, per llitchie, C.J., and Tasch.ereau and Patterson, JJ., that the omttt prohandi was upon the petitioner to establish his status and that the appeal should be allowed and the election petition dismissed. Per Stront,', J., that the onua iirohaudi was upon the petitioner, but in view of the established jurisprudence the appeal should be allowed without costs. Fournier and Gwyiine, JJ., contni, were of opinion that tht onux jnvbandi was on the respondent. Tlie Mcyantic Election Case, 8 Can. 8. C. R. 1G9, dis- cussed. Stangtead Election Case— Rider v. Snow.— xx. 12. 58. Election petition — Statuft of petitioner — Onus pjrohandi. The election petition was served upon the appellant on the 12th of May, 1891, and on the 10th of May the appellant filed preliminary objections, the first being as to the status of the petitioners. When the parties were heard upon the merits of the preliminary objections no evidence was f^iven as to the status of the petitioners and the court dismissed the objections. On appeal to the Supreme Court : Held, reversing the judgment of the court below, Gwynne, J., dissentiufj, that the onus was on the petitioners to prove their status as voters. The Statistead Case, 20 Can. S. C. R. 12, followed. Bellechasse Election Case -Amyot v. Labrecque. — xx. 181. 59. Election trial — Decision of trial judcjes — Deduction from infer- ences — Appeal. See ELECTION, 44. 60. Election trial — Proof of corrupt practice — Corroboration of evi- dence of voter — Finding on. See ELECTION, 4.5. 61. Statute of frauds— Absolute deed — Undisclosed trust — Deed in name of third party — Parol evidence. See SPECIFIC PERFORMANCE, 5. 2!J7 Evidence — ' '"Utinuiih G2. l)"(.'i^ dhsnliifi' ill toi'ia iii'ni(h(l. to iipcriitc an iii(>ii the Supreme Court of Canada it was Held, that the judgment of the Supreme Court of New Brunswick should be affitmed and the appeal 2'JN Evidence— 0>Mf/>i »«'(/. (liHtniHHed, the majority of tlio jiu1;{ub (Uitcliie, C..I., ami Tiv>laintilTH. The plaiiitit'fn appear to have a[)peiili.d to the books with tlie idea that tliey would show a change in the defendant's mode of dealing with them after the scttleinent of IHH'2, that the later entries would appear to be a^jainst Patrick O'Brien without the brothers, and would thus indicate a recoj^nition by the defemlant of the partnernhip haviiii^ ceased. To rebut this inference, it was proper for the defefendant to exhibit the earlier accounts in support of his assertion that the same mode of bookkeepiiii; had prevailed throtij^h all the years. Hut when the point made by the plaintiffs had thus been neutralised, the defendant's ri({ht to use his own books as evidence was e.viiausted. The books nii'.'ht or niii;ht not indicate that after 188'2 he had continued to re>?ard the plaintiffs as partners in the same manner as lie had done from 187'.( to 1HM2. If they showed kiiowled).!e on the part of the defendant that the partnership had ceased, they would be co^jent evidence for the plaintiffs, bnt if they merely indicated that the defendant was not aware of any change, they would leave the issue of partnership or no partner- ship untouched. It is complained that Mr. Justice Tuck gave the jury to understand that weiijht might be given in favour of the defendant, on the substantial issue as to the partnership, to the fact that he continued to make his entries in the same way as he had done in the earlier years. There are some expressions in the charge of the learned jud^e, as reported, which are perhaps susceptible of being so construed, but they do not appear to me to be so intended, nor am I so satisfied that the jury would be probably misled by theni, as to feel called upon to interfere on that ground with the judgment of the court below. The reduction of the verdict was done with the consent of the defendant and it amounted in effect to holding that, as to those particular items, thert was r.ot evidence for the jury. \Vhat was done differs in principle from the 1 eduction of a verdict for unliquidated damavjes with the assent of the pin*" tiffs. I know of no principle on which the other party can insist that a nev trial shall he granted for the purpose of investigating claims which are in effect abandoned. In llelt v. Jj< to ^raiit a new trial upor, condition of the party in whose favour a verdict liaH been rendered by a jury ayreoiiiK to accei)t a reduced amount named by the court, ha« been confined to casex of objection taken for excessive damages only, and has not been applied to a case like the pre»ent. Present : llitchio, C.J., and Strong, Tas: hercau, Gwynne and Patter- ISOU, .IJ. O'Brien v. O'Brien.— loth :\[arch, iH'.tO. ()4. Letter of guarantee by Vjaiik —Claim lor loss — I'root' of — Account sales. See GUARANTEE. ()5. Promissory note — Liability on — Maker or endorser — Intention. See BILLS OF EXCHANGE AND PROMISSORY NOTES, 25. (i(). Fire insurance — Lisurable interest — Agreement to cut and store ice — Construction of — Lisurance l>y purcliaser of ice — Admissiliility and evidence of. Sue INSURANCE. FIRE, 27. (J 7. Aged and intirm witness — Death of, after trial— Inutility of new trial. Stv SHIPS AND SHIPPING, 14. G8. Libel — Pleading "not guilty" and " fair comment" — Reception of evidence to prove personal dishonesty — Rejection of evidence tendered in rebuttal — General verdict — New trial. See LIBEL, 8. Exchange— of lands. !:'ee SPECIFIC PERFORMANCE, 7. MOO Execution— Onli-r tliructin;; liuyintiit nl |ijiit of M-nlict as con- dition (jf Htav of »'Xi'CUtion illt-ijiil. .S« DAMAGliH. '2r>. 2. I'll iniiture JHsut' of writ of — In-fLiuliiritv. See FRAUDULENT rUHFintKNCE, 'J. 3. Siilr 1)/ raliwtu/ Hliuirn en hbir — Art oOo, '>M, C. C. P. Wlicre a mimbor of Hliait-H of niilwiiy atnck were lel/ed and udvertised to l)f sold ill one lot, neither tlio dcfi'iulftiit nor any one interested in tiio nnle lerjuestinf? tiio sheriff to Bell the niiftriM separately, and ounli Hhnres wore sold fur nil Hinomit fur in cxcohh of tiie judgment debt for whicli the property waK taken into exocntion, such siile in the ab.Henoo of proof of fraud or collusion was held good and valid. Connecticut & Passumpsic Hlvers Ry. Co. v. Morris.— xiv. ;Hh 4. Chattel inort;;a;^e — FosMCHsifju of ;,'oo(l.s under — Proviso as to Helliny; hy iuort;^'a;;or — Seizure of j^oods under execution by inortoaKfe — Setting- aside as ii;^nvinMt good faith. See CHATTEL MORTGAGE, il. 5. Execution creditor — Lien of for costs under R. S. O. 1.S87, c. 124, s. !». See ASSIGNMENT, V.i. G. W't-lfs of execution — Seal — Sif/natare of pruilKniofiivy. In province of N. S. writs of execution need not bo siyned by the protho- notiiry of the court. It is the seal of the court which <.'ives validity to such writs, not the signature of the officer. Archibald v. Rubley— xviii. IKi. See CHATTEL MORTGAGE. 11. Execution Debtor. See TROVER. Executors — Liability of (P. Q ) — Dihat decortvpte — Interest — Pre- 8cription. Respondents, representing one of the universal residuary legatees of one W. D., sen., sued appellants as joint testamentary executors of the said W. D., sen., to render an account and pay over the balance of the estate in their hands. On a tUbat de comi'te the total value of the estate was proved to be worth $44,.525.()5. Of this amount appellants in their said capacity, as appeared by an account rendered by them, took possession of 814,510.33. The Executors — C'lntiininl. bnliiuco u( ^aO.um.Ha niipeared by the boukw o( W. I). \ Co., to be due to the (ivtftte of W. D.. aen., by W. D , juii., one of the exeoutort, and to have never como into tlio pomieHiiion of tho other exeoutori. Held, tliat iiiulcr Art. 'Jia. Civil Code L. C, ai)i>eUaiitn were jointly and levuraily reit|»jii<«iblo only (or the amount tiioy tooit poaaeaiion of in their joint capacity, and, tlieruforo, timt W. I)., jtin., alone was roHponaible for tho amount of Huch balance. Taschereivu, J., (liHxuDtint^. 2. That ttiHtamontary executorM cannot li'Hally be charged with more than (tix pur cant. intoro«t on the nioneyi* colloctod by tlicni, after their account has been ilenuimleil, in the abHenco of proof that they rcali ted a greater rate of interest by the tiao of Huch moneya. 3. That cntriea in merchants' booka, regularly kept, and unchanged during a term of yeara, with an annual rendering of accounta conforming to audi entrioH to crcditoru, make proof against such uierchantH, purtiuularly after tho ileath of tho creditors. 4. That an action against executors for an account of their administra- tion, and of the monoya they have received, or ought to havo received, in their said capacity, cannot be prescribed otherwise than by tho long prescrip- tion of 30 years. Darling v. Brown.— ii. [2, 2(i. 2. Powers of. .SVt' WILL, 9. 3. Action by on policy of a.ssumnce. See INSURANCE, LIFE, (i, 4. Executor, jiuhjment n{, and the fiovernmeut had a like option of giving, a crosainfj in lieui of compensation, and that on the whole case full compensation had been, awarded by the court below. (See now o'i V. c. 38, s. 3). Yezina v. The Queen.— xvii. 1. 9. Expropriation for yovernvient railway purposes — Severance of kind — Farm crosslnys — Goinpensat ion. When land expropriated for fjovernment railway purposes severed a farm the owner, although not at the time entitled to a farm crossing apart from contract, was entitled to full compensation covering tho future as well as the past for the depreciation of his land by want of such a crossing. Gwynne, J., dissenting on the ground that the owner was entitled to a crossing as a matter of law. [See now 52 V. c. 38, s. 3). Guay Y. The Queen— xvii. 30. 10. Expropriation for railway piiirposes — Award — Validity of — Riparian rights— Obstruction to acces et sortie — R'lyht of action. In an award for land expropriated for railway purposes where there is an adequate and sufficient description, with convenient certainty of the land intended to be valued, and of tho land actually valued, such award cannot afterwards bo set aside on the ground that there is a variation between the description of the land in the notice of expropriation and in the award. A riparian proprietor on a navigable river is entitled to damages against a railway company for any obstruction to his rights of acc^s el sortie, and such obstruction without parliamentary authority is an actionable wrong : Pion v. Ncrih Shore Ruilaay Co., {14 App. Cas. 012) followed. 812 Expropriation — t'ontinunl. TaHchorcau, J., was of opiiiian that tlio award in thiii cane included com- pouiiatioit for the buttuli lyiiiri in front of plaintiffn property, whicli belon({A to the Crown, and, for thai reason, HlmuUl be Hut aHide. Bigaouet^e v. North Shore Railway Co.— xvii. 803. 11. Kailwny Compiitiy — ExproiJiMiition of liiiid — Dt'.Hcriptioii in iim)) or plan tiled — J)oviati«.n — 42 V. c. U, h. .S, s-.s. 11 (]).). See RAILWAYS AND RAILWAY COMPANIEH, 64. 12. Contvdct to hmhl Govcnunevf Rti'iln'mj — Goirrvinfvt lin'il- VMiji A\et, JfJf. V. c. :io, K Ki'J — (.'oihsfracliini of tcr^i> " enqyloyee" — Com/if iovs i}reccul8ory powers jjiven ' the Government of Canada to e.xpropriiile lands rociuired for any pubhc '. )rk can only be exercioed after compliance with the statute rf•(j^irin^^ the land to be set out by metea anil bounds and a plan or description tiled ; if these provisiona are no,t complied with, and there is no order in council iiutlu rizini^ land to be taken when an order in council is necessary, a contractor witli tlie crown who enters upon the land to construct such public work thereon is liable to the owner in trespass lor such entry. Kearney v. Cakes. — xviii. 1 18. And lee NOTICE, 13. 13. Expropruitlon — Prospective co.pah'ditien of propcrtu — Volar to owner — Unity of possi'ssion — Advantage accrivmg to paper town from railway. Appeal and croaa-appoal from the judgment of the Exchequer Court on a claim arising out of an expropriation of land at Port Hawkesbury, N.S., for tlie purposes of the Cape Breton railway. The amount awarded to the claimant was $!t,'228.50, and the Exche(|uer Court judj^ment which is reported at lenuf Huid Act tuiideriii^ thu huiii uf $'J,t'ili-J.4'.2 liMCuinpunHatiun for tlic land expropriated. The lot ill (|U(>Htinii had htfii imcd as a OOV*, ftnd althnn^h the cove wa» nut n InrU'i one, a protltablu huiiber buHineHs had bMTi conducted tlierbon. To enable Hiich a buHJiiegs to bu carrieci on advantat^eouHJy, a valnablo wharf waH erected running into deep water, at which vcshcIh of lar^e Hize could load. The dinieiiBionB of tiiiH wharf were ti,33(i cubic yardfl. The portion of the aaid lot ho taken waH a width of 'i.l feet tlirout{h almoit tiie middle of it and acrosa the wharf by '21 1 fodt, or in all '^LIO Hcjuare feot of beach ; the portion of the wharf thereon expropriatcil coiiMtitiited 1,000 scjuare feet Upon the said reHpondenta refimini{ to acco))t the ouin tendered, the ques- tion of the value to be paid by Hir MajCHty for the land ho expropriated, was Hubmittcd by the said tlie minister of railwayn and canala, under the provi- aions of the (government railways Act, IHHl.to the board of oflicial arbitrators of Canada for their investigation and award. The said board of arbitrators, after hearint; evidence upon the part of the claimants and the crown, awarded the claimants the amount which had been teiukreil and refused as full compensation for tlio luiul expropriated, and all damage to the balance of the property, unci imposed tlie costs uf the arbitra- tion upon the claimants. The respondents thereupon appealed to the Excliequer Court and Mr. ■Justice Fournier, who heard the said appeal, and before whom one witness on either side was examined, set aside the award of the arbitrators and allowed the claimants 511,073 (bpiuf^ ?H,.'(00 us dama^^es suffered by the property tliroukih the construction of the i-oad thron^li it, and ^•^.■"<7:i as the value of the land expropriated) as the amount which the arbitrators should have awarded them. He also allowed the claimants the costs of tlio appeal (save of their witnesses examined in the Exclieiiuer Court) and beu^re the arbitrators. From this judgment Her Majesty appealed to the Buprome Court, and the respondents t;avo notice to Her Majesty's-Attorney General of their intention upon the hearing of tiie appeal to contend that the decision of the court below should be varied and that the respondents were entitled tj a, larger sum as compensation and damages. The questions before the court were entirely those of fact, and it was Held, that the jud!,'ment of the court below should be aflinned and the appeal dis- missed with costs. Present :— Ritchie, C. J.,and Fournier, Henry, Taachereau and Gwynne, J J. The Queen y. Murphy. -9th April, 188(). ai5 Extradition — 'I'lial for ofrciia^ ntluT tliun that for which piisuimr t'XtriulitiMl. SV* CRIMINAL APPEAL, rt. Extra work— Cluiin for. .SV^ PETITION OF RIGHT, 1, 2. H. False Imprisonment. See ASSESSMENT AND TAXES, H. False Pretences — Obtaining' moiu-y hy — Delejjation of authority by AttoiiR'y-( icnoral. See CRIMINAL APPEAL. 1. Farm Crossings— <)l'liuiitiun of niilway company an to. See RAILWAYS AND RAILWAY COMPANIES, i!). .10. EXPROPRIATION. 8, )). Fees — Action by counsel to recover. .SVe PETITION OF RIGHT, 5. COSTS. Felony — Coinpoumlinf^' — Embezzlement of bank funds by agent — Security to bank — Boiiil — Consideration — Agreement not to prosecute. See CONTRACT, 57. 2. Notarial Code— R. S. Q. Art. 3871 — Board of notaries — Dis- ciplinary powers in case of felony. See NOTARY, 4. Ferry. — License to — Construction of- — Disturbance of. The Crown granted a license to the town of Belleville, giving the ri^ht to ferry "between the town of Belleville to Ameliasburg." Held : A sufficient grant of a right of ferriage to and from the two places named. 810 Ferry — Continued. Under the authority of this license the town of Belleville executed a lease to the plaintiff grantinj? the franchise " to ferry to and from the town of Belleville to Ameliasburg," a township having a water frontage of about ten or twelve miles, directly opposite to Belleville, such lease providing for only one landing place on each side, and a ferry was established within the limits of the town of Belleville on the one side, to a point across the Bay of Quinte, in the township of Ameliasburg, within an extension of the east and west limits of Belleville. The defendants established another ferry across anotlier part of the Bay of Quinte, between the township of Ameliasburg and a place in the township of Sidney, which adjoins the city of Belleville, the termini being on the one side two miles from the western limits of Belleville, and on the Ameliasburg shore about two miles west from the landing place of the plain- tiff's ferry. Held, reversing the judgment appealed from, that the establishment and use of the plaintiff's ferry within the limits aforesaid for many years had fixed the termini of the said ferry, and that the defendantrs' ferry was no infringe- ment of the plaintiff's right. Anderson v. Jellet.— ix. 1. 2. Railway ferry — Accident at — Caused b}' want of reasonable precautions. See RAILWAYS AND RAILWAY COMPANIES, 26. 3. f^nder control of corporation — Negligence in nioorino- — Liabil- ity for injury to passenger. See MUNICIPAL CORPORATION, 7. 4. Taxation of ferry boats — Jurisdiction of harbour commissioners, Montreal — 39 V. c. 52 (P.Q.) constitutional — By-law ultra vires as going beyond provisions of statute. See LEGISLATION, 15. 5. Toll hridcje — SS V. c. 97 — Interference — Damages. By 38 V. c. 07, the plaintiffs were authorized to build and maintain a toll bridge on the River L'Assomption at a place called " Portage," and if the said bridge should by accident or otherwise be destroyed, become unsafe or impass- able, the said plaintiffs were bound to rebuild the said bridge within fifteen months next following the giving way of said bridge, under penalty of forfeit- ure of the advantages to them by this Act granted ; and during any time that the said bri;lge should be unsafe or impassable they were bound to maintain a ferry across the said river, for which they might recover the tolls. The bridge was accidentally carried away by ice, but rebuilt and opened for traffic within fifteen months. During the reconstruction, although plaintiffs maintained a ferry across the river, the defendant built a temporary bridge within the limits of the plaintiffs' franchise and allowed it to be used by parties crossin^i 317 Ferry — Continued. the river. In an action brouf,'lit by the plaintiffs, claiming 81,000 damages, and praying that defendant be condemned to demolish the temporary bridge, on an appeal to the Supreme Court it was Held, reversing the judgment ot the court below, Ritchie, C.J. and Patterson, J., dissenting, that the exclusive stat- utory privilege extended to the ferry, and while maintained by the plaintiffs the defendant had no right to build the temporary bridge, but as the bridge had since been demolished the court would merely award nominal damages and costs. Galarneau y. Guilbault. — xvi. .579. Final Judgment. — See APPEAL. JUDGMENT. JURISDICTION, 7, 11, 15, 21, 52, 53, 67, 69, 71, 77, 70, 80, 81, 89, 91, 100, 101, 102, 104, 107, 108. LEGISLATURE, 4. MANDAMUS, 11. Fire. — ,S\'<; NEGLIGENCE, 31. Fisheries — Regulation and protection of. Sec PETITION OF RIGHT, 4. 2. Fisliery officer, right of, to .seize on view. See PARLIAMENT OF CANADA, 4. .'I Fwhery o^cer — Trespass — Jl V. c. 60, ss. 2, 10 (D.) — Order in council, 11th June, 1870, construction of — Notice not necessary — Damages, excessive. Three several actions for trespass and assault were brought by A., B. and C, respectively, riparian proprietors of land fronting on rivers above the ebb and flow of the tide, against V., for forcibly seizinjj and taking away their tishing-rods and lines, while they were engaged in fly-fishing for salmon in front of their respective lots. The defendant was a fishery officer, appointed under the Fisheries Act, 31 V. c. 60, and justified the seizure on the ground that the plaintiffs were fishing without licenses in violation of an Order iu Council of June 11th, 1879, passed in pursuance of section 19 of the Act, which order was in these words : — " Fishing for sal.iion in the Dominion of Canada, except under the authority of leases or licenses from the Department of Marine and Fisheries, is hereby prohibited." The defendant was armed and was in company with several otliers, a suflicient number to have enforced the seizure if resistance had been made. There was no actual injury. A. recovered $3,000, afterwards reduced to ?l,o00, damages ; B., 81,200 ; and C, 81,000. S('e22N.B. 639. 318 Fisheries — Continued Held, that sections 2 & 19 of the Fisheries Act, and the O^dei in Council of the 11th of June, 1870, did not authorize the defendant, in his capacity of inspector of fisheries, to interfere with A., B. and C.'s exclusive right iis riparian proprietors of fishinj; at the locun in quo; but that the damages were in all the cases excessive, and therefore new trials should be granted. Held also, Gwynne, J., dissenting, that when the defendant committed the trespasses complained of, he was acting as a Dominion officer, under the instructions of the Department of IMarine and Fisheries, and was not entitled to notice of action under C. S. N. B. c. 8'J, s. 1, or c. 'JO. s. 8. Venning y. Steadman.— ix. 206. -Force Majeure — Plea of — Fall of wall after fire — Want of pre- cautious to prevent— Art. 17, ss. 24, 1053, 1055, 1071, C.C. See NEGLIGENCE, 31. Foreign Bankruptcy. See INSOLVENCY, 2. "^Foreign Company — Winding' up of. See CORPORATIONS, 12. Foreign Corporation. See ASSESSMENT AND TAXES, 6. Forgery. See CRIMINAL APPEAL, G. 2. Bank takinj^ forged paper in renewal of notes — Release of suret}'. See BANKS AND BANKING, 15. •3. Forgery — Ro titication — Estoppel. Y., who had been in partnership with the defendants, trading under the name of the H. C. Company, but had retired from the firm and become the general manager of the company, but with no power to sign drafts, drew a bill of exchange for his own private purposes in the name of the defendants on a firm in Montreal, which was discounted by the plaintiff bank. Before the bill matured, Y. wrote to defendants informing them of having used their name, but that they would not have to pay the draft. The bill purported to be indorsed by the company per J. M. Y. (one of the defendants), and the other defendant having seen ic i the bank examined it carefully, and remarked that "J. M. Y.'s signature was not usually so shaky." J. M. Y. afterwards called at the bank and examined the bill very carefully, and in answer to a request from the manager for a cheque he said that it was too late that day 'but he would send e cheque the day following. No cheque was sent, and • a few days before the bill matured the manager and solicitor of the bank called 319 Forgery — C'onthnod . to see J. M. Y., and asked why lie liad not went the cheque. He admitted thu* he had promised to do bo and at the time he thou;,'ht he would. Y. afterwards left the country, and in an action against the defendants on the bill they pleaded that the sitjnature of J.M. Y. was forged, and on the trial tlie jury found that it was forj^ed and judfjmeut was given for the defendants. Held, afKrming the decision of the Court of Appeal for Ontario, 15 Ont. App. R. o" , which reversed that of the Divisional Court, 13 O. B. i>'20, that thouf^h fraud or breach of trust may be ratified forgery cannot, and tlie bank could not recover on the forged bill against tlie defendants. La IlnniiiieJucqw.'K Curtiir V. La Bnhqiie d'Kpanjni', 13 Aj)p. Cas. 118, and Barton v. London a)td Nortli-Western Railway Company, i) L. T. Rep. 70, followed. Present: — Sir W. J. Ritchie, C J., and Strong, Taschereau, -Gwynne and Patterson, J J. Merchants' Bank of Canada v. Lucas. — Mar. 10, 18!10— xviii. 704. 4. Evidence as to ,sii;nature on note — Btlief as to crenuineness of signature — Conversation partly given on examination in chief — Cross-examination — Order for new trial reversed. See EVIDENCE, 50. Form — Statutory — Departure from — Assessment of railway company— 53 V. c. 27, s. 125 (N.B.) See ASSESSMENT AND TAXES, 26. 2. statutory — Departure from — Assessment of insurance company —53 V. c. 27, s. 125 (N.B.) See ASSESSMENT AND TAXES, 27. Fraud — Rescission of contract for. See SALE OF LANDS, 8, 14, 27. Fraudulent Misrepresentation. See MISREPRESENTATION. Fraudulent Preference — Assignmemt for benefit of creditors — Power to sell cm credit — R. S .0. c. US, s. 2, In a deer of assignment for the benefit of creditors, the following clause was inserted : " And it is hereby declared and agreed that the party of the third pari, the assignee, shall, as soon as conveniently may be, collect and get in all outstanding credits, etc., and sell the said real and personal property hereby assigned, by auction or private contract, as a whole or in portions, for cash or on credit, and generally on such terms and in such manner as he shall 320 Fraudulent Preference—' 'untinutiJ. deem beet or suitable, lavin^* re^jaril to the object of these presents." No- fraudulent intention of defeating or delaying creditors was shown. Held, affirmint^ the judgment of the court below, that the fact of the deed authorizing a sale upon credit did not, .per se, invalidate it, and the deed could not on that account be impeached as a fraudulent preference of creditors within the Act, R. S. O. c. 11«, s. 2. Slater v. Badenach.— x. 290. 2. Jmhjment in default of appearance — Facilltatiiuj recovery of — Not a fraudulent preference under R. S. 0. e. 118 — Preiiiature issue of writs of execution — Irreijuloritij and not a nullity — Ont Jiul. Act, 1SS3. On the 28th March, 1882, a writ was issued by C. et al. (respondents) af'ainst one M., for the recovery of the sum of 'J32, 155.33, and said writ was duly endorsed, in accordance with the provisions of the Judicature Act, with particulars of the claim of _the respondents for the said sum of $32,155.33 on an account previously stated and settled between C. et al. and M., such amount beint; arrived at by allowing to M. a discount of 5 per cent, for the unexpired balance of the term of credit to which M. was entitled on the purchase of the floods. No appearance was entered by M. to the writ, and on the 8th April judgment was recovered for the amount, and on the same day writs of execution were issued. M. et al. (appellants), creditors of M., insti- tuted an action against him on the 8th April, 1882, and obtained judgment on the 14th April, and on the same day writs of execution were issued. The stock-in-trade was sold by the sheriff at public action, under all the executions in his hands, to the respondents, who were the highest bidders. On a trial in an interpleader issue, to try whether appellants' execution against M. was entitled to priority over that of respondents, and whether tiie judgment of the latter was void for fraud, and as being a preference; and whether respondents' executions were void as against appellant's execution, on account of their having issued them before the expiration of eight days from the last day for appearance, Mr. Justice Armour directed a verdict or judg- ment to be entered in favour of the appellants. That judgment was reversed by the Queen's Bench Division of the High Court of Justice for Ontario, whose judgment was affirmed by the Court of Appeal for Ontario. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the Court of Appeal, that what the debtor did in this case did not con- stitute a fraudulent preference prohibited by R. S. 0. c. 118, and that the premature issue of the execution of the respondents was only an irregularity, and not a nuUitv. Macdonald y. Crombie.— xi. 107. 3. Assigmentfor benefit of creditors — Accidental omission of claim from Schedule of debts — R. S. 0. c. 118, s. 2. An insolvent made an assignment for the benefit of his creditors. The deed purported to be for the purpose of satisfying, without preference or 321 Fraudulent Preference— Contimwil. priority, all Uie cru'litors of the insolvent, and tlie trust was declared to be : 1. To pay in full the debts of the several persons or tirms named in a schedule to said deed, or, if not sufficient to pay the same in full, to divide the assets of the insolvent estate ;)ro ratd amont^ such scheduled creditors, and ; 2. To pay the surplus, if any, to the said insolvent. It appeared that there was a small creditor of the insolvent whose name was not on said schedule. //('/(/, per Ritchie, C.J., and Fournier and Tasohere'iu, JJ., reversing the judf^ment of the court below, Henry, J., dissentin>^, that the consideration for the deed, as expressed on its face, was that there 'sliould be a distribution of the estate of the insolvent among all his creditors, and the assignee was not bound to contine such distribution to the creditors named in the schedule. Per Strong, J. — That the assignee was confined to the schedule but effect must be given to the word "'intent" in the statute, and as the evidt.iico showed that a bona tide effort was made to ascertain the names of all the creditors be- fore the execution of the deed it did not appear that the insolvent intended tO' prefer the scheduled creditors, and tlie deed, therefore, was not void under K. S. O. c. 118, s. 2. Semble, per Strong, J. — That the word "preference" in R. S. O. c. 118, s. 2, imports a "voluntary preference" and is not applicable to the case of a deed obtained by a creditor or creditors, who to obtain it have brought pressure to bear on the debtor. McLean v. Garland. — xiii. 36(). 4. Inter^ileadev issue — Insolvent compnoij — Chattel mortfjdge — Preference over other creditors — Intention to prefer — It S. 0. ■ c. lis. The Hamilton Knitting Company, being indebted in a large amount to the appellants, and believing that their charter did not permit them to give a mortgage on their property to secure an overdue debt, agreed to give such mortgage in consideration of an advance by appellants of more than the amount of the debt, the actual amount to be returned to the mortgagees. This arrangement was carried out, and the balance of the amount advanced on the mortgage, after paying the debt, was put into the business of the company. At the time this was done the company believed that by getting time from these creditors they would be able to carry on their business and avoid failure. This hope was not realized, however, and they shortly after stopped payment,, and, in consequence, certain of their creditors, the above respondents, obtained judgments on their respective claims and issued executions. The property secured by the said chattel mortgage was seized under these executions, and this interpleader issue was brought to test the title to such property. The learned chancellor, before whom the issue was tried, gave judgment for the execution creditors, holding the mortgage void under the statute relat- ing to fraudulent preferences, R. S. O. c. 118, and the Court of Appeal sus- tained this judgment by an equal division of the court. 12 Ont. App. R. 137. CAS. DIO. — 21 322 Fraudulent Preference—' 'i>ntinw,i. (Jn appeal to tl)e Supreme Court of Canada, Held, tliat aH the company bond fide believed that by getting an oxtonaioii h//hk((^ 13. Insolvency, kuowled^'e of by cretlitor — Ple(l<;o — Warehouse receipts — Novation — Arta. 1975, 1034, 1035, 1030, 1161), c.c. See INSOLVENCY, 32. 14. Chattel inort^oi<,fe — Bona fide advance — Consideration }>artly l)ad— Effect on wliole instrument— R. S. O. 1.S.S7, c. 124, h. 2. See CHATTEL MORTGAGE, 18. INSOLVENCY l.fi, 13. PREFERENCE. Fund — Distribution of — Diocesan Church Society — Conditions as to participation. See DIOCESAN FUND. G. Garnishee — Equitable assigumeut — Representation of indebtedness — Estop]iel. See ESTOPPEL, 4. 2. Payment by, of an over-due note — Garnishee clauses, C. L. P. Act. See BILLS OF EXCHANGE AND PROMISSORY NOTES, 5. Gift. See DONATION. Goods — Sales of. See SALE OF GOODS. Goodwill — Partnership — Terms of — Expulsion of one partner — Forfeiture of share of goodwill — Notice — Waiver. See PARTNERSHIP, U. Great Seal — Of the Province of Nova Scotia. See LEGISLATURE, -1. .S2o Guarantee— A' '/''• ';/' ijU'irnvft'e by hunk — Cluim for lo8f> — Proof of eld i III — Account Hides. H. it III. upon receipt of an order by tflojjnvm from tlio Exchange Bank to load cuttle on ;i st<>ani«r for M. S. witli KUivautee a^ainnt loss Hliipped three days after the suspension of the bank some cattle and consigiieci tliem to their own agents at Liverixjol. Subsequently they filed a claim with the liquidators of the hank for an allei^cd loss of '57,'.lii.j on the shipments, and tlio claim being contested the only witness they adduced at the trial was one of their employees who knew notlnn<{ i>ersonal!y about what the cattle realized, but put in account sales received by mail as evidence of loss. Held, atHirming the judgment of the court of Queen's Bench for Lower Canada, that aasumint; that there was a valid guarantee given by the bank, upon which the court did not express any opinion, the evidence as to the alleged loss was insuHicient to entitle H. et al. to recover. Per Taschereau. J. — That the guarantee was subjected to a delivery of the cattle to M. S. and that H. itnl. having shipped the cattle in their own name could not recover on the guarantee. Hathaway v. Chaplin. — xxi. '23. 2. Guamntee liy manaoino; owner of billH drawn bv master of .ship on ao'ents — C()nsi'lerati()n, delay — Misrepre.-sentation — Nut available nnder plea of fraud. See SllirS AND SHIPPING, 14. H. Habeas Corpus. — Conviction for violation of licen.se laws — Pri.s- oner discharged before appeal — No jurisdiction. .See JURISDICTION, 24. 2. In criminal matters — Ko appeal in from any court to Supreme Court of Cunada — Section 61, S. C. Act — Jurisdiction — Court of Appeal of Ontario, adjudication by in Hah. Corp. niaher — Production of prisoner on return of writ — Appli- cidion to (jice short notice of hearinf/ not entertained when ex parte -dJiiJJ V.c.S.2,s.l9—3S V.c. 47— Intra Vires of JJom. Parliament — Summary tried by police mag i-'ftrate. On the lijlh January, 1879, the prisoner was charged for that he did " unlawfully and maliciously cut and wound one Mary Kelly with intent then and tl'.ere to do her the said Mary Kelly grievous bodily harm,'' ami being tried 326 Habeas Corpus—' ■""''■"((/■«/. Kiiinniiirily before tlie pulirc iiiaiiisfratcof tlte city of Ottawa was foiinil jjnilty, and sentenced to be inipriHoiied in tlio Central Prison for tlio i)roviiice of Ontario at Toronto, and there to be kept at hard labour for one year. On boinjj bront;ht before tl\e Court of Qtieen's Bencli for Ontario npon a writ of luiliciiii ci'iptm iHHued from that court, the prisoner was remanded back to prison ; whereupon tlie prisoner appealed to the Court of Appeal for Ontario ; whicli court dismissed hia appeal on the 'JOth May, I87i». Hee 8 Out. Pr. U. 20. Notice was given of an intention to appeal from this judt^ment to the bupreme Court of Canada, and the case in appeal was received towards the end of May, too late to be set down for hearint^ at the then sessions of the Hupremo Court, whereupon application was made to ^[r. Justice Fournier for leave to brint^ the appeal on for hoarinfi)u< in ('riinina! matters, the court has only a concurrent jurisdiction with the judj^es of the Superior Courts of the various provinces, and not an appellate jurisdiction, and there ia no necessity for an appeal from the judgment of any judge or court, or any Appellate Court, because the prisoner can come direct to any judge of the Supreme Court individually, and upon that judge refusing the writ or remanding the prisoner, he could take his appeal from that judgment to the full court. Motion refused. In re Boucher.— loth November, 1870. 3. In a case of commitment by a coroner for murder, application was made to Strong, J., for a writ of liabea» corpuit. Held, that under s. 51, S. C. A., the writ is to be issued for the purpose of an enquiry into a commitment only " in any criminal case under any Act of the Parliament of Canada," and the Act of the Parliament of Canada (1809) 328 Habe::s Corpus — Conthuud. ilot'H not eroatu tlie ofToiico of murder, liiit only iletlne« thu punial.tnent wliieli limy bu uwiu\lt)il (or hucIi offsnce. Writ rediHuiI. In re Pierre Poltvln— August, 1«81. 4. Coni'K'tUnx Jn'foir tnoy'isft'oie — ArrvHt on it'i'rrnnf viitJer — Inquu'i) UK to erlth iicf — Jo rind u-l ion of rami on I'trflorori —ii. ii- E. a A., N. 40— a. V. Am. Act, 1670, «, ,1.'^—U. S. 0. c. 70. Application \vuh made to the chief justice in cliambcrg on belialf of ii person arrested on iv warrant, issued on a conviction by a nia^istrate, for a writ of liiilit'iin corpiiK, and for a certiorari to ))riiiK up the proceediiijiH before tlie ina^iHtrutf, the application being l)aMud on the lack of evidence to warrant the conviction. The application was diHinissed, On appeal to the Supreme Court, Held, Henry, J., disnenting, that the ■conviction having been regular, and made by a court in the uiKpiOHtioiiable ■I xercise of its authority, and acting within ita juribd.'ction, the only objection lieing that the niagiHtrate erred on the facts, and that the evidence did not justify the conclUHion whicli he arrived at as to the guilt of the prisoner, the .Supreme Court coulil not go behind the conviction, and inijuire into the merits of the case by the use of a writ of Itabean corpun, and thus constitute itself a court of appeal from the magistrate's decision. The only appellate power conferred on the court in criminal cases, is by the 4'Jth section of the S. cV E. C. Act, and it could not have been the intention of the legislature, while limiting appeals in criminal cases of the highest importance, to impose upon the court the duty of revisal in miiltors of fact of nil the summary convictions before police or other magistrates throughout the J >ominion. Section 3i of The Supreme Court Amendment Act of 187 Habeas Corpus— ''"''''»"-./. ,'). Ajipliiiirnni/or ii'i'if It/ — /ii)pv!>6. Ontario Municipal Act, ss. 535 (2), 53.S — Deviation of boundary road — Lial ;!ity of counties to repair bridges in. See MUNICIPAL CORPORATION, 24. ROAD. Husband and Wife — InHurable interest of Imsband in wife's property. Sfic INSURANCE, FIRE, 14. 2. Evidence of husband not admi.ssible on belialf of wife. See EXECUTOR, 5. •3. Divorce obtained in Quebec — Efi'ect of — Kight of wife to sue without authorizaticju — x\.rt. 14, C. C P. See DIVORCE. ■4. Death of wife b^- neyli^'once of railway conijiany — Action by husband as aduiinistrator— Rit>lit to recover daniaii-es. See RAILWAYS AND RAILWAY COMPANIES, 24. •5. Sale Inj ivife to secure debt d ae hi/ her husband — Simulated deeds- Art. IdOl, C. C. Where the sale of real estate by the wife, duly separated as to property from her husband, to her husbana's creditor is shown to have been intended to operate as a security only for the payment of her luisband's debts, such sale will be set aside as a contravention of Art. 1301, C. C. (P. Q.). Per Strong, J., dissenting — The trial judge's finding in the present suit that the deeds of sale were not simulated, should be affirmed. Klock Y. Chamberlain. — xv. 325. ■6. Assault on constable in discharge of duty — Serving sunnnons charging violation of Canada Temperance Act — Wife not a competent witness on behalf of husband — R. S. C. c. 162, s. 34 —11. S. C. c. 174, s. 216. See CRIMINAL APPEAL, 11. ,7. Insolvent estate — Claim by ivife of insolvent — Money given to husband. — Loan or gijt — Questions of fact — Findinr/ of court below. M. having assigned his property to trustees for the benefit of his creditors his wife preferred a claim against the estate for money lent to M. and used iu Husband and Wife— ''r*/)//«;^(«/. his busiiiobs. Tlie asBi^uee refused to acknowlecl)>e the claiiu, contonJint^ that it was not a loan but a ti^it to I\I. It was not disputed tliat the wife had money of her own and tliat M. had received it. The trial judge ^jave judg- ment against the aHsignee, holding tliat M. did not receive the money as a gift. This judgment was confirmed on appeal. Held, confirming the judgment of the Court of Appeal for Ontario, that as the whole case waa one of fact, namely, whether the money was given to M. as a loan by, or gift from, his wife, who in the present state of the law of Ontario, is in the same position, considered as a creditor of her husband, as a stranger, and as this fact was found on the hearing in favour of the wife and confirmed by the Court of Appeal, this, the second appellate court, would not interfere with such finding. Present. — Htrong, Fournier, Taschereau, Gwynne and Patterson, JJ. Warner y. Murray. — April (5th, 1H89— xvi. 720. 8. Distributioti of ifitestate estate — Feme rorerfe — Husbaiid's ri<;lit to resiJnuni — Next of kin — 20 Guo. III. c. 11, sk. 14 (5«: 17, (X. B.)— C. 8. N. B. c. 78. See DISTIUBUTION OF ESTATE. 9. MiU-fiLMi Avomnn — Execntion nfjainst Imsliand — Replevin — Jns- titication Ijy sheriti'— Goods given \)y Imsband to wife — j\Iarried \V(jnian's Property Act, R. S. N. S. otli aeries, c. 74- See SHEKIFF, 12. Hypothec — Pcr.M>val recourse inaction on — Arcepfunce of delega- tion of payment — xiniemhnf.nt of pleadings — Paijmcnt of Costs as condition pvt'cedent. On the 14ih October, 1874, Mrs. Reeves sold to Quesncl the south of lot 407!) on the oflicial plan of Montreal, and Mrs. Cadieux on the same day sold him the north half of the same lot. On the 17th October, lS7i, Quesnel sold to Geriken, L.iframboise and Robitaille three undivided fourths of both pro- perties en bloc. On this last Quesnel received *'22,246.87, leaving due :?27,H('i5.03, which the purchasers promised to pay for Quesnel to Mrs. Reeves with interest in certain instalments arranged to meet Quesnel's liability. Mrs. Reeves was not a party to this last deed, but she subsequentlj' accepted, and served notice of her acceptance of, the delegation of payment made by such deed in her favour. Mrs. Reeves, prior to such acceptance, sued the joint proprietors hypothecarily for Quesnel's debt, and they made a dclaisscment of the portion of the lands sold by her to Quesnel. Subsequently she brought the present action against Geriken under the delegation for one-third part of the said debt of 827,365.03 with interest. Geriken contended that having been obliged to delaisser a portion of the property, he could not be sued for any portion of the money. Hypothec — Cl»'. See JURISDICTION, 37, 38. 6. To restrain city of Jlontroal from collecting' tax on ferry boats — 39 V. c. 52, (P. Q.), validity of — By-law under iiKra rr/w, S.r LEGISLATURE, 15. 7. Nuisance — Pollution of water — Long establishe(l industry — Evidence. S«e NUISANCE, 3, 3. Malicious prosecution — 41 V. c. 14, s. 4, (P. Q.) — Dissolution of injunction — Action for damages — Want of probable cause. See MALICIOUS PROSECUTION, 3. 9. Mining lands — Bornage — Appeal — Jurisdiction — R. S. C. c. 135, s. 29 (b). See JURISDICTION, 103. 10. Toll bridge — Franchise of — Free bridge, interference by — 44-45 V. c, 90, (P. Q.). See TOLLS, 3. 11. R S. O. (1887), c. 159 as amended by 53 Y. c. 42— Application to company incorporated by special charter — Collection of tolls — Maintenance of road. See CORPORATIONS, 49. Insanity. See WILL, 7. Inscription En Faux. See PETITION OF RIGHT, 3. 339 Insolvency — Fraud or illfi/dl preference — Prefiuviptiov — Insol- vent Act of lS7i',H, lo, s-8. land ./, luul Innolrent Act of h%'9, s. dO anil {ely indebtad, sold to A, B., liis principal creditor, on the liitli Jumiary, IhT"), by iiuturiul deed, duly rcgiatcrod, certain moveable and immoveable property, beiiij^ the bulk of his ewlate, coniprisinjj a liotel and fnrnilure, for SI.'), 409. 50. The immoveable property, valued by otiicial asaoasora at S'.i2,000, was sold for 'J10,000. The sale was also made sub- ject to the rit^lit of redemption by F., on re-imhursiuj,', within three years, the stipulated price of #15,40!(,i')0, and interest at the rate of H p. c., with a pro- vision that, in case of insolvency or default of payment, this ri^ht of n'mM should cease. No delivery took jjlace, and ten months later F., who remained in poBsession of the property under a lease from A. H. of the same date as that of the sale, also became bankrupt. In the meantime A. H. with F's consent, hud leased the furniture to T. it J., in whose hands it was when appellant (F's assi>,'nee) revendicated it as part of the insolvent estate. T. & J. did not plead, but A. B. intervened and claimed the effects under the deed of sale above men- tioned. The asKif^nee contested the intervention, allef^inj^ that the deeds passed on the li)th ,January, 1875, had been made by T. F. in fraud of his creditors. Held, that there was sufhcient evidence to prove that the object of the transaction was to defeat F.'s creditors generally, and therefore the deeds of sale and lease of the I'.tth January, lM7u, were null and void under Arts. O'J.S, 10;}3, 10;i5 A- 1040, C. C. L. C, and ss. 80 , a rule ;iisi to set aside procecdinjjs was obtained and made absolute. • Held, reversing the judgment of the .Supreme Court of Nova Scotia, that F. IJ., liaviiif,' neglected to plead his dif{ot his liveli- hood by buyinf^ and sellint^, that the iilaintitT failed to prove this issue. i'c)- Gwynno, J. — Assumiii^^ F. to be a trader, still the defendants were entitled to judgment upon the merits, which had been argued at len^^th. That the agreement at iiiiii jiriiin authorized tlie court to render a verdict for plaintiff or defeiuliint, according as iliey should consider either party upon the law and the facts entitled; that the court, having exercised the jurisdiction (•onferred upon it by this a^jreeinent, and rendered judj,'ineiil for the defeiiilunts, this court was also bound to yive judiiinoiit on the merits, and as jiiil^'iiieiit of the court below in favour of the defendants was substantially correct to sustahi it; and it liavin^j heen objected that as the rule iii«i asked for a new trial, the rule iibMolute in favour of defendants was erroneous, that such an objection was too technical to bo allowed to prevail, and that the rule timi having, as it did. recited the af^reement at iiini priui, and the court below liavinj^ rendered a verdict for the defendants, it should be upheld, except as to the plea of lihentm ti'iii'inentum, which should be found for the plaintiff or struck off the record, and that to order a new trial could bo but to protract a useless litif-'a- tion at fjreat expense. Creighton v. Chittick.— vii. 848. 5. J iuhjment on demurrer appealable — .S', J Supreme Court Amemlment Act, 1879 — JS V. c. 16, s. 3, construction of — Purchase of goods hy insolvent outside of Dominion' of Canada — Pleadings — Insolvent Act, 1875, ss. 136,137 intra vires. P. etui., merchants carrying on business in Enfjlaiid, brouj^ht an action for S4,00() on the common counts against J. S. et <(/., and in order to bring S. et al. within the purview of section 18(i of the Insolvent Act of IST-J, bya special count alleged in their declaration that a purchase of goods was nnide by S. I't ol. from them on the 13th Alarch, 187'J, and another purchase on the iJ'.ith ^larcli of the same year; that when S. et ul. made the said purchase they bad probable cause for believing themselves to be unable to meet tiieir engage- ments and concealed the fact from P. et itl., thereby becoming their creditors with intent to defraud P. et al. J. S. (appellant) amongst other pleas pleaded :U2 Insolvency — ' 'onthninl. tliiit the ciditnict out nf which tlip allpucfl raimo of action nroso whh timric in Knt^iiiiul i\ii to bankruptcy and iuHol- vency, over which Hubjeot-mutter the Parliament of Canada Iuih power to Ic^ifilate, Mrd. Although tho fraudulent act clmr>,'ed was ninniittod in another country boyoi.l tho territorial jurindiction of tlieconrtH in Camula, thu defend- ant wan not exempt for that reason from liability under the provisions of the liJCith sec. of tho loHolvent Act, 187'», ami therefore tlie plei, denmrrecl to was bad and the appeal should bo diHinissed. Per Qwynne J. — The demurrer does not raise the qui'stiou whetlier sec. 13t) of tho Insolvent Act of 187i') in (^r is not iiltni rircM of tlvi Dominion Parlia- ment, for whetlier it bo or be not tho plea demurred to is )ad, inasmuch as it confessoB the debt for which the action is ))rouf{ht, and chat auch debt was incurred under circumstances of fraud, and offers no in.itter whatt vur of avoidance or in bar of the action ; therefore if tho appeal be entertained it must be dismissed. Per Strong', Henry and Taschereau J.J. — There beiny nothiuf^ either in the language or object of tho ISiith sec. of tho Insolvent Act to warrant the implication that it was to have any effect out of Canada, it must be held not to extend to the purchase of goods in England by defendant, stated in the second count of the declaration. In this view it is unnecessary to decide as to the constitutional validity of the enactment in tiuestion, and the appeal should be allowed. Thecoui' beinj^ e(jually divided the appeal was diHuiissed without costs. Shields v. Peak.— viii. o7.1. 6. Insolvent Act of 1S7-5 — Inijast prcferevcc — Fniudalent 'prefrr- ence — Presuinption of innocence. W,, the respondent, was a private banker, who had had various dealings with one D., anil had discounted for him at an exorbitant rate of interest notes received by D. in the course of his business. D.'s indebtedness on new trans- actions amounted to a large sum of money, but, being a man of very sanguine temperament, ho had entered into a new line of business, after obtaining goods on credit to tiie amount of ?4,000 or SJ.OOO, ui>oii a representation to the Insolvency —Ci'Htinih'tl, |)artiu4 Hiipiilyintf Mtich ((ooiU that, liltlioti^li without any available capital, lie hud ex|iL>t'ir'iiue in biiHJni'HH. About twelve ila.VH after ho had coiomenced bis nuw buHineHM, liuiii)^ thruatviieil by a nii)rtt^aL(t)u with fort>cloHiire proceudiii^s, l)u applied to W., who advanced him 9!i*N>. part of which was applied in pay- ing tlio over iluu intereut on tiie inort^a^e, and the HiiriiluH in retiring a note of D.'s held l)y W . I), execuleil a iMort^jii^e in favour of W. and wuh granted a reduced rate of interufit on hia indebtudnuHH, and waH told he would have to work carefully to t;et throui>h. 1). becanie inHolvent about four niontlm after- wards, and a suit wax iirout^ht by Mclv., aH aHHi^jnee, nnpuachin){ the mortgage to W. Held, itflinnin^ the judi^'nicnt of the Court of Appeal, that McR. had iiofc HHtistied tlie (ifUM wlii(;h wau cast upon him by Ihe Insolvent Act, of HhowinL{ that the insolvent at the time of the execution of the mort((a(;e in queHtion contemplated that his enibarraHsment must of necuHHity terminate in insol- vency. McRae v. White.— ix. '22. 7. Aorei'iiii-'Ut to pk'ilof iin)iu'yH Ity ili'litor iiuublo to iiicot his liabilities — When valiil — l)»'i)OHit in Bank. See AGREEMENT, 7. S. Of donor at date of ilonation, necessaiy to set aside donation in marriage contract. Sec DONATION. 0. Insolvent Act — Denuiiul <>f us^!(/nment, when annulled, action for riuikin(j — lieaxovahle mid pvohahle cause — Order of Jtn/t/t' nn nailing dcmdnil nut [h'Iiiih facie eridence of — L'ri'lcnce. In 1874 the firm of .lameH Uomville it Co. was composed of .James Dom- ville and James Scovil ; and the firm of Estabrooke & Gleeson was then com- posed of John F. Estabrooks and the plaintiff. The latter firm carried on business then, in the city of Saint John, as dealers in flour, meal, Ac, and there had befti dealin^^s between the firms for about two years previously, but not, Bo far as appeared, to any very lar^e extent. In the fall of that year, three promissory notes, made by Estabrooks A, Gleeson in favour of Domville A- Co., which had been indorsed by the latter firm, and whicli had been discounted for tliem by the Bank of Montreal, were lyin>^ in that bank when they matured. The first was a note for ■$409.81, and it fell due on the '23rd November, 1874; the second was for »10!).71, due 4-7 December, and the third was for $137. 13, due 11-14 December. On the 23rd November, when the first of these notes became due, the plaintiff called at the oftice of Messrs. Domville A- Co., where be saw Mr. 344 Insolvency — Continued. Scovil, and told him that he was unable to pay the note in full ♦^hat day, but he offered Mr. Scovil 25 per cent, on account of it then, and asked to be allowed to renew for the difference. Mr. Scovil promised to speak to the defendant on the subject, and requesrted tiiC plaintiff to call again and get his reply. The plaintiff accordingly called again shortly afterwards and found botli !\Ir. Scovil and Mr. Domville in their office. The defendant then at once refused peremptorily to accept the offer wliich the plaintiff had made to Scovil, or to accept oO per cent, and to renew for the balance for one month. After three o'clock on the same day, the defendant called at the oftice of Estabrooks & Gleeson and told the plaintiff that if the note was not taken up by one o'clock the following day, an attachment would be issued against the firm of Estabrooks & Gleeson. The plaintiff urged him not to issue any attacliment, assuring him that, not only Messrs. Domville & Co., but every one of the creditors of Estabrooks ct Gleeson should be paid in full every dollar due to them. The defendant, however, refused to listen to these assurances. The note for $409.81 was not then retired, neither was the next one, for ^109, when it became due ; but the third was paid in full at maturity. Sometime in the month of December, (the jjlaintiff thought about the 7th,) Estabrooks A Gleeson received a letter from Mr. F. E. Barker, purport- ing to have been written by him as the solicitor, and on behalf of Domville & ■Co., intimating that Domville ct Co.'s claim must be paid, or that Estabrooks ^ht this action on the ;,'ro'.md "that the defendant falsely and maliciously, and witlnnit reasonable and probable cause, made, or procured to be made, a demand under the 14tli section of the Act of 1809, signed by the defendant and by one James Rcovil, partners, under the name, style and tirm of James Domville & Co., requirin;.; plaintiff and the said John F. Estabrooks to make an assigtnnent of his estate and effects for the benefit of his creditors, and falsely and maliciously, and without reasonable or probable cause, caused the same to be served upon the said plaintiff and the said John F. Estabrooks, according to the provisions of the said Act ; and the said plaintiff and the said John F. Estabrooks, in pursuance of the provisions of the same Act, applied to and presented to Charles Watters, Esquire, the Judge of the County Court of the City and County of Saint John, their petition praying that no further proceedings, under the said demaml, should be had against them under the said Act ; and such proceedings were thereupon had under the said petition, that the said Judge, being authorized to act, and having competent authority in that behalf, ordered that the prayer of the said plaintiff and of the said John F. Estabrooks should be granted, and thereafter and thereby such demand so made and served as aforesaid became and was of no force, itc, and the proceedings thereon were determined ; and by reason whereof the plaintiff was put to inconvenience and anxiety, and was prevented from transacting his business and carrying on his said trade with the said John F. Estabrooks, and was injured in his credit and incurred expense in procuring the said demand to be annulled," itc. At the trial Duff, J., directed the jury that the annulling of the demand by the order of Judge Watters was primd facie evidence of the abseiice of reason- able and probable cause, and threw upon the defendant the burtlien of proving the affirmative. This ruling was upheld by the Supreme Court of New Brunswick, (3 Pugs. cV Bur. 77.) On appeal to the Supreme Court of Canada, Held, reversing the judgment of the court below, that such order was not \\\ itself even priiiui facie evidence of the absence of reasonable and probable cause; but, further, the evidence sufficiently established the existence of reasonable antl probable cause for making the demand of assignment. Appeal allowed with costs. DomYille v. Gleeson.— lUth June, 1880. 10. Deposit in bank to meet comjiositiou notes. Sec NEW TRIAL, 4. 11. Action of damages for malicious proceedings in — See DAMAGES, 2o. :U(; Insolvency — ' '(mtiminl. 12. Voluntfiry a.sHij;iiiiioiit liy insolvent — Kij^lit f)f nssigneo to hug — Arts. V.l & 1!J C. C. 1'. See ASSIGNMENT, G, 13. Insolvent Act <>f 1X7-', nntl iimendlnfj Ai-fs — Murlijinjc. of insolvent's j^Toperty — Tninsfer within titirli/ days in con- tcriipldtion of iiiHolvancij — FruAuUdcnt i/i^'fercucc under s. I'lrl — Merc/id'ids S/ilppiiuj Art, ISo//.. v., a Bhl\y owner in Yiirniontli, N. S., t'ni|)l()y(;il iiHliis rt^jentn in Liverpool, J. & Co., tlie defendant J. beiiifi a member of tlieir lirm, and, iih iif^ents in New York, he employed the firm of S. P. B., of which the defend,ant S. was a member. In the course of hia dealin<^s witli these ai,'ents he became irulebttd to both iirms for acceptances by tliem of his drafts made when ho was in want of money, towards the payment of which tiiey received tlio freights of his vessels and remittances in money. On one occasion he said that he would tjive to the Liver|)ool firm a mortfjage on the " Tsernogora," or the " Jlatjnolia," when they should rciiuiro it, and, in a subsequent conversation with a member of the firm, ho agreed to give such mortgage on certain conditions, which were not carried out. He also promised the iirm in New York to give them security " in case anything hai)puncd," and mentioned as anch security a mortgage on the "Tsernogora." According to I'.'s own statement, he had auflicient property to pay hia liabilities when these conversations took place. A few weeks after these conversations r. executed a mortgage of 20-01 shares of the "Tsernogora, ' in favour of the defendants J. & S., and had the same recorded, and within thirty days thereafter a writ of attachment in insolvency was issued against him. The plaintiff, who was appointed assignee of F's estate by his creditors, filed a bill to have the mortgage set aside, claiming that it was void under section 133 of the Insolvent Act of 1875. The defendant J. did not answer the plaintiff's bill, and the other defendants denied that the mortgage was made in contemplation of insolvency, and also claimed that, as it was made under the provisions of " The Merchants Shipping Act," (Imperial), it was not affected by the " Insolvent Act of 1875." The judge in equity. Nova Scotia, before whom the cause was heard, made a decree in favour of the plaintiff, and ordered the mortgage to be set aside, and the Supreme Court of Nova Scotia dismissed an appeal from that judgment. On appeal to the Suprerie Court of Canada, Held, affirming the judgment of the Supreme Court of Nova Scotia, Henry, J., dissenting, that the promise to give security " in case anything should happen," could only mean " in case the party should go into, insolvency," and that the transfer was void under section 133 of the Insolvent Act of 187.5. Held, also, that the provisions of tho Merchants Shipping Act, did not prevent the property in the ship passing to the assignee under the Insolvent Act. (5 Kuss. cV- Geld. 214). Jonea v. Kinney.— 12th May, 188.j.— xi. 708. 347 Insolvency^^ '"ntiminl. l-i. M(n't<^ngo given by coinpany in insolvent circumstances — Pre- ferenc(! — Intention. See FRAUDULENT l'UHFJ:nKXCi;, 4. 1j. Advances by bank to insolvent — Security on shaiX'S held by — Liability for maladministration of estate. .See BANKS AND BANKING, 12. K;. Lisolrrnf Ari of J87o—Ss. 2S', 3, .jO—Sarefic'^, lUiJuVil ij of. Held, that wlit-re an officiiil as8it,'iice under tlie IiiKolvent Act of 1875 Ims- taken possesnion of iin iiiHolvent uHtiito in that capacity, and HnbHC(]UL'ntly tlio c ' ■■ ■ 1 have, by a resohition paswed at a meetinti of tlie creditors, continued hin. iis assijjnpc to the estate without exaotinf» any furtlier security, and while actinj,' as such aHsij,'nce he rn kes defuult to accdiint for moneys of the estate, the creditors have recourse upon the bond t,'iven for tlie due performance of his duties as ollicial assii^nee. Letourneux v. Dansereau.— xii. 307. 17. Bank — Shareholders in — Winding up — Contributor}', calls on. —Double liability— Set oti— R. S. C. c. 120. See WINDING UF, 7. bS. Assij^nnent for Ijenetit of creditors — H. S. ( ). 1S77, c. 124 s. 2 — Construction of — Intent —Pressure — Criminal liability. Hcc AS.SIGNM-iCNT, 15. 10. Assi^annent for benefit of creditors — Fraudident preference — R. S. (). LS77, c. lis— 48 V. c. 20, .s. 2 (O.). See ASSIGNMENT, 17. 20. (Jf bank — \Vin(iin<,f up Act — R. S. C. c. 12U— Appointment of" li([uidators — Ri<^ht to appoint another bank — Discretion of judge. See WINDING UP. 10. 21. Insolvent Act of 1.S75— 40 V. c. 41 s. 28 (D.)— Takes away- right of appeal. See JURISDICTION, 82. 34S Insolvency — < 'ontinufiK 22. TiMiislur of persoiuil property — Preference by — Pressure — Intent — 49 V, c. 45, s. 2 (Man.) — Construction of. See ASSIGNMENT, 21. 23. Biinkruptcy anil insolvency — Incorporation of trustees of tlit' Bank of Upper Canada— 31 V. c. 17 (D.)— 33 V. c. 40 (D.), validity of— B. X. A. Act, .s. 91. See PARLIAMENT OF CANADA, 12. 24. Composition — Loan to elli'ct paynicnt of — Mort^'ag-e — Action to set aside as fraudulent— Arts. iOcS2, 1039 a: 1040 C.C. Sec PREFEKENCE, 4. 25. Claim against maolveni — Niiies held as collateral security — Pledge — Collocation — Joint and several liability. Held, affirming the judgment of the court of Queen's Bencli for Lower Carado (a^jpeal side), tliat a creditor who by way of security for liis debt liolds a ortion of the assets of liis debtor, consisting of certain goods and proni's- sory notes endorsed over to him for tiie purpose of effecting,' a pled<^e of the securities, is not entitled to be collocated upon the estate of such debtor in liquidation under a voluntary assignment for the full amount of his claim, but is obliged to deduct any sum of money he may have received from other parties liable upon such notes or which he may have realized upon the goods. Fournier, J., dissenting, on the ground that the notes having been endorsed over to the creditor, as additional security, all the parties tliereto became jointly and severally liable and that under the common law the creditor of joint and several debtors is entitled to rank on the estate of each of his co-debt- ors for the full amount of his claim until he has been paid in full without being obliged to deduct therefrom any sum received from the estates of the co-debtors jointly and severally liable therefor. Gwynne, J., dissenting, on the ground that there being no insolvency law in force the respondent was bound upon the construction of the agreement between the parties, viz., the voluntary assignment, to collocate the appellants upon the whole of their claim as secured by the deed. Benning v. Thibaudeau.— xx. 110. 26. Joint and several debtors — Distribution of assets — Privilege — R. S. C. c. 129, s. 63—Winding-irp Act— Deposit with bank after suspension — Practice — Leave to appeal — Order nunc pri) tunc. Held, per Ritchie, C.J., and Taschereau, J., affirming the judgment of the court of Queen's Bench for Lower Canada (appeal side). Strong and Fournier, 349 Insolvency— < 'initinufiL ,1.1., contra, that a creditor is not eutitleil to rank fur tlie full amount of his claim upon the aeparate estates oC iuHolvent debtors jointly ami sfverally liable for the amount of the debt, but is oblij^ed to deduct from his claim the amount previously received from the estates of the other luirties jointly and severally liable therefor. PtT Gwynne and Patterson, JJ., that a person who has realized a portion of his debt upon the insolvent estate of liis co-debtors cannot be allowed to rank upon the estate (in liquidation under the AVinding-up Act) of his other co-debtors jointly and severally liable without first deductinj.; the amount he has previously received from the estate of his other co-debtor. R. S. i;. c. 120, 9. G'2 (The Windin>;-up Act.) Held, "'.■.(1 (affirming; the jud^'meut of the court below) that a person who makes a deposit with a bank aftfr its suspijnsion, the deposit consiatinj,' of cheques of third parties drawn on and accepted by the bank in question, is not entitled to be paid by privile;^e the amount of such deposit. Ontario Bank v. Chaplin, xx. l."}2. 27, Acquiescence in Judgment — Aftoriieij ad lUt'in — Rhjlif of Appeal — BuUdin(j Society — C. S. L. C. c. 09 — By-laivs — Tninsfer of SItares— Pledge— Art. 1070, C C.—Inmlvent— Creditors Right of Action— Art. 19S1, C. C. A by-law of a building society (appellants) required that a shareholder should have satisfied all his oblif4ations to the society before he should be at liberty to transfer his shares. One P. a dii'ector, in contravention of the by- law, induced the secretary to countersijjn a transfer of his shares to the Bank Ville Marie as collateral security for an amount he borrowed from the bank, and it was not till P. 's abandonment or Ht-sif^inment for the benefit of his creditors that the other directors knew of the transfer to the bank, although at the time of his assignment P. was indebted to the appellant society in a sum of §3,74i, for which amount under the by-law his shares were charged as between P. and the society. The society immediately paid the bank the amount due by P. and took an assignment of the shares and of P.'s debt. The shares being worth more than the amount due to the bank the curator to the insolvent estate of P. brought an action claiming the shares as forming part of the insolvent's estate and with the action tendered the amount due by 1'. to the bank. The society claimed that the shares were pledged to them for the whole amount of P.'s indebtedness to them under the by-laws. Held, reversing the judgment of the Court of Queen's Bench for Lower Canada ^appeal side) and restoring the judgment of the Superior Court, that the shares in question must, be held as having always been charged under the by-laws with the amount of P.'s indebtedness to the society, and that his creditors had only tlic same rights in respect of these shares as P. himself had when he made the abandonment of his property, viz., to get the shares upon payment of P.'s indebtedness to the society. Fournier and Taschereau, JJ., dissenting. La Societe Canadienne-Francaise de Construction de Montreal v. Daveluy. — xx. 449. 350 Insolvency—' ontinucd. 2«. PivfL'rL'nct—By-mort;;iv,!j;'e— Pressure— R. S. 0. (1887) c. 124, s. 2. See ASSIGNMENT, 24. .2'J. Insolvent bank — Lii-n on nssuts — Prerogative — Claim of Pi'o- vincial CJovernnient — I'rioritv. See CROWN, 32. See BANKS AND BANKING, 31. ' ■30. HijpotJicc io fJie PrejiuUce of Crcdifors — Notorious Insolvency of M(n't(j(i;iors—Art. JO.JJ, C. C. On or about the 28tli day of February, 188S, tlie firm of E. "Piclie tt • fils" made a voluntary assignment for the benefit of their creditors, in the hands of one P. L. Tousif^nant. Thereupon The Union liankof Lower Canada, the niiiiellantH, on the 13th of March, IHk;), took out against the said " E. PicliO et fill " a writ of attachment, on the affidavit of their af?ent at Three Rivers. G. II. Henshaw ; allet;in>,', on the faith of tlie said assignment, that the said E. Piche ct fils were notoriously insolvent and in bankruptcy. The personal 'property of E. Piche et fils was seized under the said writ. On the 27th of March, l>*s;), the appellants obtained from the assiynee, Tousifinant, a docu- ment by wliich he bound himself to ^'rant iiKiiiiUri'i' of a hyjothcc which had •been tjiveu on the 17th November, 18H2, by the said E. Piche et fils to the sai 1 Tousit,'nant to secure him ivf'ainst endorsements to the amount of $5,000, on ■ certain promissory notes niven for advances to E. Piche et fils, $3, ODD by the -Hochelaga Bank (the respondents) and S'2,000 by Banque Yille Marie; and to allow the Union Bank to take a first hypothec on the immoveable hypothecated up to the sum of $2,500. The Union Bank on their part agreed to obtain for K. Piche et fils a composition for 20c. in the dollar and a discharge from .certain Montreal creditors. Upon obtaining this document the appellants discontinued their proceed- ings under the said writ of attachment, and on the 29th of the same month, .-the Montreal creditors of E. Piche et fils signed a transfer of their respective claims to appellants; the latter fulfilling thereby the condition imposed upon them by the document of the 27th of March. On the 13th of April following, the same P. L. Tousignant who had signed the document of the 24th of March, gave a dieoharge of the mortgage that he held on the property of E. Piche et fils for |5,000; who consented in favour of appellants to the mortgage contemplated by the document of the 27th of March, for §2,050. The mortgaged property having been sold six months afterwards, the appellants were collocated for the amount of their claim. The respondents contested this collocation, alleging the fact of the notorious insolvency of E. Piche et fils at the time of granting the said mortgage. The Superior Court for Lower Canada rejected the respondents contesta- tion on the grounds : T. that by acceptance of the composition of 20c on the dollar by the Montreal creditoi* the Picbe's had beea placed in a position to 851 Insolvency—' 'out in iwil. lesuniu tlioir buHJiieBs. And 2. that ruspondunta had acquieaced in the agree- ment between Touai^nant and the appellants. This jiidt^nioiit was reversed by tlio Court of Qneen'a Bench for Lower (Canada (appeal side), on the grounds that the Pich6s were notoriously inaolvent when the hypothec for which respondents were collocated was given ; that tlie nppcllaiits were iiware of the insolvency as proved by the affidavit of Hunshaw when applying for the writ of attachment ; and that therefore under Art. 2023, C.C, the hypothec in question coulil not be invoked against the appellants and the other creditors of the insolvents. On appeal to the Supreme Court of Canada that court concurred in the ttnding of the court appealed from and Held, that the appeal should be dis- missed with costs. (Gwynne, J., dissenting). Present : Strong, Fournier, Tascliereau, Gwynne and Patterson, JJ. The Union Bank of Lower Canada v. The Hochelaga Bank. — 18th March, l«s<». ;U. Deed of sale — Fminl vh-nt P refc renre — Evidence. An action instituted in the Superior Court at Quebec on the l-jtli June, 1883, by 'William Laird, the respondent, to cause to be annulled a deed of sale made by .John Lawson Gibb, one of the defendants, to .Tames Gibb Ross, the other defendant, of all the real estate belonging to Ciibb, situated within the City of Quebec, the price of sale being *.j1,000. This deed was passed on the 23rd February, 1878. John Lawson Gibb, one of the defendants, had been for several years previous to tiie institution of the action carrying on a large business at Quebec in partnership with Joseph Unwin Laird. Joseph Unwin Laird is the uncle and was the tutor of the respondent. In that capacity he lent a large sum of money belonging to his ward to the firm of Gibb, Laird A Co., of which he was a member, and credit in the books of that firm was given to the respondent for the amount of the loan. In the month of April, 1883, the tirm of Gibb, Laird A' Co., stopped payment and became notoriously insolvent. At tliis time the firm was indebted to the respondent in the sum of S2i;,750.75, for which amount he obtained judgment against them. The contention of the respondent in this case is, that in February, 1878, when the sale by Gibb to Eoss was made, the firm of Gibb, J;aird it Co., was hopelessly insolvent, that Ross was aware of this insolvency and that the sale to him, though nominally for 'J;')4,000 in cash, was in reality collusively made for the purpose of covering the indebtedness of the firm to Ross. The appellant pleaded to this action that the firm was represented to him at the time of the sale to be solvent, and that he had reason to believe that this statement was true, and that he bona tide paid for the price of the property in notes, which he afterwards took up, and that the whole transaction was in good faith, and caused no loss to the creditors of Gibb or to the firm of Gibb, Laird & Co. Upon this issue a long and contradictory enquCte was held, and the Court below, on the 7th June, 1880, rendered judgment maintaining the con- 352 Insolvency— ('('«<''«M«;(/. cluHions of tlie respondent's declarfttion and settinfj aside the deed on the tjround that it was o, colhisivo tranHaction for the purpose of ^ivin^' a preference to a creditor. This judgment liavinji been taken into appeal, tlie Court of Appeal contirmed the judgment of the Superior Court, Church, J., dissentinf^. On appeal to the Supreme Court of Canada, that court (Kitdiio, C..T., diasentinu), took the view of the evidence adopted by Church, J., in the Court of Queen's Bench, viz. , that there was not sufficient evidence to establish tliat the sale was simulated, or that it was intended to confer ille<,'ally and fraudulently an advantaf^e over the other creditors of Gibb, Laird & Co. on the appellant, and that the appellant knew on the 23rd February, 1878, of the insolvency of the firm of Gibb, Laird A- Co.; and therefore held, that the appeal should be allowed and the acti(3n dismissed with costs. Present. Kitchie, C.J., and Strong, Fournier, Gwynne and Patterson, ,JJ. Ross v. Laird.— 30th April, 188',». 32. Knoidedc/e of hij credUur — FratuliUent pveference — Fleihje — Warehoune receipt — Novation — Articles lU7o, 10J4, 1035, lojG, 11G9, a a 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, Finlaybon & Co., wine merchantH, made a judicial abandonment on the 18th Auf^ust, 1881), of his oil business. Both firms had kept their accounts with the Bank of Commerce. The bank discounted for W.E.Elliott .t Co., before the departure of W. E. E. for l^nj^land, on the JSOth June a note of $r),()«7.."iO, due Ist October, signed by John Elliott it Co., and endorsed by W. E. ElliottiSr Co. and Elliott, Finlayson & Co., and on the /Jth Jidy took as collateral security from Finlayson who was also W. E. Elliott's agent during his absence, a warehouse receipt for "ilCi barrels of oil, and the discount was credited to Elliott, Finlayson ct Co. On and about the 'Jth July ll(') barrels were sold and the proceeds, viz., $3,528.30 were subsequently, on the Oth Aui,'ust, credited to the note of $5,087.50. On the 13th July JIcDougall, Logie & Co. failed and W. E. E. was involved in the failure to the extent of $17,000, and on the Kith July, Finlayson as agent for W. E. E. left with the bank as collateral security against W. E. E.'s indebtedness of $7,55'J.30 on the paper of MacDougall, Logic & Co., customers notes to the amount of $2,7()8.'28 upon which the bank collected $1,003.43 and still kept a note of J. P. & Co. unpaid of $1,105.32. On the return of W. E. E. another note of John Elliott & Co. for $1,101.33 previously discounted by W. E. E. became due at the bank, thus leaving a total debt of the Elliott firms on their joint paper of $2,GC0.53. The old note of $5,087.50 due Ist October and the one of $1,101.33 were signed by John Elliott A Co. and on the 10th August were replaced by two notes signed by Elliott, Finlayson & Co. and secured by 200 barrels of oil, ]4i'> barrels remain- ing from the original number pledged and an additional warehouse receipt of 64 barrels of oil, endorsed over by W. E. E. to Finlayson, Elliott & Co. and by them to the bank. The respondent, as curator for the estate of W. E. Elliott & Co., claimed that the pledge of the 200 barrels of oil on the 10th August, and 353 Insolvency—' 'tuiiiniwil. the >;iviun of the notes on tlie 10th July to iho bank were fraudulent prefer- ences. The Superior (.'curt, for L. C, held that the bank had knowledge of W. E. E'a insolvent conditiii'i on or about the lOtli July, and declared that they had received fraudulent preferences by receivinj^ W. E. E.'s customers' notes and the 200 barrels of oil, but the Court of Appeal, reversing in part the jud^^ment of the Superior Court, held that the pledf{int,' of the 200 barrels of oil by Elliott, Finlaysou & Co. on the 10th August was not a fraudulent preference. On an appeal and cross-appeal to the Supreme Court : Held, 1st, that the ftudin^ of the Courts below of the fact that the bank's knowledge of W. E. Elliott's insolvency dated from the liith July was sus- tained by evidence in the case and there had tlierefore been a fraudulent preference jjiven to the bank by the insolvent in transferring over to it all his customers' papers not yet due. Gwyiuie, J., dissontin)^. 2nd. That the additional security ^iven to the bank on the 10th Aniiust of 54 barrels of oil for the substituted notes of Elliott, Finlayson & ("o. was also a fraudulent preference. Gwynne, J., dissenting;. .Srd. Reversiufj the judgment of the Court of yuecn's Bench and restor- ini{ the jud^nient of the Superior Court that the le^'al effect of the transaction of the 10th Aui^ust was to release the pledj^ed 14(1 barrels of oil and that tlicy became immediately the property of the insolvent's creditors and could not be held bv the bank as collateral security for Elliott, Finlayson & Co.'s substituted note. Arts. IKl'J A 103-4 C. C. Gwyune and Patterson, JJ. v dissenting. Appeal allowed and cross-appeal dismissed with costs. Present: Strong,', C.J., and Fournier, Taschereau, Gwynne and Patter- son, J J. Stevenson v. Canadian Bank of Commerce. — 20th February, 1893. — xxii. 33. Chattel mortgage — Preference — Bond fide advance — Considera- tion partly bad, effect on whole instrument — R. S. O. 1(S87, c. 12-1, s. 2. See CHATTEL irORTG.\GE, 18. FRAUDULENT PREFERENCE. PREFERENCE. Institute. Set' DEED 3. WILL 10. Insurance, Fire — Interim Receipt — Description of premises in policy — Auihority of agent. On the 9th of Auf^ust, 1871, the plaintiffs (respondents) applied to the defendants (appellants) through their agent H., at Hamilton, for an insurance CAS. DIO. — 23 364 Insurance, Fire—' 'nntinwil. oil xoDcls to tlie aiDDiint of #0,0(10, coiitain'>fl in a Rtoro on tlio soiitli siilo of Kin^' Hti'L'i't, (k'scribfd in tin; upplicatioii nniinii;l. 2. Misir/irescntatioii an to siliKitioa uf risk — Siifrfi/ hidili- Inj iii/t'iit, C. Mm iippelluiitH' iit{uiit, Holiuitiol and prevailod on T. H. to iiiHtire his lirt'iiiisuH witli tlif iipiH'lliint:!. I'mvioiinly hu liad oxiimiiicd tlii' pri'iiiiHL'H to bo iiimiifd, and on tliu 2'Jiid April, 1h74, T. H. Hijjiiud the a[)i)li('ivtiiin wiiicii C M. had caiiHud to bo tilled up, and upon the l>ack of which waH a diagram purport- ing to represent 'lu' fxact Hituntion of tlio l)ii!ldinn in rt'liition to ailjnining hiiildiuftii. T. H. stated at the time of Hignin^ tlie application that tliu diHtaiu-os put do\\n in the diagram were not accurato. C. M. promised ho would no to the pr H made to their a^^entH perHonally. Held, att'irmin^ the jud^'inent of tlie ('ourt of Error ami A[)pual, tluit with roHpect to the Hurvey, dencrijition and diagram the assured was dealing witli C. M., not HH his a^ent, but an the a^ent of the company, and tliat therefore any inaccuracy, omiflsiono or errorH therein were those of the uf^ent of tiie company, acting within the scope of liiii de[)Uted autliority, and nut of tlie assured. Hastings Mutual Fire Insurance Co. v. Shannon, —ii. 'A'Ji. 3. Misfitatevient / I'litlci/ — Xotin: to lUji'nt — LttHn piifjiihlc to crcil itot'H — liiij/it of iirtion. The iipix-ilunt, beiti); indebted to certain perHonH and doxirinK to have hiit fttock of t^ooiJH inHiircd, up[>lied to the a^'ontH of rcMpondciitH for iiiHiiriinoe to thu amount uf 'i^'i.DUU for three nionthH, " Iorb if any to be payable to his creditoru of wiioni O. McK. in one and McM. & Co. are second.'' An interim receipt wan inniied by the company, diiti'd I'.lth November, 1H77, whicli Htatcd the inHurnnce to bo sul)jpi:t to the conditionH contained in and endorned npiin the printed form of policy in use by the company, one of which conditions (No. I) stated, tiiat if tlie pr lerty in^nred Hhould bo uHHi;:ned without a written permisMion enilorsed on the policy by an a^jent of the company duly authorized for such purpose, the policy should be void. On the '2ith Novem- ber the appellant traiinferred the inrtiirod ))roporty to the said G. McK,, in trust for his creditors, the balance, if any, to bo payable to himself. The a^ent of the company was notified of this transfer and assented to it, stating' that no notice to the company was necessary, the policy beinK made jiayablo to the creditors. The property was destroyed by tire on tlio 15th January, 1878. The policy sued upon was dated the 12th December, 1877, but was not delivered until the mornint^ after the th'e. By it the loss was nnvde " payable to G. Mc.K a'.id I\IcM. iV Co. and others as cre of Iohm or divnuit^t- tlie incniljiT hIiiiII uivc notice to tlio Ht'cTi'tiii'y forthwitli, iiiul tlio |)ruofH, ilecliirutionH, evidcncu, and i'\aminn> titniH, callt>(l for by or niidcr tlio policy, nuint bo fiirniMhcil to tlio conipiiny within thirty dayH after naid Iohm, and iipnn ri'cuipt of notico iind proof of cliiini iiH iifort'Miiid, tlio boaril of diroctorM tiiiiill aHcurtain ami dotorniino tlie ivnioiuit of tiiicli I0H8 or daniA^o, and hucIi amount hIiuII be payable in three montliM af'-c-r receipt by the company of hucIi proofa. A fire occurred on the ■Jltit May, 1H77. On the next mornini; J. I', advised the iiiMurance company by telegraph. On tho 'J'Jth June, 1H77, the wecretary of the coiiii.any wrote to J. F.'rt atturnoys, that if ho Imd any claim he had bettor Mend in the piiperM, HO that they mij^lit bo Mubniittcil to tho board. On tho !lrd .July, 1877, .1. F. furnished the company with the claim paperH, or proofn of loeiB, and the 18th July lie wag adviged that, after an examination of the papers at the board mcetiii;,', it was resolved that tho claim nliould not be paid. On the 2;ject to u condition, that the Iohh Hhould not be payable until three inontlm after tlie receipt by the ilefeiidants of tho proofs of such Iohh, to be furnished by the plaintiff to the defendants; and averred the delivery of the proofs on the .Hrd Jidy, 1877, and that less than three months elapsed before the comniencemcnt of this suit. Held, on appeal, let. That a policy issued by a mutual insurance company is not subject to the Uniform Conditions Act, H. S. 0. c, 102. 2nd. That the appellant c(mipaiiy under the policy were entitled to three months from the date of the furnishin^^ of claim papers before bein^ subject to an action, and that therefore respondent's action had been prematurely hrou;4ht. lUtlhiijh v. The Ittnjal Mutual Fire Iimurance Company (0 Ont. Apn. R. s7) approved. The Mutual Fire Insurance Co. of the County of Wellington v. Frey.— v. H2. 6. Subsequent and further insurance — Suhstltuted policy. The appellants sued upon a policy of insurance made by the respondents on the 'JiStli April, 1877. Oil the face of the policy it appeared that there was " further insurance, ?K,000," and tho policy had endor.sed upon it the following} condition, bein>{ statutory condition No. 8, \\. S. O. c. lt)2: "The company is not liable for loss if there is any prior insurance in any other company, unless the company's assent thereto appears herein or is endorsed hereon, nor if any subsequent insurance is effected in any other company, unless and until the company assent thereto by writing signed by a duly authorized aj^ent." Among the insurances, which formed a portion of the "further insurance" for §8,000 mentioned in the policy, was one for ?2,000 in the Western Insurance Company, which appellant allowed to expire, substituting a policy for the same amount in the Queen Insurance Company, without having obtained the consent of, or notified the respondents. 358 Insurance, Fire — ' 'ontinneiJ. Held, reversiiij^ the judgment of tlui court Vielow, that the comliticin as to subsequent insurance must be construed to point to furtlier insurance beyonii the amount allowed by the policy, and not to a policy Hubstituti.!d for one of like amount allowed to lapse,- and therefore tlio policy sued upon was not avoided by the non-communication of the ?2,000 insurance in the Queen Insurance Company. Parsons v. Th", Standard Fire Insurance Company,— v. 233, 7. Insurable interest — Advances raade to biiild a vessel. C. made advances to B. upon a vessel, then in coarse of construction, upon the faith of a verbal a^jreement with B., that after the vessel sliould be launched, she should be placed in his hands for sale, and that out of the proceeds the advances so made should be paid. When vessel was well advanced C. disclo.sed the facts and nature of his interest to the agent of the respondent's company, and the company issued a policy of insurancs against loss by lire to C in the sum of S3, 000. The vessel was still unfini.slied, and in B 's possession when she was burned. Held, reversing the judgment of the court below, that C.'s interest, relating as it did to a specific chattel, was an equitable interest which was insurable, and therefore C. was entitled to recover. Clarke v. The S-ottish Imperial F. Ins. Co.— iv. 192. 8. Insurable intered— Transfer of— Art. :J4S:J, C. C. L. C. The appellants granted a fire policy to one T. on divers buildings an:l their contents for S3, 280. In his written application T. represented that lie was the owner of the premises, while he had previously sold tliem to H., the respondent, subject to a right of redemption, which right T., at the time of the application, had availed himself of by paying back to S. a part of the money advanced, leaving still due to H. a sum of $1,310. Subsequent to the application, and after some correspondence, the respective interests of T and S. in the property were fully explained to the appellants through their agents. Thereupon a transfer for — (the amount being in blank) was made to S. by T. and accepted by the appellants. The action was for $3,280, *-he amount of insurance on the building and effects. Held, that at the time of the application for insurance T. had an insurable interest in the propertj', and as the appellants had accepted the transfer made by T. to S., which was intended by all parties to be for ft 1,500, the amount then due by T. to S., the latter was entitled to recover the said sum of $l,'t00. 2nd. That S. having no insurable interest in the moveables, the transfer made to him by T. was not sultic^ent to vest in him T.'s rights under the policy with regard to said moveables. Art. 2182. . The Ottawa AgricultUi'al Insurance Company v. Sheridan.- v. 157. 9. Insurable interest. See INSUR.INCE, MARINE, 2. 359 Insurance, Fire— t'ontiiutctl. 10. Exist in (J Insurance — Notice to A(jent — Application and Polictj. The plaintiff, ilesiriiig to effect further insurance for two months on certain machinery, appHed todefenclanta' company, through one S., their attent at D., authoi-izod to receive applications, accept premiums and issue interim receipts, valid only for thirty days. He informed S. that there were otlier insurances on the property, but not knowiii}^ the amount that tliere was in the Gore Mutual, requested him to ascertain it, and si>,'iied the application partlys in blank, paid the premium and obtained an interim receipt, valid only for thirty days. S. failed to do what he promised to do, and what plaintiff had entrusted him to do, and forwarded the application to the head office at T., makinj^ no mention of the insurance in the Gure Mutual. The company accepted the risk, and, in accordance with their practice, where the risk extended only over a short period, instead of a formal policy, they issued a certificate, which statetl that the plaintiff was insured subject to all the condi- tions of the company's policies, of which he admitted cognizance, and thiit in the evsint o£ loss it would be replaced by a policy. The machinery was subse- .juently destroyed by fire, after the thirty days, but witliin the two mouths, and a policy was thereupon issued, endorsed with the ordinary conditions, one of which was that notices of all previous insurances should be given to the company and endorsed on the policy, or otherwise acknowledged by them in writing, or the policy should be of no effect; and another was, that all notices for any purpose must be in writing. The insurance in the Gore Mutual was net endorsed on the policy. Held, that as the application in writing did not contain a full and truthful statement of previi)us insurances, the verbal notice to the agent of the e.xisting policy m the Gore Mutual, without t-tating the amount, was inoperative to bind the company; the plaintiff was not entitled to have the policy reformed by the endorsement of the Gore Mutual p^Hcy thereon, and could not recover. Billington v. Provincial Insurance Co. — iii 182. 11. Interim receipts — Agents, powers of. This was an action brought on an interim receipt, signed by one S., an agent for the respondent company at L. One of the pleas was that S. was not respondent's duly authorized agent, as alleged. The general managers of the compatiy for the Province of Ontario had appointed, by a letter, signed by them both, one W. as general agent for the city of L. S., the person by whom the interim receipt in the prfsent case was signed, was employed by W. to solicit applications, but had no authority from, or correspondence with, the head office of the company. In his evidence S. said he was authorized by W. to sign interim receipts, and the jury found he was so authorized. He also stated that Wt one of the joint general managers, was informed that he (S ) issued ii terim receipts, and that the former said he was to be considered as Ws agent. There was no evidence that the other general manager knew what capacity S. i\-as acting in. Insurance, Fire ' 'nniiiiH,l i,n ailDinrKy 1'. Lin-I till) roHjioiiilcrit C()rii|))iijy. J'frSlr'iiin, .1. 'I'liiit, t,)i<4, \ii:iun y,iid nucitlH, r.i,u]ii i,„\y tiind thf! rnHpoiirldiit, corTipariy l.y tlifjir joint concurrent iictH ; tin; appointiiiiiiit of H. iiM nuiuii \,y VV't, willi.,iit, llif coiK-iirr^.-ic"? of tji^ otlur ^'cnf^riil i/,iuiii(;i:r, woiiirj liot h ".Vi! I;r)(!ii Mll((iriciil,. J Summcrii v. The Commercial Union Innurancc Co.- vi. 1!). 12. Action ior cuIIh n,^ain,Ht, HliiuclifiMcrH. See COUI'OKATKJ.S.S. !». |.'{. .lui'iHclictioii of \j<,ci\\ lif^ri.shdiirr! over suhjfff-iiDittcr of. .s-v ij;(;isi,A'ii:iiK, .o. 14. /''(/y I'liMiiTd/arr. J'nl.irji Trrin'i iiul'iini hji loni/iiin i/ Surrrn- tlcr — WdAvc/r — AVo///;r/ II umIhi,,,,! mul, mi./'r -/nHK/raldf, I iitr/rf.Hf, in Vj'i.ff'H 'fn-i>iiirl 11 Tfiin,,! far Hfr — Ihiiiiiiijf'H — I 'ri u:l UX —I'li/rl.lcM — Si ril.i u;/ mil iin me. of ir'ifr jn'i iifil, an ri,. /d(j/i/idi(f'. A.«!ffw!tf(l iiiMuraricf^on (',.'» |)ro|)i;rt.y, on wliioli In: Inti'l a Mi'(rt,j;at!(^ iircliT aulliority from and in tljo name of O,, with Ioxm |>ayal)l«; to hiniMnlf. l>iirini< tint ront.innanco of thf polif.y Ihi! comjiany notifnid A. that tho inKuraM';*! would li(! torminalod, and adviMOfI him to itiHiinj olKi^whuri!. Hiich noticr! aUo Htat,"-d that lUKrarni^d pr':rniiimM would \m: rct.nrncd, hut no iiayni.-nt or trjtidor (if Hiimo wan niadf. acorirdiuK to conditiouH of |)oli(;y. A. took [lolicy to nu>'Ut of inmirurH, who wuHalMoa^fwit of th<; W, hn. ()<,., an him to [irit rink in latter roMipaiiy ,\o receipt wa-i Kiven, and |irop(!rty waM rlentroy\v hill of Halt! ({ivnn hy S. to tli)« appi-llatit, who ulaiiniid tli it thlioy beinij merely a continuance of the original contract. Howard v. The Lancashire Insurance Company. — xi. 92. IG. Condition ill policy — Xot to (i^sii/n mitlionJ written eonnent of company — Er'uicJi of coitdition — Clint tcl moiigiu/e. Where a policy of iiiHurance agunst loss or damage by fire contained the following provision : — "If the property insured is assigned without the written coMsei't of tlie company at the lu;ad office endorsed hereon, signed by the secretary or assistant secretary of tlie company, this policy shall thereby become void and all liability of the company shall thenceforth cease.' Held, nftinning the jiidgmeiit of the Supreme Court of N.H., that a chattel mortgage of the property insured was not an assignment within the mean- ing of such condition. Sovereign F. Ins. Co. of Can. v. Peters.— xii. 33. 17. Condition in pcame of no effect on the suhseijnent insurance Viein^ effected, and that neither the Rijent nor the inspector had power to waive a compliance with its terms. Western Assurance Co. v. DouU.— xii. -U(). IS). Condition — Prod act ion of maijixtratei-' certificafe — Waiver of , condition. A policy of insurance against hre contained the followint? conditions : — " The assured must procure a certificate, under the hands of two niajjistrates most contifiuous to the place of fire, and not concerned or directly or indirectly interested in the loss or assurance as creditois or otherwise, or related to the assured or sufferers, that they are ac(juaiiited with the character and circum- stances of the assured, and have made dili(,'ent inquiry into the facts set forth in the statement and account of the assured, and know, or verily believe, that the assured really, by misfortune and without fraud or evil practice, hath or- have sustained by such fire loss or damage to the amount therein mentioned." " No one of the foregoing conditions or stiinilations, ather in whole or in part,, shall be deemed to have been waived by or on the p irt of the company, unless the waiver be clearly expressed in writing Jiy indorHement upon this policy, signed by the agents of the C()mi>any at Halifax, N.S." The insured premises having been destroyed by fire the assured applied to two magistrates contiguous to the place of the fire for the required certiticate, which they refused, and he finally obtained such certificate from two magistrates residing at a distance from such place. The proofs of loss, accoin)mnied by the certificate, were sent to the agent, who subsequently made an offer of payment to compromise the claim, stating that if such offer was not accepted the claim would be contested. The agent, on a subsequent occasion, told the assured that he objected to the claim, as he " did not think it was a scpiare loss."' Held, affirming the judgment of the court below, that the non-production of the certificate required by the above condition prevented the assured from! recovering on the policy. Held, also, that even if such condition could be waived without indorse- ment on the policy, the acts of the agent did not amount to a waiver. Semble, that the condition could not be so waived. Logan Y. Commercial Union Ins. Co.— xiii. 270.. 364 Insurance, Fire — Continneil. 20. ('iiii(lifion in j^oliry — Not to carry on hozfirdom or extra hazardous bicsines'^ — Violation of rondifloD — Xo increase of risk. A policy on a buildiiij^ described in the application for iiiHurauce as a spool factorj' contained the following conditions: — "That in case the above described premises hIiuII at any time duriun the continuance of this insurance, be appropriated or applied to ur used for the purpose of carrying on or exercising therein any trade, business or vocation denominated hazardous or extr.i hazardous or for the pin-pose of storing, using or vending therein any of the goods, articles or merchandise ilenominated hazardous or extra hazardous unless otherwise specially provided for, or hereafter agreed to by the defendant company in writing or added to or endorsed on this policy, then this policy shall become void. Any change material to the risk, and within the control or knowledge of the insured, shall void the policy as to that part affected thereby, unless the change is promptly notified in writing to the company or its local agent." Held, revei-sing the judgment of tiie court below, that the introduction, without notice to the company, of the manufacture of excelsior into the insiured premises, in addition to the manufacture of s^poolb, avoided the policy under these conditions, the evidence establishing clearly that such manufac- ture in itself was a hazardous, if i ot an extra hazardous business, notwith- standing that on the trial of the action on the jiolicy the jury found, in answer to questions submitted to them, that such additional manufacture was less Imzurtlous than that of spools and did nor increase the risk on the premises insured. Sovereign Fire Ins. Co. v. Moir.— xiv. 012. .21. Description of i)roperty — Error in policy — Statatory condi- tion — R. S. 0. c. IG.i — Just or reasonable variation. The agent of an insurance company tilled in an application for insurance on a building built of boards and fixed the premium at the rate demanded on brick buildings there being no tariff for value for board buildings. The words " boards " was so badly written that it was difficult to decipher it, but the character of the building was designated on a diagram on the back of the application, which the agents were instructed to mark with red in case of a brick, and black in case of a frame building. In this case it was in black. At the head office the word intended for boards was read "brick," and the policy issuetl as on a brick building. A loss having occurred, the company, under a clause in the policy, caused an arbitration to be had, but afterwards refused to pay the amount awarded to the insured, claiming that by reason of the error in the policy there was no existing contract of insurance. Held, aflirming the judgment of the court below, that as there had been no misrepresentation by the assui-ed, and no mutual mistake, the parties were ad ideh. nd the contract was complete, and even if it were otherwise the com- pany could not set n.p this defence after treating the contract as existing by -the reference to arbitration under the policy. 3G5 Insurance, Fire— Contiuuitl. By tlio 17th condition in c. Ifi'i, R. S. O., a loss is not payiible until 80 (lays after j.rnofs of loss are ^mt in uultss otherwise proviiled by stututo or agreement of the piirties. Held, /'(')• Ritchie, C.J., and Fonvnier, Henry and Gwynne, J.T., that this is a iiriviii'tie accorded to tlie company, and wiiile the time may be further limited by agreement it cannot be extended. Per Strong, J. — That a variation of the condition by inserting a clause in the policy extending the time to ("0 days is not a variation by agreement of the parties, nor is such varied condition a just cr reasonable one. The City of London Fire Insurance Co. y. Smith.— xv. (I'J. 22. Fire insurance — Insurable intciw^t — Mortgagee — Assignment of policy. In 1877 T. held a policy of insurance on his property which he mortgaged to W. in IHSI, and an endorsement on the policy which had been annually renewed, made the loss payable to W. In 18S2 T. convoyed to W. his equity of redemption in the property, and a few months after, at the request of W., an endorsement was made on the policy permitting the premises to remain vacant. The policy was renewed each year until ls8."), wlien all the policies of the insurance company were called in and replaced by new policies, that held by W. being replaced by another in the name of T., to which \V. •objected anci returned it to the agent who retained it. llie premiums were paid iiy W. up to the end of 188G. Tlie insured premises were burned, and a special agent of the company, having power to settle or compromise the loss, gave to W. a new policy in the name of T. having the vacancy permit and an assignment from T. to W. endorsed thereon and containing a condition not in the olrl policy, namely, that all endorsements or transfers were to be authorised by the office at St. Jolm, N. B., and signed by the general agent there. The company having refused payment, an action was brought on the new policy against them, and the agent who Ijrst issued the policy to T. was joined as a ilefendant, relief being asked against him for breach of duty and false representations. The Supreme Court of Nova Scotia set aside a verdict for the plaintiff in such action and ordered a new trial on the ground that his interest was not insured and that T. had no insurable interest to enable W. to recover on the assignment. On appeal from such decision to the Supremo Court of Canada, Held, reversing the judgment of the court belew, 20 N. S. Rep. ■iS7, that the company, having accepted the premiums from W. with knowledge of the fact that T. had ceased to have any interest fu the property, they must be taken to have intended to deal with W. as owner of the property and the con- tract of insurance was complete. Present : — Sir W. J. Ritchie, C.J., and Strong, Fournier, Taschereau and Gwynne, JJ. Wyman v. Imperial Insurance Co. — Oct. Uth, 1888— xvi. 715. Insurance, Fire— (j^'ontinwil. :2'-l Fire Innxircmr.e — Insii/rance hi/ morfyagee — IntcreM WHUred — Pnyment tu raorffjufjee — Svhroifdtlon. Mortfjiifjeea of roul t:«tiito iiiHiircil tlie iiiort^agcd property to tlie (ixteiit of their cliiiiii tlioreoii uiiiloi- a claiiHu in tlie mortf^aj^u by which the iiiortj^ajior agreed to keep the proi)erty insured in a sum not less than the uinoiint of the niorti,'iif^o, and if he failed to do ho that the niortf,'anoi!H niijpIication, and the building on said plan marked " feed-house," did not in any resptcl conform to the description in the policy, bnt another building thereon answered tiie description in every way except as to the designation '•feed-house." The tjoods insured were stored in this latter buildinf.; and were burnt. The company refused to i)ay. Hlle^;ing breach of a condition in the pohcy that no imihuiimalile nniterials should be stored on the said premises, as well as misdescription of the building containing the goods insiireil. Ill an action on the policy it appeareiuiniuul. property of P., who aftor tho completion of the contract was to convoy same to M. ; the ice was to bo delivcrcl by >I. on board vi'sselH to bo sent by I', durint; certain nionthn ; 1'. waH to l)o hablj to accoiit anil pay for only j^ond incrchiint- able ice delivered and utored an a({reed. Tlio property on which the buililin»{H for storinji waiil ice wen; Hitiiato wan leased ti) V. by tho owner, the leaHo containin){ a covenant by the owner to grant a renewal to M. A bill of nalo waH niHile by M. to a third party of tlie buildiii^st on said land. M. elfected iiiHurance on the whole stock of ico stored, and in his application to tho ({Uob- tion, "dneu the property to be insured belon)^ exclusively to ap[ilicant, or is it held in trust or on commission, or as mol•tl!a^;eo ';" lie answi/rod, " yes, to applicant." The ap[>licati(jn contained a dudaration that the same wasa junt, full and true expoHitioii of all the facts and circumstances in ret^ard to the condition of the property ho far us known to the applicant and so far as material to the risk, and it was to form the basis of tho liability of tho company. The property insured was destroyed by fire and payment of the insurance was refused on the j,'rouiid that the property beIon>,'ed to P. and not to M. In an action on the policy, the tlofendaiits endeavoured to prove that other insur- ance on the same property had been effected by P., and set up a condition in tho policy that in sucli case the company should only bo liable to pay its rate- able proportion of the loss. This condition was not pleaded, and the policies to P. were not produced, nor tho terms of his insurance proved. Evidence was Riven, subject to objection as to its admissibdity, that P. had effected insurance to cover advances made to M. on the ice, and had been paid his loss. The plaintiff obtained a verdict for the full amount of his policy, which was affirmed by the Supremo Court of Now ]]runswick in Ikihc. Held, aftirmin^i the decision of the Court below, that the whole property in the ice insured was in M. ; that the clause in the a^jreemont statinj} that the ice houses and implements were to be the property of P. meant that the build- inf^s and implements only were to pass to 1*., as he was to convey tho property vested in him by the aj^rcement to M. on completion of tlie contract, anil could iKjt so cniivey the ice which M. was to deliver on board vessels, which he could not do unless it was his property. Held, further, that the declaration in the application did not makf M. pledf^e himself to the truth of the statements therein absolutely, but only so far ay known to liim and as material to the risk, and questions of materiality and knowledge were for the jury, who found them in favour of M. Held, also. Strong, J., dissenting, that the declaration was not a warr.uity of the truth of tlie statements, but a mera collateral representation. Per Strong, J. — It was a warranty, but as it was confined to matters within the knowledge of M. and material to the risk the result was practically the same. Held, as to the further insurance, tliat the condition should have been pleaded, but if available without plea it was not proved ; what evidence was given should not have been received. 3G0 Insurance, Fire—' '•na'nuwii. I'cr Str<>ii;{, J.— It wtiH nut hIiowii tliat P. 'a iniurnuco was on tlie ice insured by M., who was not liiimul to deliver any gpeciflo ice under tiie contract. Per Owynne, J.— Tlie daniaKCH Bhould be reduced by thu amount recolvod by P. North BriUsh and Mercantile Insurance Company v. McClellan.— xxi.2H8. Insurance, Life — Mintnke us ^> (inunrnt insavd — Premhim, — I'arul trideiice. Action to recover tlio anioiint of a policy of iiidunuico issiiud by the apiiiilliintH for tho Hiim of S'J.OOO, payiiblo at the death of tiio reHpoudont, or at tlio expiration of fi> account, such policy or policies shall be made, shall have no interest, or by way of gaminj^ or watering; and that every insurance made contrary to the true intent nud meaning of this Act shall be null and void to all intents and jjurposes whatso- ever. 2. That it shall not be lawful to make any policy or policies on tlie life or lives of any person or persons, or other event or events, without insertint; in such policy or policies the name or names of the person or persons interested therein, or for what use, benefit, or on whoso account, such policy is so made or underwritten. 3. That in all cases when the insured hath an interest in such life or lives, event or events, no greater sum shall be recovered or received from the insurer or insurers than the amount or value of the interest of the insured in such life or lives, or other event or events. Held, afTirmin^ the judf^mont of the court below, that this statute never was intended to prevent a person from effecting a bona fulti insurance on his own life, and making the sum insured payable to whom he pleases, such insurance not being " by way of gaming or wagering" within the meaning of the first section of the Act. Held, also, that section 2 of the said Act applies only to a policy on the life of another, not to a policy by a man on his own life. North American Life Ass. Co. v. Craigen,— xiii. 278. 11. Aj)plication for 'policy— Declaration by assured — Basis of contract — Warranty — Misdirection. An application for a life insurance policy contained the following declara- tion after the applicant's answers to the questions submitted: — " 1, the said George Miller, (the person whose life is to be insured) do hereby warrant and guarantee that the answers given to the above questions (all wiiich questions I hereby declare that I have read or heard read) are true, to the best of my knowledge and belief ; and I do hereby agree that this^ pi'oposal shall be the basis of the contract between me and the said association, and I further agree that any misstatements or suppression of facts made in the answers to the questions aforesaid, or in my answers to be given to the medical e.xaminer, shall render null and void the policy of insurance herein applied for, and forfeit all payments made thereon. It is also further agreed that should a policy be executed under this application, the same shall not be delivered or binding on the association until the fir.st premium thereon shall be paid to a duly author- ized agent of the association, during my lifetime and good health. I (the party in whose favour the assurance is granted) do also hereby agree that this proposal and declaration shall be the basis of the contract between me and the said association." 375 Insurance, Life — Continued. Held, aflirminR the jmltjment of the court below, that thia waa not » warranty of tlie absohito truth of the answers of the applic int, but tliat the wliolo clechii-ation was qualitied by the worcia " to the best of my knowledge and belief." At the trial the jury were chari^ed that if there was wilful iniarepreaenta- tion, or such aa to mislead the company, they should find for the defendants, but that if the answers were reasonably fair and truthful to the best of the knowledj^o and belief of the apijlicant, their verdict should be for the plaintiffs. Held, a proper direction. Confederation Life Ass. v. Miller.— xiv. 330. 12. Life Insurance — Deci(iratio7is and statements in application — Intemperate habits — Increase of risk — Promissory war- rant rj — Locas standi — Art. L'>-{, C. C. An application for life insurance sif^ned by the applicant contained in addition to the question and answer, viz. : — Are your habits sober and temper- ate? A. Yes, an aj^reement that should the applicant become as to habits so far different from the condition in which he was then represented to be as to increase the risk on the life insured, the policy should become null and void. The policy stated that " if any of tlie declarations or statements made in the application of this policy upon the faith of which this policy is issued shall be found in any respect untrue, in such case the policy shall be null and void." On an action on the policy by au assi;{uee, it was proved that the insured became intemperate during the year preceding his death, but medical opinion was divided as to whether his intemperate habits materially increased the risk. Held, on the merits per Ritchie, C.J., and Stron<;. .T , (Fournier and Henry, JJ. , cuiitra,) that there was sufficient evidence of a chan>,'e of habits which in its nature increased the risk on the life insured to avoid the contract. The appellant's interest in the policy was as assignee of Dame M. H. B., the wife of one Charles L., to whom the ipaured had transferred his interest in the policy on the 27th October, 1876. Held, ;>t'r Strong, Taschereau and Gwynne, JJ., that the appellant, had no Zooms gtandi, there being no evidence that M. H. B. had been authorized by her husband to accept or transfer aaid policy. Boyce v. The Phoenix Mut. Life Ins. Co.— xiv. 723. 13. Deatli caused by negligence of railway company — Insurance on life of deceased — No reduction of damages for. See RAILWAYS AND RAILWAY COMPANIES, 46. 376 Insurance, Ui'^e—Contimtetl. 14. MaftKdcomjvinu — Bond ()fm"rahership — Wdi'i'diitij — Conceal- ment of fad ^ — MIsHtatement. On an epplication for insurance in a mutual assessment insurance society the iiiiplicant duclarod ami warranted that if in any of tho answers there should be any untruth, evasion or concealment of facts, any bond {^ranted on such application should be null and void. In an action aijainst the company on a bond so issued, it was shown thut the insured had miHsta^d the date of his birth, giving tlie 19th instead of the '23rd of February, 183."). as such date; that he had given a alight attack of apoplexy as the only disease with which he had been afflicted, and the company ciMitended that it was, in fact, a severe attack; that he had stated that he was in " perfect health ' at the date of the application, which was claimed to be untrue ; that he had suppressed the fact of his being subject to severe bleeding at the nose, and that tlie attack of apoplexy, which he had admitted occurred five years before the applica- tion, had in fact occurred within four years. The trial judge found that the mi'sstatement as to date of birth was immaterial, as it could not have increased the number of years on which the premiums were calculated ; that the attack of apoplexy was a slight, not a severe attack ; that the applicant was in "good" if not "perfect" health when the application was made ; that the bleeding at the nose to which the insured was subject, was not a disease and not danger- ous to his health ; but that the misstatement as to the time of the occurrence of the attack of apoplexy was material, and on this last issue he found for the society, and on all the others for the plaintiff. The court I'n banc reversed this decision and gave judgment for the plaintiff on all the issues, holding that as to the issue found by tne trial judge for the society, there was a variance between the plea and the application which prevented the society from taking advantage of the misstatement. On appeal to the Supreme Court of Canada : Held, Gwynne and Patterson, JJ., dissenting, that the decision of the court en banc, 20 N. S. Rep. 317, was right, and should be affirmed. Present: — Sir W. J. Ritchie, C.-T., and Strong, Fournier, Taschereau, tGwynne and Patterson, JJ. Mutual Relief Society of N. S. v. Webster.— March 18th, 18S9— xvi. 718. 15 AppUcation for — Reference to application in policy — ^Yar- ranty — Misstatement — R. S. C. c. l-2Jf. The bond of membership in an insurance society insured the members holding it " in consideration of statements made in the application herefor, etc., and in a declaration annexed to the application the insured agreed that ■the bond should be void if the statements and answers to questions in the application were untrue. Held, that the application was a part of the contract for insurance and incorporated with the bond. The said declaration warranted the truth of the answers to the questions and of the statements therein, and agreed that if any of them were not true, full and complete, the bond should be null and void. One of the questions to 377 Insurance, l^i{e—<'"iitiiiu,;l. be answered was ; " Have you ever had any of the foUowinj? diseases? Answer ojipoaite each yes or no." The names of the diseases were given in perpen- d.'juhir cohimns, and at the head of eiich ooliiinii the apphcimt wrote " no," pla^iiiM under it and opposite the disease named marks like inverted conimaa. On the trial of an action to recover the insurance on a bond issued pursuant to tliis application it was found tliat the applicant had had a disease opposite to wliicli one of these nnvrka had been phiced. Held, aftirming the judgment of the court below, that whether the ajipli- cant intciuUd this mark to mean '• no" and tlius deny that he liad had such disease, or intended it as an evasion of the question, the bond was void for want of a true answer to the question. [In this case it was argued that the Insurance .Act, R. S. C. c. 124, applied to the defendant coinpany, and that the benefit of the application could not be claimed as it was not contained in nor endorsed on the policy as reijuired by sections 27 and 28 of the statute ; but the coart did not consider it necessary to determine the point. Sfe judgment of Gwynne, J., at p. 340] . Fitzrandolph v. The Mutual Relief Society of Nova Scotia. -xvii, H33. 1 6. Unco r? d it tonal pollc}j — Mis reji rese n ta Hon s — Ejffct < \f — In d ica- tion of iKiyment — Return of premium — Additional partiea to a mit—R. S. C. c. 124, ^s. ir cC- )>S—Arts. 24S7, Q^SS, 35SJ, a a An unconditional life policy of insurance was issued in favour of a third party, creditor of the assured, " upon the representations, agreements and and 3tipnlation8 " contained in the application for the policy signed by the assured, one of which was that if any misrepresentation was made by the applicant, or untrua answers given by him to the medical examiner of the company, the premiums paid would become forfeited and the policy be null and void. Upon the death of the assured, the person to whom tiie policy was made payable sued the company, and at the trial it was proved that the answers given by the applicant as to his health were untrue, the insurer's own medical attendant stating that insured's was a life not insurable. Held, 1st, that the policy was thereby made void, ah initio, and the insurer could invoke such nullity against the person in whose favour the policy was made payable, and was not obliged to return any part of the premium paid. 2nd, that the statements constituting the misrepresentations being referred to in express terms in the body of the policy, the provisions of ss. 27 & 28, R. S. C. c. 124, could not be relied on to validate the policy, assuming such enactments to be intra vires of the Parliament of Canada, which point it was not necessary to decide. 3rd, that the indication by the assured of the person to whom the policy should be paid in case of death, and the consent by the company to pay such person, did not effect novation ; Art. 1174, C. C, and the provisions contained iu Art. 1180, C. C. are not applicable in such a case. 37 fS Insurance, Life—' 'ontinuril. It JH too Into to I'liiae an objection for tlie HrHt time on the iirf^iinieiit before the Huprenie Court that the le^al repreacntativca of the aasiired were not made parties to the cause. Venner v. Sun Life Insurance Co.— xvii. 8U4. 17. Dojiosifc l)y insuninw coinpimy in l».iiik niKlcr pnn'iHiouH of Insurance Act, H. S. C. c. I'H — -Insolvcticy of hunk — C'laim of Crown to j>riority over otlier creditors. Sec CROWN, 21. 18. AcctiJcDf Insurance — Immediate notice of detith — Wnii'er — Exfci'iHil Injur iei^ lu-otfuriiit/ frj/slpeldf^ — Proxlmaff or sole cause of {iiient of the court below^ Fouriiier and Patteraon,, .1.1. , (liscoiitiii^', that tliu C()iu|)niiy hud not received Hiinicioiit notice of the dentil to Htvtisfy tlie reciiiirenicnts of tlie (lolicy, and ihat by declining to pay llie ohiim on otiier ^roundH tliere had l>eeu no waiver of any objection wliiciv they liad a. rii^iit to ur^^u in thiu regard. I'er Stronji, t'ournicr and I'atteiHon, .I.f., tliat tlio external injury was tlie< proximate or Hi>ie cauHe of death witliiii the nieaidnv! of tlie i)oiicy. Accident Insurance Company of North America v. Young — xx. 280. 19. Assessment of Life A.sHuranoe Co. — Stiitntovy form of statemenfc to asHcHHors — Depurturo from hy a<;eut — ."^2 V. c. 27, s. 12.5- (N.B.). sjii. G74.. See ASSESSMENT AND TAXES, 27. Insurance, Marine. — Wurrantu — " Vessel to (jo oiU in toiv" — Construct tun of. Tlie appellants issued a marine policy of insurance at Toronto, dated the 28th November, 1875, insurint; in favour of the respondent ^3^)00 upon acar^^o• of wood Roods laden on board of the barque " Emijjrant," on a voyajie from (Quebec to Greenock. The policy contained the followintj clause: — "J. C, as. Well ill his own name as for and in the name and names of all and every other person and persons to whom the same doth, may or shall appertain, in part or in all, doth make insurance and cause three thousand dollars tobe insured, lost, or not lost, at and from Quebec to Greenock, vessel to go out in tow." The vessel was towed from her loadin^^ berth in the harbour into the middle of' the stream near Indian Cove, which forms part of the harbour of Quebec, anck was abandoned with carj^o by reason of the ice four days after leaving the- harbour and before reaching the Traverse. Held, Fournier and Henry, JJ., dissenting, that the words " from Quebec to Greenock, vessel to go out in tow," meant that she was to go out in tow from the limits of tlie harbour of Quebec on said voyage, and the towing from the loading berth to another part of the harbour was not a compliance with the warranty. Per Ritchie, C.J. — The question in this case was not, if the vessel had gone out in tow, how far she should have been towed in order to comply with the warranty, the determination of this latter question being dependent ow several considerations, such as the lateness of the season, the direction and. force of the wind, and the state of the weather, and possibly the usage and custom of the port of Quebec, if any existed in relation thereto. Per Gwyiine, J. — The evidence established the existence of a usage to tow- down the river as far as might be deemed necessary, having regard to the state of the wind and weather, sometimes beyond the Traverse, but ordinarily at the- date of the departure of the plaintiff's vessel at least as far as the Traverse. The Provincial Ins. Co. of Canada v. Connolly.— v. 258.. 3S0 Insurance, Marine —Cmitiimd. "2. J'')liri/ — Tutiil loss — Sdlf In/ mastrr — Xntlrr of (ihandiniiiKJiif, T., rt'BiioMilont, was the owner of a vussui calluil the " Susuii," insured for tSOO uiuler u valued time policy of marine inauranco, underwritten by O., the apiii'llant and others. Tiie veasiel wan HtraiuU'(l and sold, and T. broujjht an action ii>{ain»t G. to recover hh for a total loss. From the evidetico, it ainjoared that the veasel stranded on the (5th July, 1870, near Port George, in the county of Anti^oiiish, adjoining the county of Guysboro', N. H., wlmro the owner n'HJded. The master etnijloyed surveyors, and on their recommenda- tion, conlirmed by the judgment of the manter, the vessel was advertised for saloon the following day, and sold on the 11th .Tuly for UIO'). The captain did not ^ive any notice of abandonment and did not endeavour to ^et off the vessel. The purchasers immediately not the vessel oflf, etc., had her made ti>;ht, a;.d taken to Pictou and repaired, and they afterwards used her in trading,' and carryinj^ passen^jers. Held, on appeal, that the sale by the master w.as not justifiable, and that the evidence failed t . The policy was signed by Ranney, as the cumpany's agent ; he issued and countersigned it as agent, received the premium and acted throughout as such agent, and was so recognized by the president of tho company. Held, that this was sufficient in the first instance, if uncontradicted, to justify the jury in finding that Ranney was the agent of the company. Robertson v. Provincial Insurance Company, 3 All. N. B. .379 followed. Appeal dismissed with costs._ Providence Washington Insurance Co. v. Chapman.— 12th January, 1885. 12. Policy to he countersigned by agent--Proof of agency. A policy of insurance on the respondent's vessel contained the following reservation : " But this policy shall not be valid unless countersigned by Henry R. Ranney, the said comoany's duly authorized agent, at his office in St. John, N.B." The policy ^. ^s not countersigned by Ranney, and in an 388 Insurance, Marine—' 'ontinwil. action therooa, tlio reHpoiulent na.\e evidence to ahow tliat it was iahuiil Ly Kanney and sent by him, iia directed by the respondent, to a pirson in Nova Scotia. A verdict waa t'ivun for tlie plaiutilf at the trial, and tlie company moved for a non-suit on the fjround, inter uliu, tliat'the policy was iuvaliJ on account of not being bo countersigned. The non-suit was refused. On appeal to the Supreme Court of Canada, Held, Fournier and Heniy, J.I., dissentiiif^, that the appeal must hv allowed and a non-suit entered. The policy, as set cut in Llie plaintiff's declaration, contained a stipulation that the vessel was not to load more than re^jister touna^'e with ttone, orea> Ac. The defendants pleaded to this count that she did load more than her register tons with stone or ores, namely, phosphate rook, contrary to such condition. The plaintiff replied that phosphate rock was not stone or ore within the meaning of such condition ; the defendants demurred to the repli- cation, and, on argument on the demurrer, the replication was held >;ood. li) N. B. Keps. (3 P. A B.) -28. The Delaware Mutual Insurance Co. v. Chapman.— Hith February, 1885. 13. Ayreonient to keep ship insuivil to auKJunt of ailvaiice,s. See AGREEMENT, 10. 14. By ships husband, icho is mortgagee — For the benefit "f "ll concerned — Authority — Ratijication — ConcealmcDt of nuiterial facts. A ship's husband, who held a power of attorney from the owners author- izing him to insure on their behalf, and who was also a mortgagee of the vessel, insured "for the benefit of all concerned," and the insurance was accepted by the owners. When the insurance was effected the vessel was sailing under the Haytien flag, and neither that fact, nor the fact of the insured having a mortgage interest, was communicated to the underwriters. The vessel was lost and the insured realized more than the amount of the ' mortgage from a prior insurance. The defendant, one of the underwriters, resisted payment on the ground of such prior insurance covering all the interest of the insured, and also of concealment of the above facts. Held, affirming the judgment of the court below, that the underwriters were liable, the owners having authorized, or subsequently ratified, the insur- ance effected by the ship's husband, who was under no obligation to disclose his individual interest, in a policy for the benefit of all concerned, nor to disclose the nationality of the vessel, there being no representation or warranty required respecting it by the policy, and no circumstances within his knowledge attaching to the national character of the vessel exposing her to detention and capture. West Y. SeiEiman.— l^h February, 1885. Insurance, Marine — < '<>titiini<''i. 1 '). AiuvikI iiiciil — CdiislfKctirt totiil los.it of .slii^i — Solr of — FiK'ili,- iii's for DiakliHj repairs. In the course of her voyage, on Saturday, the 3rd Au>,'UBt, 18H'2, the "John D. Tapper" went ashore on Phinney's Point, ou the Bay of Fundy shore, in n vitv chuifjerous position and was much injured. An anchor was not out ready for the tide. When the tide came in the pumps were sounded and there were fourteen incites of water. Half an hour after the th'nt Hounding there were three or four feet of water, hut hy the aid of the kudKc anchor anil starboard anchor tiie vessel was hove off and doated and anchored, 'i'lie witness who details this, says : " I piloted her up to Port Williams ; I was at the wheel ; wo made sail and thought she would ttll ; the ininips were \i.o\\\\i, all the time; we did not set the upper sail ; I kept as close to the shore as I could in case she filled and rolled over with her deck-load ; at Fort Williams she ran aground about 100 feet from the breakwater; we could not 8win>; her closer; she was then lyin;^ on the beach of the Bay of Fundy ; some of the deals of the deck-load were thrown over at Phinney's Point." At Port Williams the vessel floated once every day. The master on Monday discharged the cargo deck-load and hauled the vessel into the pier. There were no facilities for repairing vessels of this class at Port Wil- liams, but there were near at hand, viz., at the port of St. John, where she could be, and actually was, repaired, and which place, one of the witnesses says, could be seen on a fine day from Port AVilliams ; but the captain appears to have made no efforts whatever to take the vessel to St. John, or to procure a tug from St. John to aid him in doing so, if such was deemed necessary, or to have made any enquiries in reference thereto, but on the 20th August, notified the shipper that the voyage was at an end. The vessel was sold at auction (a Mr. Troop, one of the mortgagees acting as auctioneer) and trans- ferred by bill of sale dated the 4th September to the purchaser, who thereupon, immediately after the sale, without the slightest apparent difficulty, with her original crew, sailed her to St. John, and there repaired her, and in the course of four or five weeks sent her in a seaworthy condition on a voyage to the West Indies with a cargo of shooks. Held, in view that there never was any pressing necessity for the sale, or any time when the ship was unnavigable without any reasonable hope of repair, that the damage never was so great that the owner could not have put lier in a state of repair necessary for pursuing the voyage at a convenient and suitable place, and at an expense less than the value of the ship, and that the cargo was not in a perishable condition, but in a place of safety, there was no ground for saying there was either a total or a constructive total loss, or that there ought to have been a loss of the voyage; and therefore no question of abandonment arose. Appeal dismissed with costs. Fato-i V. Pitman.— 16th February, 1885. 390 Insurance, MsLrine— Continued. 16. Constructive total Iosk — Sole of vensel — Repairs — Value after. In an notion to rojover inturanco on freight, it appeared that on the voyage, which wan from Boston to Ht. Pierre, the veaacl spruni^ a leak and put into CilaB^jow Imrbour near Cape Canao, where a survey was lield ; some repairs were made, and, in accordance with the recommoiidation of t. e surveyors, she proceeded to Port Hawjiesbury for further repairs. On tlie day slie left Port Hawkesbury alie went ashore, and when the tide ebbed, fell over on her side ; part of the car(>o was damaged and sold, and the rest taken by the Boston underwriters ; the vessel austaiued further damage while lyinf{ on the shore. The captain made no bona jide efforts to t{et her off, and after bein^ several times advertised she was finally sold for JllO : she was ^ot off at a cost of 570, by the purchasers, repaired for considerably less that her value and sailed for two years, when she waa a^ain aold for ?1,800. In the policy she had been valued at 81,500, and two years before had sold for ^2,000. Held, reversing the judgment of the court below, that the vessel was not a> constructive total loss. Providence Washington Inn, Co. v. Corbctt, ',( Can. S. C. R. 'ioO, approved. The Providence WaBhington Ins. Co. v. Almon.— 17th February, 1S85. 17. Warranted no other insurance — Const ruction of. Action upon a policy of insurance in the usual form upon the schooner " Smilinj4 Waters." The application contained the words, written on its face, " no other insurance," and the policy issued on the application so made con- tained the words, " warranted no other insurance." The policy was issued in favour of James Butler & Co., on account of whom it might concern. The declaration waa in the usual form and averred interest in the persons com- posing the firm of James Butler iSr Co., and Henry Walfield, or some or one of them. The defence was rested solely on the warranty, which, the defendants contended, meant that there should be no other insurance on the vessel during the continuance of the risk. It was admitted upon the trial, that after the policy was issued, the Henry Walfield mentioned, being indebted to one Sperry for assistance in building said vessel, instructs. Sperry to effect insurance on the vessel to cover his debt, which Sperry did for S400 with J. E. and others, on behalf of whom it might concern, and both policies were in full force at the time of tha loss. Held, affirming the judgment of the Supreme Court of Nova Scotia, that the words " no other insurance," and " warranted no other insurance," meant that there should be no other insurance on the vessel during the continuance of the risk. Appeal dismissed with costs. Butler V. Merchants' Marine Insurance Co.— 17th February, 1685. 391 Insurance, Marine— ''"'"'»»*/a(fe policy — Sdilivij tliredions — 'fhne of enter iiui Galf of St. Lawrence — Attempt i > enter. In (111 tiction on a voyuf^c policy cuntiiiniii^ tliia clnuue " warrnnted not to enter, or attempt to eiitor, or to use llie Cliilf of Ht. LawreiK'e, prior to the tenth (lay o( May, nor after the thirteenth ihiy of October (a hne drawn from ("apo North to Capo Hay, and acroHH tlie Strait of Cunso, to the northern entrance thereof, shall be coiiHidered the bounds of the Gulf of St. Lawrence seaward)," tho evidence waH as follows: — The captain says: ' The voyajje was from Liverpool to Quebec, and ship sailed on April 'ind. Nothiiiti happened until we met with ice to the southward of Nowfonudland, shortened sail and (loil^ed about for a few days tryinf^ to work our way around it. One niyht ship was hove to under lower main-topsail, and about midnight she drifted into a lar^e tield of ice. There was a heavy sea on at the time, and the ship sustained damage. We were in this ice three or four hours; laid to all the next day; could not yet any further al(m<{ on account of tlie ice. In about twenty-four hours we started to work un towards Quebec." The lot! book showed that the ship j^ot into the ice on the 7th May, and an e.xpert examined at the trial swore that from the entries in the loHf.ediiiiat the vessel was abandoned, the notice of abandonment concluding v, idi the words : " It is hardly necessary for me, after your taking possession of the ve^'sel, to make any further declaration of abandonment, but I now do so in order to put that fact formally on record, and now again give you notice thereof." The vessel was eventually sold by consent of all parties interested for ^150. 302 Insurance, Marine —i'lnuimwil. Ill an action on the policy for a total Io^h, Held, revcriiiiix the juil^iiieiit of the court below, that there wuh not HutVicieiit evideiiuo to enable plaintiffii to recover ax for u total or coiiHtructivu total loss of the veHHul. /Vr Fournier, J.^That the notice of abanilonnienl was not xiven in con- forniity with the Art. 2541 of the Civil Code, and not made within a reason- able time. Art. '2541, C. C. Western Ais. Co. v. Scanlan.— xiii. 2U7. 20. Iwf. on frelijlit — Cov struct ire total Ions — Ahinitlonmcnt — Rr- ■pairs by uvderwrlters. A vessel proceeding; on a voyn^^e from Arecibo to Ac<]uiin and thence to New York, encountered heavy wentlior, was diainasted and was toweil into Guantananio. The uiulorwriters of the freif.'ht went an at,'i'iit to Guaiituiuinio to look after their interoHts, and the master of the ^^'6tel, under advice from the owners, abandoiuled her to such agent, and refused to assist in reimiring the damage, and conn)lcte the voyage. The agent had tiie vessel repaired and brought her to New York, with the cargo. In an action to recover the insurance on the freight. Held, reversing the judgment of the court below, Strong, J., dissenting, that there being a con- structive total loss of the ship the action of the underwriters, in making the repairs and earning the freight, would not prevent the assured from recovering. Troop v. Merchants' Marine Ins. Co.— -xiii. •'>o*i. 21, Description of voyage — Deviation — Quest ton for jury — Misdi- rection — Waiver — Defective case — Airplicatioii for the re-hearing of the judgment under. A marine policy insured a ship for a voyage from Melbourne to Valpar- aiso for orders, thence to a loading port on the western coast of South America, and thence to a port of discharge in the United Kingdom. The ship went from Valparaiso to Lobos, an island from twenty-five to forty miles off the coast of South America and was afterwards lost. In an action on the policy Held, that whether or not Lobos was a loading port on the western coast of South America within the policy was a question for the jury, and it not having been submitted to them a new trial was ordered for misdirection. After judgment application was made to vary or reverse the judgment on affidavits showing that the question was submitted and answered. Held, that the application was too late, as the court had to determine the appeal case transmitted, and the respondent hud allowed the appeal to be argued and judgment rendered without taking any steps to have the case flTiended. Providence Washington Ins. Co. v. Gerow.— xiv. 731. See INSURANCE, MARINE, 29. 3(»3 Insurance, Marine—' 'i>ntinueil. 22, Loss from detention hy ire — Pcriln insturd (tfjiiinut — Ordivary perils of the nenM. A voHHel oil her way to MirKniiclii, N. B., WABchartureJ for a voyage from Norfolk, Vir., to Liverpool witli cotton. Hlio arrived at Mirniniclii on Novem- Iht 'iCMx, anil Haileil for Norfolk on the 'i'.lth. Owiii)^ to the iiitenesH of the Beaion, liowevor, hIio oould not ^et out of the river and she remained frozen in the ife all winter and had to ahandon the cotton freight. Held, roverHiiiK the jmlKinent of the Kuiireme Court of Now Brunswick {'21 N. B. Hep. I'il), Henry, J., disHentiinj, that the loss occasioned by the (li'tention from the ice was not a loss by " perils of the seas " covered by an ordinary marine poliey. The Great Western Ins. Co. v. Jordan.— June 22, 18S0.— xiv. 731. 2'\. I iish I'dhlc intnrsf — Xot iin^donod irltpn policy ifmned — Notice of ohandoiinient — A athority of ogont. The part owner of a vessel may insure the shares of other owners with bis own, without disclosing the interest really insured, under a policy issued to hiniHolf insuring,' the vessel " for whom it may concern." An n^eiit effectint» insurance under authority for that purpose only may, in case of loss, give notice of abandonment to the underwriters without any other or special authority. Merchants' Marine Insurance Co. v. Barss.— xv. 185. '^^. (nitdition of policy — Validity of — CUdin '))ot made within delay stipulated hy the p)olicy — Art. ^JS^, C. C. — Waiver. A condition in a marine policy that all claims under such a policy shall be void unless prosecuted within one year from date of loss, is a valid condi- tion not contrary to Art. '2184, C. C, and all cliiims under such a policy will be barred if not sued on within one year from the date of the loss. The plaintiff cannot rely on apiieal on a waiver of the condition, unless such waiver has been properly pleaded. Per Taschereau, J. — The debtor cannot stipulate, to enlarge the day to pre- scribe, but the creditor may stipulate to shorten that day. Allen V. Merchants' Marine Insurance Co.— xv. 488. 25. Warranty in 2^olicy — Time of sailing — Action on jioUcy — Limitation of time — Defective p>"i'oof — Whether time runs from filing of. • A vessel insured for a voyajje from Charlottetown to St. Johns, Nfld., left the wharf at Charlottetown on December 3. with the bona fide intention of commencing her voyage. After proceeding a short distance, she was obliged by stress of weather to anchor within the limits of the harbour of Charlotte- Insurance, Marine <'<'iitiinin!. town iiiiil ri'iDaiiicii thvru until Ducfinbtr t, wlii'ii ulie inucuvtlud on lir^r voyage. Held, tliiit tliJH waH a comiilianccNvitli tlio warr^inty in tlu> policy of iiiHur- unctt to Muil not later than Deccinlx-r :t, hnt a breach of warranty to mu\ I'linii th:. jiurt iif Cliiirlotli'toifit not later than Docenihcr :J. A clauHo in the marine policy requiri'd action to be broii^^lit on it within tWflve tnoiithrt from the ihite of (lcpoHitini{ claim for Iohh or ilama^^u at tho otVu'c of t!ie aHHiirerH, A proteHt wax depoHitiil accompanied iiy a demand for the inHnrance. The proteat wah defective and 8oine montliH later an amondcd claim waH dopositod. Held, atVirmini; the jud»{mcnt of the court below, that an action betiun more than twelve months after the ori^iiinal, but Icbh than twelve montliH after the amended claim wau depouited, wuh too late. Robertson v. Pugh.— xv. TOii. 20. /"J.i'i't'ittions in policy — Barrdtry — Proximate cauxi' of Iohh — PerilH of the w««. Insurance in a marine policy against loss "by perils of the seas," does not cover a Iobh by barratry. It Ih not necessary tiiat barratry tthouhi be exprenaly excepted in a marine policy to relieve the inHurers from liability for such a loss. Vi'r Htront,', J., disHcntin;^'. — If the proximate caune of the loss in a peril of tho seas covered by the policy the underwriter is liable, though tiie primary cause may have been a barratrous act. O'Connor v. Merchants' Marine Insurance Co.— xvi. 881. 27. Constructive total Io>iitinH,M;uHod dflay, citlu'r in com- mencing or ill completing the voyage, ulttrii tliu risk ami abHolvos the underwriter from liability for nuhBocjuent Iudii. In ciitto of deviation by delay, as in cii«o of departure from tiie usual courHo of nav'ijation, it is not neceaaary to show that the peril has been enhanced in order to avoid the policy. Spinney v. The Ocean Mntual Marine Int. Co — xvit. 3'2tl. 20. Coiinti'Uctii)ii *>J i>'>lirji — Deridfimi — Louili mj jxni oi) n'csf coiiftf of Sonf/i Amcrii'n — Guano Minds — Cinnnicrcial usarje. The voyaj^e specilied iu u mari-ie i>olicy included "a loading port on the western count of South America," and payment of a loss under the jiolicy waa resisted on the ground of ileviation, the vchscI havinj^ loaded iit Ijobos, one of the Guano Ixlandn, from twenty-ttve to forty miles off the coast. On the trial of an action to recover the insurance evidence was >jiven by Hliipowners and mariners to the effect that, according; to commercial nsa^e, the said description in the policy would include the Guano Islands, and there was evidence that when the insurance was effected a reduction of iircmiuni was offered for an undertaking that the vessel would load (liiano. The jury found, on an express direction by the court, that the island where the vessel loaded was on the western coast of South America within tlic mcanini,' of the policy. Held, aftirminj,' the judjjment of the court below, that the wortls in the policy must be taken to have been used in a commercial sense and as under- stoo;l by shippers, shipowners and underwriters ; luid the jury havint; based their verdict on the evidence of what sucli undurstandinj,' would be, and the company bein>{ aware of a Guano freif^ht being contemp'ated, the flndinjj should not be disturbed. The Providence Washington Ins. Co. v. Gerow. — xvii. 387. .SO. Total loss — Evidence — Right to recover for partial loss. A ves'sel insured for a voyai^e from Newfoundland to Cape Breton went ashore on Oct. 30th at a placj where there were no luxbitatioas, and the master had to travel several miles t J communic ite with the owners. On Nov. 2nd a 390 Insurance, Msinnt—Cimtinued. tufi civme to the place where tlie vessel was, but the master of the tug after exaniii]in>{ the situation, refused to try and (,'et her off the rocks. On Nov. Ititii one of the owners and the captarn went to the vessel and caused a survey to be hail and the followin<{ day the vessel was sold for a small amount, tlio purchaser eventually stripping her and takin>{ out the sails and ri^^int^. No notice of abandonment was given to the underwriters and the owners brought an action on the policy claiming a total loss. The only evidence of loss given at the trial was that of the captain who related what the tug had done and swore that, in his opinion, the vessel was too high on the rocks to be got off. Tiie jury found, in answer to (]uostions submitted, that tlie vessel was a total wreck in the position she was in and that a notice of abandonment would not have benefitted the underwriters. On appeal from a judgment refusing to set apido a verdict for the plaintiff and order a nonsuit or new trial. Held, i>er Ritchie, C.J., and Strong, J., that there was evidence to justify the trial judge in leaving to the jury the (juestion whether or not the vessel was a total loss, and the finding of the jury that she was a (otal loss being one which reasonable men might have arrived at it should not be disturbed. Per Taschereau, Gwynne and Patterson, J,J., that the vessel having been stranded only, and there being no satisfactory proof that she could not have been rescued and repaired, the owners could not claim a total loss. Held, (i Wynne, J., dissenting, that there being evidence of some loss under the policy, and the owner being entitled, in his action for a total loss, to recover damages for a partial loss, a non-suit could not be entered, but there should be a new trial unless the parties agreed on a reference to ascertain the amount of such damages. Per Gwynne, J., that the plaintiff could not recover damages for a partial loss of which he offered no evidence at the trial but rested his claim wholly upon a total loss. Phoenix Ins. Co. v. HcGee.— xviii. (il. SI. Application — Promissory representation — "Would tow up and hack." An application for insurance on a vessel in a foreign port, in answer to the questions ; Where is the vessel ? When to sail ? contained the following : Was at '* Buenos Ayres or near port 3rd February bound up river ; would tow up and back." The vessel was damaged in coming down the river not in tow. On the trial of an action on the policy it was admitted that towiug up and down the river was a matter material to the risk. Held, affirming the judgment of the court below, that the words " would tow up and back" in the application did not express a mere expectation or belief on t}\e part of the assured, but amounted to a promissory representation that the vessel would be towed up and down, and this representation not having been carried out the policy was void. Bailey v. The Ocean Mutual Marine Ins. Co.— xix. 153, .'31)7 Insurance, Marine—' 'ontinimL \\2. Siilijccl of ivsiinince — I iisunincn on wlrunceN — Wnrdinrf of j)()l u'lf — IiiKU. nihlc Intei't'sf, A policy of marine insurance provideil that L. ife Co., on account of owners, in case of loss to be paid to L. & Co. do cause to be insured, lost or not lost, the sum of ^"2,000, an mlvnncfn, upon the body, etc., of the "Lizzie Perry." The rest of tlio policy was applicable to insurance on the ship only. L. & Co. were mana^in^ owners who had e.xpended considerable money in repairs on the vessel. In an action on the policy the insurers claimed that the inanranco was on advances by the owners which were not insurable. Held, aflirniint^ the judjjment of the Supreme Court of Nova Scotia, that the instrument must, if possible, be construed as valid and ofTectual and to do so the words " on advances " mi^jht be treated iis surplusage or as merely a reference to the inducement wl^'cli led the owners to insure the ship. The British America Assurance Co. v. Law.— xxi. 325. 33. Contract — Application for Insurance — Aj reemerit to forward — Eui< (e 1 1 c(i — J'Jucroii). B. wishin;^ to insure his vessel the '' C. U. Chandler " went to a firm of insurance brokers, who tilled out an application and sent it by a clerk to K., ajicnt for a foreij^n marine insurance ccfmpany. In the application the vessel was valued at J2,u00 and the rate of premium was fixed at 11 p. c. K. refused to forward the application unless the valuation was raised to $3,000 — or 12 ■ p. c. premium was paid. This win not acceded to by the brokers but K. lilled out an application with the valuation increased and forwarded it to the head office of his company. On the day that it was mailed the vessel was lost and four days after K. received a telef^ram from the attorney of the company at the head office as follows: "'Chandler' having been in trouble we have telegraphed you declinin;^ risk, but had previously mailed policy ; please decline risk anil return policy." The policy was received by K. next day and he returned it at once ; he did not show it to the brokers or to B., nor informed them of its receipt. In an action by B. against K. to recover damages for neglect in not forwarding the application promptly, with a count in trover for conversion of the policy, Held, affirming the judgment of the Supremo Court of New Brunswick, that as K. was never authorivsed nor requested to forward the application which he did forward, namely, that in which the vessel was valued at 83,000, and had refused to forward the only application authorized by the brokers on behalf of B., the latter could maintain no action founded on negligence. Held, further, that the property in the policy prepared at the head office and sent to K. never passed out of the company and was at the moat no more than an egcrow in the hands of K., the agent, and therefore trover would not lie against K. for its conversion. Buck V. Knowlton.— xxi. 371' 308 Insurance, Marine—' '"tithiufii. 34. Marine liifiaraiice — General arc rur/i — Insurance on hull — CW of saving carr/o — Aremrje bond. A vessel loaded with coal stranded and was abandoned. Notice of aban- donment was t^iven to tlie underwriters on the hull. The cari;iven by the defendant to the plaintiff as a collateral ae.nirity for the payment of this note, the defendant covenanted to pay " tlie said sum of !J3,000 on the 11th day of July, 1862, with interest thereon at the rate of twenty-four per cent, per annum until paid." A judgment was recovered upon the note, but not upon the covenant.* The master allowed for interest in respect of this debt six per cent, only from the date of the recovery of the judgment. Held, that the proper construction of the terms of bot'. the note and covenant as to payment of interest was that interest at the rate of twenty- four per cent, should be paid up to the 11th July, 1862, and not that interest should be paid at that rate after such day if the principal should then remain unpaid. St. John v. Rykert.— X. 278. 6. Petition of right — Government contract — Unli'}uidated dam- ages — Interest — Right of contractor to. M. & Co. brought an action by petition of right against the Dominion Government, for damages for an alleged breach of contract whereby the sup- pliants contracted for the Parliamentary and Departmental printing for a certain specified period. The alleged breach consisted in the Government giving a portion of the said printing to other, parties, the suppliants claiming that, by the terms of the contract, they were entitled to the whole of it. The Crown demurred to the petition, and as to the departmental printing, the demurrer was overruled (8 Can. S. C. R. 210). The petition subsequently came on for hearing in the Exchequer Court, and a reference was made to the Registrar and Queen's Printer to ascertain and report as to the profit lost to the suppliants by not being allowed to do the departmental printing. The referees found a certain sum as the profit lost to suppliants, stating in their report, that the suppliants claimed interest on the amount, but that the referees were of opinion they had no power, under the order of reference to consider the question of interest. No exception was taken to the report of the referees, and the sup- pliants moved in the Exchequer Court for judgment for the ivmount found by the referees with interest, as the damages to which they were entitled under their petition of right. Mr, Justice Henry, before whom the motion was made, gave judgment for the amount found by the referees with interest thereon at 6 per cent., such interest to be computed on the aggregate of the the sums which, according to said report, the suppliants up to the 31st day of December, in each year during the currency of the said contract, would have received as profit. On appeal to the Supreme Court of Canada from that part of the judg- ment allowing interest. Held, Henry, J., dissenting, that the suppliants were 400 Interest — ' 'imtinucii. not entitled to interest on tlie iiinount found by tliu referees for loss of profits. Appeal allowed with costs. The Queen v. MacLean et al.— I'ith May, 1885. 7. Mortijd'je — liat'i of interest — Fiird tirne for ptii/iiicnf of jn'iii- cipitl — "Until principal and intered sludl he fidhj piiid. and 8ati! of the Court of Appeal for Ontario, that the mort^aj^e carried interest at the rate of ten per cent, to the time fi.ted for pay- ment of the principal only, and after that date the mortj^agees could recover no more than the statutory rate of six per cent, on the impaid principal. ,S7. John V. Rykcrt, (10 Can. S. C. K '27H), (Sec Interest 5), followed. The People's Loan and Deposit Co. v. Grant. — xviii. 2t)2. 8. Legislative authority over — B. N. A. Act s.s. 91 & 92 — Penalty for non-payment of taxes — Municipal Act 49 V. c. 52, s. G2() (Man.)— 50 V. c. 10 .s. 48 (Man.). See LEGISLATURE, 20. MUNICIPAL CORPORATION, 16. 9. Contract — Final Certiticate of Engineer — Interest to be com- puted from date of. See CONTRACT, .53. 10. On construction of deed of sale. See SALE OF LANDS, 18. Interpleader — V^oluntary payment by purchaser to sheriff of amount of execution against vendor — Proceeds not the sub- ject of interpleader by third party having lien. See SALE OF LANDS, 19. 2. Judgment on interpleader i.ssue under execution on a tinal juilgment not an interlocutory order within s. 5 of the (Ontario Judicature Act, or if interlocutory is such an order as was appealable before that Act, and therefore in any case now appealable to the Court of Appeal. See CORPORATIONS, 30. 401 Interpretation Act— 31 V. c. 1 (D.), uppHcable to P. E. Island. See CANADA TEMPERANCE ACT 1878, 5. Interrogatories -On articulated facts— Evasive answers— C. C. P. Arts. 22M, 229. See CONTRACT, 12, 17. 2. Commission from Swpre/me. Court of X. B.—C. S. c. .37— Directed to two commisaioners — Return mjned by one only — Failure to iulminlster interrogatories. A commission was issued out of the Supreme Court of New Brunswick directed to two commissioners, one named by each of the parties to the suit, —to take evidence at St. Thomas, W. I., with liberty to phiintiff'a commis- sioner to proceed ,'.r parte if tlie other neglected or refused to attend. Both- commissioners attended examination and defendant's nominee cross-examined: the witness, but refused to certify to the return, which was sent back to the court 8i^,'iied by one commissioner only. Some of the interrot,'atorie8 and cross interrogatories were not put to the witnesses by the commissioners. Held, reversing the judgment of the court below, 23 N. B. R. IGO, that the failure to administer the interrogatories ace jrding to the terms of the commis- sion was a substantial objection, and rendered the evidence incapable of being received. Per Ritchie, C. J., and Strong, Fournier and Henry, JJ., that the refusal of one commissioner to sign the return, did not vitiate it. Per Gwynne, J., that the return should have been signed by both commis- sioners, and not having been so signed, was void, and the evidence under it should not have been read. Milvllle Mutual Marine and Fire Ins. Co. y. DriscoU— xi. 183. Intervention— Judgment in favour of the Crown— Escheat— Tierce opposition by possessor of land escheated— Intervention by- purchasers from Crown — Status of parties. See PRACTICE, 14, Intestate Estate. See DISTRIBUTION OF ESTATE, Intimidation. See ELECTION, 22. Inventory— And partition between co-heirs, action to annul. See PARTITION. CAS. DIO. — 26 402 Issue — Any of his body lawfully be^rotten or children of such issue surviving him — Meaning' of. See WILL, 2. Jail. — Establishment if County Courthouse and jail — Rin-ht to remove from shire town — 5th ser. c. 20, s. 1, 49 V. c. 11. (N. S.). See MUNICIPAL CORPORATION, 22. Joint Tenancy. — Construction of will — Evidence to establish — Intention — Severance. See WILL, 20. Judge. — Di.scretion of — Insolvent bank — Appointment of liquida- tor — Right to appoint another bank. See WINDING-UP, 10. 2. Trial by — Findings on mattera of fact — Interference with on appeal. Sec EVIDENCE, 49. Judicial Avowal. — Deed, erroneous statement in — Art. 12.fi3, a a L. a By notarial deed, dated 3rd May, 1875, F. McN. and P. K. purcliaspfl from one F. C. certain printing materials. The agreed price was $5,000, and was paid ; but the deed erroneously stated the price to be ^7, 188, 40, which amount was acknowledged in the deed to have been paid and received. C. remained in possession, and, after being in partnership with M. for several months, failed. On 7th March, 1876, F. McN. and P. K. claimed the plant, and their petition stated the purchase had been made in good faith, and that they had paid the agreed price, but that the deed erroneously stated the price to be $7,188.40. The evidence as to the price agreed upon and paid was that of F. McN., and his statement was confirmed by F. C. The appellant, as assignee to the insolvent estate of F. C. & M., claimed the payment of $2,188,40, being the balance between the consideration price mentioned in the deed and the $5,000 admitted to have been paid. Held, afiSrming the judgment of the court below, that tbe only evidence in Bnpport of appellant's contention being that of F. McN., the respondent, the 403 Judicial Avowal—^ 'ontimwil. apptllnnt, could not divide the respondent's answers {nveu jmliciare) in order to avail himself of what was favourable and reject what was unfavourable. Per Htropf^, J., dissenting;. — Although there is an error, or oven a false statement in a deed, the oltH^^n.ti'jii to puy the consideration proven to be the true and legitimate one remains. Fulton Y. McNamoe.— ii. 470. Judgment. — When appealable, See FINAL JUDGMENT. JURISDICTION. 2. Of continuation. See PETITION OF RIGHT, 3. 3. Against joint nn'st'easons — Effect of. See PETITION OF RIGHT, 15. 4. Re(iuete Civile against— Application to stay entry and execu- tion of. See OPPOSITION. 2. 5. Revocation of — Requete Civile — Opposition. See SHERIFF, 5, 6. Seltiiig ctfiide — Execution — Ass'ujnmient— Executors — Fraud — Estoiqiel — Appeal. The plaintiffs by their agent, Patrick Rooney, in April, 1877, procured a judgment to be signed against Peter Rooney, the defendant, who, for purposes of his own, suffered the judgment to go by default. No execution was ever issued thereon. After the death of P jter, the plaintiffs assigned the judgment to the wife of Patrick, who paid th 2m $50 therefor ; and, on her application, Armour, J., made an order allowing execution to istue against the executors of Peter. The executors then applied to set aside the judgment, as having been fraudulently obtained, and to be allowed to defend the action, or for such other order as should seem just ; and upon such application Wilson, G.J., made an order setting aside the judgment and all proceedings in the action, and directing the plaintiffs to repay the $50. This order was affirmed on appeal by the Common Pleas Division. The case was appealed to the Court of Appeal for Ontario. The facta will be found more fully set out in the report of the judgments of that court, 11 Ont. App. R. 673. As appears from that report, the Court of Appeal, Held, that an appeal lay from the order of the Common Fleas Division to the Court of Appeal, as 404 Judgment— Cdutinuid. it wuH ill fact a final disposition of the whole matter and a "bar to the plain- tiff 'a furtlier proceeding;, but althoii^'h tlio membera of the court were al! of opinion for different reasons, that the order below was wront;, tliey did not a^ree as to the extetit to which it sliould be modified or reversed, and there- fore the appeal was dismissed without coats. Pi'r Hagarty, C.J.O., and Osier, J. A, — The judf?ment should merely be Bet aside and the executors allowed in to defend. * Pit Burton, J. A. — The executors cannot be heard to allege their testator's fraudulent purpose; they are estopped from confiniiif^ tlie operations of tiio judgment within the limit of his intended fraud ; and tlie judj^ment should be allowed to stand. Per Patterson, J. A. — The judgment should not bo sot aside, but the order of Armour, J., should be rescinded, and it slionld be declared that Patrick's wife, as assif^nee of the judgment, was not entitled to issue execution, because the judgment was procured by Patrick, her husband, and suffered by Peter, for a fraudulent purpose, of which she hud notice when she took the assign- ment. On appeal to the Supreme Court of Canada, Held, that it was doubtful if an appeal would lie to the Supreme Court of Canada in sucli a case, but if it would, the order of Wilson, C.J., affirmed by the judgment of the Divisional Court, should not be interfered with. Per Gwynne, J., (delivering the judgment of the court) : I entertain great doubt that an appeal lies to this court from the judg- ment of the Common Pleas Divisional Court of the High Court of Justice for Ontario, in a case like the present, which originates in the decision of a judge in chambers from whose judgment an appeal lay to tho Divisional Court. In granting the rule against which this appeal is taken, that court exer- cised a jurisdiction inherent in it, and resting wholly, as it appears to me, on its discretion, to remove from the records of the court a judgment the enforc- ing which in the interest of the person having an assignment of it, against the estate of the deceased defendant, would, in the opinion of the court, under the circumstances appearing in the case, work a very great wrong to that estate, and so, to prevent the abuse of the process of the court for the perpetration of what appeared to the court to be a great fraud, it ordered, the judgment and subsequent proceedings thereon to be set aside, as the only effective mode of affording protection to the estate of the deceased defendant from a protracted and expensive litigation upon proceedings which might be taken to enforce the judgment by writ of revivor, or by action upon it to be carried on in the name of the judgment plaintiffs, but in the interest of the fraudulent assignee, who pro- cured the judgment to be entered without the knowledge of the nominal plain- tiffs, as is sworn by Carl Schrceder, and admitted by Patrick Eooney, who procured the judgment, and who admits that the nominal plaintiff did not know of the judgment previous to December, 1882, when upon his procurement it was assigned to his wife. But if it be appealable, we should not interfere with the finding of the learned Chief Justice Wilson sitting in ohambers, 405 Judgment — (.'ontimud. Kl'tiriued by tlio jiul^inent of the Divisional Court tliereon. The case is ao pre^'iiant with fruiul on the part of Patrick Rooiioy, the ouhHtantial aHHi^nce of the jii(l({ineiit an to raise doiibtH in my inimi, whether his brotlier Peter was not rathor his dupe uudor cirounistances which by reason of the di'Otii of Peter cannot now be disclosed, than a party to the contrivance of any fraud against Dolaii, to perpetrate which is now sujjj^ested as having been Patrick's sole motive in cauHinf^ the action to be l)rounlit in the name of Hchni-der and Company, and the Kufforiiif^ judi^inent therein by default by Peter, for it appears tliat I'uter left this (Country for Ireland a few days after the service of the writ upon him, and it is not improbable that he left his interests in the defence of this suit, as he did in his defence to the suit brought in Montreal by Dolan against him and Francis Kooney, to the care of Patrick, who appears to have represented both Peter and Francis in that suit, and to have done wluitever was dune in it in their names, and to have effected the final settle- men tliereof, which is signed by him as their attorney. By whomsoever the ^^oods in question were ordered, a point which is not made quite clear, and whatever Mr. Carl Kclirceder, the af^ent of the nominal plaintiffs at New York, may have tliou>^lit as to the liability of Peter to the (irm of Hchrceder & Co. originally for those goods in virtue of the order given for them, it appears very clear that Patrick Kooney, who was the agent at Montreal of Schrteder it Co., well know that in truth and in fact Peter never WHS liable therefor, for before the goods were sent out to this country he had left the firm, and the goods arrived at Montreal subject to control of Patrick as agent of Schrcoder it Co , and with his assent only they could have been and were delivered to Hooney A; Dolan, and, on the failure of that firm, Patrick, as agent for SohrcBder & Co., proved for the whole claim against the estate of Itjjuey A Dol:in, in pursuance aui by reason of which proof Carl Schrcoder, the agent at New York, received dividends from that estate upon the whole amount, and, as is sworn by Roughan, the firm accepted Rooney and Dolan as their debtors and never looked to Peter Rooney for the amount. Carl Schrcoder now swears, and in this he is confirmed by Patrick Rooney, that Schroeder & Co. never knew of the recovery in their name of any judgment against Peter Rooney until December, 1882, when Patrick applied to Carl for an assignment of it, and it was immediately upon his request assigned to his wife without any consideration paid therefor. Tlio fifty dollars after- wards paid to Carl Schroeder by Patrick was paid quite voluntarily and evi- dently for the purpose of endeavouring to give a semblance of bona fidi'n to the transaction and of assisting Patrick in setting up the claim to the judg- ment now made by him on behalf of his wife as if purchased hona fide for value. The only objection which can, I think, be taken to C. J. Wilson's order is that he has ordered this sum of fifty dollars to be paid to Patrick by Peter's executors. By this time Schroeder iS: Co. were doubtless well aware that they never had any claim against Peter for the amount or any part of the amount mentioned in the judgment procured to be entered in their name as plaintiffs against Peter, and that they set no value upon that judgment appears from their having assigned it, fvt Patrick's request, to his wife, the moment they heard of its existence, aud for no consideration whatever paid at the time, or bargained for being paid in future. 400 Judgment — ^ 'onthmil. Ah to tlio objootioii that it wax not cotnpetunt for Chief JitHtioo WiUon to entertain a motion wliich, if HiiccuHitful, wouiii havo thtt ffft^ct of anniillin({ Mr. .lutttico Armour'H or(l«(r to let exuoution iHHiio on tiiu jud^nutnt, oven tlion^h lie did 80 after conference with Mr. Jugtice Armour, and with liit UHtient, it iH Huflicient to Hay that a ipiuHtion an to the propriety of HiKth matter of judicial eti<|n(>tto, in not a matter which \-\ appoahibiu, and the ittatoment in Chief JuHtice WilHon'H order as to what took (ilace befoie him, and aa to the matter whicli was submitted to and argued before him muit betaken to be coucluuive. It is agreed by all iliat execution should not under the circumntanceg a|)pe'iirint{in the cane bo allowed to iHHue in favour of the aHHi^neo of thin jud>{- meat. What ohji-ction then can niiero bo to Hutting it anide alto>>ether, the court being natiHtied that to enforce it in favour of Patrick and bin wife would operate as a fraud on Peter's estate? If tlu' ludnniu'iit be not set aside, it will bo competent for Patrick on behalf of his w.fp and himself to use the names of Schnjoder & Co., as pbiintiffs, to sue upon the jnd;;inont, or to brins^ a writ of revivor of it, and to neitiier of such procuedin^js could the matters which have been the subject of invustit;ation on tlui motion before Chief Justice Wilson be pleaded aa a defence, and so, although the court is of opinion that Patrick and his wife should derive no benefit from the nssigninent they will be able to recover the whole amount of the judgment, unless it be absolutely set aside. ]iut it is said that the judgment ought not to havo been set aside except uiKin terms of allowinu the action to go asjainst Petur's exocntora. ]}ut for what purpose should this have been directed when it appears that the nominal plaintiffs do not claim to havo had any cause of action against Peter, and tiiat they were not aware of an action having been brought against him in their name as plaintiffs, and that if they ever had any cause of action against Peter, they have assigned it without consideration, to Patrick's wife, at the request of Patrick, who, however, well knew that in truth no such cause of action ever did exist ? The setting aside the judgment and all proceedings thereon, is, in fact, the only mode of giving to Peter's executors effectual relief against what I t'.dnk very clearly appears to bo a fraud upon Peter's estate, attempted to be perpetrated by Patrick Rooney. Appeal dismissed with costs. Schroeder, et al. y. Rooney. — 9th April, 188C. 7. Contempt of court — Practice — Judgment not final — No appeal — R. S. C. c. 135, s. 24 (a). See .lUEISDICTION, 58. 8. In case from Quebec — Appeal from — Future rights — R. S. C. c. 135, 8. 29 (6). See JURISDICTION, 54. 407 Judgment — Continwil. imenfc settiiifj aside nn intervention to a seizure of the divi- dendtt of bank Hliares founded upon an allocution that such dividends formed part of a substitution ia not re* jiidiaita as to the corpus of said shares nor us to the dividends of other shares claimed under a difforent title. Muir Y. Carter, ) _ . .-„ Holmes V. Carter, j ^^^- *'"' And see TRUSTS AND TRUSTEES, 11. 12. A judgment allowing demurrer to plaintiff's replication to one of several pleas, which does not operate to put an end to the whole or any part of the action or defence is not a final judgment from which an appeal will lie. Shaw Y. The Canadian Paoiflo Ry. Co.— xvi. 703. 13. Counter actions for breaches of agreement — Right to set off judgment — Equitable assignment. See SET OFF, 3. 14. Of Supreme Court of X. W. T. in a matter not arising in a Superior Court— Appeal from — 51 V. c. 37, s. 3 (D.). See JURISDICTION, 68. 15. Action to act aside — Collusion. &., a judgment creditor of J. N., sr., applied to the Supreme Court of New Brunswick on affidavits, to have a judgment of J. N., jr., against said J. N., sr., his father, set aside aa being obtained by collusion and fraud, and in order to 408 Judgment— ''"«//« «/•(/. oovur upaHHvtHof tlieaiiiil J. N., Mr. Tlie facta allc^^ud in tlionn\ili\vitH8ii|)i)ort- iuft tlu> niipliciition wuro : that a ci)t{novit whh ^ivcii and hhIiI jiiil^nicnt of J, N., Hr , WHH Mit^nud on tliu Haniu day ; tliat no account waH kvit rMndur<>d of the dubt ; tliat no ontrioM were ovor fnado by naid J. N., jr. at«/«■«!«■(/. G. Ai^])e(d from {P.Q.) — Amoanf claimed. Held, that altlion^li tlie amount claimed by the declaration was made to t.vceed f2,0()() by inchidiiit^ interuHt whicli had been barred by prescription the appeal wouM lie. {See Sitccennion.) Ayotte Y. Boucher.— ix. 4G0. 7. Appeal — Election petition — Preliminary objections, judgment on, not appealable — H. JfS, c. 11, ,1S V. On the 2l8t April, 1877, an election petition was liled in the Prothono- tary's oftice at Murray liay, district of Hai^uenay, afjainst tliu respondent. The latter pleaded by jjreliniinary objections that this election petition, notice of its presentation and copy of the receipt of the deposit had never been served upon him. Judfinient was t^iven maintaininj^ the preliminary objections and dismissing the petition with costs. The petitioners, thereupon, appealed to the Supreme Court under 38 V. c. 1; 48. Held, tliat the said judgment was not appealable, and that under that sec- tion an appeal will lie only from the decision of a judge who lias tried the merits of an election petition. (Taaoliereau and Fournier, JJ. , dissenting.) [But see now R. S. C. c. 9. s. 50.] Per Strong, J., (Richards, C. J., concurring,) that the hearing of the prelim- inary objections and the trial of the merits of the election petition are distinct acts of procedure. Brassard v. Langevin.— ii. 319. 8. Appeid — Rigid to, in Criminal matters — 38 V. c. 11, s. 4.9 — Conviction when unanimous. In Michaelmas term, 1877, certain questions of law reserved, which arose on the trial of the appellants, were argued before the Court of Queen's Bench for Ontario, composed of Harrison, C.J. and Wilson, J., the third judge of said court being absent; and on the Ith February, 1878, the said court, composed of the same judges, delivered judgment affirming the conviction of the appellants for manslaughter. Held, that the conviction of the Court of Queen's Bench, although affirmed but by two judges was unanimous, and therefore not appealable. Amer y. The Queen. — ii. 592. 9. Appeal — Final judgment — Demurrer — Supreme and Exche- quer Court Act. Held, an order setting aside a demurrer as frivolous and irregular under tlie Nova Scotia Practice Act is an order on a matter of practice and not a final judgment appealable under the 11th section of the Supreme and Exchequer Court Act. Kandick v. Morrison.— ii. 12. 414 Jurisdiction — Continiwi}. 10. Rale or order setting aside jiuhjment and execution — Appeal- able. T. J. W. sued F. B., and on the 9th .Tune, 1873, F. B. aspi^-ncd his property under tho Insolvent Act of ISfiK. On Gth Au;^u8t F. B. beciinio party to a deed lA composition. On the 17th October F. B. pleaded piiU d'arrein coiitiiiuance, that since action conimoncod ho duly usaif^ned under the Act, and that by deed of composition and di9charj,'e executed by his creditors he was discharf^ed of all liability. On the 18th November, 1873, the Insolvent Court confirmed the deed of composition and F. B.'s dischar^'e, but F. 15. ne},'lecte(^ to plead this confirmation. Jud>^ment was fjiven in favour of T. J. W. on the 30th January, 1874. On 30th May, 1870, an execution under tlie judgment was issued, and on the '2Hlh June, 1870, a rule iiisi to set aside proceedinj^s was obtained and made absolute. Held, Strong, J., dissenting, that the rule or order of the court below was one from which an appeal would lie. 2. Reversing the judgment of the Supreme Court of Nova Scotia, that F. B., having neglected to plead his discharge before judgment, as he might have done, was estopped from setting it up afterwards to defeat the execution. Wallace v. Bossom.— ii, 488. 11. Appeid — Mandamus — Stipreme and Exchequer Court Act, ss. 11, 17 and 33. Held, that tho appeal in cases of mandamus, under s. 23 of the Supreme and Exchequer Court Act, is restricted by the application of s. 11, to decisions of the " higliest court of final resort" in the I'rovince; and that an appeal will not lie from any court in the Province of Quebec but the Court of Queen's Bench. (Fournier and Ilotiry, JJ., dissenting.) Query: Can the Dominion Parliament j;ive un appeal in a case in which the legislature of a province has expressly doiied it ? The appeal was quashed with costs, which included general costs of the appeal up to hearing of motion to quash. The registrar taxed the full fee of $25 on argument of motion. This was increased to S>75 by Henry, J. The objection to tho jurisdiction was taken by motion, and also in respondent's factum. Danjou v. Marquis. — iii. 251. 12. Court of Review (P.Q.) — Appeal direct from — Security for costs of appeal — Supreme and Excheguer Court Act, s. 31 — Supreme Court Rule 6. The follov.-ing certifica.;e was filed with the printed case, as complying "svith Rule of the Supreme Court Rules : " We, the undersigned, joint pro- thonotary, for the Superior Court of Lower Canada, now the Province of Quebec, do hereby certify that the said defendant has deposited in our office, ou tlie twentieth day of November last, the sum of five hundred dollars, as 415 Jurisdiction— (^»M «<»«<'/. security in appeal in this case, before the Supremo Court, according to aec- tion (31) thirty-first of the Suprome Court Act, passed in tl»e thirty-eij^htli year of Her Majesty, chapter second. Montreal, 17th January, 1878. Signed, Hubert, Honey & Gendron, P.S.C." On motion to (}uash appeal, Held, per Ritchie, C.J., and Strong, Fonrnior and Henry, JJ. — The deposit of the sum of Ifi^'lO, in tho li-inds of tlie prothono- tary of the court below, made by the appellant, without a certificate that it was made to the satisfaction of the court appealed from, or any of its jud^jes, was nuf^atory und ineffectual as security for the costs of the appeal. Per Henry, J. — Althou<4h not within the functions of the Supreme Court to decide npon the sufliciency of the security, the court mijiht have allowed ajjpellant reasonable time to obtain the necessary certificate, had it been aslf^d to do so within a reasonable time after the appeal was first inscribed, but no such request havinjj been made and so long a tima having elapsed, the court should not now permit such a course to be taken. Per Tascliereau, J. — The case should be sent back to the court below in order that a proper certificate mi^ht be obtained. Per Strong and Tascliereau, J.T. — An appeal does not lie from the Court of Review (P.Q.) to the Supreme Court of Canada. (Henry, J., contra). Macdonald v. Abbott.— iii. 278. [See now with respect to appeals from the Court of Review, 54 & 55 V. c. 25, 8. 3, s-8. 3. J ' 13. Appeal — Order of court upon its own officer, when ohtnined by a third j)arty, is a final order appealable under s. 11 of 38 V. c. 11 — Interest on deposit in court under 31 V. c. 12 and 37 V. c. 13 — Officer of court not entitled to interest, if received by him— Summary jurisdiction of court over its officers. Under 31 V. c. 12, and 37 V. c. 13, the Minister of Public Works of the Dominion of Canada appropriated to the use of the Dominion certain lands in Yarmouth county, known as " Bunker's Island." In accordance with said Acts, on the 2nd April, A. D. 1875, he paid into the hands of W., prothonotary at Halifax, the sum of SO, 180 as compensation and interest, as provided by those Acts to be thereafter appropriated among the owners of said island. This sum was paid at several times, by order of the Supreme Court of Nova Scotia, to one A., as owner, to one G., as mortgagee, and to others entitled, less ten dollars. As the money had remained in tlie hands of W., the protho- notary of the court, for some time, H., attorney for G.. applied to the Supreme Court for an order of the court calling upon W., the prothonotary, to pay over the interest upon G.'s proportion of the moneys, which interest (H. was informed) had been received by the prothonotary from the bank vsfhere he had placed the amount on deposit. W. resisted the application on the ground that he was not answerable to the proprietor of the principal, or to the court, for interest, but did not deny that interest had been received by him. A rule niii 416 Jurisdiction— f 'outiuinil. waH urimtoil by tlio court and made absolute, orderiug the prothonotary to pay whatever rate of interest he received on the amount. Held, 1- That the prothonotiiry was not entitled to any interoHt which the amount depoHited eiirned while under the control of the court 'i hat, in order- ing the prothonotary to pay over the interest received by him, the court was simply exercisinf,' th^ themselves to be unable to meet their engagements and concealed the fact from P. et til., thereby beconiinn their creditors with intent to defraud P. et al. J. S. (appellant), amont^st otlier pleas, pleaded that the contract out of which the alleged cause of action arose, was made in En){land and not in Canada. To this plea, P. et al. demurred. It was agreed that the pleadinj^s were to be treated as amended by alk'<,'int,' that the defend- ants were traders and British subjects, resident and domiciled in (-anada at the time of the purchase of the ^oods in question and Inid subseipiently become insolvents under the Insolvent Act of iHTij, and amendments thereto. Held, Taschereau and Gwynne, JJ., dissentinj,', that althou^ih the jnd>,'- ment appealed from was a decision on a demurrer to part of the action only, it was a linal jud;^ment in a jutlicial proceedinj; within the meaning of the 3rd 8. of the Supreme Court Amendment Act of 1879. Shields Y. Peak.— viii. 57!>. 19. Aiypeal — Judgment by Court of Appe((l, 2'>urfly final, j^n'^tly interlocutory — Effect of — Experts, references to. St. L. claimed of S. f 2, 125. 75, balance due on a building contract. S. denied the claim, and, by incidental demand, claimed J(),3(i.S for damages resulting from defective work. The Superior Court, on 27th March, 1877, gave judgment in favour of St. L. for the whole amount of his claim, dismissing S's. incidental demand. This judgment was reversed by the Court of Kevigwi on the 29th December, 1877. St. L. appealed to the Court of Queen's Bencli, and on the 21th November, 1880, that court held that St. L. was entitled to the balance claimed by him, from which should be deducted the cost of rebuilding the defectively constructed work, and in order to ascertain such cost, the case was remitted to the Superior Court, by whom experts were appointed to ascertain the damage, and, on their report, the Superior Court, on the 18th June, 1881, held that it was bound by the judgment of the Court of Queen's Bench, and, deducting the amount awarded by the experts from the balance claimed by St. L., gave judgment for the difference. This judgment was affirmed by the Court of Queen's Bench, on the 19th January, 1882. Held, on appeal, that the judgment of the Court of Queen's Bench of the 24th November, 1880, was a final judgment on the merits, and that the Supe- rior Court, when the case was remitted to it, rightly held that it was bound by that judgment, and that St. L. was entitled to the balance thereby found due to him . rer Fournier, J.— 1. That the judgment of the 24th November, 1880, though interlocutory in that part of it which directed the reference to experts, was final on the other points in litigation, and could therefore have properly been appealed from as a final judgment. 410 Jurisdiction— C"^)^///»'''/. 2. Tlmt altlion^li on uii ivijpeal from a lliiivl jiul<{inuiit an iippoUaiit may liavo tlio rijjlit to inii)ii;{n an iiiturlocutory jud^jtiieiit remlerud in tlio causo, yet liu lutiUH tliiH I'i^lit il he voluntarily and without reHcrve acta upon hucIi interlo- cutory ju(lf>mont. Shaw V. St. LouIb.— viii. 885. 20. New trial — Life innuvdnce — Power of court to set oside verdict and enter another — o7 V. c. 7, ss. 32 & ,U, (0.) — Ss. 26^, 283, c. 60 Rev. Stats. {0.)—.}8 V. c. 11, ss. 20, 22. In an action on a life policy tried before a judge and a jury, in accordance with the provisions of 37 V. c. 7, s. 32, (O.), the learned judge, in place of re- (piirin),' tlio jury to rciulcr a ^ji-noral verdict, directed them to answer certain (jUL'stionH, and the jury having; answered all IbecjuestioiiH in favour of the plain- till', the judge entered a verdict for the plaintiff. Upon a rule ni»i to show cause why this verdict should not bo set aside and a non-suit or a verdict en- tered for deffiulaiits pursuant to the " Law lieforni Act," or a new trial had between the parties, said verdict being contrary to law and evidence, and the thuling virtually for the defendants, the Court of Queen's IJench made the rule aljsolute to enter a verdict for the defendants. The appellant then ap- pealed to the Court of Appeal for Ontario, and the court being equally divided, the a[)peal was disniissed. Held, Taschereau, J., dissenting, that the Court of Queen's Bench had no power to set aside the verdict for the plaintiff and direct a verdict to be entered for the defendants in direct opposition to the finding of the jury on a material issue. That the court below might have ordered a new trial upon the ground that the finding of the jury upon the questions submitted to them was against the weight of evidence, but they exercised th'^i;- -li.scretion in declining to act, or in not acting, on this ground ; and therefore no i. ppeal to the Supreme Court of Canada would lie on such ground, under s. 22, 38 V. c. 11. That if an amondmont to a plea was authorized by the court below, but such amendment was never actually made, the Supreme Court has no power to consider the case as if the amendment had in effect been made. [But see Supreme and Exchequer Courts Amendment Act, 1880.] iVrGwynne, J. — That the plaintiff never could have been non-suited in virtue of 37 V. c. 7, s. 33 (O.), as it is only where it can be said that there is not any evidence in support of the plaintiff's ease, that a non-suit can be entered ; and that in this case, the proper verdict which the law required to be entered upon the answers of the jury was one in favour of the plaintiff. [This case was appealed, and the Lords of the Judicial Committee of the Privy Council affirmed the first holding of the Supreme Court. As to the second holding, it was held that the Supreme and Exchequer Court Act, s. 38, gives the Supreme Court power to give any judgment which the court below might or ought to have given, and amongst other things to order a new trial on the ground either of misdirection or the verdict being against the weight of evidence ; and that power was not taken away by s. 22 in this case in which the court below did not exercise any discretion as to the question of a 420 Jurisdiction— ('"/i«tj«»»'r/. 22. iV''iu trial — Diumujea, t'.iresaive — Dl»cretu>n — S, li S. C, Act, mo^S. 4, S. and Ex. C. Am. Act, 1880—Co«ta. Tlio i)livintitT doclarcd on a Hpecial contract fur tho sale of a vongol by the pliiiiitiff to tlio (Infuiidant, averriiif! tlie imrfonnanco by tlio appellant of all conditioMH j)rcco(k'iit neci'HHary to entitle tlio plaintiff to tlu> payment by tlio respondent of the ai>reed price of the Haid vcnnel, and aB^ii^nin^ au a breach the noii-payiiient of the Haid price by defendant. The plaintiff further declared on the coninion counts. The defendant pleaded non-asaunipsit, non-delivery of the vessel, payment and Het-off. The caUHu waw tried before the ciiief justice of Nova Scotia and a jury at Amherst, in Juno, 1878. The jury found a verdict for plaintiff for ?:',,0()n. A rule nixi was tlioreuiion taken out to Hot aside this verdict, and this rule the court below made absolute on the yrouiid that the damafjos were excessivei observing that it was nnnecesBary to decide whether the verdict was objoctioii- able on other grounds. On appeal to the Supreme Court of Canada, Held, on motion to quash, Henry, J., duhitante, that tho jud^jmeiit of the court ordering; a now trii'.l on the >{round of excessive damat^es, proceeded upon matter of discretion only, and that such judj^ment was not appealable. [But seo now U. S. C. c. Vio, H. 24 ((/) as amended by 54 & 55 V. c. 25.] Appeal quashed with tho general costs of appeal to hearin<{. By flat of Taschereau, J., a counsel fee of ?50 on motion was taxed. McOowan v. Mockler.— 13 October, 1879. 23. Appeal quashed for want of jwrmlictioii — Verdict against U'eiyht of evidence — *S'. ';20 d'* 2^i Hupi. C. Act — Costs. A])peal from a judgment of the Supreme Court of New Brunswick, making absolute a rule to set aside a verdict for the defendants, and for a new trial, on the several grounds of improper reception of evidence, misdirection, and be- cause the verdict was against tho weight of evidence. Held, that the court below having proceeded as well on the ground that the verdict was against the preponderance of the evidence, as on tlie law, the appeal came within s. 22 of the Supreme Court Act, and would not lie. [But see now B. S. C. 0. 135, s. 24 (d) as amended by 54 & 55 V. c. 25.] Appeal quashed for want of jurisdiction, but without costs, the appeal having been heard e.rpdrte, the respondent not appearing. Domville v. Cameron.— 9th February, 1830. 24. Conviction for violation of license knvs — Habeas corp)us^ motion for — Judgment diMmi8.nng not ((pj^ealable wlien jyrisoner is discharged before appecd — Jurisdiction — R. S. iV. S. c. 75— R. S. N. S. c. ^99— Appeal— Costs. The prisoner, Simon Fraaer, had been convicted before F. A. Laurence, stipendiary magistrate for the Town of Truro, of violating the license laws in 422 Jurisdiction—' 'oiitiiiunl. force ill tlio town, and wa8 flncd 940 and coatu an for u tliir.l nfTunco. Kxecu- tion waa initied in the furm K>vvn in tlie Itov. HtatH. c. 7A, under whi^h FraRer wan cominitti-d to jail. Wliilc there lie wan convicted of ii fourth offonco mid lined 9H() and coHtw, and waH detaineil under an execution in tiiu Hanie furm. The mutter came Inifore th. Bupreme Court of Nova Hcotia on a motion to make ubitolute a rule iiiii granted by Weathurhe, J., under c, {){) of the Rev, Btnt*. of (N. B.), of " Becuring the Liberty of the Huliject." Tiiu rule was dii- chur>(ed. It appeared tliat before the inHtittition of the appeal to the Hiipremo Court of Canaila, the time for which the appellant hud been iinpriHoned hud expired and he wuh at lur({e. Un motion to dininlHu the appeal for want of jurisdiction, Held, that an appeal ."'11 not lie in any ciine of procoediiijjH for or upon a writ of iKiheim corpui when at the iiino of brin^inu the appeal the appellunt ih at lur>{e. Api)eal diBmiased. The question of coHtH wan renerved and subHequently the court ordered that the reapondent should be allowed his ({eneral costs of the appeal. Fraser v. Tupper. -21st ,Iuno, 1880, 25. Appcdl — Allowance of — Security — Out. Jud. Act, 1S81, h. 4'^. Where the Court of Appeal for Ontario, under h. 4U Ont. Jud. Act, 1881, refused leave to appeal to the Supreme Court of Canada, the matter in con- troversy bein^! under SI, 000. Held, that the appellant should be permitted to pay 9500 into the Supreme Court as security for the costs of the uppciil. The court expressed great doubts us to the constitutionality of the section inentiDiiud. Forristal v. McDonald. 7th Nov. 1882. See JURISDICTION, 72. 2G. No (ippetd from Court of Qiveen's Bench (P.Q.) when cane has origimded in the Gircait Court (P.Q.) — Xo co.^ta of appeal when objection to jurisdiction tahen by the court. This was an appeal from a judgment of the Court of Queen's Bench (P.Q.) reversin^i; the jud^^inont of the Circuit Court at Three Rivers, setting aside a seizure for a tax of ftlO imposed by by-law of the city of Three Rivers on strangers and non-rosidents selling goods by samples. The case was settled and agreed to by both parties, who took no objection to the jurisdiction. Held, that an appeal will not lie to the Supreme Court of Canada from a final judgment of the Court of Queen's Bench (P. Q.) in cases in which the court of original jurisdictioi. is the Circuit Court for the Province of Quebec. Appeal quashed for want of jurisdiction, but without costs, the objection having been taken by the court. [This precedent was followed in the case of The Mayor, ifv., of Terrebonne, v. The Sisters of the Frov'deiice Asylum,] (See Jurisdiction, 42.) Hajop y. Corporation of the City of Three Rivers.— 18 C. L. J. 122. — 17th Nov. 1882. 423 Jurisdiction - ' nutinufil. 27. Motion to I'i'si'i nre Hoi^ed. To thia Hci/uru tl)e defenclantH (lied an oppoHition on tiie ground tliat their late fathur'n will, nnd(*r wbi(;h they held thiH property, contained a clauuu i)rohibitin^ them to alienate it. To this oppoHition liour^et flled a contestation, but tiie Superior Court diHininaed this conteHtation. and maintained the defendantn' oppoHition, holding thn prohibi- tion to alienate in the Haid will lo^al and valiil, and quaHhin^' the plaiutifT's Hei/.ure of the property. Tho plaintiff, J5ourt;et, apiiualed from tlnit jud){ment to the Court of Queen'a Bench, but wau ajijain unnucceuHful and hiH appeal was dianuHHed. He then applied to Mr. .Justice Tcssier, of tho Q. It., in Chambera, for leave to appeal to tho Supreniu Court of Canada, but was refused, ou the ground that an appeal would nut lie in such a caHu, under s. 8 of the S. C. Am. A. Act, 1M7!». (.Siv U g. L. H. 2(12). The plaintiff then made a motion in the Supremo Court of Canada, asking leave to appeal from the judijment of the Court of Queen's Bench (appeal side), and prayin>{ that tho order of Mr. Justice Tessier bo rescinded, and that the said jud^;e, or any other jud^jo of the said Court of Queen's Bench, bo ordered to receive security. Held, tliat tho Supreme Court had no jurisdiction to ^rant tho conclu- sions of tlic motion, even if the appellant had a right to appeal in such a case, (See Jurisdiction, 31), Motion refused with costs fixed at 5'2i'). Bourget v. Blanchard.— '29th November, 1882. .'Followed by Tessier, J., in Mnrtiii v, Milli, 12 Q. L. K. (IH.— "Jug6: Que lo'rsque la question d6aidee par laCour du B. do la It. est la priority d'uno creance hypothecaire au montant de ?oOO seulement, 11 n'y a pas droit d'appel i la Cour Supr6me."j 28. Railway acts of JSova Scotia — Railway, <(ppraisement of lands for — Order to set aside proceedings — Estoppel — Judijvient not appealable. This was an application to the Supreme Court of Nova Scotia asking it to set aside, in a summary manner, the whole appraisement of land damages awarded to be paid by the county to the several proprietors of lands in 424 Jurisdiction— Contimicil. Pictou county, whose lands had been expropriated for the line of railway extending from New Glasgow, in Pictou county, to the strait of Canso, and known as the Eastern Extension. This appraisement was made on the assumption that under the contract with the Nova Scotia Government for the construction of this line of railway and the statutes relating thereto, and pro- viding for the expropriation of lands for right of way, etc., appraisement of damages or compensation to the proprietors and payment thereof, the right of way was furnished to the company free, and the compensation for land dam- ages was to be paid after appraisement in the manner prescribed, by the Gustos pf the various counties through which the line ran issuing debentures for the amounts due to the proprietors, which debentures were to be redeeiped by means of local taxation. Before the Provincial Government of Nova Scotia had entered into the contract for the construction of the Eastern Extension Line, and wliile they were negotiating therefor, the Nova Scotia legislature, on the 4th April, 1870, passed c. 3 of the Acts of 1870, to enable the government to enter into a con- tract for the construction of this line of railway, and made provision thereby for the payment of a subsidy and grants of land to those undertaking it, and for the expropriation of land for the right of way for the line. On the same date c. 74 of the Acts of 1876 was passed, and, in order to incorporate and give any contractors whose tender for construction should thereafter be accepted the same corporate powers and privileges as those mentioned in c. 74, s. 4 of the Acts of 187G was passed. By 8. 30 of c. 74, and also by s. G, c. 3, Acts of 1870, certain ss. of c. 70 of ■ the Revised Statutes, third series, are incorporated in these enactments and made applicable to this line of railway, which sections more particularly relate to the mode of acquiring lands for the right of way, stations, etc., the proce- dure for appraising damages, and the mode of assessing the various counties for the payment of the amounts awarded. Chapter 70 Eevised Statutes, third series, comprises in consolidated form all enactments in force in Nova Scotia at that date, relating to provincial rail- ways. For convenience the various railway companies in Nova Scotia, such as the "Windsor and Annapolis Railway Company, the Western Counties Railway Company, {see c. 34, Acts of 1808 ; c. 81, Acts 1870) have, in obtaining their Acts of incorporation, availed themselves of similar clauses from c. 70, Revised Statutes third series, by express enactment, without repeating them in the Act or providing other macl Inery for the expropriation of lands, and the «,scertaining of land damages. When the Eevised Statutes, 4th series, was prepared, certain Acts of the Province not re-enacted were continued in force, and among th'era so much of c. 70 of the third series as was therein specified. {See the Act to provide for the publication of the Consolidated Statutes, 30th April, 1873, Revised Statuces, fourth series, page 2.) Mr. Harry Abbott, having entered into the contract with the Government for the construction of this line, sought, under c. 4 of the .Acts of 1876, incor- poration and the benefit of the provisions of c. 74, Acts 1876, and obtained a 425 Jurisdiction— C'oH^(«!(('J. certificate of incorporation under the name of the Halifax and Cape Breton Hailway and Coal Company. The company was organized under this Act, and the ri^jht of way having been obtained under the statutes, the damages were appraised and the work of construction bej^an and was carried on. In 1877 an order was made by the Chief Justice of the Supreme Court of Nova Scotia, on the petition of a number of the property owners whose lands would be affected by tho building of the railway, directing the protlionotary of the county to draw and strike a jury, under the provisions of c. 70, of the Revised Statutes, third series, to appraise the lands and property taken for the purpose of the Eastern E.xtension Railway. In 1878 a rule nisi was taken to set the whole proceedings aside, but a year later it was discharged on motion of the party who had obtained it. A question having been raised as to the validity of the incorporation of the company under c. 4, Acts 187C, by the Local Government, and legislation being about to be passed to remove such doubt.s, anotlier rule was obtained in 1S70, on the ground that the Halifax and Cape Breton Railway and Coal Company had no legal existence. After the argument of this rule, and before judgment, clia. ()0 and 70 of the Acts of 18711 were passed by the Legislature of Nova Scotia. After hearing the Gustos of the county by counsel before a committee of the Legislature, two sections of the Act were added in the interest of the county. The Supreme Court of N.S. held that the County of Pictr > were estopped by these statutes last mentioned from disputitif^ the ' ^ ,,. ■ ■ ,inent of the lands taken, and by their act in issuing debentures.to ])!.■ i . whom damages had been awarded for the lands appropriated to the railway, some of which had been indorsed to third parties. (See 1 Russ. & Geldert, 448.) On appeal to the Supreme Court of Canada, Held, that the judgment of the court below was not one from which an appeal would lie, tliere being no finality about the order made by the Chief Justice of the court below ia 1877, which was what this appeal sought to set aside. Hockin v. Halifax and Cape Breton Ry. & Coal Co.— 2{)th Get. 1880. 29. Of Supreme Court and judges thereof — In habeas corpus, in criminal matter. See HABEAS CORPUS. 2, 3. 30. Demurrer — Jxidrjment on, not final. On appeal brought from a judgment overruling a demurrer to some of the counts of a declaration only, and not from the final judgment on the whole case. Held, that the appeal must be quashed for want of jurisdiction, but liberty given to appeal on whole case upon certain terms. For full statement of facts see Dnmaries 25. Bank B.N.A. v. Walker.— 22nd June, 1882. 4S6 Jurisdiction — Contimu'd. 31. Ajipeal from Quebec — Judgment — Saprerne Coarl Act, 1S70, s. 8 — Op])osition to seizure for an amount under $3,000 — Apj)e(d quashed for want of jurisdiction — Without costs. The contestation in question arose on an opposition put in by the respond- ent to a seizure which the appelhint had caused to be made of the immoveable proi)erty of the defendant in the cause in virtue of a writ of execution, based on a judgment obtained by tlie appellant against the defendant for t(140. The respondent in his opposition alleged that he was a creditor of the defendant for 531,000, and he asked the nullity of the seizure on the ground that by a certain agreement dated the 17th October, 187<), it had been stipu- hited that no property of the defendant should be sold without the respondent's consent. The defendant was a building society, and the respondent further alleged that the appellant, as one of the directors of the society had become a party to and ought to be bound by thn iigreeinent mentioned. This opposi- tion was maintained by the Superior Court, and also by the majority of the Court of Queen's Bench for Lower Canada. On appeal to the Supreme Court of Canada, Held, that the appeal did not come within any of the cases mentioned in 42 V. c. 81), s. 8 (Sup. Ct. Am. Act, IST'.t,) providing for appjals from the Province of Quebec. The de- mand was for a sum of money amounting only to $C)iO ; the opposition was not for any pai'ticular sum and did not ask for the payment of the debt of $31,000, but attacked only the seizure for $040 and sought to interfere with the execu- tion of a judgment for that sum ; the amount in dispute therefore was this ?()40, and the question of jurisdiction was governed by this amount and not by the value of property seized,* although such value exceeded the sum of $2,000. Henry, J., dissenting. Appeal quashed for want of jurisdiction, but without costs, the objection having been raised by the court. Champoux y. Lapierre. — I'Jth June, 1883. 32. Final judr/ment — Rev. Stats. {N. S.), 4th series, c. 0^, s. oG — Order of a Judge refusing leave to defend, after judgment entered hy defa ult — Proced ure. This is an action of replevin brought in the Supreme Court of Nova Scotia by the plaintiffs against the defendant and appellant to recover one hundred and twenty-five barrels of flour. The plaintiffs were endorsees of a bill of lading of the goods sued for, which were held by the defendant as freight agent of the Intercolonial Railway at Truro. The action was begun on the 'Jth day of April, A.D., 1881, and the goods were replevied and the writ was served upon the defendant on the same day. A default was marked on the 25th April, 1881. Subsequently, on the 10th daj' of September, 1881, the plaintififs' attorney caused to be issued a writ of inquiry, under which d'lmages were assessed uuder the provisions of s. 56, c. 94, Rev. Stats, of Nova Scotia, fourth series. 427 Jurisdiction— OjHtmHC'/. An Older nini for the purpose of removing the default and letting in the defendant to defend, was taken out on the 11th October, 1881, and, on ar>^ii- ment, was discharj^od with coats by an order of Mr. Justice James, presiding at chambers. From the last named order an appeal was had to the Supreme Court of Nova Scotia, which confirmed the judj^ment. (i Russ. & Geld. 108.) Section 7o of c. 94 of the Rev. Stats, of Nova Scotia, fourth series, enacts that it shall be lawful for the court or a judge, upon such terms as to costs or otherwise as they shall think fit, at any time within one yaar after final judg- ment, to let in the defendant in any action or appeal to defend the same upon an application supported by satisfactory affidavits accounting for his non- appearance, and disclosing a defence upon the merits with the particular grounds thereof; and aftidavits sliall not be received in reply unless the court or judge shall otherwise order. On appeal to the Supreme Court of Canada, Held, that the judgment appealed from was not a final judgment within the meaning of 9. 3 of the Supreme Court Amendment Act of 1879, and v.-as not appealable. Held, also, that if the court could entertain the appeal, the matter was one of procedure and entirely within the discretion of tiie court below, and this court would not interfere. Appeal dismissed with costs. Gladwin y. Cummings. — Brd November, 1883. 33. Appeal — Justice of the peace — Certiorari — Court of orirjinal jurisdiction not a superior court — Xo appeal. Conviction by a justice of the peace of the defendant for selling liquor contrary to the provisions of " The Canada Temperance Act, 1878,'' in the Globe Hotel, in Portage La Prairie, in the county of INIarquette West, in the Province of Manitoba. The conviction and papers connected therewith were brought before the Court of Queen's Bench in Manitoba, by writ of certiorari, and on the papers so brought before the court, a rule nini to ijnash the conviction was on motion granted, and was after argument made absolute. On appeal to the Supreme Court of Canada, Held, that the appeal would not lie, the cause not having arisen in a Superior Court of original jurisdic- tion. Appeal quashed for want of jurisdiction. The question of costs was reserved. The court subsequently determined that the respondent should have the costs of appeal, although the objection had been taken by the court. The Queen v. Nevins.— Jan. 18th, 1884— 23rd May, 1884. 428 Jurisdiction — Cimtin ued. 34. Appeal — Final judgment — Supreme and E.i'cJieqv.er Courts Act, 1875, 8. 25 — Supreme Gourt Ainendnient Act, 1870, f^.O — Promissory note overdue in liands of jxiyee — Gornishec clauses, C. L. P. Act — Payment by maker into court by order of a judge, efect of. An action was brou{^ht of property wliich he had in the said immoveable, on payment of the amount due to the Bauk of Toronto, the said Henri Girard being discharfjed of all personal liability for the payment of the consideration money. The said Joseph Ross Hutchins was not a Catholic, nor the said Bonnel. Whilst the said Henri trirard hel'"<■''. repeatiMl yoirlv like rents, or tlio duties or revenues iluo to Iler llajesty, wliich are of ii punmuient nature ; and it is not •' a duty," winch expreasiou civn rtjiply only to duties due to Her Majesty; nor Ims tlie denuvnd any n-lation to titles coneernin^ l.uids or tenements ; and as tlio tax was payable in two years it was evident the judmnent in no way coniin'oniised future ri^jlits. Per Taacliereau, J.— From tlie Province of Quebec four cases only are ajipealable : — 1. Any case wlierein the matter in controversy anidunts to the sum or value of f'J.OUO; 2. Any case wherein the mutter in controversy involves tiie quesiidn of the validity of an Act of Parliament, or of any of the Local Le^'islaturea ; '^. Any case wlierein the matter in controversy relates to any feo of ortice, or any duty, or rent, or revenue payable to Her Majesty, or any suni of money payable to her ^Majesty, where the ritjhts in future mitiht bo bound. These last words iniist be read as (lualifymt^ all this third class as well as the next. If, for instance, a fee of office is chiimed, but the ri;;ht to it is denied by the defendant, the ease is appealable. Rut if in iin action for "'. fee of office the defendant plea Is pavineiit, the ciso is not appealable, if under 52,000 ; 1. Any caae wherein the matter in controversy relates to any title to lands, or tene- ments, or title to annual rents, or such like matters orthinjjs where the rights, in future nii^ht b>.' bound. It is evident that this case does not fall within any of the three lirst classes. Thuufih the \alue of the immovable in (jueslion may be over S2,000,. it is the amount claimed in an hypothecary action, which is in controversy, and here it is clearly below the appealable amount. The title to the lands is not disputed, nor in controversy, nor do the words "such like matters, ov ciiiiif^s where the rights in future might be bound," support the appeal. The viu,ht of the plaintitt's to tax the property as thev have done is not disiiuted here, nor is its liability to future taxation in contestation. And the fact that the taxes cliiimed are payable by instalments, some of which may not yet be due, cannot render tiie case appealable. The present liability ■of the bank, or rather the heir on this property is the only matter of controversy. It is (libitum in liiicfenti. .inlvi'iuhun in j'lituro. The case of SiivaijedU v. Gaiitliier, L. 11, o P. C. 4'.)1, IS in that sense. Ritchie, ('..J. antl Henry and Gwynne, JJ., concurred. Appeal ijuashed for want of jurisdiction, but without costs, the objection haviufj been taken by the court. Bank of Toronto v. Le Cure et Ics Marguilliers, etc., of the Parish of the Nativity. --8th March, isstj.— xii. 25. 41. Appeal— R'xjhis in future— S. C. A. Aet, 1S70, s. 8. One Duhaime, being desirous of establishing a cheese factory in the town of Montmagny, an agreement was entered into between himself of the first part and the defendant and certain others of the second part, whereby the parties of the second part agreed to furnish for twenty years all the milk of their cows to the said Drhaime, to be manufactured into cheese, Duhaime to receive a per- centage for manufacturing. CAS. i)iu. — 28 434 Jurisdiction—^ outinunl. 13y certain meinc convoyancts tlie iiluiiiti£f became proprietor of tlio cheosu factory and vested with all tlio ri^litM of Diiluiitne. Till) defendant, anions otlierrt, contrary to tlio iv^jrocnu'ent, sulil niu milk to an opposition factory, whiTOipon tlio plaintiff braii),;lit an action of dania(,'ea a^'ainst defendant in the (lircnit Court of the I'rovinco of (Quebec, liy a jndj^- nionl of tlie Superior Court for the I'roviiice (An^eru, .1.) tlio autioii was evoked into the Superior (^ourt on the ground that a nnvttera(Toctin« future rights wan in ijueHtion. The Superior ("ourt, by itn judj^tnont, ludd tliat the plaintiff wim entitled to 18.51 as daniaf^us for the broach of the a^^reonient by the dofondant. On iippeal to the Court of Queen's Bench that court reversed the jud^jment of the Superior Court and disniisHcd the plaintiff'H action. Tliu [ilaintiff there- upon applied to a judj^e of the Court of Queen'H Uoncli (Tertsicr, .!.), for hnive to upi)e!il to tho Supremo Court of Canada. This was refused on the ground that the future ri^^hts invokeil wore for a limited time, aiiil that those ri^^hti inultiplied by their duration would not roach the amount roiiuirod for an appeal to tho Supreme ("ourt. On application to Gwynno, J., of tho Supreme Court, in chambers, for leave to iippoal and give the necessary security, tho learned judjiio Hold, that he considered the case similar to ono of a contract for payment of a sum by certain instalments to an amount of $17U.'20 in all, and, apart from tho amount sou^fht to bo recovered, not coining within the words " rifjhts in future," us used in s. 8 of the Supremo Court Amendment Act of IS?!), so as to give an appeal to the Supreme Court of Canada. Beaubien v. Bernatohez.— 13th March, 1886. 42. Onhr made in chavibers aettituj aside jiuhjment — Xot appeal- able — Conclusive as to statements in it. AVhero an order was fjrantod by Wilson, C.J., in chambers, and affirnnil by the C. P. Division of the High Court of Justice for Ontario, setting aside a judgment and all proceedings thereon. Hold, that it is doubtful if an appeal would lie in such a case to the Supreme Court of Canada, and the statement in tho order as to what took place before the Chief Justice and as to the matter which was submitted to and argued before him, must be taken to be conclusive. [For full statement of the facts and judgment see Judgment ().] Sohroeder y. Rooney.— 9th April, 1886. 43. Circidt Court, (PQ.) — No appeal where action has originated in. The appellants by an action returnable and returned before the Circuit Court in and for the district of Terrebonne the 30th November, 1883, claimed from the respondents a sum of one hundred and twenty-five dollars ami interest thereon, at the rate of ten per cent., being the amount of taxes imposed and levied upon the real estate (immoveables) of which the said respondents were in possession for the year 1883. 485 Jurisdiction— C«rt^//n/»(/. ('oui)HL'l for rcHponduiitR moved to quaiih appeal for want of jiirisdiution, on the j^rouiid that no apprnl Ul'h to the Kupreme Court of ('anaihi when the action hau ori^'inalud in the Circuit Court of the Province of Quebec. lie reHed on s. .H of the Supremo (.'ourt Aniendnieiit Act of 1H7'.(, whioli nays : "An appeal Hhall lie I'roin final jud;^inentH only in actions . . . originally iuBtituted in the Huperior CJourt of tliu Province of Quebec." He cited Major V. Uorporatiun of Time Itivers {See Jurisdiction, 20). Counsel for appellanta contended that in the district uf Montreal and sonie other diHtricts an action like the present, in which future rif{hts would be bound, would be brou;;ht in the Superior Court, and only by virtue of a special statute was it brou^jht in the Circuit Court in tiio diHtrict of Terrobonno ; tiiat such statute! was appli- cable to only Hotno of the districts of the province, and that if the contention of the counsel for appellants was correct, the anomaly would arise that in such a case if the action were brought in one district there would be no appeal, while, if brotij^lit in another district, there would be an api)cal. lie argued that in this case, therefore, the Circuit Court must be considered us substi- tuted for an{ of s. :{8, c. 135 R. S. of C. ami therefore appealable — Tascliereau, J., dissenting. StaiUun v. Canada Atlaiitii; Hij. Co. {CnngeU's Dicj. 249) reviewed. MacKinnon v. Keroack.— xv. Ill, 53. A2>peal — Contempt of court — R. S. C. c. 1S5, s. 34 (a) — Final judgment — Practice in case of contempt. By a rnle iiini of the Supreme Court of New l-Jrunswick, E. was called upon to show cause wliy an attaclimont should not issue a^aiuHt him, or he be committed for contempt of court, in publishinf^ certain articles in a news- paper. On the return of the rule it was made abs )lute, and a writ of attach- ment was issued commanding' tlie slieriff to have the body of E. before the court on a day named. By tbe practice in such CHses in the said court it appeared that the attachment was issued merely in order to bring the party into court, where he mit,'ht be ordered to answer inttM-rof.'atories and by Ills answers pnrj^e if he could his contempt. If unable to do tliis the court would pronounce sentence. E. appealed from the judf^mcnt makin<^ the rule abHO- lute. On motion to quash said appeal. Held, that the jndf^ment appealed from was not a fin.il judgment from which an api)eal would lie under s. 24 (n) of the .Supreme and Exchequer Courts Act, 11. S. C. c. 135. Ellis Y. Baird.— x\i. 117. 54. Jurmliction — Future rlt/ht'< — SiLpreme and Exchequer Courts Act, s. '29, s-s. (h). In an action for §1,833.30, a balance of one of several money payments of $2,000 ea'jh. one whereof the defendants agreed to pay to tlie plaintiff every year so long as certain security given by the plaintiff for tlie defendants remained in the hands of the government, the defendants contended tliat the security had been released by the action of the government and they were therefore not liable to pay the amount sued for, or any further instalments. The Court of Queen's Bench (appeal side) held that the security had not been released and gave judgment for tlie amount claimed. The defendants applied to one of the judges of that court and obtained leave to appeal, on the ground that if the judgment was well founded then future rights would be bound, and they had become liable for two other instalments of ?2,000 each, for which actions were pending. Held, that the appaal wouL! not lie, because even if the future rights of the defendants were bound by the judgment such future rigiits had no i-elation to any of the matters or things enumerated in s-s. (b) of s. 29 of the S. & E. C. Act. Tlie words " where the rights in future might be bound " in this s-s. are governed and qualified by the preceding words and to make a case appealable when the amount in controversy is less than $2,000, not only must future rights be bound by the judgment, but the future rights to be so bound must 439 Jurisdiction — ('imtinucd. relate to " a fee of office, duty, rent, revenue or sum of money payable to Her Mftjesty, or to some title to lands or tenements, or to annual rents out of lands or tenements, or to some like matters and things." Gilbert y. Oilman. —xvi. 189. 55. Contempt of Court — Constructive contempt — Discretion of coicrt—R S. C. c. 135, s. 24, s-s. (a), s. 20 ff-s. (1), s. 27. The decision of a i>rovincial court in a ca^e of constructive contempt is not a matter of discretion in wliich an appeal is prohibited by s. 27 of the Supreme and ilxchequer Courts Act. Tascliereau, J., dubitante. The Rr.preme Court has jurisdiction to entertain such an appeal froin the judgment of the Court of Appeal of the Province, not only under s. 21, s-s. 'a) of Supreme and Exchetiuer Courts Act as final judsraent in an action or sui^, but also under s-s. (1) of s. 20 of the same Act, as a final judgment " in h. matter or other judicial proceeding" within tlie meaning of said s. 20. The adjudication that tlie appellant, a solicitor and officer of the couit and moved against in that quality, has been guilty of a contempt, is by itself an iijipealable judgment, although no sentence for the contempt has been pronounced by the court. When the party in contempt has been ordered to pay the costs of the application to commit the court in effect inflicts a fine for the contempt. In re O'Brien.— xvi. 197. 50. Practice — Right of (ippcal (F.Q.) — Amount in controversy — Sxiiweme and Exchequer Courts Act, R S. C. c. 135, s. 29, construction of. Where the plaintiff has acquiesced in the judgment of the court of first instance by not appealing from the same, the measure of value for determining his right of appeal under s. 29 of the Supreme and Exchequer Courts Act is tlie amount awarded by the said judgment of the court of first instance, and not the amount chiimed by his declaration. {Levi v. Rued, Can. S. C. K. 482, overruled, see " Jurisdiction " 5 : Allen v. Pratt, 13 App. Cases 780, referred to as overruling Joyce v. Hart, 1 Can. S. C. R. 321, Dee " Jurisdiction " 4.) Monctte y. LefebYre,— xvi. 387. 57. Judicial deposit hy Insurance Company — Rivc^l claims as to same — Value of matter in controversy — Jurisdiction — Supreme and Exchequer Courts Act, R. S. C c. 135, s. 20. A life insurance company deposited with the prothonotary of the Superior Court, under tlie Judicial Deposit Act of Quebec, the sum of S3, 000, being tiie amount of a life policy issued by the company to one E. L., which by its terms had become payable to those entitled to the same, but to one-half of which sum rival claims were put in. The appellants, as collateral heirs of the de- ceased, by a petition claimed the whole of the three thousand dollars, and the 440 Jurisdiction— CoH«/nH^(/. respondent {mine-eiucauHe petitioner), the widow of the deceased, by a counter petition claimed as commune en hiens one-half ; and, in her answer to the appel- lants' petition, prayed that in so far as it claimed any greater sura than one- half, it should be dismissed. After issue joined, the Superior Court awarded one half to the appellants, and the other half to the respondent. From this judgment the appellants appealed to the Court of Queen's Bench (appeal side) and that court confirmed tlie judgment of the Superior Court. On appeal to the Supreme Court of Canada, Held, that the sum or value of the matter in controvei-sy between the parties beiii'^ only '?1,500, the case was not appealable. R. H. C. c. 1.35, s. 21). (Fournier, J., duhit). Galarneau y. Guilbault.— xvi. 571». 61. Security for costs — Rifiht to benefit of — Interest of tkinl party — Liscretiov of court belov: — Jurisdiction. S. brought an action against J. and issued a writ of cnpia>i. Bail was given and special bail entered in due course, but the bail-piece was not filed, nor judgment entered against J., for some months after. On application to a judge in chambers an order was made lor the discharge of the bail on account of delay in entering up judgment, and the fuU court refused to set aside such order. An appeal was brought to upreme Court of Canada entitled in the suit against J,, from the judgment of the full court, and the bond for security for costs was given to J. Held, that as the bail, the only parties really interested in the appeal, were not before the court and not entitled to the benefit of the bond, the appeal must be quashed for want of proper security. Held, also, that the appeal would not lie as the matter was simply one of practice, in the discretion of the court below. Scammell v. James.— xvi. 593. 62. Expropriation of land — Order hy judr/e in chambers, as to tnoneys deposited — R. S. C. c. ISo, s. 28. The College of Ste. Th6r6se having petitioned for an order fo'- payment to them of a sum of ?4,000 deposited by the appellants as security fo land taken for railway purposes, a judge of the Superior Court in chambers iit'ter formal answer and hearing of the parties granted the order under the Railway Act, R. S. C. c. 109, s. 8, s-s. 31. The railway company appealed against this order to the Court of Queen's Bench for Lower Canada (appeal side) and that court affirmed the decision of the judge of the Superior Court. Held, that the order in question having been made by a judge sitting in chambers, and, further, acting under the statute as a persona desiiinatu, the proceedings had not originated in a superior court within the meaning of s. 28 442 Jurisdiction — Cuutinuei!. of tlio Supreme and Exchequer Courts Act, and the cnse was therefore not appealable. C. P. Ry. Co. Y. Ste. Theresc— -wi. 606. 63. Motion for new trial — Jarlsdictloii — *S'. cl; E. C. Act — R. S. G. c. iJo, s. ;U id). The defendant in an action ajjuiiist whom a verdict had passed at the trial moved for a new trial before the Divisional Court on the grounds of misdirection, surprise and the discovery of further evidence, and the motion was f^ranted on tii« (ground of misdirection (15 O. R. .544). The plaintiff appealed and the Court of Appeal held that there Wiis no misdirection, but that the order of the Divisional Court directing,' the case to he submitted to another jury had better not be interfered with, the circumstances of the case beinj} peculiar. Held, tiiat as the jud^^mcut of the Court of Appeal did not proceed upon the ground that tlie trial judj^e had not rulel accordinj* to law no appeal would lie to the Supreme Court of Canada from its decision. In the factum of the respondents no objection was made to the jurisdiction of the Supreme Court, but it was urged that the appeal should not be entertained and that the court should not interfere with the discretion in favour of a new trial exercised by the two lower courts, the circumstances, it was contended, being stronger than those in the Eureka Mills v. Moss, 11 Can. S. C. R. interest less than S:?/>0O—S. ((.• E. a Aei, R.S. C.c. IJJ,s. j!l An action was instituted by the respondent a(,'aiust the appellant for llie partition and licitation of a clieese factory, etc., in order that the proceeds mit^ht be divided accordinj^ to tiie rifihta of tlie parties who had carried on business as partners. Tlie judgment appealed from ordered tlie licitation of the factory and its appurtenances. On a motiim to ijuash the appeal by tlie resi>ondent on the ground that the matter in contrnxersy was under §2,000, tiie appellant in answer to the respondent's affidavit lilcd anotlier affidavit allow- ing that the total value of the property was ?3,000, but it being admitted th;'.t the respondent (plaintiff) claimed but one-half intHrest in the property it was Held, that the matter in controvei'sy, and claimed by the respondent, not amounting to the sum or value of ?2,000, the appeal should hi quashed with costs. Present : — Sir W. J. Ritchie, C. J., and Strong, Taschereau, Gwynne and Patterson, J J. Hood v. Sangster.— Nov. 12th., 188'J.— .\vi. 723. 71. Judgment, interlocutory or final — Art. IIIG, C. C.P. — Amount in controversy not determined — Supreme and Excltecjuer Courts Act, R S. C. c. ISo, ss. 28 A J9. The plaintiff sued for §5.000 as damages alleged to have been caused by the defendants. The Superior Court dismissed the action, and the Court of lleview reversed that judgment and sent the case back to the Superior Court to ascertain the damages. Tlie defendants appealed from this judgment to the Court of Queen's Bench, but that court, on motion of plaintiff, before any other proceeding on the appeal, quashed the writ of appeal on the ground that it had been issued de phino and not with the permission of the Court as required by Art. 111(1, C. C. P., the court being of opinion that the judgment was not a final but an interlocutory judgment within that article. •i-lo Jurisdiction— C'oh^n; »<■(/. Held, 1. A jiul^iuent of the Court of Queen's Bench for I owtr Canada (appeiil side) (luashin^; ft writ of appeal ou the >,'roiind that such writ had been issued contrary to the provisions of Art. 111(>, C. C. P., is not " a final judf,'- ment " within the meaning of s. "iH of the Supreme and Kxcheijuer Courts Act. Shiiw V. .S'(. Lonin, H Can. S. C. R. 387, distinguished. 2. The Supreme Court has no jurisdiction under s. 2!) of tlie Supreme and Exche(iuer Courts Act, to hear an appeal by the defendant wliert' the amount in controversy has not been established by the judgment appealed from. ;^But see S. & K. C. Act, is'Jl, 51 A i,o V. c. 25, s. ».] Ontario & Quebec Railway Company y. Marcheterre.— xvii. 111. 72. Ont. Jt«l. Act, ISSl, 8. .'{3 — Apiical in Suprcma Court — L'nni- ta t ion of — Co n'litio ns. The section of the Ontario Judicature Act, 1881, (s. 43) which provides that in cases where the amount in controversy is under '51, 000 no ajipeal shall lie from the decision of the Court of Appeal to the Supreme Court of Canada, except by leave of a judpe of tlie former court, is iiltni I'ins of the legislature of Ontario and not bindini^ ou this court. Remarks ou an order ^^rantiufj such leave on appellant undertaking to ask no costs of appeal. Clarkson y. Ryan.— xvii. 231. 7.'3. Jiu-isdidion—R. S. C.e. loo, .s. .'/I — Judgment on motiov for non-suit or new trial — Xotlre, of (tppeal — Extoision of time for (jivinij — Applicotinii after time has expired — Efi'eet of order on. The Supreme Court of Canada has no jurisdiction to hear an appeal "from a judgment on a motion for a new trial on the ground that the judge has not rulwl according to law," unless the notice required by s. 41 of the Supreme Court Act has been given. An order made by a judge qf the court appealed from giving the defend- ants " leave to appeal to the Supreme Court of Canada leaving it to {»laintiffs to dispute the right of appeal in the Supreme Court," even if considered as an enlargement of the time for giving notice, will not give the court jurisdiction if no notice is given pursuant to such enlargement. The time for giving notice under s. 41 can be extended as well after, as before the twenty days have elapsed. Held, per Strong, J. — In s. 42 of the .Act, providing that under special cir- cumstanaes the court appealed from, or a judge thereof, may " allow an appeal," although the time limited therefor by previous sections has expired the expression " allow an appeal " means only that the court or judge may settle the case and approve the security. Yaughan y. Richardson.— xvii, 703. 440 Jurisdiction— (^ '"«//"»urtH Act nut i)i>inK app'iciiljle, and tho case not coming' witliin a. 2!) of tho Act, the ivniuuiit bcinfj under #2,000, no fiitiiro riglits within the nioiming of Biiid 8. 2',) buini,' in controverHV, nor any (jucition na to tliu constitutionality of tho Act of tlie k'^jislature boin^j raiHud. Stron>,',tT. ,diHsentintJ on the jiround that tho jutlttniont appealed from involved the (juostion of tlie validity of tho Provincial Act. The Corporation of tho City of Shorbrooke v. McManamy. -xviii. .V.H. 77. Mdndatnus — Jufhpnent on dtmurrer — Supreme and Exche- quer Courts Ad, 8. ?Jf (fj) 2S, :>9 d' -'.n. Interlocutory jud^jrnents upon proceeding's fi>i- and upon a writ of manda- mus are not appcahible to tho Supremo Court under s. 24 (q) of the Sui)romo and Exchequer Courts Act. Tho word "judf^meut" in that s-s. means the final jud^jnient in the case. Strong,' and Pattrrson, .I.T., disMcntiiiv;. Langevln v. Les Commissaires d'Ecole pour la Municipalite de St. Marc. — xvii. .O'.'y. 78. Order for a new tried — Whe7i not apj^eaJahle — Sui>reme and Exchequer Courts Act, ss. 2^. (;ment and cannot be hold to come within the exceptions provided for by tlie Supreme and Exche- quer Courts Act in relation to appeals in cases of new trials. See Supreme and E.xchequer Courts Act ss. 21 ('/), iJI' S; 111, Barrington y. The Scottish Union and National Insurance Co. — xviii. 015. Sec. JURISDICTION, 80. 79. Saisie conservatoire — Judgment ordering a jietiiion to quash seizure to he dealt with at the same time as the merits of the main action — R. S. C. c. 135, ss. 34.-28. A judgment of the Court of Queen's Bench for Lower Canada (appeal side) reversing a judj^ment of the Superior Court, which quashed on a petition a seizure before judgment, and ordering that tho hearing of the petition contesting the seizure should be proceeded with in the Superior Court at the same time as the hearing of the main action, is not a final judgment appeal- able to the Supreme Court. R. S. C. c. 135, ss. 2-1 & 28. Strong, J., dissenting. Molson Y. Barnard.— xviii. 622. 44« Jurisdiction—' '<»/ Qtirciin Jit'iirh siiti ntnta — Flmd jiulgnient — Sv.i)i'eme tind Excheqiwi' Courts Act ««, 34, .11, 28, JO, o'O i(' (Jl. Ill an action triuil by a ju(lk,'e aiul'jury tliu jutl^iiient of the Huperior Court in review diHMiinHed tlie pliiintilfH' iiiDtion for juilt,'tiieiit and ;,'rante(l tlicdefonil- Ki^s uiiition to ilixiniKti the action. On appeal to tlio Couttuf Cjneen'a liench, tlio jndtinient of tho Superior Court was reveriied, and the Court set aside tlio (issinmiient of facts to tlie jury and all Hultsivjiu-nt proce(Mlni'.;K and hud mulu ordered a fi'iiirc dc iiuvo on tlie jjrouiid timt the aHHiynnient of facts was defective and insutficient and the answers of tho jury were insufWcient and tuntriulictory. Held, that the order of the Court of Queen's ]5ench wa^ not a final judi^- nient and did not come within the exce[itions allowing an ap))i'al in cases of new triiilw, and therefore the appeal would not Ho. Accident Insurance Company of North America v. McLachlan.— xviii. iVi?. .Si. A i> pi [cat ion f<> ju'lijc in chambers to set amle a ivrit of aicvi' mons — Final J udgmen t. .Vpplication was nnxdo to a judf^a to sot aside a writ of summons served out of the jurisdiction of tins court on the f^rounds that the cause of action arose in Enj^'land and the defendant was not subject to tho process of the court, and if the court had jnrisriiction tliat the writ was not in proper form. Tho jiulfje rtfuBi'd the application and his decision was aftirnied by the full court. Held, Gwynne, J. hesitaiite, that the decision of the full court was not a liiial judgment in an action, suit, matter or any other judicial proceedint,' with- in the meaning of the Supreme Court Act, and no appeal would lie from such Uccision to tho Supremo Court of Canada. Martin Y. Moore. —xviii. (i.'34. 8:2. Apjieid—Imolve/nt Art of hS7o—40 V. c. 41, s. .JS — Efcd of A final judgment of the Court of Queen's Bench for Lower Canada (appeal side), upon a claim of a creditor filed with tho assignee of an estate under the Insolvent Act of 187o, is not appealable to the Supreme Court of Canada, the right of ajipeal having" been taken away by •10 V. c. -41, s. 28 (U.), Cunhing v. Dupuy, 5 App. Cas. 409, followed. Present: — Sir W. J. Ritchie C.J. , and Strong,', Fournier, Taschereau Gwynne and Patterson, JJ. Seath Y. Hagar.— March 4th, 1891— xviii. 715. S3. Appeal — Title to land — Supreme and. Exchequer Courts Acts, s. 29 {h). In an action broutjht before the Superior Court with seizure in recaption under Arts. 857 & 887, C. C. P. and Art. 1624, C. C. the defendant pleaded 449 Jurisdiction — ( '••>iti>ni, the yuprt'Mio Court: Held, tli;it ivm the case wiis orit!iiially iiiHtitutel in the Superior Court and upon the face of the proooudini^s the ri^ht to tht! pohSfrtsioii mill property of an inuniviiblo property was involv.'d, mi tqipoal would lie. Supreme and Kxchei^ucr Courts Act, h. 21) [h) and ss, 26 «k •_'1. Stnnij,', .1. diss..'ntin>,'. Blachford V McBaln. -xix, t'2. .S4. SiiUcitiir — Hill (if costs — Rfp' t'ciice to tiU'linj master — Prucd' if lire. It irt doubtful if a deciiiion aftirniin.4 tiie muster's ruling on taxation of a solicitor's bill of costs, v.diich relates wholly to the practice and procedure of the Ili^ii Court of Justice for Ontario, and of an olTicer of that court in con-^ struini,' its rules and executing a:i order of rofeivuice made to liini, is a [iniper subject of app'al to tl;o Supreme Court. O'Donohoe v. Beatty.— xix. 3.06 . And «v SOLICITOR ANP CLU NT, 7, S.5. Jiij-hiw—Appnil IIS to co8ts~Jiirisdictioa— Supreme ami Ex- che(m>ir Courts Act, s. 24- Since the rendering,- of the jud<,'Tnent by the Court of Queen's Beucli refusing! to (luasii a bydiiw passed by the corporation of the villai,'.; of Hunting, don, the by-hrw in question was repealed, i >n appeal to the Supreme Court of Canada : Held, that the only matter in diBi)ute between the parties bein-,' a mere iiuestion of costs, the court would not entertain the appeal. Supreme and ilxchtijuer Courts Act, s. 21. Molr Y. The Corporation of the Village of Huntingdon.— xix. 30.S. S(). Jurisdiction — Action to set aside a proccs-verhal or by-law Appeal- S. J.'f (g) cO s. 20 of the Supreme and Exchequer Cowrts AcL The Municipality of the County of ^■erch6res passed a bydaw or jjnx.V- verhdJ detinin« who were to be liable for the rebuildin;,' e.nd maintenance of a certain bridge. The municipality of Varennes by their action prayed to have the bydaw or i^-och-verbal in question set aside on the fjround of certain irre-^ularitiea. The above was maintained and the bydaw set aside.— On appeal to the Supreme Court of Canada : Held, that the case was not appealable and did not come within s. 29 or s. 24 (;/) of the .-upreme and Exchequer Courts Act, no future rights within the mean- c.\s. Dio. — 29 450 Jurisdiction —^ ''>Miil not l)i'iiii{ from a rulo (jr nnliT of u court (|iiaNliiii^ or rcfiiMiii^ to i|tiHnli ii liy law of h iiHiiucipul corporutii n. County of Voroherei v. The Village of Varonncs xix. 'M'tii, H7. Ai>i»'iil —Future rights — Titlf to lumh — Sf'rriltKh'—Sajn'aine (111(1 Kxclieiiiwr Cinirta Act, s. .'JU (h). Hy n jiKl^nient of tlie Court of (^ium'u'h IUmk.'Ii for Lowlt runiidii (iippoil Bide) the di'fc'ndantH in tin- ivctioii won- condi'iniifd to build iitul coiiiiihte certivin workH and dniiriH within u certain delay, in a lane Hejinratinu tlio defendnnt'K and plaintiff'H jirnpeitieH on the west Hide of \'vf\ Htreet, Montreal, to [iroveiit water from enteriuj^ plaintitT'H liouse which waH on t\\r slope below. The (iiU'Htiou of damnt^eH was reserved. On appeal to the Huiirenio Court of Canada : Held, that the case wan not appealable, there boint; "o coiitrovorsy a^i to 9*2,000 or over, and no title to lands or future ri(.'lits in (luestion within the meaning of s. Ui», 8-a. (h) of the Huprome Court Act. 'J'hu words title to lunds in this Huh-section are only applicable to a case where a title to the property or a rij;ht to the title may be in (jtiestion. The fact that a question of the ri^ht of eervitude ariseH would not ^ive jurisdiction. U'hi'eler V. lll'ick, (11 Can. H. C. It. 212) referred to ; Oil'jen v. Uiliiinn, (10 Can. 8- C. U. 18!l) approved. Wineberg v. Hampson,- xix. .W.i. H8. Krproprmtion—Ii. S. Q., Art. 510.',, m J.J, 10, 17, JS, i'/,— A aui I'd — A i'bl(rat(jrs — Jurlndict ion of — Ln mix i iijiiriouslij affected — 4'^ '■^ -44 V- c- 4'->' (^^-Q-) — Appeal — Amount in controversy — Costff. * In a railway expropriation case the respondent in naming hia arbitrator declared that he only appointed him to watch over the arbitrator of the com- pany, but the company rec j^uized him otVuiially and subsequently an award of $1,974.'2.( daniafjes and costs for land expropriated was made under Art. 31(34, H. S. Q. The dempncl for exi)ropriation as formulated in their notice to arbitrate by the appellants was for the width of their track, but the award granted damages for three feet outside of the fences on each side as being valueless. In an action to set aside the award : Held, aflirming the judgment of the courts below, that the appointment of respondent's arbitrator was valid under the statute and bound both parties, ami that in awarding damages for three feet of land injuriously affected on each side of the track the arbitrators had not exceeded their jurisdiction. Strong and Taschereau. JJ., doubted if the amount in controversy was sufficient to give the court jurisdiction to hear the appeal, the amount of the award being under 92,000, and to make up the ajipealable amount either 451 Jurisdiction -('i>ntiuiniL iiit<-rt(liiit!H would havu to bo nrlded. The Quebec, Montmorency and Charlevoix Railway Co. v. Mathleu. — xi.x.4'ii;. In tliiM caau TeHHier, J., Held, tliat the appoal would not Ho and rofuHod to allow the stuMirity. 'I'lio Ucnixtriir of tlm Hupreino Court wan of opinion the lunount in controvcrHv whh the amount at the tiniti tliu juclt^inont of tho court bulow, wliiuh wau appealiul from, waH rondorud, and thiH amount would bt* tlio principal innncv iiwiirilcjmunt," but the order which it art'irmed wan one made in the exerciBe of judicial dirtcrotion as to which B. 27 of the Act does not allow an a[)peal. The Rural Municipality of Morris v. The London and Canadian Loan and Agency Co. — .\ix. 4Hi. no. Supreme and Exchequer Courts Amendmland, and the plaintiffs filed a claim with the asHifinee in bankruptcy. The Hi{ for appeals in cases of municipal by-laws. Vdreviifn v. Verch^rea, V.) C. S. G. R. 365 ; SherbrooKe v. Mcilanamy, 18 C. S. C. K. ,594, followed. Bell Telephone Co. y. City of Quebec ; Quebec Gas Co. v. City of Quebec. —XX. '>?,{). 94. Acquiescence injiuJgnunit — Jiir'isdictirn — oO V. c. b'J. (P.Q.) — Con8titiiiionaUty-—hHervention — Ahandonment of appenL In an action in which the constitutionality of 30 V. c. 81 (P.Q.) was raised by the defendant the Attorney-General of the Province of Quebec intervened, and the judgment of the Superior Court having maintained the plaintiff's act-.on and the Attorney-General's intervention the defendant appealed to the Court of Queen's Bench (appeal side) but afterwards abandoned his appeal from the judgment on the intervention. On a further appeal to tlie Supreme Court of Canada from the judgment of the Court of Queens Bench on the principal action the defendant claimed he had tlie right to have the judgment of the Superior Court on the intervention reviewed. Held, that the appeal to the Court of Queen's Bench from tlie judgment of the Superior Court on the intervention having been abandoned the judgment on the intervention of the Attorney-General could not be the subject of an appeal to this court. Ball Y. McCaffrey.— XX. 311). 95. Acquiescence in jiulr/ment — Attorney at litem — BigJit of appeal. By a judgment of the Court of Queen's Bench the defendant society was ordered to deliver up a certain number of its shares upon payment of p certain sum. Before the time for appealing expired the attorney ad litem for the defendant delivered the shares to the plaintiff's attorney and stated he would not appeal if tlie society were paid the amount directed to be paid. An appeal was subsequently taken before the plaintiff's attorney complied with the terms of the offer. On a motion to quash the appeal on the ground of acquiescence in tiie judgment, Held, that the appeal would lie. Per Taschereau, -T. — That an attorney ad litem has no authority to bind his client not to appeal by an agreement with tlie opposing attorney that no appeal would be taken. La Societie Canadinne-Francaise de Construction de Montreal v. DaYeluy. • —XX 44'.). 454 Jurisdiction — t'ontimud. 90. Jv. rlsdlct'ion — Action in disavowal — Presrription — Appear- ance hy attorney — Service of sumrnons — C. S. L. C c. 6' J, 8.U- In an action brought in 1866 for the sum of ^800 and interest at 1'2.J per cent, aj^ainst two brothers J. S. D. and W. McD. D., bein^j tlie amount of a promJBtiory note note signed by them, one copy of the 8umn>onH \vh» served at the domicile of J. H. D. at Three Rivers, the other defendant W. McD. D. then residinf^ in the State of New York. On the return of the writ, the respondent filed an appearance as attorney for both defendants and, proceedings were suspended until 1874, when ind^nient was taken and in December, 1880, upon the issue of an iiliiii writ of execution, the appellant, havinji failed in an ojipo- sition to judj^ment, lilec' a petition in disavowal of the respondent. The disa- vowed attorney pleaded inter alhi that ho had been authorized to appear by a letter signed by J. S. D., sayinn : " Be so j^ood as to file an appearance in the case to which the iiiclosed has reference, etc.," and also prescription, ratifica- tion and insufficiency of the alleviations oi t.ie petition of disavowal. The petition in disavowal was dismissed. On appeal to the Supreme Court of Canada the respondent moved to quash the appeal on the ground that the matter in controversy did not amount to the sum of 'f'i.OOO. Held, that as the judgment obtained against the appellant in March 1874, on the appearance filed by the respondent, exceeded the amount of J'2,000, the judgment on the petition for disavowal was appenlablo. Held, also, that where a petition in disavowal has been served on all parties to the suit and is only contested by the attorney wb.ose authority to act ia denied, the latter cannot on an appeal complain that all parties interested in the result are not parties^ to the appeal Dawson v. Dumont.— xx. 709. 97. Fraudident conveyance — Action to set aside hy a creditor — Amount in controversy — Appeal — Jurisdiction — R. ^'. C. c. U5, s. 20. Appeal from a decision of t'.ie Court of Queen's Bench for Lower Canada (appeal side). In December, 1889, F. F. Ferland, a trader, sold to Gauthier, one of the respondents, certain real estate in Montreal which was mortgaged for S7,000, or $8,000, with a riglit of rcm'rc for one year. In January, 1890, F. F. Ferland made an assignment, and Ira Flatt, <'f al- creditors of Ftrland in the sum of $1,880, brought an action against Gauthier to have the deed of sale of the property which was valued at over $11,000 set aside as made in fraud of his creditors. G. pleaded that he was willing to return the property upon payment of the sum of 11,000 which he had advanced to P., and the courts below dismissed F. et al.'g action. On appeal to the Supreme Court of Canada : Jurisdiction — Continued. Held, that as the appellants' claim was uuder $2,000 and they did not represent Ferland's creditors, the amount in contrcverBy was inaufticient to make tlie case appealable. K. S. C. c. 145, s. 20. Flatt Y. Ferland.— xxi. 82. 98. Appeal — Road rejjair — Municipal by-law — Validity of — Rights in future — Sapreme and Exchequer Courts Act, 8. 29 (6). In an action brought by the respondent corporation for the recovery of the sum of S'2()'2. 1-1 paid out by it for macadam work on a piece of road fronting the appellants' lands, the work of macadamizing the said road and keeping it iu repair being imposed by a by-law of the municipal council of the respond- ent, the appellants pleaded the nullity of the by-law. On appeal to the Supreme Court of Canada from the judgment of the Court of Queen's Bench for Lower Canada (appeal side) dismissing the appellants' plea : Held, that the appellants' obligation to keep the road in repair under the by-law not being " future rigiits " within the meaning of s. 2!) [b], the case was not appealable. County Vereheres v. Villiuje of Vareiinen, It) Can. S. C. R. 365, followed, and Rehurn v. Ste. Anne, 15 Can. S. C. P.. 92, distinguished. Gwynne, J., dissenting. D ibola Y. The Corporation of the Village of Ste. Rose.— xxi. Co. 99. Appeal — Monthly allowance of S.JQO — Amount in controversy — Annual rent — R. S. C. c. l-Jo, s. 29 (h) — Jurisdiction. B. K. claimed under the will of Hon. C. S. Kodier and an .\ct of the Legislature of the province of Quebec, i14 V. c. 9(i, from A. L., testamentary executrix of the estate the sum of ?200, being for an instalment of the monthly allowance which A. L. was authorized to pay to each of the testator's daugh- ters out of the revenues of his estate. The action was dismissed by the Court of Queen's Bench for Lower Canada, and on an appeal to the Supreme Court it WHS Held, that the amount in controversy being only .^200, and there being no " future rights " of B. B. which might be boinid within the meaning of those wonls in s. '2\i (b) of the Supreme and Exchequer Courts Acts, the case was not appealable. t •, Annual rents in s-s. ('/) of s. 20 of R. S. C. c. 135, moan "ground rents" {rentes junciires) and not an annuity or any other like charges or obligations. Rodier y. Lapierre— .xxi. 69. 100. Appeal — Jurisdiction — Security for costs — S. & E. G. Act, R. S. C. c. J -15, s. 46 — Filial judgment — Admission of attorney. An appeal was sought from the refusal of the Supreme Court of Nova Scotia to admit the appellant as an attorney of the court. There being no 456 Jurisdiction — Continued. person interested in opposing the application or tlie appeal, no secnrity for costH was t^iven. Held, Gwynne, J., dissenting, that the court had no jurisdiction to hear tlie appeal. Per Ritchie, C.J., and Taschereaii, J. — Except in cases specially provided for, no appeal can be heard by this court unless the security for costs has been given as provided by s. 4() of The Supreme and Exche(iut>r Courts Act, R. S. C. c. 135. Per Strong and Taschereau, JJ. — It was never intended that this court should interfere in matters respecting tl>e admission of attornies and barristers in the several provinces. Per Tascliereau and Patterson, JJ. — The judgment sought to be appealed from is not a tinal judgment within the meaninij; of the Supreme Court Act. In re Cahan. — xxi. 100. 101. Solicitor— Bill of costs— Order for taxation~R. S. 0. {1SS7) c. 14.7, s. 4^ — Appeal — Jwrisdiction — Discrctloi} — Proceed- ing origiaatiny in Superior Court — Final judgment. Hy R. S. O. (1887) c. 147, s. tl, any person not chargeable as the princiiml party who is hable to pay or has paid a solicitor's bill of costs may apply to a juilge of the Iliyh Court, or of the County Court for an order of taxation. An action was brought against school trustees, aiul a rateiiayer of the district applied to a jiidt;e of the Ili^h Court for an order under this section to tax the bid c)f the solicitor of the plaintii't, who had recovered judgment The ap[)li- cation was refused, but on appeal to the Divisic. Court the judgment refusing it was reversed. Tiiere was no appeal as of riglit to the Court of A|)peal for Ontario from the latter decision, but leave to appeal was granted and the Court of Appeal reversed the judgment of the Divisional Court and restored the original judgment refusing the application. From this last decision an appeal was sought to the Supreme Court of Canada. Held, that the court had no jurisdiction to entertain the appeal. Pir Ritchie, C.J., Taschereau and Patterson, J.I., there was no jurisdic- tion because the matter was one in the discretion of the courts below. Per Ritchie, C.J., and Taschereau, J., also because the jud^jment ajipcaled fioni was not a linal judgment within the meaning of the Supreme Court Act. Per Taschereau, J. .because the pro3eedingsdid not originate in a Superior Court. ' Held also, per Ritchie, C.J., and Gwynne, J., that assuming the court had jurisdiction to entertain the appeal, the subject matter being or.e of taxation of costs, this coui't should not interfere witn the decision of the provincial courts which are the most competent tribunals to deal with such matters. m Jurisdiction — Coutinunl. I'er Kitcliie, C.J., unci Patterson, J., that a ratejjayer is not entitled to an order for taxation under said section. McGugan v. McGugan.— xxi. 267. 102. Solicitors action on bill of co-'' — Appeiil from Cnii rt uf Rcrleiv — (June dandinfj over for jiuhpar lit — Amon nt nrrcssnrij for ri(/ht ofdppenl — Arls. //7.va'-//;.s'|V/), (J.C.r. In an action brought by the reKpoiident a^^ain-it the appellant for S2,00G w'liich wi.H aruued and taken en ilclHii-n by the Superior (Jourt fur Lower Canada, HJttiiif^ in review on the 30th September, W,)\, the day on which the Act Sir).') V. c. 25, s. ;J, Kiviny a rij^ht to ajipeal from the Superior f-'ourt m review to the Supreme Court of Canada wan Kanotioiicd, llie jud^jment was rendered a month later in favour of the respondents. On appeal to the Supreme Court of (,'ana V. I). ,09, followccl. In n- O'llrifii, \l\ (Jan. H. {'. U. I!t7, referred to. The Hii|»rem() Court of New riruiiHwick ailjud^jed K. (guilty of contctnpt but (leferriid Hentenci'. Held, that this whh not ii final jiid|,'mcnt from which iin ai)i)eul would lie to to the Kupronie (Jourt of Canada. A|)[>aal ijiniHlicd. Frewent : Ktrony, C.J. and Fournicr, TaHchfi'fau, CJwynno and I'littiir- Bon, J J. Ellis V. The Queen.— 20tli February, IHJW.— xxii. 7. lOS. A'p'peiil — L'rin'i till to II. of I'uiie — Final jaihjinc/nl. On tlie trial in the E.xchequcx Court in 1887 of an action a^ivinHt the crown for breacli of a contract to purchaHo paper from the HUppliantH the case was Bfnt to rffureeH to UHCcrtain the datna^i-H. In 1M',(1 tlie ru[)ort of the refcrocH wiiH brought liofori! the court and jud^jinont wan tjivon atjaiuHt the ' Jrown for tiio amount thereby foinid due. The Crown appealed to the KnpRMne Court, haviiij^ obtained from the lO.xchequer an extciiHion of the time for appeal limited by Htatute and Houf.;ht to impawn on hucIi appeal the judf^ment [iro- nounced in 1887. Held, (i Wynne and PatterHon, J.T. , disHentin^;, that the apf)eal muHt be reHtrict(.'d to the liiuil judi;ment pronoiinceil in lis'.ll ; tinit an appeal from the judgment niven in 1H87 could only be brouj^lit within thirty (hiya thereafter unk'HH the time was extended an providfil by the Htatute and the extension of time j^ranted by the Excliecjiu-r (^ourt on its face only referre(l to an ap[ieal from the judgment pronounced in 18!)1. Held, ps'Jl. Present; — Stron>< C.J., and Fournier, Tascheroau, Gwynne, and Patter- son, J J. The Queen v. Clarke.-- 2(nli February, 1H!)3.— xxi. (',.-,(;, 1')!). Appf'dl — Trial hy jury — Wif/i(irawalfroni jury — iJinponal of quest ion H of fact by court — (hyiiHent of jxirtien. In an action a;^iunst a Railway ('o. for damaj^es ff)r an injury caused by an entwine of the comiiany, the counsel for both parties aj^reed at the trial as follows : " That the jury be discharj^ed without givin^^ a verdict, the whole case to be referred to the court which shall have powijr to draw inferences of fact, and if they shall be of opinion ui)on the law and tlio facts that the plaintiff is entitled to recover, they shall assess the dama>j;es and that judgment be entered as the verdict of the jury. If the court should be of opinion that the plaintiff is not entitled to recover a non-suit shall be entered." The jury were then 4(50 Jurisdiction — ' untinuol. ilisuliiir^ed ami the court in banc in purBUanoe of audi ii;;n.'i.'nie!>t, siit)Sf(jiii'nily considertiil the ctisd and aHsesRaJ the damages at 88UIA considorint^ plaiiitifT entitled to recover. Tiie CDnipaiiy nonv;lit to iipiKial from Hiich decision. By the practice of the Siipr-jnio Court of New IJrunswieic all ((uestions of fact lire to be trieil by a jury ai.d the court can only deal witli such ipiest'ons by consent of parties. Held. CJwynne and Patterson, JJ., dissentini;, that as the court took upon itieif the decision of the cjuestions of fact, in this case without any le^al or other authority therefor, than llie consent and aj^reenient of the parties, it acted a^•pUlsi-arlJitrators, and the decision appealed from was that of a private tribunal constituted by the parties, which could not h.- reviewed in appeal or otherwise, as judt^inents pronounced in the re^'ular course of the ordinary pro- cedure of the court may be reviewed and appealed from. Held, also, that if the merits of the case were properly before the court the judgment appealed from should be affirmed. Held, per Gwynne and Patterson, .I.T., that the case was appealable and on the merits it appearuig from the evidence that the servants of the company had done everytliin;,' recjuired by the statute to nxve notice of the approach of the train, the appeal bhould be allowed and a judgment of non-suit entered. Present : — Strou)^, C. J., and Fournier, Taschereau, Gwynne and Patter- son. J J Canadian Pacific Railway Co. v. Fleming— 2eth Feb.. 18'.)3.— xxii. H3. 110. Election jietitious — Sqxirafe trinl.^ — 7?. S. C. r. 0, .w. .in ^i• ,Jo. Two election petitions were filed against the appellant, one by A. C tile 1 on the 4th April, ISO'i, and the other by A. V., the respondent, tiled on the (Ith April. The trial of the A. V. petition was by an (nvler of a judge in Chambers dated the 22nd September, ]H'.)2, fixed for the 2''th October, W.f2. On the 2tth October the appellant petitioned the judge in Chambers to join the two petitions and have another date fixed for the trial of lioth petitions. This motion was referred to the trial judge who on the 2l'ith October before proceeding witli the trial, dismissed the motion to have both petitions joined and i^roceeded to try the A. V. petition. Tht-reupon the apijellant objected to the petition being tried then as no notice had bjen given that tlie A. C. petition had been fixed for trial and subject to such objection, filed nii admission that sutTicient bribery by the appellant's agent without his know- ledge had been committed to avoid the election. The trial judges then deli- vered judgment setting aside the election. On an appeal to the Supreme Court, Held, 1st that under s. 30 of c. 'J, li. S. C. the trial judges had a perfect right to try the A. V. petition separately. 2nd, that tlie ruling of the court below on the objection 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 prothonotary as directed by s. 'M of c. 9, R. S. C, was not an appealable judgment or decision. R. S. C. c. H, 8. 50. (Sedge wick, J., doubting.) 461 Jurisdiction -h^/hh«/. ApiH-al (lisiniHHeil with costti. Preauut ; btroiiK, C.J., and Fournifr, Gwyniio. I'lUtertJuii ami Sedj^e- wick, JJ. Vaiidreuil Election Crse, McMillan v. Valois.— Ist March. lisU3.— xxii. 1. 111. Rlijlit i>f ApftCill — -'Jf.i(: 60 V. c. /' — Ctnint I'lU't'ioti of. I'y H. ;{, c. 20 of ')4 iV (■)'» V. ail ajipeal Ih •.ivi'ii ti> the 8iH)i'tM)ic' f'ourt of Canada from tlie jiidi^iiiciit of the Siipt-riur Court in review (P.(,).) " wiieie and 80 lon>i as no appeal lica from the judgment of tliat Court, when it conflrms tlie judf^jnient rendered in the Court apjiealed from, which hy thi* law of the Province of {juebec is appealable to tlie Jiidieial Committee of the Privy Council." The jiidt^ment in this case was delivered hy the Sujierior f'ourt 01 the 17th November, IJS'JI, and was aftiriiied uinuiiinoiiHly by the Superior Court in review on the 'i'.lth July, 1hS)'2, which latter jadj^ment was by the law of the Province of (Quebec appealable to the .Judicial Committee. The utatnte .")4 ife 55 V. c. 2i' was passed on the 30th September, lf".)l, hut the phiiiitiff's action had been instituted on the '2'2nd November, IbDO, and was standing for jud^-'mont before the Superior Court in the month of June, 1S!)1, prior to the p'lsaiiig of u4 iSc iio \. c. 25. On an appeal from the juil^^meut of the Superior Court in review to the Supreme Court of Canada, the respondent moved to ijuush the ap[)eal for want of jurisdiction : Held, />t'r Strong!, C.J.,and rournier and Sed^ewick, JJ., that the ri^ht of appeal f.(iven by 54 & 55 V. c. 25 does not extend to cases standini; for judgment in the Superior Court prior to the passiunof the said Act. Vouturt' v. lUiuchurd, 21 Can. S. C. K. 2m1, followed. Taschereau and Gwynne, JJ., dissentint;. Fouruier, J. — That the statute is not applicable to cases already insti. tuted or pending before the Courts, no special words to that effect bein^' uoed. Present; Strong,', C.J. , and Fournier, Taschereau, Gwynne and Scd^'e. wick, JJ. Williams y. Irvine — May Ist, 181J3.— xxii. Jury — Crown case reserved — Question of law arising on the trial — Ciiusinravation of danuiifes. See DAMAGES, 28. 2. Notice of action to. See NOTICE, 8. MALICIOUS ARUEST. 3. Conviction l)y — Removal of conviction l)y cfnilorurl into Q. B., Man. — No appeal. See JURISDICTION, 33. 4. Conviction by Justices, in prosecution under Canada Temper- ance Act, 1878, s. 105 — " Absent" — Meaninf laml, action for — Viihidfion of — Dit^'cinif 1111(1 pr(iiii>('<'tire copdhilifit'ft fohn couHidci't'if — Quttsi-di'lif — I'rcsri'ijtflon of tiro i/curs vvdev A)is. J.'fl/, 2.i(J7, C. C. — Art. Ih'fJS, C. C. applicuhle and prescription of Jive yearn under Art. ii'd). ('. ('. — To tliis trdmnals Itonnd to (jive effect n iidrr Art. .'/.V.v, ('. C, (iJlliiniiilt mif jilmdrd. Action brought by the appellant, WilliKin nroiikuy, to recover conipeiiHa- tion for the imo of certniii IiuicIm on thf Hivur C'liiiu.licri', occiipii'd )>y tli<' firm of Hi'iiry Iviiig it Co,, for Htoriny Io^h, ivttixc'liiii>i Iiooius in Hnninier and Htoriti}{ booms ill winter, and wliieli were Mubmer>,'ed by means of ii diini erected by Kiiiy \' Co, for tlidt ])iirpoH(', and nnide use of for about five yeiii-H us a boom- ing,' ground for Bivw-loLjH coming down tlie river to their niillH. The declaration contained two countH ; one for daninyes, and one for the value of the use and occupation. The rcHpondeiit pleaded by demurrer a prescription of two years as for n Hiutii lU'Ut inidor Articles 'J'iCil and •i'JC.T of the Civil Code : tliiit tlie alleu'ed works were for tlio et'licient workin>{ of the mill, and that proeeedin^" whould have been taken under Con. Stat. Ii. C. c. ol, by means of arbitration, and by that statute the remedy by action was taken away. And by her perpetual exception the respondent repeated the plea of pre- scription of two years ; that on the .5th Decouib.v, 1H77. a sale by licitation of the property known as Hreakcy'sMills took i)hice. and the same were purchased by John IJreakey, and from the last mentioned date, the respondent Carter had nothinj^ to do with the mills ; and that no proceeding's under Con. Stat. L. C. c. ,>1. had been adopted by appellant; respondent further pleaded the j^eneral issue. The demurrer of the respondent settiufj up a prescription of two years, and tlie necessity of proceedings by arbitration under Con. Stat. L. C. c. nl, was dismissed by Casault, J., of the Superior Court for Lower Canada (set- 7 Q. L. R. '2sq. On the evidence given on the issues of fact the jud^e found that the appellant was entitled to f L*''00, as compensation for the use of the premises for four years, at the rate of $400 per annum. The Court of Queen's Bench for Lower Canada (appeal side) reduced the the amount to S'200, or at tlie rate of $50 per annum, being merely the value of the land for agricultural purposes. 464 Land — Continued . On appeal to the Supreme Court of Canada, Held, that not merely the value of the property for agricultural purposes should have been considered. In valuing property its different and even its prospective capabilities should be taken into consideration (Montreal v. Brown and Springle, 2 App. Cases 184.) In this case not only was the keeping logs in safety a prospective use. but the actual use to which the property was put by the defendants. If land be well adapted for a particular purpose, as this was, and there are those wlio require it for such purpose, the value of the property is to be determined, not by what it might be worth if used for other purposes, but by the value which its exceptional adaptation to speial purposes gives it in the estimation of those conversant with property of that description and capable of speaking of tlie value of the fair use of such property. The evidence justified the finding of die Superior Court, that the property was worth S400 per annum. 2. That the prescription of two years under Art. 22(51 of the Code, did not apply, because c. 51 of the C. S. of L. C, recognising the right of a proprietor in the case of improvement of water courses to erect works which may have the effect of damming back the water on a neighbouring property, the construc- tion of a dam having that effect, as in this case, could not be considered a qitani (lilit, but rather as a riglit of servitude which gave to him who was injured by it a legal recourse for indemnity for the damage. 3. The mode of proceeding given by c. 51 of the C. S. of L. C. did not exclude the right to proceed by ordinary action, 4. Under Art. 1008 of the C. C, the respondents were to be considered lessees [Incataires) and subject to all the rules concerning leases (les baux) and the annual value of their occupation should be considered the rent, none having been fixed by the parties. Therefore the appellant was subject to the prescription of five years under Art. 2250, C. C, and this prescription in virtue of Art. 2188, C. C, is one which the tribunals are bound to give effect to although not pleaded, and only set up for the first time in the respondent's factum in the Court of Queen's Bench. Appeal allowed with costs and judgment of Superior Court varied. Breakey y. Carter. — 12th May, 1885. 4. Title to — Prescription — Arts. 508, 549, C. C. — Possession — Art. 2193, C. C. — Damage to land by construction of dam. See RIPARIAN PROPRIETORS, 4. 5. Expropriation by railway company— Deviation — Description on map or plan — 42 V. c. 9 (D.). See RAILWAYS AND RAILWAY COMPANIES, 64. 6. Title to — Possession — Nature of — Caretaker — Statute of limi- tations. See POSSESSION, 10. Land — Contimml. 7. Action for recovery of land — Conveyance by husband to wife — Setting aside as fraudulent — Statement in pleadings as to possession in wife — Sale by slieriti" as against husband — Iri'egularities in — Trial of action after pleadings maintained on demurrer See EJECTMENT, 5. 8. Judgment against executors on note of one of executors en- dorsed by testator — Sale of lands by sheriff — Purchased by executor — Possession taken of lands by devisee — Trust — Statute of limitations, See TRUSTS AND TRUSTEES, 24. J). Contract for exchange of — Specific performance — Time essence of contract — Waiver by entering into negotiations as to title after expiry of time. See SPECIFIC PERFORMANCE, 7. Landlord and Tenant — Relation of — Whether created between Mortgagor and Mort^'agee by provisions in Mortgage. See MORTGAGE, 4. 2. Lease, cancellation of, by force majeure. See LEASE, 1. Ji. Agreement not to distrain. yee DISTRESS. ■1. Lessee, netjllgence of — Fire — Civil Code — Arts. 105//., 10J7, lOJf). The defenclaut waa, on the 7th April, 1373, in the occupation of a varnish factory, which he had leased from the plaintiff, when a fire originating in tlie factory consumed it as well as the adjoining premises belonginf? to the plaintiff. Tills latter brought an action to recover §8,500 damages, occasioned by the flrei which he alleged to have taken place through the negligence of the defendant and his employees. The Superior Court for Lower Canada (Beaudry, J.), found that the weight of evidence was that no fault could attach to the defendant or his eraployeed, and dismissed the plaintiff's action. The Court of Queen's Bench for Lower Canac i (Ramsay and Tessior, .JJ., dissenting,) reversed this finding and awarde i the jjlaintiff S'5,000 damages and costs, holding tlie defendant liable under Art. 1051 of the Civil Code. CAS. DIU. — 30 466 Landlord and Tenant— Contimicd. Ou appeal to the Supreme Court of Canada, Held, affirming the judf^ment of the Court of Queen's Bench, Henry, J., dissenting. 1. As to the part of the building leased to defendant, there was no doubt as to his responsibility, as he liad failed to accountfor the fire according to Arts. 1027 and 1629of the C. C. 2. As to the buildings of the plaintiff and in his own occupation the defendant might be considered as a trespasser, on account of gross negligence in the use of dangerous materials and the neglect of the most simple precau- tious to guard against the accident. Jamieson y. Steel.— 29th January, 1878. 5. Elevator — Negligence of emplo3'ee — Accident to one of tenants of building — Liability of landlord — Damages — Art. 1054, C. C. See DAMAGES, 49'. G. Lease— Accident by fire— Arts. 10o3, 1G27, IG.yj, C.C. By a notarial lease the respondents (leasees) covenanted to deliver to the appellant (lessor) certain premises in the city of Montreal at the expiration of their lease "in as good order, state, etc., as the same were at the commence- ment thereof, reasonable wear and tear and accidents by fire excepted." Subsequently, the appellant alleging the fire had been caused by the negligence of the respondents brought an action against them for the amount of the cost of reconstructing the premises and restoring them in good order and condition less the amount received from insurance. Held, aflirming the judgment of the Court of Queen's Benc\i for Lower Canada (appeal side), Ritchie, C.J. and Taschereau, J., dissenting, that the respondents were not responsible for the loss, as the fire in the present case was an accident by fire within the terms of the exception contained in the lease, and therefore Articles 1053, 1G27 and 1629, C. C. were not applicable. Evans v. Skelton.— xvi. 087. 7. Eviction — Entry by lessor to repair — Intent — Sivspension of rent — Gonstructton of lease. A lease of business premises provided that the lessor could enter upon the premises for the purpose of making certain repairs and alterations at any time within two months after the beginning of the term, but not after, except with the consent of thn'lessee. An action for rent under the lease was resisted on the ground that the lessor had been in possession of part of the premises after the specified time without the necessary consent whereby the tenant had been deprived of the beneficial use of the property and had been evicted there- from. On the trial the jury found that no consent had been given by tlie lessee for such occupation and that the lessee had no beneficial use of the premise- while it lasted. 4G7 Landlord and Tenant — Continued. Held, per Tascliereau, Gwynne and Patterson, JJ., reversing the judgment of the court helow, 1. that the evider did not justify the finding of no assent ; that an express consent was not required, but it could be inferred from the acta and conduct of the lessee. 2. The two months' limitation in the lease had reference to the entry by the lessor to commence the repairs and not to his subsequent occupation of the premises, and the lessor having entered upon the premises withili the pre- scribed period he had a reasonable time to complete the work and his subsequent occupation was not wrongful. Per Tascliereau and Gwynne, JJ., that assuming assent was necessary the evidence clearly showed that the lessor was on the premises after the Ist of July with the assent of the lessee; he had a right, therefore, to remain until such assent was revoked, which was never done. Per Patterson, J., that interference by a landlord with his tenant's enjoy- ni-'nt of demised premises, even to the extent of depriving the tenant of the use of a portion, does not necessarily work an eviction ; a tenant may be deprived of the beneficial occupation of the premises for part of his term, by an act of the landlord which is wrongful as against him, but unless the act was done with the intention of producing that result it would not work an eviction. Per Ritchie, C.J. and Strong, J., approving the judgment of the court below, that the jury having negatived consent by the lessee, and the evidence showing that the acts of the landlord were of such a grave and permanent character as to indicate an intention to deprive the tenant of the beneficial enjoyment of a substantial part of the premises, they amounted to an eviction of the tenant which operated as a suspension of the rent. Ferguson y. Troop.— xvii. 527. 8. Creation ol: tenancy by mortgage — Demise to mortgagor, con- struction of — Rent reserved — Intention to create tenancy. See MORTGAGE, 28. 9. Verbal lease — Expiration of — Notice to quit — Sub-tenancy — Possesnion by sub-tenant after expiry of original lease. M. by verbal agreement leased certain premises to McC. who sub-let a portion thereof. After the original tenancy expired, on November 15th, 1887, the sub-lenant remained in possession and in March, 1888, received a notice to quit from M. In June, 1888, M. issued a distress warrant to recover rent, due for said premises from McC. and the sub-tenant paid the amount claimed as rent due from McC, but not from herself to McC. More than six months after the notice to quit was given proceedings were taken by M. to recover possession of tlie premises from the sub-tenant. 468 Landlord and Tena.nt—C(intiniu'd. Held, that tlie notice to quit ^ivcn to the Rub-tenant, ami the distress during the latter's possession on sufferance, did not work estoppel a-jainst the landlord as the tenancy had always been repudiated. (Fournier, J., dissenting,. Gilmoup Y. Magee.— xviii. 57'.». 10. Lessor ami Lessee — Covenant for renewal — Option of lessor — Second term — Possession by lessee after expiration oftcrui — Effect of — Specific performance. A lease for a term of years provided that when the term expired any buildinfjs or improvemements erected by the lessees should be valued and it should be optional with the lessors either to pay for the same or to continue the lease for a further term of like duration. After the term expired the lessees remained in possession for some years when a new indenture was executed which recited the provisions of the original lease and, after a declara- tion that the lessors had ajjreed to continue and extend the same for a further term of fourteen years from the end of the term granted thereby at the same rent and under the like covenants, conditions and agreements as were expressed and contained in the said recited indenture of lease, and that the lessees had agreed to accept the same, it proceeded to grant the further term. This last mentioned indenture contained no independent covenant for renewal. After the second term expired the lessees continued in possession and paid rent for one year when they notified the lessors of their intention to abandon the premises. The lessors refused to accept the surrender and after demand of further rent, and tender for execution of an indenture granting a furthei term, they brought suit for specitic performance of the agreement implied in the original lease for renewal of the second term at their option. Held, affirming the judgment of the Supreme Court of N. 13. (28 N. B. Eep. 1) Ritchie, C.J. and Taschereau, J., dissenting, that the lessors were not entitled to a decree for specitic performance. Held, per Gwynne, J., that the provision in the second indenture grantint; a renewal under the like covenants, conditions and agreements as were con- tained in the original lease, did not operate to incorporate in said indenture tlie clause for renewal in said lease which should have been expressed in an independent covenant. Per Gwynne, J. Assuming that the renewal clause was incorporated in the second indenture the lessees could not be compelled to accept a renewal at the option of the lessors, there being no mutual agreement therefor ; if they could the clause would operate to make the lease perpetual at the will of the lessors. Per Gwynne and Patterson, J J. The option of tho lessors could only be exercised in case there were buildings to ha valued erected during the term granted by the instrument containing such clause ; and if the second indenture was subject to renewal the clause had no effect as there were no buildin>.s erected during the second term. 469 Landlord and Tena.nt— Co ntimuil. Per Gwynne, J. The renewal clause was inoperative under the statute of frauds which makes leases for three years and upwards, not in writing, to have the effect of estates at will only, and consequently there could be no second tsrm of fourteen years granted except by a second lease executed and signed by the lessors. Per Ritchie, C.J. and Taschereau, J. The occupation by the lessees after the terms expired must be held to have been under the lease and to signify an intention on the part of the lessees to accept a renewal for a further term as the lease provided. Present :— Sir W. J. Ritchie, C.J. and Strong, Taschereau, Gwynne and Patterson, J J. Sears v. The Mayor, &c. of the City of St John.— xviii. 702. 11. Arts. 857 & 887, C. C. and Art. 1G24, C. C. P.— Jurisdiction- Title to land— S. & E. C. Act, R. S. C. c. 135, s. 29 (h.). See JURISDICTION, 83. 12. Action to recover possession by landlord — Amount claimed — Jurisdiction of court— Arts. 887, 888, C C. See PRACTICE, 34. • LEASE. MINES AND MINERALS. Land Owners. — Liabilities and rights of, adjoining. See DAMAGES, 20. Larceny.' Sec CRIMINAL APPEAL, 3. Lease. — Cancellation of — Renderinfj of account — Art. 10, C. C.P. L.G. S. on the let August, 1868, transferred to appellants (plaintiffs), as trustees of S.'ti creditors, his interest in an unexpired lease he had of a certain hotel in Montreal, known as the Bonaventure building, and in the furniture. On the 1st April, 1870, A. P., the proprietor, after cancelling, with the consent of all concerned, the several leases of the said building and premises, gave a lease direct for a term of ten years to one G., at ftG.OOO a year, of the building, and also of the furniture belonging to S.'s creditors, and on the same day by a notarial deed, " agreement and accord," A. P. promised and agreed to pay to appellants, as trustees of S.'s creditors, whatever he would receive from the tenant beyond 95,000 a year. In February, 1873, the premises were burned, with a large proportion of tlie furniture, and appellants i-eceived $3,223 for insurance on fixtures and furniture, and J7')l, being the proceeds of sale of the 470 Lease — Continued. balance of the furniture saved. The lease with O. was then cancelled, and A. P., after expending a large amount to repair the building, leased the premises to L. P. & Co. for $6,000 a year from October, 1873. Appellants thereupon, as trustee's of S.'s creditors, sued respondents representinj^ A. P., and called upon them to render an account of the amount received from G. and L. P. & Co. above $5,000 a year. The Superior Court at Montreal held that the appellants were entitled to what A. P. had received from L. P. & Co. beyond $5,000 ; and on appeal to the Court of Queen's Bench (appeal side) this judgment was reversed. Held, 1. AflSrming the judgment of the Court of Queen's Bench (appeal side), that the lease to G. terminated by a force mnjcure, and that the obliga- tion of A. P. to pay appellants the sum of $1,000 out of the said rent of 10,000 ceased with the said lease. 2. That the fact of appellants having alleged themselves in their declara- tion to be the " duly named trustees of S.'s creditors," did not give them the right to bring the present action for S.'s creditors, the action, if any, belonging to the individual creditors of S. under Art. 19, C. C. P. L. C. [But see Porteons v. Beynar, 13 App. Cases 120. See also Assiijnment, 6, and Trusts and Trustees, 15.] Browne v. Pinsonneault.— iii. 102. 2. Of pew. See PEWHOLDER. 3. Liability of lessee for fire. Sec LANDLORD AND TENANT, 4. 4. Mining lease, application for — Right of entry — Conditions pre- cedent — Conflicting titles to land. Sec MINES AND MINERALS. 5. Written instrument — Construction of — Lease or license — Authority to work — S Anne c. 14, s. 1. In an indenture describing the parties as lessor and lessees respectively the granting part was as follows : " Doth give, grant, demise and lease unto the said (lessees) the exclusive right, liberty and privilege of entering at all times for and during the term of ten years from 1st January, 1879, in and upon (describing the land) and with agents, labourers and teams to search for, dig, excavate, mine and carry away the iron ores in, upon and under said premises, and of making all necessary roads, etc., also the right, liberty and privilege to erect on the said premises the buildings, machinery and dwelling houses required in the business of mining and shipping the said iron ores, and to deposit on said premises all refuse material taken out in mining said ores." There was a covenant by the grantees not to do unnecessary damage and a 471 Lease — Continued. provision for taking away the erections made and for the use of timber on the premises and such use of the surface as mi^ht be needed. The grantees agreed to pay twenty-five cents for every ton of ore mined, in quarterly payments on certain fixed days, and it was provided how the quantity should be ascer- tained. It was also agreed that the royalty should not be less than a certain sura in any year. The grantees also agreed to pay all taxes and not to allow intoxicating drinks to be manufactured on the premises or carry on any busi- ness thiit might be deemed a nuisance. There were provisions for terminating the lease bjfore the expiration of the term and covenant by the lessor for quiet enjoyment. In an interpleader issue, where the lessor claimed a lien on the goods of the lessees for a year's rent due under the said indenture by virtue of 8 Anne, c. 14, s. 1 : Ho.ld, ^)t'r Ritchie, C.J., and Henry and Taschereau, JJ., that this instru- ment A as not a lease but a mere license to the grantee to mine and ship the iron ores, and the grantor had no lien for rent under the statute. Strong, Fournier and Gwynne, JJ., contra. Lynch v. Seymour.— xv, 341, 6. Mining lease — Covenants — Liability/ to pay rent — Quantity and quality of ore found — Rigid of lessee to determine lease. In a lease of mining lands the reddendum was as follows : — " Yielding and paying therefor unto the party of the first part one dollar per gross ton of twenty-two hundred and forty pounds of the said iron, stone or ore for every ton mined and raised from the said lands and mine, payable quarterly on the first days of March, June, September and December in each year." The lease contained, also, the following covenant? by the lessee : — " The parties of the second part for themselves, their executors, etc. , covenant and agree to and with the party of the first part, her heirs, etc., that they will dig up and mine and carry away, in each and every year during the said term, a quantity of not less than two thousand tons of such stone or iron ore for the first year, and a quantity of not less than five thousand tons a year in every subsequent year of the said term, and that they will pay quarterly the sum of oue dollar per ton as aforesaid for the quantity agreed to be taken during each year for the term aforesaid." " And the said parties of the second part covenant and agree to and with the party of the first part that they will pay the said quarterly rent or royalty in each year, and if the same shall then exceed the quantity actually taken, such excess shall be applied towards pay- ment of the first quarter thereafter, in which more than the said quantity shall be taken, and that they will protect such openings as they shall make so as to insure the same against accident, and will indemnify the party of the first part in the event of the same happening and against all costs of prosecu- tion and defence thereof." There was a provision that the lessor should be at liberty to terminate the lease in case of non-payment of rent for a certain period, and if the iron ore or iron stone should be exhausted, and not to be found or obtained by proper 472 Lease — (^^ontinucd. and reasonable effort in paying quantities, then the lessee should be at liberty to determine the lease. Held, affirming the judgment of the Court below, Ritchie, C.J. and Fournier, J., dissenting, that this lease contained an absolute covenant by the lessee to pay the rent in any event, and not having terminated the lease under the above proviso, he was not relieved from such payment in consequence of ore not b jing found in paying quantities. Palmer n. Wallbridge.— xv. GoO. 7. Covenant — Care of premises — Accident by fire — Liability of lessee. See LANDLOKD AND TENANT, 0. 8. Of minin<^- riglits — Option of locatin< — Trouble de droit. By agreement between the G. N. W. Telegraph Co. and the M. Telegraph Co., the G. N. W. Telegraph Co. undertook for a period of 97 years, from the Ist July, 1881, to work, manage and operate the system of telegraph lines owned and operated by the M. Telegraph Co., including telegraph lines erected along the South Eastern Ry. and other railways, and to pay the M. Telegraph 47.S Lease — Cuntinuiil. Co. quarterly during the arrangement a sum equal to the diviilend tit .s p c. upon the capital of the M. Telegraph Co. (J2 ,000,000), with the further yearly sum of $5,000 to meet office expenses. The G. N. W. Telegraph Co. by their action averred that they had been troubled in their enjoyment of the system of telegraph lines by the C. V. R. Ry. Co. which had constructed and were operating lines of telegraph along the South Eastern and other railways in contravention of the agreements made by such railways with the M. Telegraph Co. The G. N. W. Telegraph t.'o. therefore claimed a reduction of rent and damages under the lessor's and lessee's articles of the code of C. F. and Art. 1012, and following of the Civil Code. Held, affirming the judgment of the Superior Court for L. C. and the (Jourt of Q. B. for L. C. (appeal side), and adopting the reasons for judgment of Wurtele, J., of the Superior Court (M. L. H., G S. C, iU), that the alleged interference by the C. P. Uy. Co. was a mere trespass which did not constitute a trouble de droit and did not authorize an action for a reduction of rent under Arts IGKJ & 1G18, C. C. Held, also, ;)(')• Strong, Fournier, Taschereau and Patterson, JJ., adopting the view of the merits taken by Dorion, C.J., in the Q. 15. (M. L. E. fi Q. B. 258), that the G. N. W. Telegraph Co. by the agreement having assumed all risk of diminished income in the working of the telegraph lines transferred to them and having entered into the agreement after the C. P. Ry. Co. had obtained authority from Parliament to establish telegraph lines for the transmission of messages for the public, the action should be dismissed. The Great North Western Telegraph Co. v. The Montreal Telegraph Company. — .\x. 170. 14. Action to recover possession — Amount claimed — Jurisdiction f)F court— Arts. 887, 888, C. C. See PRACTICE, 34. l.j. Toll Company — Lease of tolls — Collector — Liability of conip.any for negligence. See NEGLIGENCE, 37. Legatee — Universal — Particular — Liability. See WILL. 8. Legislature — British North Anierica Act, 1SG7, .s-s. i4 of h. f).',\ Held, that the exclusive power of legislation given to Provincial Legis- latures by s-s. 14 of s. 92, B. N. A. Act, over procedure in civil matters, means procedure in civil matters within the powers of the Provincial Legislatures. Valin Y. Langlois.— iii. 1. 474 Legislature—' '<>ntinufj in cases when such adjudication is indispensable to the decision of a cause, to pronounce upon the constitutional power of a Lejjislature to pass a statute, there was no necessity in this case to express an opinion upon the validity of tlie Acts in question. Lenoir v. Ritchie.— iii. o75. 5. Insui'unce — Jarmliction of Local Leg islaf are over subject-mat- ter of insurance — British North America Act, 1SG7, ss. 91 ct 92 — Statutory comiitions — R. S. 0. c. 162 — What condi- tions applicable tvhen statutory conditions not printed on the 2wlicy. The Citizens' Insurance Company, a Canadian company, incorporated by an Act of the Parliament of Canada, since the passing of R. S. O. c. 162, issued, in favour of P., a policy against tire which had not endorsed :ipon it the statu- tory conditions (R. S. O. c. 1(52), but had conditions of its own, which were not printed as variations in the mode indicated by the Act. The Queen Insurance Company, an English company, carrying on business under an Imperial Act, isiiued in favour of P., after the passing of R. S. O. c. 102, an hiterim receipt for insurance against fire, subject to the conditions of the company. The Western Assurance Company, a Canadian company, incorporated by the Par- liament of Canada before Confederation, issued a policy of insurance against fire in favour of J., the conditions of the policy, which were different from those contained in R. S. O. c. 162, not being added in the manner required by the statute. The three companies were authorized to do fire insurance busi- ness throughout Canada by virtue of a license granted to them by the Minister of Finance, under the Acts of the Dominion of Canada relating to fire insur- ance companies. The properties insured by these companies were all situated within the Province of Ontario, and being subsequently destroyed bj' fire, actions were brought against the companies. The Supreme Court of Canada, after hearing the arguments in the three cases, delivered but one judgment. Held, that "The Fire Insurance Act," R. S. O. c. 162, was not ultri vires and is applicable to insurance companies (whether foreign or incorporated by the Dominion) licensed to carry on insurance business throughout Canada, and taking risks rn property situate within the Province of Ontario. 2. That the legislation in question, prescribing conditions incidental to insurance contracts, passed in Ontario, relating to property situate in Ontario, was not a regulation of trade and commerce within the meaning of these words in s-s, 2, s. 91, B. N. A. Act. H. That an insurer in Ontario who has not complied with the law in (jnestion, and has not printed on his policy or contract of insurance tlie statu- tory conditions in the manner indicated in the statute, cannot set up against 477 Legislature— '"'(<(■» »t'(/. the insured his own conditions or the statutory conditions, the insured alone, in such a case, is entitled to avail himself of any statutory condition. (Taschereau and Gwynne, JJ., dissenting.) Per Taschereau and Gwynne, JJ. — That the power to le^^islate upon the subject-matter of insurance is vested exclusively in the Dominion Parliament by virtue of. its power to pass laws for the regulation of trade and commerce under the Dlst section of the B. N. A. Act. 'On appeal to the Privy Council, the judgment of the Supremo Court re- specting the validity of the provincial statute was affirmed; the judgment of the Supreme Court on the merits was reversed : 7 App. Cases, '.JO. The Citizens', etc., Ins. Co. v. Parsons.— iv. 215. (). Escheat— The Escheat Act,R. S. 0. c. 94, diva >:lrc><—B. N. A. Act, ss. 01,0.2, 102 & 109. On an information filed by the Attorney-General of Ontario, i'or the pur- pose of obtaining possession of land in the city of Toronto, which was tlie property of one Andrew fiercer, who died intestate and without leaving any heirs or next of kin, on the ground that it had escheated to the Crown for the benelit of the Province, and to which information A. M,, the appellant, demur- red for want of equity, the Court of Chancery hold, overruling the demurrer, that the Escheat Act, c. 94. R. S. O. was not ultra vires, and that the escheated property in question accrued to the benefit of the Province of Ontario. From this decision A. F. appealed to the Court of Appeal for Ontario, and that court affirmed the order overruliug the said demurrer and dismissed the appeal with costs. On an appeal to the Supreme Court the parties a<'reed that the appeal should be limited to the broad question, as to whether the Government of Canada or the Province is entitled to estates escheated to the Crown lor want of heirs. Held, Ritchie, C.J. and Strong, J., dissenting, that the Province of Ontario does not represent Her Majesty in matters of escheat in said Province, and therefore the Attorney-General for Ontario could not appropriate the property escheated to the Crown in this case for the purposes of the Province, and that the Escheat Act, c. 1)4, R. S. O. was ultra vires. Per Fournier, Taschereau and Gwynne, JJ. — That any revenue derived from escheats is by s. 10'2 of the B. N. A. Act placed under the control of the Parliament of Canada as part of the Consolidated Revenue Fund of Canada, ai.d no other part of the Act exempts it from that disposition. [On appeal to the Privy Council the judgment of Hie Supreme Court was reversed: 8 App. Cases, 7()7.] Mercer y. The Attorney-General for Ontario.— v. oBS. 47 cS Legislature — Ccntmuid. 7. Taxation — Gonsti.tational laiv — Tax vpon filings in court — In- direct tax — Jarixdiction of Provincial Le'/islaticre — -f > (& U V. c. 9, .^. 0, (Q.). By the Quebec Act, 43 & 44 V. c. 9, s. 9, it is enacted that " A duty of ten cents shall be imposed, levied and collected on each promissory note, receipt, bill of particulars and exhibit whatsoever, produced and filed before the Superior Court, the Circuit Court, or the Magistrates' Court, such duties pay- able in stamps." The Act is declared to be an amendment and extension of the Act 27 it 28 V. c. 5, " An Act for the Collection by Means of Stamps, of Office Dues and Duties, payable to the Crown upon Law Proceedings and Kc<,'is- trations." By s. 3, s-s. 2, the duties levied are to be " deemed to be payable to the Crown." The appellant obtained a rule nisi against the prothonotaries of the Superior Court at Montreal for contempt in refusing to receive and file an exhibit unaccompanied by a stamp, as required by the Act. Upon the return Oi the rule the Attorney-General for the Province obtained leave to intervene and show cause. Held, reversing the judgment of the Court of Queen's Bench for Lower Canada, (appeal side) Strong and Taschereau, JJ., dissenting, that the Act im- posing the tax in question was ultra vireg, the tax being an indirect tax and the proceeds to form part of the Consolidated Kevenue Fund of the Province for general purposes. Per Strong and Taschereau, JJ., dissenting. — Although the duty is an in- direct tax, yet, under ss. fio, 120 & 129 of the B. N. A. Act, the Provincial Legislature had power to impose it. Reed v. Mousseau.— viii. 403. [On appeal to the Privy Council, the judgment of the Supreme Court was afBrmed. See Attorney-General of Quebec v. Reed, 10 App. Cases, 141.] 8. Provincial — Powerft of — Ohstriictions in tidal and navigahlr. rivers— 4-5 V. c. 100, {N. B.), xdtra vires— B. K A. Act, 1S07, S.91. Professing to act under the powers contained in their Act of incorpora- tion, 45 V. c. 100, (N. B.), the Q. R. B. Co. erected booms and piers in the Queddy River which impeded navigation — the Zooms being iu that part of the river which is tidal and navigable. Held, that the Provincial Legislature might incorporate a boom company, but could not give it power to obstruct a tidal navigable river, and therefore the Act 45 V. c. 100, (N. B.), so far as it authorized the acts done by the com- pany in erecting booms and other works in the Queddy River obstructing its navigation, was iiltrci vires of the New Brunswick Legislature. Queddy River Driving Boom Co. v. Davidson.— x. 222. 479 Legislature — ( 'ontinuetl. !). Xova ,S(:otiu — Lef/islative AssemlAy of — Power of jni.nish ing for contempt — Removal of a Member from his seat h)/ Sergeant- at-Arms — Action of trespass for assault ayuinst Speaker and Members — Damages. W., a member of the House of Assembly of the Province of Nova Scotia, on the 16th of April, 1874, charged the then Provincial Secretary, without being called to order for doing so, with having falsified a record. The charge was subsoquent'.y investigated by a committee of the House, who reported that it was unfounded. Two days after the House resolved, that, in preferring the charge without sufficient evidence to sustain it, V/. was guilty of a breach of privilege. On the 30th April, W. was ordered to make an apology dictated by the house, and, having refused to do so, was declared, by another resolution, t^uilty pf a contempt of the House, and requested forthwith to withdraw until such apology should be made. W. declined to withdraw, and thereupon ano- ther resolution was passed ordering the removal of the said W. from the House by the Sergeant-at-Arms, who, with his assistant, enforced such order and re- moved W. W. brought an action of trespass for assault against the Speaker and certain members of the House, and obtained a verdict of #600 damages. Held, on appeal, affirming the judgment of the Supremo Court of Nova Scotia, that the Legislative Assembly of the Province of Nova Scotia has, in tlie absence of express grant, no power to remove one of its members for con- tempt, unless he is actually obstructing the business of the Houf»8 ; and W. having been removed from his seat, not because he was obstructing the busi- ness of the House, but because he would not repeat the apology required, the defendants were liable. Kielley v. Carson, i Moore P. C. C. G3, and Doijle v. Falconer, L. E. 1 P. C. App. 328, commented on and followed. Landers v. Woodworth.— ii. 158. 10. Police regulations — 4^ & JfS V. c. 4, s. 1 (Q)., construction of — Prohibition, wirit of — Sale of liquors. Under the authority of the Act of the Legislature of Quebec, 42 & 43 V. c. 1, 8. 1, a penal suit was, on the 20th of January, 1880, instituted against P. in the name of the corporation of Q., before the Recorder's Court of the city of Q., alleging that "on Sunday, the 18th day of January, 1880, the said defendant has not closed, during the whole of the day, the house or building in which he, the said defendant, sells, causes to be sold, or allows to be sold, spirituous liquors by retail, in quantity less than three half pints at a time, the said house or building situate, etc." P. was convicted. A writ of prohi- bition,to have the conviction revised by the Superior Court, was subsequently issued, and upon the merits was set aside and quashed. Held, i^ec Ritchie, C.J. , and Strong and Fournier.^J. — That the pyovisiona of tlie Provincial Statute, 42 & 43 V. c. 4, ordering houses in which spirituous liquors, etc., are sold, to be closed on Sundays, and every day between eleven o'clock of the night until five of the clock of the morning, are police regula- tions, within the power of the Legislature of the Province of Quebec, and as 480 Legislature — ' 'ontinuid. the complaint was clearly withiii the Act, the recorder could not be interfered with on prohibition. Per Henry, Taschereau and Gwynne, JJ. — That the penalty imposed upon P. by the recorder was not authorized by the statute, even if such statute was intra riren of the Provincial Legislature, and that the prohibition was therefore rif'htly granted. The court being equally divided, the appeal was dismissed without costs. Poulin Y. The Corporation of Quebec— ix. 185. 11. Ontario Judicature Act, liSSl, s. -i.'i — Con.stitutionality of. See JURISDICTION, 25 & 72. 12. Provincial Legidatures — Poiver to lec/idate respecting pro- cedure and residence of judges — B. X. A. Act, s. 02, s-s. IJf — Delegation of poiver to Lieutenant-Governor in Council '' Judicial District Act, 1S79," {B.C.) — '-Better Administra- tion of Justice Act, 187S" 13 V. c. .?0 (B.C.)— Act to amend same ii V. c. IJ (B.C.) The case respecting the status of the Supreme Court of British Columbia, and the power of the Legislature of the Province to legislate in regard to procedure in that court, and the residences of the judges thereof referred to the Supreme Court of Canada for h'iaring and consideration by His Excel- lency the Governor General in Council under the provisions of section 52 of the Supreme and Exchequer Court Act by Order in Council bearing date the 15th day of May, 1883. 1st Question : Is the Supreme Court of British Columbia a provincial court within the meaning of the 14th sub-section of section 92 of the British North America Act ? Opinion : The Supreme Court of British Columbia is a provincial court within the meaning of the 14th sub-section of section 1)2 of the British North America Act. 2nd Question : Has the Legislature of the Province exclusive legislative authority over the procedure in all civil matters in the Supreme Court of the Province ? If not, to what extent has it such authority ? Opinion : The Legislature of the Province has exclusive legislative authority over the procedure in all civil matters in the Supreme Court of -he Province which come within the legislative jurisdiction of the Provincial Legislature. 3rd Question : If that Legislature can make rules to govern the pro- cedure of that court, can it delegate this power to the Lieutenant-Governor in Council? Opinion : The Legislature can make rules to govern the procedure of that court in all such matters as limited by the preceding answer, and can delegate this power to the Lieutenant-Governor in Council. 4ain8t II. Held, per Ritchie, C.J., and Strong, Fournier and Henry, JJ., that the Quebec License Act and its amendments were intra vin'n, and that the court of Special Sessions of the Peace of Montreal having jurisdiction to try the alleged offence and being the proper tribunal to decide the questions of fact and law involved, a writ of prohibition did not lie. Per Taschereau and Gwynne, JJ., that the case was one which it was proper for the Superior Court to deal with by proceedings on prohibition. Per Gwynne, J. — The Quebec License Act of 1878 imposes no obligation upon brewers to take out a provincial license to enable them to sell their beer, and therefore the Court of Special Sessions of the Peace had no jurisdiction and prohibition should issue absolutely. Molson V. Lambe. — xv. 253. See LEGISLATUEE, 10 A 13. 15. 39 V. c. 52 (P.Q.) — Gonstitiitionality of — By-laxv — Ultra viren — Taxation of ferry boats — Jurisdiction of Harbour Com- missioners — Injunction. By 39 V. c. 52, s. 1, s-s. 3, the city of Montreal is authorized to impose an annual tax on "ferrymen or steamboat ferries ; " under tlie authority of the said statute the corporation of the city of Montreal passud a by-law imposing an annual tax of ?200 on the proprietor or proprietors of each and every steamboat ferry conveying to Montreal for hire travellers from any place not more than nine mile distance from the same, and obtained from the Recorder's Court for the city of Montreal a warrant of distress to levy upon tlie appellant company the said tax of $200 for each steamboat employed by them durini; the year as ferry-boats between Longueuil and Montreal. In an action brought by the appellant company, claiming that the provincial statute was xtHra vires of the Provincial Legislature and that the by-law was tiUra vires of the corporation, and asking for an injunction, it was Held, affirming the jurtgment of the court of Queen's Bench, Montreal, that the Provincial legislation was intra vires. 2. Reversing the judgment of the court below, that the by-law was ultra vires, as the words used in the statute only authorize a single tax on the owner of each ferry, irrespective of the number of boats or vessels by means of whicli the ferry should be worked. 3. Affirming the judgment of the court below, that the jurisdiction of tha harbour commissioners of Montreal within certain limits does not exclude the right of the city to tax and control ferries within such limits. Longueuil Navigation Co. v. The City of Montreal.— xv. 666' 483 Legislature — ( 'mitiininl. 16. Netv Brans^cick Liquor License Act, l,'ui9he(l. Pigeon Y. Recorder's Court. — .wii. l',)5. 19. 47 V. c. 81 (Q.), inipo.sin<]f a tax on wholesale li(|uor dealers, held intra vires of the lie^islature of Quebec by the Superior Court and Court of Queen's Bench. No api)eal o.i this (juestion wa.s taken to Supreni* Court which held it had no jurisdiction to entertain the appeal on the other (juestion raised, viz., the validity of the by-law passed in pursuance of the Act so far as it imposed a tax on compounders and bottlers of spirituous li(|Uors, the court of Queen's Bench on this question havinj^f held the by-law invalid as not under the powers given by the statute. — xviii. 594. See JURISDICTION, 70. 20. Constitutional law—B. iV. A. Act, ss. 01 d: 92 — Intcresf— Legislative aathority over — Miinicipal Act — 40 V. c. 52, s. (J.JO; 50 V. c. 10, s. .f? ( Man.)— Taxation— Penalty for not paying taxes — Additional rate. The Municipal Act of Manitoba provides that persons payint, by depriving Catholics of the right to have their children taught according to the rules of their church, and by compelling them to contribute to the support of schools to which they could not conscientiously send their children, pre. judicially affected rights and privileges with respect to their schools which they had by pnictice in the province at the union, and was ultra viri:-< of the legislature of the province. Ex parte Renaud [1 Pugs. (N.B.) 273] dis- tinguished. Barrett v. The City of Winnipeg.— xix. 37^. [On appeal to the J. C. of the Privy Council this judgment was reversed and the judgment of the Court of Q. B. of the Province of Manitoba restored. See (181)2) A. C. 445 ; Gl L. ,J. 58 ; 07 L. T. 4'2'.).] 22. Grant of foreshore of liarbour by local government — Convey- ance by grantee — Claim of dower by wife of grantee — Plea that grant void — Estoppel — Act of local legislature confirm- ing title should be pleaded — Crown not expi'essly named. See ESTOPPEL, 19. 23. Constitutional law — Administration of justice — Constitution of provincial courts — Poivers of Federal Government — Appointment and i^ayment of judges— B.N. A. Act, s. 93, 8-s. 14. The power given to the Provincial Governments by the B. N. A. Act, a. 92, B-8. 14, to legislate retjarding the constitution, maintenance, and organization 486 Legislature— '""».nd autliorities of a County Court judjje in the said district ; provided, however, the said judjje so actinj^ out of his district shall immediately thereafter report in writing; to the Provincial Secretary the fact of his so doinj^ and the cause thereof." and by ii'.i V. c. 8, s. !( (B.C.), it is enacted that " Until a County Court judge of Kootenay is appointed, the judf,'e of the County Court of Yale shall act as and perform the duties of the County Court judf,'e of Kootenay, and shall, while so actiiij.', whether sittiuf^ in the County Court district of Kootenay or not. have, in respect of all actions, suits, matters, or proceeding's heinf^ carried on in the County Court of Kootenay, all the powers and authorities tliat the jud^^e of the County Court of Kootenay, if ai)pointe'l and acting; in the said district, would have possessed in respect of such actions, suits, matters, and proceedin^js ; and for the purpose of this Act, but not further, or otherwise, the several districts as defined by ss. 5 & 7 of the County Courts Act, over which the County Court of Yale and the County Court of Kootenay, respectively, have jurisdiction, shall be united." Held, that these statutes were intra I'ircs of the Legislature of British Columbia under the said section of the B. N. A. Act. By the Dominion statute, 51 V. c. 47, The Speedy Trials Act, jurisdiction is given to " any judge of a County Court," among others, to try certain criminal offences. Held, that this expression, "any judge of a County Court," in such Act means any judge having, by force of the Provincial law regulating the consti- tution and organization of County Courts, jurisdiction in the particular locality in which he may hold a " speedy trial." The statute would not authorize a County Court judge to hold a " speedy trial" beyond the limits of his territo- rial jurisdiction without authority from the Provincial Legislature to do so. Held, also, that The Speedy Trials Act is not a statute conferring juris- diction, bat is an exercise of the power of Parliament to regulate criminal procedure. 'Held, per Taschereau, J. — It is doubtful if parliament had power to pass those sections of 54 <& 65 V. c. 25, which empower the Governor-General in Council to refer certain matters to the Supreme Court for an opinion. Referred by Governor General in Council. Re County Court Judges of British Columbia, -Dec. 13, 1892-xxi. 446. 4M7 Legislature— C"/(//«H('/. ^i. lief even ct' by lidilwtiy Comhiittce of the Piny (Joancil for Canada, under ••*. 10 of f/w. R88uiii^ the letters patent, and of investigating and passing judgment upon the claimH tlierefor : or when sucli trewpaHHer, or any person claiming uniler him, lias not made any application for letttTH patent; or when hiicIi an application has been made and refused without any express determination of the otVicials refusing,' the application, or any record having been made of tlio application liavin^ been made or rejected. •1. I'er Patterson, J. In the construction of the statute ofToct must bo j^iven to the term improvidence as meaniiij^ somethiiit! distinct from fraud or error ; letters patent may, therefore, be helil to have b«'en infiued imi)rovidontIy if issued in i({norancoof a substantial claim by persons other than the patentee to the land which, if it luid been known, would have bjen investigated and passed upon before the patent issued ; and it is not tlio duty of the Court to form a definite opinion as to the rehitivo strength of opposinj^ claims. 5. Semhlf per (Iwynne, J. There in nr) sound reason why tlio Government of the Dominion should not bo bound by the judgment of a court of justice in a suit to which the Attorney-General, as representinj,; the Government was a party defendant, eijually as any individual would be, if the relief prayed by the information is souf^jht in tiie same interest and upon the same grounds as were adjudicated upon by the judgment in the former suit. Fonseca v. Atty. Gen. of Canada.— xvii. C12. Libel. — Telefji'((2.h mcsxnge — LiabUlfi/ of tdegniph company — Special d(un((fjes — Inaditiisxibillty of evidence as to, when not alleged — Excessive damages, S. et III. (respondents) partners in trade, sued the D. T. Co. (appellants) for defamation of the respondents in their trade. In the declaration it was alleged : 1. That they were wholesale and retail merchants at Halifax. That appellants wrongfully, falsely and maliciously, by means of their telegraph lines, transmitted, sent and published from tlieir ollice at Halifax to their office in St. John, and there caused to be printed, copied, circulated and published the false and defamatory message following; — "John Silver iS; Co., wholesale clothiers, of Grenville street, have failed; liabilities heavy." 2nd. That same message was caused also to be published in other parts of the Dominion. 3rd. That the appellants promised and agreed with the proprie- tor or publisher of the St. John " Daily Telegraph'" newspaper, and entered into an arrangement with him, whereby the appellants agreed to collect and transmit, by means of their telegraph Imes, news despatches to said news- paper from time to time, and that such publisher should pay for all such messages, and should publish them in his newspaper, and that in pursuance of said agreement the appellants wrongfully, maliciously, and by means of said telegraph, transmitted, sent and published from their office in Halifa.x to their office in St. John, and there falsely and maliciously caused to be written, printed, copied, circulated and published the above message, whereby many customers who had heretofore dealt with plaintiffs ceased to do so, and 490 Libel — Cautinui'il. their credit and business standing and reputation were thereby greatly dam- aged. The D. T. Co. denied the several publications charjjed, and also the entering! into this agreement mentioned in the third count and the forwarding of the messaj^es as alleged. .\t the trial it was proved that the telegram which was published in the morning paper was corrected in the evening edition, and that the publisher's agreement was with one Snyder, an ofiicer of the com- pany, to furnish him news at so much for every hundred words, but that he only paid for such as he used. The original despatch was not produced. The only evidence as to damage was the evidence of two witnesses, who proved that by reason of the publication they ceased to do business with the respon- dents as they had previously been accustomed to do. This evidence was objected to as inadmissible, but was received. The dealings of these witnesses with the plaintiffs consisted in selling their exchange and sometimes discount- ing their notes. The counsel for the defendants moved for a non-suit, which was refused, and the case was submitted to the jury, who, upon the evidence, rendered a verdict for the plaintiffs with #7,000 damai^es. On appeal to the Supreme Court of Canada, it was Held, Taschereau and Gwynne, JJ., dissenting, that the appellants, the D. T. Co., were responsible for the publication of the libel in question. Per Taschereau and Gwynne, JJ., dissenting. — Assuming the agreement in question to be one within the scope of the purposes for which the defend- ants were incorporated, and that Snyder had sufficient authority to enter into it on behalf of the defendant company, the evidence established that the defendants collected, compiled and transmitted the news for the proprietor of the newspaper, as his confidential agtmts and at his request, and that they were not responsible for the publication by the said proprietor and publisher of said news, for which the damages were awarded. 2. That the damages were excessive, and therefore a new trial ought to be granted. Kitchie, C.J., doubting, and Henry, J., dissenting. Held, also, per Strong, Taschereau and Gwynne, JJ. — No special damages having been alleged in the declaration, the evidence as to such damages having been objected to, was inadmissible, and therefore a new trial should be granted. Dominion Telegraph Company v. Silver. — x. 238. 2. On plaintiff as Commissioner of Expropriations. See MALICIOUS PROSECUTION. SLANDER. 3. Written — Lost MSS. — Proof of hand-writing — After-acquired knowledge — Change of signature. See EVIDENCE, 39. 491 Libnl — Continued. 4. Newspaj)er puhlication — Inn uenrhes — 2'rial of action — Direc- tion to jury — Coni^ideration of inmiendoes — Withdrawal of from jury — Effect of misdirection — Excessive damages. \V., a judge of the Supreme Court of B. C, brought an actio;^ a<;!ainst H., an editor, for a libel contained in the following article published in his paper: — "T}ik jMcNasike-jMitchkll Suit. In the sworn evidence of Mr. McNamee, defendant in the suit of McKenna v. McNainee, lately tried at Ottawa, the following passage occurs : ' Six of them were in partnership in the dry dock contract out in British Columbia, one of whom was the Premier of the Province.' The Premier of the Province at the time referred to was Hon. Mr. Wal^em, now a judge of the Supreme Court. Mr. Walkem's career on tlie bench has been above reproach. His course lias been such as to win for him the admiration of many of his old political enemies. But he owes it to himself to refute this charge. We foel sure that Mr. McNamee must be labouring under a mistake. Had the statement been made off the stand it would have been scouted as untrue ; but liaving been made under the sanctity of an oath it cannot be treated lightly, nor allowed to pass unheeded." The innuendoes alleged by the declaration to be contained in this article were : — 1. That W. corruptly entered into partnership with McNamee while holding oflices of public trust, and thereby unlawfully acquired large sums of public money. 2. That he did so under the cloak of his public position and by fraudulently pretending that he acted in the interest of the Government. 3. That he committed criminal offences punishable by law. 4. That he con- tinued to hold his interest in the contract after his elevation to the bench. Held, that the article was susceptible of the first of the above innuendoes, but not of the others which should have been, but were not, distinctly with- drawn from the consideration of the jury at the trial. — On the trial the jury found a verdict for the plaintiff, with $2,500 damages. Held, per Strong, Fournier, Taschereau and Gwynne, JJ., that the case was improperly left to the jury but the only prejudice sustained by the defendant thereby was that of excessive damages, and the verdict might stand on the plaintiff consenting to the damages being reduced to $500. Held, per Ritchie, C.J., that there had been a mistrial, and the consent of both parties to such reduction was necessary. Higgins Y. Walkem.— xvii. 225. 5. Mercantile Agency — Fa Ise in for^nation — Negl igence — Damages —Arts. 1063, 1054 and 1727, C. G. Persons carrying on a mercantile agency are responsible for the damages caused to a person in business when by culpable negligence, imprudence or want of skill, false information is supplied concerning his standing, though the information be communicated confidentially to a subscriber to the agency on his application therefor. Ooisette Y. Dun.— xviii. 222. 492 Libel — Con tin iied. 6. Provisions of Act relating to netvspaj^ei's — Coinpliance with — Special damages — Loss of custom — oO V. cc. '22 and 23 {Man.). By 8. 13 of 50 V. c. 22 (Man.), " The Libel Act," no persoii is entitled to die benefit thereof unless he has coniplierl with the provisions or 60 V. c. 23, " An Act respectinf^ Newspapers and other like Publications." By s, 1 of the latter Act no person shall print or publish a newspaper until an affidavit or affirma- tion made and sij^ned, and containinj; such matter as the Act directs, has been deposited with the prothonotary of the Court of Queen's Bench or Clerk of the Crown for the district in which the newspaper is published ; by s. 2 such affidavit or affirmation shall set forth the real and true names, etc,, of the printer or publisher of the newspaper and of all the proprietors ; by 8. (i if the number of publishers does not exceed four the affidavit or affirmation shall be made by all, and if they exceed four it shall be made by four of them ; and 8. 5 provides that the affidavit or affirmation may be taken before a justice of the peace or commissioner for taking the affidavits to be used in the Court of Queen's Bench. Held, 1. That 50 V. c, 23 contemplates, and its provisions apply to, the case of a corporation being the sole publisher and proprietor of a newspaper. 2. That 8. 2 is complied with if the affidavit or affirmation states that a corporation is the proprietor of the newspaper and prints and publishes the same. Gwynne, J., dissenting. 3. That the affidavit or affirmation, in case the proprietor is a corporation, may be made by the managing director. 4. That in every proceeding under s. 1 there is the option either to swear or affirm, and the right to affirm is not restricted to members of certain religious bodies or persons having religious scruples. 5. That if the affidavit or affirmation purports to have been taken before a commissioner his authority will be presumed until the contrary is shown. By 8. 11 of the Libel Act actual malice or culpable negligence must be proved in an action for libel unless special damages are claimed. Held, that such maliceor negligence must be established to the satisfaction of the jury, and if there is a disagreement as to these issues the verdict cannot stand. Held, further, that a general allegation of damages by loss of custom is not a claim for special damages under this section. Per Strong, J. — Where special damages are sought to be recovered in an action of libel, or for verbal slander where the words are actionable per se, such special damage must be alleged and pleaded with pdrticularity, and in case of special damage by reason of loss of custom the names of the customers must be given, or otherwise evidence of th>i special damage is inadmissible. Ashdown v. Manitoba " Free Press " Company. — xx. 43. 493 Libel — Continued, 7. Libel in neivfipapei' — Action for — Additional libel in iilea — Damages — Excessive — Con^ant to reduction of verdict or new trial. The plaintiff by his action claimed $10,000 diimagea for the publication of an article which appeared in the Toronto " Mail " on the 8th December, 1884. The defendants met the action by a plea which the plaintiff alleged contained an additional libel and he filed an incidental demand claiming a further con- demnation of $5,000 therefor. The case was tried before Mr. Justice Johnson and a jury and resulted in a verdict in favour of the plaintiff to the extent of t6,000 for the libel contain- ed in the newspaper, and of $4,030 for the additional libel contained in the defendants plea. The Court of Review granted the motion of the plaintiff for judfinient on tVie verdict and rejected a motion made by the defendants in arrest of judg- ment, for judfjment uon distnnte veredicto and for a new trial. The defendants thereupon appealed to the Court of Queen's Bench for Lower Canada (appeal side) which dismissed the appeal, the majority of the Court (Dorion, C.J. and Tellier and Cross, JJ.) beinf{ of opinion that the assessment of damages was peculiarly within the province of the jury and the damages in this case were not so excessive as to lead to the inference that the jury were led into error or actuated by improper motives. Baby and Church, JJ. dissented, being of opinion that the sum of $0,000 for the libel in the news- paper was excessive. The case is reported in M. L. E. 4 Q. B. at p. 84, where the libe's complained of and the other facts will be found set out. On appeal to the Supreme Court of Canada it was Held, that upon the respondent (plaintiff) consenting to reduce the verdict to fO.OOO, the appeal should stand dismissed without costs, the respondent to have his costs in the court below, and that in the event of the respondent not consenting to a reduction of the verdict there should be a new trial ; the respondent to signify his election by filing a consent to that effect with the llegistrar within ten days. The respondent filed the necessary conseut to a reduction of the verdict and judgment went accordingly. Present : Strong, Fournier, Taschereau, Gwynne and Patterson, JJ. The Mail Printing Co. y. Laflamme.— 5th February, 1889. 8. Personal attach on Attorney -General — Pleading — Rejection of evidence — Fair comment — General verdict — 2{eio trial. In an action for a libel contained in a newspaper article respecting cert:iin legislation the innuendo alleged by the phiintiff, the Attorney-General of the Province when such legislation was enacted, was that the article charged him with personal dishonesty. Defendants pleaded " not guilty" and that the article was a fair comment on a public matter. On the trial the defendants 494 Libel — Contimu'tl. put in evidence, plaintiff's counsel objectinj^, to prove the chiirj;e of personal dishonesty, and evidence in rebuttal was tendered by plaintiff and rejected. Certain questions were put to the jui'v requiring them to find whether or not the words bore the construction claimed by the innuendo or were fair comment on the subject matter of the article ; the jury found generally for the defend- ants and in answer to the trial judge, who asked if they found that the publica- tion bore the meaning ascribed to it by the plaintiff, the foreman said : " We did not consider that at all." On appeal for an order for a new trial. Held, that defendants not having pleaded the truth of the charge in justification the evidence given to establish it should not have been received, but as it had been received, evidence in rebuttal was improperly rejected; the general finding for the defendants was not suflicient in view of the fact that the jury stated that they had not considered the material question, namely, the charge of personal dishonesty ; for these reasons a new trial was properly granted. Judgment of the Court of Queen's Bench for Manitoba affirmed. The Manitoba Free Press Co. y. Martin.— 13th December, 1892.— xxi. 518. License- — Power to impose license tax on merchants, trader's, &c- — Discrimination hetiveen residents and non-residents— 33 V. c. 4 {N.B.)— By-law. J. brought an action against G., the police maj-istrate of the city of St. John, for wrongfully causing the plaintiff, a commercial traveller, to be arrested and imprisoned on a warrant issued on a conviction by the police magistrate, for violation of a by-law made by the common council of the city of St John, under an alleged authority conferred on that body by 33 V. c. 4, passed by the .Legislature of New Brunswick. S. 3 of the Act authorized the mayor of the city of St. John to license persons to use any art, trade, &c., within the city of St. John, on payment of such sum or sums as may from time to time be fixed and determined by the common council of St. John, Ac.; and s. 4 empowered the mayor, etc., by any by-law or ordinance, to fix and determine what sum or sums of money should be from time to time paid for license to use any art, trade, occupation, Ac, and to declare how fees should be recoverable ; and to impose penalties for any breach of the same, Ac. The by-law or ordinance in question discriminated between resident and non- resident merchants, traders, Ac, by imposing a license tax of $20 on the former and $40 on the latter. Held, that assuming the Act, 33 V. c 4, to be intra vires of the Legislature of New Brunswick, the by-law made under it was invalid, because the Act in (juestion gave no power to the common council of St. John of discrimination between residents and non-residents, such as they had exercised in this by- law. Jonas V. Gilbert.— V. 356. 2. To ferry. See FERRY, 495 License — Contimwd. Sale of intoxicating liqiiovs — License law of Quebec — Omiasion in Statute- -Tender — Costs — Mandamus. By s. 63 of the Quebec License Law, 41 V. c. 3, it was enacted : " 63. In addition to a fee of one dollar on the t^ranting of each license, the duties com- prised in the following tariff shall be payable by the applicant therefor to the license inspector, preliminary to the granting of the different licenses hereinbe- fore mentioned. " Tariff of duties payable for licenses under the present law. " On licenses for the sale of intoxicating liquors. " 1. On each license to keep an inn and for the sale of intoxicating liquors. " (A) In the city of Montreal, two hundred dollars, if the annual value or rent of the premises for which the license required is less than four hundred dollars, and three hundred, if the annual value or rent is four hundred dollars or more. " (B) In the city of Quebec, one hundred and twenty-flve dollars, if the annual value or rent is less than four hundred dollars, and one hundred and seventy-five dollars, if the annual value or rent is four hundred dollars or more. " (C) In every other city eighty dollars. " (D) In every incorporated town seventy dollars." By 8. 11 of the 42-43 V. c. 3, it was enacted as follows : " 11. Sub-sections (a), (h) & (c) of number 1 of s. 63 of the said Act (the Quebec License Law of 1878) are repealed and replaced by the following : " In the cities of Quebec and Montreal fifty per cent, of the rental or annual value of the premises for which such license is required : Provided that in no case shall the price of the license exceed the sum of three hundred dol- lars, or be less than seventy-five dollars." No proviso for replacing class (c) repealed was yet enacted in May, 1880. At the beginning of May, 1880, appellant went to the respondent Lassalle, who was license inspector for the district of Three Rivers, for the purpose of obtaining from him a license to keep an inn at Nos. 14 and 16 Badeaux street, in the city of Three Rivers. Appellant then and there produced the certificate approved by the corporation of the city of Three Rivers, and necessary for him to get such license. He offered at the same time the one dollar fee, according to § 1 — 41 V. c. 3, s. 63, and requested respondent to grant him a license, which respondent refused to do. After respondent's said i-efusal, appellant ootained tlie issuing of a writ of mandamus to compel respondent to grant the said license. On the case being heard, both in the Superior Court at Three Rivers and in the Court of Queen's Bench at Quebec, the respondent urged that admit- ting he could not claim the sum of §80 as originally enacted for cities other than Montreal and Quebec ; and admitting he could not claim $70 as for incor- porated towns, he was at all events entitled to claim the duty of £1 IGs. Od mentioned in ss. 66 & 67 of 41 V. c. 3, which had never been repealed. 49G License — Conthmcd. These two clauses read as follows : — " 06. The Lieutenant Governor may, when and so often as ho deems it expedient, by rej^ulation retluce the rate of duty on licenaos, as mentioned in Article G3 of this law, provided that this rate be not below the rate imposed by the fifth section of the Imperial Act, Georfje III. c. 88. " G7. The duties imposed by this law on licenses of inns, restaurants, steamboats, bars, railway buffets, or liquor shops, include those imposed by said Imperial Act, but should the same be hereafter repealed, such repeal shall not have the effect of reducing; the amount of such duties." The fifth section of the 14th Geor^?e III. c. 88, reads as follows : — " 5. And be it further enacted by the authority aforesaid that there shall, from and after the fifth day of April, one thousand seven hundred and seventy- five, be raised, levied, collected and paid, unto his Majesty's Receiver General of the said Province (Quebec), for the use of his Majesty, his heirs and successors a duty of one pound, sixteen shillings, sterling money of Great Britain, for every license that shall be granted by the Governor, Lieutenant- Governor, or Commander-in-Chief of the said Province to any person or persons, for keeping a house or any other place of public entertainment or for the retailing of wine, brandy, rum, or any other spiritous liquors, within the said Province ; and any persons keeping any such house or place of entertain- ment, or retailing any such liquors, without such license, shall forfeit and pay the sum of ten pounds for every such offence, upon conviction thereof ; one moiety to such person, as shall inform or prosecute for the same and the other moiety shall be paid into the hands of the Receiver General of the Province, for the use of his Majesty." The Superior Court (Plamondon, J.), held that the offer of §1 was suffi- cient and ordered the issuing o'.' a peremptory writ of viandamiin enjoining the respondent to grant the license asked for. This judgment the Court of Queen's Bench set aside. On appeal to the Supremo Court of Canada, Held, that the appellant would not have been entitled to his license without offering to pay the £1 10s. Od. stg. required by the Imperial Act in addition to the fee of 81, even if the respondent had been authorized to issue a license, but owing to the repeal of 8-s. (c) of 8. 63 of 41 V. c. 3, without provision being made for the issue of licenses in other cities than Montreal and Quebec, under no circumstances could a license be issued for the city of Three Rivers for the year in question. Per Ritchie, C..T., and Fournier, J. — The viandamus could not go, because the period for which the appellant claimed the license had expired, and a viamUnnus is never granted to compel a party to do an impossibility. If appellant had been entitled to his license and the time had expired after he had come to the court, it would have materially affected the question of costs, but not being entitled to his license the appeal must be dismissed with costs. Per Henry, J. — The appellant was entitled to his license upon payment of the £1 16s. Od. stg., together with the fee of $1, and having been misled by the respondent into making a tender of a larger sum than the respondent was 497 License — Conthmed. entitled to demand, and not of the exact sum as required by the law, the respondent ouylit to pay the costs. Appeal dismissed with costs. B-B. (c) of 8. G3 of 41 V. c. 3, has been re-enacted by 56 V. c. 5, s. 3 (Q.) Bergeron v. Lassalle.— 29th March, 1882. 4. Liquor License Act, 1883, and Act amending, ultra vires of Parliament of Canada. See LIQUOR LICENSE ACT, 1883. 5. Quebec License Act (41 V. c. 3) intra vires of Legislature of the Province. See LEGISLATURE, 13. 6. By-law imposing license on Transient Merchants and Traders — Validity of, under 29 t& 30 V. c. 57, s. 20, 21 (Q.)— Com- mercial Traveller — Arrest of , for selling without license — Action for illegal arrest — Evidence — Damages — Amend- ment of 'pleadings by Supreme Cotirt of Canada — Supreme Ct. Am. Act,1879. On the 12th of October, 1866, under the statute 29-30 V. c. 57, s. 20, the corporation of the City of Quebec passed the following by-law : — 1. " That no person shall hereafter follow the occupation of a transient merclmnt or trader, or agent, clerk, or employee of a transient merchant or trader, in the City of Quebec, or shall sell in the said city by samples, without- having previously taken out from the clerk of the said city a license for which there shall be paid to the treasurer of the said city the sum of sixty dollars;, tlie said license shall not be valid for any longer period than one year from tha date thereof. 2. " That any person contravening the present by-law shall, on conviction before the Recorder's Court, pay a fine not exceeding two hundred dollars, and in default of immediate payment of the said fine and of the costs, shall be im- prisoned and detained in the common gaol of the district of Quebec, for a period not exceeding two months, unless the said fine and costs, together with those of imprisonment, be sooner paid." The plaintiff, a commercial traveller for a firm in Montreal, was in a store in Quebec, writing down an order for his firm, and had a small screw in his hand as a sample when he was arrested by a policeman, and brought to tho station. He subsequently paid the license, and brought an action against the corporation, complaining of the false and illegal arrest and imprisonment. The corporation by their plea justified the arrest upon the ground that P. had openly committed a breach of the by-laws and municipal regulations in force, by selling by sample, and without having first obtained a license. CAS. DIG. — 32 498 License — Continued. Held, affirmiii'; the judgment of the Court of Queen's nench for Lower Canada (appeal side), Henry, J., dissenting, tliat the phiintiff' a acts were of such a nature that there was probable cause under the statute and by-law for the arrest, which, therefore, was not a tort by the corporation. Per Strong and Fournier, JJ. — The evidence fell short of eBtablishing the allegation of the defendant's plea that the plaintiff was actually engaged in selling, there being no proof of any actual sale, but did show that he was openly pursuing the occupation of a transient merchant or trader, or employee of a transient merchant or trader, without license, and tlie court would permit of an amendment of the pleadings, which would adapt the allegations of the parties to the case as disclosed l)y the evidence. {See 11 Q. L. K. 24'J). Appeal dismissed with costs. Plche Y. The City of Quebec— 22nd June, 1885. 7. Municipal by-law — Sale of Meat — Qaantlfy — Time and place. Section .503, s-s. 5 of the Municipal Act of 188!J empowers the council of a municipality to regulate the place and manner of selling meat, subject to thu restrictions in the live next preceding sections. S. 4!)7 authorizes the sale after certain hours at places other than the market of any commodity wliich has been offered for sale in the market. Held, affirming the judgment of the Court of Appeal for Ontario, Strong and Taschereau, J J., dissenting, that by-law No. ()'20 of the city of Ottawa requiring everybody offering fresh meat for sale in the city to take out a license, and providing that no meat should be sold in any place except the stalls of the different city markets, was a valid by-law and within the power of the city council to pass. Held, per Strong and Taschereau, JJ., that those portions of the by-law fixing the places at which fresh meat should be sold and prohibiting its sale elsewhere, are ultra vires of the city council under the said sections of the Municipal Act, 1883. The Ontario Act 50 V. c. 29, s. 29 passed since this decision has now settled the law on this subject. O'Meara v. The City of Ottawa.— March 15th, 1888.— xiv. 742. 8. To brewer — Quebec License Act — 41 V. c* 3 (P.Q.) — Constitu- tionality of— 43 V. c. 19 (D.). See LEGISLATURE, 14. 9. For sale of liquor — New Brunswick Liquor License Act, 1887 — Powers of Mayor of city under directory provisions- Effect of disqualifying liquor sellers. See STATUTE, 3. LEGISLATURE, 16. 499 License — Coutiinwii. 10. By-law respecting sale of meat in private stalls — Validity of — 37 V. c 51, s. 123, s-ss. 27 & 31 (P.Q.)— I'o^er of Provincial Legislature to pass— B. N. A. Act LS67, s-s. 9 of s. 92— "Other licenses." See LEGISLATURE. 18. 11. To use land — Adjoining lands — Way of necessity — Construc- tion of agreement. See EASEMENT, G. 12. To cut timber — Action by locatee against licensee — Location tickets— Transfer of purchaser's rights — Registration of — Waiver by Crown of non-performance of settlement duties —23 V. c. 2, ss. 18 & 20 (Q.)— 32 V. c. 11 s. 13 (Q.)— 36 V. c. 8 (Q.). See CROWN LANDS. 13. Crown Lands (Ont.) — Free grants — License to cut timber — Patent — Rights of patentee. See CROWN LANDS, 2. 14. Timber limits — Description — Plan furnished by Crown — Mis- understanding — Remedy for loss — R. S. Q., Art. 5976. See CROWN, 28. Licitation — Sale by — Binding on parties — Act of incoi-poration of company — Vendor to company estopped from questioning validity of. See SALE OF LAND, 26. Lien — Detinue, action of. W. left with C. a chronometer for the purpose of its being repaired. C, after taking chronometer to pieces, found detent 8prin<; much rusted, and sent it to Boston to have it made ri<,'ht. \V. offered C. 25.50 for his work, but C. said he would not deliver the chronometer until full charges were paid, viz., $47. W. thereupon sued C. to recover possession and use of his chronometer. The evidence of the making of the contract was conflicting, and the learned judge at the trial charged the jury, as a matter of law, that even if defendant's version were correct as to the orders given him by plaintiff in reference to putting the instrument in order, plaintiff was entitled to recover, because such order or instructions would give no authority to send the instrument to a 500 Lien — Continued, foreipi country to have any portion of the work done ; and that, if it was so sent, no lien would exist in defendant's favor for the value of the work without special instructions or plaintiff's consent ; that no such order or consent was shown in the evidence, and that consequently no lien existed. The jury, how- ever, found a verdict for defendant, stating, at the delivery of it, that they had adopted the defendant's Htatement as to the authority and instructions that he had received from the plaintiff in regard to the instrument when it was left v.'itli the defendant. Held, affirmin<{ the judgment of the Supreme Court of Nova Scotia, that the rule nid for a new trial should be discharged, and, as no fault was found with the work done, the respondent had n lien until he was paid his charges. Webber v. Cogswell.— ii. 15. 2. Lien for (tdvancea to get out timber under agreement — Right to enforce as against another creditor, and to deynand an account. In .January, 1870, tlie defendant (Bew) and plaintiffs (Shortreed & Co.) en- tered into a written agreement with themselves and with one Joseph Gordon, a lumberer who was then engaged in manufacturing, under a contract with Messrs. Allan Gilmour & Co., waney white pine timber, in the Muskoka dis- trict, in Ontario, and to whom the defendant (Bew) had already made advances to the extent of nearly $4,000 for that purpose. Under this agree- ment the defendant was to complete his advance to ?-1.000 ; and to enable Gordon to go on with his lumbering operations i'l Muskoka, the plaintiffs undertook to advance him, on his own drafts, drawn on the defendant, the sum of 87,000, " or so much as with the said 84,000 would put the said timber on the track of one of the said railway lines (the Northern Railway or its exten- sion) free of all claims." The defendant was then to furnish money to convey the timber so got out to Quebec. The plaintiffs wore to have a first lien for their advances, commission and interest. Subject to this lien the defendant was to have the sale of the timber and was to repay himself his advances out of the proceeds, and the balance, if any, was to be paid over to Mr. Dalton McCarthy. The declaration alleged, that in pursuance of the said agreement the plaintiffs made advances to Gordon to the extent of 123,881.83 ; that Gordon manufactured a large quantity of timber, which was conveyed to Quebec ; that a part of it was sold from which the plaintiff-s received 818,800, leaving a balance of 88,000, including interest and commission due to them ; that tlie remainder of the timber, of the value of more than 88,000, and upon which the plaintifTs had a lien, as aforesaid, and which was amply sufficient to pay the claim of the plaintiffs, was taken possession of by the defendant and appro- priated to his own use ; and the plaintiffs, in consequence, prayed that the defendant should be condemned to pay the balance so due to them on their said advances. 501 Lien — CoiitiitKi'il. The defendant by his ploaaet forth the special circunistances under which tlie agreement in queHtion was entered into, and averred, among otiier tilings, tlnvt he advanced to Gordon 'S4,000 to enable him to manufacture the timber in (juestion ; that htt advanced him a further sum of 93,500 to enable Ciordon to convey it from the Northern Railway to Quebec ; that plaintiffs had no right to make any advances on the timber except for the purpose "of manu- facturing it anct getting it out, and placing it on the railroad." The defendant wholly denied that the plaintiffs made advances to the extent of ^23,000, and alleged that the sum of 918,000, which the plaintiffs admitted tlioy received, was much more than sufficient to pay what was really duo to the plaintiffs. Tlie defendant also allo<>ed that the plaintiffs, under the agreement, had no right to advance more than the sum of #7.000, provided for in the agreement, and that tlie portion of the timber which came into his |)ossessioii was unsaleable and unmerchantable ; that it was placed in his hands by Messrs. Gihnour & Co., and Messrs. Durstall & Co., at the request of the plaintiffs. The last allegation in the plea was that the plaintiffs and Gordon owed him, the defendant, for the causes mentioneii in tlie plea, 88,000, and that he had a right to apply the proceeds of the merchantable timber so jilaced in his hands for the payment of his said claim. The plaintiffs' declaration therefore set forth two distinct grounds of action. The first, that there was a balance of §8,000 due to the plaintiffs upon the whole of their advances, and that for that amount they had a right to look to the defendant. The second, that the defendant had appropriated to his own use timber of the value of ft8,000, upon which the plaintiffs, under the said agreement, had a first lien for the said sum of $8,000, and that the defendant was therefore bound to pay to the plaintiffs the said sum of $8,000, of which tliey had been so deprived by the defendant. The action was tried at Quebec, before Meredith, C.J., who found (1) that the plaintiffs had established their making advances to Gordon to the extent alleged, viz , $23,881.83, for the making and manufacturing of the timber mentioned in the declaration, and for its conveyance to Quebec, for the repay- ment of which sum out of proceeds they had a first lien. (2) That after the timber reached Quebec, a part thereof was sold by the plaintiffs to Messrs. Burstall and Gilmour, as alleged in their declaration, that they received from the sale so made $18,800 currency, and that there remained a balance of $000 in the hands of Messrs. Allan Gilmour & Co., as being part of the price of the timber so sold them by the plaintiff. (3) That thus, when the action was brought, there was a balance of $4,161 due the plaintiffs on account of their said advances. (4) That of the timber brought down the defendant received and converted to his own use timber of the value of $4,322.93. (5) That for the value of this timber the defendant was accountable to the plaintiffs under the agreement, there being no personal liability whatever from him to them for the advances. (6) That the defendant was entitled to deduct from this sum $2,309.92, money laid oat by bim for the plaintiffs' benefit, and 602 Lien — CnntinnetL that for the bulance, $2,012, the plaintiffH were entitled to judgment. (7) I'lirtlier, tho learned Chief JuHtice, while admitting' that the conventional lien, to which the defendant was a party, wax limited to the advances made by the phiintiffo towardn the nianufacturin(4 of the said timber and its delivery on tlie track of the Northern Railway and tne Northern ExtenHion Railway, held that they hail a common law lien for their expenditure in bringing the timber to Quebec; and on thia ({round, uo attempt having' been made to show what part of the advance went for one object and wli'.t part for the other, considered them entitled to priority over the defendant's expenditure for the whole of their own. This judj^ment was confirmed by the Court of Queen's Bench for Lower Canada. On appeal to the Supreme Court of Canada the defendant contended :— 1. That it was proved the plaintiffs had retained a portion of the timber for which they had not accounted ; 2. That contrary to the agreement the advances had not been made on drafts drawn on defendant, who was there- fore prevented from establishing and controUiiifj the amount of advances; 3. That a sum of 13,500 had been sent by defendant to Gordon to pay railway freight, and this sum should have been credited to defendant, although it appeared tliat (lordon did not account for it and the (ilaintiffs were not aware of its having been advanced ; 4. That the plaintiffs' alleged advances were not established by the evidence. Held, Ritchie, C.J., and Henry, J., dissentinfi, that the appeal mixst be allowed. Fcr Strong, J. — The advances not having been made in manner prescribed, on Gordon's bills drawn on defendant, and the defendant bein{{ thus deprived of the power to control the amount of advances, and thci'o bein{? no proof that tlie defendant ever acquiesced in a departure from the mode of making the advances prescribed by the at^reement, or waived his strict rights under it, the plaintiffs were not entitled to tlie prior lien which the agreement pro- vided for in case the money to be furnished by them was advanced according to th,e terms of the agreement. The defendant had therefore a right to retain an amount out of the proceeds of the timber equivalent at least to his advance of »4,000. Per Strong, Fournier and Gwynne, JJ. — The defendant was also entitled to the $3,500 advanced to Gordon for the purpose of paying the railway charges, Gordon being the proper person to be entrusted with the funds, and no negligence being imputable to the defendant, who advanced the money to carry out his agreement. Further, the plaintiff's action ought to be dismissed on the ground that they had failed to account for the timber which came to their hands, or to prove the advances which they claimed to have made. Appeal allowed with costs. Bew. Y. Shortreed. — 28rd June, 1884, 3. Under Mechanics' Lien Act, as against prior mortgagee. See MECHANICS' LIEN. 503 Lien — Contimml. 4. Hy Itank on sliaros of insolvent. .SV< IJANKH ANl> BANKING, 12. 5. Written nt,a'eenient to cut wood — Collateral parol agreement as to holding wood as security till paid for — Security. Sec AOUEEMENT, 10. 6. Of execution creditor for costs under R. S. O. 1887, c. 124, s. 9. See ASSIGNMENT, 18, 7. Atiseffsment and taxes — 4^ V. c 2S (N.S.) — Priority over onortyage made before statute — Construction of Act. The Halifax City AHseaHinent Act, 18*^3, made the taxes asseased on real estate ill said city a tirst lien thereon except as ngainHt the crown. Held, ut}irmin;{ the judgment of the court below, that such lien attached on a lot assessed under the Act in preference to a mort<;ai^e made before the Act was passed. O'Brien v. Cogawell.— xvii. 420. 8. Insolvent Bank— Bank Act, R. S. C. c. 120, s. 79— Priority of note holders — Prerogative of Crown. See CROWN, 21. 9. Of unpaid vendor — Sale of goods — Non-delivery — Part of large parcel. See SALE OF GOODS, 21. 10. Mechanics Lien — I^IaterialH supplied to contractor — Payment by promissory note — Suspension of lien — Waiver, See MECHANIC'S LIEN, 2. 11. Pledge of railway property for disbursement — Agreement as to — Void as against creditors — opposition a Jia de charge. Arts. 419, 1977, 2015 and 2094. C. C. See PLEDGE, 5. Life Rent — Transfer of arrears of. See COMMUNITY. Light and Air. See EASEMENT, 3, 504 Limitations — Action on bond given as collateral security to mort- gajre- Cons. Stats. N. B. c. 85, ss. 1 & 6-3 & 4 \Vm. IV. c. 42. See MORTGAGE, 2, 2. Tresjxiss — Plea of liberum tenementum — Possession, title by. In an action of trespass quare claiiaum /regit for the purpose of trying the title to certiiin land adjoining the city of i3elleville, the defendants pleaded not guilty ; and 2nd. That at the time of the alleged trespass the said land was the freehold of the defendants, M. E. McC. and J. L. McC, and they justified breaking and entering the said close in their own right, and the other defendants as their servants, and by their command. The case was tried by Armour J., without a jury, and he rendered a verdict for plaintiff with thirty dollars damages. The judgment was set aside by the Court of Common Pleas, and they entered a verdict for the defendants in pursuance of R. S. O. c. 50, 8. 287. On appeal, the Court of Appeal for Ontario reversed this judgment and restored the verdict as originally found by Armour, J. The defendants thereupon appealed to the Supreme Court. Held, that the appellants (defendants) on whom the onus lay of proving their plea of liheriiiii tenementtim, had not proved a valid documentary title, or possession for twenty years of that actual, continuous and visible character necessary to give them a title under the Statute of Limitations ; therefore plaintiff was entitled to his verdict. Henry, J., dissenting. HcConaghy v. Denmark.— i v. 609. 3. Possession by tenant at will. See TENANCY AT WILL. 4. Statute of — May be pleaded bj' the Crown. Sec PETITION OF RIGHT, 7. 5. As against interest on taking accounts. See PAYMENT, 5. PRESCRIPTION. 6. Action of trespass — Title by possession. See TRESPASS, 9. 7. In suit to redeem by heirs of mortgagee — Purchase under deci'ee for sale by mortgagee — Trustee for sale — R. S. 0. c. 108 s. 19. Sec MORTGAGE, 10. 505 Limitations— ' 'ontimu'd. 8. Title b}' possession acquired under Statute of Limitations, 38 V. c. IGO. See POSSESSION, 7. y. Statute of Limitations — Trespass on wild lands — Isolated acts of — Title — Misdirection. Isolated acta of trespass, committed on wild lands from year to year, will not fiive the trespasser a title under the Statute of Limitations, and there was no misdirection in the judge at the trial of an action for trespass on such land refusing to leave to the jury for their consideration such isolated acts of trespass as evidencing possession under the statute. To acquire such a title there must be open, visible and continuous possession known or which mis^ht have been known to the owner, not a posses- sion equivocal, occasional, or for a special or temporary purpose. Doe d. Des- liarrcs v. White, 1 Kerr, N.B., 595 approved. The judgment of the court below affirmed, Gwynne, J., dissenting on the ground that the finding of the jury on the question submitted to thein was against evidence, and further that the acts done by the defendant were not mere isolated acts of trespass, but acts done in assertion of ownership during a period exceeding thirty-five years, and the evidence of such acts should have been submitted to the jury and the jury told that if they believed this evidence they should find for the defendant. Sherren y. Pearson.— xiv. 581. 10. Statute of Limitations — Petition of Right — Defence by Crown — Petition of Rigid Act, 1S16, s. 7 — Construction of. In 1886, M. sought to recover from the Crown lands set out for the con- struction of the Rideau Canal by virtue of 8 Geo. IV. c. 1, but not actually used therefor, and an indemnity for such portion thereof as had been sold by the Crown. By section 7 of the Petition of Right Act, 187(5, the Crown is allowed to set up any defence to a petition of right that would be available to the defendant in a suit between subject and subject. By the Ordinance Vesting Act, 7 V. c. 11, the Rideau Canal, and the lands and works belonging thereto, were vested in the principal officers of H. M. Ordinance in Great Britain, and by section 29 it was enacted : " Provided always and be it enacted that all lands taken from private owners at Bytown under the authority of the Rideau Canal .\ct for the use of the canal, which have not been used for that purpose, be restored to the party or parties from whom the Eame were taken." Held, IHT Ritchie, C.J., Strong and Gwynne, J J. — The suppliant is debarred from recovering by the Statute of Limitations, which the Crown has a right to set up in defence under the 7th section of the Petition of Right Act of 1876. Per Strong, J. — Independently of this section, the Crown, having acquired the lands from persons in favour of whom the statute had begun to run before the possession was transferred to the Crown, the body incorporated under the 500 Limitations— C'>««'n«e(/. title of " The Principal Officers of Ordnance " would be entitled to the benefit of the statute, which would continue to run in favour of the Crown. Per Fournier, Henry and Taschereau, JJ. — The Crown was not entitled to set up the Statute of Limitations as a defence by virtue of section 7 of the Petition of Right Act, 1876, that section not havini^ any retroactive effcet. McQueen y. The Queen.— xvi. 1. 11. Railway — Damages caused by sparks from locomotive — Limi- tation of actions for damages — R. S. C. c. 109, s. 27 — 51 V. c. 29, s. 287. See RAILWAYS AND RAILWAY COMPANIES, 53. 12. Statute of Liniitations — AcknoivleJijment of debt barred by — Sii^ciency of — Assigninent of chose in action — Right of assignee to site — Notice to, debtor — i2. ^S'. {N. S.), 4- ser. c. 94, 88. 355 & 359. The following letters written by a debtor to his creditor were held to take the debt out of the opsration of the Statute of Limitations : Hopewell, August 9th, 1876. De.^r Uncle Finlvy,— I received a letter from you some time ago about your money. I delayed writing because I itid not kiiow what to write. I did not know but something would turn up that would enable me to pay you. I have a good deal of property —too much for these hard times — and I want to sell some of it, but cannot in the meantime, as times are that bad that people do not want to buy anything, only Vv^liat they cannot do without. But this state of matters will not continue long, and when the times get better I will make some arrangement to pay you your money. Ee not afraid of it, as I have but a small family and no boys, I will have plenty to j)ay my debts. I did get somewhat behind hand by railway affairs, but liave recovered, and I am now in jiossession of a good deal of property and in a fair way of doing well whenever the times get better. I regret very much keeping it from you so long ; however, I hope the time will soon come wlien I will be able to pay you. Yours very truly, Alex. McDonald. Hopewell, June I'Jth, 1875. Dear Uncle, — I am in receipt of yours of the Slat of May about your money, and must say 1 am not astonished at you for wanting it. You ought to have had it long ago, an-' ou would have had it, only I was unfortunate in a railroad contract I took, on the railroad between Truro and Pictou, in which I lost considerable money, and got largely in debt besides. After giving up the work 1 hired with the Government to carry on part of the work. At this time James and I commenced to build a cloth factory on a small scale, in order to have some permanent work. I borrowed most of what I put in. The man 507 Limitations— Conthiued. who had your money on mortgage, after having it two years, left. I h..'' to sell the property, which I took from him by deed, for one thousand dears, losing by this likewise. I then got an offer from the Government to go to the Red River and North-west Territory to explore there for two years among the Indians, and got back last winter. I have now my debt nearly paid and the amount of your claim secure in property, viz., land property, so that you will be as sure of your money in a shoit time as if you had it. Do not think, Finln y *hat I intend to do you, or any other body, out of one shilling. So rest as8urc-.i that I have your money secured in a manner that you will get it, although I cannot send it now. You had good patience, so I hope you will have a little more, and I will put you all right. I believe I worked as hard and travelled far more than you did, and have been much more unfortunate than you were since you left ; but since two years I have done well, and hope soon to do well by you. Now, Fiulay, rest assured that I have your money secured so that you will get it, whatever becomes of me. jMn. F. Tho.mphox, Very truly yours. Port Ludlow, British Columbia. Alex. McDonald. The Revised Statutes of Nova Scotia, 4 ser. c. i)4, s. 355, authorizes the assignee of a chose in action in certain cases to sue thereon in the Supremo Court as his assit^nor might have done, and s. ,^57 provides that before such action is brought a notice in writing, signed by the assignee, his agent or attor- ney, stating the right of the assignee and spe'.'ifyii.g his demand thereunder, shall be served on the party to be sued. Pursuant to this section the assignee of a debt served the following notice : — PicTou, Nov. •21st, 1878. Alex. Ghant, Esq. : Admr. Estate of Alexander McDonald, deceased. Deau Sir,— You are het'eby uotilied in accordance with c. 04 of the Revised Statutes, s. 357, that the debt due by the above estate to Finlay Thompson has been assigned by him to Alexander D. Cameron, who hereby claims payment of twelve hundred dollars, the amount of the said debt so assigned to him. S. H. Holmes, Att'y. of Alex. D. Cameron. Held, affirming the judgment of tiie court below, that the notice was a. sufficient compliance with the statute. PiiESENT :— Sir W. J. Ritchie, C.J. and Strong, Fournier, Taschereau, and Patterson, JJ. Grant v. Cameron.— May 0, 1891. — xviii. 71G. 13. Statute of — Title to land — Possession — Nature of — Evidence. In an action against O. to recover possession of land it was shown that O. had been in possession over twenty years ; that he was originally in as a care- taker for one of the owners ; that afterwards the property was severed by judicial decree and such owner was ordered to convey certain portions to the others; that after the severance O. performed acts showing that he was still 508 Limitations— ^''j"''«"f(/. acting,' for the owners; ivnd tlmt he also exercised acts of ownership by enclos- ing the land with a fence and in other w,\y8. Held, reversing the judgment of the Court of Appeal and restoring that of Rose, J., at tlie trial, that the severance of the property did not alter the rela- tion between the owners and O. ; that no act was done by O. at any time declaring; that he would not continue to act as caretaker ; and that his possession, therefore, continued to be tliat of caretaker and he had acquired no title by possession. Ryan v. Rijun, 5 Can. S. C. It. 4S7, followed. Heward v. O'Donohoe. — xix. 341. 14. Administration proceetlings — Provinjj^ claim on notes lield under atyreement witli ori;»'inal holder thei'eof to divide proceeds— Champerty — Suhsecjuent proof by original holder — Right to come in under administration order — Statute of Limitations no bar to so doing. See CH.WIPERTY, 15. Devise of land without estate therein — Possession — Right to set up statute. See TITLE, 7. 16. Sale of lands by Sheriff' under execution on judgment against executor for note given by him and endorsed by testator — Purchase by executor — Possession taken by devisee — Trust. See TRUSTS AND TRUSTEES, 24. 17. Will — Devise to children — Possession of lands of estate taken by one son, an executor and trustee but who had not proved with consent of acting executor and trustee — Statute of Limitations. See WILL, 23. Liquidator— See WINDING UP. Liquor — Sale of. .SVt' LEGISLATURE, 10. 2. Conviction for having Ii(iuors near public work — Destruction of li(}uors — Malicious arrest and imprisonment by justice of the peace. See MALICIOUS ARREST. 509 Liquor License. — Liquor License Act, (N.B.) — 50 V. c. 4- (N.B.) — Validity of — Prohibition of sale of liquor — Powers of mayor of city — Dis([ualifying liquor sellers — Effect of. Sec STATUTE, 3. LICENSE, 3. LEGISLATURE, 13, 16. Liquor License Act, i883.—Ame'n(lin(j Act — P V. c. 3;2, s. 26 — Reference by Governor in Council — Act ultra vires of Dominion Parliament, Case referred by the Governor General in Council under 8. 26 of 47 V. c. 32, " An Act to amend the Liquor License Act, 1883.'' Ist Question — Are the following Acts, in whole or in part, within the legislative authority of the parliament of Canada, namely : — (1.) The Liquor License Act, 1883? (2.) An Act to amend the Liquor License Act, 1883. 2nd Question. — If the court is of opinion that a part or parts only of the said Acts are within the legislative authority of the parliament of Canada, what part or parts of said Acts are so within such legislative authority ? Opinion. — The Acts referred to are, and each of them is, ultra vires of the legislative authority of the parliament of Canada, except in so far as the said Acts respectively purport to legislate respecting those licenses mentioned in s. 7 of the said " The Liquor License Act, 18S3," which are there denominated Vessel Licenses and Wholesale Licenses, and except also, in so far as the said Acts respectively relate to the carrying into effect of the provisions of " The Canada Temperance Act, 1878.." The Hon. Mr. Justice Henry, being of opinion that the said Acts are ultra vireii in whole. [On appeal to the Privy Council, the Acts were held ultra vires in whole ] In re The Liquor License Act, 1883.— 12th January, 1885. 2. Salaries of License Inspectors — A^iproval by Governor General in Council — Liquor License Act, J8SJ, s. 6. On a claim brought by the Board of License Commissioners appointed under the Liquor License Act, 1883, for moneys paid out by them to license inspectors with the approval of the Department of Inland Revenue, but which were found to be afterwards in excess of the salaries which two years later were fixed by Order in Council under s. 6 of the said Liquor License Act, 1888. Held, per Fournier, Taschereau and Patterson, J J., affirming the judgment of the Exchequer Court, that the Crown could not be held liable for any sum in excess of the salary fixed and approved of by the Governor General in Council. Per Ritchie, C. J., and Strong, J., that the Act under which the appellant was appointed having been declared ultra vires the petition of right was not maintainable. The Liquor License Act, 1883, s. 6. Burroughs v. The Queen— xx. 420. 510 Litigious Rights.— >Sa^e of— Arts. 1582, 1583, 1584, s. 4, G. G. (P. Q.). B. became holder of 40 shares upon transfers from D. et ah, in the capital stock of the St. Gabriel Mutual Building Society. At the time of the trans- fers the shares in question had been declared forfeited for non-payment of dues. Subsequently by a Superior Court judj^ment rendered in a suit of one C, other shares, which had been confiscated for similar reasons, were declared to be valid and to have been illegally forfeited. Thereupon B. by a petition for writ of mandamus asked that he be recognized as a member of the society and be paid the amount of dividends already declared in favour of and paid to other shareholders. B.'s action was met, amongst other pleas, by one setting forth that B. had acquired under the transfers in question litigious rights and that, by law, he was only entitled to recover from the respondents the amount he had actually paid for the same, together with legal interest thereon, and his cost of transfers. Held, affirming the judgment of the court below, Fournier and Henry, ,TJ., dissenting, that at the time of the purchase of said shares, B. was a buyer of litigious rights within the provisions of Art. 1583, C. C, and under Art. 1582 could only recover from the liquidators the price paid by him with interest thereon. Also, that the exception in Art. 1584, § 4 of C. C. only applies to the particular demand in litigation which has been confirmed by a judgment of a court, or which having been made clear by evidence is ready for judgment. Brady v. Stewart.— xv. 82. 2. Judgment in favour of crown for possession of land — Sale to advocate — Tierce opposition to judgment by proprietor — Intervention— Arts. 1485 & 1583, C. C. See PEACTICE, 14. Loan. — By trader to non-trader — Interest — Prescription — C. C. L. C. Art. 2250. See PKESGRIPTION, 1. Loss. — Constructive — Total. See INSURANCE, MARINE, 2, 5, 6,9, 15, 16, 19, 20, 27, 30. 511 M. Magistrate.— See JUSTICE OF THE PEACE. Maintenance.— See DEED, 10. Malicious Arrest. — MdlicioaH and illegal arrest and Iniprison- ment — Justice of tlte Peace — Conviction for having liquors near p?i6^/c wm'ks — Destruction of liqtiors — Notice of action, sitfliciency of — An action brought to recover daniaf,'es for the malicions and illegal arrest and imprisomnent of the plaintiff, and for the destruction of a quantity of liquor belonging to him. The facts of the case are fully set out in 15 O. R. 710. The defendants appealed from the judgment of the Divisional Court to the Coui't of Appeal for Ontario, which latter court affirmed the judgment of the Divisional Court and dismissed the appeal. On appeal to the Supreme Court of Canada, that court Held that the judgment of the court below should be affirmed and the appeal dismissed with costs. Present. — Ritchie, C..T., and Strong, Fournier, Gwynneand Patterson, JJ. Conmee y. Bond.— 20th March, 1890. Malicious Proceedings — Obtaining injunction maliciously. See DAMAGES, li). 2. In insolvency. See DAMAGES, 25. INSOLVENCY, 9. Malicious Prosecution— ^c^-ioii for lihel— Slander— Prescription, Arts. 3262 and 2267, CO. — Proceedings instituted to remove plaintiff from position of coTYiinissioner of expropriations. This action was instituted by James K. Springlo, in his life time civil engineer, for f20,000 for damages which he alleged he hnd suffered in conse- quence of his having been unjustly removed by the defendants (the mayor, etc., of the city of Montreol,) from the position of commissioner of expropria- tions for the widening of St. Joseph street, in the city of Montreal. The appellants, widow and daughters of the late James K. Springle, became plaintiffs par reprise d'ingtaiice. On the 14th April, 186S, Springle and two others. Brown and Masson, were named joint commissioners to determine the amount which should 512 Malicious Prosecution— ContinuetL be accorded to the Hon. C. Wilsou for the expropriation of a part of his property. Messrs. Springle and Brown, after valuing the compensation which should be given to Mr. Wilson at $19,500, on certain objections being made, reduced the amount in their final report to $13,666. Mr. Masson, not agreeing with his colleagues, in his report declared that $7,500 would be a suthcient compensation. Thereupon, on the 7th August, 1868, the defendants passed a resolution charging Springle and Brown with fraud and partiality, and an application was made to the Superior Court to have them removed from the office of commissioners. On the 17th September, 1870, the application was granted on the ground that the commissioners had committed an error of judgment in the execution of their duty as commissioners, and had proceeded on a wrong principle in estimating the amount payable for expropriation. The charges of fraud and partiality were held unfounded. On the '20th September, 1873, the Court of Queen's Bench for Lower Canada re-instated the said Springle and Brown in their position as com- missioners. On the 4th November, 1876, this judgment was contirmed by the Privy Council. Their Lordships say ; — " The petitions contained charges of very scandalous fraud and parti- ality. " Their Lordships think it unfortunate that such charges were made, because it turned out there was no ground whatever for them. The respondents were removed, not for having carried into effect a right prin- ciple erroneously, but for having adopted an erroneous principle. Their Lordshijjs consider that the principle adopted by the respondents was not erroneous, and therefore that the inference of want of diligence drawn from it fails." In the meantime, in May, 1871, Springle had brought the present action of damages against the defendants — and this action was prosecuted, on his death, by the present respondents. At the hearing on the merits, the present appellants urged three points and they submitted : 1st. That the action was absolutely barred under Arts. 2262 & 2267 of the Civil Code of Lower Canada, which read respectively as follows, Art. 2262 : "The following actions are prescribed by one year : 1. For slander or libe', reckoning from the day that it came to the knowledge of the party aggrieved." Art. 2267. " In all the cases mentioned in Arts. 2250, 2260, 2261 cS: 2262, the debt is absolutely extinguished, and no action can be maintained after the delay for prescription has expired." 2nd. That the appellants had not been actuated by malice, that they had considered it a duty to adopt proceedings for the redress of grievances com- plained of by the interested parties, that there was reasonable and probable 513 Malicious Prosecution — Continued. cause for their acts, and that Springle had suffered no damage for which they were amenable to law. The Superior Court, relying on the provisions of the code, dismissed the action on the Slst May, 1880, without entering into the merits, but the Court of Appeals, on the 27th January, 1883, reversed the judgment and allowed $3,000.00 damages to the present respondents, being of opinion that, as the matter was still in course of litigation. Arts. 22G2 & 2267, C. C. did not apply, and the action was not prescribed ; that there was no proof of the fraud and misconduct ; that the proceedings were without reasonable and probable cause, and malice should be inferred. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the Court of Queen's Bench, Fournier, J., dissenting, that the action was not an action merely for the libel contained in the resolution of the 7th August, 1868, but for a malicious prosecution, following up that resolution by proceedings instituted in the courts, maliciously and without any reasonable and just cause, and prescription did not begin to run until the termination of such proceedings. The action, therefore, and judgment for damages should be sustained, no objec- tion having been raised that the action was prematurely brought. Montreal v. Hall.— xii. 74. 2. Action for mallc'ioiis prosecution — Favourable termination of. Where a party pays under protest a penalty imposed upon him by a justice of the peace in proceedings taken against him under the provisions of c. 22 of the Consolidated Statutes of Lower Canada, " An Act respecting Good Order in and near Places of Public Worship," and such party afterwards brings an action in damages against the person, whom he alleged had maliciously instigated such proceedings, and at the trial before a jury there is no evidence of the favourable termination of the prosecution against him, the court were equally divided as to the right of such party to maintain his action. Sir W. J. Ritchie, C.J. and Strong and Tascheri:i!iu, JJ., were of opinion that the action could not be maintained under such circumstances. Fournier Henry and Gwynne, JJ., contra. The appeal was in consequeuce dismissed without costs. Poitras v. Lebeau— March 1.5. 1888— xiv. 742. 3. Injunction — ^i V. c. 14: s. 4, {PQ) — Action for Damages — Want of probable cause — Damages other than costs. Where a registered shareholder of a company, finding the annual reports of the company misleading, applies after notice for a writ of injunction to restrain the company from paying a dividend, and upon such application the company do not deny even generally the statements and charges contained in the plaintiff's affidavit and petition, there is sufficient probable cause for the issue of such writ ; and consequently, the defendant, who upon the merits has succeeded in getting the injunction dissolved, has no right of action for dam- ages resulting from the issue of the injunction. The Montreal Street Railway Company v. Ritchie. — xvi. 622. CAS. DIG. — 33 514 Malicious Prosecution — Continiud. 4. Action for malicious jiroscciition — Rcdsondble and jirohaJdr cause — Inference from facts proved — Functions of judyc and jury. In an action for malicious prosecution, the existence or non-existence of reasonable and probable cause is to be decided by the judge and not the jury. A., staff-inspector of the Toronto police force, laid an information before the police maj^istrate charging; M., a married woman, with the offencoof keop- \\\g a house of ill-fame. In layinf^ the information, A. acted on a statement made to him by a woman who allotted tliat she had been a frequenter of the house occupied by M., and stated facts sufficient, if true, to prove the charge. A warrant was issued against M., who was arrested and brought before the magistrate, who, after hearing the evidence, dismissed the cliargo. M. and her Imsband then brought an action against A. for malicious prosecution. The action was tried three times, each trial resulting in a judgment of non- suit, which was set aside by a Divisional Court and a new trial ordered. From the judgment ordering the third new trial A. appealed, and the judges in the Court of Appeal for Onf ario being equally divided the order for new trial stood. A. then appealed to thi Supreme Court of Canada. At the last trial of the action it was shown that A. had requested the police inspector for the division in which M.'s house was situate to make inquiries about it, and that after the information was laid the inspector informed A. that there were frequent rows in the house owing to the intemperance of M., and that he thought there was nothing in the charge. The trial judge did not submit the case to the jury, but held that want of reasonable and probable cause was not shown ; but the Divisional Court held that he should have asked the jury to find on the fact of A.'s belief in the statement furnished to him, on which he acted in bringing the charge. Held, Taschereau, J., dissenting, that A. was justified in acting on the state- ment, and, the facts not being in dispute, there was nothing to leave to the jury ; that the trial judge rightly held that no want of reasonable and probable cause had been shown, and his judgment should not have been set aside, and must be restored. Archibald v. McLaren. — xxi. 588. Mandamus — Appeal in cases of. See JURISDICTION, 11. 2. By member of benefit society to be reinstated. See BENEFIT SOCIETY. 3. To compel issue and delivery of debentures. See BY-LAW, 3. 515 Mandamus— Continuetl. 4. litUe 7iisi for — Cuanty school rates for 1S7J-7S — Rev. Stat, c. 32, 8. 62, (N.S.). A mandamus was applied for at the iiiBtance of the seasiona for the county of Halifax, to compel the warden and council of the town of Dart- mouth to nHBesB, on the property of the town liable for ussesHmeut, the sum of $1(),!)7G for its proportion of county school rates for the years 1873-78, under s. 52 of the Educational Act, R. S. N. 8. c. 38. The Supreme Court of N(jva Scotia, without determining; whethnr the required assefiament was poBsible and was obligatory when the writ was isbued, made the rule nini for a v'lnihimm absolute, leaving these questions to bo determined on the return of the writ. Ou appeal to the Supreme Court of Canada, it was Held, Strong aud Gwynne, JJ., dissenting, that the granting of the writ in this case was in tlie discretion of the court below, and the exercise of that discretion cannot at present be questioned. I'er Ritciiie, C.J. —That the town of Dartmouth is not, but that the city of Halifax is, exempted by c. 32 K. S. N. S. from contribution to the coimty school rates. The Queen v. Warden and Council of the Town of Dartmouth.— ix. 50'J. Sl;- MANDAMUS, 7. 5. Never granted to compel a person to do what is impossible. Sec LICENSE, 3. 6. Writ of — Return to — Demurrer to return. On an appeal from an order of the Supreme Court of Nova Scotia, quasliing, on demurrer, a return to a writ of tnandumitx, and ordering a peremptory writ to issue, the objection was taken that under the practice in Nova Scotia a demurrer would not he to a return to a writ of maitdamu^. Held, that this objection must be over-ruled and the appeal heard ou its merits. Dartmouth v. The Queen. — 12tli May, 1885. 7. Rates and assessments — Miinicipal'ity of county of Halifax — School rates in — Liability of town of Dartmouth to con- trihiite to — Assessing j^resent ratepayers for rate of previous year —Mandamus — Jurisdiction to order writ of Held, Ritchie, C.J., dissenting, that the town of Dartmouth is not liable to contribute to the assessment for the support of schools in the municipality of the county of Halifax. Held, also, that if so liable a writ of mandamus could not issue to enforce the payment of such contribution as the amount of the same would be uncer- tain and difficult to be ascertained. 516 MandP.mus — Continued. Held, also, that the ratepayers of 1886 could not bo aRasBsed for school rates leviable in previous years. Held, per Uitchie, C.J., dissenting;, thav only the city of Halifax is exempt from such contribution, and the town of Dartmouth is liable. Dartmouth v. The Queen. — xiv. 45. 8. To compel school commissioners to carry out decision of Super- intendent of Education. 40 V. c. 22 s. 11 (Q.). See EDUCATION. 3. 9. Quebec Pharmacy Act (48 V. c. 36 (Q.) — Registration of partner- ship. See PARTNERSHIP, 8. 10. liellef against the Crown — Petition of Right — Direct relief. By the Ordnance Vesting; Act, 7 V. c. 2, the Rideau Canal, and the lands and works belon^jing thereto, were vested* in the principal officers of H. M. Ordnance in Great Britain, and by s. '29 it was enacl^ed : " Provided always, and be it enacted that all lands taken from' private owners at Bytown under the authority of the Rideau Canal Act for the use of the canal, whicli have not been used for that purpose, be restored to the party or parties from whom the same were taken." The appellant, the heir-at-law of William McQueen, by her petition of right sought to recover from the Crown 90 acres of the land originally taken by Colonel By, but not used for the purposes of the canal, or such portion thereof as still remained in the hands of the Crown and an indemnity for the value of such portions of these 90 acres as had been sold by the Crown. Held, per Strong, J. — A petition of right is an appropriate remedy for the assertion by the suppliant of any title to relief under s. 29. Where it is within the power of a party having a claim against the Crown of such a. nature as the present to resort to a petition of right, a mandamus will not lie, and a manda- mus will never under any circumstances be granted where direct relief is sought against the Crown. HoQueen v. The Queen.— xvi. 1. 11. Mandamus — Judgmenton demurrer — Supreme and Exchequer Courts Act, s. aJf. ig), 28, 29 and 30. Interlocutory judgments upon proceedings for and upon a writ of mandamus are not appealable to the Supreme Court under s. 24 (g) of the Supreme and Exchequer Courts Act. The word " judgment " in that sub- • section meaiis the final judgment in the case. Strong and Patterson, JJ., dissenting. Langevin y. Lea CommisBaires d'Ecole de St. Marc— xviii. 599. 517 Mandamus— €"«cr Ritchie, C.J., and Fournier and Gwynne, JJ., that the appeals should be dismissed 524 Maritime Court of Ontario — Continued. Henry and Taschereau, JJ., liissentinj^ on the ground that the authority of Donnelly to make the contract was not established. Present : — Ritchie, C. J., and Fournier, Henry, Taschereau and Gwynne, JJ. C. P. R. V. Neelon. ) „ AthabaBca."-lGth Nov., 1885. V. Helliwell. ) Marriage — Declarations in Act of — Matrimonial domicile — Civil status— Arts. 63, 65, 79, 80, 81, 83, C. C. (P.Q.). See DOMICILE, 2. DIVORCE. Marriage Contract — Donation in. See DONATION. Married Woman. See HUSBAND AND WIFE. Master of Ship — Dismissal of l)y company — Part owner. See CONTRACT, 6. Master and Servant — Right of action for loss of servant — By mother for death of child. See MA.S .TIME COURT OF ONTARIO. 3. 2. Contract — Agreen.int for service — Arbitrary right of disviissal — Exercise of — Forfeiture of property. By an agreement under seal between M., the inventor of a certain machine, and McR., proprietor of patents therefor, M. agreed to obtain patents for improvements on said machine and assign the same to McR., who in consideration thereof agreed to employ M. for two years to place the patents on the market, paying him a certain sum for salary and expenses, and giving him a percentage on the profits made by the sales. M. agreed to devote his whole time to the business, the employer having the right, if it was not successful, to cancel the agreement at any time after the expiration of six months from its date by paying M. his salary arid share of profits, if any, to date of cancellation. By one clause of the agreement the employer was to be the absolute judge of the manner in which the employed performed his duties, and was given the right to dismiss the employed at any time for incapacity or breach of duty, the latter in such case to have his salary up to the date of dismissal but to have no claim whatever against his employer. M. was summarily dismissed within three months from the date of the agreement for alleged incapacity and disobedience to orders. 525 Master and Servant — Continued. Held, reversing the judgment of the Court of Appeal for Ontario and of the Divisional Court, that the agreement gave the employer the right at any time to dismiss M. for incapacity or breach of duty without notice, and with- out specifying any particular act calling for such dismissal. Held, per Ritchie, C.J., Fournier, Taschereau and Patterson, JJ., that such dismissal did not deprive M. of his claim for a share of the profits of the business. Per Strong and Gwynne, J J., that the share of M. in the profits was only a part of his remuneration for his services which he lost by being dismissed equally as he did his fixed salary. McRae v. Marshall.— xix. 10. 3. Road Co. — Collector of tolls — Negligence — Liability of com- pany. See NEGLIGENCE, 37. 4. Defective system of using machinery — Injury to workman — Liability of master — Notice to master. F. was employed in a sawmill at Vancouver, (B.C.), as a chainer, and worked on a rollway which is the portion of the machinery of the mill along which the logs are brought to the saw carriage. One of his duties was to put a chain under the log and roll it on to the carriage, and while doing so on one occasion a log rolled down the rollway and against one behind him and crushed him against the carriage, causing severe injuries, for which he brought an action against W. & E., the owners of the mill. On the trial it was shown that chock blocks were used to check the log in its course down the rollway, which had a slope of from 5 to 7 inches in its length of 12 feet, and that the blocks were only sufficient to hold one log. The jury found that the accident was due to the slope of the rollway and defective chock blocks ; that F, could not have avoided the injury by exercise of proper care and skill in discharging his duties ; that he had complained of the chock blocks to the proper persons, who promised to m ike them good ; that W. & E., the owners, were not awire of the defects, but that W., the manager and fore- man, should have taken cognizance of the matter and did not appear to have exercised due care ; and they assessed damages to F. at $5,000. The trial judge reserved judgment, and a motion was afterwards made on behalf of F. for judgment and a cross-motion by defendants to set aside the findings and for a non-suit. Eventually judgment was entered against W. & E. for the damages assessed which was sustained by the Court in banc. Held, affirming the decision of the Supreme Court of British Columbia, that the employers were no less responsible for the injuries occasioned to F. by the defective system of using their machinery than they would have been for a defect in the machinery itself. Held, further, that there being no employers' Liability Act in force in British Columbia when the injury happened, F. was not precluded from 526 Master and ServsLtit— Continued. obtainin({ compensation by failure to give notice to his employers of the defect in the chock blocks. Webster v. Foley.— 13th December, 1892.— xxi. 580. Mechanics Lien — Prior Mortxjuge — Delay — Rev. S. 0. c. J30, The period of 90 days limited by the 2lBt section of the Mechanics' Lien Act, R. S. O. c. 120, for the commencement of proceedinKs to enfore the lien applies to an action or proceeclinj^ against a mortt,'agee or other person claim- ing an interest in the lands, and that whether proceedings have or have not been previously taken against the owner within the 90 days. The plaintiffs, assignees of a mechanics' lien, brought an action against tlie owner and a prior mortgagee, but thpir action was dismissed as against the mortgagee for want of prosecution. Having succeeded in obtaining a judg- ment establishing their lien against the owner, they brought this action after the lapse of more than 90 days from filing their lien to obtain declaration of priority over the prior mortgagee to the extent that the work increased the selling value of the laud. Held, affirming the judgment of the Court of Appeal for Ontario, that the lien had ceased to exist as agaiust the mortgagee. (For a full statement of the facts see Bank of Montreal v. Haffner, 3 Ont. Rep. 181! and 10 Ont. App. 11. 592.) Appeal dismissed with costs. Bank of Montreal y. Worswick.— 12th May, 1885. 2. Materials supplied to contractor — Payment by lyrotnissory note — 8iLspension of lien — Waiver. E. supplied a contractor with materials for building a house for W. and took the contractor's note for 91,100 at thirty days for his account. The note was discounted but dishonoured at maturity, and E. took it up and registered a mechanic's lien against the property of W. While the note was running, W. paid the contractor $500 and afterwards, but when was uncertain, §600 more. In an action by E. to enforce his lien : Held, affirming the judgment of the Supreme Court of British Columbia, that as the lien was suspended during the currency of the note it was absolutely gone, there being nothing in the Lien Act to show that it could be abandoned for a time only, and this result would follow even if part of the amount only had been paid to the contractor. Edmonds v. Tiernan.— xxi. 406. Mediators — Submission to — Award — Finality of — Art. 1346, C. C. P. See ARBITRATION AND AWARD, 24. 527 Mercantile Agency — Responsible for false information when sup- plied thruugh culpable negliirence, inipruJeuce or want of skill. See DAMAGES, 57. LIBEL, 5. Merchants' Shipping Act, 1854 (Imp.) — Does not prevent pro- perty in ship passinj^ to assignee under Insoh ent Act, 1875. iice INSOLVENCY, 13. Mesne Profits — In action for use and occupation. See TENANTS IN COMMON. Mihtia Act— Ji V. c. 40,s. L'7—J6 V. c. 46—4.2 V. c. Jo—Di^tiirh- ance anticipated or likely to occur — Requisition call in;/ oat tnilitia — Sutficiencij of form of — Suit h>j comma ui ling officer — Death of commanding office^' pending suit — Right of administratrix to continue proceedings. The Act, 31 V. c. 40, s. 27, as amended by 36 V. c. 46 and 42 V. c. 35, requires that a requisition callin(< out the mihtia in aid of the civil power to assist in suppressing a riot, etc., shall be signed by three magistrates, of whom the warden, or other head ofdcer of the municipality shall be one ; and that it shall express on its face " the actual occurrence of a riot, distuAance or emergency, or the anticipation thereof, requiring such service." Held, that a requisition in the following form is sufficient : — " Charles W. Hill, Esq., Captain No. 5 Company, Cape Breton, Militia : Sir, — We, in compliance with c. 46, s. '27 Dominion Acts of 1873. it having been represented to us that a disturbance having occurred and is still anticipated at Linj^an beyond the power of the civil power to suppress. You are therefore hereby ordered to proceed with your militia company immediately to Lingan, with their arms and ammunition, to aid the civil power in protecting life and property and restoring peace and order, and to remain until further instructed. A. J. McDonald, Warden; B. McDonald, J.P. ; J. McNarish, J.P. ; Angus McNeil, J.P." The statute also provides that the municipality shall pay all expenses of the service of the inilitia when so called out, and in case of refusal that an action may be brought by the officer commanding the corps, in his own name, to recover the amount of such expenses. Held, Strong, J., dissenting, that where the commanding officer died pending such action the proceedings could be continued by his personal representative. Crewe-Read v. County of Cape Breton. — xiv. 8. 528 Mines and Minerals — Minimi lease — Application for — Rierals— ' 'o"''«»*'''. described therein, thu precious metals in, ui>on, and under such public lands are now vested in the Crown as represented by the Dominion Government. Attorney General of British Columbia v. Attorney General of Canada. — xiv. .S4o. ['I'he jud>;ment in this case was, on appeal to the Privy Council, reversed. It App. Cases 'i'Jo.] 3. Interest in mine — Agreement as to — Partnership — Evidence. See PARTNERSHIP, 7. 4. Lease or license to work iron ores — Construction of instrument — iS Amie c. 14, s. 1. See LEASE, 5. 5. Mining lease — Covenants — Lialiility to pay rent or royalty according to quantity of ore found — Right of lessee to ter- minate lease, See LEASE, (5, 0. Agreement between two persons to buy mining lands on spec- uhitioji — Renewal of airreemeut from time to time — Secret sale by one partner — Relation back of sale to date of original agreement. See PARTNERSHIP, 11. 7. Lease of mining riglits — Option of locating — Estoppel. See ESTOPPEL, 13. Minor.— Sale to tutor — Prescription— Arts. 2243, 2253, C. 0. See TUTUR AND MINOR, 1. 2. Obligation of — Loan to tutor without authority— Ratification — Use of money for benefit of — Personal remedy — Arts. 297, 298, C. C. See TUTOR AND MINOR, i. 3. Commercial or joint stock company — Shares held " in trust " for minor— Sale of —Tutor— Arts. 297, 298 & 299, C. C. See TRUSTS AND TRUSTEES, 18. Mischievous Animal — Injury committed by — Ownership — Sc'ieu' ter — Evidence for jury. W. brouf^htan action for injuries to her daughter committed by a dogowned or harboured by the defoudant, V. The defence was that V. did not own the dog, CAB. I)UK— 31 530 Mischievous Animal—^ 'nntinuvd. and had no kno\vIedf{o tlmt lio was vicious. On the trial it was shown that the ilog was formerly owned by a man in V.'s employ, who lived and kept the dog at V.'b house. When this man went away from the place he left the do^ behind with V.'s son, to be kept until sent fur, and afterwards the dog lived at the house, j^oing every day to V.'s place of business witii him or his son, who assisted in the business. The savage disposition of the dog on two occasions was sworn to, V. being present at one and his son at the other. V. swore that he knew nothing about the dog being left by the owner with his son until he liuard it at the trial. The trial judge ordered a non-suit, which was set aside by the full court, and a new trial ordered. Held, aflirming the judgment of the court below, that there was ample evidence for the jury that V. harboured the dog with knowledge of its vicious propensities, and the non-suit was rightly set aside. Present :— Sir W. J. Ritchie, C.J., and Strong, Tascliereau, Gwynne and Patterson, JJ. Yaughan y. Wood. -March 10, 1890.— xviii. 703. Misdirection — Application for policy of insurance — Answers of applicant — Reasonably fair and truthful. See INSURANCE, LIFE, 0. 2. In not subniittinfr question to jury. See INSURANCE, MARINE, 21. 3. Direction to jury — Action for libel — Innuendoes — Withdrawal of from jury — Prejudice to defendant — Excessive dania<5'e.s. See LIBEL, 4. PRACTICE, 11. 4. Charge to jury — Refusal to instruct juiy as to what constitutes fraud under Statute of Elizabeth — Taking- accounts — New trial. See PRACTICE, 20. 5. New trial ordered by court below — Interference with order for — 1\ 'igligence — Damage by fire — Hparh arrester. On the trial of an action for damages for the destruction of a barn and its contents by fire, alleged to have been caused by negligence of defendants in working a steam engine used in running a hay press in front of said barn, the main issue was as to the sufficiency of a spark arrester on said engine, and the learned judge directed the jury that " if there was no spark arrester in the engine that in itself would be negligence for which defendants would be liable." Plaintiff obtained a verdict which was set aside by the court en banc, and a new trial ordered for misdirection. On appeal to the Supreme Court of Canada : 631 Misdirection— Continued. Held, Htron^, J., diHHcntin^, that tho jiul^'o misdirected the jury in tellin){ them that the want of a Hpaik iirrcHter was, in point of law, noj^lixence and such direction may have inllnenced them in giving their verdict ; therefore the judgment ordering a new trial should not be interfered with. Peers v. Elliott, -xxi. 1rospectus — Fraudulent concealment — Action for deceit. See CORPORATIONS, 24. 4. Fraudulent, as to security given in payment of "oods. S,e SALE OF GOODS, 14. •5. Contract, rescUsion of — Fraud — Proof of . A party wlio seeks to set aside a conveyance of land executed in pursuance of a contract of sale, for misrepresentation relating to a matter of title, is bound to establish fraud to the same extent and degree as a plaintiff ni an action for deceit. Bell Y. Macklln.-xv 576. Mitoyennete. — Common wall. Held, that an owner of property adjoining a wall cannot make it common unless he first pays to the proprietor the part he wishes to render common, and half the value of the ground on which such wall is built. Joyce V. Hart.— 1. 321. Monopoly — Telegraph line — Contract by foreign corporation for — Exclusive right over line of railway — Restraint of trade. See CONTRACT, 36. CORPORATIONS, 43. " More or Less " — Effect of — Lands sold by the acre. See SALE OF LANDS, 22. 532 Mortgage — Agreement to postpone — Non-registration — Priority. In 1861, W. M., the owner of real estate, created a mortgage thereon in favour of J. T. for 94,000. In 1863 he executed a subsequent mortgage in favour of J. M., the appellant, to secure the payment of $20,000 and interest, which was duly registered on the dayiof its execution. In 1866, W. M. executed another mortgage to the respondent C, for the sum of 54,000, which was intended to be substituted for the prior mortgage of that amount, and the money obtained thereon was applied toward the payment thereof, and J. M. executed an agreement under seal — a deed poll — consenting and agreeing that the proposed mortgage to respondent C. should have priority over his. In 1875, J. M. assigned his mortgage for $20,000 to the Quebec Bank, without notice to the bank of his agreement, to secure acceptances on wliich he was liable, which assignment was registered, and superseded the agreement, which C. had neglected to register. C. filed his bill against' the executors of W. M., and against J. M. and the bank. The Court of Chancery held that the respondent was uot entitled to relief upon the facts as shown, and dismissed the bill. The Court of Appeal affirmed the decree as to all the defendants, except as to J. M., who was ordered to pay off the respondent's (plaintiff's) mortgage, principal and interest, but without costs. J. M. thereupon appealed to the Supreme Court of Canada. Held, affirming the judgment of the Court of Appeal, Strong, J., dissenting, that as appellant could not justify the breach of his agreement in favour of C, he was bound both at law and in equity to indemnify C. for any loss he sustained by reason of such breach. McDougall Y. Campbell.— vi. 502. 2. Limitatiovs — Statutes of — C. 84, s. Jfi and c. So, ss. 1 & G, Con. Stats. X.B. — Covenant in mortgage deed — Payment by co- obligor. J. H. borrowed |4,000 from M. C. on the 27th September, 1850, at which date J. H. & J. W. gave their joint and several bond to M. C, conditioned for the repayment of the money in five years, with interest quarterly in the meantime. At the same time, and to secure the payment of the $4,000, two separate mortgages were given : one by J. H. and wife on H.'s wife's property, and one by J. W. and wife on W.'s property. Neither party executed the mortgage of the other. The mortgage from J. W. contained a provision that upon repayment of the sum of £1,000 and interest, according to the condition of the bond, by J. \V. and J. H., or either of them, their, or either of their, heirs, etc., then said mortgage should be void; a similar provision being inserted in the mortgage from -J. H. The bond and mortgages were assigned to L. ft ill. (tlio appellants) in 1870, and the principal money has never been paid. J. W. died in 1858, and by hia will devised all his residuary real estate, including the lands and premises in the above-mentioned mortgage, to G. W. (one of the respondents) and others. J. W. , in his lifetime, was, and since his death the respondents have been, in possession of the premises so mort- gaged by J. W. Neither J. W., nor any person claiming by, through, or under him, ever paid any interest on said bond and mortgage, or gave any acknow- ledgment in writing of the title of M. C, or her assigns. J. J. H., the co- 533 Mortgage— C'(JH*/n((('(/, obligor, paid interest on the bond from its date to 27th March, 1870. On 20th January, 1881, under Consolidated Statutes of New Brunswick, c. 40, a suit of foreclosure and sale of the premises inortf^aged by J. W. was commenced by tlie appellants in the Supreme Court of New Brunswick in equity, and the court gave judgment for the rnspondents. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the court below, Strong, J., dissenting, — 1. That all liability of J. W.'s personal representatives and of his heirs and devisees to any action whatever upon the bond was barred by ss. 1 it G of c. 85 Consolidated Statutes of New Brunswick, alt.'iough payment by a co-obligor would have maintained the action alive in its integrity under the English Statute 3 <& 4 William IV. c. 42, 2. That the right of foreclosure and sale of the lands included in the J. W. mortgage was barred by the Statute of Limitations in real actions, Cons. Stats. (N. 15.), c. 81, s. 40. Fer Gwynne, J. — The only person by whom a payment can be made, or an acknowledgment in writing can be signed, so as to stay the currency of the Statute of Limitations to a point which, being reached, frees the mortgaged lands from all liability under the mortgage, must be either tlie original party to the mortgage contract, that is to say, the mortgagor, or 3ome person in privity of estate with him, or the agent of one of such persons, and that moneys paid by J. H. in discharge of his own liability had none of the characteristics or quality of a payment made under the liability created by W.'s mortgage. Lewin v. Wilson.— ix. 037. [The case was appealed to the Privy Council and the judgment of the Supreme Court reversed. See 11 App. Cases, 639.] 3. Mortgagee of vessel who assigns as collateral security has au insurable interest — Notice of abandonment by. .SVe INSURANCE, MARINE, 5. 4. R. S. 0. c. 104- — Wrongfal didressfor mortgage 'money. A mortgage made in pursuance of the Act respecting Short Forms of Mortgages, II. S. O. c. 104, contained the clauses mentioned in the statute, and among the rest those which provided that the moitgagees on default of pay- ment for two months, might on one month's notice, enter on and lease or sell the lands; that they might distrain for arrears of interest, and that until default of payment, the mortgagors should have quiet possession. In addition to the statutory clauses the mortgage contained the following provision and variation : " And the mortgagor doth release to the company all his claims upon the said lands, and doth attorn to and become tenant at will to the com- pany, subject to the said proviso." Held, per Strong, Fournier and Henry, JJ., affirming the judgment of the Court of Appeal for Ontario, Ritchie, C.J., and Taschereau and Gwynne, JJ., contra, that upon the proper construction of the deed there wa« no reservation of rent entitling the mortgagees to claim a landlord's right as against aa 534 Mortgage — Cuntinwd, execution creditor of a year's arrears of interest on their niortgaj^e before removal of ^,'oocls on morti»aHetl premises by the sheriff. The court beinj; equally diviileil tlie appeal was dismissed without costs. Trust & Loan Company y. Lawrason.— x. (579. 5. Of shares. See CORPORATIONS, 11. 6. Of estale tail— Statutory discharge, effect of—R S. 0. c. Ill, ss. 9 i(- 67. Held, reversing the judgment of the court below, Henry, J., dissenting, that the execution and registration, in accordance with the Revised Statutes of Ontario, c. Ill, s. 07, of a discharge of a mortgage in fee simple made by a tenant in tail reconveys the land to the mortgagor barred of the entail. Lawlop Y. Lawlor.— X. 194. 7. By railway company of road. ... See RAILWAYS AND RAILWAY COMPANIES, 1. 8. Statute of frauds — Bdl for redemption — Absolute deed — Parol evidence to show that it was to take effect as a mortgage held admissU>le — Evidence of plaintiff itncorrohorated insiifji,- cient—36 V. c. 10 (0.). The bill, which was tiled in 1870 by the children and heirs at law of Jesse W. Rose, alleged that the deceased had, in 1801, conveyed certain real estate to his brother, Isaac Newton Rose, upon the expressed trust that he would advance him |1,000, and hold the property as security for the repayment of that sum with interest ; that he never did advance that sum ; that Jesse W. Rose died in 1872 ; that Isaac Newton Rose died in 1874, having devised this property to his son ; that the trusts upon which it had been conveyed had been fulfilled ; and sought an account of Isaac Newton Rose's dealings therewith. The defendant, the executor and executrix of Isaac Newton Rose, set up an absolute sale, and relied on the Statute of Frauds and the 8tatute of Limitations. The evidence will be found set out fully in the report of the case in the court below {see 3 Out. App. R. 309) ; part of such evidence consisted of the testimony of Colin Henderson Rose, one of the plaintiffs, a son of Jesse W. Rose, to the effect that his father being in difticulties in 18()1, Isaac Newton Rose told him (C. H. R.) that he would take an ast>ignment of the property, pay off certain mortgages thereon, advance Jesse W. Rose ^1,000 and reconvey it at any time. Proudfoot, V. -C, made a decree directing an account, and allowing tlie plaintiffs to redeem the lands on payment of the amount due to the defendants in respect of the advances made. The Court of Appeal for Ontario held that the evidence showed the traua- , . . action to be a sale, and reversed the decree, Patterson, J. A., being of opinion 535 Mortgage — Continued. that oral evidence was not admissible to vary the deed, and Burton, J. A., being of opinion that the evidence of Colin required corroborution under 3C V. c. 10, (O.). Blake, V.-C, dissented, holdinj^ that parol evidence was admissible, and that he was not prepared to decide against the judgment of the V.-C. in determining the weight to he attached to the evidence. On appeal to the Supreme Court of Canada, Held, that parol evidence was admissible to show that the absolute conveyance was intended to take effect as a mortgage, but the judgment of the court below, so far as it proceeded upon the ground tluit the testimony of the plaintiff, Colin Henderson Rose, required confirmation, was correct and ought to be aftirmed. Appeal dismissed with costs. Rose Y. Hickey. — 13 ]M;irch, 1880. 9. Deed intended to operate as — Purchase for value ivithoui notice — Rerjistratlon — Mortgage or sale — ParcJatse with Kjreement to resell — Amendment, right to order, under A. J. A. (0.), s. 60. The plaintiff, alleging herself to be the owner of the land in dispute, filed her bill alleging that she conveyed the said lands on the Slst day of August, 18(10, to one James McFarlane, deceased, by a deed absolute in form, but which was intended to be a security only for the repayment of the sum of $500, then advanced by McFarlane to her ; that subsequently McFarlane, by deed absolute in form, dated the 13th of June, 1871, conveyed tlie lands, to defend- ants Rose and McKenzie ; that Rose and McKenzie had at the time of the conveyance to them notice of the plaintiff's rights ; that subsequently and on tlie 21st of June, 1872, the defendants Rose and McKenzie conveyed the lands, by deed absolute in form, to the defendant Thomas liurke ; that Burke had, before the time of tlie conveyance to him, notice of tlie plaintiff's rights ; that in order to secure the payment of part of liis purcliase money to the dofeudants Rose and McKenzie, Burke mortg. ',ed tlie lands to them by indenture of mortgage dated the Tith day of July, i872, which they subsequently assigned to one Watson ; and she prayed that it might be declared that the deed to McFarlane was intended to operate only as a security and that the plaintiff might be let in to redeem the lands ; and that the defendant Burke might be restrained from cutting timber and ordered to account for the timber cut ; and that the defendants might bo ordered to remove the mortgage made to Rose and McKenzie, and for other relief. By their answers, the defendants. Rose, McKenzie and Burko, while admitting that the conveyance to McFarlane was intended only to operate as a security, denied that they had any notice of that fact, and claimed to be entitled to hold the lands as purchasers for value without notice of the plaintiff's claim. Tho cause was heard by Spragge, Chancellor, before whom evidence on the part of the plaintiff and dofenelanis was taken on tho atl; of May, 1875. Dur- ing the progress of the cause, and before the evidence liad all been adduced, and before any argument of the case, an application was made to his Lordship, 536 M rtgage — Om tinned. on behalf of the defendant Burke, for leave to file a supplemental answer, setting up the registry laws as a defence to the plaintiff's claim. This was refused, and a decree was made declarinf? that the conveyance to McFarlane was only as security for the payment of the ?500 ; that Rose and McKenzie bought with actual knowledge of the plaintiffs claim, and that Burke bouf^ht from them with actual notice. Burke then appealed to the Court of Appeal for Ontario, which court held that the evidence did not shew that Burke had actual notice of the plaintiff's claim when he purchased, that the amendment should have been allowed, and that the Court of Appeal had power then to allow it under the A. J. Act, s. 50, but as it would not be proper to conclude the plaintifY without an opportunity of producing further evidence, the case was sent down for another hearing. Proudfoot, V.-C, dissented, on the ground that the permission to amend was in the discretion of the judge, and that the court should not interfere with his decision. Sec McFarlane v, Peterkin, 4 Ont. App. R. 25. On appeal to the Supreme Court of Canada, Held, i>er Gwynne, J., (lelivering the judgment of the court, that the judgment refusing the amend- ment was properly appealable to the Court of Appeal for Ontario, but when that court had made an order allowing the amendment in the exercise of its discretionary power, it might be doubted whether the Supreme Court had jurisdiction to entertain an appeal from such order. Assuming the Supreme Court to have such jurisdiction, it should be chary in exercising it, lest by so doing It should injuriously fetter the very extensive discretion in matters of amendment with which the Legislature of Ontario had thought fit to invest all courts in that province. The doctrine that where a purchaser without notice has paid a portion of the purchase money and has given a mortgage for the balance, arid before pay- ment of this mortgage becomes affected with notice of an equitable title in plaintiff, who subsequently tiles a bill to set aside the sale, the purchaser shall be entitled to no relief or consideration whatever in a court administering ccjuity in respect of the purchase money paid before he became affected with notice, was questioned in Totten v. Dour/las, 18 Grant, 352, and the assertion of it in this case for the purpose of supporting the decree was also a reason for afiirming the allowance of the amendment. These claims of transfers of the legal estate to relations upon an alleged verbal promise to hold as a mortgage subject to redemption, or to recovery upon repayment of a sum of money, ought to be scrutinized with the utmost jealousy, but more especially when the rights of third persons who have paid large suma of money to the apparent owners upon the faith of their title beirtg good are brought in question, and it might prove promotive of the ends of justice that the allowance of the pro- posed amendment would give further opportunity for the consideration of this point. Further, the decree took no notice of tlie interests of Watson, the assignee of the mortgage, who could not be deprived of the estate by anything done in the suit as constituted. Per Ritchie, C.J., dissenting. — The Supreme Court should determine whether or not the Chancellor was right in his opinion that the amendment 537 Mortgage — Cuntinued. refused by him, and directed by the Court of Appeal, would not on the facts as proved be of any avail to the defendants if it had been ou the record at the time of his decision; and if not the amendment should not have been allowed by the Court of Appeal, but the judgment of the Chancellor should have been affirmed . Appeal dismissed with costs, Ritchie, C.J., and Henry, J., dissenting. — 21st June, 1880. The defendant Burke subsequently put in a supplemental answer denying notice of the plaintiffs claim, and claiming the protection of the registry laws, and that he was a purchaser for value without notice. The case was again brought on for the examination of witnesses and hearing, on 31st March, 1881, before Spragge, C, who held that the defendant had notice of the plaintiff's claim at the time he purchased, and was not a bona fule purcliaser for value without notice. On appeal to the Court of Appeal for Ontario that court was equally divided. See sub nomine McFarlane v. Peterkin, 9 Ont. App. R. 429. On appeal to the Supreme Court of Canada, Held, Gwynne, J., dissenting, that the redeemable character of the transaction being admitted on the plead- ings, was not open to discussion. The only point to consider was whether the learned Chancellor was wrong in finding as matter of fact that the defendants had actual notice. If they had actual notice this would defeat the registered title. The court being unable to say the learned Chancellor was wrong, thought the appeal should be dismissed. Per Gwynne, J., dissenting, that the transaction was a sale of the land to McFarlane, and the evidence only established that McFarlane verbally and voluntarily, and so in a manner not binding upon him, promised James Peter- kin, who acted as plaintiff's agent, and whom McFarlane regarded as selling the land although the deed was made by the plaintiff, that he might re-pur- chase the land, and that he (McFarlane) would resell and reconvey it to him upon reijayment of the sum of $500 at any time during his (McFarlane's) lifetime ; and further, that there was no evidence establishing any notice whatever binding upon the defendant Burke, or which could have any effect to defeat his purchase. Appeal dismissed with costs. Rose Y. Peterkin.— 12th January, 1885. — xiii. G77, 10. Assignment of mortgages as collateral security — Duty of Assignee as to collecting — Bond, action on — Equitable 2)lea — Transfer of action to Court of Chancery under Administration of Justice Act, (0.). Action on a bond conditioned to pay the sum of £18,250 on 1st July, 1863, with interest at six per cent, half yearly in advance. Plea upon equitable grounds, in substance, that before the making of the bond the plaintiffs through the late John Hillyard Cameron, their trustee and manager, agreed to advance to defendants the sum of £18,250 by transferring to them certain sterling debentures of the town of St. Catharines to that amount, for which the defen- dants should give to the plaintiffs good mortgages upon real estate to be 588 Mortgage — CoutinKnI. approved by plaintiff's said manager, and that in the meantime the defendants should execute said bond, but that the debentures should only bo handed over to the defendants as and when such approved niort>»af,'es should be delivered to the plaintiffs ; that defendants assigned certain mortf^afjes and executed others upon their own real estate, which, were accepted and approved by plaintiff's manaf^er, who handed over debentures amounting; at their par value to iil4,000 stg. ; tiiat plaintiffs realized upon some, if not all, the mortgaj^es, and defen- dants also paid large suras on account and defendants believed their bond was fully paid, but had received no account, and as the payments were numerous and extended over many years and the accounts were complicated, they prayed that the suit should be transferred under the Admn. of Justice Act to the Court of Chancery and the accounts there taken. The case was transferred to the Court of Chancery, whore witli the consent of the parties, a decree was made referring it to the Master to take the account between the parties. The Master made his report and the defendants appealed therefrom on three grounds : — 1. Because the Master had not charged the plaintiffs with the amount of a draft for $1,097 with interest. 2. Because the Master ought to have charged the plaintiffs with the difference between £2,000 in sterling debentures and $8,000 currency, the amount due on a mortgage, referred to as the Ross mortgage. 3. Because the Master ought to have charged plaintiffs with interest on $6,484 (the amount of a mortgage given by one McQueen and assigned to the plaintiffs) from 10th August, 185'J. The first ground of appeal turned entirely on the weight to be given to the evidence on one side or the other respecting tlie draft in question, which the plaintiffs contended was an accommodation draft given by one of the defendants to their manager, the defendants alleging that it was given in payment of an instalment of interest. Proudfoot, V.-C, allowed the appeal on this ground and his judgment was upheld by both the (^ourt of Appeal and the Supreme Court of Canada. As to the second ground of the ap))eal, it appeared tliat among the mort- gages assigned to the plaintiffs was one for $l),481, bearing interest at IJ per cent., executed by one McQueen upon certain land sold to him by one of the defendants to secure the balance of purchase money. The hind was subject to a mortgage for $8,000, called the " Ross Trust Mortgage," and, at the time of the sale to McQueen, it was agreed the defendants shouUl pay off this prior mortgage. At the time of the assignment of the mortgage to the plaintiffs tiity were informed of this agreement, and to secure the plaintiffs, their manager retained two of the sterling debentures amounting to i;2,000 to pay this mortgage for $8,000. The defendants claimed that the plaintiffs were responsible for the application of the $8,000 out of the proceeds of the deben- tures from the Dth IMarch, 18G0, the date of the assigmnent of the mortgage, or that they should only be charged with $8,000 of the £2,000 sterling. The plaintiffs contended that nothing should be allowed, because their manager was also the manager of the Ross estate, and that the defendants consented to his retaining the two debentures in his character as agent of the Ross estate to be 539 Mortgage — Contimwii. aiiplied in satiafactiou of tlie Ross mortj,'age, which waa not satisfied until 1875. Proudfoot, V.-C, Held, that the oiiun lay ui)on tlio plaintiffs to establish clearly that the debentures passed from them to the defendants, and were held by Cameron as aj^ont of the lloss trust and not as their aj^ent, and as the evi- dence was insufficient to support this contention the plaintiffs should bear the loss. This holding; was also upheld by both the Court of Appeal and the Supreme Court of Canada. As to the third ground of appeal — although the plaintiffs took procoedings on tlie McQueen mortgage, the suit was conducted in such a dilatory- manner that the final order of foreclosure was not obtained till '2nd April, 187'', and the property was then sold by plaintiffs to McQueen at a price much less than the principal and interest upon the original mortgage amounted to. Proudfoot, V.-C, Held, that the defendants were no(. merely in the position of siirtities for tlio asnigiied mortgages, who could not make the plaintiffs liable for mere delay in proceeding upon the mortgages, but that when niort- ' gages, or judgments, or securities of these kinds are assigned, the assignees are affected with a trust in regard to them, wliioh imposes upon them the duty of diligence in tlioir management; the assignment removing tlie property from the control of the debtor, and placing it within the control of the creditor, im- poses upon him the duty of using proi)er exertions to render it effectual for tho purpose for which it was assigned. Tho plaintiffs were therefore liable for not> having collected the interest in question ; it having been lost l>y the wrongful act of themselves, or their manager, for whose conduct they were ros[)onsible. Tho Court of Appeal and the Supremo Court of Canada aflirmed tho judgment of Proudfoot, Y.-C. Appeal dismissed with costs. The Synod of the Diocese of Toronto y. Da Blaqulere.— l'2th Feb. 1S81. 11. Agreement in general terms to give a mortgage in part pay- ment of purcliase money is not complied with by as.signing a second morto-ao-e. See SALE OF LANDS, 11. 12. Foreclosure of mortgage — Sale of land under — Rigid to sue for residue of debt — Prohibition. The testator, Michael Kearney, jr., had given to tho plaintiff a mortgage on certain lands to secure tlie payment of some 17,000 due to the plaintiff, and had also given to the plaintiff a bond conditioned for the due payment of said debt according to the terms of the said mortgage. The mortgagor mado default in payment of the said money, and the mortgage was foreclosed, and the mortgaged premises were sold by the sheriff, according to the usual prac- tice, and bought in by the plaintiff for ?4,000. The sheriffs report of the proceedings under the decree of foreclosure and the sale of saiil land and 540 Mortgage — Continued. application of tho proceeila, was duly conflrmed by the court, and there being atill some ?:i,0 )0 due the phiintiff, lie brouj^lit this action on tho bond. The special case admitted that tiie procpedin^js in tlie foreclosure suit were regular in every respect, and also that the plaintiff hud since the said sale conveyed the lands in (juestion to a third party. The defendant applied for a writ of prohibition to I'ectrain the plaintiff from proceeding with the action, claiming that such action opened up the foreclosure, and the plaintiff, not being in a position to re-convey the mortgaged premises to the defendant, or the heirs of the mortgagor, his remedy on the bond was barred. The Supreme Court of Nova Scotia held that the English rule did not apply, as the practice was different in Nova Scotia, the sale of the mortgaged lands" not being the act of the mortgagee but of the court, and refused the writ. On appeal to the Supreme Court of Canada, Held, af^rming the jud);ment of the court below, that the mortgagee was not prohibited from proceeding on the bond to recover the residue of his debt. Appeal dismissed with costs. Chisholm y. Kenny.— 10th February, 1885. 13. Of interest in ship. See INSOLVENCY, 13. 14. Meclianic's lien as against prior mortgagee. See MECHANICS LIEN. 15. Assignment of equity of redemption in trust — Reconveyance — Foreclosure againist trustee — Subsequent sale — Power of sale, exercise of, by deed after foreclosure. Kelly gave a mortgage of leasehold premises to respondents, with covenant authorizing them to sell on default, with or without notice to the mortgagor, and at either public or private sale. The mortgage conveyed the unexpired portion of the current term and "every renewed term." Afterwards Kelly conveyed the equity of redemption in the mortgaged premises to one O.'S., in trust, to carry out certain negotiations, and left the country. During his absence the lease of the ground expired, and it was renewed in the name of O.'S. Default having been made in payment of interest under the mortgage, a suit was brought against O.'S. for foreclosure, prior to which O.'S., having been threatened with such suit, reconveyed equity of redemption to Kelly, but deed was never delivered. O.'S. then tiled an answer and disclaimer of inter- est in said suit, which he afterwards withdrew and consented to a decree, and the mortgagees subsequently sold the mortgaged premises to the defendant Damer for a sum less than the amount due ou the mortgage ; the deed to Damer recited the proceedings in foreclosure and purported to be made under the decree. Kelly brought suit to have the decree of foreclosure opened and cancelled, the deed to Damer set aside, and to be allowed to come in and redeem the premises. 541 Mortgage — ci /ni rclufser of sole under decree —Assiifnnient of niortfjdi/e — Stilt ute confvruuuij title — J Geo. II. c. 7,{Im2t.) —21 S.N. S. 4th ser. c. J(J, «. 4?. A. M. (lied in 1838 and by his will left certain real estate to hiw wife, ^I. M., for lier life, anil after licr death to their children. At tlio tinio of his deatli there were two small mort'^af,'e9 on tlie said real estate to one II. 1". T. which were subsequently foreclosed, but no sale was made under the decree in such foreclosure suit, lii IHll the mortgages and the interest of tlie niortsaj^ee in the foreclosure suit were assi<{iied to one J. IJ. U. who, in 18il), assigned and released the same to M. M. In 1811 M. M. the administrator with the will annexed of the said A. M., filed a bill in Chancery under the Imperial Statute r> Geo. II. c. 7. for the purpose of havinj^ this real estate sold to pay the debts of the estate, she having,' previously applied to the Governor in Council, under a statute of the Province, for leave to sell the same, which was refused. A decree was made in this suit and the lands sold, the said M. M. becoming the purchaser. She afterwards conveyed said lands to the Commissioners of the Lunatic Asylum, and the title therein passed, by various Acts of the Legislature of Nova Scotia, to the present defendants. 1\I. K., devisee under the will of A. M., brought an action of ejectment for the recovery of the said lands, and in the course of the trial contended that the sale under the decree in the Chancery suit was void, inasmuch as the only way in which land of a deceased person can be sold in Nova Scotia is by petition to tlie Governor in Council. The validity of the mortgages and of the proceeding in the foreclosure sale were also attacked. The action was tried before a judge without a jury and a verdict was found for the defendants, which verdict the Supreme Court of Nova Scotia refused to disturb. On appeal to the Supreme Court of Canada : Held, aflirming the judgment of the court below, that even if the sale under the decree in the Chancery suit was iu valid, the title to the land would be outstanding in the mortgagee, H. P. T., or those claiming under her, the assignment of the mortgages being merely a release of the debts and not passing the real estate, and the plaintiff, therefore, could not recover in an action of ejectment. Seville, that such sale was not invalid but passed a good title, the Statute 5 Geo. II. c. 7, being in force in the Province. Henry, J., duhitante. Held, also, that the statute c. 36, s. 47, R. S. 4th series (N.S.), vested the said land in the defendants if they had not a title to the same before. Henry, J., duhitante. Kearney v. Creelman.— xiv. 33. 19. Collateral security for mortgage — Proinis-sor}' note — Accommo- dation — Partnership — New mortgage — Dissolution of part- ner.ship — Retirement of borrower of note — Liability of remaining partner. See PARTNERSHIP, 9. 548 Mortgage Coiitimi,;!. 20. Mort;;'nL;o to luiiik us sctniritv t<>i" iiilvaiiccs— IJuiiU takiiif^ fur;^('ll i)>i[K!r ill rt'iii'Wnl ot" iiotfH — UL-k-iiSL' of nurt'ty. .See BANKS AND HANKINtJ, lo. 2\. Sale of niorff/df/rd hnuJs — Poircr of iiffovne;/~AHf/ii>ril// of CKjent — Hole on vrcilU — Poircr of sole, in )novt(ja(i< — Appli- cation of proceeds — JJictij of purrfmser. A power oi attorney by mortj^af^eea authorized their agent to enter and take posaoasion of the niortfjaged landa and sell tlie aamo iit public or private Biilc, and for the best price that could be f>ott(;n for them, and to execute all nccpsaiiry receipts, A'c, which receiptH "should effectually exonerate every purchaaer or other person takinf,' the same from all liability of aeeiuH to the ap]>licatiou of the money therein mentioned to be received and from being responsible for the loss, mis-application or non-application thereof." The aj^ent took possension and sold the land, receiving part of the purchase money in cash and the balance in a promissory note of the ])urchaser [)ayablo to him- self, which he caused to be discounted and appropriated the proceeds. The purchaser paid the note to the holders at maturity. Held, affirming the judgments of the court below, that the power of attorney did not authorize a sale upon credit, and the sale by the agent was, therefore, invalid, and the purchaser was not relieved by the above clause from seeing that the authority of the agent was rightly exercised. The sale being invalid the subsequent payment of the note by the purchaser could not make it good. • Rodburn y. Swinney.— xvi. 207. 22. Fire insurance — Insurable interest — Mortjxao'ee — Assiiniment of policy. See INSURANCE FIllE, 22. 23. Null and void — Granted by tutor — Ratification by minor on majority — Hypothecary action. Sec TUTOR AND MINOR, 4. 24. How affected by subsequent Assessment Act— Halifax A.ssess- meuL Act, 1«83— 46 V. c. 28, N. S.— Sale of mortgaged land for taxes — Lien — Construction of Act. See ASSESSMENT AND TAXES, 19. LIEN, 7. 25. Of railway property — Conveyance in trust — Liabilit}^ of trustee — Unpaid vendor of rolling stock — Privilege. See RAILWAYS AND RAILWAY COMPANIES, 55. 544 M OrtgAge— Clint in tted, 20. Ruto of interest on — Fixed time for payment of principal — " Until principal and interest shall be fully paid and satistie,'i J. — The execution of the deed by tlio mort^a^or eatopped him from dinputin^ the tenimcy, and the ninrtyageoH were aUo cHtopped by their acceptance of the mortf^anor n» their tenant, evidenced by thoir accepting; the deed, advancin({ their money upon the faitii of it and perniittinj,' tlie mortgaj;or to remal.i in posaesHJon. The niort(,'aKo deed, althouRli executed by the mort- ^{a^'or only, operated in any event to create a tenancy at will, at the aame rental a.-i tiiat exprcHsly reserved by the dunuHe clauHe. S. 'A of 8 it 1) V. c. lOt) (U. S. O. c. 100, 8. H), has not the effect of repealiut,' the words of the Statute of Fniudy which make the lease required by that statute to be in writing signed by the leBSor.so far effectual as to create a tenancy at will. /'(')• Gwynne and Patterson, JJ. — The niort^afio deed not having been signed by the mortgagees failed to create even a tenancy at will. I'vr Gwynne, J. — The form adopted for the demise clause is such that by the mort;.;agees executing the deed it would operate as a lease, and by their not executing; it the clause would be simply inoperative. I'l-r llitchio, C.J., and Taachereau, J.— The execution of the mortgaf;e by the mortgagor and continuing in jiossesaion under it amounted to an attorn- ment and the relation of landlord and tenant was created. The deed was intended to o[)erate as an immediate lease with intent to give the mortgagees an additional remedy by distress and was a bona fide contract for securing the payment of principal and interest, and in the absence of any bankruptcy or insolvency laws there was nothing to prevent the parties from making such a contract. Hobbs Y Ontario Loan & Debenture Co.— xviii. 483. 29. Non-rec/istration of- — Priority of tiithsecjuent mortgage — Sale under — Bar of dower. Certain land was devised to the testator's sons charged with an annuity to his willow who also had lier dower therein. The devisees mortga-icd the land to C. in March, 187',», and the mortgage was not registered until January, 1880. In November, 1879, a second mortgage was given to M. and registered the same month. In this mortgage the widow joined barring her dower and releasing her annuity for the benefit of M. Slie had had knowledge of the prior mortgage when it was made and had refused to join in it. The second mort- gagee, not being aware, when his mortgage was executed, of the prior incum- brance, gained priority, and the land was sold to satisfy his mortgage: the proceeds of the sale being more than sufticient for that purpose the surplus was claimed by both the widow and by C. Held, reversing the judgment of the Court of Appeal for Ontario, Gwynne and Patterson, JJ., dissenting, that the security for which the dower had been barred and the annuity released having been satisfied, the widow was CAS. DIC). — 3.5 546 Mortgage — ('(miinwii. entitled to the fund in tlio court as roprcHentint,' Ik.t iiitcn^Ht in tin; land in priority to C. Gray v. Coughlin.— xviii. !'>^>'A. '}(). Fire iriHurancc — Tn.suranc(! by inort;^amont creditorH of Home of tlie lieirH, and the Iobhco of the Queejn Hotel, part of the rnortf^aKcd property, under lease 547 Mortgage -<'"'"'""'■''. from Hoini! of tlie lieira, wert; not made piirlieH. Noiiu of tlin di f(Mi(liiiitn iipjiuarod and tlio iiquity of redemption of the mort>,'OKor and those claiming iiiidor liirn wiih liarri'd and fortioloHod, and tlic landH ordi-rcd to bu Hold on a day named. (Jn that day, on application of tlio Iohhcu of tiio (juuon Hotel, an fx parte, order waH made by tho Oliief Justice of the Hiipremo Oonrt of Nova Scotiii (lirectint^ tliat on jiayment into court of ^'M,Ul'.) I)y H. A K., further procoiHliiiKH by plaintiff nlionld bo Htayod until further order and that plaiii- tiffH Hhould c(invey tlio mortt^a>,'od lands and the suit and benotlt of proeeodintjH therein to H. cfe K., which direction was cornpli(!d with. On Uecembor 2()tli, IHH'.), deferKhmts m.j/ed to rewcind this ordc^r. 'I'lio motion was refused and tlio order amended by u direction that tho Iohhoo HJiould be made a diifendant to the action and S. (fe K. joined as plaintiffn, and that tho stay of proceediut^s be removed. (Jn Janiuiry Ith, iH'.tO, a further ord(!r was made dirociinn that the Queen Hotel property bo sold subject to tho ri;^litH of th(! I(^HH(!(). !''roin tiie two last inentioncid orders dofendaiitH appealecl to the full court which allirmed tinit of December 20tli and set anide that of Jiiiiuary Ith. ISotli parties ai>poalc(l to this court. Held, tliat the order of 2(>th l)ec(!inher, IHS'.), was rij^htly affirmed. Tlu) stay of procec;diri^H uudiir th ' ordor iinifme/, and l),-iii',' made 'it the instance of a leHsee, and as Hucli a purchaser /)/v) lanln, of the luortt^ii ;erl lands who had a ri^ht to n ileem it was in tho discretion of tiie (Miief Justice so to order. To the direction that i)laintiffs should convey tho lands to S. (V K. defendants had no litciin slundi to object, and they were not pn^judiced by tho addition of parties made by tho ordor. .Nor had defendants a ri^ht to object to tho removal of the stay of procooduiKs and any riylit subse- (pient incimibiancers not before the court mii^iit have to complain would not be alfeotud by tiie order made in their abseuc'. Moreover, bijlwoon the date of the order and the aiipeal to tlii! full court tlus property liavm^ been sold under the decree the purchaser not bi;inj^ Ijel'ore the (jourt >,vas a Hiilficieiii, ground for dismiHsiiif^ the a[ipeal. Held, furllK^r, that the ord(!r of January Ith, IHOO, shouM also ha\(' liecn aflirnied liy tlie full court. In H(!llini.! the mort;^a;;ed property the court, had a rieht to endeavour, to jireservo the I'ij^lits of the lessoo by selliiij,' lirst the por- tions in which she had no interest. Collins V. Cunnlntjham ) - x.xi i:i'.i. Cunningham v. Drysclalc. i .'{7. or ruilvvuy ItomlH as H(;cnril.y lor aniitted to the ratepayers ; there was hIho proviHion for compenHation to the owners of pro- perty injurioiiHly affected by such work, HUch cornpen- ation to be det('rrniiied Ijy arbitration under the I\Iunicipal Act if not mutually agreed upon. The municipalities not bein(4 able to aj,'ree, I'arkdale and the railway companies entered into an uj^reetnent to have a subway couHtructed at their joint expenscf, but under the direction of the municijiality and its en^^ineer, and on the appli- cation of Parkdale and the railway companies to the Privy Council of Canada, {jurportiiiK to *' made und<;r \i'i \ . c 21 (1).), an order of the I'rivy Council was obtainei' aui, ori/.inj^ the work to be done accordinj.' to the terms of such aii^reement. The municipality of i'arkdale then contracted with one G. for the construction of the subway, and a by-law providing! f'jr the raising of Parkdale's share of tiie cost of construction was submitleil to, and approved of, by the ratepayers of that municipality. In an action by the owner of property injured by the work : Held, jier Kitchie, (J.J., Fournier and Henry, JJ., that the work was not done by the municipality under the special Aot, nor merely as a^ent of the railway companies, and the municipality was therefore liable as a wron(^doer. I'er (jwynne, J.- -That the work should be considered as havint^ been done liudei* the special Act, and the plaintiffs were entitled to compensation there- under. Per Taschereau, J. — That tlie work was done by the municipality as a^jeut of th(! railway companies and it was therefore not lial)lf. West V. Parkdale.— xii. '2'<0. [On appeal tf) the Privy Council the judgment of the Hupreme Court wan afilirnied. 12 A pp. Cases, 00'2.J 7. Jiy-biw — JO V. c. Jf.H (0.) — lionuH to railv.ny — Vote of r(de- p(i yer-1 y-l(tv) for — Preinature consiileration of hy-lav) — /'Jrror in copy HuhnidteA to ratepayerH — SUjninfj and He(dinfj hy-law — To In- passed, l/y same conned. A by-law was submitted to the council of the city of O., under 30 V. c. 48, for the purpose of grantini; a lionus to a railway then in course of construction, and after consideration \ty the council it was ordered to be submitted to the ratepayers for their vote. IJy the notice published in accordance witli the 651 Municipal Corporation — Continual. jiruviHiorm of tlio utiituto hucIi by-law wiih to bo tiikon into conHiileration by tbe C(jutK;il after one montli from its firHt [mblication on the '2ttli of Septem- ber, 1H73. The vote of tlio rat(!))nyerH waw in favour of the by-hiw, and on 20tli October a nriotioii was made in the coiinoil that it bo read a Hecond and third time, which 'vas carried, and tiio by-hiw paused. Tlie mayor of tlio council, however, refuHed to Hi(4n it, on the (ground that itH conHideration waH preiruilure; and on 5th November the Hame motion waH made and the bydaw waH rejected. Nothinj^ more was done in the matter until April, 1871, when a tnotif)n waH a^^lin made before the council that Huch bydaw be read a Hcconrl and tiiird time, which motion was, on this occasion, carried. At this meeting a copy only of the byduw was before the council, the ori(i;inal having bcii mJHlaid and it wits not found .until after the commencement of this suit. When it was found it was discovered that the copy voted on by the ratepayers contained, by mistake of the printers, a date for the bydaw to como into f)[)cration ditfcrent from that of the orij^inal. In IHH'.i an action was brouf.dit at.;ainHt th(! corporation of the city rjf O., for tiie delivery of the deb(!nturi.s provided f(jr Ijy the by law, in wiiicli suit the f{ueation of the validity of the whole proceedings was raised. Held, attirtninf; the jud^^rnent of the court below: 1. That the vote of iiOtli November, lHT,i, was premature, and not in conformity witli the pro- visiona of h. 231 of the Municipal Act; that the mayor properly refused to sitjM it, and that without •.-.ndi hi-^iKttiue the by law was invalid under s. 22(;. 2. That the council had ()ower to consider the bydaw on .Oth November, 187.J, and the matter was then disposed of. '.i. 'J'hat the proceedings of 7th April, lb7i, were void for two reasons: One, that the Ijy-law was n(jt considered by the council to which it was first submitted as provided by h. 2'M'), which is to be construed us meanmi^ the council elected for the year and not tlie sarno corporation; and the other reason is, that the by law passed in l87i was not the same as that submitted, there beinj4 u dif'fereiico in the dates. Si:mhl(: that the functions of a municipality in considering; a bydaw after it has been voted on by tlm ratej)ayers are not ministerial onl}', but the bydaw can be coiilirnied or rejected irrespective of the favourable vole. Canada Atlantic Railway Co. v. Corporation of the City of Ottawa. — xii. .'Jlio. [The Privy Council t^ranted leave to appeal in this case, but the appeal was not prosecuted to a termination.^ 'S. Ne(jli(jence — xMa/iuir/firnent of ferry — Manner of rnooriiuj — Con- troM to carry — Ferry under control of corporation — JAahUify of corporation for injury to pannf . ,'oH for injury to a foot paHHen;,'er Huntaincid by Htrikinj^ her foot u^ainHt tho curbint,' while attemjitint,' to croHS tho Htreot. Htron;.; and l''ournior, J.J., diH- Honting. The Corporation of the City of London v Goldsmith. — .xvi. 231. 11. Aid to railway — Deliciitures si^^iKfd l)y wanliii dr farlo — Evidence of right to — Coinplction ol' lailway — Onus oi' pi'oof of. See KAILWAYK ANlJ RAILWAY COlirAMES, o2. 12. Koail ailowance^ — Oblij^ation of municipality as to oponin;^ — Suti.stitution «jf new i'(jad in lieu (jf (jri;^inal i'(;a'{]. Sec HIGHWAY, 4. l.'{. ln(|uiry into civic aH'airs — County Court judj^o — FunctionH of, in making in(|uiry — Control of, by court. ■SVe PUOHII3ITION, 7. r>r,n Municipal Corporation Cinitinncil. Ik Aii/xrinbiumt of board of hcoMh — H. S. A.(S', 4f/> "'">'■ ''■ ''''f-'>7 V. v.. C, s. / (NX)—p V. r. I, X. ar (N.H.)—l':i,i;i,loiimn,l of j)h ijn I <• Kill — lii'iiHOiuihb: cfpt'iisfs — (,'o iiHtriirJ i,o n, of ciniJ ni c.f, — Al.tciuhinci', upon Hiiudl-pox 'jxtllcidH for the hc.hhoh, — iJlu- 7iiiHN(d — Form of ramcd y — M^o on the county, and the municipality was, therefore, not liabio. I'lT Patternon, .1. 'J'hat the proper renKidy for tlio recovery of the (.'xponHOH mentioned in Haid h. 12 in by action and not by mandamuH to compel an aHHeHiinient, but a clainj for dama^eH for wron^jful diHmiHHal dooB not como v/ithin tb(! Hoction and iu not made a county charge. Municipality of tlie County of Cape Breton v. McKay.— xviii. C'ilK 554 Municipal Corpora.tion— Continued. 15. Slatufor;/ 'powern — Control over Htreds — Alteration of grade — Neffllfjence — Contributory neyllrjence — -/^ V. c. 1 1 (N.li.) — V>'v'.c.Gl (N.li.). Tlie Act of Incor[)oriition of tlio town of Portlanrl, 84 V. c. 11 (N.B.). which rbiiiuiiibd in force when the town wan inccjrporated an a city hy 15 V. c. 01 (N.IJ), empowered the corporation to open, lay out, ret;ulatc, repair, amend and clean the roadH, streeta, etc. Held, that tlie corporation liad authority, under this Act, to alter the level of a Htreet if the puljhc convenience n.-quired it. W. waH owner and occupant of a houBo in Portland nituate several feet ba-jk from tlie Htreet with HtepH in front. The corporation cauued the Htreet in front of the liouHe to bo cut down, in doint,' which the Hte[)8 were removed and the liouse left Home Hi.\ feet above the road. To iif'X down to tlio Htreet W. placed two Hmull piaiikH from a platform in front of the iiouHe and bin wife in K'^ing down tliene phmkH in the neceHsary courwe of licr daily a\f)cationH Hlipped and fell receivinf,' Hevere injuricH. She had used the plankn before and knew that it wan dan^erouH to walk up or down tlieni. In an action a^^ainnt the city in conHe- (juence of the injuriea ho received : Held, affirminf{ the judgment of the Suprtano Court of New BniriHwick, that the corporation havin^^ authority to do the work, and it not being shown that it waH negligently or improperly done, the city was not liable. Held, alHo, that the wife of W. was guilty of contributory negligence in UHiiig the plankH as she did knowiiif; that hucIi uho wast dangeroim. Williams v. The City of Portland, -xix. ir/.i. If]. Confititutional law—B. N. A. Act, .s.s. .9/ (0 02 — Inti-reHt — Lefjin- lallre aidhorlty orjtr — Municipal Act — 49' V. r. f)*, h. (iid \ 00 V. c. JO, .s. 4-J (Man.) — Taxation — Pemdlji for not pay- ing taxes — Additional rate. The Municipal Act of Manitoba provides that perHOUH paying taxes before December 1st in citien, and December .HlHt in rural muircipalities shall be allowed 10 per cent, discoinit; that from tliat date until March Ist the taxoH shall be payable at par ; and after March Ist, 1(J per cent, on the original amount of the tax shall be added. Held, reversing the judgment of the court below, Gwynne, J., disHenting, that the 10 per cent, added on March Ist was only an additional rate or ta.\ imposed aa a penalty for non-payment which the local legislature, under its authority to legislate with respect to niuiiici[ial iimtitutioiiH, had power to im- pOHe, and it was not " interest " within the meaning of s. '.)1 of the H. N. A. Act. liODK V. TurruHCi', 2 Legal News, IWi, overruled. Lynch v. The Can. N. W. Land Co., South Duffcrin v. Mordcn, Gibbins Y. Barber.— XIX. 204. Municipal Corporation— ^'"/ittHW'/. 1 7. (^yrponition — (foiitract of — iSVr/i — Pfn'formance — Atfopfion — Municipality — Jiy-iavj — Md/ultoljn, Mn/nicipo.l Arf, /sw.^, A (;or[ioratioii i» liable on an execiitcil coiitruct for the porformaiiee of work within lliu piiriiosoH for wliich it was created, wliiuh work it han adoiitcd and of wliicli it Ikih received tlie benefit tliou^ii the contract was not executed under it» corporate Heai, anil tiiiH aiipIieH to municipal aH well au other cor|)0- ratioim. Ritchie, C.J., and Stron^^, J., dinnentin^. In M. Ill of the Manitoba Municipal Act, iHHt, which provider that muni- cipal cor[)oralionH may pawH by-laWH in ndation to inatterH therein ' iiiunerated, the word "may" in permiHwivo only and doeH not prohibit (;or[)orationH from exercihinj; their jurisdiction otherwise than by by-law. Ritchie, ('..]., ami Htronf^, J., tlisscntin'^'. Bernardin v. The Municipality of North Duffcrin. — xix. '^nl. See MUNICIPAL CORPORATION, 2H. ]>>>. Cinislructinii of Metoer — HkjIiL Io mfcr IhikIh of odjoi uukj Hill ii/wipiditt/ — •licstricluniN — R. S. O. ISH7, <:. iHJf., s. J,'7'J, H-H. in. .',1 V. <: JS, H. .'0. (0.). i'lO V. c. 'M, s. '20, amending the Almiicipal Act of Ont. it. S. O \HHl, c. 181, 8, 47'.i. does not take away the restrictions iinfiosed by tlie Minncipal Act, and it is Btill necessary that the two niunicipaliticm interested shouiil settle liy uf^roement the terms and conditions of entry for construction of sewir from one niunici[)ality into tlie territory of liu' adjoinin'.^ inMni''i|)alitv, and if such af^reement cannot be had the ternia and conditions must be settled by arbitration. The judgments of the Court of Appi'il for Ontario (17 Ont. App. R. ;illi) and the Divisional (Jourt (18 O. R. I!)',H allinnijd. City of Hamilton v. Corporation of Township of Barton, -xx. 17:i. 19. By law of, iiMpoHiii;^- tu.K on 'rolaiii<-!H— Action to set a.si: — PoHition of hydro nt. L. was walking! alonj,' the sidewalk of a street in llalifa.x at niKlit wiien an electric lamp went out and in the darkness she fell over a hydrant and wa» injured. In an action asjamst tiu; city for daniaj.;es it was shown tliat there was a space of seven or eifiht feet between the hydrant and the inner lino of the sidewalk, and that L. was aware of the position of the hydrant and accus- tomed to walk on said street. Tiie statutes respoctinj^ the t,'overiiinent of the city do not obli^je the council to keep tlie streetn ii^^lited but autliori/.j them to enter into contracts for that purpose. At the time of tnis accident the city was lij^hted by electricity by a company who had contracted with the corpora- Municipal Corporation—' 'otuinuid. tion therefor. Evidence was ^iven to show that it was not posaiblo to prevent II Hinnle himi) or a batch of lampH nomn out at times. Held, i'eversiiit{ the jiulymcnt of tlio Kupronie Cotirt of Nova Scotia, Strong,' mill TnHcliereau, J.I., (liHHeiitiiit,', tliiit the city wiiH not liiil)lo; that the cor[)orivtion bein({ under no Htatutory duty to li>;lit the utreelM the rchition between it and the contractors was not that of maHter and servant, or princi- pal and a^jent, but that of employer and independent contractorH, and tiie corporation was not liable for ncf^lif^enco in the performance of the service ; that neitlier the position of the hydrant nor the tlickerin^; and f^oin^ out of tlio light was in itself evidence of nef^lijjonce in the corporation and that L. could have avoided the accident by the exercise of reasonable care. The City of Halifax v. Lordly.— xx. r»05. 2 1 . Improyemev t or altcru t io n of nt reel — Lowering (jrode — Inj a rij to (tdjdcent bind — Rnwd)/ — Action — (Jompeufxitiov ii/ader slidatory provinions — liij-lmv — 51 V. c. /fJ, •'*• -^^^ (B.C.). The Act iucorporatint^ the city of New Westminster, 51 V. o. 42 (B.C.), by 8. I'.lu, empowers the council of the city to order by by-law the openini^ or extending; of streets, etc., and for such purposes to acquire and use any land wjtiiiii the city limits, either by private contract or by complyinj^ with the formalities prescribed in sub-sections 3 and 1 of the said section, which provide for the appointment of commissioners to lix the price to be paid for such land ; sub-section 13 provides for the confirmation of the appointment and 15 for the deposit in court of said price by the council which deposit should vest in them lliu tit!t; tu aiiid land. Sub-section 17 of section 190 enacts that sub-sections 3 and 4 shall apply to cases of damaj^e to real or personal estate by reason of any alteration made by orikr of council in the line or level of any street, and for payment of the compensation therefor without furtlier formality. The council was authorized by by-law to raise money for improving? certain streets but no by-law was passed expressly orderuif^ such improvements. In one of the streets named in said by-law the tjrade was lowered, in doing which the approach to and from an adjacent lot became very diflicult and no retaining wall having been built the soil of said lot caved and sunk thereby weakening the supports of the buildings thereon. Held, affirming the decision of the court below, Ritchie, C.J., and Tas- chereau, J., dissenting, that tlie owner of said lot could maintain an action for the ilamage sustained by lowering the grade of the street and was not obliged to seek redress under the statute ; that sub-section 17 of section 190 which dispenses with formalities required by prior sub-sections only applies to cases where land is injuriously affected by access thereto being interfered with, and where land is taken or used for the purposes of work on the streets the corporation must comply with the formalities prescribed by sub-sections '^ and 4; that the street having been excavated to a depth which caused a subsidence of adjoining land the latter must be regarded as having been taken and used for the purposes of tlie excavation, and the council should have acquired it under the statute ; not having so acquired it, and having neglected to take 557 Municipal Corporation— <^""^""«f/. Hlttj)H to prevent tliu HubHidence of the adjacent land, they wore liiible for the damage thereby cauHed, Held, further, that the no>{lect to take such prccautionH was in itBclf, how- ever le^al the making of the excavation may have been if Hkiifiiily executed, Huch net{li({ence in tlie manner of oxecutin|4 it aH to entitle the owner of the adjacent land to recover damages for the injury suHtained. Held, per Patterson, J., that in tiie absence of tlio Htatntory preliminarief* a municipality lias no (greater ri^lit than any other owner of adjacent land to disturb the soil of a private person. The Corporation of the City of New Westminster v. Brighouse.— xx. 520. 22. Maintenance of counti/ hii'd court-house and jail at B. another town in the county, intending after they were built to petition the legislature to transfer the sittings of the Supreme Court to B. The corporation of L. caused an injunction to bo applied for and obtained restraining the municipal council from erecting a court-house and jail, for the general purposes of the county, at H. or expending in such erection any funds in which the municipality of C. or the town of L. or either of them, are interested. On appeal from the judgment granting such injunction : Held, that the municipality could not, under the statutory authority to establish and erect a court-house and jail, remove these buildings from the town of L. and so repeal and annul the statutes of the legislature which had established them in L. Without direct legislative authority therefor the county buildings could only be erected in the shire town. The injunction was, therefore, properly granted. Municipality of Lunenburg v. The Attorney-General of Nova Scotia. —XX. uOfi. 2^. Municipal hy-laxv — Votincf on — Casting vote of returning officer— 11 S. 0. 1887, c. 174, ^s. 152, 299. Section '20<) of c. 171 of the R. S. O. 18S7, provides that in case of a vote being taken on a municipal by-law, the proceedings at thy poll and for and 558 Municipal Corporation—' 'ontimial. incidental to the same and the purposes thereof shall he the same, as nearly as may be, as at municipul electioiis, and all the provisions of sections 116 to 1G9 inclusive of the Act so fur as the same are applicable, and except so far as is therein otherwise provided shall apply to the taking of votes at such poll and to all matters incidental thereto. And section 152, one of the sections relatinj^ to municipal elections so made applicable to the voting on a by-law, provides thf.t " In case it appears upon the casting up of the votes as aforesaid, that two or more candidates have an equal number of votes the clerk of the municipality, whether other- wise qualified or not, shall at the time he declares the result of the poll, fjive a vote for one or more of such candidates so as to decide the election." Held, affirming the judgment of the Court of Appeal for Ontario (14 Out- App. E. 299) , that this section 152 is not applicable to the case of a vote on a by-law, and the returning officer in case of a tie on such voting cannot give his vote in favour of the by-law. Present — Ritchie, C.J., and Strong, Fournier, Taschereau and Gwynne, JJ. The Canada Atlantic Ry. Co. v. The Township of Cambridge.— 24 L. C. J. 4!)9.~14th June, 1888. [The Privy Council granted leave to appeal in this case, but the appeal was not prosecuted to a termination.] 24. On*. Municipal Act, ss. 535 (3), 638 — Bridges over rivers cross- ing boundary lines — Deviation ofhotindary road — Liahil- ity of counties to repair bridges in — 4^2 V. c. J^7, (0.), effect of as to the Toxvnships of Verulam and Harvey — Territorial Act, R. S. 0. c. 5 — Toivnship fronting on lake. An action brought by the corporation of the County of Victoria against the corporation of the County of Peterborough to compel the latter corporation to contribute to the maintenance and repair of certain bridges. The facts will be found fully set out in the reports of the case in 15 O. R. 440, and 15 O. App. E. 617. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the Court of Appeal for Ontario, that the appeal should be dismissed. Per Strong, J. The appeal must be dismissed for the reasons stated by Mr. Justice Osier in the Court of Appeals. Per Patterson, J., Taschereau, J., concurring: I agree with the Court of Appeal that the rivers over which the bridges in question are built do not cross any road between the counties of Victoria and Peterborough and that the provision of s. 535 cannot aid the claim of the county of Victoria, because no road existing in law between the counties at the place in question there is no such deviation of a road. The bridges, if made where the rivers called the Big Bob and the Little Bob cross the original allowance, could not be said, since March, 1880, to be over rivers crossing the boundary line between the townships. A fortiori the bridge on the deflected road cannot be held to be over a river cross- ing the boundary line. 559 Municipal Corporation— Coiitinmd . Per Gwynne, J. The bridge in question is one across the stream flowing from Stur^jeon Lake into Pigeon Lake at a point distant over lA miles west of Pigeon Lake and in the village of Bobcaygeon, which is a village situate within the Township of Verulam, so that it is apparent: 1. That this is not a bridge over a river forming or crossing any boundary line between two municipalities, so as to come within s. 535 ; and 2. As there is no river which in point of fact does cross the boundary line between the two townships at any place, no question of deviation within the meaning of the section does or can arise. The bridge is one across a river wholly within the limits of the village of Bobcaygeon, and which is said to exceed 100 feet in width. The bridge, therefore, seems to come within the provisions of s. 534 of the Act. It certainly does not come within a. 535. Present. — Strong, Fournier, Taschereau, Gwynne, and Patterson, JJ. The Corporation of the County of Victoria v. The Corporation of the County of Peterborough.— 14th June, 1889. 25. Control over streets — Duty to repdir — Transferred powers — Negligence — Notice of action — Defence not pleaded — 34- V. c. If (NB.)—J5 V. c. 16, (N.B.). The Act incorporating the town of Portland, 34 V. c. 11 (N.B.), gives the town council the exclusive management of and control over the streets, and power to pass by-laws for making, repairing, etc., the same. By s. 84 the provisions of 25 V. c. 16 and amending Acts, relating to highways, apply to said town and the powers, authorities, rights, privileges and immunities vested in commi'3sioners and surveyors of roads in said town are declared to be vested in the council. By another Act no action could be brought against a commis- sioner of roads unless within three months after the act committed, and on one month's previous notice in writing. The town of Portland afterwards became the city of Portland, remaining subjoct to the said provisions, and eventually a part of the city of St. John. An action was brought against the city of Portland by C. for injuries sustained by stepping on a rotten plank on a side-walk in said city and break- ing his leg. More than a mouth before the action was commenced plaintiff's solicitor wrote to the council notifying them of the injuries sustained by plaintiff, and concluding : " As it is Mr. Christie's intention to claim damages from you for such injuries, I give you this notice that a prompt inquiry into the circumstances may be made and such damages paid as Mr. Christie is entitled to :" except this no notice of action was given, but want of notice was not pleaded. The jury on the trial found that the broken plank was within the line of the street, and that the council, by conduct, had invited the public to use said sidewalk. After Portland became a part of St. John the latter city became defendant in the case for subsequent proceedings. Held, Strong, J., diBJenting, that the city was liable to C. for the injuries 80 sustained. Held,;)fr Ritchie, C.J., and Strong, J., that the letter of the solicitor was not a suiHcient notice of action under the statute. 560 Municipal Corporation — Continued. Per Ritchie, C.J. If notice of action was necessary the want of it could not be relied on as a defence without being pleaded. Per Taschereau, Gwynne and Patterson, JJ. Notice was not necessary ; the liability of the city did not depend on s. 84 of 34 V. c. 11, but on the sections making it the duty of the council to keep the streets in repair ; and the only privilege or immunity possessed by the commissioners and surveyors of roads was that of exemption from the performance of statute labour. Per Strong, J. One of the "immunities" declared to be vested in the council was that of not being subject to an action without prior notice, and no notice having been given in this case C. could not recover. City of St. John v. Christie.— xxi. 1. 26. Draivacjc of lands — Injury to other lands hy — Remedy for — ArhiiraHon — Notice of action — Mandamus. By 9. 483 of the Ontario Municipal Act, R. S. O. [1887] c. 184, if private lands are injuriously affected by the exercise of municipal powers the council shall make due compensation to the owner, the claim for which, if not mutually agreed upon, shall be determined by arbitration. Held, reversing the judgment of the Court of Appeal, that it is only when the act causing the injury can be justified as the exercise of a statutory power that the party injured must seek his remedy in the mode provided by the statute; if the right infringed is a common law right and not one created by the statute, remedy by action is not taken away. By H. 569 of the same Act the council, on petition of the owners for drainage of property, may procure an engineer or surveyor to survey the locality and make a plan of the work, and if of opinion that the proposed work is desirable may pass by-laws for having it done. Held, reversing the judgment of the Court of Appeal, that the council has a discretion to exercise in regard to the adoption, rejection or modification of the scheme proposed by the engineer or surveyor and if adopted the council is not relieved from liability for injuries caused by any defect therein or in the construction of the work or from the necessity to provide a proper outlet for the drain when made thereunder. The Act imposes upon the council, after the construction of work proposed by the engineer or surveyor, the duty to preserve, maintain and keep in repair the same. The township of R., in pursuance of a petition for draining flooded lands and surveyor's report, constructed a number of drains and embankment. Thtse drains were led into others formerly in use which had not the capacity to carry off the additional volume of water, but became overcharged and flooded the land of W. adjoining. Held, that the municipality was guilty of neglect of the duty imposed by the Act, and W. had a right of action for the damage caused to his land thereby. Held, per Strong and Gwynne, JJ., Ritchie, C.J., and Patterson, 3., contra, that the drain causing the injury being wholly within the limits of the munici- pality ill which it WHS commenced, and not benefiting the lands in an adjoining 561 Municipal Corporation— Co«(mMef/. municipality it did not come under tbe provisions of s. 583 of the Municipal Act and W. a as not entitled to a mandamus under that section. Per Ritchie, C.J., and Patterson, J., b. 583 applied to the said drain, but W. could not claim a mandamus for want of the notice required thereby. Per Strong and Gwynne, JJ., that though W. was not entitled to the statutory mandamus it could be granted under tbe Ontario Judicature Act K. S. O. (1887) c. 44. Williams y. The Corporation of the Township of Raleigh.— xxi. 103. 27. Ontario Municipal Act—R 8. 0. (1887) c. 18^, s. 583— Drain- age works — Non-com2)letio7i — Mandavfius — Maintenance and repair — Notice. The township of C, under the provisions of the Ontario Municipal Act, E. S. O. (1887) c. 184, relating thereto, undertook the construction of a drain along the town line between the townships of C. and S., but the work was not fully completed according to the plans and specifications, and owing to its imperfect condition the drain overflowed and flooded the lands of M. adjoining said town line. M. and the township of S. joined in an action against the township of which they alleged that the effect of the work on the said drain was to stop up the outlets to other drains in S. and cause the waters thereof tO' flow back and flood the roads and lands in the township, and they asked for an iii junction to restrain C. from so interfering with the existing drains and a- mandamus to compel the completion of the drain undertaken to be constructed by C. as well as damages for the injury to M.'s land and other land in S. Held, affirming the decision of the Court of Appeal, that M. was entitled to damages, and reversing such decision, Taschereau, J., dissenting, and Pat- terson, J., hesitating, that the township of S. was entitled to a mandamug, but the original decree should be varied by striking out the direction that the work should be done at the cost of the township of C, it not being proved that the original assessment was sufficient. Held, per Eitchie, C. J., Strong and Gwynne, JJ., that s. 583 of the Munici- pal Act providing for the issue of tbe mandamus to compel the making of repairs to preserve and maintain a drain does not apply to this case in which the drain was never fully made. and completed, but that the township of S. was entitled to a mandamus under the < ntario Judicature Act, R. S. O. (1887) c. 44. Held, further, that the flooding of lands was not an injury for which the township of S. could obtain an action for damages, even though a general nuisance was occasioned. The only pecuniary compensation to which S. was entitled was the cost of repairing and restoring roads washed away. Per Patterson, J. It might be preferable to leave the parties to work out their remedy under s. 583. The Corporation of the Township of Sombra v. The Corporation of the Township of Chatham.— xxi. 305. CAS. DIG. — 36 662 Municipal Corporation— Continued. 28. Contract under seal — By-law- — Executory contract — Enforce- ment. In pursuance of section 480 of the Ontario Municipal Act, R. S. O. 1887, T!. 184, empowering any municipal council to purchase fire apparatus, the council of the town of P. by resolution authorized the Fire and Water Com- mittee to ascertain the price of a fire engine, and on the committee's report recommending the purchase, a contract was entered into under the corporate seal of the council for the construction of an engine and hose by the Watero us Co. No by-law of the corporation was passed authorizing or sanctioning such contract, the engine was built and placed in the town hall and a committee of the council was appointed to engage experts to test it, the test was made and the experts reported favourably upon it, but the council afterwards passed a resolution that all negotiations in reference to the purchase be dropped and that the company be notified to remov^e the engine from the town hall. An action was brought against the municipal corporation for the contract price of the engine and hose on the trial of which the presiding judge found as a fact that the engine had answered the test and *.ilfilled the requirements of the contract, but held that the contract could no': oe enforced for want of a by-law. This judgment was affirmed by the Divisional Court (20 O. E. 411) and by the court of appeal for Ontario (19 Ont. A. E. 47). Held, affirming the decision of the Court of Appeal, Gwynne, J., dissentingi that the engine not having been accepted by the corporation the contract was not executed ; that section 282 of the Municipal Act requires all powers of the corporation to be exercised by by-law uiiless otherwise expressly authorized or provided ; that the authority to purchase fire apparatus is expressly given to municipal corporations by the Act and is a power to be exercised by by-law under said section and the contract being executory the want of a by-law was a bar to the action. Bernardin v. North Bufferin, 19 Can. S. C. E. 581, distin- guished. Held, per Gwynne, J. That the powers to be exercised by by-law are only legislative powers and a contract such as that in question in this case could be enforced without a by-law. WaterouB Engine Works Co. y. Town of Palmerston.— 13 Dec. 1892.— xxi. 556. 29. By-law — Submission to ratepayers — Publication in adjoining , local municipality — Gomp>liance with statute — Imperative or directory provisions — Authority to quash. The Ontario Municipal Act, E. S. O., 1887, c. 184, requires, by a. 293, that before the final passing of a by-law requiring the assent of the ratepayers, a copy thereof shall be published in a public newspaper either within the municipality or in the county town or published in an adjoining local muni- cipality. A by-law of the township of South Norwich was published in the village of Norwich in the county of Oxford, which does not touch the bounda- ries of South Norwich but is completely surrounded by North Norwich which does touch said boundaries. 563 Municipal Corporation — Continued. Held, afiBrming the decision of the Court of Appeal for Ontario, 19 Ont. App. 11. 'ii'ii, that as the village of N. was geographically within the adjoining municipality the statute was sufficiently complied with by the said publi- cation. This case raises also a question as to the constitutionality of what is known as the " local option Act " of Ontario, the argument on which was postponed until the validity of the by-law was settled and will be proceeded with at the May term, 1893. Present: Strong, C.J., and Fournier, Taschereau, Gwynne and Patter- son, JJ. huson Y. South Norwich.— 20th ?M;r.;ary, 1893. 30. Assessment for water rates — Discount i'or pi-ompt payment — Discrimination against property exempt from taxes — R. S. O. 1887, c. 184, s. 480, s-.s. 3, c. 192, ss. 19 & 20. See ASSESSMENT AND TAXES, 28. Mutual Insurance Companies. — Uniform Conditions Act, R. S. 0. c. 102, not applicable to. See INSUKANCE, FIRE, 5. N. Navigation — Ohstraction in navigable waters, below low water 11 u i,rk — Nuisance — Trespass. E. et al. brought an action of tort against W. for having pulled up piles in the harbour of Halifax below low water mark, driven in by them as supports to an extension of their wharf, built on certain land covered with water in said ho.rbour of Halifax, of which they had obtained a grant from the provincial government of Nova Scotia in August, 1861. W. pleaded, inter alia, that " he was possessed of a wharf and premises in said harbour, in virtue of which he and his predecessors in title had enjoyed for twenty years and upwards before the action, and had now, the right of having free and uninterrupted access from and to Halifax harbour, to and from the south side of said wharf, with steam- ers, etc., and because certain piles and timbers, placed by the plaintiifs in said waters, interfered with his rights, he (defendant) removed the same." At the trial there was evidence that the erections which E. et al. were making for the extension of their wharf did obstruct access by steamers and other vessels to W.'s wharf. A verdict was rendered against W., which the full court refused to set aside. On appeal to the Supreme Court of Canada it was Held, reversing the judgment of the Supreme Court of Nova Scotia that, as the Crown could not, without legislative sanction, grant to E. et al. the right to place in said harbour below low water mark any obstruction or impediment so as to prevent the free 564 HaLVigation— Continued. and full enjoyment of the right of navigation, and as W. had shown special injury, be was justified in removing the piles, which was the trespass com- plained of. Wood V. EsBon.— ix. 239. 2. Obstruction in navigable rivers. See LEGISLATURE, 8. 3, Impeding navigation of river — Obstructions placed for purpose of repairing bridge — Powers of Bridge Company — Negli- gence — Damages to raft — 4^ V. c. 61 (D.) — ^ V. c, 51 {D.). The plaintiff, by his declaration in this action, in substance alleged that he was possessed of a raft of oak logs and was lawfully floating the same down the Red River, which is a navigable river, and that the defendants had unlawfully placed certain piles and obstructions in the bed of the said river and obstructed the free navigation thereof, so that the raft of the plaintiff struck against the said piles and obstructions, and thereby the said raft and the said logs com- posing the same were carried away, destroyed and sunk. The defendants, by their pleas, denied that they placed said piles and obstructions in the bed of the said river, and alleged that the said raft was not the plaintiff's, and also alleged that they were a body corporate, empowered by certain Acts of the Parliament of Canada (43 V. c. 61, and 44 V. c. 51,) to erect, const. act, work, maintain and manage a bridge across the Red River, and that in pursuance of said Acts they have erected such a bridge, and that before the happening of the events complained of it became necessary, for the purpose of keeping up and maintaining the said bridge, to place the said piles and obstruc- tions, in the declaration mentioned, in the bed of said river, at and under the said bridge, and that thereupon they lawfully placed the said piles and obstruc- tions there for the purposes aforesaid, and not otherwise, and that they used the utmost care and diligence in the placing of said piles and obstructions, so as not to interfere with the free navigation of said river, and that the said piles and obstructions did not interfere with the free navigation thereof, and that the damages complained of happened through the appellant's own negligence. The bridge having been injured by the ice in the spring of 1882, it became necessary to repair it. The piles, etc., complained of were placed in the space where the plaintiff's raft struck, for the purpose of being used in the repairing of the bridge and rebuilding the permanent structure after its injury. The bridge was coi ttructed with a swing or draw, and two spaces of between eighty and ninety feet were left, one upon each side of the swing pier, as required by the Acts of incorporation. These spaces were open at the time of the injury complained of, no piles having ever been placed in them. A verdict was found for tlie plaintiff. The Court of Queen's Bench for Manitoba set the verdict aside and ordered a non-suit to be entered. On appeal to the Supreme Court of Canada, Held, that the defendants had not exceeded, nor been guilty of negligence, in carrying out the powers con- ferred upon them by their charter, and were therefore not liable. Appeal dismissed with costs. RoUton v. Red River Bridge Co.— 12th May, 1885. 565 Navigation— CoHttnwff/. 4. Navif/ation, interference with — Water lots — Crown grant — Easement — Trespass — Public navigable waters. W. was the lessee, under lease from the city of Toronto, of certain water lota held by the said city under patent from the Crown, granted in 1840, the lease to VV. being given by authority of the said patent, and of certain pnblic statutes respecting the construction of the Esplanade which formed the boun- dary of said water lots. Held, affirming the judgment of the court below, that such lease gave to W. a right to build as he chose on the said lots, subject to any regulations which the city had power to impose, and in doing so to interfere with the right of the public to navigate the water. Held, also, that the said waters being navigable parts of the Bay of Toronto, no private easement by prescription could be acquired tlierein while they remained open for navigation. London and Canadian Loan Co. v. Warin.— xiv. '232. 5. Navif^able river, access to, by riparian owner — Obstruction by railway company — Damages — Action at law — 43-44 V. c. 4a, s-8. 3 & 5 (P.Q.). See RIPARIAN" PROPRIETORS, 2. Negligence — Accident — Failure to use air brakes. See RAILWAYS AND RAILWAY COMPANIES, 2. 2. Contributory — Collision with anchor. See MARITIME COURT OF ONTARIO, 2. 3. Collision causing death. See MARITIME COURT OF ONTARIO, 3. 4. Of servants of the Crown. See PETITION OF RIGHT, 1, 10, 11, 15. 5. Of lessee — Liability for fire. See LANDLORD AND TENANT, A, 6. Of railway company. See RAILWAYS AND RAILWAY COMPANIES, 14, 15, 16, 17. *!. Of tug towing raft. See MARITIME COURT OF ONTARIO, 4. 8. Of municipal corporation — Non-repair of streets. See CORPORATIONS, 18. 5GG Negligence— CoH(/HM^(/. 9. Of municipal corporation, for defective bridge. See CORPORATIONS, 19. 10. Of railway company — .Damages — Res ipsa loqidtor. See RAILWAYS AND RAILWAY COMPANIES, 21. 11. Action against bridge company for damages to raft — Powers of company. See NAVIGATION, 3. 12. Of railway company— Causing death of wife — Damages. See RAILWAYS AND RAILWAY COMPANIES, 24. 13. Of solicitoi', in not registering mortgage — Laches by client, See SOLICITOR AND CLIENT, 2. 14. Railway company — Right to protect itself from liability for, by special contract — Railway Act, 1868, s. 20, s-s. 4 — 31 V, c. 43, s. 5. See RAILWAYS AND RAILWAY COMPANIES, 25. 15. Of municipal corporation — Defective sidewalk — Contributory negligence — New trial. See CORPORATIONS, 23. 16. Railway company — Accident — Ferry — Wharf — Absence of reasonable precautions. See RAILWAYS AND RAILWAY COMPANIES, 20. 17. Ferry under control of corporation— Liability for injury to passenger — Contributory negligence. See MUNICIPAL CORPORATION, 8. 18. In carriage of goods— Carriage over several lines — Custod}^— Bill of lading. See COMMON CARRIERS. 19. Of railway company — Sparks from engine — Setting fire to adjoining land — Presumption as to cause of fire — Lapse of time before discovery. See RAILWAYS AND RAILWAY COMPANIES, 40. 567 negligence— Continufd. 20. Leaving elevator unattended — Accident to one of the tenants of building — Liability of landlord — Damages — Art. 1054, C. C. — Cross appeal. See DAMAGES, 49, 21. Carriage of goods by sea — Improper stowage — Bill of lading — Excepted perils. See BILL OF LADING, 5. 22. Railway Co. — Carriage of goods — Carriage beyond terminus — Restriction of liability — Railway Act, R. S. C. c. 109, s. 104. Sec RAILWAYS AND RAILWAY COMPANIES, 43. CONTRACT, Si. 22«. Railway Co., death caused by negligence of, running through town — Contributory negligence — Lisurance on life of deceased — No reduction of damages therefor. See RAILWAYS AND RAILWAY COMPANIES, 46. 23. Railway company — Negligence — Approaching siding — Notice of approach — No statutory duty to whistle or ring. See RAILWAYS AND RAILWAY COMPANIES, 41). 2i. Railway company — Accident to employee — Performance of duty — Contributory negligence — The workmen's compensa- tion for Injuries Act, (O.), 49 V. c. 28. Sec RAILWAYS AND RAILWAY COMPANIES, .50. 25. Railway Co. — Sparks from locomotive — Damage by tire. See RAILWAYS AND RAILWAY COMPANIES, 53. 26. Mercantile agency — False information — Contidential communi- cation to subscriber. See DAMAGES, 57. LIBEL, 5. 27. Of solicitor in not registering judgment — Retainer to prosecute action — Duty of solicitor. See SOLICITOR AND CLIENT, 5. 28. Railway company — Station buildings — Planked way— Invita- tion to public to use — Duty of company. See RAILWAYS AND RAILWAY COMPANIES, 57. 568 Negligence— C«*>j((nH<7/. 29. Railway company — Conti'act to cany passen^ei'S — Special conditions — Notice of. See RAILWAY AND RAILWAY COMPANIES, 58. 30. Municipal Corporation — Control over the streets — Alteration' of grade — Contributory negligence. See MUNICIPAL CORPORATION, 15. 31. Responaihility — Vis major — Fall of wall after fire — Damages —Arts. 17, 8-s. U, 105,i, lOoo, 1071, CO. Where a tire destroyed the defendant's house, leaving one of tlie walls scanding in a dangerous condition, and the defendant knowing the fact, neglected to secure or support the wall or take it down, and some days after the fire it was blown down by a high wind and damaged the plaintiff's lionae : Held, affirming the judgments of the courts below, that the defendant could not shield himself under the plea of vix major, and was liable for the damages caused. Nordheimer v. Alexander.— xix. 248. 32. Of servants of Crown — Liability of Crown for — Government railways — Construction of statute — 50-51 V. c. 16. See CROWN, 27. PRESCRIPTION, 21. {STATUTE, 15. 33. Railway company — Construction of road — Impairing usefulness of highway. See RAILWAYS AND RAILWAY COMPANIES, 60. 34. Municipal corporation — Duty to light streets — Obstruction of sidewalk — Position of hydrant. See MUNICIPAL CORPORATION, 20. 35. Government railway — Land cro.ssed by — Accumulation of surface water — Maintenance of boundary ditches — Liability of Crown. See CROWN, 30. 36. Municipal corporation — Alteration of street — Lowering grade — Injury to adjacent land — Remedy for. See MUNICIPAL CORPORATION, 21. 37. Liability of Road Co. — Collector of tolls — Lessee. C. brought an action against the K. & B. Road Co. for injuries sustained from falling over a chain used to fasten the toll-gate on the company's road. On 569 Negligence— C'()M<iot lie. That under C. S. L. Co. 83, s. 112, the appellant should have proved that the place where the process was served was not his real domicile, and this he had not attempted to do. That if made under Art. 505 of the Code of Proc., the appearance by attorney covered any defect in the signification or the bailiff's return, or even an entire want of signification, and this would be fatal under Art. 505, as well as Art. 48B. That the only way the appellant could get rid of the appearance was by a regular disavowal, according to articles 192 and following of the C. C. P. No such disavowal having been made, he must be tal.en to have waived, by the appearance filed in his name, all the irregularities in the service and even the entire absence of service. Appeal dismissed with costs. Dawaon v. Macdonald.— 10th June, 1880. 2. (a.) On the 26th November, 1880, an application was made to Taschereau, J., in chambers for an order directing the re^^istrar not to settle the minutes of the judgment rendered by the court on the 10th June, 1880, and not to tax the costs, and to restrain the plaintiffs from entering said judgment, and taxing said costs, the object of the appellant being to stay the execution of such judg- ment to allow him to disavow the attorney who appeared for him in the court below, and to proceed against the judgment against him by requite civile. Held, that as to the disavowal, it was too late for the defendant to take such a proceeding, the attorney having appeared on the 26th Oct., 1866, and the defendant having been aware of it on the 29th April, 1874, when he filed his first opposition in the cause. That the judgment of the Supreme Court must under s. 46 of the S. C. Act be entered and sent to the court below before the defendant could have recourse to a proceeding by requi-te civile. The requite civile does not stay the execution as a matter of course, an order of the court or judge being necessary, and the defendant would have to apply to the Superior Court or a judge thereof for such an order. That a judge in cham- bers should not grant an order staying the execution of a judgment of the court, especially when the appellant has had ample opportunity of making his application to the full court. Application refused with costs fixed at $10. Dawson v. Macdonald.— 26th November, 1880. 2(b.) After these decisions against him, appellant Dawson took regular proceed- ings in disavowal against the attorney, J. B. O. D. That disavowal was produced before the Superior Court at Three Rivers, and served upon the said attorney and the other parties in this case on the 14th December, 1880. Nevertheless, a new writ of execution was issued, at the instance of the respondent on the loth of December, 1880, to enforce the execution of the original judgment against the appellant. 588 Opposition — Continueth On the SOtli December, 1880, the appellant produced an opposition to this last mentioned execution, and also a petition to stay the proceedings in the suit while expecting a decision on the disavowal which bad just been pro- duced. The principal reasons of the opposition and petition were : (1) That the appellant had disavowed the attorney, J. B. O. D., who had appeared for him, and that he was prepared to maintain the said disavowal ; (2) That the said disavowal had been served upon all the parties in the case ; (3) That, on the loth of December, 1880, an action in revocation of the original judgment in this cause had been issued. The appellant, moreover, averred in this new opposition and petition, reasons founded upon certain facts which had only come to his knowledge since the first opposition which he had produced. The conclusions were that all the proceedings had and made in virtue of the said writ, and that all proceedings in the present cause be stayed accord- ing to law until the decision of the proceedings had and taken by the said opposant in the present cause, as well on the disavowal filed therein as on the action of revocation of the judgment in this cause. Issue was joined on these several proceedings and the appellant and res- pondents consented by written agreement that these different issues should be decided upon a common proof. On the disavowal, the disavowed attorney, J. B. O. D., duly filed an appearance, and the respondents also appeared by their attorneys. The pleas of the disavowed attorney, with exhibits, were filed, and a petition for a Com- mission Rogatoire was presented by the plaintiff in disavowal, the present appellant, to examine a witness absent from Three Rivers. The decision on that petition was suspended until a decision on a demurrer produced by the disavowed attorney. That demurrer was not decided, and the respondents in the meantime pressed the production of the proof on the opposition. The Superior Court at Three Rivers dismissed this opposition on the 2nd of October, 1882, on the principle that there was res judicata. This last judgment was confirmed by the Court of Queen's Bench of Lower Canada, on the same ground, Mr. Justice Tessier dissenting. The appellant, Dawson, then appealed to the Supreme Court of Canada. Held, reversing the judgments of the courts below, that there was no res Judicata, and that all proceedings in the cause and on the writ of phii ies ven. ex lie bonis mentioned in the opposition should be stayed until the decision of the disavowal and of the action in revocation of judgment. Ritchie, C.J., and Strong, J., dissenting. Appeal allowed with costs. Dawson v: Hacdonald. — 12th January, 1835. 2. {c.) While the proceedings were going on on the opposition of the 30th Decem- ber, 1880, another writ of execution was issued in the original cause to collect the costs awarded to respondents by the Supreme Court of Canada on the 10th June, 1880. To this writ the appellant Dawson filed a second opposition on 689 Opposition — Continued. the 18th January, 1881. This opposition was dismissed by the Superior Court, and the judgment of that court was contirmed by the Court of Queen's Bbtich. The latter court refused an appeal from the judgment on this second opposition, on the ground that the amount in dispute was not sufficient to authorize an appeal. Dawson thereupon moved before the Supreme Court of Canada for an order to suspend the proceedings under the execution to which the opposition of the 18th January, 1881, was tiled, and for leave to appeal from the judgment on said opposition. Held, that there was no ground for staying the execution. The court had properly dismissed the appeal on the case presented, and that was a tinal decision in itself, and it was no ground for staying the execution that there were other proceedings in the court below which might possibly show that th& defendant should have succeeded in the original action. Motion refused with costs. DawBon v. Macdonald. — 15th January, 1884. 3. To seizure for an amount less than 82,000 — Appeal from Pro- vince of Quebec — Jurisdiction. See JURISDICTION, 27, 31, 36. 4. In nature of Petition in revocation of judgment. See SHERIFF, 5. 5. Attorney's lien for costs — Moneys deposited in hands of prothonotary — Opposition en sous ordre — Art. 7o3, C. C. P. See SOLICITOR AND CLIENT, 4. 6. Opposition a fin de chanje — Pledge — Art. 419, C. C. — Agree- ment to retain possession of railway for disbursements — Void as against creditors— Arts. 1977, 2015 & 2094, C. C. See PLEDGE, 5. P. Parliament of Canada — Dominion Controverted Elections Act, 1874 — Intra vires — Dominion court — Procedure — B. N. A^^ Act, 1867, ss. 18. 41, 91, 92, s-ss. 13 & 14. ss. 101, 129. See ELECTION, 4. 2. Act establishing Maritime Court of Ontario intra vires. See MARITIME COURT OF ONTARIO, 1. 590 Parliament of CanaLda.— Continued. 3. Jurisdiction over harbours — Foreshore in SuraniersiJe Harbour. See HARBOUR. 4. Jurisdiction of, over Bay of Chaleurs — The Fisheries Act, 31 V. c. GO — IJf & 15 V. c. 63 (Imp.) — Justification, plea of — Fishery officer, right of to seize "on view." Held, under the Imperial Statute, 14 & 15 V. c. 63, regulating the bound- ary line between old Canada and New Brunswick, the whole of the Bay of Chaleurs is within the present boundaries of the Provinces of Quebec and New Brunswick, and within the Dominion of Canada and the operations of The Fisheries Act, 31 V. c. 60. Therefore the act of drifting for salmon in the Bay of Chaleurs, although that drifting may have been more than three miles from either shore of New Brunswick or of Quebec abutting on the bay, is a drifting in Canadian waters and within the prohibition of the last mentioned Act and of the regulations made in virtue thereof. 2. The term " on view " in s-s. 4 of a. 16 of The Fisheries Ace, is not to be limited to seeing the net in the water while in the very act of drifting. If the party acting " on view " sees what, if testified to by him, would be sufficient to convict of the offence charged, that is sufficient for the purposes of the Act. Howatt Y. McFee.— V. 0(3. 5. Canada Temperance Act, 1878 — Constitutionality of — Powers of Dominion Parliament — Ss. 91 & 93, B. N. A. Act, 1807 — Power to prohibit sale of intoxicating liquors — Distri- bution of legislative power. Held, I. That the Act of the Parliament of Canada, 41 V. c. 10, " an Act respecting the Traffic in Intoxicating Liquors,' cited as the " The Canada Tem- perance Act, 1878," is within the legislative authority of that body. 2. That by the British North America Act, 1867, plenary powers of legisla- tion are given to the Parliament of Canada over all matters within the scope of its jurisdiction, and that they may be exercised either absolutely or condi- tionally; in the latter case the legislation may be made to depend upon some subsequent event, and be brought into force in one part of the Dominion and not in the other. 3. That under s-s. 2 of s. 91, B. N. A. Act, 1867, " regulation of trade and commerce," the Parliament of Canada alone has the power of prohibiting the traffic in intoxicating liquors in the Dominion or in any part of it, and the court has no right whatever to enquire what motive induced Parliament to exercise its powers. (Henry, J., dissenting.) The Mayor, etc., of Frcderictoa v. The Queen.— iii. 505. 6. Warehouse receipts — Ss. 46, 47 & 48 of 34 V. c. 5 (D.), intra vires. See WAREHOUSE RECEIPTS, 2. 691 Parliament of Ca.nsidsi— Continued. 7. 38 V, c. 47, giving power to police and stipendiary magistrates to tiy offences in a summary manner, intra vires. See HABEAS CORPUS, 2. 8. Jurisdiction given to Vice- Admiralty Courts to enforce penal- ties for illegal diHtilling — Jl V. c. 8, s. ISO', Dominion Inland Revenue Act, 1S67, intra vires. * So much of 8. 156 of the Inland Revenue Act. 18()7, (31 V. c. 8) as gives the Court of Vice-Admiralty jurisdiction in prosecutions for penalties and forfeit- ares incurred thereunder, is intra vires, notwithstandin<,' such court is established in Canada by Imperial authority. Valin v. Lanylois, 3 Can. S. C. R. 1, fi App. Gas. 115, discussed and followed. Attorney General of Canada v. Flint.— 16th Jany., 1884.— xvi. 707. 9. The Liquor License Act, 1883, and Act amending same, idtra vires. See LIQUOR LICENSE ACT, 1883. 10. Act incorporating the Anticosti Company — Vendor to com- pany estopped from questioning validity of, after judgment in licitation. see SALE OF LAND. 26. 11. Winding-up Act — R. S. C. c. 129, s. 3 — Foreign corporations. Section 3 of "The Winding-up Act," R. S. C. c. 129, which provides that the Act applies to * * • incorporated trading companies doing business in Canada wheresoever incorporated is intra vires of the Parliament of Canada. Allen Y. Hanson. In re The Scottish Canadian Asbestos Company.— xviii. 667. 12. Right of legislation — Banking and incorporation of banks — Bankruptcy and insolvency — 31 V. c. 17 (D.) — 33 V. c. 40 (D.) — Validity of—B. iV. A. Act, s. 91 — Crown lands — Exemption from taxation — R. S. 0. J 887, c. 193, a. 7, ss. 1. In I860 the Bank of Upper Canada became insolvent and assigned all its property and assets to trustees. By 31 V. c. 17, the Dominion Parliament incorporated said trustees giving them authority to carry on the business of the bank so far as was necessary for winding up the same. By 33 Y. c. 40 all the property of the bank vested in the trustees was transferred to the Dominion Government who became seized of all the powers of the trustees. Held, affirming the judgment of the Court of Appeal for Ontario that these Acts were intra vires of the Dominion Parliament. 592 Parliament of Ca.nAdaL— Continued. Per llitchie, C.J., that the legislative authority of the Parliament over " banking and the incorporation of banks" and over " bankruptcy and insol- vency " empowered it to pass the said Acts. Per Strong, Taschereau and Patterson, JJ., the authority to pass the said Acts cannot be referred to the legislative jurisdiction of Parliament over " banking and the incorporation of banks " but to that over " bankruptcy and insolvency " only. After the property of the bank became vested in the Dominion Govern- ment a piece of land included therein was sold and a mortgage taken for the purchase money, the mortgagor covenanting to pay the taxes. Not having done so, the land was sold for non-payment. In an action to set aside the tax sale. Held, affirming the judgment of the Court of Appeal, that the Crown having a beneficial interest in the land it was exempt from taxation as Crown lands. R. S. 0. 1887, c. 193, s. 7, s-s. 1. Quirt V. The Queen.— xix. 510. 13. B. N. A. Act, s. 92, s-s. 14 — Jurisdiction of provincial courts — C. S. (B.C.), c. 25, s. 14, and 53 V. c. 8, s. 9, (B. C), ivtm vires of Provincial Legislature — 51 V. c. 47, (D.) — (The Speedy Trials Act) — Meaning of " Any judge of a county court" — Said Act not an Act conferring jurisdiction, but an exercise of the power of Pax'liament to regulate criminal procedure. See LEGISLATURE, 23. CONSTITUTIONAL LAW. Parties— Want of — In action to recover monies deposited in bank to credit of succession. See BANKS AND BANKING, 4. 2. Death of party after verdict and before judgment on rule for new trial — Suggestion of death — Judgment nunc pro tunc — Appeal by executors. See APPEAL, 18, 83. And tee PRACTICE OF SUPREME COURT, 10, 120, 121. Partition — Partition and inventory, between co-heirs, action to annul for fraud and concealment — Comproniiae, deed of — Action to set aside for fraud and coercion. Two appeals with titles almost identical, argued together, numbered 123 and 449 respectively. The former of these cases is an action by one Jane Charlebois, wife of Dosithee Allard, to set aside a partage of the intestate succession of her late 593 Partition — Vontimwd, brother Arsfine Cliarleboia, to which she was a party, and bearing date the 4th of November, 1870. The action was taken out on the 4th of June, 1870, after the marriage of Jane Charlebois to Allard. It set up that the inventory was made by the appoUimt Hyacinthe Charlebois, that he iiad all his late brotlier s property in his liauds, that ho and his brother Arsone were co-partners, under a deed of partnersliip and that in fact the other members of the family had trusted him entirely in all tlie matters relating; to the estate. That beinj,' so trusted he had taken the opportunity to defraud and cheat his oo-heirs, and particularly by represienting that he had an equal share in the business as partner of his late brother ; that he had not accounted for the capital invested by his brother ; that he had undervalued the f^joods, possessed himself of the ready money and debts, and had augmented the liabilities of the partnership. Aa to the real estate he had fraudulently estimated it at less than half its real value. That he had affected to buy the shares of his two sisters, who had no rights, as they were civilly dead, being nuns of an order whioh prevented them from holding property, and that he had offered to give up the advantages aris- ing from this transaction in order to induce the rest of the family to agree tO' the i)(trtfiiie he was desirous of making. The other members, and particularly respondent, were induced by the false representations to agree to the partaije. It was also alleged that this inventory was not regularly made aocoi'ding to law, inasmuch as one of her sisters was a minor, and that there had been no e.viicrtise or curator appointed, and that therefore the whole proceeding was null, unci should be set aside. The conclusions of the action were that the mventory and the deed of partiidc iliouM be set aside as fraudulent and null, that the defendant should be condemned to make a new inventory of the effects of the partnership, and that there should bo a new inventory of the other property and effects of the succession, and a new partage of the whole. The action was principally directed against Hyacinthe ; the other mem- bers of the family were made parties to be subject to the new inventory and partdfie. On the 19th November, 1879, the Superior Court (Mackay, J.,) set aside the inventory and partition of the estate of the late Ars6ne Charlebois on the ground of fraud, concealment and recel, practiced by Hyacinthe Cluirlebois. This judgment was appealed to the Court of Queen's Bench. Pending this appeal Hyacinthe Charlebois made with the defendant Allard and plaintiff, on the ,5th of May, 1880, a deed entitled " Compromise between Dame Jane Charlebois, wife of Dosithee Allard, and Hyacinthe Charlebois,'' by which in consideration of the sum of ®700, paid to the plaintiff, and the costs of plain- tiff in said cause until judgment and those of appeal paid to the attornies, the lilaintiff desisted from, and renounced to her judgment obtained as aforesaid, and assigned and transferred to the said defendant H. Charlebois all the rights she might have and clain; in the estate of the said Ars^ne Charlebois, her brother, and in the estate of her father, Arsfene Charlebois, senior. The case No. 449 was an action by Jane Charlebois to set aside the deed of compromise for crainte, error and fraud. She contended that she was CAS. Dfb. — 38 594 Partition — Continued, intimidated by her husband, who was on the point of leaving the country with anotlier woman, into pasainj^ this deed with thoobjcct on his part of procuriiij^ for liim tlin money to rnn off witli thJR otlicr person, and sho aflirmud tliat the jnoney was novor paid to lior but to her liuHband. Tlie Superior Court annulled tlie said deed of compromise of the Rth of May, 1880, and lestorei. tiie parties to the same position whicii they occupied previously to tlie said deud, reserving' to defendant Chiirlebois liis recourse to be reimbursed witat he paid by virtue of this deed. In case No, 12B the Court of Queen's Bench for Lower Canada (appeal side) reversed the judgment of the Superior Court and (lismisHcd the action, and in case 449 also it dismissed the action, on the ground that the plaintiff received the consideration money for tlie deed, which could not be set aside unless she brou>{ht back all she received under it. On appeal to the Supreme Court of Canada, Held, that the judgments of the Court of Queen's Bench should bo afHrmod. The evidence did not estab- lish fraud, or undue inlluence, or pressure in the execution of the deed of compromise, and the compromise bein^ ineffectually asHailod both appeals must fall toj^ether and stand dismissed. Fouruier and Henry, JJ., dissenting. Appeals dismissed with costs. Charlebois v. Charlebois.— 12th January, 188.'). Partnership. — Art ides of — Conatr actum of — Partners, rUjJijH of. The respondents, havint; on hand lar^je contracts to fulfil entered into partnership with the appellant under the style of J. W. A Co. The respondent A. P. M. subsequently filed a bill in Chancery at^ainst \V. (the appellant) and his two Hons co-partners, askin<4 for a decree declarinj^ him and his two sous entitled to receive credit to the amount of 840,000, the estimated value of certain plant, etc., used in the construction of the works done by the partner- ship. The article in the deed of partnership executed before a notary public in the Province of Quebec, under which the respondent claimed to be entitled to credit of $40,000, is as followii : — " The stock of the said partnership consists of the whole of the plant, tools, horses and appliances now used for the construction of said works by the said parties of the first part A. P. M. & Sons ; also all quarries, steam tu(>s, scows, and also all the rights in said quarries that are held by the said parties of the first part, or any of them, the whole of which is valued at the sum of $40,000, and is contained in an inventory thereof hereunto annexed for reference after having been signed for identifica- tion by the said parties and notary ; but whereas the said plant, tools, horses, appliances, steam tugs, scows, quarries and other items have been heretofore Bold by the said party of the first part to the firm of M. & W., of the city of Montreal, hardware merchants, to secure them certain claims which they had '(/,. against the said A. P. M. & Co., for moneys used in the construction of the works referred to, to the extent and sum of about $24,000 and interest ; and whereas the said J. W. has paid said amount of $24,000 and redeemed said plant, tools, horses and appliances and quarries, steam tugs and scows, dx., and now stands the proprietor of the same under a deed of conveyance ; it is hereby well agieed [and understood that the said plant, tools, horses and 595 Partnership—^ '<>ntinut'i\. appliancoH tlmt aro or may bo pnt on tho snid work Hliall be and continue to be tlie oiitire property of tho Haid J. W., until Kucii time aa lio Hball iiave realized und received out uf the buHinoBS and profits of the present partnership a sum HuHicicnt tu reimbusc him of the said sum of 924,000 anti interest so advanced by him as aforesaid, as also any other sum or advances and interests which shall or may be paid or advanced to the present firm or partnership, after which time and event tho whole of tlie said stock shiill become the property of tlie said firm J. W. A- Co., that is to say : That one-half thereof shall revert to and belonf; to the parties of the first part, and tho other half to the said party of the second part, us tho said J. \V. has a full half interest in this contract and all its profits, losses and liabilities, and the said A, P. M., W. K. M. and li. M., parties of the first part, jointly and severally, the other half interest in tho same." There was evidence that tho jilant had cont orijjinally Sr)7,()()0, and that it was valued in tho inventory at 940,000 at the re(|ucst of the aii[)eliant ; it was also shown and admitted that the profits of tiic business were sutVicient to reimburse the appellant the sum of 124,000 aiitl other moneys advanced, and that there was still a lar(.;e balance to tlie credit of tlie i)artner- stiip. Held, Henry and (iwynno, .JJ., dissentiii),', that tho plant, etc., furnisliud by the responilents having; been inventoried and valued in the articles of part- nership at 940,000, the respondents had tlieroby become creditors of the part- nership for the said sum of 940,000, but as it appeared by the said articles of partnership that the said plant was subject at the time to a lien of 924,000, and that the said lion bad been paid off with the partnership moneys, the respondents were only entitled to be credited, as creditors of the partnership, with the sum of 910,000, being the difference between the sum paid by the jiartnership to redeem the plant and the value at which it had been estimated by both parties in the articles of partnership. Worthington v. MacDonald.— ix. 327. 2. Joint purchase of debentures — Interest in tnargin deposited — One jyartner tvithdrawinrj from hank nxon'e than his share of margin obliged to reimburse the other partner in the transaction. The facts, as stated in the judgments rendered are as follows : — In May, 1870, tho defendant authorized one McCord, liis broker, to bid for city of London debentures, amounting to 9220,000, then about to be issued, and in the purchase of which the defendant did not wish his name to appear; McCord accordingly bid for thom, and his bid of U8§ per cent, was accepted. When bidding for them McCord was under tho impression that he was doing so for the defendant, although McCord's name was put forward as purchaser. The defendant, however, was only willing to take a half interest in the debentures. In order to secure them it was necessary to raise the sum of 9219,486 to pay for them. Negotiations for this purpose took place between McCord and dif- ferent banks, and at one time it was thought these negotiations would be completed with the Bank of Montreal upon the deposit of ^13,000 by way of margin, together with the debentures themselves when obtained, and an 596 Fartncrahip—Contimietl. agreement aM to their Hale. McCord appears to have had difficulty in raisiiif; the one half of the 913,000. The defendant, after bein^; written to by McCord and Heein^ liiin on tlio subject, givve him a che(]uc for 93,'2uO witli a paper con- taming the following directions: " PleaHe apply $8,200 out of the balance in your handa due tr, nio along with cheque for $8,250 on MoUon's Dunk of this date, making in tm 3''>00, us margin on my half of tranBaction of City of Lonilon debentures." In return, ho took from McCord his receipt in the terms following: "Received from Major V/alker the sum of $('), 500, being his pro- portion of ma . 11 on 1j>2iu,48<), city of Loudon debentures, bought on joint account." At this time it was expected tha^ the amount required for margin would be f 18,0i'"0. It was understood between defendant and McCord that the latter was to do the best he could t obtain the amount necessary to secure the debentures. He accordingly appl!-id to the plaintifif to become the purchaser of a half interest, informing him that the defendant would be interested in the other half, and as the defendant had said he did not wish his name to appear in the transaction. McCord ro(|ucBtP'l the plaintiff to keep to himself the infor- mation of the appellant being inter -sted. The plaintiff agreed to become purchaser of the half, leaving the negotiations for raising the loan from one of the banks to McCord. The negotiations with the Bank of Monoreal having fallen through, an arrangement was eventually completed with the Canadian Bank of Commerce ($10,000 of a margin to be paid) by a letter to the manager, signed by the plaintiff on his own behalf, and by McCord in his own name, but for the defendant. The $10,000 of margin was paid by plaintiff out of his own moneys, but one-half ($5,000) was reimbursed to him by McCord. Upon the close of the transaction by sale of the debentures there remained in the bank of the margin of $10,000 so paid as above the sum of $(),600. McCord having become insolvent, the defendant succeeded in procuring the bank to pay him 05 per cent, of this balance upon the pretence that he was interested to that amount because of his having McCord's receipt for $6,500 above mentioned. The Court of Chancery, and subsequently the Court of Appeal for Ontario, held that this payment by the bank to the defendants was not anthorized, but the defendant and plaintiff having been interested in the bonds jointly, and, after repayment to the plaintiff of the one-half of the $10,000, having been also interested jointly in the amount in the bank to the credit of the margin, was entitled to be reimbursed by the defendant, the sum required to make up the half of the amount so remaining to the credit of the margin. On appeal to the Supreme Court of Canada, Held, that the judgments of the courts below should be affirmed. Appeal dismissed with costs. Walker y. Cornell.— 12ih February, 1881. 3. Contractors, partnership hetxueen — Nature of contract — Inter- est in suh-contract — Rejection of tenders at fraudulent instirjation of some of the jxirtners — Damar/es. This action was instituted on the 24th January, 1878, by Robert Kane, of Montreal, contractor, against Augustus R. Wright, of Geneva, in the State of 597 Partnership—' Ontinueil. New York, and Edward Moore, of Portland, in the State o( Maine, contractors, ciainiin^ from them $25,000 for breach of contract. A Hunimary of the complaint contained in the declaration may be stated in biief as follows : — In January, 1877, the Quebec Harbour Commissioners advertised for ten- ders for the performance of a large amount of public works at the moutii of the Ht. Giiarles Uiver, for the improvement of the harbour of Quebec. The plaintiff, the defendants, and Annus P. Macdonald, of Montreal, con- tractbr, associated themselves together as partners, under the firm of Moore, Wrif^ht & Co., to tender, contract for and execute the said works for the common profit of said partners, sliare and share alike. It was proi)osed and agreed by and between them that they should each and all exert themselveH to secure the contract for the performance of the whole of the said works if possible, but if that were not possible to secure so much thereof as could be obtained either by direct contract with the commissioners, or by sub-contract with the successful tenderer, or in such other manner as the same mi^lit be obtainable, more especially the contract for that part of the said works which couHisted of dredginj,'. The plaintiff procured the necessary information to enable tenders to be made for said works, by and in the name of said firm of Moore, Wright & Co., exerted himself to promote their success, and kept the defendants informed of the progress of events connected with the letting out of the said work by tender. A tender was in consequence made for said work by and in the name of said firm of Moore, Wright & Co., and at the request of said harbour commissioners a supplementary tender was likewise made in their name, but the defendants seeing that the commissioners favoured Simon Peters, of Quebec, contractor, and were disposed in case he reduced his prices, to give him the contract for said works, the defendants, in violation of their said partnership agreement with the plaintiff and said Angus P. Macdnnald, combined with said Simon Peters, in order to secure part of the works through him, and for that purpose communicated to him the prices at which they were willing to perform the dredg'ng, which were much beneath the prices of the said Simon Peters for said work, which enabled him so to lower his tender, that the work was, through him, awarded and given by contract to a firm composed of the defendants and the said Simon Peters, under the name of Peters, Moore & Wright. To enable th'a to be done the defendants had actually withdrawn the tenders of the firm of Moore, Wright A' Co., and fraudulently secured the contract to the firm of Peters, Moore & Wright, with the understanding that the defendants would have the performance of and the profits resulting from the larcpr portion of said work, especially the dredging, to the exclusion, and in prejudice of the rights of the plaintiff and of the said Angus P. Macdonald. After the defendant had so secured the greater part of said works they offered participation therein and of the profits thereof to the plaintiff, and to the said Angus P. Macdonald, which they accepted, yet the defendants failed and refused to fulfil their offer. The plaintiff had always been wilhng. and offered to perform his part of the agreement, and was entitled to one-fourth of 598 Partnership— Cuntituied. the advautages and profit resalting from said contract, and the performance of the works thereunder. The said contract was for a sum exceeding ?500,000, and the prospective profits were presently worth 9100,000, whereof the plaintiff was entitled to one- fourth or, 925,000, for which he brought his action. The defendants by their plea admitted that they made their first, as well as a supplementary, tender, in conjunction with the plaintiff and with said Angus P. Macdonald, but denied that said tenders were ever withdrawn, and averred that they were not successful, and that no part of the work was or could be secured thereunder, and they had a perfect right to combine with and secure the work through said Simon Peters, that it was in fact awarded to him, and not to him and the defendants jointly, but Peters agreed to sub-let the dredging and concrete work to them, the defendants, but it was nominally arranged that they should be joint contractors with the harbour commissioners, and by agreement with Peters they would divide and separate the part of the work by the dredging and concrete work to be done by them, and this separa- tion was actually effected by notarial contract, that they were in good faith in procuring the work through Peters, and were under no obligation whatever to allow the plaintiff or said A. P. Macdonald to participate in their contract ; nevertheless, they had offered to do so, but the plaintiff and said Macdonald had failed to accept within reasonable time, and they were obliged to act inde- pendently for themselves. The principal contention was whether the partnership obligation of the c^efendants was limited to the tenders put in by them in conjunction with the plaintiff anc! Angus P. Macdonald. The Superior Court adopted the view that the evidence showed they were so limited and that the defendants had not fraudulently or otherwise obtained the rejection of said tenders, and dismissed Kane's action. On appeal to the Court of Queen's Bench for Lower Canada (appeal side) that court Held, on a review of the evidence, that the agreement between plaintiff and defendants was that they should be jointly interested, not only in the profits of the entire work, but in such portion of it as could be secured either directly or by aub-contract ; that the defendants in fraud of the plaintiff, procured the contract for the execution of a large proportion of the works in conjunction with Peters ; that the defendants afterwards offered a share in the contract to plaintiff and Macdonald, which offer was accepted, but which the defendants refused to carry out; and the court reversed the judgment of the Superior Court and awarded the plaintiff 12,500. On appeal to the Supreme Court of Canada, Held, that the judgment of the Court of Queen's Bench should be affirmed. Taschereau, J., dissenting. Appeal dismissed with costs. Wright Y. Kane.— '28th April, 1882. 4. Partners — Giving time to principal — Blended accounts — Payments. Hutton and McGuire (defendants), trading together in partnership, became indebted to Birkett; et al., plaintiffs, for goods purchased from them, 599 Partnership— C'onftnw^rf. for which the defendants gave notes of the partnership firm. They dissolved partnership in October, 1876, with the knowledge and approval of the plaintiffs, one of them having assisted in arranging the dissolution. McGuire continued to carry on the business alone, and the plaintiffs con- tinued to deal with him. In so doing McGuire had several transactions with the plaintiffs, from whom he continued to receive goods on credit, until he became insolvent, in the early part of the year 1880, whereupon plaintiffs brought this action on the note given by the firm. The circumstances attend- ing the dissolution of the firm of McGuire and Hutton, and the subsequent dealings of the plaintiffs with McGuire, appear at length in the report of the case in 31 U. C. C. P. 430 and 7 Ont. App. R. 33. Held, reversing the judgment of the Court of Appeals, Ritchie, C.J., and Strong, J., dissenting, that Hutton was entitled to a verdict on the ground that by the course of dealings of the plaintiffs with McGuire subsequently to the dissolution, viz. : by plaintiffs blending the two accounts, and taking McGuire's paper on account of the blended accounts, upon which paper McGuire from time to time made sufficient payments to pay any balance remaining due on the paper of McGuire and Hutton which was in existence at the time of the dissolution, it must be held as a matter of fact, as well as of law, arising from the course of the said dealings, that the paper of the firm of McGuire and Hutton had been fully paid. Appeal allowed with costs. Birkett, et al. v. HcGuiFe (19 C. L. J. 275).— 19th June, 1883. 5. Tender for contract by individual member of firm — Right of action. See CONTRACT, 24. 6. Suretyship — Contract of, with firm — Conthiuing security to firm and onember or members constituting firm for the time being— Death of 2^(tvtner — Liability of surety after. S., by indenture under seal, became surety to the firm of C. & Sons for goods to be sold to one Q., and agreed to be a continuing security to the said firm or " to the member or memberr for the time being constituting the said firm of C. & Sons," for sales to be made by the said firm or " any member or members of the said firm of C. & Sons," to the said Q., so long as they should mutually deal together. P. C, the senior member of the said firm, having died, and by his will appointed his sons, the other members of the firm, his executors, the latter entered into a new agreement of co-partnership and continued to carry on the busmess under the same firm name of C. & Sons, and subsequently transferred all their interest in the said business to a joint stock company, An action having been brought against S. for goods sold to Q. after the death of the said P. C, Held, reversing the judgment of the Court of Appeal 11 Ont. App. R. 156, and restoring the judgment of the Common Pleas Divi- 600 Partnership— Cojitimied. sion, 5 O. R. 189, that the death of P. C. dissolved the said firm of C. & Sons, aud put an end to the contract of suretyship. Starrs y. The Cosgrave Brewing and Malting Co. of Toronto.— xii. 571. 7. Interest in mine — Agreement as to — Evidence. Held, afiirming the judgment of the Supreme Court of Nova Scotia, that in a suit for a share of the profits of a gold mine where the plaintiff relied on an agreement by the defendant for a transfer of a portion of the latter's interest in such mine for valuable consideration, the evidence was not sufficient to establish a partnership between the parties in the working of the mine and the suit was dismissed. Stuart Y. Mott.— May 17th, 1886.— xiv. 734. 8. Quebec Phcirmacy Act, (Q.) c. 36, s. 8 — Partnership — Manda- mus. Held, affirming the judgment of the Court of Queen's Bench for Lower Canada, M. L. R. 2 Q. B. 362, that s. 8 of 48 V. c. 86 (Q.), which says that all persons who, during five years before the coming into force of the Act, were practising as chemists and druggists in partnership jth any other person eo practising, are entitled to be registered as licentiates of pharmacy, applies to respondent who had, during more than five years before the coming into force of the said Act, practised as chemist and druggist in partnership with his brother and in his brothers name, and therefore he (respondent) was entitled under s. 8 to be registered as licentiate of a pharmacy. L'Association Pharmaceutique de ia ProYince de Quebec y. Brunet. ' —March 14, 1887.— xiv. 738. 9. Liability of one jMrtner for prior debt of co-partner — Pro- missory note — Collateral for ixi.rtnersliip debt — Release of maker. P. lent N. an accommodation note which N. deposited with R. as collateral security for a mortgage debt. N. and B. afterwards went into partnership and a new mortgage on partnership property was given to R. for N.'s debt, the note being still left with R. The partnership being dissolved, B. agreed to pay all debts of the firm, including the mortgage, and in settUng the accounts between himself and the mortgagees, B. was given credit for the amount of the note which P. had paid to the mortgagees. P. sought to recover from B. the amount so paid. Held, reversing the judgment of the court below, Ritchie, C.J., and F0U...11. J., dissenting, that N. having authority to deal with the note as he pleased, and having given it as collateral security for the joint debt of himself and B., on such security being realized by the mortgagees and the amount credited on the joint debt, P., the surety, could recover it from either of the debtors. S«mb?«,— Assuming P. not to have been liable to pay the note to the mortgagees and that it was a voluntary payment, it having been credited on 601 Partnership— CowdwM^Z. the mortgage debt, and B. having adopted the payment in Mvd settlement of the accounts between him and the mortgagee, he was liable to repay it. Purdom y. Baechler.— xv. 610. 10. Evidence of — Letter heads — Names of partners on. See EVIDENCE, 41. il. Contract — Mining land — Speculation in — Agreement ivith third party— Renewal — Effect of. T., being in Newfoundland, discovered a mine of pyrites, and on returning to Nova Scotia he proposed to A. that they should buy it on speculation. A. agreed, and advanced money towards paying T.'s expenses in going to New- foundland to secure the title. T. made the second journey and obtained an agreement of purchase from the owner of the mine for a limited time, but failing to effect a sale within that time the agreement lapsed. It was renewed, however, some two or three times, A. continuing to advance money for expenses. Finally, T. effected a sale of the mine at a profit and had the necessary transfers made for the purpose, keeping the matter of the sale secret from A. On an action by A. for his share of the profit under the original agreement. Held, affirming the judgment of the court below, that the sale related back, as between T. and A., to the date of the first agreement, and A. could recover. Present.— Sir W. J. Ritchie, C.J., and Strong, Taschereau, Gwynne und Patterson, J J. Tupper Y. Annand.— Mar. 18, 1889.— xvi. 718. 12. Action for partition — Plaintiffs' interest less than S2,000— S. & E. C. Act, R. S. C. c. 135, s. 29. See JUEISDICTION, 70. 13. Loan to Partner — Liability — Art. 1867, G. G. Where once a member of a partnership borrows money upon his own credit by giving his own promissory note for the sum so borrowed, and he afterwards uses the proceeds of the note in the partnership business of his own free will without being under any obligation to, or contract with, the lender so to do, the partnership is not liable for such a loan under Art. 1867, C. 0. Maguire v. Scott, 7 L. C, R. 451, distinguished. Shaw Y. Cadwell. — xvii. 357. 14. Terms of — Breach of conditiona — Expulsion of one partner — Notice — Waiver — Goodwill. Partnership articles for a firm of three persons provided that if any partner should violate certain conditions of the terms of partnership the others could compel him to retire by giving three months' notice of their inten- tion 80 to do, and a partner so retiring should forfeit his claim to a share of 602 Partnership — Continued. the goodwill of the business. One of the partners having broken such condi- tions of partnership tiie others verbally notified him that he must leave the lirm and to avoid publicity he consented to an immediate dissolution which was advertised as "a dissolution by mutual consent." After the dissolution the retiring partner made an assignment of his goodwill and interest in the business and the assignee brought an action against the remaining partners for the value of the same. Held, reversing the judgment of the court below, Fournier, J., dissenting, that the action of the defendants in advertising that the dissolution was " by mutual consent " did not preclude them from showing that it took place in con- sequence of the misconduct of the retiring partner ; that the forfeiture of the goodwill was caused by the improper conduct which led to the expulsion of the partner in fault and not by the mode in which such expulsion was effected ; and, therefore, the want of notice required by the articles of intention to expel could not be relied on as taking the retirement out of that provision of the articles by which the goodwill was forfeited. Held, also, that if it was a dissolution by one partner voluntarily retiring no claim could be made by the retiring partner in respect to goodwill, as the account to be taken under the partnership articles in such cases does not pro- vide therefor. Seinble, that the goodwill consisted wholly of the trade name of the firm. O'Keefe y. Curran.— xvii. 596. 15. Baying and selling land — Stock-in-trade — Banker — Payment of cheque — Joint payees — Indorsement by one — Acquiesence in pay^iient — Monthly receipts. When a partnership is entered into for the purpose of buying and selling lands, the lands acquired in the business of such partnership are, in equity, considered as personalty, and may be dealt with by one partner as freely as if they constituted the stock-in-trade of a commercial partnership. The active partner in such business has an implied authority to borrow money on the security of mortgages acquired by the sale of partnership lands. An amount so borrowed was paid by a cheque made payable to the order of all the partners by name. The active partner had authority, by power of attorney, to sign his partners' names to all deeds and conveyances necessary for carrying on the business, but had no express authority to endorse cheques. Held, that having authority to effect the loan and receive the amount in cash he could endorse his partners' names on the cheque, and the drawees had a right to assume that he did it for partnersnip purposes and were justified in paying it on such endorsement. Held, also, that if the payment by the drawees was not warranted the drawers having, for two years after, received monthly statements of their account with the drawees, and given receipts acknowledging the correctness of the same, they must be held to have acquiesced in the payment. Manitoba Mortgage Co. v. The Bank of Montreal.— xvii. 692. 603 Partnership— <^'oH<»n«'({art had char<>ed fraud and had failed to prove it, and were the cause of the suit, they should bear the costs up to the conclusion of the hearing and also the cost of rehearing. The defendant Shields appealed to the Supreme Court of Canada, and the plaintiff Leacock gave notice that upon such appeal he also would ask for a variation of the decree of the Court below. The Supreme Court, Held, per Fournier, Gwynne and Patterson, JJ., (Strong and Taschereau, J J. dissenting,) that upon a consideration of the evidence as a whole and the inferences to be drawn therefrom the view taken by Dubuc, J., in the court below was correct, and that the original decree of the 19th of June 1885, should be varied by changing it into an ordinary part- nership decree, regarding the partnership as existing until dissolved by the proceedings taken in the suit ; that the defendants McLaren and Haggart should pay to the appellant his costs of appeal to the Supreme Court and that each party should pay the coats incurred by him subsequent to the decree of the 19th June, 1885, and prior to the commencement of the appeal. Present :— Strong, Fournier, Taschereau, Gwynne and Patterson, JJ. Shields v. Leacock.— 30th April, 1889. [The Judicial Committee of the Privy Council granted leave to appeal in this case, but the case was settled by the parties before the appeal came on for hearing.] Partus Sequitur Ventrem. See CHATTEL MORTGAGE, 1, Patent. — Dominion Lands Act, 35 V. c. 98, s. 33, ass. 7 & 8 — Homestead Patent, validity of Bill — Equitable or statutory title — Demurrer — 39 V. c. 23, s. 69. The plaintiff, in his bill of complaint, alleged in the 6th paragraph as follows : — " Prior to the 1st of May, 1875, the plaintiff made application to homestead the said lands in question herein, and procured proper affidavits, according to the statute, whereby he proved to the satisfaction of the Dominion lands agent in that behalf (and the plaintiff charges the same to be true), that the said defendant Farmer had never settled on or improved the said lands assumed to be horaesteaded by him, or the lands herein in question, but had been absent therefrom continuously since his pretended homesteading and pre-emption entries, and thereupon the claim of the defendant Farmer under the said entries became and was forthwith forfeited, and any pretended rights of the defendant Farmer thereunder ceased, and the plaintiff there- under, on or about the 8th May, 1875, and then and there with the assent and by the direction of the Dominion lands agent, who caused the same to be prepared for the plaintiff, signed an application for a homestead right to the lands in question in this suit, according to Form A, mentioned in 35 Y. c. 23, 8. 33, and did make and swear to an affidavit according to Form B. mentioned 608 Patent — Conthmed. in 8. 88, 8-B. 7 of the same Act, and did pay to the same agent the homestead fee of 910, who accepted and received the same as the liomestead fee, nnd thereupon the plaintiff was informed that he had done all that was necessary or required for him to do under the statute and the regulations of the Depart- ment, and that the statute said : Upon making this affidavit and filing it, and on payment of an office fee of JIO (for which he shall receive a receipt from the agent), he should be permitted to enter the lands specified in the applica- tion ; and thereupon and in pursuance thereof, and in good faith, the plaintiff did forthwith enter upon said land and take actual posaession thereof, and has ever since remained in actual occupation thereof, and has erected a house and other buildings thereon, cleared a large portion of said lands and fenced and cultivated the same, and made many other valuable improvements thereon, costing in the aggregate $1,000. Demurrer for want of equity. Held, reversing the judgment of the court below, and allowing the demurrer, that the plaintiff had no locus standi to attack the validity of the patent issued by the Crown to the defendant, as he had not alleged a sufficient interest or right to the lands therein mentioned, within the meaning of s. (50 or of s-88. 7 tfe 8 of s. 33 of 35 V. c. 23, there being no allegation that an entry of a homestead right in the lands in question had been made, and that plaintiff had been auyhorized to take possession of the land by the agent, or by some one having f 'ithority to do so on behalf of the Crown, or a sufficient allegation that the Crown was ignorant of the facta of plaintiff's possession and improve- ments. Taschereau aad Gwynne, JJ., dissenting. Per Strong, J., that when the Crown has issued the letters patent in view of all the facts, the grant is conclusive, and a party cannot set up equities behind the patent. Farmer v. Livingstone.— viii. 140. 2. Void, as having been improvidently granted. See TRESPASS, 14. 3. Of land — Crown lands (Ont.) — License to cut timber — Right of patentee. See CROWN LANDS, 2, 4. To C. P. Ry. Co.— Lands in N. W. T.— Exemption from taxa- tion before issue of. See STATUTE, 3. Patent of Invention — Comhinntion — Novelty — Inventor — Prior patent to person not inventor — Pleading and practice — 8. 6, Patent Act, 187 '2 — Use hij others in Canada — Use by patentee in foreign countries — S. JS, Patent Act, 1872 — Final decision — Judgment in rem — S. 7, Patent Act, 1872 — Commencement to manufacture before application in Canada — S. 4.8 — Use by defendant before patent. An invention consisted of the combination in a machine of three parts, or elements, A, B and C, each of which was old, and of which A had been G09 Patent of Invention— f'()«^';i »<■(/, previously combined with li in one machine and H and C in another machine, but the united action of which in tlie patented machine produced uew and useful results. Held, 1. (Strong, J., dissenting) to be a patentable invention. To be entitled to n patent in Canada, the patentee must be the first inventor in Canada or elsewhere. A prior patent to a person who is not the true inventor ia no defence against an action by the true inventor under a patent issued to him subsequently, and does not require to be cancelled or repealed by icire facias, whether it is vested in the defendant or in a person not a party to the suit. 2. The words in the 6th s. of the Patent Act, 1872, " not being in public use or on sale for more than one year previous to his application in Canada," are to be read as meaning " not being in public use or on sale in Canada for more than one year previous to his application." 3. That the Minister of Agriculture, or his Deputy, has exclusive jurisdic- tion over questions of forfeiture under the 28th s. of the Patent Act, 1872, and a defence on the ground that a patent has become forfeited for breach of the conditions in the said 28th section cannot be supported after a decision of the Minister of Agriculture or his Deputy declaring it not void by reason of suoli breach. Per Henry, J., the jurisdiction of the commissioner is administrative rather than judicial, and he may look at the motive and effect of an act of importation, and a single act, such as the importation of a sample tending to introduce the invention, is not necessarily a breach of the spirit of the condi- tions of the 28th section. Under the 7th and 48th ss. of the Patent Act, 1872, persons who had acquired or used one or more of the patented articles before the date of the patent, or who had commenced to manufacture before the date of the application, are not entitled to a general license to make or use the invention after the issue of the patent. As to the form of order in appeal, see Practice of Supreme Court, 109. Smith Y. Goldie — ix. 4G. 2. Sale of — S2')ccijic inrformance — Arjveement partly executed and partly executory — Construction of — Misrepresentation by vendor — 3-2 A 33 V. c. 11, s. 17 (Patent Act) — Consolida- tion of suits.^ On Ist June, 1877, C. P., the owner of a patent for an improved pump which had only about a month to run, but was renewable for two further terms of five years each, agreed to sell to P. et al. his pump patent for five counties, and by deed of same date he granted, sold and set over to P. et al. " all the right, title, interest which I have in the said invention as secured by me by said letters patent for, to and in the said limits of the counties, of," etc. The habendum in the deed was " to the full end of the term for which the letters patent are granted. The consideration was $4,500, of which 11,500 was paid down, and mortgages given on the land on which the business was carried on, and on the chattels for the residue. The patent expired on the CAS. DIG. — 39 GIO Patent of Invention— ''"»'/«»''/. I'.ttli July, 1H77, and C. 1'. roiiewed it in IiIh own nanio for tlio furthor term of five yearB, and P. et al. liavinf* made default in June, 1H7H, C. P. filed liin bill askiu)^ for payment of the balance of purcliane money, or in default for a Hule of the land. Almoot at the ttame time P. et al. brought a Huit againttt C P. to enforce speciiiu performance of the agreement for Hale of the patent ri^^lit for the full period to which C. P. was entitled to renew the uaino under the patent laws. Held, in theBiiit Peck, et al. v. Powell, reverain^ the judgment of the Court of Appeal, that under the a^r.'ement and asui^nment plaiutifls were entitled to the extension aa well as the current term. And in the Huit Powell v. Peck, et al., allirmin^ the jud^'mont of the Court of Appeal, that C. P. was entitled to a decree for the redemption or foreclosuru of the mortf^aHod premises with costs. Per Stront{, J., accordinj^ to the principles upon which a court of equity acts in carrying into execution by itri decree Huoh contracts and agreements as are properly the subject of its jurisdiction, the court will always execute the whole or such parts of the agreement as remain executory, but if the parties have thought fit, before the institution of the suit, to carry out any of the terms of the contract, such executed portions will not be disturbed. Per Henry and Gwynne, JJ., that the decrees in the Court of Chancery should be consolidated and the decree for sale in default of payment in the suit of Powell V. Peck, et 1,2.58 6i Total $2,616 87 •' New Acct." extends from April 18tli, 1885, to Oct. 23rd, 1885 Debits 3:2,5.37 55 Credita 1,704 90 Balance $832 65 616 Payment — Continued. 2. Rendered Oct. 21st, 1886, and marked " New Acct." To amt. acct. rendered $832 65 Debits (goods) 14,506 77 $15,330 42 Credits 9,740 58 Balance jl5,598 84 3. Rendered October 23rd, 1886. This account is set out verbatim. 1885. Oct. 23, to amount old account ^2,616 87 1886. Feb. 24, Cash note. Green A Co 88 22 " " " 41 19 «2,746 28 By amount overcharge on interest. . . 78 To amount old account ?2,745 50 To amount new acct., as per detailed statement 5,598 84 *8,344 34 4. Rendered December 31at, 1886. To amount account rendered $8,344 34 To debits (goods) 2,42167 $10,776 01 Credits 2,992 17 Balance $7,783 84 The various accounts are all blended into one account in No. 3, and the balance is then carried forward into one continuous account in No. 4, and all payments credited generally. These payments are more than sufficient to pay the old account, including the Green notes. The issue was tried before Taylor, C. J., who gave judgment for respon- dents holding that whatever the original arrangement was for paying off the Greens, Carscaden & Peck, by the statements rendered and the receipts they gave, had so appropriated the payments made by Jackson, that the old account was paid off. This judgment was affirmed by the full court of Queen's Bench, Killam, J., delivering the judgment of the court. That learned judge Held, that the verdict entered by the Chief Justice must be sustained upon the ground that the account rendered in December. 1886, showed a blending of all the accounts and an application of payments upon them generally, from which an appropriation to the earlier items of the account must be inferred. 617 Payment — Continued. A view supported by the, authorities cited and principally by Simpson v. Cook, 1 Bin;?. 461 ; Hooper y. Keay, 1 Q. B. D. 178 ; City Discount Co. v. McLean, L. II. 9 C. P. 692 ; Clayton's case, 1 Mer. 530 ; re Sherry, 25 Ch. D. 698, 702 ; re Brown, 2 Gr. 118; Bodenhamv. Purclias, 2 B. A A. 39; Merriman v. Ward, 1 J. A- H. 371; Crompton v. Pratt, 105 Mass. 255; Buchanan v. Kerby, 5 Gr. 337 ; Bank of Scotland v. Christie, 8 CI. & Fin. 228 ; Simpson v. Ingham, 2 B. A C. 65. That although it is shewn by the cases of City Discount Co. v. McLean, L. R. 9 C. P. 692 ; Henniktr v. Wigg, 4 Q. B. 792 ; WiUon v. Hirst, 1 Nev. & M. 740, and Crompton v. Pratt, 105 Mass. 255, that this is not an absolute rule, but that the presumption arising from such a treatment of accounts is one which may be rebutted. fie could not find in the present case any sufficient evidence to rebut the presumption, and that the plaintiffs could take advantage of tile satisfaction of the old judgment by payment, without the writ ol fieri facias being. first set aside. On appeal to the Supreme Court of Canada it was Held, that the appeal should be dismissed, Gwynne and Patterson, JJ., dissenting, on the ground that in their view of the evidence it was agreed that all payments made by Jackson after the opening of the new account in April, 1885, should be applied to the new purchases until fully paid for, which agreement was continued to be acted upon until the closing of the account, and therefore the case did not come within the rule in Clayton's case, but rather within the exception to the rule as laid down in City Discount Co. v. McLean, L. R. 9. C. P. 693, and Heinniker v. Wigg, 4 Q. B. 791. Present : Strong, Fournier, Taschereau, Gwynne and Patterson, JJ. Green y. Clark.— 30th April, 1889. Penalties — Jurisdiction of Court of Vice- Admiralty to enforce. See PARLIAMENT OF CANADA, 18. 2. Appropriation of, for contravention of Canada Temperance Act, 1878. See CANADA TEMPERANCE ACT, 1878, 5. 5. Action for, for bribery — R. S. Q. Art. 429 — Dis(|ualification — Collateral matter— No appeal to Supreme Court — Future rights— S. & E. C. Act, R. S. C. c. 135, s. 29 (/->). See JURISDICTION, 64. 4. Non-completion of Government contract — Certiticate of engineer — Condition precedent. See CONTRACT, 27. 618 Penalties— Continueil. 5. Penalty for non-payment of taxes — Adtlitional rate — B. N. A. Act, SH. 91 «&; 92 — Interest — Municipal Act, Manitoba — 49 V. c. 52, H. 626 (Man.)— 50 V. c. 10, s. 43 (Man.) See LEGISLATURE, 20. Petition of Right. — Intercolonial railway contract — 31 V. c. 13, s. IS — Certificate of chief engineer — Condition precedent to recovery of money for extra ivork — Petition of right ^vill not lie against the Croivn for tort, or for the fraiulident rniscondiLct of its servants — Forfeiture and penalty — Liquidated damages. On the 25th May, 1870, J. and S.. contractors, entered into a contract with the Intercolonial Railway Commisaionera, authorised by 31 V. c. 13, to construct and complete section No. 7 of the said Intercolonial railway for the Dominion of Canada, for a bulk sum of 8557,750. During the progress of the work, clianges of various kinds were made. The works were sufficiently com- pleted to admit of rails being laid, and the line opened for traffic on the 11th November, 1870. The total amount paid on the 10th February, 1873, was 8557,750, the amount of the contract. The contractors thereupon presented a claim to the commissioners amounting to 8110,403.83 for extra work, Ac, beyond what was included in their contract. The commissioners, after obtaining a report from the Chief Engineer, recommended that an additional Bi? of f 31,091.^.' (leis a sum of $8,300 for timber bridging not executed, and 111 3oi.v4 for rnder drain taken off contractors hands) be paid to the con- tro ^ors upon receiving a full discharge of all claims of every kind or descrip- tion under the contract. The balance was tendered to suppliants and refused. The contractors thereupon, by petition of right, claimed $121,003.33 as due from the Crown to them for extra work done by them outside of and beyond the written contract, alleging that by orders of the Chief Engineer additional work and alterations were required, but these orders were carried out only on the understanding that such additional work and alterations should be paid for extra ; and alleging further, that they were put to large expen&e and compelled to do much extra work which they were entitled to be paid for, in consequence of misrepresentations in plans and bills of works exhibited at the time of letting. On the profile plan it was stated that the best information in possession of the Chief Engineer respecting the probable quantities of the several kinds • of work would be found in the schedules accompanying the plan, "but con- tractors must understand that these quantities are not guaranteed;" and in the bill of works, which purported to be an abstract of all information in possession of the commissioners and Chief Engineer with regard to the quantities, it was stated, " the quantities herein given as ascertained from the best data obtained are, as far as known, approximately accurate, but at the 619 Petition of Right — Continued. same time they are not warranted as accurate, and no claim of any kind will be allowed, thouf{h they may prove to be inaccurate." The contract provided inter alia, that it should be distinctly understood, intended and agreed that the said price or consideration of 9557,750 should be the price of, and be held to be full compensation for all works embraced in, or contemplated by the said contract, or which might be required in virtue of any of its provisions, or by law, and that the contractors should not, upon any pretext whatever, be entitled, by reason of any change, alteration or addition made in or to such works, or in the said plans and specification, or by reason of the exercise of any of the powers vested in the Governor in Council by the said Act, intituled, " An Act respecting the construction of the Intercolonial Railway," or in the Commissioners or Engineer, by the said contract or by law, to claim or demand any further or additional sum for extra work, or as damages or otherwise, the contractors thereby expressly waiving and abandon- ing all and any such claim or pretension, to all intents and purposes whatso- ever, except as provided in the fourth section of the said contract, relating to alterations in the grade or line of location ; and that the said contract and the said specification should be in all respects subject to the provisions of the Act first cited in the said contract, intituled, " An Act respecting the construction of the Intercolonial Railway," 31 V. c. 13, and also, in so far as they might be applicable, to the provisions of " The Railway Act of 1808." The 19th s. of 32 V. c. 13. enacts " that no money shall be paid to any contractor until the Chief Engineer shall have certified that the work, for or on account of which the same shall be claimed, has been duly executed, nor until such certificate shall have been approved of by the Commissioners. No certificate was given by the Chief Engineer of the execution of the work. Held, by the Exchequer Court of Canada, Ritchie, J. , that the contract requiring that any work done on the road must be certified to by the Chief Engineer, until he so ceitified and such certificate was approved of by the Commissioners, the contractors were not entitled to be paid anything. That if the work in question was extra work, the contractors had by the contract waived all claim for payment for any such work. If such extra work was of a character so peculiar and unexpected as to be considered ileliors the con- tract, then there was no such contract with the Commissioners as would give the contractors any legal claim against the Crown ; the Commissioners alone being able to bind the Crown, and ti^oy only as authorized by statute. That there was no guarantee, express or implied, as to the quantities, nor any mis- representations respecting them. But even if there had been, a petition of right will not lie against the Crown for tort, or for a claim based on an alleged fraud, imputing to the Crown fraudulent misconduct of its servants. In the contract it was also provided that if the contractors failed to per- form the works within the time agreed upon in end by the said contract, to wit, 1st July, 1871, the contractors would forfeit all money then due and owing to them under the terms of the contract, and also the further sum of 5i2,00O per week for all the time during which said works remained incom- plete after the said 1st July, 1871, by way of liquidated damages for such default. The contract was not completed till the end of August, 1872. 620 Petition of Right— Cnvtimied. Held, that if the Crown insisted on requiring a decree for the penalties, time beinj5 declared the essence of the contract, the damages attached, and the Crown was entitled to a sum of *2,000 per week from the 1st July, 1871, till the end of August, 1872, for liquidated damages. The Crown subsequently waiving the forfeiture, judgment was rendered in favour of the suppliants for the sum of 12,430.11 , being the amount tendered by the respondent, less the costs of the Crown in the case to be taxed and deducted from the said amount. Jones Y. The Queen, in the Exchequer.— vii. 570. 2. Covtract — Claim for extra work — Certificate of Enr/ineer — Condition j^recedent — dl V. c. 12 (D.). The suppliant engaged by contract under seal, dated 4th December, 1872, with the Minister of Public Works, to construct, finish and complete, for a lump sum of $78,000, a deep sea wharf at the Richmond station at Halifax N.S., agreeably to the plans in the engineer's ofQce and specifications, and with such directions as would be given by the engineer in charge during the progress of the work. By the 7th clause of the contract no extra work could be performed, unless " ordered in writing by the engineer in charge before the execution of the work." By letter, dated 26th August, 1873, the Minister of Public Works authorized the suppliant to make an addition to the wharf, by the erection of a superstructure to be used as a coal floor, for the additional sum of $18,400. Furtl-er extra work, which amounted to $2,781, was per- formed under another letter from the Public Works Department. The work was completed, and on the final certificate of the Government's engineer in charge of the works, the sum of $9,681, as the balance due, was paid to the suppliant, who gave the following receipt, dated 30th April, 1875 : — " Received from the Intercolonial Railway, in full, for all amounts against the govern- ment for works under contract, as follows : ' Richmond deep water wharf, works for storage of coals, works for bracing wharf, rebuilding two stone cribs the sum of $9,681.' " The suppliant sued for extra work, which he alleged was not covered by the payment made on the 30th April, 1S75, and also for damages caused to him by deficiency in and irregularity of payments. The petition was dismissed with costs ; and a rule nisi for a new trial was subse- quently moved for and discharged. Held, affirming judgment of the court below, that all work performed by the suppliant for the government was either contract work within the plans or specifications, or extra work within the meaning of the 7th clause of the contract, and that he was paid in full the contract price, and also the price of all e.xtra work for which he could produce written authority, and that the written authority of the engineer and the estimate of the value of thev.orkare conditions precedent to the right of the suppliant to recover payment for any other extra work. Henry, J., dissenting. Per Ritchie, C.J„ that neither the engineer, nor the clerk of the works, nor any subordinate officer in charge of any of the works of the Dominion of Canada, has any power or authority, express or implied, under the law to bind the Crown to any contract or expenditure not specially authorized by the 621 Petition of Right— Continmd. expreaa terms of the contract duly entered into between the Crown and the contractor accordinf^ to law, and then only in the specific manner provided for by the express terms of the contract. 0'Bri(.n Y. The Queen.— iv. 529. 3. Prescription — 9 V. c. 37 — Rhjld of the Crown to plead pre- scription — 10 years prescription — Good faith — Transla- tory title—Jiuhjment of confirmation — Titre precaire — Inscription en faux — Improvements, claim for, by inci- dental demand— Arts. I'll, JJol, .i20G,C. C. L. C.—Art. Pd, a G. P. L. C. N. C, the suppliant, by his petition of right, claimed, as representing the heirs of P. W., jr., certain parcels of land originally granted by letters patent from the Crown, dated 5th Japuary, 180G, to P. \V., sr„ together with a sum of §200,000 for the rents, issues and profits derived therefrom by the government since the illegal detention thereof. As to tlve merits the defendant pleaded : 1. By peremptory exception, setting up title and possession in Her Majesty under divers deeds of sale and documents ; 2. Prescription by 30, 20 and 10 years. An exception was also filed, setting up that these transfers to peti- tioners by the heirs of P. W., jr., were made without valid consideration, and that the rights alleged to have been acquired were disputable, droits UUgeux. The general issue and a supplementary plea claiming value of improvements were also fyled. To the first of these exceptions the petitioners answered that the parties to the deeds of sale relied upon had no right of property in the land sold, and denied the legality and validity of the other documents relied upon, and inscribed en faux against a judgment of ratification of title to a part of tlie property rendered by the Superior Court for the district of Aylmer, P.Q. To the exception of prescription the petitioner answered, denying the allegations thereof, and more particularly the good faith of the defendant. To the sup- plementary plea, the petitioner alleged bad faith on the part of the defendant. There were also genei'al answers to all the pleas. On the issues thus raised, the parties went to proof by an eiitjutte had before a commissioner under the authority of the court, granted on motion, in accordance with the law of the province of Quebec. Tlie case was argued in the Exchequer Court before J. T. Taschereau, J., and he dismissed the suppliant's petition of right with costs. Whereupon the suppliant appealed to the Supreme Court of Canada. Held, Fournier and Henry, ,TJ., dissenting. — 1. That before the Code, and also under the Code (Art. 2211), the Crown had under the laws in force in the Province of Quebec, the right to invoke prescription against a subject, which the latter could have interrupted by petition of right. 2. That in this case the Crown had purchased in good faith. with trans- latory titles, and had by ten years peaceable, open and uninterrupted posses- sion, acquired an unimpeachable title. 3. That in relation to the Inscription en faux, the Art. 473 of the Code of Procedure is not so imperative as to render the judgment attacked an absolute nullity, it being registered in the register of the court. 022 Petition of Right— Contimteil. 4. That tlio petitioner was bound to have produced tho inieiiite, or draft of jiid>{inont attacked, hut iiaviii^j only produced a certified copy of the jud<,'!noi»t, the iiiKuription u^iiiiist the jud){iuoiit fiiilti to the ground. 5. That even if 8. O.'a title was titre priMin, the heirs by their own acts ciided and iihaiiih)ned to L. all tli:;ir rishtu and pretensions to the land in dia- pulc, and tliat the petitioner G. was bound by their acts. Held, also, that tlie impeimes claimed by the incidental demand of tho Crown were payable by the petitioner, even if he had succeeded in hi^ action, Chevrier v. The Queen.— i v. 1. 4. Fisheries, refjulafion fHuo a Io'iho of tlio IxhI of tlio river, but that ho could lawfully iHHUu a IIchuhu to IIhIi as a franchiHu apart from the ownorghip of the soil in that portion of the river. 'I'ho ai)p(;llaiit thoreuiion apptialed to the Hiiproino (!ourt of f'aiiada on the main (jucHtion ; whether or not an exclunive rij^'ht uf iiHhin<; did ho exiHt. Held,anirniinK the judgment of the I'lxeheijuor C'ourt Iwt, that tlio ^'eneral power cf ru^ulatin^ and protecting; tliu fi^horicH under the ISritiHh North America Act, IHli?, h. (tl, in in the Parliament of (Canada, hut that the liccnHo granted by the MiniHter of Marine and FiHlierien of the i(it;iiH in quo waH void, bocauBe Haid Act only authorizoH the t,'rantin),' of leaHe» "where the exclusive ri^ht of fishinf? does not already exist by law,'' and in this case the exclusive rif^ht of fishing beloiifjed to the owners of the land through which that pcjrtion of the Miramichi lUver flows. 2. That althoufjh the public may liavo in a river, such as the one in ques- tion, an easement or ri^jht to float rafts orlo^^s down, and a ri^^lit of passaj^e np and down, wherever the water is sufficiently higli to be so used, such ri^ht ia not inconsistent with an exclusive rif^ht of fishin;; or with the rij^ht of the owners of property opposite their respective lands (id medium liliim mjiiir. 8. That the riglits of fiHliin^; in a river, such as is that part of the Mira- michi from Price's Uetid to its source, are an incident to the fjrant of the land tlirou;.;h which such river Hows, and where such grants have been made, there is no authority given by the B. N. A. Act, 1807, to grant a right to fish, and the Dorninion Parliament has no right to give such authority. 4. I'vr liitchie, CJ., and Ktrong, Fournier and Henry, JJ., reversing the judgment of the Exchequer Court on the 8th question submitted, tliat the utigranted lands in the Province of New IJrunswick being in tlie Crown for the benefit of the people of New lirunswick, tlie exclusive right to fish follows as an incident, and is in the Crown as trustee for the benefit of the people of the province, and therefore a license by the Minister of Marine and Fisheries to fish in streams running through provincial property would be illegal. The Queen v. Robertson,— vi. 52. 5. Counsel fees, action for — Retainer for services before Fishery Commission — Jurisdiction. The suppliant, an advocate of the Province of Quebec, and one of Ilor Majesty's counsel, was retained by the Govornmont of Canada as one of the counsel for Great Britain before the Fishery Commission which sat at Halifax pursuant to the Treaty of Washington. There was contradictory evidence as to the terms of the retainer, but the learned judge in the Exchequer Court found " that each of the counsel engaged was to receive a refresher equal to the retaining fee of $1,000, that they were to be at liberty to draw on a bank at Halifax for $1,000 a month during the sittings of the commission, that the expenses of the suppliant and his family were to be paid, and that the final amount of fees was to remain unsettled until after the award." The amount awarded by the Commissioners was ?5,. '500,000. The suppliant claimed ?10,000 as bis remuneration, in addition to $8,000 already received by him. 024 Petition of Right— f'untinwil. Held, per Foamier, Henry and Taschoreau, J.T., tlmt the suppliant, under the unreemout entered into with the Grown, wa8 entitled to Hue by potilion of ri(>ht for a reasonublo aiim in addition to the amount paid him, and that 98,000 awarded him in the Exuhe(juer Court was a ruaHonable sum. Per Fournier, Henry, Taschoreau and Gwynne, J.T. — By the law of the Province of Quebec, counsel and advocacee can recover fur feeu stipulated for by an express agreement. Per Fournior and Henry, J J.— By the law also of the Province of Ontario counsel can recover for such fees. Per StrouK', J. — The terms of the af^reoment, aa CHtablished by the evi- dence, showed, in addition to an expresH a^;reemont to pay the supplianfs expenses, only an honorary and t!ratuitous undertaking^ on the part of tlie Crown to f^ivo additional remuneration for feep beyond the amount of fees paid, which undertaking^ is not onl}' no foundation for an action but excludes any rifjht of action as upon an implied contract to pay the reasonable value of the services rendered; and the suppliant could therefore recover only his expenses in addition to the amount so paid. Per Kitchie, C.J. — As the ajjreenient between the suppliant and the Min- ister of Marine and Fisheries, on behalf of Her Majesty, was made at Ottawa, in Ontario, for services to be performed at Halifax, in Nova Scotia, it was not subject to the law of Quebec ; that in neither Ontario nor Nova Scotia could a barrister maintain an action for fees, and therefore that the petition would not lie. Per Clwynne, J. — By the Petition of Right Act, s. 19, the subject is denied any remedy against the Crown in any case in which he would not have been entitled to such remedy in England, under similar circumstances. By the laws in force there prior to 23 A '2-4 V. c. 34 (Imp.), counsel could not, at that time, in England, have enforced payment of counsel fees by the Crown, and therefore the suppliant should not recover. [This case was appealed to the Privy Council, where it was Held, 1. That according to the law of Quebec, a member of the bar is entitled, in the absence of special stipulation, to sue for and recover on a by the Provfincial Parliament of Upper Canada, and generally known as tlie Rideau Canal Act, Lt-Colonel By, who was employed to superintend the work of making said canal, set out and ascertained 110 acres or thereabouts, part of COO acres or thereabouts theretofore f'/• alia of certain engine houses, according to plans and specifications deposited at the office of the Chief Engineer at Ottawa. J. I. tendered for the erection of an engine house at Matapedia, and in October following he was instructed by the commissioners to proceed in the execution of the work, according to his accepted tender, the price being S21,'J8'J. The work was completed and delivered to the Government in October, 1874. The specification provided as follows: — "The commissioners will provide and lay railway iron, and will also provide and fix cast-iron columns, iron girders, and other iron work required for supporting roof." In September, 1873, J. I. was unable to pro- ceed further witii the execution of his work, in consequence of the neglect of the commissioners to supply the iron girders, etc., until March following, owing to which delay he suffered loss and damage. During the execution of tlie work, .T. I. was instructed and directed by the commissioners, or their engineers, to perform, and did perform, certain extra works not included in his accepted tender, and not according to the plans, drawings and specifications. By his petition of right, J. I. claimed ftH, 705.75 damages, in conseijuence of the delay on the part of the commissioners to provide the cast-iron columns, etc., and 88,505.10 for extra works. The Crown demurred, and also traversed the allegation of negligence and delay, and admitted extra work to the amount of f'5,050.()0, and set up the 18th s. of 31 V. c. 13, which required the certificate of the Engineer-in-Chief as a condition precedent to the payment of any sum of money for work done on the Intercolonial Railway. By 38 V. c. 16, on the 1st .June, 1874, the Intercolonial Railway was declared to be a public work vested in her Majesty, and under the control and management of the Minister of Public Works, and all the powers and duties of the commissioners were transferred to the Minister of Public Works, and s. 3 of 31 V. c. 13, was repealed, with so much of any other part of the said Act as might be in any way inconsistent with 37 V. c. 15. Held, by the Exchequer Court of Canada, Fournier, J. : That tlie tender and its acceptance by the commissioners constituted a valid contract between the CIrown and J. I., and that the delay and neglect on the part of the com- missioners acting for the Crown to provide and fix tlie cast-iron columns, etc., which were, by the specifications, to be provided and fixed by them, was a breach of the said contract, and that the Crown was liable for the damages resulting from such breach. 2. That the extra work claimed for, beinf^ for a sum less than ."510,000, the commissioners had power to order the same under the statute 31 V. c. 13, ()29 Petition of Right— ''"»^'""<'/. s. 1(J, and J. I. could recover, by petition of riglit, fur such part of the extra work claimed as he had been directed to perform. 3. That the 18tli s. of 31 V. c. 13, not having been embodied in the agree- ment with J. I,, as a condition precedent to the payment of any sum for work executed, the Crown could not now rely on that section of the statute for work done and accepted, and received by the Government. 4. That the effect of 37 V. c. 15, was to abolish the oflice of Chief Engineer of the Intercolonial Railway, and for work performed and received on or after the Ist June, 1874, to dispense with the necessity of obtaining, as a condition • precedent to the payment for the same, the certificate of said Chief Engineer i-.i accordance with s. 18 of 31 Y. c. 13. Isbester y. The Queen.— vii. 69G. 9. Executory contract — Crown, non-Uahility on — Recovery of ■ value of work done if exjyenditure unauthorized by Parlia- ment— 31 V. c. IJ, ss. 7, 15 A 20. ■ > ' ■ By his petition of right, W., a sculptor, alleged that he was employed by the Dom'iniou Government to prepare plans, models, specifications and designs, for the laying out, improvement and establishment of the Parliament stjuarej Ottawa ; that he had done so, and superintended the work and construction of said improvements for six months. He claimed ^50,000 for , ; the value of his work. 31 V. c. 12, 3. 7, provides that, when executory contracts are in writing they shall have certain requisites, such as signing, sealing and countersigning, ■ to be binding; and by section 15 provides that before any expenditure is incurred there shall have been a previous sanction of Parliament, except for . . such repairs and alterations as the public service demands ; and by section 20 .; requires that tenders shall be invited for all works, except in cases of emer- gency, or where from the nature of the work it could be more expeditiously ,. and economically executed by the officers and servants of the department. Held, by the Exchequer C!ourt of Canada, Richards, C.J,: — 1. That the . Crown in this Doiiiinion cannot be held responsible under a petition of right on an executory coutract entered into by the Department of Public Works for the performance of certain works placed by law under the control of the department, when the agreement therefor was not made in conformity with . the i>bove 7th section of 31 V. c. 12. 2. That under section 15 of said Act, if Parliament has not sanctioned the • expenditure, a petition of right will not lie for work done for and at the request of the Department of Public Works, unless it be for work done in connection with repairs and alterations which the necessities of the public ■ service demanded. 3. That in this case, if Parliament has made appropriations for these works and so sanctioned the expenditure, and if tlie work done was of the kind that might properly be executed by the otticers and servants of the department Under section 20 of said Act, then no written contract would be necessary to bind the department, and suppliant should recover for work so done. Wood Y. The Queen.— vii. 034. 630 Petition of Right— Cmiti mud. 10. Croxvn — Non-liability of, for neglujence of its Mefiunts — Xot a common carrier — Payment of statiitory dues. Held, 1. That a petition of risjhtdoes not lie to recover compensation from the Crown for damatje occasioned by the neglij^ence of its servants to the pro- perty of an individual using a public work. 2. That an express or implied contract is not created with the Crown becanse an individual pays tolls imposed by statute for the use of a public work, such as slide dues for passing his logs througli government slides. 3. That in such a cage Her Majesty cannot be held liable as a common carrier. The Queen y. McFarlane.— vii. 216. 11. Xon-liahility of Crown for non-fccmdice or htis-feanance of its servants— Public work — Pioblic police — Crown not a comvion carrier. McL., the suppliant, purchased, in 1880, a first-class railway passenger ticket to travel from Charlottetown to Souris on the Prince Edward Island railway, owned by the Dominion of Canada, and operated under the manage- ment of the Minister of Railways and Canals, and while on said journey sus- tained serious injuries, the result of an accident to the train. By petition of right the suppliant alleged that the railway was negligently and unskillfully conducted, managed and maintained by Her Majesty ; that Her Majesty, disregarding her duty in that behalf and her promise, did not carry safely and securely suppliant on said luiilway and that he was greatly and permanently injured in body and health, and claimed #50,000. The Attorney-General pleaded that Her Majesty was not bound to carry safely and securely, and was not answerable by petition of right for the negli- gence of her servants. The learned judge at the trial found that the road was in a most unsafe state from the rottenness of the ties, and that the safety of life had been reck- lessly jeopardized by running trains over it with passengers, and that there had been a breach of contract to carry the suppliant safely and securely, and awarded §30,000. On appeal to the Supreme Court of Canada, Held, Fournier and Henrj, JJ., dissenting, that the establishment of government railways in Canada, of which the Minister of Railways and Canals has the management, direction and control, under statutory provisions, for the benefit and advantage of the public, is a branch of the public police created by statute for the purposes of public convenience, and not entered upon or to be treated as a private and mercantile speculation, and that a petition of right does not lie against the Crown for injuries resulting from the non-feasance or mis-feasance, wrongs, negligences, or omissions of duty of the subordinate officers or agents employed on the public service on said railways. That the Crown is not liable as a common carrier for the safety and security of passengers using said rail- ways. The Queen y. HcLeod. — viii. 1. 631 Petition of Right — Continued. 12. Contract — Non-liability of the Croivn on Parliamentary print iny contract. H., in his capacity of "clerk of the Joint Committee of both Houses on Printing," advertised for tenders for the printing, furnishing the printing papers and the binding required for the Parliament of the Dominion of Canada. The tender of the suppliants was accepted by the Joint Committee and by both Houses of Parliament by adoption of the committee's report, and a contract was executed between the suppliants and H. in his said capacity. The suppliants, by their petition, contended that the tender and acceptance constituted a contract between them and Her Majesty, and that they were entitled to do the whole of the printing required for the Parliament of Canada, but had nDt been given the same, and they claimed compensation by way of damages. Held, reversing the judgment of Henry, J., in the Exchequer Court, that the Parliamentary Printing was a matter connected with the internal economy of the Senate and House of Commons over which the Executive Government had no control ; and that the Crown was no party to the contract with the suppliants and could not be held responsible for a breach of it. The Queen v. MacLean. — viii. 210. 13. Departmental Printiwj Contract — Mutuality — Liability of the Croivn. Under 32 & 33 V. c. 7, which provides that the printing, binding and other like work required for the several departments of the government shall be done and furnished under contracts to be entered into under authority of the Governor in Council after advertisement for tenders, the Under Secretary of State advertised for tenders for the printing " required by the several departments of the government." The suppliants tendered for such printing,, the specifications annexed to the tender, which were supplied by the govern- ment, containing various provisions as to the manner of performing the work and giving of security. The tenders were accepted by the Governor in Council, and an indenture was executed between the suppliants and her Majesty, by which the suppliants agreed to perform and execute, etc., " all jobs or lots of printing for the several departments of the Government of Canada, of reports, etc., of every description and kind soever coming within the denomination of Departmental printing, and all the work and services connected therewith and appertaining thereto, as set forth in the said specifi- cation hereunto annexed, in such numbers and quantities as may be specifled in the several requisitions which may be made upon them for that purpose from time to time by and on behalf of said several respective departments." Part of the Departmental printing having been given to others, the suppliants, by their petition, claimed compensation by way of damages, contending that they were entitled to the whole of said printing. Held, affirming the judgment of Henry, J., in the Exchequer Court, that having regard to the whole scope and nature of the transaction, the statute, the advertisement, the tender, the acceptance and the contract, there was 032 Petition of Right— Contiitucd. a clear inteution shown that the contractors should have all the printing that should be required by the several departments of the government, and that the contract was not a unilateral contract hut a binding mutual agreement. Tttschereau and Gwynne, JJ., dissenting. The Queen v. MacLean. — viii. 210. 14;. Contract — Government contract — Clause in — Consttmction of — Assignment — Effect of — Damages. On the 2nd August, 1878, H. C. ifc F. entered into a contract wiHi Her Majesty to do the excavation, etc., of the Georgian Bay branch of the Cana- dian Pacific Railway. Shortly after the date of the contract and after the commencement of the work, II. C. it F. associated with themselves several partners in the work, amonnat others S. tt R. (respondents), and on iiOth June, 187!), the whole contract was assigned to S. iSr R. .Subsequently, on the •jJoth July, 187'J, the contract with H. C. & F. was cancelled by Order in Council, on the ground that satisfactory progress had not been made with the work as required by the contract. On the 5th August, 1879, S. & R. notified tlie Minister of Railways of tlie transfer made to them of the contract. On the S)th August, the Order in Council of .July 2oth was sent to II. C. & F. On the 14th August, 1871), an Order in Council was passed stating that as the Government had never assented to the transfer and assignment of the con- tract to S. it R., the contractors should be notified that the contract was taken out of their hands and annulled. In consequence of this notification S. it K., who were carrying on the works, ceased work, and with the consent of the Minister of Public Works, realized their plant and presented a claim for •damages, and finally H. C. it F. and S. & R. filed a petition of right claiming "J250,000 damages for breach of contract. The statement in defence set up intir dliu, tlie 17tli clause of the contract ■which provided against the contractors assigning the contract, and in case of .assignment without Her Majesty's consent, enabled Her Majesty to take the •works out of the contractors' hands, and employ such means as she might see tit to complete the same ; and in such case the contractor should have no claim for any further payment in respect of the works performed, but remain liable for loss by reason of non-completion by the contractor. At tlie trial there was evidence that tlie Minister of Public Works knew that S. it 11. were partners, and that he was satisfied that they were connected with the concern. There was also evidence that the department knew S. ct R. were carrying on the works, and that S. ct 11. had been informed by the Deputy Minister of the department that all that was necessary to be ofticially recog- nized as contractors was to send a letter to the government from H. C. & F. In the Exchequer, Henry, J., awarded the suppliants $171,010.77 damages. On appeal to the Supreme Court of Canada it was Held, reversing the judgment of Henry, J., Fournier and Henry, JJ., dissenting, that there was no evidence of a binding assent on the part of the Crown to an assignment of the contract to S. & R., who, therefore, were not entitled to recover. 2. That H. C. & F., the original contractors, by assigning their contract j[)ut it in the power of the government to rescind the contract absolutely, which G38 Petition of Right— (''mtiimed. WHS (lone by the Order in Council of the 14tli August, isTl, luid the -lontrHC- tors under the 17th clause could not recover either for the value of work actually done, the loss of prospective damages, or the reduced value of the plant. Queen v. Smith. — x. 1. 15. Agreement with Government of Canada for continuous possession of railroad — Construction of — Breach (f, In/ Crown in assertion of siqyposed rirfhts — Damar/es — Joint ■misfeasor — Judgment obtained against — Effect of in reduction of damages — Pleading — 37 V. c. IG. By an agreement entered into between the Windsor and Annapolis Uailway Company and the Government, approved and ratified by the Gov- ernor in Council, '2'2nd Septumber, 1871, the Windsor Branch Railway, N. S., together with certain running powers over the trunk line of the Intercolonial, was leased to the suppliants for the period of 21 years from 1st January, 1«72. The suppliants under said agreement went into possession of said Windsor liranch and operated tlie same tliereunder up to the lat August, 1877, on which date C. J. B., being and acting as Superintendent of Railways, as authorized by the Government (who claimed to have authority under an Act of the Parliament of Canada, 37 V. c. 10, passed with reference to tlic Windsor Branch, to transfer the same to the Western Counties Railway Company otherwise than subject to the rights of the Windsor and Annapolis Railway CJompany) ejected suppliants from and prevented them from using said \Vindsor Branch and from passing over the said trunk line ; and four or five weeks afterwards said Government gave over the possession of said Windsor Branch to the Western Counties Railway Company, who took and retained possession thereof. In a suit brought by the Windsor and Annapolis Railway Company against the Western Counties Railway Company for recovery of possession, lie, the Judicial Committee of the Privy Coun-cil held that .37 V. c. !(> did not extinguish the riglit and interest which the Windsor and Annapolis Railway Company had in the W'indsor Branch under the agreement of 22nd Septem- ber, 1872. On a petition of right being filed by suppliants, claiming indemnity for the damage sustained by the breach and failure on the part of the Crown to perform the said agreement of 22nd September, 1871, the Exchequer Court of Canada, Gwymie, J., presiding, held that the taking possession of the road by an officer of the Crown under the assumed authority of an Act of Parliament was a tortious act for which a petition of right did not lie. On appeal to the Supreme Court of Canada, Held, Strong and Gwynne, JJ. , dissenting, that the Crown by the answer of the Attorney-General did not set up any tortious act for which the Crown claimed not to be liable, but alleged that it had a right to put an end to the contract and did so, and that the action of the Crown and its officers being lasvful and not tortious, they were justified. But, as the agreement was still a continuous, valid and bind- ing agreement to which they had no right to put an end, this defence failed. 634 Petition of Right — Continueil. Therefore the Crown, by its ofiicera, havin^^ acted on a misconception of or misinformation as to the ri^^hta of the Crown, and wrongfully, because con- trary to the express and implied stipulations of their atjreement, but not tor- tiously in law, evicted the suppliants, and so, though unconscious of the wrong, by such breach become possessed of the suppliant's property, the peiidon of right would lie for the restitution of such property and for damages. Prior to the filing of the petition of right, the suppliants sued the Western Counties Railway Company for the recovery of the possession of the Windsor Branch, and also by way of damages for monies received by the Western Counties Railway Company for the freight or passengers on said railway since the same came into their possession, and obtained judgment for tlie same, but were not paid. The judgment in question was not pleaded by the Crown, but was proved on the hearing by the record in the Supreme Court of Canada, to which court an appeal in said cause had been taken, and which affirmed the judgment of the .Supreme Court of Nova Scotia. Held, per Ritchie, C.J., and Taschereau, J., that the suppliants could not recover against the Crown, as damages, for breach of contract, wliat they claimed and had judgment for as damages for a tort committed by the West- ern Counties Railway Company, and in this case there was no necessity to plead the judgment. Per Fournier and Henry, JJ., that the suppliants were entitled to dam- ages for the time they were by the action of the Government deprived of the possession and use of the road to the date of the tiling of their petition of right. Windsor and Annapolis Railway Co. y. The Queen and the Western Counties Railway Co.— x. 335, [In this case on appeal to the Judicial Committee of the Privy Council the judgment of the Supreme Court was reversed in part. See 55 L. J. P. C. C. 41.] 16. Petition of right — Coiulition precedent — Pleading — Contract —SI V. c. 13, 8. 18 (D.). The suppliants by their petition of right alleged that they were contrac- tors for the building of section No. 4 of the Intercolonial Railway, and duly entered upon and completed their contract, which contract they alleged was under the Act entitled "An Act respecting the construction of the Intercolon- ial Railway, within the time, and according to the terms, covenants and con- ditions set forth in said contract. That in following the directions and instructions of the commissioners and the engineers employed and placed in charge of the said works, which directions and instructions were given from time to time as provided by the contract, and the said suppliants were bound to follow, and did follow, they performed a large amount of extra work not comprised in said contract, nor in the data furnished to them at the time the said contract was entered into, nor in the schedules and specifications referred to in said contract and connected therewith, and not intended to be covered by the lump sum, which formed the consideration money of said contract. Tliat they were put to great expense by delays in preparations by the commissioners 635 Petition of Right— Continmil. and ensineerB, and to great loss and damage by reason of changeB and altera- tions necessitated by the unskilful nninner in wliich the works had been laid out by the engineers. That the suppliants were deceived and misled in making their estimates by iiisufticient and erroneous data in the schedule of works and quantitien prepared and published by the chief engineer. That it had not been the usage, nor was it the intention of the parties, to be held to the strict letter of the contract when the schedule gave erroneous or insufficient information, entailing extra work which could bo performed only with ruinous consequences, but they were entitled to be paid for such extra work. The suppliants set out at length the various kinds of extra work done and changes made, and prayed for a settlement of accounts, that they might be allowed their claim for the extra work done, for the materials provided by them, for damages resulting from defects of plans, specifications and surveys, from changes made in location, grade, etc., from the negligence and want of skill of the government engineers, and for breach of the contract in being prevented from proceeding with the work, and that they might be reimbursed sums of money advanced during the progress of the work with interest. The Attorney -General demurred on the following grounds : That it did not appear by the petition that the chief engineer of the I. C. Ry. had certi- fied tliat the work for or on account of which the suppliants claimed had been duly executed, or that the suppliants were entitled to be paid therefor or for any part thereof, nor that such certificate had been approved of by the commissioners of said railway as required by s. 18 of the Act of the Par- liament of Canada, entitled "An Act respecting the construction of the I. C. Ry.," passed in the 3l8t year of H. M. reign ; that H. M. was not responsible in a petition of right for the damages and injuries mentioned ; that it did not appear by the terms of the contract the commissioners or their engineers were under any obligation to lay out work or furnisli specifications therefor; that it appeared by the petition that the extra work claimed for was done in pur- suance of directions given by the engineers as provided by the contract, and it was not alleged any extra payment was to be made therefor ; that it was immaterial that the schedules of works were defective or erroneous, because Buch schedules were not alleged to have been warranted as accurate, but only of probable quantities, and the demurrer denied liability for any of the other matters mentioned in the petition on the ground that the contract provided for them, or that the work, if done, was not in any way warranted by H. M., or had been done under the directions of the engineers acting within the con- tract. In the Exchequer Court, Henry. J., overruled the demurrer with costs. On appeal to the Supreme Court of Canada by the Attorney-General, Held, that the suppliants' petition was too indefinite in form, and was insuffi- cient in not setting out the contract, and a compliance with the requirements- of s. 18 of 31 V. c. 13 (C), or satisfactory ground of non-compliance with the- condition precedent required by that section. Appeal allowed. Judgment of the Exchequer Court reversed, with leave to the suppliant (the Crown assenting) to amend his petition, on payment o£ G30 Petition of Right— Contimteil. cdstH of iiijpeal and dotnurrer, by setting out the contract and such averments na lie mi^jlit be advised. The Queen v. 8mith.— Nov. 20, 187!). 17. Breach of notarial contract — RcprexentationH. On tlie 14tli of .Tiily, 1875, tiie Governiiient of Canadii, throufib one Louis Morin, advurtiwed for tenders for the removal of steel rails from the harbour of Montreal to the rock cut at Laciiiiie. The 8up[)hant tendered for the con- tract according* to the advertisement, and suppliant's tender being accepted, a notarial deed of contract was entei'ed into and executed. The contract pro- vided, inter alia, " that the said party of the second part hereby undertakes to remove and carry, for the Government of the I)ominion of Canada, all the steel rails that are actually, or that will be landed from sea-going vessels on the wharves of the harbour of Montreal, during this season of navigation, and deliver and lay on the ground the said steel rails, at the place commoidy called the Kock Cut, on the Lachme (Janal, subject to the terms and conditions here- inafter mentioned. By his petition of right, the suppliant alleged a breach of the contract by the Crown, and that ^forin, acting for the Crown, represented to the suppliant, that some Hi), 000 tons of rails would have to be removed, and that under such representations the suppliant entered into the contract. The amcunt claimed was ?10,000. Held, by the Exche(]uer Court, Taschtreau, J., that under the terms of the contract, the suppliant was entitled to have the removal of all the rails landed in ^Montreal during the season of 1^75, and the Government, having had .5,000 tons of these rails removed by another party, were answerable iu damages for the breach of contract. Held, also, that the representations made by jNIorin, as agent of the Crown, as to the probable ijuantity to be landed, were unauthorized, and having been made previous to the written contract, could not be said to form part of said contract. Kenny y. The Queen, 1 Can. Exch. C. R. 68.— fith :March, 1882. 18. C. S. (C.J c. :.'S, Jl V. c. J.' — Slide and bourn dues, regidations as to — C/udtel niortijaijc — A;/reement hetivcen Crown and. mortgagor of liunher, clfect of — Lien. This was a petition of right, filed by the appellants, praying that a seizure of a quantity of logs, which was made by the government collector for arrears of slide dues, owed by one S. for the logs seized and other logs, be removed, and that the sum of 9o,207, which had been paid by the appel- lants to the Crown, under duress, be refunded to them. S., being indebted to the appellants in a large sum of money, had given thein, as collateral security for the amount of his debt, two chattel mortgages on certain logs and timber. These mortgages were executed, the first on 18th December, 187fi, and the second on Uth l\Iay, 1877. On 15th May, 1877, S. became insolvent, and in 1878, the equity of redemption of the insolvent in the chattel mortgages was duly released to appellants by S's. assignee. In June, 1877, S., who had been allowed to remain in possession of the property, G37 Petition of Right— Cmitiminl. and to attend to the manufacture and diapoaal of tli^ lumber in virtue of special provisions in tiio mnrt>^af{09, and who owed also a lar|>,'t' sum of money to the government for slide dues for neveral years back, in order to repay tliia general indebtedness for dues, aj^reed with the government to pay 82 per 1,000 feet B. II., on all lumber to be shipped by him thronnh the canalti. The dues fixed by the regulations of the government for each log were 4 cents, equal to about 20 cents per 1,000 feet B. M. The appellants claimed that this arrange- ment was unkuown to, and had never been ratified by them. ''•■' T.878, when the appellants began to ship the lumber in question on barges, the collector of slide dues refused to allow the barges to pass through the canals until the appellants paid the 'J2 agreed upon between fS, and the government. The cause was tried before Gwynne, J., in the Exchequer, who Held, 1. No weight could be given to an objection urged by petitioners that the Crown can aciiuire title oidy by record, and therefore no claim upon behalf of the Dominion Government could bo asserted in virtue of the agreement relied upon in the answer of the Attorney-(ieneral as made with K. The Dominion Government must, under s. 7 of the Petition of Kight Ai ' of 187ti, be entitled to whatever benefit may accrue therefrom equally as any subject of llie Crown, if the proceeding were an action against such subject. 2. The provisions and enactments relating to tolls in 31 V. c. 12 (C), are in substance and effect the same as the provisions in c. "JH of the Con. Stats. (C), under which the regulations relating to timber passing through the slides were made, and therefore under the provisions of s. 71 of 31 Y. c. 12, those sections nmst bo read as having been in force since the passing of c. 28 of the Con. Stat., and therefore the regulations made under that statute are in etfect regulations to be construed as made under 31 V. c. 12. 3. If S. were the suppliant asserting a claim against the Government based upon the seizure of the lumber which was seized for the purpose of realizing thereout the arrears of slide dues, to such a claim the defence that what was done was by the leave and license of S., and in pursuance of an agreement to that effect made by him would have been sufficient. Tlic Attorney -General v. Contois, 25 Grant 340 referred to. 4. Sitting in the Court of Exchequer, not as a Court of Appeal, but in an Ontario case to administer the law of Ontario, the judge was bound by the authority of McAuley v. Allen, 20 U.C. C.P. 417, followed in !>4unt H. niUHt bo considoied to Imvo had aiirtieiont autiiority to bind the suppliantH by liin a^^recment with the (Invernment. 0. But whether S. was so authorized or not, the supplinntB adopted, ratified and confirmed the afireement by actint{ under it and advancinu moneys to pay tlie f rovcriiment, in aoconlance with its terms, after they must be held to have had full kiiowledfjo of the nature and effect of it. On appeal to the Hupreme Court of Canada, Held, reversing the judj^ment of Gwynne, J., tlmt S. had no authority, i!Xpress or implied, from the bank, after the e.xeciition of tlu* mortgages, by any agreement with the Crown, to pledge the property covered by the mortgages for the payment of any arrears of Crown dues, or to impose on such jjroperty any lien, charge or burthen other than the law had attached to it for the alidagu and boomage of that specific properly. That there was no evidencR that the bunk had any knowledge of any general lien or charge on thnt property, or of any arrears other than on the lumber mentioned in the mortgages, or of any claim by the Crown other than for the sliilago and boomage on the logs in dispute. That if the bank did know there were arrears for slide or boom dues on logs previously brouglit down and nianufaclured into lumber, such knowledge would not create a charge or attach a hen for such duos on other lumber than that for the slidage and boomage of which they became due. That if S. did propose by any arrangement with the Crown to give the Crown a charge or lien for arrears due for other lumber, there was no evidence of any adoption, ratification or confirmation of any .■ uch arrangement by the bank. That there was nothing in the law or regulations giving the Crown any general lien tor arrears, or for any general balance which the owner of logs may owe the government, or any lion e.xcept on the specilic lumber for the amount due for its pas8a;,e or boomage, viz., lo. per log, eijual to 2()C. per 1,000 ft. B M. That the transaction was in no sense that of principal and agent, but of debtor and creditor, in which the debtor by mortgage by way of collateral security transferred property to his creditor and agreed to retain possession and so deal with it that its value should be realized in such a manner as to secure to the creditor the proceeds in payment of liis debt, the surplus, if any, being for the benefit of the mortgagor. Having transferred the property by way of mortgage, S. was in no position to give by agreement or otherwise a charge to take precedence of such mortgage. Per Fournier, J., without giving any decided opinion as to the validity of the regulations by virtue of section 71 of 31 V. c. 12, such regulations might be looked at to ascertain the amount of dues which could be claimed under tliem, because the appellants could not at the same time admit and deny the validity Petition of Right— ''"utinnfil. of Hucli ru>;iilntioiiH. Admitting they were invalid, tl)e ln^s in 00 tlie BUpjiliiiiitB admitted tliat Honiothiii;^ was justly due to the ^ovcrnintjnt, if not lc;;ally due in virtue of tho regulations. Appi.al allowed with costs, Ktrong and Taachereau, JJ., dissentinj;. The Merchants' Bank of Canada v, The Queen,— 'J'ind .lunu. 1882. See 1 Can. Exch. C. R. 1. 19. Claim for l^roiich of contract — Interest on profits rofust-d. See INTEREST, (1. 20. Piovincial debt, liaJ>ilitij of Domivion for — Order in Council — Account stated — Considenition — Rhjht to iietition. Prior to confederation, one T. was cutting timber under license from the old I'rovinee of Canada on territory in dinputc, butweun that province and the Proviiicc of New UruuHwick. In order to utilize the limber ho cut he had to send it down the St. .lohn I?iver, and it was seized by tho authorities of New lirun^wick and only releuKed upon payment of fines. This continuid for two or three years until T. v.'iia obli^(;d to abandon the business. Aa a result of negotiations between the two provinces, the boundary line was linally lixed, and a commission was appointed to determine the state of accounts between them in respect to the disputed territory. One member of the commission only reported New Urunswickto lie indebted toC'anada in the sum of ?20,00() and upwaids, and in H71 tliese figures were verified by the Dominion auditor. Both before and after confederation T. frequently urged the Government of Canada to collect this amount, and indemnify the licensees who had suf- fered owing to the said dispute ; and finally, by an Order in Council of tlie Dominion Government (lo wliom it was claimed the debt was tnmsferred by the B. N. A. Act) it was declared that a certain amount was due to T. which would be paid on his obtaining the consent of the Governments of Ontario and Quebec. Such consent was obtained, and payments were made by the Domin- ion Government to T. and to tlie suppliant to whom tlie claim was assigned, and the suppliant proceeded by petition of right to recover the balance; the government demurred on the ground that the claim was not founded upon a contract and that the petition would not lie. Fournier, J., in the Exchequer Court, overruled the demurrer, and, on appeal to the Supreme Court of Canada, Held, reversing the judgment of Fournier, J., Fournier and Henry, JJ., dissenting, that there being no previous indebtedness shown to T. either from New Brunswick, the Province of Canada or the Dominion, the Order in Council did not create a debt between T. and the Dominion, and petition would not lie. Appeal allowed with costs. The Queen v. Dunn— 22 C. L. J. U— xi. 385. 640 Petition of Right — Contmueil. 21. Assessment for sideivalks — Non-liahility of Crown. The suppliants by their petition of ri{,'ht set out: — "That there is due to the said corporation, by the Government of the Dominion of Canada, the sum of one thousand five hundred and eighty dol- lars and fifty cents for divers works done, materials furnished, and money disbursed, for sidewalks (trottoirs) in front of the different immovable properties belonj^ing to tiie said f^overnment in the said City of Quebec, and other works, as detailed in the bill of particulars hereunto annexed." " Wherefore your suppliant humbly prays that it may be ordered and adjudf^ed by the said court, that Her Majesty the Queen, and the said Govern- ment of the Dominion are indebted unto the said corporation of the City of Quebec in the said sum of one thousand five hundred and eif^hty dollars and fifty cents, and that an order and judgment to the effect thereof be given for the payment of the said sum." The statement in defence was as follows ; — " Her Majesty's Attorney-General admits that the suppliants performed certain works, furnished materials and expended money for sidewalks in front of the different immovable properties belonj^ins,' to the Government of Canada, in the City of Quebec, and for other works, as alle;^ed in the sup- pliant's petition of right." '• Her Majesty's Atti uey-General alleges, as the fact is, that the said works performed, materials furnished and money expended in the said peti- tion mentioned were not so done, furnished and expended by the suppliants at the request of fler Majesty, but were so done, furnished and expended by the suppliants in pursuance of and by virtue of certain powers vested in tliem by the Act of the Province of Canada, passed in the '20th year of Her Majesty's reigu, chaptered i)l, intituled an ' Act to amend and Consolidate the Provisions contained in the Acts and Ordinances relating to the Incorporation of, and the Supply of Water to the City of Quebec,' and the several Acts in amendment thereof, and for which the suppliants might make assessments as therein pro- vided ; and that tlie suppliants claim is for the recovery of the taxes so assessed upon the said lands and immovable properties of Her Majesty in the City of Quebec; but the said Attorney-General submits that the said lands and im- movable properties are not liable to taxation, and that no action lies against Her Majesty for the recovery of taxes ; and Her Majesty's Attorney- General claims the same benefit from this objection as if he had demurred to the said petition." Issue was joined on these pleadings ; and the case was argued before the Exchequer Court, Fournier, J., presiding, on the facts set out, without any evidence being taken. Held, that the Crown was not liable, and that the petition must be dis- missed with costs. The Corporation of the City of Quebec v. The Queen, 2 Can. Exch. C. R. 450. —30th April, 1886. 6-il Petition of Right — Continued. 22. Intercolonial railway contract — 31 V. c. 13, s. 18 — Certificate of engineer a condition precedent — Forfeiture and penalty clauses. Sec CONTRACT, 27. 2.S. Petition of Right Act of Province of Quebec, 46 V. c. 27— Pro- visions of S. & E. C. Act as to appeals apply to cases arising under. "iee APPEAL, 19. 24. Remedy hy — Lands taken for 'puhlic purposes — Disposal of lands not used — 7 V. c. 11, s. 29 — Mandamus. By the Rideau Canal Act, 8 Geo. IV. c. 1, certain lands of McQ. were set apart for canal purposes but not all so used. By the Ordnance Vesting Act, 7 V. c. 11, the llideau Canal, and the lands and works belonging thereto, were vested in the principal officers of H. M. Ordnance in Great Britain, ana by s. 29 it was enacted ; " Provided always, and be it enacted, that all lands taken from private owners at Bytown under the authority of the Rideau Canal Act . for the use of the canal, which have not been used for that purpose, be restored to the party or parties from whom the same Were taken." The heir- at-law of McQ. sought to recov=ir from the Crown, by petition of right, the lands not used for the canal, or iademnity for such as had been sold by the Crown. Held, per Strong, J., a petition of right is an appropriate remedy for the assertion by the suppliant of any title to relief under s. 29. Where it is within the power of a party having a claim against the Crown of such a nature aa the present to resort to a petition of right, a mandamus will not lie, and a man- damus will never, under any circumstances, be granted where direct relief is sought against the Crown. McQueen Y. The Queen.— xvi. 1.. And see DEED, 10. ESTOPPEL, 10. LIMITATIONS, 10. 25. Claim for extra work done on Intei-colonial Ry. — 31 V. c. 13, ss. 16, 17, 18, and 37 V. c. 15 — Change of chief engineer before final certificate given — Reference of suppliant's claim to engineer — Report l)y engineer — Efliect of — Approval by commissioner or minister necessary. See CONTRACT, 38. 2G. Submission to amiables compositeurs — Of claim against govern- Inent of Province of Quebec — Award — Petition of ritrht to set aside — Finality of award — Art. 1346, C. C. P. See ARBITRATION AND AWARD, 24. CAS. l>ICt. — 41 G42 Petition of Right— Co7itinueil. 27. R. S. Q., Ai-t. 5976— Sale of timber limits— Licensees— Plans- Description — Damages — Art. 992, C. C. — Practice — Style of cause. See CROWN, 28. Petitory Action. — 2\> recover church proimrin — Denial of quality hy defendant ftiied as trustee. The facta of the case, as stated by the plaintiff in his factum, are that by deed of sale passed before notary public on the 23rd November, 1871, and duly registered, the plaintiff, John Morrison, the defondunt, and *.wo others as trustees of the Presbyterian Church of Ciite St. Georye, in connec- tion with the Church of Scotland, became purchasers of the ground upon which subsequently a church was erected. When this action was brought, the whole of the trustees, with the excep- tion of the plaintiff and defendant, were dead. A union of Presbyterian Churches in Canada took place in June, 1875. To further this union and remove any obstructions which might arise out of tho trusts by which tho property of any of the churciies was held, the •' Union Act," 38 V. c. 72, 1875, (Q.) was passed. This Act, s. 2, provided " that if any congregation in connection or com- munion with any of the said churches decide, at any meeting of the said congregation regularly convened, according to tho rules of the said congrega- tion, or the custom of the church with which it is in connection, and held in the two years after such imion, by the majority of the votes of those who, according to the rules of the said congregation, or the custom of tho church with which it is in connection, are entitled to vote at such meeting, not to form part of tho said union, but on the contrary to separate itself therefrom, then and in such case, the property of the said congregation shall not be affected by this Act, nor by any of the provisions thereof." Plaintiff claimed that no meeting of the above congregation had been regularly convened, or conducted according to its rules, or the custom of the church, and that consequently the property was affected by the above statute, and should be held and administered for the benefit of tho said congregation in connection with the united church, to wit, " The Presbyterian Church in Canada." Plaintiff also alleged that the defendant had ceased to be a trustee, and, acting with a minority of tho congregation who refused to enter into the united church, had taken forcible possession of the church property and excluded tnorefrom the plaintiff and the congregation, for which he was trustee. And plaintiff as sole surviving and acting trustee, sueing for hiuiself in his said quality, and for the congregation, claimed the property and that uefendant be ordered to quit and abaudon the same, and bo declared not to be a trustee of said property. G43 Petitory Action — Cimtimwd. Defendant admitted that he was not a trustee, but, wliile saying that he had no quality to defend the action, proceeded to allege that three regular convened meetings liad been held, within the two years, the effect of which was to take the church and property out of the union. He also alleged that at these regularly convened meetings trustees were legally appointed to replace those deceased. The Superior Court, Johnson, J., presiding, dismissed appellant's action on the solo ground that because the trust deed said nothing about survivors, but provided for a succession, there could be no action unless the succession was liist filled up. The judgment of the Court of Queen's Bench confirmed this judgment, the majority presumably on the ground taken by Mr. Justice Johnson, Mr. Justice Cross alone giving as his reason that the meetings referred to were sufiiciont compliance with the law to take the property out of the union. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the courts below, that the action being a petitory action, and the defendant having pleaded and proved that he was not and had never pretended to be in possession of the immovable claimed, the plaintiff must fail ; and that the plaintiff was not entitled to a judgment declaring one not a trustee who did not pretend to bo and admitted that he was not a trustee. Henry, J., dis- senting. Appeal dismissed with costs. Morrison y. McCuaig. — 19th June, 1883. 2. By trustees of Quebec North Sliore turnpike roads — No title to support. Sec ROAD. 3. Right to bring, reserved to defendant in possessor}'^ action. See POSSESSORY ACTION. Pew-holder — Rights of, in St. Andreius Church, Montreal — Dam- ages. J., an elder and member of the congregation of St. Andrew's Church, Montreal, had been a pew-holder in St. Andrew's Church continuously from 18G7 to 1872, inclusive. In ISfiO and 1872 he occupied pew No. (58, and received for the rental of 187'2 a receipt in the following words : " 6G.50 MoNTUEAL, January Dth, 1872. " Received from James Johnston the sum of sixty-six dollars and fifty cents, being rent of lirst-class pew No. OS, in St. Andrew's Church, Beaver Hall, for the year 1872. " For the Trustees, J. Clrments." On the 7th December, 1872, the Trustees notifiud J. that they would not let him a pew for the following year. J. thereupon tendered them the ren- tal for the next year, in advance. On several occasions in 1873, and while still an elder and member of the congregation, he was disturbed in the pos- (J 4.-'. Pewholder — < 'nntimial. session of pew No. 08, by the respondents, the pew having been placarded " For Strangers," strangers seated in it, his books and cushions removed, etc. For tliese torts he brought an action against respondents, claiming $10,000 damages. Held, that J., being an elder and member of the congregation of St. Andrew's Church, Montreal, as such lessee, having tendered the rent in advance, was, under the by-laws, custom and usage, and constitution of St. Andrew's Church, entitled to a continuance of his lease of the pew for the year 1873, and that reasonable, but not vindictive, damages should be allowed> viz. 8300. (The Chief Justice and Strong, J., dissenting). Johnston v. the Minister and Trustees of St. Andrew's Church.— i. 235. [In this case the Judicial Committee of the Privy Council refused leave to appeal.] The Judicial Committee Held, that, although Her Majesty's prerogative to allow an appeal was preserved by s. 47 of the Sup. and E. C. Act, 38 V. c. 11, neither tlie magnitude of the case, nor the effect which the decision might have upon a number of other cases, made it a case in which an appeal should be allowed. 3 App. Cases 159.— 10th Dec. 1877. ^.i to the prerogative right to allow an appeal as an act of grace, tec Cusldng v. Dupuy ; 5 App. Cases 409. In a case of the Itank of New Brunswick v. McLeod (not reported) a petition was presented for special leave to appeal from the judgment of the Supreme Court of New Brunswick. In refusing leave the Judicial Committee gave reasons to the following effect : — 1. The policy of the Dominion Legislature is to discountenance appeals in matters of insolvency, so much so that not even an appeal to the Supreme Court of Canada is allowed, and the final decision is made to rest with the highesi court in each province. 2. The Dominion Legislature cannot affect the prerogative of the Crown to grant special leave to appeal, but in advising Her Majesty whether the pre rogative should be exercised, the Privy Council pays attention to the expressed wishes of the Colony, and will not recommend its exercise except in cases of general interest and importance, and then only when it manifestly appears that the court below has erred in a matter of law. 3. But even if it should be shown that the court below has so erred leave will be refused, if it appear that the court below has decided the case independently of any point of law upon a particular view of the facts, for the Privy Council adopts the facts as found by the court below, and will not review such findings in an appeal entertained as an act of grace. June, 1882. Plan — Description by reference to. See BOUNDARY. EASEMENTS. Mo Plan — ('i>nti)iuv(L 2. Signed by adjoining proprietors. See BOUNDARY, 2. 3. Sale of lands according to — Registration of a. different plan — Acceptance of conveyance. See SALE OF LANDS, 16. 4. Sale of timber limits — Plan fiu'nished by Crown prior to sale — misdescription — Petition of Right to recover for loss sus- tained-R. S. Q., Art. 5976-Art. 992, C. C— Practice— Style of cause. See CROWN, 28. Pleading — Additional i^lea — Supreme Court no power to allow. D. McJr., the respondent, sued S. \V. B. Co., the appelhmts, to recover damages alletjed to have been sustained by reason of the obstruction of the river Miramichi by appellant'H booms. The pleas were not tjuilty, and loave and licenpe. On the trial counsel proposed to add a plea, that the wrong complained of was occasioned by extraordinary freshet. The counsel for tlie respondent objected on the ground that such plea mi-iht have been demurred to. The learned judge refused the ajiplication, because he intended to admit the evidence under the pluii of not guilty. On appeal, counsel for the appell- ant contended that the obstruction complained of was justified under the statute 17 V. c. 10, (N.B.), incorporating the 8outli-West Boom Company. Held, that the appellants, not liaving put in a plea of justification under the hiatute, or applied to the Supreme Court of New Brunswick in Banco for leave to amend their pleas, could not rely on that ground before this court to reverse the decision of the court below. [But see now R. S. C. c. 13.5, s. iVi.] The South-West Boom Co. v. McMillan.— iii. 700. 2. Objection in Court of Appeal, not taken l>3'. See BENEFIT SOCIETY. t 3. Pleas — Amendnient of, in Supreme Court. Sec JURISDICTION, 20. 4. Assignee — Trader — Insolvent Act, LS"."). See INSOLVENCY, 1. 5. Equitable Plea in action for calls. See CORPORATIONS, 10. 646 Pleading— C(»H((HM . • - 2. Without delivery — I-'odseasion — lil'e not accompanied Vjy delivery, and, therefore, F. cl al. were not entitled to the poHBeHHir)n of the locomotiveH na ai^ainst credi- tors of tlio company, and tluit in any cane they were not entitled to the property as a^^ainst O'll., a jud({meiit (^-editor of 1)., an insolvent. Fairbanks v. Barlow. .\iv. 217. .'{. Insolvency — ClaiiJi ajruinst insolvent — Notes lield as collateral security — C'oUocation — Joint and several lialnlity. See AKSIONMKNT, 2:i. 4. 01' slianis in huildin;^ society — l>y-la\v — Indeljtedness to society — Security. See BY-LAW, 18. INSOLVKNCY, 27. 5. Oppo.til ion a fin de rhanje — Pkdfje — ArL J^l'J, C (J. — Afjrcriiunit —Effect of— Arts, mr, 2oir, & 20!)i a a The reBponde. it obtained against the Montreal and Sorel Hallway Com- pany a jud^;ment for the sum of V>li> and costs and iiavin^ caused a writ of vendittDiii e.rjionnn to isHue avjaiiiHt tho railway [iroperty of the Montreal and Horel railway, the appellants, who were in poHHession and working the railway, claimed under a certain agreement in writing! to be entitled to l-etain ))OHHeH- Bion of the railway i)roperty pled;4ed to them for the diHburson.uiils they had made on it, and filed an opposition I'l Jinde chiirye for tho sum of S/)5,00() in tho hands of tlio sheriff. The respondent contested the o|)position. The af»ree- nient relied on by tho appellant company, was entered into between the Montreal and Korcl railway and the appellant company, and stated amongst roher thinj^s that " the Montreal and Sorel Railway Company was burthonod ■ivith debts and had neither money nor credit to place tlie roal in ni .nin^ order, etc.'' Tho amount claimed for disbur.sements, etc., was over 535,000. I'Uo Superior Court, wlioso judgment was affirmed by the Court of Queen's lAeupli fur Lower Canada, diamiused the oppositiun a Jin dc clmnjc. 050 Pledge — ('ii)itinued. On appeal to the Supreme Court the reapoiidcnt moved to quash the appeal on the ground that the amount of the orifjinal jud^niunt waa the only mutter in controverwy and was inHuHicient in amount to jjivo juriwdiction to tlie Court. Tlie (!ourt without deciding the (juustion of juriadiction heard tlie appeal on the raerita, and it was < Held, 1. That hucIi an agreement must he deemed in law to have been made with intent to defraud and was void as to the anterior ureditora of the Montreal and Sorel Railway Company. ' " • 2. That as the n,'ain8t the anterior creditors of .the Montreal and Sorel Railway Company. Arts. 1977, 2015 .t '2094, C. C. 3. That Art. 419, C. C, does not give to a pledgee of an imniovabli' who has not registered his deed a right of retention as against the pledger's execu- tion creditors for the payment of his dishursoments on the property pledged, but the pledgee's remedy is by an opposition a fin de connerver to be paid out of the proceeds of the judicial sale. Art. 197'i, ('. C. The Great Eastern Railway Company v. Lambe.— xxi. 431. 6. Insolvency, knowle(l' -•'•■ See TENANCY AT WILL. 3. As against wrong-doei's — Mixture of logs. • ' ' See REPLEVIN, 2. 4. By road trustees. See ROAD. 5. Possession fraiululently obtained by defendant — Plaintiff not put on proof of title — Tax sale — Assessment — Sheriff's deed — Court of Chancery, powers of in action of ejectment — R8. 0. c. 40, 8. 87; 33 V. c. 23. N., respondent, as assignee in insolvency of H., who bought a lot of land from the purchaser at a sheriff's sa'e for taxes, filed a bill in Chancery under 051 Possession — ( 'outiiiKnl. tlie Ontario Adininistration of Justice Act anaiiist W. A O'N. (appellants), who were in poHHesHion, praying inter alia that dofendants be ordered to deliver up poBBenHion of the laiidn uiid to aoofxiiit for the value of trees, etc., ctit down and removed. W. by his annwer adopted O'N's. possosHion nnil claimed under conveyance from the Crown and impeached tlic validity of the Hale for taxeH. O'N. by Iuh answer alle|{ed he was in poHsossion under \V. At the trial it was proved that H. ^ave a lease of the lot to one T. for four years, and that O'N. went to T. while he was utill in possesBion, and by fraudulent representations induced T. to leave tiie place and thereby obtained possession for the beuetit of W. The Court of Chancery for Ontario held that appellants were obliged to yield up possession to the respondent before asserting any title in tliemselves. The Court of Appeal for Ontario varied the decree by declar- in>^ that the decree was to bewitliout prejudice to any proceeding the appellant W. mi<{lu bo advised to take to establish his title to the lands in questiort within two months from the date thereof. Held, per Ritchie, C.J., and Stronj^, Fournier and Henry, JJ., afRrminj; the judgment of the courts below, — that the appellants, having tiaiw into pos- session under T., were estopped in this suit from dirfputing their landlord's title, and that the respondent was entitled to an injunction to restrain appell- ants from committing waste and to an account for waste already committed. Per Strong, J. — The decree made by the Chancellor would have constituted no bar to a subsequent action at law or suit in etjuity by W. to impeach the tax sale, and should not have been varied by the Court of Appeal. Per Gwynne, J. — The case should have been disposed of upon the issue as to the validity of title upon which the plaintiff had by his bill rested his case ; and as the appellants had failed to prove that the taxes had been paid before the sheriff's sale, tlie Ontario statute, 33 V. c. 23, had removed all errors and defects, if any there were, which would have enabled the true owner, at the time of the sale, to have avoided it, and pursuant to the provisions of c. 40, s. 87, R. S. O., the respondent was entitled to recover possession of the land in question and to have execution .therefor, but not to an order for an injunction or any direction for an account, the statute authorizing title to real property to be tried in a Court of Chancery not justifying a judgment of a more exten- sive character than would have been pronounced in a court of common law it the action had been brought there. White Y. Nelles.— xi. 587. fi. Of marsh lands — Accretion. Sec TRESPASS, 10. •'/■,'',■• 7. Titlehy— Limitations— 38 V.c. 16(0.). This is an action brought to recover possession of the north half of lot No- 34, in the ninth concession of the township of North Dumfries, in the county of Waterloo, in the Province of Ontario. The respondent is the plaintiff in the action, and claims title to the land as residuary devisee under the last will' and testament of Madeline Ross, deceased. The respondent's case is that one Cliarles Ross was at the time of his death in 1804 the owner in fee of the' 652 Possession — Continued. above lands. He died intestate leaving him surviving his widow Madeline lloss, but no issue. After the death of Charles his widow remained in posses- sion and occupation, by herself, or her tenants, of the whole premises up to the time of her death on the (ith October. 1881. By an indenture of lease dated the 3rd day of May, 1881, she demised the premises to the defendant Oliver for the period of five years to be computed from the first day of April, 1381, and at the time of her death Oliver was in possession of the premises as tenant under such lease. The plaintiff had for some years resided with Mrs. Ross in the house on the premises, and continued to reside there some time after Mrs. Ross's death. She subsequently left the premises, leaving the tenant Oliver in ^possession. The defendant Ross, pretending to be one of the heirs-at-law of the late ' vCharles Ross, shortly after the death of Mrs. Ross, procured through a solicitor ihe defendant Oliver to accept from him a lease of the premises for the period of one year, and to attorn to him as landlord. The respondent on the 2-ltli of October, 1882, commenced this action against the defendant Oliver (who was then in possession of the said land) claiming title thereto as residuary devisee under the last will and testament of Madeline Ross, who had acquired a title by length of possession subsequent to the death of her husband the said Charles Ross. The defendant Ross, having obtained an order allowing him to defend as landlord, was made a defendant in the action. In his statement of defence he claimed title to the premises as one of the heirs-at-law of the late Charles Hoss, and alleged an agreement made by Madeline Ross with the heirs-at-law by wJtich Madeline Ross had been permitted to occupy the land by way of an assignnentof dower for her life, and that she had occupied as caretaker, and by virtue of such agreement, and that her occupation was not adverse to his title, or tlmt of the other heirs-aii-law. At the trial the Judge entered a verdict for the defendant. The plaintiff then moved before the full Court of the Queen's Bench Division to set aside this verdict, and to enter judgment for the plaintiff ; upon which motion, after hearing argument, the Court unanimously set aside the verdict for the defen- dants, and directed judgment to be entered for the plaintiff. From this judgment the appellant Ross appealed to the Court of Appeal lor Ontario, which Court, after hearing, and at the close of the argument, unanimously dismissed the appeal and affirmed the judgment of the Court below. On appeal to the Supreme Court of Canada, Held, affirming the judgments of the Courts below, that there was no evidence of an agreement between the heirs-at-law of Charles Rosa and his widow that she should occupy the land during her life in lieu of dower, and nothing to show that the heirs could not have brought an action and recovered the land at any time between the death of Charles Ross and the 1st day of July, 1877, when their right and title were extinguished or ceased by virtue of the Statute of Ontario, 38 V. c. 16. Appeal dismissed with costs. Oliver V. Johnston.— 9th April, 1886. G53 Possession — Continued. H. 'Title by — Failure to establish — Insolvent Act of l87o, ss. 68,. 76— Fraudulent coi> veyance. In an action of ejectmeru the plaintiff claimed title under F., a grantee of S., the assignee in insolvency o' P. T>., who formerly owned the land, and who some years before his insolvency had convened the land to his brother L. D. S., under the advice of the inspectors of the eitate, refused to take proceed- ings to set aside the conveyance to L. D. as fraudulent, and two of the credit- ors, under the provisions of s. 68 of the Act, having obtained leave from the insolvency judge instituted a suit in the name of S., and procured a decree declaring the conveyance to L. D. fraudulent, and, as against S., void. The decree did not direct a sale of the land, as was prayed. The land was, how- ever, advertised for sale, the period of advertisement being shortened by the judge, and was sold to F. ; S., under instructions from the general body of creditors at first refused to convey to F., but subsequently conveyed upon an order being obtained from the judge directing him to do so. It was held by the Court of Appeal for Ontario, 12 Ont. App. R. 298, affirming the decision of the C. P. Div., !J Ont. li. 89, that the sale was not one subject to the control of the general body of creditors, and therefore the restric- tions of 8. 75 of the Act were inapplicable and the sale was valid. Further, that the defendant failed to establish his claim of title by possession. On appeal to the Supreme Court of Canada, Held, that the judgment of the courft below should be afiBrmed. Appeal dismissed with costs. Herbert y. Donovan.— April 9, 1886. 9. Title by — Statute of Limitations — Possession of tenant of owner of life estate as against remainder-man. By a deed to tru itees in 1837, two lots of land were conveyed in trust for E. A. for her life, wi*ii the remainder as follows : Lot No. 2 to G. A., and lot No. 1 to A. A., ti the use of tliem, their heirs and assigns, as joint-tenants and not as tenants ir, common. E. A., the tenant for life, entered into possession of lot No. 2, and in 1862 put her son, the husband of the defendant into posses- sion without exacting any rent. The son died a few months after, and the defendant, his widow, continued in possession of the lot, and was in possession in 1876, when the tenant for life died. In 1878, A. A., the plaintiff, obtained a deed of the legal estate in the two lots from the executors of the surviving trustee (G. A. having died a number of years before) and brought an action against the defendant for the recovery of the said lot No. 2. Held, affirming the judgment of the court below, 7 Ont. App. K. 592 ; 2 C. L. T. 544, that as there was no time prior to the death of the tenant for life when either the trustees or those entitled in remainder could have interfered with the possession of the lot, the Statute of Limitations did not begin to run against the remainder-man until the death of the tenant for life in 1875, and he was therefore entitled to recover. Held, also, that for the* purposes of the action it was immaterial whether the plaintiff was entitled to the whole lot by survivorship on the termination. 654 Possession — Continued. of the joint tenancy by the death of his brother, or only to his portion of the lot as one of his brother's heirs. Adamson v. Adamson.— xii. 563. 10. Title to Land — Possession — Nature of — Statute of limitations — Evidence. In an action against O. to recover possession of land it was shown that 0. had been in possession for over twenty years ; that he was originally in as caretaker for one of the owners ; that afterwards the property was severed by judicial decree and such owner was ordered to convey certain portions to the others ; that after the severance O. performed acts showing that he was atill acting for the owners; and tliat he also exercised acts of ownership by enclosing the land with a fence and in other ways. Held, reversing the judgment of the Court of Appeal and restoring that of Rose, J., at the trial, that the severance of the property did not alter the rela- tion between the owners and O. ; that no act was done by O. at any time declaring that he would not continue to act as caretaker ; and that his posses- sion, therefore, continued to be that of caretaker and he had acquired no title by possession. liijdn v. liijan, 5 Can. S. C. R. 487 [see Tenancy at Will], followed. Howard y. O'Donohoe. — xix. 341. 11. Action for recovery of land against husband and wife — Alle- gation of possession in wife — Sale by sheriff as against husband — Irregularities in — Trial of action after pleadings maintained on demurrer. See EJECTMENT, 5. 12. Sale of lands in hands of executors by sheriff for note given by one of the executors endorsed by testator — Purchase by executor — Possession taken by devisee of the lands — Trust — Statute of limitations. See TUUSTS AND TRUSTEES, 24. 13. Devise to children and their issue — Possession of lands of estate taken l)}'^ a son appointed executor and trustee, but who had not proved will nor disclaimed — Consent of acting executor and trustee — Statute of limitations. See WILL, 23. -Possessory Action. — Equivocal possession — Rujht ofivay. In a possessory action brought by P, against H. , the latter denied H.'s possession aud pleaded inter alia that he was proprietor and had exercised a right of way over the lands in dispuie for a number of years. The laud in 655 Possessory Action — Contlmied. dispute consisted of a roadway situated between the adjoining properties of the plaintiff and defendant. At the trial P. (the defendant) put in his title. H. (plaintiff) proved that he had had possession for a year by closing up the roadway with a fence and putting his cattle there, and that at times he allowed the defendant and others to use the roadway to get to the river, but that when defendant took down the fence he immediately restored it, and that defendant then asked him to let him use it. That it was after the defendant had again taken forcible posses- sion of the land that he instituted against him the present actibn. The courts below held that both parties had only proved an equivocal possession and dismissed the plaintiff's action, ordering that their rights should be tried by an action au petitoire. On appeal to the Supreme Court of Canada, Held, Fournier, .T., dissonting; that as P. had proved a possession animo domiiii for a year and a day, he should be reinstated and maintained in peaceable possession of the land, and H. be forbidden to trouble him by exercising a right of way over the land in question, reserving to the latter hia recourse to revendicate au iietitoire any right he might have. Appeal allowed with costs. Pinsonneault y. Hebert.— 8th March, 1886.— xiii. 4.30. Power of Attorney— To sell land. See SALE OF LANDS, 5. 2. To sell mortgaged lands — Sale of, on credit — Application of proceeds — Duty of purchaser. See MORTGAGE, 21. 3. Construction of — Authority to settle and adjust claim — Right to receive payment under. A crew of sailors claiming salvage from the owners of a vessel picked up at sea gave a power of attorney to P. authorizing him to bring suit or otherwise settle and adjust any claim which they might have for salvage services etc. Held, affirming the decision of the local judge in admiralty, that P. was not authorized to receive payment of the sum awarded for salvage or to appor- tion the respective shares of the sailors therein. Taschereau, J., took no part in judgment, entertaining doubts as to the jurisdiction of the court to hear the appeal. Churchill v. McKay— In re The Ship " Quebec."— xx. 472. Power of Sale. — In mortgage, exercised^ after foreclosure. See MORTGAGE, 15. G56 Practice — Parties — AmemJing record. Under the practice in Nova Scotia, where the wife ia improperly joined as co-plaintiff with the husband, the suit does not abate, but che wife's name must be struck out of the record. Caldwell v. Stadaoona F. & L. Ins. Co. — 12th January, 1883.— xi. 212. la. Contempt of Court — Practice in case of — Judgment not final — R. S. C. c. 135, s. 24 ((0. See JIJRISDICTION, 53. 2. Railway Co. — Bonus — Action against municipality — Specific performance — Counter claim — Damages. Sec RAILWAYS AND RAILWAY COMPANIES, 42. 3. Hypothecary action — Judgment in — Art. 2075, C. C. — Service of judgment— Art. 47 G, C. C. P, and C. S. L. C. c. P, a. 15— ^Vail•er. By a judgment en declaration iVhypothenue certain property in the posses- sion and ownership of respondents was declarsrl hypothecated in favour of the appellant in tlie sum of 1^5,200 and interest and costs ; they were condemned to surrender the same in order that it might be judicially sold to satisfy the judgment, unless they preferred to pay to appellant the amount of the judg- ment. By the judgment it was also decreed that the option shou'd be made within forty days of the service to be made upon them of the judgment, and in default of their so doing within the said delay that the respondents be con- demned to pay to the appellant the amount of the judgment. This judgment (the respondents residing in Scotland and having no domicile in Canada) was served at the prothonotary's office and on the respondents' attorneys. After the delay of forty days, no choice or option having been made, the appellant caused a writ of fi. fa. de terris to issue against the respondents for the full amount of the judgment. The sheriff first seized the property hypothecated, sold it and handed over the proceeds to a prior mortgagee. Another writ of fi. fa. de terris was then issued and other realty belonging to the respondents was seized. To this second seizure the respondents filed an opposition i Jin d'aiinuler, claiming that the judgment had not been served on them and that they were not personally liable for the debt due to appellant. Held, — Ist. Reversing the judgment of the court below, that it is not necessary to serve a judgment en dMaration d'hypothique on a defendant who is absent from the Province and has no domicile. Art. 476, C. C. P. and C. B. L. C. c. 49, s. 15. 2nd. That the respondents, by not opposing the first seizure of their property, he i waived any irregularity (if any) as to the eervioe of the judgment. 3rd. That in an action en declaration d'hypoth^iue the defendant may, in default of his surrendering the property within the period fixed by the court, be personally condemned to pay the full amount of the plaintiff's olaim. Art. 2075, C. C. • Dubuo v. KidBton.— xvi. 357. 657 Practice — Continued. 4. Parties to action — Sale of personal rights — Warranty. See VENDOK AND PURCHASER, 2. 5. Action for libel — Newspaper publication— Lost MSS. — Proof of handwriting — Change of signature — Cross-examination — Nature of. • See EVIDENCE, 39. 6. Pailway Co. — Carriarje of goods — Claim for loss — Limitation of time — Demurrer — Acquiescence in judgment — Resjiuli- cata — Partial loss — Joint tort-feasors — Release to one — Effect of A condition of a contract for carriage of goods by railway provided that no claim for damages to, loss of, or detention of goods should be allowed unless notice in writing, with particulars, was given to the station agent at or nearest to the place of delivery within thirty-six hours after delivery of the goods in respect to which the claim was made. Held, per Strong, J., that a plea setting up non-compliance with this con- dition having been demurred to, and the plaintiff not having appealed against a judgment overruling the demurrer, the question as to the sufficiency in law of the defence was res judicata. Held also, — Per Strong, J., Gwynne, J., contra, that part of the consign- ment having been lost such notice should have been given in respect to the same within thirty-six hours after the delivery of the goods which arrived safely. Quaere. — In the present state of the law is a release to, or satisfaction from one of several joint tort-feasors, a bar to an action against the others ? Grand Trunk Railway Company of Canada v. McMillan.— xvi. 543. AND Sw RAILWAYS AND RAILWAY COMPANIES, 43. 7. Capias — Bail, dischai'ge of for delay in not entering judgment — Order in discretion of court below — Practice — No Appeal. See JURISDICTION, 61. 8. Warehouse receipts — Parol agreement as to disposal of surplus from sale of goods — Action by creditor — Parties — Banking Act— R. S. C. c. 120, s. 53 et seq. See BANKS AND BANKING, 18. 9. Set off — Not pleaded in action — Right to set-off judgment — Equitable assignment. See SET-OFF, 3. CAB. DIG.— 42 658. Practice — Continued. 10. Art. Jt51, G. G. P. — Retraxit — Subsequent dction — Document not proved at trial — Consideration of in appeal — Lis pen- dens and Res judicata — Pleas of. The Exchange Bank of Canada, in an action instituted by them against G., filed a withdrawal of a part of their demand in open court reserving their right to institute a subsequent action for the amount so withdrawn. The court acted on this retraxit, and gave judgment for the balance. This judg- ment ^vas not appealed from. In a subsequent action for the amftunt so reserved : Held, reversing the judgment of the court below, Fouruier, J., dissenting, that the provisions of Art. 451, C. C. P. are applicable to a withdrawal made outside, and without the interference of, the court and cannot affect the validity of a withdrawal made in open court and with its permission. 2. That it was too late in the second action to question the validity of the retraxit upon which the court had in the first action acted and rendered a judgment which was final and conclusive. A document not proved at the trial but relied on in the Court of Queen's Bench for the first time cannot be relied on or made part of the case in appeal. Mimtrml L. d- M. Co. v. Fauteux, 3 Can. S. C. K. 433, and Lionaifi v. Molion't Bank, 10 Can. S. C. R. 627, followed. Exchange Bank of Canada v. Gilman. — xvii. 108. 11. Libel — Trial of action — Improper direction to jury — Excessive damages — Reduction of verdict. Held, pt'r Strong, Fournier, Taschereau and Gwynne, JJ., that where on the trial of an action for libel the case was improperly left to the jury, but the only prejudice occasioned to the defendant thereby was that of excessive damages, the verdict might stand on the plaintiff consenting to the damages being reduced to a sum named by the court. Held, per Ritchie, C. J., that there had been a mis-trial and- the consent of both parties to such reduction was necessary. Hlgglns Y. Walkem.— xvii. 225. 12. Winding-up Act — Procedure under — Use of ordinary machin- ery of court — Security — Reference to master to settle. In assigning to provincial courts or judges certain functions under the Winding-up Act, Parliament intended that the same, should be performed by meanc of the ordinary machinery of the court and by its ordinary procedure. It is, therefore, no ground of objection to a winding-up order that the security to be given by the liquidator appointed thereby is not fixed by the order, but is left to be settled by a master. Shoolbred v. Clarke.— xvii. 265. 659 Practice — Continued. 13. Writ of execiUion — Signature of protko notary — Seal of court. In the Province of Nova Scotia writs of execution need not be signed by the prothonotary of the court. It is the seal of the court which gives validity to such writs, not the signature of the officer. Archibald v. Hubley. — xviii. 116. See CHATTEL MORTGAGE, 11. 1-1. Tierce-opposition to a jiulgment — Interest of opposant — Inter- vention — Sale of litigiom rights — Arts. IJfSo, 989, 990, loS3 C. C. — Arts. 15 Jf, 510, G. P. C. — Judgment — When action was prescribed— Arts. 2316, 221,3, 2265, 2187, G. C. p. having filed a tierce-opposition to a judgment obtained by the Attorney- General of the Province of Quebec in 1884, in a suit commenced by information in 17!)0 against the succession of one M.P. in order to have the judgment set aside on the ground that it declared escheated to the Crown a part of the Seigniory of Grondines, of which he (P.) had been in possession for a great number of years, and which judgment it was alleged had been obtained illegally and by fraud and collusion, one M., an advocate, who had purchasecT all the rights of the Crown in the said succession, intervened and askeJ fer- tile dismissal of the tierce-opposition. The Attorney-General and the curator to the succession of M. P., the only parties to the judgment sought to be set' aside, in answer to P.'s tierce-opposition merely appeared and declared that " (7s s'e;i rapportcnt d justice." Upon the issues being joined on the tierce- opposition and en the intervention and evidence taken, the Superior Court dismissed M.'s intervention and maintained P.'s tierce-opposition. On appeal to the Court of Queen's Bench by the Crown and M. jointly, this judgment was reversed, and P.'s tierce-opposition was dismissed. On appeal to the Supreme Court of Canada : Held, reversing the judgment of the court below, 1st. That M. had no locus standi to intervene, the sale to him of the Crown's rights being void (a) because it was a sale of litigious rights to an advocate prohibited by Arts. 1483 & 1583, C. C, and therefore null under Arts. 14 cfe 990 C. C. ; {b) because it was tainted with champerty, Arts. 14, 989, 990, C. C. ; (c) because M. admitted he had no interest in the case. Art. 154, C. P. C. 2nd. That P., being in possession of the property, declared escheated to the Crown in a proceeding to which he was not a party had a sufficient interest under the circumstances in the case to file a tierce-opposition, and that the judgment of 1884 should be set aside because inter alia, (a) it was obtained by fraud and collusion : (b) the action being prescribed in 1884 (Arts. 2216, 2242, 2265, C. C), P., under Art. 2187, had the right to avail himself of this pre- scription. Fournier, J., dissenting on the ground that P., not having alleged or shown a right superior to that of the Crown, his tierce -opposition should be dismissed. Price Y. Mercier.— xviii. 303. 660 Practice — Continued. 15. Arbitration — Award made rule of court — Time for appljnng to setitaside— 9&10W.III.c.l5,s.2— R.S.O.(1887)c.5ri,8.37. See ARBITRATION AND AWARD, 22. 16. Criminal trial — Causing jurors to stand aside — Right of Crown after perusal of panel — Form of prisoner's remedy — Case reserved — Writ of error. Sfe« CRIMINAL APPEAL, 13. 17. Admission of evidence — Cross examination — Conversation partly given on examination in chief — Evidencj of counsel See EVIDENCE, 50. 18. Tender of evidence — Grounds urged at trial — New grounds relied on in appeal. See EVIDENCE, 51. 19. Practice — Nova Scotia Judicature Act, rule 1^76 — Motion for ■new trial — Disposal of whole case on — Directions to jury — Observations by judge on issue not pleaded — Proper case for dispt using wi th jury . In an action for winding-up a partnership in the gold mining business the defence pleaded was that there never was a partnership formed between the plaintiff and the defendants, or, if there was, that it had been put an end to by a verbal agreement between the parties. The case was tried by a jury and the result depended on the credibility to be attached to the respective witnesses on each side who gave evidence as to the agreement that had been entered into. No issue of fraud was raised by the defendants but the trial judge, in charging the jury, made strong observations in respect to fraudulent concealment of facts from the plaintiff and submitted questions to the jury calling for find- ings in relation to such fraud. The plaintiff having obtained a verdict which was sustained by the SuT)reme Court of Nova Scotia : Held, reversing the judgment of the court below, Gwynne, J., dissenting, that there should be a new trial. Per Gwynne, J., unless either paifey desires to give further evidence the court should render the judgment on the evidence as it stands which the court below ought to have given. Per Strong, J., under rule 476 of the Judicature Act the court can take a case which has been passed upon by a jury into its own hands and dispose of it if all the proper materials on which to decide are before it, but in this case the materials essential to the final disposition of the case are not before the court and there must be a new trial. Per Ritchie, C.J. — The Supreme Court, as an appellate court for the Dominion, should not approve of such strong observations being made by a 661 Practice — Continued. juilge as were made in this cane, in effect oharfting upon the defendants fraud not set out in the pleadings and not legitimately in issue in the cause. Per Strong, Fournier, Taschereaa, Gwynne and Patterson, JJ., that the case was eHsentially an equity case and one in which a jury could advantage- ouHly have been dispensed with. Present: — Sir W. J. Ritchie, C.J., and Strong, Fournier, Taschereau, Gwynne and Patterson, JJ. Hardman y. Putnam.— Feby. 18, 1891.— xviii. 714. 20. Charge to jury — Misdirection — Neiv trial — Tahinrj accounts. W., a trader, being in financial difficulties assigned all his property to B. who undertook to arrange with W.'s creditors. W. subsequently assigned his property in trust for the benefit of his creditors and the assignee and some of of the creditors brought an action to have the transfer to B. set aside. On the trial, after the evidence on both sides was concluded, plaintiff's counsel asked the judge to instruct the jury as to what constituted fraud under the Statute of Elizabeth, and he also urged that an account should be taken of the dealings between W. and B. The judge refused to define fraud to the jury as rwiuestocl and the jury stated that they were unable to deal with the accounts. Judg- ment having been given for the defendants and affirmed by the full court. Held, that the refusal of the judge to charge the jury as requested amounted to misdirection, and there should be a new trial ; that the case could not be properly decided without taking the accounts ; and that it could be more properly dealt with as an equity case. Present: — Sir W. J. Ritchie, C.J., and Strong, Fournier, Gwynne and Patterson, JJ. GrlfBthB Y. Boscowitz.— IGth June, 1891.— xviii, 718. 21. Receipt — Error — Parol evidence — Arts. IJf., 1234, G- C. The prohibition of Art. 1234, C. C. against the admission of parol evidence to contradict or vary a written instrument, is not d'ordre public, and if such evidence is admitted without objection at the trial it cannot subsequently be set aside in a court of appeal. Parol evidence in commercial matters is admissible against a written document to prove error. .Etna Insurance Companii v. Drodie, 5 Can. S. C. R. 1, followed, Schwersenski y. Vineber^.— xix. 243. J;irf«ee EVIDENCE, 53. 22. Action of dainages for death — Prescription — Plea of. In an action by a widow for compensation for the death of her husband from injuries received in the employ of the defendants. Held, Fournier, J., dissenting, that at the time of the husband's death al) right of action was prescribed under Art. 2262, C. C, and the prescription was one to which the courts were bound to give effect althought it was not pleaded. The Canadian Pacific Railway Co. y. Robinson.— xix. 292. [Reversed by the J. C. of the P. C, (1892) A. C. 481]. See ACTION, 8. 662 Practice — Continued. 23. Solicitor — Bill of costs — Reference to taxing officer — Procedure — Jurisdiction of Supreme Court in matter of procedure. See SOLICITOR AND CLIENT, 7. 24. Specially endorsed wnt — Order for sunuiiary judgnient — Appeal. See JURISDICTION. 89. 25. Parties to suit — Assignment of chose in action — Deraurrer — Res judicata. C. by instrument under seal assigned to defendant, as security for moneys due, his interest in certain policies of insurance on which he had actions pendinfi. C. afterwards Rave to B. & Co. an order on defendant for the balance of the insurance money that would remain after paying his debt to defendant. B. & Co. endorsed the order and delivered it to plaintiff by whom it was presented to the defendant, who wrote his name across its face. B. & Co. afterwards delivered to plaintiff a document signed by them statin-^ that, having been informed that the endorsed order was not negotiable by endorse- ment, to perfect plaintiff's title and enable him to obtain the money in defendant's hands, they assigned and transferred their interest therein and appointed plaintiff their attorney, in their name, but for his own use and benefit, to collect the same. The defendant having received the amounts duo C. on the insurance policies informed plaintiff, on his demanding an account, that there were prior claims that would absorb it all. Plaintiff then filed a bill in equity for an account and payment of the amount found due him to which defendant demurred for want of parties, alleging that the order, though absolute on its face, was, in fact, only given os security, and that an account between B. & Co. and C. being necessary to protect C.'s rights, C. was a necessary party to the suit. The demurrer was overrided and the judgment overruling it not appealed from, and tl^p same defence of want of parties was set up in the answer to the bill. Held, affirming the judgment of the Supreme Court of N. B., Strong and Patterson, JJ., dissenting, that the question of want of parties was res judicata by the judgment on the demurrer and could not be raised again by the answer. Even if it could the judgment was right as C. was not a necessary party. As between plaintiff and defendant the order was an absolute transfer of the fund to be received by defendant, and was treated by all the parties as a negotiable instrument. Defendant had nothing to do with the equities between C. and B. & Co., or between B. & Co. and plaintiff, but was bound to account to plaintiff in accordance with his undertaking as indicated by the acceptance of the order. HcKean v. Jones.— xix. 489. 663 Practice — Continued. 26. Election 2iet it ion— Preliminary objections — R. S. C. c. 0, a. GJ — En<)li»h general rides — Copy of petitun — R. S. C. c. 9, s. it (h) — Description and occitpation of petitioner. Held, affirnnn^' tlie judgment of the court below, tbut tlie judges of the court in Manitoba not having' made rules for the practice and procedure in controverted elections the Enj^lish rules of Michaelmaa Term, 18(18, were in force, (R. B. C. c. 'J, b. 63), and that under rule one of aaid English rules the petitioner, when tiling; an election petition, is bound to leave a copy with the clerk of the court to be sent to the returning officer, and that his failure to do 80 is -the subject of a substantial )>reliminary objection and fatal to the petition. Strong and Owynne, JJ., dissenting. Held, further, reversing th»^ judgment of the court below, that the omission to set out in the petition the residence, address and occupation of the petitioner is a mere objection to the form which can be remedied by amendment, and is therefore not fatal. Lisgar Election Case, Collins v. Ross.— .xx. 1. 27. Election petition — Preliminary objections — Personal service at Ottawa — Security — Receipt — R. S. C. c. 9, ss. 8 & 9, s-ss. e cC- g, and s. 10. In Prince Edward two members are returned for the Electoral District of Queen's County. With an election petition against the return of the two sitting members the petitioner deposited the sum of 82,000 with the deputy prothonotary of the court, and in the notice of presentation of petition and deposit of security he stated that he had given security to the amount of one thousand dollars for each respondent "in all two thousand dollars" duly deposited with the prothonotary as required by statute. The receipt was signed by W. A. Weeks, the deputy prothonotary appointed by the judges, and acknowledged the receipt of 12,000, without stating that $1,000 was deposited as security for each respondent. The petition was served personally on the respondents at Ottawa. Held, 1. That personal service of an election petition at Ottawa without an order of the court is a good service under s. 10 of the Controverted Elec- tions Act. 2. That there being at the time of the presentation of the petition security to the amount of $1,000 for the costs of each respondent the security given was sufficient. S. 8 and s. 9, ss. (e) c. 9, E. S. C. 3. That the payment of the money to the deputy prothonotary of the court at Charlottetown was a valid payment. S. 9 ss. {g) c. 9, R. S. C. Queen's County and Prince County (P. E. I.), Election Cases.— xx. 26. 28. Election loetition — Re-service of — Order granting extension of time — Preliminary objections — R. S. C. c. 9, s. 10 — Descrip- tion of petitioner. On the 15th April, 1891, the petitioner omitted to served on the appellant with the election petition in this case a copy of the deposit receipt, but on Practic e — Contin ued. the 20th of April applied to a judge to extend the time for service that he might cure the omission. An order extending the time, subsequently affirmed on appeal by the Court of Appeal for Ontario, was made and the petition was re- served accordingly with all the other papers prescribed by the statute. Before the order extending the time had been drawn up the respondent had filed preliminary objectioris, and by leave contained in the order he filed further preliminary objections after the re-service. The new list of objections includ- ed those made in the first instance, and also an objection to the power or jurisdiction of the Court of Appeal, or a judge thereof, to extend the time for service of the petition beyond the five days prescribed by the Act. Held, that the order was a perfectly valid and good order, and that the re-service made thereunder was a proper and regular service. R. S. C. c. 9, B. 10. The petition in this case simply stated that it was the petition of Angus Chisholm, of the township of Lochiel, in the county of Glengarry, without describing his occupation, and it was shown by affidavit that there are two or three other persons of that name on the voters' list for that township. Held, affirming 'be judgment of the court, below, that the petition should not be dismissed for the want of a more particular description of the peti- tioner. GlengaPFy Election Case (McLennan v. Chisholm).— xx. 38. 29. Affidavit or affirmation — Commissioner — Presumption of authority — Persons having religious scruples — Libel — Malice or negligence — Disagreement of jury — 60 V. cc. 33 <& 23 (Man.). The Act respecting newspapers in Manitoba (50 V. c. 28), provides that no person shall print or publish a newspaper until an affidavit or affirmation, containing such matter as the Act directs is deposited with the prothonotary of the court and that such affidavit or affirmation may be taken before s jnettice or commissioner. Held, that such affidavit or affirmation, if a corporation is proprietor of the newspaper, may be made by the managing director; that there is an option either to swear or affirm and the right to affirm is not confined to mem- bers of certain religions bodies or persons having religions scruples ; and that if the affidavit or affirmation purport to have been taken before a commissioner his authority will be presumed. By s. 11 of the Libel Act of Manitoba (50 V. c. 22), actual malice or cul- pable negligence must be proved in an action for libel, unless special damages are claimed. Held, that such malice or negligence must be established to the satisfac- tion of the jury, and if there is a disagreement as to these issues the verdict cannot stand. Aihdown t. Manitoba " FrM Pmm " Company.— xx. 43. And gee PLEADING, 20. 665 Practice — Continued. 30. Ti-espass to land — Title — New trial — Misdirection — Misconduct of party at view of premises — Nominal damages. See TRESPASS, 20. 31. Election petition — Preliminarij examinntion — Order to post- pone until after session of Parliament — Six mo^iths Ihnit. On motion for preliminary examination of the respondent to an election petition the court ordered, at respondent's instance, that he was not to appear until after the current session of Parliament. Held, reversin<» the judgment of the election judges, that the order was, in effect, an enlargement of the time for the commencement of the trial until after the session, the time occupied by which was not to be computed as part of the six months' limit. R. S. C. c. 9, s. 62. Laprairie Election Case (Gibeault v. Pelletier.)— xx. 185. 32. Election 2'>etition — Preliminary objections — Deposit of security —R. S. a c. 9, s. 9 (f). The preliminary objection in this case was that the security and deposit receipt were illegal, null and void, the written receipt signed by the prothono- tary of the court being as follows:— "That the security required by law had been given on behalf of the petitioners by a sum of $1,000 in a Dominion note, to wit, a bank note of $1,000 (Dominion of Canada) bearing the number 2914, deposited in our hands by the said petitioners, constituting a legal tender under the statute of the Dominion of Canada now in force." The deposit was in fact a Dominion note of $1,000. Held, affirming the judgment of the court below, that the deposit and receipt complied sufficiently with s. 9 (f) of the Dominion Controverted Elec- tions Act. Argenteuil Election Case (Christie v. Horrison.)— xx. 194. 33. Election petition — Status of petitioner — When to he determined —R S. a c. 9, ss. n & 13. In this case the respondent, by preliminary objection, objected to the status of the petitioner, and the case being at issue copies of the voters' lists for said electoral district were Hied but no other evidence offered, and the court set aside the preliminary objection " without prejudice to the right of the res- pondent if so advised to raise the same objection at the trial of the petition. " No appeal was taken from this decision and the case went to trial, where the objec- tion was renewed but was overruled by the trial judges who held that they had no right to entertain it, and on the merits they allowed the petition and voided the election. Thereapon the appellant appealed to the Supreme Court of Canada on the ground that the onus was on the respondents to prove their status, and that their status had not been proved. Held, affirming the judgment of the court below, that the objection raising the question of the qualification of the petitioner was properly raised by preli- 666 Practice — Continued. minary objection and disposed of, and the judges at the trial had no jurisdiction to entertain such objection. R. S. C. c. 9, us. 12 & 13. PreBcott Election Case (Proulx v. Fraser).— xx. 196. 34. Lessor and lessee — Amount claimed — Arts. 887 & 888, G. G. P. — Jurisdict ion. Held, affirming the judgment of the court below, Fournier, J., dissenting, that where in an action brought by tlie lessor under Arts. 887 & 888, C. C. P. to recover possession of premises a demand of $46 is joined for their use and occupation since the expiration of the lease such action must be brought in the Cii'cuit Court, the amount claimed being under $100. Blachford V. McBain.— XX. 269. 85. Action against Provincial Govei'nment — Amending style of cause by order of Supreme Court when appeal brought on for hearing. See PRACTICE OF SUPREME COURT, 30. 36. Appeal — Intervention — Abandonment of appeal by not appeal- ing to intermediate Court of Appeal. See JURISDICTION, 94. 37. Partition — Pai'ties to suit. See WILL, 21. 38. Election petition — Enlargement of time for commencement of trial — Notice of trial — Shorthand ivriter's notes — R. S. C. c. 9, ss. SI, S3, 50 (b). On the 10th October, 1891, the judge on the trial of an election petition, within six months after the filing of the petition, by order enlarged the time for the commencement of the trial to tha 4th November; the six months expiring on the 18th October. On the 19th October another order was made by the judge fixing the date of the trial for the 4th November, 1891, and four- teen clear days' notice of trial was given. The respondent objected to the jurisdiction of the court. Held, that the orders made were valid. Sections 31, 33, c. 9, R. S. C. Held, also, 1. That the objection to the sufficiency of the notice of trial given in this case under section 31 of c. 9, R. S. C. was not an objection which could be relied on in an appeal under section 60 (b) of c. 9, R. S. C. 2. That evidence taken by a shorthand writer not an official stenographer of the court, but who has been sworn and appointed by the judge, need not be read over to the witnesses when extended. Pontiao Election Case. (Hurray v. Lyon.)— xx. G26. 667 Practice — Continued. 39. Action in disavowal — Appearance by attorney — Service of summons — C. S. L. C. c. 83, s. 44 — Parties to suit. See APPEAL, 83. 40. Administration proceedings — Proving' claim on promissory notes held under aj^reement to divide proceeds with original holder — Champerty — Subsequent jiroof by original holder of notes— Right to come in under administration order — Statute of Limitations. See CHAMPERTY. 41. Misdirection — New trial ordered by court below — Interference with order for — Negligence — Damage bj' tire — Spark arrester. See MISDIRECTION, 5. 42. Mortgagor and mortfjasce — Foreclosure of mortiran'e — Practice — Addition of parties — Lessee of mortgagor — Protection of interest of — Staying proceedings — Order of .sale of mort- gaged lands. See MORTGAGE, 30. 43. Practice — Masters office — Reference to assess damar/es — Sever- ance of damages — Joint tort-feasors — Reasons for report — Judgment of Court — Equal division — Withholding judg- ment. R. brought an action against several mill owners on the Ottawa River for damage to his business as an owner and letter of boats caused by sawdust and mill refuse being thrown into the river and accumulating so as to obstruct navigation, and he claimed that he was not only prevented from sailing his boats on the river but his customers who hired boats left him on account of the sawdust and refuse accumulating in front of the boathouse. On the trial judgment was given for the defendants but was reversed by the Court of Appeal and by the Privy Council, and a reference to a master was ordered to assess the damages. Before the master, defendants claimed that other mill owners not proceeded against in the action had contributed to the alleged nuisance and that the report should show tho amount of damage caused by each defendant, also the amount of damage to R. under each head of injury claimed. The defendants offered evidence to show that the loss of custom to R. in letting boats arose from the change in public taste, customers preferring the canal to the river, and plaintiff gave evidence in rebuttal some of which defendants alleged to be irrevelant. The master having reported generally awarding R. $1,000 damages against each of the defendants, au appeal was 668 Practice — Continued. taken against the report resulting in ita being afiBrmed by the Chancellor of Ontario and in the Court of Appeal for Ontario two of the four judges of the latter court being in favour of confirming the report, and the other two giving no judgment on the ground that they could not come to any conclusion with- out being furnished with the reasons of the master for his report. On appeal by defendants to the Supreme Court, in addition to the objections to the report it was argued that the Court of Appeal gave no judgment. Held, that the master properly treated defendants as joint tort-feaiora and was not obliged to give reasons for his report, provided he sufficiently followed the directions in the decree; and that he was not obliged to sever the damages either to show the liability of each defendant or the amount duo plaintiff under each head of damage claimed. Held, further, that the master was the final judge as to the credibility of the witnesses and his report should not be sent back because some irrevelant evidence may have been admitted of a character not likely to have affected his judgment, especially as no appeal was taken from his ruling on the evidence. Held, also, that this court should noc go behind the formal judgment of the court appealed from which stated that the appeal was dismissed. More- over the position was the same as if the judges of the Court of Appeal had been equally divided in opinion in which case the appeal would have been properly dismissed. Booth Y. Ratte —13th December, 1892.— xxi. 637. 44. Of Supreme Court of New Brunswick — All questions of fact to be tried by jury — Reference to court by consent of parties makes the court a private tribunal from which no appeal lies. See JURISDICTION, 109. See aUo COSTS. PLEADING. Practice of Supreme Court— Affidavit — As to matter in dispute, 116, 117. Agents, 1, 2. Allowance of Appeal, 138 (and see Appeal and Security). Amendment, 3. of case, H-20, 2 4, 30. of Judgment, 105-110. Appeal, direct, 1^-12. by leave, 13. Case, U-30 (a). Certiorari, 31, 32. Costs, 33-60, 111 (and see Security). Counsel, 61-59. 669 Practice of Supreme Court— Continued. Cro88 Appeal, 52, 63, 60-63. Discontinuance, 64- Diaminsing Appeal, 65-72. Election Appeal, 6J^, 70-72, 82, 89, 90, 115 Factum, 66, 73-81 Fees, 85 (and see Costa). Habeas Corpiis, 86, 94, 146- Hearing, 87-95. Inscription, 66, 96, 97. Interest, 98-100. Judgment, 101-115. Matter in dispute, 116, 111. Notice of Appeal, 118, 119. Parties, 10, 120, 121. Printing, 21, 22, 23. Privy Council, 111, 122, 123. Quashing A^ypeal, 44> 61, 124- Reversal of Judgment, 115. Security, 5, 6, 125-139, 143. Technical objection, I40, Time, 141, 147, 149. Vacation, 148, 149. 1. Agents — Ajipointing. Conducting busineas with the Registrar's office by correspondence is an irregular practice. A solicitor should appoint an agent as required by the Supreme and Exchequer Court rules. Wallace v. Burkner.— May 2, 1883. 2. Agents — Authority to enter name of. A written authority should be filed with the Registrar authorizing either him or a solicitor to enter the name of the agent in the agent's book, when tJie principal does not enter the name himself. Fer Ritchie, C.J., in chambers. 3. Amendment, generally. See AMLx'IDMENT. 4. Appeal direct from court of original jurisdiction — S. C. A. Act, 1879, 8. 6. The Chief Justice of the Supreme Court, under s. 6 of the Supreme Court Amendment Act of 1879, allowed an appeal direct to the Supreme Court of fi70 Practice of Supreme Court— lOitinud. Canada, it being known that there were then only two judges on the bench in Manitoba, the Chief Justice who was plaintiff in the cause, and Dubuc, J., from whose decree the appeal was brought. Schultz y. Wood.- vi. 585. 5. Appeal direct from court of original jurisdiction — S. 0. A. Act, 1870, S8. C cC- U—S. tO k a Act, ss. 25 A 26— Security. An appeal from the court of original jurisdiction may be allowed by the Supreme Court or a judge tliereof, under s. 6 of the S. C. A. Act, 1879, although the judf^ment appealed from has been pronounced, entered or signed more than thirty dajs before the date of the application. Bank B. N. America v. Walker.— 22nd June, 1882. 6. But, semble, an application to the Supreme Court or a judge thereof, to be allowed to give security under s. 31, S. & E. C. Act, as amended by s. 14, S. C. A. Act 1870, should be within the time limited by s. 25 of the S. & E. C. Act or further time allowed by a judge of the court below under s. 2G, 8. & E. C. Act, Walmsley y. Griffiths. — Per Ritchie, C.J., in chambers. — 14th January, 1885. 7. Apiieol direct from court of original jurisdiction — S. C. A. Act, 1870, 8. G — Court of final resort in B. C. Application for leave to appeal direct from the judgment of Sir M. B. Begbie, C.J., of British Columbia, pronounced on the 11th July, 1881, without any intermediate appeal to any court in the Province. The affidavit of the solicitor of the appellant, after stating the nature of the case, set out that the Supreme Court of British Columbia, being the court of final resort in the Province, consisted of five judges, the Chief Justice and four puisne judges ; that two of the judges had been engaged as counsel in the cause prior to their elevation to the bench, and refused to exercise judicial functions in such cause ; that another judge was absent from the Province and had been so for several months, there was no news of his return, and the deponent was unable to say when, if ever, he would again resume judicial functions in the Province ; that the Administration of Justice Act, 1881, came into operation in British Columbia on the 28th June, 1881, but no rules of court had been published or made under said Act. Section 28 of said Act provides as follows : — " The judges of the Supreme Court shall have power to sit together in the city of Victoria, as a full court, and any three shall constitute a quorum, and suuii full court shall be held only once in each year, at such time as may be fixed by rules of court, and such court shall constitute a Supreme Court." On the 3rd October, 1881, the application came before Mr. Justice Four- nier, in chambers, who referred it to the full court. Held, that the circumstances disclosed by the affidavit did not warrant the court in granting the application Motion refused with $20 costs. Sewell V. B. C. Towing Co.— October 25, 1881. 671 Practice of Supreme Court— C'oh^/hh<(/. 8. Appeal direct from court of original jurisdiction — H. C. A. Act, {1879), 8. G. Appeal allowed without any intermediate appeal to any court in the province of British Columbia. For the facta, see Damajjes, 25. Bank of B. N. A. v. Walker.— June 22, 1882. 9. Appeal direct from court of origincd jurisdictio7i — S. C. A. Act. (1S79), 8. 6. Leave to appeal direct to the Supreme Court of Canada without any intermediate appeal being first had to the Court of Appeal for Ontario, given by Gwynne, J., under s. C of the Supreme Court Amendment Act of 187',), on the ground that the Court of Appeal for Ontario would be bound by the case of Cameron v. Kerr, 3 Ont. App. R. 30, whereas the appellant sought to avoid the effect of that decision in this action. Hoifatt V. TheMerchants' Bank of Canada — xi. 46. 10. Aptpeal direct from court of orif/mal jurisdiction — >S'. G.A. Act (1879), s. 6 [noiv s. i36, s-s. 3 of c, 135, Revised Statutes] — When court below has expressed an opinion on the merits — Church lands — Rector and wardens — Interest of latter to appeal in name of rector (plainti^ — Indemnity. In a suit brought against D., as rector of St. James' cathedral, Toronto, to have certain lands declared to be held by him not only for himself as such rector, but also for the benefit of the other rectories in the city of Toronto, Ferguson, J., decided in favour of the plaintiff, a decision which on appeal to the Chancery Division of the H. C. J., was upheld. Up to the time of the judgment rendered by the latter court, the proceedings had been carried on in the name of D. by arrangement between him and the church-wardens of St. James cathedral who contended that they had an interest separate from that of D. in the disposition of the lands, and the revenues therefrom, and who had indemnified D. against costs. But jpon the church-wardens proposing to appeal to the Court of Appeal, D. refused to allow his name to be further used in the proceedings. The Court of Appeal, upon an application being made by the church-wardens for leave to appeal, refused to grant such leave, holding that the church-wardens had no interest in the lands or revenues. The church-wardens thereupon appealed to Strong, J., in chambers, for leave to appeal per saltum to the Supreme Court of Canada under s. 6 of the S. C. A, Act (1879), from the judgment of the Chancery Division. The judge Held, that the church-wardens had an interest at least which justified them in appealing ; he would not, however, as a judge in chambers over-rule the deci- sion of the Court of Appeal, but grant leave to renew the application to the full court. On the motion coming before the full court, it was Held, that the appeal should be allowed, upon a proper indemnity being given by the church- wardens to D. against all possible costs ; the court expressing no opinion on 672 Practice of Supreme Court— Contiyuud. the merits of the case itself. Henry, J., dissenting, on the groand that it was impossible to decide the ri^ht to appeal without entering into the merits, and on the merits the church -wardeus had no interest in the lands or revenues. Langtry y. Dumoulln.— Nov. 16, 1885.— xiii. 258. 11 (a). Appeal direct from court of original jurisdiction — Special circumstances— S. & E. C. Act, R. S. C. c. 135, s. 26. See APPEAL, 17. 12. Direct from Divisional Court of Ontario — Special circum- stances — Decision of Court of Appeal on abstract question oflaw,R.S. a c. 135, 8. 36. It is not a sufficient ground for allowing an appeal direct from the decision of the trial judge on further consideration or of a Divisional Court of the Hii^h Court of Justice of Ontario, that the Court of Appeal of that province had already, in a similar case before it, given a decision on the abstract quest'on of law involved inthecaseiu which the appeal was sought, though it might be sufS- cient if such decision had been given on the same state of facts and the same evidence, Kyle v. The Canada Co. ; Hislop v. The Town of HcGillevray.— xv. 188. 13. Leave to appeal — Winding-up Act — Time extended after argu- ment. After a case under the Winding-up Act was argued the appellant, with the consent of the respondent, obtained from a judge of the court below an order to extend the time for bringing the appeal, and subsequently before the time expired he got an order from the registrar of the Supreme Court, sitting as a judge in chambers, giving him leave to appeal in accordance with s. 76 of the Winding-up Act, and the order declared that all proceedings had upon the appeal should be considered as taken subsequent to the order granting leave to appeal. Ontario Bank y. Chaplin. — xx. 152. 14. Case, adding formal judgment of the court below to. Hearing of appeal allowed to stand over till case perfected by the addition of the formal judgment of the court below. Kearney y. Kean.— 4th Feb. 1878. 15. Case, adding formal rule of court below to. Appeal placed at foot of list for hear! ig to permit the rule of court below appealed from to be added ; counsel for respondent consenting. Wallace y. Soutlier.— 5th Feb. 1878. 16. Case — Defective in not stating that judgment had been entered up on demurrers. See JUEISDICTION, 21. 673 Practice of Suprem? Court— Continued. 17. Caae — Incomplete, not having fminal order oveiTulhuj demur- rers — Order giving leave to add same. An original case, purporting to be in appeal from a judf^ment of the Supreme Court of British Columbia overruling the demurrers of the defend- ants to certain counts of the declaration, contained no formal order or judg- ment of the court overruling demurrers. Upon application of the agent for appellants' solicitors, the agent of the respondents' solicitors consenting, it was ordered that the Registrar be at liberty to tile the case as received with- out the formal order, and that the appellants might attach within six weeks from that date the said formal order to the case and copies. I'er Kitchie, C.J., in chambers. Bank of British North America v. Walker.— 24th Dec. 1881. 18. Case, adding evidence of plaintiff to — Not properly part of — Chamber application. Counsel for respondent (plaintiff) moves to have evidence given by respondent when examined as a witness on behalf of appellants (defendants) added to case. Counsel for appellants contend that under the code of C. P. the evidence cannot be considered, a declaration having been filed excluding it from the record. Held, the application should have been made in Chamb'^rs, but in any event the evidence could not properly be made part of the case. £tna Ins. Co. v. Brodie. — 5th November, 1879. 19. Case — Amending — Remitting to court below. The judge of the court below having certified that the examination of one D. was made part of the case quantum valeat, Held, that the case must be remitted to the court below to be settled in accordance with the statute and practice of the court. It should appear clearly, whether the examination did or did not properly form a part of the case. McCall Y. Wolff.— 2l8t May, 1884. 20. Case — Defective — Undertaking by counsel to have decree of court of first instance added. During hearing of appeal, the attention of appellant's counsel is called to the fact that the case is defective in not having in it the decree of the Court of Chancery. Argument allowed to proceed, on counsel undertaking to have decree added to case before judgment given. Wright Y. Huron.— 3rd December, 1884. 21. Case — Extending time for printing and filing. Under s. 79 of the S. &E. C. Act and Rules 42 & 70 S. C, a judge in chambers of the Supreme Court has power to extend the time for printing and filing cane. Per Ritchie, C.J., in chambers. Bickford y. Lloyd.— 6th March, 1880. Per Fournier, J., in chambers. Canada Southern Ry. Co. v. Norvell. —17th March, 1880. CAS. DIG. — 43 674 Practice of Supreme Court— Continued. [This practice hae been followed in many cages and may be considered the established practice of the court. After the security is allowed any applica- tion te extend time for printing or filin^^ case should be made to the ReKistrar of the Supremo Court in diambers, and not to the court below or a jud^e thereof.] 22. C(ise — Application as to printing. No application should be made with respect to the contents of the "case," or to dispense with printinf; any part of it, until it has been settled by agree- ment between the parties, or by a judge of the court below, pursuant to the statute. Per Gwynne, J., in chambers. Carrier v. Bender.— 11 March, 1881). 23. Case — Printinr/ — Substantial compliance with rules. Certain portions of the case had been italicized in the printing. The protbonotary certified that the printed case was the case agreed upon and settled by the parties. No affidavit was produced to contradict this certificate or to show that the italics had been improperly used. Objection to case overruled. The case is to be printed so as to procure a certain degree of uniformity and all that is required in a substantial compliance with rule 8. Hitchie, C.J., in Chambers. May Y. McArthur. -3rd April, 1884. 24. Case — Amendraent of—Rei/nitting to court below. Where it appeared that certain papers which a judge of the court below had directed should form part of the case had been incorrectly printed, especially the factum of the respondent in said court, which had been trans- lated and in which interpolations; had been made, the registrar was directed to remit the case to the court below to be corrected. Fournier, J., in Chambers. Parker v. Montreal City Pass. Ry. Co. — 19th February, 1885. 25. Case — Printing unnecessary matter in. Cost of printing unnecessary and useless matter in case not allowed on taxation. L'Heureax v. Lamarche. — xii. at p. 465. 26. Case. Should contain the reasons for judgment of courts below. See per Ritchie, C.J., in Attorney-General v. City of Montreal.— xiii. at p. 359. 27. Case in habeas corpus appeal. The first proceeding in appeal in a hai eas corpw matter is the filing of the "caae." See JURISDICTION, 58. 675 Practice of Supreme Court— Continued. 2H. Case — Document not proved at trial. A document not proved at the trial but roliud on in the Court of Queen's IJonch (P.Q ) for the tlrst time cannot be relied on or made part of the case in appeal. Montreal Loan & M. Co. v. Fauteux, 3 Can. S. C. B. 438, and Lyonnaii V. Molsons Bank, 10 Can. 8. C. R. .727, followed. The Exchange Bank of Canada v. Oilman. — xvii. 108. 29. Case — Amendment of — Too late to apply for after judgment. When a new trial was ordered by the Supreme Court for misdirection in not Hubinittin^ a question to the jury, the plaintiff applied to vary or reverse the judgment on attidavits shewing that the question bad been submitted and answered. Held, that the application was too late, as the court had to determine the appeal on the case transmitted, and the plaintiff had allowed the appeal to be argued and judgment rendered without taking any steps to have the case amended. Providence Washington Ins. Co. v. Gerow.— xiv. 7S1. And see INSURANCE, MARINE, 21. 30. Case — Amendment of — Action against Provincial Government — Style of cause. In this case the action was instituted against the Government of the Province of Quebec, but when the case came up for hearing on tlie appeal to the Supreme Court the court ordered that the name of Her Majesty the Queen be substituted for that of the Province of Quebec. Grant v. The Queen.— xx. '297. And see CROWN, 28. 31. Certiorari — Application for. Writ of certiorari moved for to bring up papers from the Supreme Court of British Columbia, the Chief Justice of that court having made an order staying execution on the judgment of the Supreme Court of Canada, certified to the court below in the usual way, on the ground that an appeal was being proceeded with to the Privy Council. Motion refused. Sewell V. British Columbia Towing Co.— 7th May, 1884. 32. Certiorari — In habeas corpus matter. Neither the Supreme Court, nor a judge thereof, has power to issue a writ of certiorari in a habeas corpus matter. See HABEAS CORPUS, 3. 33. Costs — Quashing appeal. Where an appeal is quashed for want of jurisdiction, it will be quashed without costs, if the objection has been taken by the court itself. See JURISDICTION, 26, 31, 36, 40, 56. 676 Practice of Supreme Court— '"««""<<'/• 34. Nor will costs be ({iven where the appeal has boon inscribed for hearing ex parte, the respondent not appeacinfi;. See JURISDICTION, 28. 86< But costs will be ^iven if the objection has beon taken by the respondent in his factum, o by motion at the earliest opportunity. See JURISDICTION, 11, 21, 22, 43. 36. And in an appeal where the court may think it right to exorcise its power of giving costs, even wliere the objection to the jurisdiction has beon taken by the court itself, the respondent will be allowed the costs of the appeal. See JURISDICTION, 88, 68. 37. Coats — Where objection Jirat taken in appeal. Where an appeal is disposed of on an objection taken for the first titno at the hearing, no coats given. See ARBITRATION AND AWARD, 5. PRESCRIPTION, 12. 38. Costs — When court equally divided. : The judges of the Supreme Court being equally divided in opinion, and the decision of the court below affirmed, the successful party was refused the costs of the appeal. But {i)cr Richards, C.J.), by 38th V. c. 11, s. 38, the Supreme Court being authorized, in its discretion, to order the payment of the costs of the appeal, the decision in this case will not necessarily prevent the majority of the court from ordering the payment of the costs of the appeal in other cases where there is an equal division of opinion amongst the judges. The L.and L. and Olobe In. Co. v. Wyld.— i. ()05. 39. But the uniform practice of the court has been not to give costs when the court has been equally divided. , Curry v. Curry.— 13th March, 1880. HcLeod V. N. B. Ry. Co.- v. 283. Cote Y. Morgan. — vii. 1. HcCallum v. Odette.— vii. 36. Shield's Y. Peak.— viii. 579. Milloy Y. Kerr.— viii. 474. Hegantio Election Case.- viii. 1(J9. Tr'iRt and Loan y. Lawrason.— x. 679. And in every case of equal division to t'- present time (1893), this practice has been followed. 40. Costs — Election appeal — Motion to amend judgment. Counsel for appellant moved to amend final order of Supreme Court as to costs, such order declaring that the respondent should pay the costs in the court below, but the trial judge having refused to tax to appellant the costs of 677 Practice of Supreme Court— Ci>ntiniie coflta. Boulangei Election Gate.— 28th Maioh, 1885. 41. Gouts — Xnt (jlren in lidbeas coroui^ vidtters. No coHtB ure njiven in habeai corpuii appeala, au a general rule, in favorem Ubertati*. In re 0. R. Johnion.— 20th February, 1886. 42. But where an appeal in a hahean corpus matter had been proceeded with after the diochartje of tlie prisoner and for the mere purpose of dejidit.g the question of costs, the appeal was dismissed witli costs. See JURISDICTION, 24. 43. Costs — Counsel fee — Resjwndent arguivg appeal in person. Counsel for respondent moves for order to review taxation and to have couiise) tee allowed to respondent, an advocate, who argued appeal in person. Refused, Fournier and Henry, JJ., dissenting. Charlevoix Election Case (Valln v. Langloli.)-10th June, 1880. 44. Costs — Increased counsel fee — Quashing appeal. An application for increased counsel fee is not one for the full court, but should be made to a judge in chambers. When an appeal is quashed for want of jurisdiction, the court may order the taxation and payment of costs. Beamish v. Kaulbach.— 5th June, 1879. 45. Costs — Between solicitor and client. Application for an order directing Registrar to tax costs between solicitor ' and client, refused. The Chief Justice states that the question was duly con- sidered by the judges at the organization of the court, and it was not thought advisable to regulate costs between solicitor and c'ient. Boak V. Merchants Mar. Ins. Co.— 3rd June, 1879. 46. Costs — Distraction of — Motion for. Held, that, in appeal, where distraction of costs has not been asked for by the pleadings, or by the factum, it should be asked for when judgment is rendered. If not then asked for, any subsequent application must be made to the court upon notice to the other side. Sec Converse v. Clarke, 12L. C.R. 402; The Water Works Co. of Three Rivert V. Dostaler, 18 L. C. J. 196; Later v. Campbell, 7 Legal News, 1G3. Letourneux v. Dansereau.— 27th May, 1886. 47. Costs — Construction of will. Costs ordered to be paid by the respondents (executors and trustees of the will) out of the general residue of the estate of the deceased, but if the said 678 Practice of Supreme Court— Continued. residue should have been distributed then the said costs should be contributed by the persons who should have received portions of the said residue ratably according to the amounts of the respective sums received by them. Fisher y. Anderson.— iv. 406. See WILL, 4. 48. Costs — Tender of. Appellants, not having tendered with their plea costs accrued up to and inclusive of its production, ordered to pay to the respondent the costs incurred in the court of first instance. The £tna Life Insurance Co. v. Brodie.— v. 1. 49. Costs of printing unnecessary and useless matter in case not allowed on taxation. L'Heureiix v. Lamarche.— xii. at p. 465. 50. Costs of Crown disallowed when referring to arbitration instead of relying on strict rights. A claim against the Crown, for the value of work alleged to have been done in the construction of a bridge contracted for, such value not having been included in the final certificate of the engineer, having been referred to arbi- tration under 31 V. c. 12. Held, that the certificate of the engineer was under the contract a condi- tion precedent to recovery, but if the Crown had intended to rely on its strict rights it should not have referred the claim to arbitration, and it should, therefore, not be allowed the costs in any of the courts. The Queen v. Starrs. — xvii. 118. And see CONTRACT, 35. 51. Cowiisel — Attorney -General of province — Jurisdiction of pro- vincial legislature. In an appeal between private suitors in which the validity of an Act of the Legislature of Ontario is questioned, the attorney-general of the province ia heard in support of the jurisdiction of the provincial legislature. Citizens Ins. Co. v, Johnston —April 9, 1880. 52. Counsel — Third counsel heard. The court hears a third counsel for appellants, notwithstanding rule 32, as the laws of two provinces are in question, and there is a cross-appeal ; the so doing not to be considered a precedent. Coleman y. Miller.— Feb. 25, 1882. 58. Third counsel heard, intricate questions of law having to be argued, there being a cross-appeal, and counsel stating that the Court of Queen's Bench for Lower Canada had also relaxed its rule which forbids the hearing of more than two counsel on each side. 679 Practice of Supreme Court— Continued. The court states that the fact of there being a cross-appeal is not of itself sufficient ground to cause the court to depart from its rule. Jones V. FraBer. — March 9, 1886. 54. When one counsel from Quebec and one from Ontario had been heard for respondent, a third counsel (from Quebec) was heard on French authorities applicable. Russell V. Lefrancois— May 6, 1882. 55. Counsel — Right to begin — In re case referred by 0. C. respect- ing Supreme Court of British Columbia — " The Thrasher case." Held, that inasmuch as all statutes should primd facie be considered within the jurisdiction of the Legislature passing them, any one attacking a statute should begin. Therefore counsel for Dominion Government first heard. —May 16, 1883. See LEGISLATURE, 12. 56. Counsel — Right to begin — Reply. Questions respectinr validity of "The Liquor License Act, 1883." {See Liquor License Act, 1883). Held, those attacking the validity of an Act should begin. Therefore counsel for the Provinces first heard. Only one counsel heard in reply for all the Provinces. In re " Liquor License Act, 1883."— Sept. 23, 1884. 57. Counsel — Right to begin. Question whether the Canada Temperance Act, 1878, s. 6, had been com- plied with, and whether proclamation should issue under s. 7. (See " Canada Temperance Act, 1878," 3). The court directs the parties seeking to sustain the aiSrmative, and wish, ing to shew that the proclamation should issue, to begin. In re " Canada Temperance Act, 1878," in the County of Perth.— 28th Oct. 1884. 58. Counsel — President of railway company, appellccnts, not entitled to be heard. The appellants do not appear by counsel at the hearing, but Mr. O'B. appears and states that he is the president and proprietor of the railway oom- , . pany, appellants, and wishes to be heard on their behalf. Refused. Appeal ordered to stand over till next session. Halifax Ciry Ry. Co. v. The Queen.- 23rd May, 1884. 59. Counsel — Foreign — Not heard. Counsel residing in the State of New York wishes to be heard on behalf of appellants in an appeal pending before the Supreme Court of Canada. Refused. Halifax City Ry. Co. t. The Queen.— 9th May, 1884. 680 Practice of Supreme Court— Continued. 60. Cross appeal — Application to hear although principal appeal nut filed. Counsel for respondents, who have given notice of cross appeal, moves for leave to proceed with cross appeal, notwithstanding original case not filed until that day by appellants, and the appeal has not been inscribed. Counsel for appellants also moves to have principal appeal heard, the delay in inscribing and in filing factums having been an oversight. Held, that if the cross appellant desired to proceed with his cross-appeal he should have himself filed the original case. Both principal appeal and cross appeal to stand over. Mayor, etc., of Montreal v. Hall.— 17th Nov. 1883. 61. Cross appeal — Motion to quash appeal — Costs. Motion made to quash appeal on the ground that it should not have been brought as a substantive appeal, but as a cross appeal in the case of Pilon v. Brunet. Motion to quash dismissed, but the respondent in Pilon v. Brunet succeed- 'ing in getting the judgment of the court below reversed on one point and confirmed on another, was allowed costs as of a cross appeal taken under rule >61. Brunet y. Pilon.— v. 318. 62. Cross-appeal — Daniages. Action for damages — Q1,000 awarded as solatium. Verdict set aside and not sustainable in appeal on ground of sufficient evidence of pecuniary loss to justify it, no cross-appeal having been taken. See DAMAGES, 47. 63. Cross-appeal — Damages. Action for damages by a tenant against landlord for negligence of employee in leaving elevator unattended. Verdict in Superior Court for 85,000 reduced by Court of Appeal to ^3,000. No cross-appoal, and therefore judg- ment of Superior Court not restored. See DAMAGES, 49. 64. Discontinuance of appeal in election case. Upon respondent's counsel, in an election appeal, notifying the court that he had been served with notice of discontinuance, the court struck the appeal off the list. The notice of discontinuance having been filed in the registrar's office, that officer certified to the Speaker of the House of Commons that by reason of such discontinuance the decision of the trial judges and their reirort had been left unaffected by the proceedings in the Supreme Court. L'AHomption Election Case (Oauthierv. Brlen).— xxi. 29. 681 ■ Practice of Supreme Court—Contimwd. 65. Dismissing appeal. Where no one appears on behalf of the appellant when an appeal is called for hearing, and counsel for respondent asks for the dismissal of the appeal, it will be dismissed with costs. Burnham v. Watson.— 7th Dec. 1S31 ; Scott y. The Queen.— 27th March, 1880 ; Western Ass. Co. y. Scanlan.— •27th March, 1886. 66. Dismissing appeal for want of p>roseciition — Undue delay in filing factum — Inscript ion. The case was filed on the 22nd October, K 8i, the respondent's factums on the 18th November, 1984. The last day for tiling factums in appeals to be heard the following session was the SOth of January, 1885, and for inscribing, the 2nd February following. The appeal not being inscribed, the respondent's counsel gave notice of motion on the 9th February to dismiss appeal for want of prosecution. On the 14th the motion >vas heard. Appellant's agent stated that on the 2nd February he had made a search in the registrar's office for the respondent's factum, and had been informed it had not been filed. He was therefore under the impression the respondent could not take advantage of the delay of the appellant. Held, that the undue delay in filing appellant's factum and inscribing appeal had not been satisfactorily accounted for, and the appeal should be dismissed. Per Fournier, J., in chambers, 16th February, 1885. An application was made to the court to rescind or vary the order of Fournier, J., and to allow the appellant to file his factum and inscribe appeal. Affidavits were filed, but merely to the effect : 1. That appellant's counsel ihought that while the respondent was in default with regard to his factum, it could not be considered that there was any undue delay in the prosecution by appellant of hid appeal ; and 2. That the appeal was bona yi(2e and serious. Held, that the court would not interfere with the order of the judge in chambers. Whitfield V. The Merchants Bank— 4th March, 1885. 67. Dismissing appeal for want of 2'>Tosecution — Order of judge in chambers — Motion to rescind wder. A party seeking an appeal obtained an extension of time for filing his case but failed to take advantage of the indulgence so granted, whereupon, on the application of the respondent, the appeal was dismissed by the judge in cham- bers. On motion to rescind the order dismissing the appeal. Held, Strong and Gwynne, JJ., dissenting, that under the circumstances of the case the court would not interfere by rescinding the judge's order and restoring the appeal. City of Winnipeg v. Wright.— xiii. 441. 682 Practice of Supreme Court — Contimml. 68. Dismissing appeal for want of prosecution. Counsel for respondent moves to dismiss appeal for want of prosecution. Refused, but appellant directed to have appeal brought on for hearing next session, otherwise to stand distnissed ; appellant to pay costs of the application. Co<;e V. Stadacona Ass. Co.— 10th March, 1881. 69. Disniissing appeal. Motion to dismiss appeal referred by court to Chief Justice in chambers. Martin v. Roy.— 28th January, 1879. 70. Dismissing appeal in controverted election case — Discontinu- ance filed. Counsel for appellant moves to dismiss appeal, not wishing to proceed with it, and having filed a discontinuance. Counsel for respondent consents, on payment of costs. Appeal dismissed with costs. Soulanges Election Case, Filiatrault v. Oe Beaujeu. — 27th November, 1883. 71. Dismissing appeal — Controve;ted election case — Order obtained in chambers by consent — Application to fxdl court. Counsel for respondent moves for an order dismissing appeal in a contro- verted election case. An order had been obtained in chambers, on consent, but doubts had been raised as to whether the order should not have been an order of the court. Granted. Nortli York Election Case, Patterson v. Hulock.— 12th May, 1883. 72. Dismissing appeal — Controverted election case — Application to jiulge in chambers. An application to dismiss an election appeal for want of prosecution should be made to a judge in chambers. Halton Election Case, Lush v. Waldie.— xix. 557. Chicoutimi V. Sauguenay Election Case.— May 16th, 1892. And gee ELECTION, 34. [Therefore, according to the practice as now established (1893) all applica- tions to dismiss for want of prosecution, should be made to the registrar in chambers] . 73. Factum. Irrelevant matter in factum, reflecting on the conduct of one of the judges of the court below, ordered to be struck out. Wallace v. Souther.— 6th February, 1878. 683 Practice of Supreme Court— Continued. 74. Fachiin — Scaiulaious and impertinent. The plaintiiT'a factum containing reflections on the conduct of the judges of the court below, was ordered to be taken off the tiles aa scandalous and impertinent. Vernon y. Oliver. — xi. 156. 75. Factum — Point not raised by — Postponement of hearing. A point is raised at the hearing; not in factum, and couusel for respondent therefore objects that he is not prepared to argue it. The court adjourns hear- ing for a week. Western Counties Ry. Co. v. Windsor & Annapolis Ry. Co.— Gth Feb., IS 79. 7 Q. Factum, further time required to file — Motion to dismiss appeal — Costs. Motion to dismiss appeal refused, but appellant requiring further indul- gence to file factum ordered to pay coats of motion. Dawson v. McDonald. — 13th December, 1879. 77. Facticm — Default in filing — Inscription, motion for. Motion for leave to inscribe case which had not been put on inscription list because factum of appellant not filed in time. The appellant had been directed to bring appeal on for hearing at the session then being held, other- wise appeal to stand dismissed. Counsel stated tlmt delay in tiling factum had occurred because both parties had consented to delay being accorded for so doing. Counsel for respondent consented. Held, that the rule requiring factums to be deposited within a limited time had been passed for the convenience of the court and judges and could not be waived by consent of parties, but under the peculiar circumstances, and in view of the consequences of refusing the motion, liberty to inscribe miglit be given. Cote v. Stadacona Assurance Company. -4th May, 1881. 78. Factum — Motion to strike out unnecessary matter from. Objections to a factum as containing unnecessary matter may be urged at the hearing. Coleman v. Miller.— 23rd February, 1882. 79. Factum — Leave to deposit — Inscription ex parte. When appeal inscribed for hearing ex parte is called, counsel for respon- dents asks leave to be heard and to be allowed to deposit factum. Counsel for appellant consents. Granted. Parker v. Montreal City Passenger Ry. Co.— 9th March, 1885. 80. Factum, — Leave to deposit — Inscription ex parte. When appeal inscribed for hearing e.r paiU is called, counsel for respon- dent asks leave to be heard, although his factum had not been deposited within the time provided by \the Rules. Counsel for appellant consents. 684 Practice of Supreme Court— Coyuinwil. Held, that the rules respecting factum^ mu&t be strictly complied with, and the Registrar should not receive fdctutns tendered after the delay specified in the Rule. Counsel for respondent allowed to be heard, but the case not to be considered a precedent. Lord Y. Davidson.— 3rd November, 1885. 81. Factum — Submitting appeal on. Counsel states he has consent of solicitors on both sides to submit appeal on factums and reporters' notes of a former argument before the court. Allowed. Lawless v. Sullivan.— 22nd January, 1879. 82. Factums — Submitting appeal on. Court refuses to allow appeal to be submitted on the factums, but decides it must be orally argued. Charlevoix Election Case Valin v. Langlois.— 7th June, 1879. 83. Factum — Submitting appeal on. Where a re-hearing became necessary owing to a change in the personnel of the court, the judge who had not heard the appeal consenting, and counsel for all parties desiring it, the court assented to the appeal being submitted on the factums. McKenzie v. Kittridge— 18th June, 1879. 84. Factums — Submitting appeal on. Ou application of counsel for appellants, counsel for respondent assent- ing, the court consent to have appeal submitted on factums wijihout oral argument. Huiphead v. SherllT.— 2nd June, 188G. 85. Fees — In criminal appeals — None payable to Registrar. No fees are payable to the Registrar in criminal appeals, the tariff of fees in schedule X not beiug intended to be applied to such appeals. Ruling by Richards, C.J. [This has been the established practice of the court since its organi- zationj . 86. In a habeas corpus case the first proceeding in appeal is the filing of the case with the Registrar — This must be done within 60 days after the pronouncing of judgment appealed from. See JURISDICTION, 58. 87. Hearing, notice of — Affidavit of service. AVhen appeal heard ex parte, the court requires an affidavit proving service of notice of hearing. Kearney v. Kean.— 31st January, 1879. Domville v. Cameron.— 30th October, 1879. 685 Practice of Supreme Court—Continued. 88. Hearing — Setting down Exchequer Appeal — Exchequer Court Rules 138, 231, 263~Supreme Court Rule U—S. 68, S. & E. a Act, 1875. Application for a direction to the Registrar to set down for hearing an appeal from a judgment of the Exchequer Court on a Petition of Right pro- nounced at Quebec on the 17th October, 1877, by J. T. Taschereau, J. The contract on which the petition was brought was signed at Quebec, the work was done on a section of the I. C. R. in the Province of New Brunswick. On the 9th November, 1877, the deposit of $50 required by s. G8 of the S. & E. G. Act, 1875, as security for costs, was made with the Registrar. Rule 231 Exchequer Court, since repealed by rule 265, provided that no decision or ruling at the trial or hearing of a cause should be appealed from directly to the Supreme Court, but the party dissatisfied should first seek relief by moving before the Exchequer Court " as hereinbefore provided," and the appeal should be from the refusal to grant an order nisi, or if an order should have been granted, from the decision of the court on the motion to make the same absolute. Rule 138 E. C. deals with applications for new trial and provides that " &■ party desirous of obtaming a new trial . . . must apply to the court by motion for an order calling on the opposite party to show cause, at the expiration of eight days from the date of the order, or so soon after as the case can be heard, why a new trial should not be directed. Such motion shall be made within ten days after the trial, or within such extended time as the court or a judge may allow." By rule 261 Exchequer Court rule 231 of the Exchequer Court had been made applicable to cases in which the cause of action had arisen in the Pro- vince of Quebec. But rule 138 had not been expressly declared applicable to such cases. On the 12th February, 1878, rules 138 to 142, both inclusive, were ordered and declared to be and to have been applicable to actions in which the cause of action shall have arisen in the Province of Quebec. On the 7th January, 1878, an application for a rule nisi to set aside the judgment was made to Taschereau, J. On the 7th February, 1878, he pro- nounced judgment refusing it. Subsequently proceedings were taken in the Exchequer Court relating to a change of attorney by the suppliant and the taxation of costs between the suppliant's solicitor and his clients, and an order was obtained from a judge of the Exchequer Court directing all the papers to be transmitted to the acting registrar at Quebec for the purposes of that taxation. The registrar did not set the appeal down for hearing, and no steps were taken relating to the appeal, nor were any proceedings taken to have the judgment entered, nor had the registrar been applied to to set the appeal down for hearing until shortly before the date of the application, the 22nd February, 1883. Held, that no ex post facto effect ought to be given to order 263, which was not intended to apply so as to affect retroactively proceedings had in pending causes, and that the registrar not having set the appeal down for hearing a» 686 Practice of Supreme Court— Contiymed. required by s. G8, and not having entered the judgment, the appeal was not out of court by the operation of rule 44 Supreme Court, which provides that unless an appeal shall be brou)>ht on for hearing within one year after the security shall have been allowed, it shall be held to have been abandoned without any order to dismiss being required, unless the court or a judge shall otherwise order. IMotion granted, (Ritchie, C.J., dissenting), but without co^ts, the point of practice invohed being a new one. Berlinquet v. The Queen.— 1st May, 1883.— xiii. 26. 89. Hearing — Election case — Expediting proceedings in — S. 1^, S. c& E. a Act When an election appeal is properly in court and in a position to be set down by the registrar, an application can be made to the Chief Justice (under 8. 14, S. & E. C. Act) to expedite the proceedings. Bothwell Election Case, Smith v. Hawldns.— 22nd January, 1884. 90. Hearing ex parte — Factum not filed — Ajypellant irregidarly before court. When appeal called, counsel for appellants appears. No one appears on behalf of respondent. The appellant's factum not having been filed till the morning the appeal is called on for hearing, instead of three clear days before the first day of the session, as required by rule 54, the court refuses to hear him ex parte while thus irregularly before the court. Levis Election Case, Belleau v. Dussault. — 30th October, 1884. 91. Hearing, postponement of — Illness of counsel. Motion to postpone hearing till the following session on the ground of unexpected illness of counsel retained. Granted. Adamson v. Adamson. — 5th December, 1884. 92. Hearing — Motion to strike appeal off list — Notice. A motion to strike an appeal off the list of appeals inscribed for hearing must be on notice. Parker v. Montreal City Passenger Ry. Co.— 7th March, 1885. 93. Hearing — Factum^ not filed. Motion to have appeal heard at the then present session, notwithstanding case and factum of appellant not filed 30 days before first day of session, and factum not yet filed on behalf of the Crown. Counsel for Crown consenting. Befused. O'Brien v. The Queen.— 10th Jane, 1678. 687 Practice of Supreme Court— Contmued. 94. Hearing — In haheaa coirpua cq^j^eal. An application to be allowed to bring a haheaa corpus appeal on for hearing after abort notice, must not be ex parte. See HABEAS CORPUS, 2. 95. Hearing — Motion to re-open. In this case, the Supreme Court had refused by their judgment to give a writ of prohibition to prevent t':e taxation of respondent's costs by the county judge, such taxation having been made before the judgment of the Supreme Court was given ; but the court stated that the respondent was not entitled to costs. {See Costs 3.) Counsel for appellants moved to re-open argument of that part of the appeal as to the right to the prohibition, and for a reconsideration thereof, on the ground that the amount taxed to respondent had been paid into the County Court, and that the county judge might make an order directing the money so paid into his court to be paid out to respondent unless prohibited. Held, that the application which was really for a rehearing of the appeal, which had been duly considered and adjudicated upon by the court, could not be entertained ; that the court could not assume that the County Court judge would act illegally, and in defiance of the judgment of the court, to the effect that the respondent was not entitled to costs ; but that if the County Court judge should propose so to act, the appellants would have their remedy against him, and might apply to one of the superior courts for a writ of prohibition. Counsel for appellants not called upon. Motion refused with S25 costs. Ontario and Quebec Ry. Co. v. Phllbrick.— May 18th, 1886. 96. Inscription Case filed after time for. Counsel for a^jpellant moves for leave to inscribe appeal for hearing, though case filed after time for inscribing, all parties being desirous of having appeal heard and consenting. Motion refused. Grip Printing and Publishing Company v. Butterfield.— 20th Nov. 1884. 97. Inscription — Appeal perfected after day for — Consent by counsel. In an appeal perfected after day for inscribing, an application is made by counsel for appellant, counsel for respondent consenting, to have appeal heard at the session of the court then proceeding. Held, that the appeal must come on in the regular way the following session, there being no circumstances shown to induce the court to interfere to expedite the hearing. Banl( of Toionto v. Lei Cure, &c. La Ste. Vierge. -27th February, 1885. ■ OHS Practice of Supreme Court— Uontiniwd. 9H. Interest — Application for. An application to vary judgment by inserting direction that interest be allowed for the period during which the appeal has been pending, must be on notice. Trust and Loan v. Rnttan.— 5th February, 1878. 99. Motion, to he allowed interest. Counsel »or appellant moves for interest for time judgment has been stayed, pursuant to s. 3G, S. li E. C. Act. Question referred to full court by Fournier, J. Held, a question the court should dispose of on its own motion. McQueen v. The Phoenix Mutual Fire Insurance Co.— 0th April, 1880. 100. Interest — Motion to be allowed — On allowance of appeal. Motion for allowance of interest on verdict from date thereof in appeal from N. B. Held, that it be allowed on principal sum from last day of next term after verdict. Clark V. Scottish Imperial Insurance Company.— IDth February, 1880. 101. Jud(jment — Application to stay execution of — Reqxu'te civile. The judgment of the Supreme Court must, under section 40, S. & E. C. .\ct, be entered and sent to the court below before defendant can have recourse to a proceeding by reqii^te civile. A reqiiJte civile does not stay execution as a matter of course. The defendant would have to apply to a judge of the Superior Court or a judge thereof for an order. A judge in chambers should not grant an order staying execution of a judgment, especially when defendant has had ample time to apply to the full court. Per Taschereau, J. See OPPOSITION. 2 (a). 102. Judgment — Nunc pro tunc. The respondent, the assignee of an insolvent estate, having died between the day of hearing of the appeal and the day of rendering judgment, on motion of counsel for appellant the court orders the order in appeal to be entered nunc pro tunc as of the date of hearing. Merchants Banic y. Smith.— 23rd May, 1884. 103. Judgynent — Nunc pro tunc. On motion of appellant's counsel, judgment is directed to be entered nunc pro tund aa of the day of argument, one of the parties having died in the interval. Merchants Bank of Canada v. Keefer.— 12th January, 1885. 104. Judgment, nunc pro tunc. On motion of counsel for respondent, supported by afQdavit showing that respondent had died between the date of hearing and the date upon which 689 Practice of Supreme Court- -(''•nthno-{ au to tlio moaaiire nf dama(cH by the use of infrinninj; machineB by i)erHonH who had bought them from defendants, and that the order bcin;; clear the pleadings could not be looked at to autjiut in construing it. The defendants therouiion aptiealed to the Divisional Court, and also made an application to the Su^.^eme Court, for an amendment to the judg- ment of that court, to iTn„ke it conform to the judf^ments pronounced. Held, that tlie juaj^munt should be amended, and tlie inquiry as to damages limited to an "inquiry whether any, and wliat damatjes have been sustained or incurred by the plaintiff, and to what amount by reason of the defendants infrin^ment of the said patent." The order settled by the registrar on the application was as follows :— " In the Supreme Court of Canada." [Judfies present.] [Date.] [Style of cause.] " Upon the petition of the above named respondents, John Goldio and Hu>;h McCuUof^h presented unto this court this day, in presence of counsel for the above named plaintiffs (the appellants in this court) upon hearint; read the petition and the afTidavits tiled in support of and in opposition tliereto, and upon hearing what %vo8 allej^ed by counsel for all parties, this court, for the purpose of removinfj doubts which it is alleged have arisen as to the construc- tion of the order of this court, dated the 19th day of June, A.])., 188.S, made in the said cause, dothprder that the sr.id order of the 19th day of June, A.D., 1883, be and the same is hereby varied and amended to road nunc jiro tunc, as follows, namely : — " In the Supreme Court of Canada." [Judges present.] [Date.] [Stylpi of cause.] " The appeal of the above named appellants (plaintiffs) from the order of the Court of Appeal for Ontario, made in this cause on the oOth day of Juile, 1882, and dismissing the appeal of the said appellants from the decree of the Court of Chancery made on the 23rd day of June, 1880, coming on to be heard before this court on the 28th, 29th and 30th days of November last, in the presence of counsel as well for the appellants as for the respon- dents, whereupon and upon hearing what was alleged by counsel aforesaid, this court was pleased to direct that the said appeal should stand over for judgment, and the same coming on this day for judgment, this court did declare, order and adjudge that the said appeal shoald be and the same was allowed. " And this court did farther declare, order and adjudge, that the appellant (plaintiff) George Thomas Smith, was the first and true inventor of the 691 Practice of Supreme Court— ''"«'/««.(/. invention ilHHorilM'd and ciaimud in tliu lutturH patent No. '2'i'>T, mentioned in the flrnt pnrK^raph of the appeiitint's (plaintitT's) re-iitnended bill of complaint ; tliat tliu Haid lotterx pati-nt aru ^ood, valid and in full force and efTunt, and that tliti iippttilant li)taiiitirf) Oeor^it 'I'iioiiiaH Kniith haH been from the datu thereof and Htill in entitled thereunder to the oxcluaivo ri((ht, privile){u and liberty of tnakinij, conbtructin^ and UHin^', and vundin>{ to utiierH to be UHed, the invention in the hrttt parui^raph of the uaid plaintiff's ru-uiueuded bill of cumplaint, dL'Bcribed au follows : — " ' In combination with the bolting surface of a flour bolt, thrnn^^h which a current of air is made to paHH by moans of an air cliambur and a fan, or its equivalent, a brush or series of brushes arranged to traverse the under surfaco of said bolt substantially for the purpose set forth in the said letters patent and the specitications thereto, of cleaning the belt of particles of Hour adhering thereto,' subject to such right as his co-plaintitfs now have umler the assign- ments and licenses in the said bill of complaint sot forth; that tho patents 17H!) and 17i)3 in the rospondonts' (dofendants) answer mentioned were never valid and form no defence to the appellant's (plaintiff's) said patent, and that the machines constructed by the respondents (defendantK) in tlie i)loadings mentioned are infringements of tho said letters patent of tho said George Thomas Bmith, and that the appellants (plaintiffs) are entitled to an injunction restraining the said respondents (defendants) and each of them and their and each of their servants, workmen and agents, during the continuance of tlio said letters patent, or any extension of them, from making, constructing, using, or vending to others to be used, any machine containing the same combination as the said machines in the pleadings mentioned, or only colour- ably differing therefrom, or any other machine constructed according to or involving the appellants' (plaintiffs) said patented invention, or only colour- ably differing therefrom, or being an infringement of tho appellants' (plaintiffs) said patent, or causing or procuring the same to be infringed. " And that the appellants (plaintiffs) are entitled to have respondents (defendants) discover upon oath all the machines in their possession or made, used or sold by or for them, or either of them, containing tho combination hereinbefore set forth, and of the names of the purchasers thereof, and that the appellants (plaintiffs) are entitled to an inquiry whether any aud what damages have been sustained by the appellants (plaintiffs) and to what amount, by reason of the respondents' (defendants) infringement of said patent, such damages to be limited to six years previous to the date of the filing of the bill of complaint, and that the appellants (plaintiffs) are entitled to be paid by the defendants such sum of money as upon such inquiry shall be found tit to be awarded to the appellants (plaintiffs) for such damages as aforesaid, within one month after the filing of the master's report ; and the said appellants (plaintiffs) are entitled to be paid the costs of this suit including costs incurred by them in the Court of Chancery or Chancery Division of the High Court of Justice for Ontario, and also in this court, forthwith after taxation thereof, an5 for the purposes aforesaid this cause is referred back to the Chancery Division of the High Court of Justice for Ontario, to make such orders and directions as may be necessary ; and this court did further order that the 692 Practice of Supreme Court— Contimud. registrar of this court do delivbr up to the appellants and respondents the exhibits Hied or deposited herein by them respectively. Smith V. Goldie.— 9th December, 1885. 110. Judgtiient — Amending — Power of court over its own judg- ments. Motion to amend the final judgment in appeal. The court when delivering judgment stated that a sum of $2,399 should be awarded to plaintiff. The order in appeal providing for the payment of that sum was settled and sent to the court below. Counsel for appellant contended that it clearly appeared there had been an error in the calculation, and that in arriving at the sum awarded certain sums had been twice deducted, depriving the plaintiff of a sum of ?3,218.98. Counsel for respondent contended that it did not appear upon the face of the reasons for judgment that an error had been made, and therefore the application was in the nature of a re-hearing. Under the practice of the Privy Council this could not be allowed. Held, that it being clear that by oversight or mistake an error had occurred, the court had power of its own motion to amend its judgment to make it conform to the intention of the court and the principles upon which its judgment was baaed. Order to be made directing the Registrar to call upon the proper oflflcer of the court below to have the judgment of the court returned to be amended. See Montreal Ass. Co, v. McGilUvraij, 11 L. C. R. 325. Rattray y. Young.— 18th March, 1886. 111. A judgment of Privy Council reversing judgment of Supreme Coui't, .should be made a rule of the Supreme Court — The order of Supreme Court dii*ects repayment of costs received purfsuant to a judgment so reversed. Ste APPEAL, 17. 112. Judgment — Appeal from settlement of minutes of. In this case (see Banks and Banking, 12) the respondent appealed to a judge in chambers from the settlement of the minutes of the judgment, on the ground of material error as to the amount ordered to be paid to the appellant (^8,655.13), which amount he contended ought to be only $3,200.60, accirding to the judgment of the court, and also on the ground that the appellant should be condemned to pay the costs of his own appeal before the Court of Queen's Bench. Held, that the application should be dismissed. Per Foumier, J. — The respondents by their motion of the 6th of April last appealed from the settling of the minutes of the judgment pronounced by this court on the 8th March, 1886, on the ground that there was an error in the figures of the draft minutes settled by the Registrar, which brought the amount of the judgment in question up to $8,656.13, whereas it ought only to have been $3,200.60, alleging that the difference between the said two sums, namely, $5,455.53, is not put in question by the pleadings of the parties, and that in 693 Practice of Supreme Court— Continued. consequence that part of the judgment is null, because it goes further than the demand (ultra petita). This reason is without foundation, because the said sum of 95,455.53, paid by the fault and negligence of Louis MoUeur, jr., to the assignee Auger, as dividends on contested claims by Lamoureux, formed part of the 523,251.55 advanced by Molleur and the Bank of St. John to Lamoureux by the deed of Kith May, 187G. And the said sum is put in question by the last part of the conclusions of the action formally demanding an account of sums received by virtue of the deed of the 16th May, 1876, in the terms, " and of the money by him paid or received for him or on his account since the execution of the deed <16th May, 1876) m discharge of the advances made or promised by the defendant as representing the said party impleaded (the bank)." But the said sum not only formed part of the matter in dispute in this case, but was also the object of a special provision in favour of the respondents in the judgment of the Superior Court sitting at St. John's, P.Q., dated 29th January, 1883, declaring that no sum should be deducted from that of $25,251.55 mentioned in the deed of assignment (16th May, 1876), as representing the amount of any contested claim, although the defendant Molleur for the said bank, paid to the assignee the whole of the said sum of $25,251.55. This court by its judgment overruled that part of '"he judgment of the said Superior Court, and has adjudged and decided on the contrary, that ti.e said sum as represent- ing the amount of contested claims ought to be deducted from the $25,251.55 for the reasons specified in its judgment. Consequently I hold that there is no error in the amount of the judgment, and that the draft minutes settled by the Registrar is in accordance with the judgment pronounced by the court. Motion dismissed with costs fixed at $20. Lamoureux v. Molleur.— May 31, 1886. 113. Whei'e new trial ordered for misdirection in not submitting question to jury, an application to vary or reverse the judg- ment on affidavits showing that question was submitted and answered, held too late. See INSURANCE, MARINE, 21. 114. Goitrt equally divided — Effect of. When the Supreme Court of Canada in a case in appeal is equally divided so that the decision appealed against stands unreversed the result of the case in the Supreme Court affects the actual parties to the litigation only and the court, when a similar case is brought before it, is not bound by the result of the pre- vious case. Stanstead Election Case (Rider v. Snow).— xx. 12. 115. Judgment — Consent to reversal of, in election appeal — Elec- tion appeal allowed and petition dismissed upon consent being tiled and an affidavit as to facts stated in such con- sent, R. S. C. c. 135, s. 52. Sec ELECTION, 47. 694 Practice of Si'.preme Court— ConUnunl. 1 10. Mailer in din/>ulfi — Ajfulavit (in to valve of. Upon coniiHul iindortHkinj^ to file an aHidavit Bliowini^ matter in (liHputo to hi) over 1>2,000, the hoarin^ of tlie a|i|)(.'iil Ih [iroccodod with. McCorklll V. Knight. -HlHt.Janiiiiry, ]87!». 117. Mailer i/n dlnpyle — Affidavit an to v(dii,e of — Hank hIi ares — Arliud vukce. Wlioro tlie inattor in oontrovorHy in bank Hliar(!H, their actual valiio at tho tiriK! of tlio inHtlliitioii of tho action and not tiicir iiarvahu; will (h-tcrniinu the ri>ehalf of appellantH wan that imder Art. 154, G. C. P. an intervention could l)e had or forced at any time before final jutl^nient ; and if any qucHtion as to liability of tho |)erHon Hou^ht.to l)o added Hliould ariHO, the court could remit the case under rule '.iH, B. C. to the Kuperior Court to have such question decided. G95 Practice of Supreme Court — ('ontinnM. rt wiiH lulriiittod thut tliu objoct of tlio application wiih to havo a party who Would l)n aiiHWoriilild for tlui cohIh of tlid apjioal. Held, that tliu ap)iliciitioti hIioiiUI liavu beon mndo at tliu oarliuHt oppor- tunity to the Court of Qiutun'H Bonuli, thu aHHi({iim(int to K, U. having boon rnado bcforo tho a|)p(!al to tluit court. Tho <)U(!Htloii an to tho liiibllity of ['',. \\. to b'.' forci'.d iiii/O tho ciimhi! iih ii jiiii'ty wiih not ono wiiic.li, iind;ht, the Crown in this case could suffer no inconvenience from not j^c'ttint; S(!(;urity, us well as on the (ground of delay in making the application. Application for security for costs in the Exchequer Court must be made within the time allowed for filing statement in defence, except under special circumstances. By Richards, C.J., in the Exchequer Court of (Canada. Wood Y. The Queen.— vii. 031. 127. Security for coats of appeal — Supreme and Exchetpier Court Act, 8. SI — Swprerne (Joart Ride G — Court of Heviev) (P.Q.), no appeal direct from.. The following certificate was filed with the printed case, as complying with Rule (i of the Supremo Court llnles : " We, the undersignod, joint pro- thonotary for the Superior Court of Lower Canada, now the Province of Qucibec, do hereby certify that the said defendant has deposited in our oflice, on tlio twentieth day of November last, the sum of fiveliundred dollars, as security in appeal in t.iis case, before the Supreme Court, according to section (31) tliirty- first of the Supreme Court Act, passentimu8.5. 129. Hecurity-T— Allowance of — Judye of court helovj functas o(fi.cio. When a judge of the court below has made an order allowiii({ the security, he iH/nnctUH officio, and the appeal is tlmu snijject to llie jurisdiction of the Supreme Court. No api>licatioii can bo made to the judt^e or the full court below to rescind the order. Any application must bo thereafter made to the Supreme Court or a judj^e thereof. Walmsloy v. Griffiths.— 7th December, 1885. 1.'30. Scr.it/rily — Allowance of — A slay of proceedinyfi in coiiH below — (Jostn. The Supreme Court allowed an appeal from a judgment of the Court of Appeal directiii(j a reference which had been partly proceeded with after the allowance of tlie Hccurity. The Bolicitor for the ai)pellaiit desired the Il(!;^istrar to iiiKcrt a provJHion in the order in ajipeal of the Supreme Court specially " including! the costs of nnd attending! tlie ri.'foronc.e." The Ho^jlHtrar referred the [loiiit to th(! Chief Justice in chambers and his lordshi[i stated his opinion to be that the Supremo Court could not recognize any proceeding's taken in the court below after the allowance of the security, which acted as a stay of all prooccsdinrts, excejit of execution in cases provided for by s. 32 of the S. A, E. C. Act. If proceedings had been taken in the court below which should not have been taken, applica- tion should be made to that court with reference to such proceedings. The order of the Supreme Court shoulrl provide generally for the payment of all costs incuriod by the appellant. See. Partnership, (>. Starrs v. Cosgrave Brewing & Malting Co.— 17th April, 1880. 131. Security for coats of appeal allovmd to be given by Judye of S. C't. under 8. SI, S. & K. (1 Act. as amended by s. ///. 8. a A. Act, 1S70— Vacation. The following facts appeared by afl'idavit :— On the '27th June, 1881, judgment was rendered hy the Supreme Court of British Columl>ia (negbio, C.J., and Crease, J., |)reHont), on motion for judgment on (h-murrers of defendants to plaintiff's declaration, overruling demurrers, and judgment was rendered on motion for judgment on verdict previously rendered by a jury on 698 Practice of Supreme Court — Continued. the trial of issues of fact, allowing plaintiff to enter judgment for $5,000 the atnoiint of said verdict. On the 4th July following defendants' solicitor served a notice of appeal to the Supreme Court of Canada on plaintiffs solicitor and of his intention to apply to the Chief Justice of the S. Ct. of B. C. next day for allowance of such apjieal upon giving of such security as might be lawfully required. On the 5th July, defendants' solicitor attended before the Ch. J. wlio refused to allow an appeal, on the ground that the judgment on the demurrers was tlie judgment of the full court, but judgment on motion for judgment on verdict was his own judgment fi"om which no appeal would lie until re-heard before the full court, and that under the Local Administration of Justice Act, 1881, a full court could not bo held until the lapse of about a your from that date. The defendants' solicitor then and several times after- wards tendered to the Ch. J. and to the registrar of said. court the sum of ■ifln'iOO, $tj,000 having been asked by plaintiff's solicitor as security under s. 32 s-s. 5 of the S. & E. C. Act, and $500 being as aecuiity for the costs of appeal, but the Ch. J. refused to allow it to be paid into court. On the llch July, 1881, the Ch. J. of B. C. ordered that upon paying to the plaintiff $1,000 and his taxed costs of suit, execution should be stayed and defendants have leave within four days after next sitting of full court to move such courc for a re-hearing of the argument on the demurrers, and to move for a new trial, or to eater judgment for defendants. On the 23rd August, 1881, the agent of defendants applied to Strong, J., in chaiubers for leave to give security. The application was refused because made in vacation and not on notice. On the 13th September following, the agent for defendants' solicitor renewed his application to a judge of the Supreme Court of Canada. An order was made allowing defendants to pay into the Supreme Court of Canada $500 as security for the costs of appeal. Per Fournier, J., in Chambers. Bank of B. N. A. y. Walker.— 18th September, 1881. 132. Security — Appeal — Tlte constitutionality of s. 4^3, Ontario Judicature Act doubted — Security for costs allowed to he given under s. 31, S. & E. G. Act as amended by s. 14-, S. C. Am. Act, 1879. On the 15th day of September, 1882, an appeal to the Court of Appeal for Ontario, in which the defendants were appellants and the plaintiff was respon- dent, was dismissed. The matter in controversy in the action amounted to the sura of $576.30, exclusive of costs. The defendants, on said 15th day of September, applied to the Court of Appeal, under section 43 of the Judicature Act of Ontario, for special leave to appeal from judgment of said Court of Appeal to the Supreme Court of Canada, and the Court of Appeal refused to grant such special leave. The defendants thereupon made an application to Mr. Justice Fournier in Chambers for leave to appeal from said judgment of the Court of Appeal, or for an order that defendants be at liberty to give proper 699 Practice of Supreme Court— ^ '"»/''»'(('(/. security to the satisfaction of tlie Supreme Court or a judae thereof, that they would effectually prosecute their appeal, or for such further or other order as the judfie or oourt ini}»lit direct. This application was made on the 4th day of October, 1882, beinj^ witiiin thirty days after the said judgment was pro- nounced. Mr. Justice Fournier, finding that the point as to tlie validity of the section in question of the Judicature Act of Ontario had beon raised by the application, referred it to the full court. In the course of the argument the court expressed great douots as to the constitutionality of the -13rd section of the Ontario Statute, but as the appellant's counsel abandoned the lirst alternative of his motion the court, exercising the powers conferred by the 31st section of the Supreme and Exchequer Court Act, 187-5, as amended by the 1-lth section of the Supreme Court Amendni >nt .\ct of 1879, Ordered, that the second alternative of the said motion should be granted, and that the said appellant should be at liberty to pay the sum of iiiOQ into the Supreme Court to the credit of the registrar thereof as security for the costs of the appeal. Forristal y. McDonald (18 C. L. J. 421). — November 7, 1882. [In Chnlison v. lii/an, 17 C. S. C. R. 2.51, the Supreme Court dealt with s. 43 of the Ontario Judi^ature Act, and expressly dechired it to be ultnt virrs of the provincial legislature. See Legislature, 17]. 133. Security — Application for allowavce of. Motion on behalf of defendant for apprcivid of security and allowance of appeal. Held, that a similar application having been made to Gwynne, J., in chambers, and refused, and the apjilication being in any event one which should be made in chambers, the application could not be entertained. MacNab y, Wagler.— February, 22, 1884. 134. Security — Application for leave to give — S. d; E. C. Act, as. 25 & '26— S. a A. Act (1879), s. U. Appellant had applied to a judge of the Court of Appeal for Ontario, under s. *2() of the S. iV E. C. Act, for further time to appeal. After consi dering all the circumstances, the judge refused the application. The appellant then applied to Ritchie, C.J., in chambers for leave to give security under s. 31, S. it E. C. Act, as amended by s. 14, S. C. Am. Act, 1879. Held, that the applications nmst be dismissed with costs. The Chief Justice was of opinion that the part-ies having applied to a judge of the court below, who was familiar with and had considered all the facts, the decision of such judge ought not to be interfered with, even if & judge of the Supreme Court were not bound as to time by s. 25, S & E. C. Act. He was inclined to hold, however, that an application to the Supreme Court, or a judge thereof for leave to give security pursuant to s. 31, S. & E. C. Act, as amended, should be made within the time limited by s. 25, or such further time as a judge of the court below may have allowed under s. 26. Per Richie, C.J., in chambers. Walmsley y. Griffiths.— January 14, 1885. 700 Practice of Supreme Court— ^ 'ontinued. [Tho Court of Appeal for Ontario has held that no appeal lies to that conrt from a judgment of a jad<;e of that court extending time for appealing, under s. 2G, S. tSc £. C. Act. Neill v. Tiavellen' Insurance Co., 9 Ont. App. R. 54] . 135. Security — Bond, form of — // objected to, should he by (q^pU- cation in chambers to dismiss. A bond for security of costs of appeal to Supreme Court should provide for the prosecution of the appeal. If an objection is made to the form of a bond for security for costs on appeal to the Supreme Court it should be by application in chambers to dis- miss, and if not so made the objection will be held to be waived. Whitman v. Union Bank of Halifax.— xvi. 410. 136. Security — Bond not given to iw.rties interested in appeal. Where the bond for security of cobts of appeal has not been jjiven to the parties really interested in the appeal and before the court, the appeal will not lie. See JURISDICTION, 61. 137. Security — Application to allow, refused by court below — Re- newal of application to Supreme Court. An appellant is not estopped from applying to a judge of the Supreme Court under s. 40, merely by having already applied to a judge of the court below who has refused the application. Ontario and Quebec Ry. Co. v. Marcheterre. — xvii. 141. 138. Security — Allowance of. In 9. 42 of the S. & E. C. Act, (R. S. C. c. 135), the expression " allow an appeal " means only that the court or judge may settle the case and approve the security. • Per Strong, J., in Vaughan Y. Richardson. — xvii. 703. 139. Security — Condition precedent to appeal. Except in cases specially provided for, no appeal can be heard by the Supreme Court unless security for costs has been given as provided by s. 4(5 of the S. ifc E. C. Act, R. S. C. c. 135. Per Ritchie, C.J. and Taschereau, J. In re Cahan.— xxi. 100. See JURISDICTION, ICO. 140. Technical objection. Technical objection not taken in the court below, cannot be allowed to pre- vail in appeal, following the rule of the Privy Council. Per Taschereau, J. See CONTRACT, 10. 701 Practice of Supreme Court — Contitined. 141. Time — Application for further time in ap2:>ealfrom B.C. On the 12th October, 1881, the agent for defendants' solicitor applied for three months further time to file the case and factums, showing by affidavit that the day the order had been made by a judge of Supreme Court, allowing ^500 to be paid into the Supreme Court of Canada, as security for the costs of appeal, the 13th September, 1882, the $590 had been paid in ; that the next day the papers had been mailed to the defendants' solicitor at Victoria, B.C., to enable him to prosecute his appeal ; that a letter took about three weeks to reach Victoria from Ottawa ; that he had on the 7th October received a telegram (produced) from defendants' solicitor, saying : " Papers just received ; get time e.'ctended," and that he verily believed unless three months further time was granted to prepare and print case and factums and transmit them, grave injus- tice would be done. An order was thereupon made giving until 1st December then next to have case printed and filed with the Registrar of the Supreme Court of Canada. Per Ritchie, C.J., in chambers. Bank of B. N. A. y. Walker.— 12th October, 1881. 142. Time, application to extend — When limit fixed by order of full court within which case to he filed — Case, not settled through delay of respondent — Further time given and respondent ordered to pay the costs. On the 12th September, 1882, the agents of the defendants' solicitor moved before the Chief Justice of the Supreme Court of Canada (in chambers), for an order to extend the time mentioned in the order of the court of the 22nd June, 1882, for filing the case {seeDamages 25, at page 218), until the Ist January, 1883, or for an order that 3, writ of cer(io?*a/-i should issue to the Supreme Court of B. C. or to the Chief Justice, or the registrar thereof, to bring up all the papers in said cause, or for a stay of proceedings under the order of the 22nd June, 1882, until application could be made to the full court at its next session for such relief as the appellants might be entitled to, or for an order allowing defendants to file a printed copy of " case " then produced as the "case " required by s. 29 of the S. & E. C. Act, 1875, notwithstanding the same had not been transmitted by the Registrar of the Supreme Court of B. C, nor certified under the seal of that court, or for such other order as the parties might be deemed entitled to. Upon hearing the parties and reading the aifidavits in support of the application, his lordship the Chief Justice enlarged the motion to be heard before the full court on the first day of the next session, gave permission to the parties to file further affidavits to be used upon said motion, the same being first served upon the solicitors of the respective opposite parties in B.C., and stayed all proceedings under the order of the 22nd June, 1882, until the hearing of the motion before the full court and the final disposition thereof. On the 25th October, 1882, the motion was heard before the full court. In support of it affidavits were read by counsel for the defendants to the effect : that the order of the 22nd June, 1882, reached the defendants' solicitor on 702 Practice of Supreme Court— Cunt inncd. the 12tli .luly followin^,'. On the iHtli July lie left a draft copy of the " case " with the Chief .Justice of Supreme Court of British Colunibia, and obtained from him and served upon the solicitor for the plaintiff an appointment to settle the " case " on the 'iSth July ; that on the '25th July the ilraft copy of the " case " was lianded to the counsel for plaintiff for his perusal, and the Chief Justice appointed the '27th July to settle it; that on Mie '27th July the Chief Justice settled the "case" and handed it to defendants' solicitor, wlio imme- diately put it in the hands of the printer, and wlio corrected the proof and handed the printed sheets as they were ready to respondents' counsel ; that on the 10th August all the printed sheets, with the exception of the last two or three pa<;es, were handed to the registrar of the Supreme Court of Britisli Columbia, who said the Chief Justice wished to see all tlie sheets, and they were all handed to the rej^istrar next day with the original as settled, and the solicitor made an appointment to apply for his certificate on the following day ; that he attended the Chief Justice by request, who proposed to revise and alter the printed cony of his charf,'y and judgment, and who said he would hantl to the registrar a pa'^o of corrections and additions to be printed ; that upon requesting the re^jistrar to certify the " case,'' he refused to do so, after con- sulting the Chief Justice, on the ground tliat the Chief Justice instructed him it was not properly corrected; thi.t the "case" so handed to the registrar for his certificate was a true and c^ nplote copy of the "case" as settled by the Chief J ustice, and contained every document lianded in at the trial as evidence ; that the utmost diligence had been used, and that it would be impossible to alter or reprint the " case " in whole or in part and file it witliin the time limited by the order of the 22nd June, 1882 ; that upon refusal of tlie registrar to certify he had on the '21st August, 1882, taken out a summons calling upon the plaintiff and registrar of the Supremo Court of British Columbia to shew cause why the registrar sliould not be directed to transmit the " case " settled on the 27th July, 1882, to the registrar of tlio Supreme Court of Canada ; that uo evidence was offered in opposition to such application ; that the Cliief Justice stated that he had settled the MS. " case," but had not compared the printed copy with the MS., and he ought to have had the opportunity of revising the proof sheets, and until he had done so he did not consider that the " case " was settled ; that counsel had thereupon suggested that tlie MSS. copy miglit be transmitted, but the Chief Justice refused to make any order upon the said application; and that the registrar of the court below had been requested either to return the original " case " to the defendants' solicitor, or send it to the registrar of the Supreme Court of Canada, but had replied that the Chief Justice was using it. On behalf of the plaintiff was read an affidavit of the registrar of the Supreme Court of B. C. to the effect that no draft MSS. " case " settled by the CJ. of the Supreme Court of B. C. had been filed with him ; that there had been a reference to the C.J. by counsel for the defendants on the 27th July, then last (1882) to settle some points of disputed evidence, and the points so referred were settled by the C.J., but that he was informed by the C.J. that except as aforesaid no " case " was settled by him, and no completed " case " was ever submitted to him for revision until a bound " case " was banded to him. 708 Practice of Supreme Court— ''o»/i'«?«<''/. An aftklavit of tho connsol who had appeared for plaintiff before the C.J. of tlie Supremo Court of IJ. C. on tho 'JTtli July, 1HH2, stated that ho attended to Hettlo the MS. " case " as far as prepared; that none of the exhibits or documents which were produced at tlio trial, or the judgments, wore then printed or submitted to him, and he (tho defendant) never settled tho " case" as printed ; that certain parts of the evidence were greatly incorrect and not in accordance with tho notes of the C.J. who tried tlie case; and that several documents which were |)roduced in evidence were omitted from the " case " and that he had requested them to be inserted, without effect. And an affidavit of the plaintiff's solicitor stated that on the application made on the return of tho summons of tho 2l8t Au;,'ust, 18H'2, he had found the "case incorrect in certain particulars, and had consented to the " case" goin^ forward if these were corrected. Counsel for both parties were heard, and counsel for defendants stated that if any part of the record had been omitted from the " case" they were and had been ready to have it added. The Supreme Court of Canada was of opinion that whether the " case" had been settled or not by tho C. J., it certainly was not throuj^h the fault or laches of the defendants that it had not boon settled, but froni the delays and laches of the plaintiff, and it ought to have been settled ; and the court ordered that notwithstandinf,' the order of tho 22nd Juno, 1882, tho time for fllin^ tlie " case " and depositing the factum of the appellants should be extended to the Ist of January, 1883, and tho appellants should be at liberty to brinj; the appeal on for hearing at the next sessions thereafter ; that the appellants should hi at liberty to apply to a judge of the Supreme Court of Canada in chambers, to extend any time thereby limited until the first day of tho next sessions of the court, or until an order upon any such application could be heard and disposed of by the court ; that the appellants miyht then apply to the court for any further or other relief as might seem just ; and that the respondent (plaintiff) should pay to the appellants the sum of $20 as the costs of the motion before the Chief Justice, and the further sura of $50 as the costs of the motion before the lull court. The court intimated that if any further obstacles were placed in the way of the appellants the court would take the necessary means to have a speedy hearing of the appeal. Bank of B. N. A. y. Walker.— October 26, 1882. 143. Time for appealing under 8. & E. C. Act, s. !?o — Security under s. 31, as anunded hy s. 1^ of the S. C. A. Act {1S70). Judgment was pronounced in the Court of Appeal for Ontario on the 30th June, 1884. Vacation begins in that court on the 1st of July and ends on the 30th August. On the 13th September the respondent, the appeal having been allowed, deposited $500 as security for the costs of an appeal to the Supreme Court of Canada and applied for leave to appeal. The Court of Appeal was of opinion that the security, not having been deposited within thirty days of the pronouncing of the judgment, was given too late, as the vacation did not inter- 704 Practice of Supreme Court — Continued. TKi[it the riiiuiiug o' the time allowed by the etatute, S, {iiieiit. Where nothing remains to be settled, as for instance, in the case of the simple dismissal of a bill, or where no judgment requires to be entered, the time for appealing runs from the pronouncing of the judgment. Motion granted. O'SuUlYan v. Harty.— 16th March, 1885.— xiii. 431. 144. Time for ajipealing under S. t& E. G. Act, s. 25, to run from, 2}ronouncin(j of judgment — DisTnissal of plaintiff's bill. Where the Court of Appeal for Ontario reversed the judgment of the Vice-Chancellor in favour of the plaintiff, and dismissed the action : Held, that in such case no substantial question could remain to be settled before the entry of the judgment, and the time for appealing to the Supreme Court of Canada would therefore run from the pronouncing of the judgment, O'Sidlivan v. Harty, 13 C. S. C. R. 431 ; see Practice, 143, distinguished. Walmsley v. Griffith.— xiii. 434. 145. Time — Entry of judgment — S. & E. C. Act, s. 25. Appeal from the Supreme Court of British Columbia, in an action respecting water rights brought by one Carson and one Ebolt, against one Martley and one Clark. Judgment was pronounced 20th August, 1885. On the 28th August the defendant gave notice of appeal and security, and obtained from the plaintiffs (respondents) a consent to three months' further time being given to file the case. The three months having expired without the case being ready, the appellants applied in chambers to Ritchie, C.J. of the Supreme Court of Canada, for further time to appeal. This application was refused on the 705 Practice of Supreme Court— <'tment — Condition precedent — Pre- scr ipt ion — A rt. 22C.2 — Transfer — PnHe-nom. H. havin}^ funds beloHging to one T. J. C. for investment, afjreed to invest them with M. of Winnipeg in a certain land speculation, and after correspon- dence accepted and paid M.'s draft for $2,375, mentioning in tiie letter notifying M. of the acceptance of the draft the understanding H. had as to the share he was to get and adding : " I also assume that tlie lands are properly conveyed, and the full conditions of the prospectus carried out, and if not, that money will be at once refunded.'' The lands were never properly conveyed and the con- ditions of the prospectus never carried out. T. J. C. transferred som seinrf prirJ this claim to the plaintiff who brought an action against M. for the amount of the draft. Held, affirming the judgment of the courts below, that the action being for the I'ecovery of a sum of money entrusted to the defendant for a special purpose, the prescription of two years did not apply. Art. 22()'2, C. C. Moodie y. Jones.— xix. 2C)0. 20. Injxwy resulting in death — Claim of ividoiv — Prescription — Arts. lOoG, 22G1, 22G2, 2267, 21SS, C. G.—Arts. JfSl, 4.33, a P. a The husband of respondent was injured while engaged in his duties as appellants' employee and the injury resulted in his death about fifteen montlis afterwai'ds. No indemity having been claimed during the lifetime of the husband the widow, acting for herself as well as in the capacity of executrix for her minor child, brought an action for compensation within one year after his death. Held, Fournier, J., dissenting, that at the time of the death of respondent's husband all right of action was prescribed under Art. 2202, C. C. and that this prescription is one to which the tribunals are bound to give effect although not pleaded. Arts 22(',7 and 2188, C. C. The Canadian Pacific Railway Co. v. Robinson. — xix. 202. [Reversed by the Judicial Committee of the Privy Council ; [1892] App. Cases 481.] See ACTION, 8. 21. Negligence of servant— Crown — Liability of — 50 & 51 V. c. .16— Arts. 2262, 2267, 21S8, 2211, C. C. Held, that even assuming that under the common law of the province of Quebec, or statutes in force at the time of the injury received, the Crown could be held liable for an injury caused by negligence of its servants, such injury having been received more than a year before the filing of the petition the right of action was prescribed under Arts. 22(52 and 2267, C. C. TcT Patterson, J., the Crown is made liable for damages caused by the negligence of its servants operating government railways by 44 V. c. 25, R. S. C. 711 Prescription — Continued. c. 38, but as the petition of rif^ht in this case was filed after the passing of 50 & ;')1 V. c. 1() (1887) the claimant became subject to the laws relating to prebcriptiou in the province of Quebec, and his action Tva': prescribed. The Queen y. Martin.— xx. 240. 22. Lewjth of — Petition in disavowal. Held, following McDonald v. Dawson, 11 Q. L. R. 181, that the only pre- scription available against a petition in disavowal is that of thirty years. Dawson v. Dumont. — xx. 709. Principal and Agent. See AGENT. Priority of Registration. See MORTGAGE, 1. Privileged Communication — By public officer. See SLANDER, 1. Privy Council — No application for leave to appeal to, can be enter- tained by the Supreme Court of Canada. See PRACTICE OF SUPREME COURT, 122, 2. Judgment of, rever.sing judgment of Supreme Court — Making it rule of Supreme Court — Order of Supreme Court direct- ing repayment of costs paid under judgment reversed. Sec APPEAL, 17. 3. Appeal to, from Siipreme Court of Canada. The principles upon which an appeal will be allowed to the Privy Council do not almit of anytliini^ approaching to exhaustive definition. No rule can be laid down which might not be subject to future qualification. Prince v. Gaynon, 8 .-Vpp. Cases 103, commented on. See judgment of Privy Council in Les Ecclesiastiques de St. Sulpice de Montreal y. City of Montreal.— xvi. 407. On this question as to the principles upon which an appeal will be allowed to the Privy Council, tlie following cases may be referred to: Johnston v. The Ministers, etc., of St. Andrews Church, Montreal, 3 App. Cases, lo'J. And Hank of X. B. v. McLeod. See PEWHOLDER. Gagnon v. Prince, 8 App. Cases, 103. See EVIDENCE, 8. Montmorency Election Case, 5 App. Cases, 115. See ELECTION, 4. Canada Central lly. Co. v. Murray, 8 App. Cases, 574. 712 Privy Council — Continued. See AGREEMENT, 6. Dumoulin v. Langtry, 57 L. T. N. S. 317. See RECTORY LANDS. Grand Trunk Railway Company v. McMillan. See RAILWAYS AND RAILWAY COMPANIES, 43. Glengarry Gate, (Purcell v. Kennedy), 59 L.T. 279 ; 4 Times L. R. 664, and Caesels's Manual of Supreme Court Practice, 86. Gregory v. Atty.-Gen. ofN.S.; 11 App. Cases. 229. 4. For a list of cases in which the judicial committee has granted or refused leave to appeal from the Supreme Court of Canada. See APPENDIX, A. Procedure — Power of Legislature of British Columbia to legislate respecting. See LEGISLATURE, 12. 2. When the court below has adjudicated upon a mere matter of procedure the Supreme Court will not interfere. See JURISDICTION, 32, 35. Proces Verbal— Of seizure by sheriff— What it should contain — Art. 638, C. C. P. See SHERii F, 3. Prohibition — Writ of prohibition to rfiimtcipal corporation — Assessment roll, amendment of — Arts. 71G & IJfia, muni- ciiKil code, (P-Q.) The municipal corporation of the county of H., in the Province of Quebec, made an assessment roll according to law in 1872. In 1875 a tri- enijial assessment roll was made, and the property subject to assessment was assessed at ^1,745,588.58. In 1876, without declaring that it was an amend- ment of the roll of 1875, the corporation made another assessment in which the property was assessed at 1)3,138,550. Among the properties that contri- buted towards this augmentation were those of appellants, who, by their peiition, or requite libcUee, addressed to the Superior Court, (P.Q.), alleged that the secretary-treasurer of the county of H. was about selling their real estate for taxes under the provisions of the municipal code for the Province of Quebec, 34 V. c. 68, s. 998 et seq., and prayed to have the assessment roll of 1876, in virtue of which the officer of the municipality was proceeding to sell, declared invalid and null and void, and that a writ of prohibition should issue to prevent the respondents from proceeding to sell. The Superior Court directed the issue of the writ restraining the defendants as prayed, but upon the merits, held the roll of 1876 valid as an amendment of the roll of 1875. 713 Prohibition — Continued. • The Court of Queen's Bench reversed thia judgment on the merits, and held the 1*011 of 1870 to be substantially a new roll, and therefore null and void. Held, per Henry, Taschereau and Gwynne, JJ., affirming the judgment of the Court of Queen's Bench, that the roll of 187G, not being a triennal assess- ment roll, or an amendment of such a roll, was illegal and null, and that respondents were entitled to an order from the Superior Court as prayed for, to restrain the municipal corporation from selling their property, and the writ which issued, whether correctly styled " writ of prohibition " or not, waa properly issued and should be maintained. Per Ritchie, C J., and Strong and Fournier, JJ,, that a writ of prohibition issued under Art. 1031, as was the writ issued in this case, will only lie to an inferior tribunal, and not to a municipal officer. The court being equally divided, the judgment appealed from was con- flrmed, but without costs. Cote Y. Morgan.— vii. 1. 2. To revise conviction of recordei* — Police regulations for sale of liquors— 42 & 43 V. c. 4 (P.Q.) See LEGISLATURE, 10. 3. To prohibit proceedings for recovery of balance of mortgage debt after foreclosure. See MORTGAGE, 12. 4. County court — Jurisdiction of — Proceedings after plea to jurisdiction sustained on demurrer — Prohibition, ivrit of. An action of trover was brought against defendants in the County Court, at Halifax, N. S., to which they pleaded a number of pleas including one to the jurisdiction of the court. This plea was based on an allegation that the goods for which the action was brought, were of the value of $600, the juris- diction of the court in actions of tort being limited to #'200. The plaintiff demurred to the plea of want of jurisdiction, and after argument the demurrer was over-ruled. No appeal was taken from the judgment over-ruling the demurrer, but the plaintiff gave notice of trial, and entered the cause for trial at chambers before the County Court judge, wlio announced his intention of trying the same on the remaining pleas. The defendants obtained a rule nisi for a writ of prohibition to restrain the judge from trying the cause, on the ground that tlie judgment on the demurrer disposed of the whole case, and on argument of the said rule nisi it was discharged. On appeal to the Supreme Court of Canada, Held, Strong, J., dissenting, that the effect of the judgment on the demurrer was to quash the writ, and the rule nini for a writ of prohibition should be made absolute. Per Strong, J., dissenting, that the judgment of the County Court judge on the demurrer did not dispose of the case, but he had a right to reconsider the same on the trial of the issues raised by the other pleas : that the plea to the jurisdiction by attorney was null and void and if judgment had been 714 Prohibition — Continued, entered of record on tlie demurrer such judf^ment would have been likewise null and void; and that the amount claimed by the plaintiff's declaration bein<5 over $200 the court had juriadiction. Appeal allowed with coBta. Wallace v. O'Toole.— Hlth February, 1885. 5. Licensed LrewerH — Quebec Liceuse Act — 41 V. c. 3 (Q.), consti- tutionality of — Prohibition to Court of Special Sessions of the Peace, Montreal. See LEGISLATURE, 14. G. By-law respecting sale of meat in private stalls — Validity of — Proh.ibition to Recorder's Court and city of Montreal — 37 V. 0. 51, s. 123, s-ss. 27 & 31 (P.Q.)— Power of Provincial Legis- lature to pass— B. N. A. Act (1867), s-s. 9 of s. 92—" Other licenses." See LEGISLATURE, 18. 7. Ref^fraining inqiury ordered hy city council — R. S. 0.(1887) c. 184, s. Jf77 — Fimctlons of county court jadye. The council of the city of Toronto, under the provisions of R. S. O. (1887) c. 184, s. 477, passed a resolution directing a county court jud^e to inquire into dealin^^s between the city and persons who were or had b^i'cn contractors for civic works and ascertain if the city had been defrauded out of public monies in connection with such contracts ; to inquire into the whole system of tender- ing, awardint!, carrying out, fulfilling and ins])ecting contracts with the city; and to ascertain in what respect, if any, the system of the busines of the city in that respect was defective. G., who had been a contractor with the city and whose name was mentioned in the resolution, attendeil before the judge and claimed that the inquiry as to his contracts should proceed only on specific charges of malfeasance or misconduct, and the judge refusing to order such charges to be formulated he applied for a writ of prohibition. Held, affirming the judgment of the Court of Apjjeal for Ontario, Gwynne, J., dissenting, that the county court judge was not acting judicially in holding this inquiry ; that he was in no sense a court and had no power to pronounce judgment imposing any legal duty or obligation on any person ; and he was not, therefore, subject to control by writ of prohibition from a superior court. Held, per Gwynne, J , that the writ of prohibition would lie and in the circumstances shown it ought to issue. Godson Y. The City of Toronto.— xviii. 36. 8. Notarial Code — R. S. Q., Art. 8871 — Board of notaries — Dis- ciplinary powers. See NOTARY, 4. 715 Promise of Sale. See SALE OF LANDS, 2. Promoters — Of company — Action against, for fmmlulent mis- representations — Allei^vd false statements in prospectus issued 1)y. See COEPORATIONS, 24, Prospectus — Allef,a'(l false statements in — Liability of promoters Sec CORPORATIONS, 24. Protutor — Liability of, for netfligence. Set: EXECUTORS, 4. Public Lands-B. N. A. Act (18G7),s. 92, s-s, 5; ss, 109 &; 146— 47 \'. c. 14, s. 2 (B.C.) — Provinciul public lands, transfer of, to Dominion — Precious metals. Sec MINES AND MINERALS, 2. 2. BvltLith Culainbid — Order in Council (Khnitthig into confed- tion, s. 11 — Jf7 V. c. IJf, s. J (B.C.J — Lands set apart for C. P. Rtj. — Effect of — Provincial Grown grant — Illejal- %ty of By s. 11 of the Order in Council iuimit'ani? the province of British Columbia into cont'ederution, British Columbia agreed to convey to the Dominion Government, in trust, to he n-i'iiiopriated in such manner as the Dominion Government niif^lit deem lulvisablu in furtherance of the construc- tion of the Canadian Pacific Railway, an e.\tentof public lands alonj; the line of railway. After certain negotiations between the governments of Canada and British Columbia, and in order to settle all disputes, an agreement was entered into, and on the l!>th December, 1883, the legislature of British Columbia passed the statute 47 V. c. 14, by which it was enacted inter alia us follows : — " From and after the passing of this Act there shall be, and there is hereby, granted to the Dominion Government for the purpose of constructing and to aid in the construction of the portion of the Canadian Pacific railway on the main l.md of British Columbia, in trust, to be appropriated as the Dominion tiovernment may deem advisable, the public lands along the line of railway before mentioned, wherever it may be finally located, to a width of twenty miles on each side of the said line, as provided in the Order in Council, s. 11, admitting the province of British Columbia into confederation." On the 20th November, 1883, by public notice the government of British Columbia reserved a belt of land of 20 miles in width along a line by way of Bow River Pass. In November, 1884, the respondent, in order to comply with the provisions of the provincial statutes, filed a survey of a certain parcel of land, situate within the said belt of 20 miles, and the survey having been finally accepted on 13th January, 1885, letters patent under the great seal of the province were issued to F, for the land in question. The Attorney-General of Canada by informa- 716 Public ha.nds— Continued. tion of intrusion sought to recover poBsesaion of the Baid land, and the Exchequer Court having disraiBsed the information with costs, on appeal to tlie Supreme Court of Canada, it was : — Held, reversing the judgment of the Exchequer Court, Henry, J., diasent- in. Tho bunk tlien Bold tlie iron rcnmiiiin^^ on tlio wharf for the purpose of realizinj^ their lien, when Liickford iieciiino the purchaHer thereof at ?.H;1.50 for tho riiilR and Sr)().50 for track supplies. Uickford was ronioviuf^ the said iron when the company filed a hill in chancery asking for an injunction to restrain the removal of iron. A motion to continue the injunction was refused on the 11th October, IHIH. Tlie defendants (Bickford, (Janieron and Buclmnan) then answered tho bill, and on tho iHth .hmuary, 1H7(1, by consent, a decree was made referriiifj it to the master to take the mortgii(>e account, to ascertain and state the amount due to Bickford and Cameron for iron laid or delivered to or for plaintiff's use on the t"auk, and also the amount duo (if anythiiif^) in respect of iron delivered at Belleville, but since removed, and to report special circumstances, if rc(iui- sito. The master found due upon the mortMa^e 940,841.10, the price of iron actually laid on tho track, and interest; and that nothint{ was duo in /espect of the iron delivered at Belleville but subsequently removed. On appeal to ViceCJhancellor Proudfoot tho master's report wa8.artirmod, and on an appeal to the Court of Appeal for Ontario, it was held that the mortj^a^^e was ultra viri'H, and tho master's report was aflirmed. Held, on appeal, rdvorsing the judgment of the Court of Chancery, that the proviso in the mortfjane was in its terms wide enough to suiitain the con- tention of the mort^ageo to claim the price of all tho iron delivered on the wharf at Belleville, and that the memorandum endorsed by Brooks on the mortiiatjo should not be construed as cutting down the terms of the proviso, but was intended as written evidence of Brooks' consent to the mortgage and to the loss of priority in respect of the mortgage bonds to be delivered to him under tho oonttaot. Held, also, reversing the judgment of the ('ourt of Appeal for Ontario, that the statutory power to borrow money and secure loans cannot be con- sidered as implying that the company's powers to mortgage are to be limited to that object ; and, therefore, that the mortgage executed by the company on a portion of their road in favour of the trustee Buchanan, being given within tho scope of the powers confeired upon the company to " alienate, sell, or dispose " of lands for the purpose of constructing and working a railway, was not ultra vires. Query— Whether the rights of a corporation to take lands, operating tho railway, taking tolls, &c., are susceptible of alienation by mortgage in this country ? Held, also, that under the pleadings and decrees in the cause, tho objec- tion that the mortgage was 7iltra vires was not open to the company in the master's office, or on appeal from the master's report. Bickford v. Grand Junction Railway Co.— i. 096. 2. Raihvay crossing — Collision — Air-brakes — Failure to comiyly with Consolidated Statutes, c. 166. ss. 1^2, lJt3 — Negligence — Damage. The Grand Trunk Railway crosses the Great Western Railway, about a mile east of the city of London, on a level crossing. On the 19th June, 1876, 719 Railways and Railway Companies—' 'ontiuueil. a Gnmk Trunk train, on wliioh plaintiff waH on boftui aH n conductor, before croaBinj,', was brouf^ht to ii Htaiid. The HJtjnttl-niim wbo wiih in char>^e of tlio . croHHin({, aiul in the enii)loyment of the (treat W'jstern Itaihvay Company, dropped the Hemaphore, and thus authorized tlie Grand Trunk train to pro- ceed, which it did. While croHHinjj the track, iip|)ellaiit'H train, which had not been stopped, owin^ to the accidental burHtiiij^ of a tube in air-brake8, ran into the Grand Trunk train and injured plaintiff. It waa shown tlmt those air-brakes wore the bcHt known appliancoH for stopping; tr^uns, and that they liad been teHted durin^^ the day, but that they were not applied at u Bui'iicient distance from the crossing to enable the train to be stopped by the hand- brakes, in case of tlie air-brakes Mivinj,' way. C. S. C, c. (i(i, h. 1 1'2, Rev. Ktats. Ont., c. ICt/i, 8.00, enacts that " every railway company shall station an officer at every point on their line crossed on the level by any other railway, and no train shall proceed over such crosainn until signal has been made to the conductor thereof, that the way is clear." K. 1 fiJ enactH tliat "every loco- motive ... or train of cars on any railway sluill, before crossinj^ the track of any other railway, on a level, bo stopped for at least the space of three minutes." Held, that the appellants were fjuilty of ncKliKonce in not applying the air-brakes at a sufficient distance from the cron8inf» to enable the train to be stopped by hand-brakes in case of the air-brakea f^ivinf^ way. That there waa no evidence of contributory nefjligence on the part of the Grank Trunk Railway, as they had brouj^ht their train to a full stop, and only proceeded to cross appellant's track when authorized to do so by the oflicer in charj^e of the semaphore, who was a servant of the Great Western Railway Company. Great Western Railway v. Brown.— iii. 159. 3. Action by judgment creditor againHt holder of shares in. See CORPORATIONS, 8. 4. Railway pass to voter. Sec ELECTION, 17. 5. Shippivg vote — Fraudulent receipt of Agent — Lidbility of Company. C, freight agent of respondents at Chatham, and a partner in the firm of B. & Co., caused printed receipts or shipping notes in the form commonly used by the railway company to be signed by his name as the company's agent, in favour of H. & Co., for flour which had never in fact been delivered to the railway company. The receipts acknowledged that tlie company had received from B. & Co. the flour addressed to the appellants, and were attached to drafts drawn by B. & Co., and accepted by appellants. C. received the proceeds of the drafts and absconded. In an action to recover the amount of tlie drafts. Held, Fournier and Henry, JJ., dissenting, that the act of C. in issuing a false and fraudulent receipt for goods never delivered to the company, was not 720 Railways and Railway CompaLnits—CutUinued. an act done within the scope of his authority aa the company's agent, and the company was therefore not liable. Erb Y. The Great Western Railway Co. —V. 179. 6. Carriers — Railway Company, liability of as — Agreement — Additional parol term — Conditions — Wilful negligence — "At oxvners risk." The respondents sued the appellants' railway company for breach of con- tract to carry petroleum in covered cars from L. to H., alleging that they negligently carried the same upon open platform cars, whereby the barrels in which the oil was were exposed to the sun and weather and were destroyed. At the trial a verbal contract between plaintiffs and defendants' agent at L. was proved, that the defendants would carry the oil in covered cars with des- patch. The oil was forwarded in open cars and delayed in different places, and in consequence a large quantity was lost. On the shipment of the oil a receipt note was given which said nothing about covered cars, and which stated that the goods were subject to conditions endorsed thereon, one of which was " that the defendants would not be liable for leakage or delays, and that the oil was carried at the owner's risk." Held, per Ritchie, C.J., and Fournier and Henry, JJ., that the loss did not result from any risks by the contract imposed on the owners, but that it arose from the wrongful act of the defendants in placing the oil on open cars, which act wap inconsistent with the contract they had entered into, and in contravention as well of the undertaking as of their duty as carriers. Per Strong, Fournier, Henry and Gwynne, JJ. — The evidence was admis- sible to prove a verbal contract to carry in covered cars, which contract the agent at L. was authorized to enter into, and which must be incorporated with the writing so as to make the whole contract one for carriage in covered cars, and that non-compliance with the provision as to carriage in covered cars prevented the appellants setting up the condition that " oil was carried at the owner's risk " as exempting them from liability. The Grand Trunk Railway Company of Canada v. Fitzgerald. — v. 204. 7. Failure to sound ivhistle — Accident from horse taking fright — C. S. C. c. GG, 8. 104- — Finding of jury — Evidence. Held, ttfiQrming the judgment of the Court of Appeal for Ontario, that Consolidated Statutes of Canada, c. 63, s. 104, must be construed as enuring to the benefit of all persons who, using the highway which is crossed by a railway on the level, receive damage in their person or their property from the neglect of the railway company's servants in charge of a train to ring a bell or sound a whistle, as they are directed to do by said statute, whether such damage arises from actual collision, or, as in this case, by a horse being brought over near the crossing and taking fright at the appearance or noise of the train. The jury, in answer to the question, " If the plaintifls had known that the train was coming would they have stopped their horse further fiom the railway than they did?" said " Yes." 721 Railways and Railway Companies— CoH^/njwf/. Held, though the question was indefinite, the answers to the questions as a whole, viewed in connection with the judge's charge and the evidence, warranted the verdict. Grand Trunk Railway v. Rosenberger.— ix. 311. 8. Agreement with Government — Breach of — Possession taken of road by Government. See PETITION OF RIGHT, 15, 9. Railway bonds — 39 V. c. 57 (P.Q.), construction of — Condition precedent — Certificate of engineer, contents of — Parol evi- dence inadmissible — Onus probandi. , The L. & K. Ry. Co. was incorporated in 1869 (32 V. c. 54 P.Q.), to con- struct a railway from Levis to the frontier of the state of Maine, a distance of 90 miles. The Company was authorized by that Act to issue bonds or deben- tures to provide funds for the construction of the railway. In 1872, by 3(5 V. c. 45, (P.Q.), power was given to issue bonds to the amount of three million dollars without limitation of time, and without restriction as to the length of the railway constructed. In 1874, a statute of the Legislature of Quebec (37 V. c. 23), declared that debentures to the amount of $280,000 had already been issued, and limited for the future the issuing of bonds to the amount of £300,000 stg., to be issued as follows: — The first issue of £100,000 at once;^ the second issue of £100,000 when 45 miles of the road should have been com- pleted and in running order, as certified by the government inspecting engineer, and the third issue of £100,000 as soon as 30 additional miles — making in all 75 miles — sliould have been completed, with the same privilege for the three issues. In 1875 by the Act, 39 V. c. 57, the legislature amended the former Acts so as to modify tlie condition to be fulfilled by the L. & K. Ry. Co. before the third issue of £100,000 could be by them made. This condition was as enacted by the said Act, 39 V. c. 67, " so soon as the rails and fastenings required for the completion of the remaining forty-five miles or thereabouts of the company's line shall have been provided, then the reniaining one thou- sand bonds of one hundred pounds each, to be termed the third issue, may be issued by the company." In that Act lastly cited, the preamble declared : " Whereas it appears that a total length of forty-five miles of the company's line having been completed, a first and second issue each of one hundred thousand pounds of the company's debentures have been made." In March, 1881, the L. & K. railway was sold by the sheriff at the suit of the plaintiffs, the W. M. Co., and bought by the Q. C. R. Co., respondents, for ?'195,000. In April, 1881, the corporation of the city of Quebec (appellants), filed an opposition () fin de conserver for $218,099, being the amount of 300 debentures of £100 sterling and interest of the second issue issued on the 25th January, 1875, numbered 1020 and upwards, payable on the 1st January, 1894, and for the payment of which the opposants alleged that the said railroad was hypothecated. The Q. C. Ry. Co., also opposants in the case, contested the opposition of the corporation of the city of Quebec, and claimed the issue of the bonds of the second issue held by the appellants was illegal. At the trial CAB. ma. — 46 722 Railways and Railway Comp3inies~Continueu;^ht, therefore, to be maintained and the motion for a new trial I'cjectcd. See 2 Dorion's Q. B. R. 131. On appeal to the Supreme Court of Canada, Held, Taschereau and Gwynno, JI., dissenting, that the judgment of the Court of Queen's Bench should be afiirmed. iVr Taschereau and Gwyniie,J.J., dissenting. —The Superior Court, sitting in review at Montreal, has no jurisdiction, eitlier under 81 V. c. 1, s. 10, or 35 V. c. 0, s. 13 (P.C^.) to determine a motion for judgment upon the verdict in a case tried in one of the rural judicial districts, and therefore the Court of Queen's IJl .ad no power to enter judgment for the respondents upon the verdict. 2. The Court of Review, on a motion for new trial in the first instance, having in its discretion granted same, judgment should not have been reversed on appeal. Grand Trunk Railway Company y. Wilson.— 30th April, 1883. 15. Iiitercolovial Railwai/ — Negligence of conductor — Accident to ji((sseii(fei' — Ri(/lit of actio It — Contributory ne was across the public highway. When the train came in it was brought t p so that the forward part of the first-class car was opposite the platform. It was then about ten minutes after the advertised time of dejiarture. Plaintiff was standing on the platform when the train came in, but did not then get aboard. The conductor of the train (the defendant) got oiT the train and went to a hotel for dinner. While he ■(vas absent the train was, without his knowledge, backed down, so that only the second-class car remained opposite the platform. The jury found that the first-class car did not remain at the platform long enough to enable plaintiff to get on board. The defendant, after finishing his dinner, came over hastily (being behind time and therefore in somewhat of a hurry), called " all aboard," glanced down tl-.o platform, saw no person attempting to get on board, crossed the train between two box cars to signal the driver to start (it being necessary to cross the train in order to be seen by the driver, owing to a curve in the track,) and almost immediately the train started. The 121th regulation for government of the Intercolonial Railway pre- scribes that conductors must not start the train while passengers are getting on board, and that they should stand at tlie front end of the first passenger car when giving the signal to the driver to start, wnich was not done in this 724 Railways and Railway Companies — Continued. instance. Plaintiff and a lady friend, F., who was going by the same train were standing on the platform, and when they heard the call " all aboard," they went towards the cars as quickly as they could. F. got on all right, but plaintiff, who had a paper box in her hands, in attempting to get on board, caught the hand-rail of the car, when she slipped owing to the motion of the train and was seriously injured. The jury found that the call " all aboard " was a notice to passengers to get on board. The Supreme Court of New Brunswick held, that although the plaintiff's contract was with the Crown, the defendant owed to her as a passenger a duty to exercise reasonable care, and that there was ample evidence of negligence for the jury. The facts will be found fully reported in 19 New Bruna. E., 3 Pugs. & Bur. 340, and 21 New Bruns. R. 586. On appeal to the Supreme Court of Canada, Held, that the judgment of the court below should be affirmed. Taschereau and Gwynne, JJ., dissenting. Fer Ritchie, C.J. — There was no obligation on the part of the passengers to go on board the train until it was ready to start, or until invited to do so by the intimation from the conductor "a'.l aboard." It was the duty of the con- ductor to have had his first-class car up in front of the platform. Should circumstances have prevented this, it was his duty to be careful before starting his train to see that sufficient time and opportunity were afforded passengers to board the car in the inconvenient position in which it was placed, and the evidence showed the defendant exercised no care in this respect. Per Henry, J. — There was no satisfactory proof of contributory negligence on the part of the plaintiff. The package she carried was a light one, and such as is often carried by passengers with the knowledge and sanction of railway conductors and managers, and a tacit license is therefore given to passengers to carry such with them in the cars. The plaintiff violated one of the regulations in attempting to get on the car while in motion. But the defendant could not shelter himself under those regulations, for when he gave the order "all aboard " he knew, or ought to have known, that the first-class car was away from the platform, and he ought to have advanced the train and stopped it, so that the plaintiff could have entered such car. The conductor was estopped from complaining that the plaintiff did what, by calling "all aboard," he invited her to do. After the notification "all aboard" is given by a conductor, it is his duty to wait a reasonable time for passengers to get to their places. Per Taschereau and Gwynne, JJ., dissenting. — Whether the omission to stop the first-class car at the platform, or the not waiting a reasonable time after calling " all aboard " were or were not breaches of the defendant's duty, oUch breaches could not be said to have caused the accident if the plaintiff had not voluntarily attempted to get on the train while in motion, which she was not justified in doing. Appeal dismissed with costs. Hall V. McFadden.— 1st May, 1883. 725 Railways and Railway Companies— CoHtmHerf. 16. Netilirjence — Damages — Fire communicated from i-)rem.i8e8 of coriipany—14 Geo. III. c. 78, s. 86, not applicable in cases of negl'ujence. This was an action commenced by the respondent against the appellants lor nej^ligence on the part of the appellants in causing the destruction of the respondent's house and outbuildings by fire from one of their locomotives. The freight shed of the company was first ignited by sparks from one of the company's engines passing Chippawa station, and the fire extended to respond- ent's premises. Tlie following questions, inter alia, were submitted to the jury, and ihe following answers given : — Q. Was the fire occasioned by sparks from the locomotive ? A. Yes. Q. If so, was it caused by any want of care on the part of the company or its servants, which, under the circumstances, ought to have been exercised ? A. Yes. Q. If so, state in what respect you think greater care ought to have been exercised ? A. As it was a special train and on Sunday, when employees were not on duty, there should have been an extra hand on duty. Q. Was the smoke stack furnished with as good apparatus for arresting spai'ks as was consistent with the efdcient working of the engine? If you think the apparatus was defective, was it by reason of its not being of the best kind, or because it was out of order ? A. Out of order. Verdict for plaintiff 1800. On motion to set aside verdict, the Queen's Bench Division unanimously sustained the verdict. On appeal to the Supreme Court, Held, affirming the judgment of the court below, Henry, J., dissenting, 1. That the questions were proper ques- tions to put to the jury, and that there was sufficient evidence of negligence on the part of the appellants' servant to sustain the finding. 2. If a railway company are guilty of default in the discharge of the duty of running their locomotives in a proper and reasonable manner, they are responsible for all damage which is the natural consequence of such default, whether such damage is occasioned by fire escaping from the engine coming directly in contact with and consuming the property of tliird persons, or is caused to the property of such third persons by fire communicating thereto from the property of the railway company themselves, which had been ignited by fire escaping from the engine coming directly in contact therewith. 3. The statute 14 Geo. III. c. 78, s. 8G, which is an extension of 6 Anne c. 31, sa. (i & 7, is in force in the Province of Ontario as part of the law of England introduced by the Constitutional Act, 31 Geo. III. c. 31, but has no application to protect a party from legal liability as a consequence of negli- gence. Canada Southern Railway y. Phelps.— 23rd June, 1884.— xiv. 132. 726 Railways and Railway Compa.niQS—Continw(L 17. liailwau Company — Sparks from, e^iiffme — Prcrper care to prevent emissioK of — TZsc of wood or coal for fuel — Contri- hutory ne(jl'tgence. R. owned a barn situated about two hundred feet from the New Bruns- wiclv Kailway Company's line, and sucli barn was destroyed by fire, caused, as was alleged, by sparks from the defendants' en>{ine. An action was broufjlit to recover damages for the loss of said barn and its contents. t)n the trial, it appeared time the fuel nsed by the company over this line was wood, and evidence was ',ranch Railway, which the Government of the Dominion were to hand over to the appellants, upon the Eastern Railway Extension and upon the appellant comjiany and its property rights and privileges set forth in s. 32 of its Act of Incorporation. That such bonds or other conveyances, or lien by which they might be secured, should be free from any clauses restraining a sale of the property to which such lien attached, or in any way impairing the remedy of the holders thereof in default of payment. That the whole issue of the first mortgage bonds should not exceed 51,200,000 and should bear interest at G per cent., and that no other security should take precedence of the bonds to be given to the respondent. But 728 Railways and Railway Companies — Continued. provision might be made for Riving clear titles of the company's bonds in the event of their being sold, the proceeds to be secured for the benefit of tlie bond- holders. That the appellants covenanted and guaranteed that the bonds would be delivered to respondent as above set out, and that they would, if necessary, endeavour to procure euch legislation as would remedy any defects now existing in their organization. That the Government of Nova Scotia would nse all means within its power to enforce the delivery of such bonds and might refuse government aid to said companies, until satisfied that respondent's right to receive the said bonds was protected and assured. That the contract between the Canada Improvement Company and the respondent should be cancelled, and the bond given by respondent delivered up to hiii':. On or about the first day of February, 1879, the appellants entered into an agreement with the Governments of the Dominion and of Nova Scotia relin- quishing their rights to the "Pictou IJranch Railway," mentioned in said agreement, and agreed to the repeal of the Act providing for the transfer of the same to the appellants, and that it should be retained by the Dominion until the Eastern Extension Railway to the Strait of Canso and the steam ferry across the strait should be completed, and then transferred to the appellants on certain conditions. This the respondent claimed to be a breach of the above agreement, and brought an action against the appellants and the Canada Improvement Company, the latter, however, not being served with the writ issued iu the cause. The defendants pleaded, inter aliu, that as to $40,000 of the said bonds the plaintiff had given an order on the Canada Improvement Company for the delivery of the same to the Hon. P. C. Hill, Provincial Secretary of Nova Scotia, wliich order had been accepted by tlie company, and was, in effect, an ■assignment of that portion of the said bonds. The evidence of the plaintiff on the trial, in regard to such order, was that it was given on the condition tliat an order in council should be passed by the Nova Scotia Government protect- ing the right of the said plaintiff to have the said bonds delivered to him, and the bonds given to tlie Canada Improvement Company, as security for the due performance by tlie plaintiff of the work on the Eastern Extension Railway, delivered up to the plaintiff ; and on these conditions being fulfilled the plaintiff was to give to the Government a formal assignment of the said mortgage bonds to the extent of $40,000, but that sucli conditions were never carried out. The plaintiff recovered in the action, and the verdict in his favour was affirmed by the Supreme Court of Nova Scotia, whereupon the defendants in the action appealed to the Supreme Court of Canada, and, on the argument of the last mentioned appeal an agreement was entered into between the parties, to which agreement the Government of Nova Scotia became a party, empow- ering the court to decide the case on the merits irrespective of the pleadings 729 Railways and Railway Companies— Continued. or any technical defence raised thereon, and limiting; the amount in (juestion to the Bum of 840,000, the balance beinj,' satiBfied by a judf^ment recovered by the respondent aj^ainst the Canada Improvement Company, in the Province of Quebec. Held, afllrming the jud{^inent of the Supreme Court of Nova Scotia, that the a<;reemont entered into by the appellants with the governments of the Dominion and the Province of Nova Hcotia, was a breach of the agreement made between the appellants, the Canada Improvement Company, and the respondent, above in part recited. Held, also, that the order given to the Honourable P. C. Hill, was given on certain conditions which were never carried out, and was not an assignment of the bonds tlierein mentioned, and therefore the respondent was entitled to recover the said sum of f40,000, with interest from the date of the breach of the said agreement. Appeal dismissed with costs. [.An application was made in tliis case to the Judicial Committee of the Privy Council for leave to appeal. The application was refused with costs. Their lordships considered that in deciding the case under the agreement entered into at the hearing of the nppeal, the Supreme Court was not acting in its ordinary jurisdiction as a court of appeal, but was acting under the special reference made to it under this agreement. Further, their lordships thought that even if it were open to them to give leave to a^jpeal, the questions raised were not of sufficient ^)ublic interest to induce them to depart from the ordin- ary rule that persons who have gone to the Supreme Court of Canada, and have there failed, shall not proceed any further to her Majesty in Council. — Hrd April, 18S(!. Greridt;e, and imme- diately alongside tho aforesaid public highway approach thereto, and caused and iierniitte^i! woi-j (loinpcUi'd to conioiiniiU'iliatcly iiloiiKHiile, iind witliiiuifew fuet of the engine. Tho eiif^ino bfiiij,' tluTo and hlowiii;; off Kteiim, the liorueH of the pliiiiitiff l)eciiine fi-ij;hteiied mid riui awivy, causing tho diiiiuij^'cM claimed. 'I lie iicpinu phicu, tho evidence Hliowed that tiio accident woidd not liave iiaiipened. IvnnninK it down as close as possible to where the (uinianes had to ctuhh tiie bndne was a pioco of rcckleHsnosH. There W'<.h no contributory nej^lij^once on tlie part of the plaintiff; no ne,L;lect or want ot care on his part, as ho had a riylit to cross the )iridi;e at the time, and under the circumstances could not bu anywhere else fliau where hi; was. I'lT Ktron;^. J.— Tho case ajipears one in which tho maxim " re>i ip»a Imiiiitiir " applies. The defendants by piittin{4 the post with a printed sii^n board on it, with a direction to eni{ine drivers not to pass it, as indicating the point beyond which it was not safe to prf)ceed until it was ascertained that the bridt^e was clear, by their own act had shown that the omission to obey this direction woulil be uo^iligence. I'cr Henry, J. — Tlie mere fact that the post was established by arrange- ment between the city and railway authorities for enuinos to stop at, made the company liable for breakiiifj tho rule, there bein;,' no contributory nej^li- f^ence on the part of the plaintiff. Appeal dismissed witli costs. Canadian Pacific Railway Co. v. Lawson. — 1-ih Alay, 1885. 22. Use of .streets of city of Quelx'c Uy North Slu)ro Uaihvay Com- piuiy — Non-liability of corporation for damages caused liy. See COKPOIIATIONS, 21. '2-]. Sftrcf I'ititu'iiij — Acvidt'id — Ad ion of diunngcH fur — I m i>ropcr const ruction of track — Findivfj of court of first instance on the cridence ajfirmed. The plaintiff, a driver employed by the Montreal Brewing Company, while crossiiiL,' the track of the defendants on Place d' .Vrmea, opposite the church of Notre liame, was thrown out of tlie way^;on which he was driving by the break- ing; of tile rear axle, breaking his leg and sustaining other severe injuries. He brought an action of daniaties allotiini,' that the accident had occurred by the fault of the defendants, owing to the improper construction and bad order of tho track. The Superior Court for Lower Canada (Torrance, J.,) found that the track was in bad order, the switch being three inches above tlie level of the road, contrary to law, and that this caused the accident without any fault on the part of tlie plaintiff, whose damages he assessed at $'2,500. The Court of Queen's liencli for Lower Canada (appeal side) reversed this judgment, being of opinion that the rails, as well as the part of the roadway the defendants were bound to maintain, were lawful and sufficient ; that the defendants were 732 Railways and Railway Companies—' outinued. not in fault, and timt the plaintiff liad not exorcised the nooeHsary caution and prudence tu wliicii i)c waH bound, and nii^^ht, by the exercise of reaaonable caution and prudence, liave avoided tiio accident. On appi'Hl to tlie H.upreine Court of Canada, Held, that the questionfl to be decided were purely matterH of fact, and the judgment of the court of first iuHtance Hliould not have been dlHtnrbed. Btronj?, >I , diBsontiny, on the ground that till' judgment of the Court of Queen'tt Bench on the facta was correct. Appeal allowed with coats. Parker v. Montreal City Passenger Railway Coinpkny.—'22rd ,Tune, 1H85. [In thiu case the Judicial Conunittee of the I'rivy Council refuaed leave to appeal] . 24. Kefjligencf — Death ofunfc by — JJamayes to hushaud as mhuiH- istratui' — lienejlt of children — Loss of household services — Care and traininy of children. Held, aflirniint^ the judf^ment of the Court of Appeal for Ontario (11 Ont. App, H. 1), that although on the death of a wife, caused by nef^ligenco of a railway conjpuny, the huaband cannot recover damages of a sentimental chiiracter, yet the loss of household services, accustomed to be performed by the wife, which would have to be replaced by hired services, may bo a sub- stantial loss for which diimat^es nmy be recovered, and so also may be the loss to the children of the care and moral training of their mother. [In this case the Judicial Committee of the Privy Council refused leave to appeal ; iice CunuilUui Gazette, vol. 0, p. 583.] St. Lawrence & Ottawa Ry. Co. v. Lett — xi. 422. 25. liailu'ay Cornimny — CaiTiaye by railway — Special contract — Neyliyence — Liability for — Power of Company to p •otect itself from — Live stock at owners risk — Raihcay Act, lS6d, 31 V. c. 08, s. 20, s-s. ^—3i V. c. 4,3, s. o— 4? V. c. 9. A dealer in horses hired a car from the Grand Trunk Hallway Company for the purpose of transportinj^ his stock over their road, and si^iued a ship- i;ing note by which he agreed to be bound by the foUowinf^, among other conditions : — " The owner of animals undertakes all risks of loss, injury, damage and other contingencies, in loading, etc. " ii. When free passes are given to persons in charge of animals, it is only on the express condition that the railway company are not responsible for any negligence, default, or misconduct of any kind, on the part of the company or their servants, or of any other person or persons whomsoever, causing or tend- ing to cause the death, injury or detention of any parson or persons travelling; upon any such free passes, . » » ^^w person using any such pass takes all risks of every kind, no matter how caused." The horses were carried over the Grand Trnnk Railway in charge of a person employed by uie owner, such person having a free pass for the trip. 733 Railways and Railway Companies —Continued. Through the ne^li^ence of tlie conipaiiy'u servants a collisicn occurred by which the said horses were injured. On appeal from tlie Court of Appeal for Ontario, 10 Ont. App. R, 1(12, att'irmin>< the judf^tnent of the Divisional Court, 2 Ont. R 11(7, in favour of the defendants, Held, per Ritchie, C.J., and Fournier and Henry, JJ., that under the General Railway Act, IMOH, 31 V. c. 08, s. 20, ss. 4, as ameniled by Hi V. c. 43, H. 5, re-enacted b" Consol. Ry. Act, 1879, 42 V. o. 0, s. 2'), s-ss. 2, 3, 4, which prohibits railway companies from protectin),; theniBelvewa^iftinst liability for ne^li^enco by notice, condition or declaration, and which api>lies to the Grand Trunk Railway Company, the company could not avail thoniHelves of the above stipulation that they should not be responsible for the neslifjence of themselves or their servants. Pir Rtronj; and Taschereau, JJ. — That the words " notice, condition or declaration," in the said statute contemplate a public or general notice, and do not prevent a company from entering; into a special contract to protect itself from liability. Grand Trunk Ry. Co. v. Yogel. ) _ ■ p,„ Grand Trunk Ry. Co. v. Morton, i ^ "^^' 26. Accide nt — Damages — Neijl irjen ce — Wharf <.nsi{ffi.ciently lighted — No gate or chain — Ferry. The respondent, plaintiff, alleged in her declaration that, on or about the 29th October. 1883, her husband, Louis II6si(jue Fournier, upon whose labour she and her eleven children were dependent for their support, wan drowned at the Grand Trunk wharf, in the city of Quebec; that the appellant company was the cause of his death by its gross negligence and culpable and malicious imprudence and want of foretliought ("par sa n6gligence grossif're, son imprudence et improvoyance coupable et malicieuse; ") that the company was bound by law to keep its wharves, pontoons, etc., in good order; to put rail- ings, guards and gates, and lights sufficient to ensure the safety of its passen- gers, and to light in a proper manner its wharves and pontoons, whenever necessary, all which it had failed to do for four or five months previous to the 29th October, 1883 ; that on that day the weather was rainy and very dark; that the husband of the plaintiff having purchased a ticket to cross on the appellant's ferry boat, went down to its wharf to take the steamer which was advertised to leave at 6.15 p.m. ; that by reason of the imprudence and niali- cious and culpable negligence of the company, its wharf and pontoon were insufficiently lighted, and were in a dangerous and slippery condition, and not provided with doors, guards or gates, and that the ferry boat was not at the wharf, notwithstanding that the hour of its arrival had passed ; that her hus- band, while proceeding to take the ferry, which he believed to be at the wharf, without negligence and imprudence on his part, and notwithstanding that he took all possible precautions, but by reason of the want of light, and the absence of guards or gates, fell over the wharf and was drowned ; and she prayed for a condemnation for $5,000. A perusal of the declaration establishes that the plaintiff relied upon charges of general negligence on the part of the company, and upon specific 7.'J4 Railways and Railway Compsimes—( '"lUimiiil. oiuiHsioiis : IhI. IiiHuHiciuiicy of lit^lit. 2n(l. Want of (^ate.s, Kiiivrelli\nts ph.aded the |>enerul isnue, thuH ne> o'clock in the evenint^, came to tlie Grand Trunk ferry ; he crossed diaj^onally the first pontoon and had to enter the narrow corridor or passa;^e-way on the covered pontoon, at the end of which passa(»e he e.xpecteil to find the steiimboat ferry already moored and prepared to receive passeii/^'urs on lioard. The eiicl of this passaj^e is closed by a door or ;^ato sliding; on rollers, which is usually kept shut for the safety of freight, and for preventing rain or snow from coming in. This door was not then closed. The deceased walked through this passage- way to get on board the ferry boat (which was late that evening), and the night being dark and foggy, and the passage lighted with only one lamp, hi: walked or slipi)ed into the water and was drowned. .\fter a lengthy trial, in which the main poi urgoil by the plaintiff was the pretended insufficiency of the lights, the judge who iieard the case found tliat the death of thy plaintiff's husljand was solely duo to his own gro^s negligence, want of care and prmleiice, and that the accident could not have happened had ho exercised ordinary care and prudence, and dismissed the uctiou. This judgment was reversed on appeal to the Court of Queen's Bench for the Province of (Quebec (INIr. Justice Cross dissenting), the court holding that the accident had been occasioned l)y the negligence and want of due care of the (•om])any, and not to any fault or negligence on the part of Fournier, and adjudged ftl.OOO to the plaintiff. Cn appeal to the Supreme Court of Canada, Held, affirming the judgment of the Court of Queen's Hcnch, that the evidence showed culpable negligence on the part of the railway company in not having suflicient lights, and in not having a gate or chain to guard against accidents. The damages would not bo increased, but interest should bo allowed on the amount awarded by the Queen's Bench from the time of the demand. Appeal dismissed with costp. Oraud Trunk Ry. Co. v. Boulanger.— I7th March, IflBO. 27. A;,a'(ji!meut by Miuiiicii)al corporation to take .stock in railway and to pay for saiin; in dohenturo.s — Urcach oF agreement — Right of railway company t(j sue for special damages. ; See DAMAGES, 40. Railways and Railway Companies — ''"iiiiiixed. 28. CostH ol* arljjtratio.i under ConMolidattid Railway Act, LSTO. See COSTS, 3. 29. Favm crossivfj — Liah'dity of RnU/wity Omiipavy to provvlr — Af/n'r-vifat vjlik (Kjcnt of coiii/xtii// — /// ?reement was reduced to wiitinfj to the effect that S., throutth whom the plaintiff claimed, should " have liberty to remove for his own use all buildinj^s on the said rif{ht of way, and that in the event of there being constructed on the same lot :. trestle bridi^e of sufficient height to allow of the passage of cattle, the company will so construct their fence to each side thereof as not to impede the passage thereunder." Held, reversing the judgment of the Court of Appeal for Ontario (11 Ont. App. R. 300), Ritchie, C.J., dissenting, that the agreement provided for a passage for cattle only, and that conditional upon there being a trestle bridge of sufficient height to permit of such a passage, and did not make the right of the company to discontinue the trestle bridge and erect an embankment sub- ject to the construction of a cattle pass in the embankment or a re- valuation of the land. The plaintiff's statement of claim should be dismissed with costs, but such dismissal would noc operate against any claim wliicli he might have under the law for such farm crossings as might be necessary for the reasonable enjoyment of the severed lands. Appeal allowed with costs. Canada Southern Ry. Co. v. Erwln. -Oth April. 1880— xiii. 162. 31. Agreement with municipality for construction of subway — Order in Council under 46 V. c. 24 (D.) — Work done by municipality as agent of companies or as principal — Injury to property by construction of subway — Corporation a wrongdoer. See MUNICIPAL CORPORATION, 6. 32. Bonus to — Action against municipality for — Illegal by-law granting bonus. .See MUNICIPAL CORPORATION, 7. , 83. Cons. Rdilway Act 1879, Jf2 V. c. — Application of, to special Act — Canadian Pacific Railway Incorporation Act, 44- ^• c. 1 — Powers of company under — Rigid to build line beyond terminus. Held, Henry, J., dissenting, that the Canadian Pacific Railway Company have power, under their charter, lo extend their line from Port Moody, in British Columbia, to FneUsh Bay. Canadian Pacific Ry. Co. v. Major.— xiii. 233. 787 Railways and Railway Companies— ^'""f'"""/. 34. Certiticate of engineer — Failure to procure in I'easonabie time. See CONTRACT, 28. 35. Damages — Misdirection as to solatium — New trial— Art. 1056, C.C. See DAMAGES, 45. 36. Sale of railway shares en hloc — Arts. 595, 599, C. C. See EXECUTION, 3. 37. Navigable river — Access to by riparian owner — Obstruction by railway company — Damages — Action at law — 43-44 V. (P.Q.), c. 43, s. 7, s-ss. 3 & 5. See RIPARIAN PROPRIETORS, 2. 38. Municipal debentures — Compliance by railway company with conditions precedent to their issue — Debentures to be free on their face from future conditions — Municipal Code, (P.Q.), Art. 982. See CORPORATIONS, 3.3. 39. Gontvdct for fare —Agreement to purchase railway — Rolling stock — Appeal — Arbitration and award. — R. S. 0. c. 50 ^ s. ISO. B., the contractor for building the E. A II. Railway, and, practically, the owner thereof, net;otiated with the solicitor of the C. S. R. for the sale to tlio latter of the E. & II. Railway when built. While the negotiations were pend- int> B. went to California, and the agents who looked after the affairs of the E. it II. Railway in his absence applied to the manager of the C. S. R. for soma rolling stock to assist in its construction. The manager of the C. S. R. waa willing to supply the rolling stock on execution of the agreement for sale of the road which was communicated to B., who wrote a letter to the manager in which the following passage occurred : " If from any cause our plan of handing over the road to your company should necessarily fail, you may equally depend on being paid full rates for the use of engine and cars and any other assistance or advantiage you may have given Mr. Farquier (the agent)." The negotiations for the purchase of B.'s railway by the C. S. R. having fallen through, an action was brought by the latter company against B. and the E. & H. Railway for the hire of the rolling stock which was resisted by B. on two grounds, one that the rolling stock was supplied in pursuance of the negotiations for tlie sale of his road to the plaintiffs, which had fallen through by no fault of B. and the other, that if the plaintiffs had any right of action it was only against the E. & H. Railway and not against him. By consent of the parties the matter was referred to the arbitration of a County Court Judge, with a provision in the submission that the proceedings CAS. DIO. — 47 738 Railways and Railway CompaLnies—Contlmu,;. should be the same rh on a reference by order of the court, and that there should be a right of appeal from the award as under R. S. O. c. 50, b. 189. The arbitrator gave an award in favour of the plaintiffs ; the Queen's Bench Divisional Court held that there was no appeal from the award on the merits, and as it was regular on its face refused to disturb it ; the Court nf Appeal held that there was an appeal on the merits but upheld the award. The defendants then appealed to the Supreme Court of Canada. Held, affirming the judgment of the Court of Appeal that the arbitrator wag justified in awarding the amount he did to the plaintiffs, and that B. as well as the company was liable therefor. Bickford y. Canada Southern Ry. Co.— 14th June, 1888.— xiv. 743. 40. Sparks from engine — Lapse of time before discoi^ery of fire — Presicmptlon as to cause of fire — Defective engine — Negli- gence — Examination for discovery — Officers of Corporation —R. S. 0. (1877) c. 50, s. 136. A train of the Canada Atlantic Railway Company passed the plaintiffs farm about 10.30 a.m., and another train passed about noon. Some time after the second train passed . as discovered that the timber and wood on plain- tiff's land was on fire, which fire spread rapidly after being discovered and destroyed a quantity of the standing timber on said land. In an action against the company it was shown that the engine which passed at 10.30 was in a defective state, and likely to throw dangerous sparks, while the other engine was in good repair and provided with all necessary appliances for protection against fire. The jury found, on questions submitted, that the fire came from the engine first passing, that it arose through negligence on the part of the company, and that such negligence consisted in running the engine when she was a bad fire thrower and dangerous. Held, affirming the judgment of the Court of Appeal, that there being sufficient evidence to justify the jury in finding that the engine which passed first was out of orde'-, and it being admitted that the second engine was in good repair, the fair inference, in the absence of any evidence that the fire came from the latter, was that it came from the engine out of order, and the verdict should not be disturbed. Held also, Henry, J., dissenting, that the locomotive superintendent and locomotive foreman of a railway company are " officers of the corporation " who may be examined as provided in R. S. O. (1877) c. 50, s. 136, and the evi- dence of such officers as to the conditions of the respective engines and the difference as to danger from fire between a wood-burning and a coal-burning engine, taken under said section, was properly admitted on the trial of this cause ; and certain books of the company containing statements of repairs required, on these engines among others, were also properly admitted in evidence without calling the persons by whom the entries were made. — . _ _ Canada Atlantic Ry. Co, Y. Moxley.— XV. 14"). 739 Railways and Railway CompaLnies—Continned. 41. Street raiUvcay — By-law and agreement as to construction and assumption of ownership by corporation upon giving notice — Arliitration — Appointment of arbitrator by court. See CORPORATIONS, 39. 42. RuiluHiy — Aid to — By-law granting bonus — Conditions of 2)rior agreement — Performance of conditions — Specific per- fonnance — Damages. By an agreement between the E. & H. Railway Co. and the town of C. the latter iigreed to pass a byJaw granting a bonus to the company to aid in the construction of a railway, subject to the performance of certain specified con- ditions. The by-law subsequently approved by the ratepayers, and passed by the council of the town, did not contain all the conditions of the agreement. In an action against the town to compel the delivery of debentures for the amount of the bonus the defendants pleaded non- performance of the conditions of the agreement as justifying the withholding of the debentures and by way of counter-claim, prayed specitic performance of such conditions by the plaintiffs. Held, 1. Per Ritchie, C.J., Ptrong, Fournier and Henry, JJ. — Taschereau and Gwynne, JJ., contra — that the title to the debentures did not depend upon prior performance of conditions in the agreement not included in the by-law, but upon performance of those in the bj'-law alone, and the latter having been complied with, the debentures should issue. 2. Per Fournier, .]., that the debentures should, nevertheless, be withheld until the damages for non-performance of the conditions in the agreement ■were paid or secured. 3. Per Ritchie, C.J., Strong and Heni'y, JJ. — Fournier, J., contra — that specific pei'formance was not an appropriate remedy in such a case and the defendants could only claim damages for non-performance. 4. Per Ritchie, C. J., Strong and Fournier, JJ., that the claim of defend- ants for damages could be disposed of in this action under the counterclaim and there should be a reference to assess the same. 5. Per Henry, J., that the evidence did not justify a reference and the counterclaim should be dismissed with a reservation of defendant's rights. One of the conditions in the agreement to be performed by the railway company was " to construct at or near the corner of Colborne and William streets (in Toronto) a freight and passenger station, with all necessary accom- modation, connected by switches, sidings or otherwise, with the said road ' upon the council of the town passing a by-law granting the necessary right of way. Held, 1. That such condition was not complied with by the erection of a station building not used, nor intended to be used, and for which proper officers, such as a station-master, ticket agent, etc., were not appointed. Strong, J,, dissenting. 740 Railways and Railway Companies— Cowtm"^v/. 2. Per Stronj^, J., that the condition only called for the construction of a building with the required accommodation and connections, and did not amount to a covenant to run the trains to such station or make any such use of it. 3. The words " all necessary accommodation '' in the condition required that grounds and yards sufficient for freight and passenger traffic in case the station were used should be provided. The Act incorporating the railway company contained provisions respect- ing bonuses granted to it by municipalities not found in the Municipal Act. Held, that such special Act was not restrictive of the Municipal Act, and it was only necessary that the provisions of the latter should be followed to pass a valid by-law granting such a bonus. Held also, that all defects of form in the by-law were cured by 44 V. c. 24, B. 28, providing for registry of by-laws and requiring an application to quash to be made within three months after such registry. BickfoFd V. Corporation of Chatham. —xvi. 235. [Leave to appeal iu this case was refused by the Privy Council. See Canadian Gazette, Vol. XIV., p. 153.] 43. Railway company — Gaii'iage of goods — Contract for — Car- riage beyond terminus of line — Exemption from, liability — Construction of contract — Statutory liability — Joint tort feasors — Release to one — Effects of Where a railway company undertakes to carry goods to a point beyond the terminus of its own line its contract is for carriage of the goods over the whole transit, and the other companies over whose lines they must pass are merely agents of the contracting company for such carriage, and in no privity of contract with the shipper. Bristol & Exeter Railway Co. v. Collins (7 H. L. Cas. 101) followed. Such a contract being one which a railway company might refuse to enter into, s. 104 of the Railway Act, R. S. C. c. 109, does not prevent it from restricting its liability for negligence as carriers or otherwise iu respect to the goods to be carried after they had left its own line. The decision in Vogel v. O. T. K. Co. 11 Can. S. C. R. (512, does not govern such a contract. One of the conditions in a contract by the G. T. R. Co. to carry goods from Toronto ,to Portage la Prairie, Man., a place beyond the terminus of their line, provided that the company " should not be responsible for any loss, mis-delivery, damage or detention that might happen to goods sent by them, if such loss, mis-delivery, damage, or detention occurred after said goods arrived at the stations or places on their line nearest to the points or places which they were consigned to, or beyond their said limits." Held, that this condition would not relieve the company from liability for loss or damage occurring during the transit even if such loss occurred beyond the limits of the company's own line. 741 Railways and Railway Companies — Continued. Held, per Strong and Taschereau, JJ., that the loss having occurred after tlie traimit was over, and the gooda delivered at Portage la Prairie, and the liability of the company as carriers having ceased, this condition reduced the contract to one of mere bailment as soon as the goods were delivered, and also exempted the company from liability as warehousemen, and the goods were from that time in custody of the company on whose lino Portage la Prairie was situate, as bailees for the shipper. Fournier and Gwynne, JJ., dis- senting. Another condition of the contract provided that no claim for damage to, loss of, or detention of goods should be allowed unless notice in writing, with particulars, "/as given to the station agent at or nearest to the place of delivery witliin thirty-six hours after delivery of the goods in respect to which the claim was made. Held, per Strong, J., that a plea setting up non-compliance with this con- dition having been demurred to, and the plaintiff not having appealed against a judgment overruling the demurrer, the questiou as to the sufficiency in law of tlie defence was ren Judicata. Held, f\,\so,pcr Strong, J., Gwynne, J., contra, that part of the consignment having been lost, such notice must be given in respect to the same within thirty-six hours after the delivery of those which arrive safely. Quaere — In the present state of the law is a release to, or satisfaction from, one of several joint tort-feasors, a bar to an action against the others? G. T. Ry. Co. Y. McMillan.— xvi. 543. fin this case application was made to the .Judicial Committee of the Privy Couucil for leave to appeal, but was refused on the ground tliat the case admit- tedly tlid not affect property of considerable amount, nor could it well be described as being of a very substantial character, the sum at stake being reduced to something under £21)0, stg. ; and the judgment of the Supremo Court did not determine a question of great public interest, or an important question of law. Cuujnon v. Prince, 8 App. Cases, 103, approved. May 17th, 44. Expropi'iat'ion of land — Abandonment of notice — Enforelwj award — Possession — R. S. C. c. 109, s. JS,ys-ss. 26 il!- ,^1. Held, per Gwynne and Patterson, JJ., that an abandonment of a notice to take lands for railway purposes, under R, S. C. c. lOi), s. 8, s-s. '2(), mlist take place while the notice is still a notice and before the intention has been exer- cised by taking the Ip.nds. That the proper mode of enforcing an award of compensation, made under the Railway Act, is by an order from the judge. Quinal line as to the line itself, and the company, haviufi failed to show any statutory authority therefor, could not take the said land against tlie owner's consent. Held, also, that the proposed extensions was not a deviation within the meaninj^ of the statute, 42 V. c. '.), b.8, s-s. 11 (D.). J'er Ritchie, C.,J., Strong, Fouruier and Tasclu'rcau, JJ., that the road authorized was completed as shown by the acts of the company, and upon such completion the compulsory power to exiiropriate ceased. Par Gwynnc, ,1., that the time liniitoil by the charter for the completion of the road not having; expired the compmiy could still tile a map or plan sliowin({ the lands in question, and acijuire the land under s. 7, s-s. 11) of the Act, 42 V. c ".). Kingston and Pembroke Ry. Co. v. Murphy. — xvii. 582. 55, Railway hovels — Trust conveyance — Conxf ruction of- — Trustees —4.J i(- U V. (P.q.) c. 49— U <-<: io V. (P.Q.) c. 4.J— Privi- leged claim — Unpaid vendor — Immovables by destination —Arts. 1973, 1990, 1998, J0U9, JO 17, C. C. In virtue of the provisions of a trust conveyance, f;rantin(4 a first lien, privilege and mortj,'ago upon the railway property, franchise and all additions thereto of the South Eastern Haihvay Company, and executed under the authority of 43 & 44 V. (P,Q.) c. 4■; '' ' Remoteness — Devise void for. jv-i* i . • - - See WILL, I. , . .f,; •' Renunciation — To the community. • See OPPOSITION. Replevin — Contract not to distrain. See DISTRESS, 1. ' -c.fv-r ■ 753 Replevin— (-Voi.j. Res Judicata— Sale d rhd^i — Term within which to exei'cise right — Action brought before time to exercise right arrived — Not res judicata. See SALE OF LANDS, 21. : ..l' ' . . 2. Judgment setting aside intervention to seizure of bank shares —Substitution— Art. 1241, C. C. See JUDGMENT, 11. 3. Condition of contract — Can-iage l)y railway — Non-performance — Demurrer — Acquiescence in judgment on. See RAILWAYS AND RAILWAY COMPANIES, 43. 4. Judgment in former suit — How far binding on Dominion Government. Per Gwynne, J. — There is no sound reason why the Government of the Dominion should not be bound by the judgment of a court of justice in a suit to which the Attorney-General, as representing the Government, was a party defendant, equally as any individual would be, if the relief prayed by the information is sought in the same interest and upon the same grounds as were adjudicated upon by the judginent in the former suit. Fonseca v. Attorney-General of Canada.— xvii. 012. See LETTERS PATENT, 2. 5. Assignment of chose in action — Practice — Parties to suit — Judgment on demurrer. See PRACTICE, 25. , , 6. Court equally divided — Effect of judgment. When the Supreme Court of Canada in a case in appeal is equally divided so that the decision appealed against stands unreversed the result of the case in the Supreme Court affects the parties to the litigation only, and the court when a similar case is brought before it is not bound by the result of the previous case. Btanstead Election Case, (Rider V. Snow).— XX. 12, 7. Action en reprise d'instance by legatee — Contestation of will — Invalidity of will — Res judicata — Art. 439, C. C. P. — . Final judgment— R. S. C. c. 135, ss. 2, 24 and 28. See JURISDICTION, 104. - • '.•;-5. ■?■;'-■ 755 Residuary Personal Estate— See WILL, (1. Respondeat Superior — .J See ASSESSMENT, 8 Retraxit— Sec PRACTICE, 10. . . -• . Returning Officer — Neglect of duty — Effect of. .See ELECTION, 12. Revendication — Of bonds deposited as collateral security. Set' BONDS. 2. Of goods. See DAMAGES. 30. " • i ' • 1,1; '■■.'(. , I ■ 3. 30 V. c. 81 (P.Q.) — Booms — ProprieUtry rights — Re2)levin — ( Re-vendication) — Estoirpcl by condxui. O'S. claiiniiij? to be the legal depositary, and T. McG. claiming to be usufructuary under 3G V. c. 81 (P.Q.), of certain booms, chains, and anchors in the Nicolet river, which G. B., being in possession of for several years under certain deeds and agreements from T. McG., had stored in a shed for the winter, brought an action en revendication to i-eplevy the same and for $5,000 damages. Held, affirming the judgment of the Court of Queen's Bench for Lower Canada (appeal side), that O'S. and T. McG. were not entitled to the posses- sion as alleged, and that they were precluded by their conduct and acquiescence from disturbing G. B.'s possesBion. Ball v. McCaffrey, 20 Can. S. C. R. 317, approved. O'Shaugneasy v. Ball.— xxi. 415. Revenue — See CUSTOMS DUTIES. ' CONSTITUTIONAL LAW. Review, Court of, P. Q. — No appeal to Supreme Court from judg- mcL*" of. ' See JURISDICTION, 12. [But «ee now S. C. Act, 1891, c. 25, s. 3.] 2. New trial ordered by, in case tried in a rural district — 34 V. c. 4, s. 10, and 35 V. c. 6, s. 13 (P.Q.). , See RAILWAYS AND RAILWAY COMPANIES, 14. Right of Way — Public — Extinguished by necessary implication. See ACCRETION, 1. 756 Right of VJ&y— Continued. 3. Possessory action — Plea of having exercised right of way for many years. See POSSESSORY ACTION. Riparian Proprietors— Rights of, as to fishing. See PETITION OF RIGHT, 4. FISHERIES, 3. 2. Navigable river — Access to, by riparian owner — Right of — Jiailway cnmjxtny responsible for obstruction — Damages — Remedy by action at law — When allowed — 4<^ tO 4-^ V. (P.Q.) c. 4o', s. 7, s-88. 3 tf- 5. Held, reversing the judgment of the court below, Taschereau, J., diasent- ing, tliat a riparian owner on a navigable river is entitled to damages against a railway company, although no land is taken from him, for the obstruction and interrupted access between his property and the navigable waters of the river, viz., for the injury and diminution in value thereby occasioned to his property. 2. That the railway company, in the present case, not having complied with the provisions of 43 X' 44 V. (P.Q.) c. 43, s. 7, s-ss. 3 & 6, the appellant's remedy by action at law was adminsible. Pion v. North Shore Ry. Co.— xiv. 677. [In this case the Judicial Committee affirmed ti)e judgment of the Supreme Court. See 14 App. Cases, G12. At p. 614, it is stated that Mr. Justice Strong dissented from the judgment of the court. This is an error: Mr. Justice Strong concurred with the majority of the court in allowing the appeal]. See. Bigaoitette V. North Shore Ry. Co. — xvii. 363, EXPROPRIATION, 10. ■ » ' 'It ' " 3. Expropriation for i-ailway purposes — Navigable river — Right of acch et sortie by riparian proprietor. See EXPROPRIATION, 10. 4. Damage to land by construction of dam — Servitude — Arts. 503, 549, 2193, C. C. — C. S. L. G. c. 61 — Improvement of water courses. Where a proprietor, for the purpose of improving the value of a water power, has built a dam over a water course running through his property and has not constructed any mill or manufactory in connection with the dam, he cannot, in an action of damages brought by a riparian proprietor whose land has been overflowed by reason of the construction of the dam, justify, under the provisions of c. 51, C. S. L. C. Nor can he acquire by prescription a right to maintain the dam in question ; Arts. 503, 549, C. C; nor can he claim 757 Riparian Proprietors— (^ontimuil. titlo by posseBsion to the land overflowed without proving the requirements of Art 21'J3, C. C. Jones '. Flther.— xvii. 515. 5. Land ordinance, ISOo — Grant of water under — R'mid to ex- vliislrc use of stream — Unoccupied water — Proof of notice of ((pplutition for f/rant. The British Columbia Land Ordinance, 18C5, oontains the following provisions : — 44. " Every person lawfully occupying and hnnd tide cultivating lands may divert any unoccupied water from the natural channel of any stream, lake, or river adjacent to or passing through such land, for agricultural and otlier purposes, upon obtaining the written authority of the stipendiary magistrate of the district for tiie purpose, and recording the same with him, after dun notice, as liereinafter mentioned, specifying the name of the appli- cant, the quantity sought to be diverted, the place of diversion, the object tliereof, and all such other particulars as such magistrate may require." 45. " Previous to such authority being given, the applicant shall post up in a conspicuous place on each person's hind through which it is proposed that the water should pass, and on the District court house, notices in writing, stilting his intention to enter sucn land, and through and over the same to take and carry sucli water specifying all particulars relating thereto, including direction, quantity, purpose and term." In an action by a grantee of water under this ordinance for interference witli the use of the same. Held, affirming tlie judgment of the court below, that the ordinance was not passed for the benefit of riparian owners only, but any cultivator of land could obtain a grant of water thereunder. Held, further, that the water of a stream, etc., may be unoccupied under the ordinance even though there may be a riparian proprietor upon a part of it. Hold, also, Ritchie, C.J., and Strong, J., dissenting, that the provisions of 8. 45 are merely directory but if imperative a grantee of water under the ordinance who has used the water granted to him for several years would not be i-equired, in an action for damages caused by interference with such user, to prove that he gave the notices required by that section as it would be pre- sumed that the same were given before recording the grant. Held, pt-r Ritchie, C.J., and Strong, J., that the water records in evidence were imperfect and the grant to plaintiff was not proved thereby ; that having failed to prove authority from the magistrate to direct the water his riparian rights either at common law or under the ordinance were not established and the action failed. Hartley y. Carson— xx. 634. [Leave to appeal in this case was granted by the Judicial Committee of the Privy Council, but the appeal was dismissed without consideration of the merits of the case on it appearing that the appellant Clark had parted with his interest in the property.] 758 Rivers — Obstruction in navigable. *• '^ '"'•■'•' •■ ' ; See LEGISLATURE, 8. ■ -"- ■■ " ' ' ' '' '. NAVIGATION. . ,- , . . • • KIPARIAN PROPRIETORS, 2. Road — Road under control of The Quebec North Shore Turnpike ■ *" Road trustees — Petitory action by trustees — No title to sup- ■ port — No possession by trustees except of ground actuidly used by public — Semble, the property in such roads vested in the Crown — Power 'O widen by expropriation — 36 Geo. III. c. 9—4 V. c. 17—18 V. c. 100, s. P (Q.). The appellants, as owners in trust and administrators of a certain turn- pike road, extending from the city of Quebec to a place called Saut-a-la-Puce, instituted the present suit against the respondent to rectify an encroachment upon the said road. They alleged in their declaration : " That in the month of June, 1880, or abi)Ut that time, the defendant illegally and without any right whatsoever, unjustly took possession of a part of tlie property belon;;ing to plaintiffs, to wit : of a part of the aforesaid road, hereinabove described, being about 20 feet front by 5 feet in depth of the said road, situate in the said parish of Gh&teau Richer on the north side of said road, opposite a lot of land belonging to and possessed by the defendant. . . Tiiat the said defendant, after having thus illegally, knowingly and without any right, taken possession of the said piece of land, dug deeply in and under ,;lie said road and erected and built on the said piece of laud a building or cellar, and committed other acts and encroachments, which he had no right to commit, thereby decreasing the legal width of the road by at least 5 feet." The delay for bringing an action endhwUtion being expired, the appellanta by their conclusions asked to be declared proprietors in possession of said road and to have the said building or cellar removed in the ordinary course of law. To this action the respondent pleaded (1) the general issue, and (2) specially by a peremptory e.Kception that the part of the said road which ran through his land was a portion of said land ; that he acquired said land at sheriff's sale ; that he was owner of the land on each side of the road, which in the said place was bounded on the north by a ditch and on the south by a iance, and that the building of the said cellar in no way encroached upon tlie , road in question. ' ' The road was put under the control of the appellants by the lOth V. c. 235, s. 5, 8-s. 9, in 1853. The width of main roads or the King's Highways was regulated then by the 36 Geo. Hi. c. 9, s. 2 : " And be it further enacted, by the authority aforesaid, that the King's Highways shall be thirty feet wide , between two ditches, each of three feet wide, and of sufficient depth to drain off the water, and where the said highways are not already thirty feet wide, [French measure— equal to thirty-one feet ten and one-half inches English] — the Grand Voyer, if he shall think it necessary and practicable, shall cause them to be widened by the person bound to repair the same." 759 Road — Continued. The statute which created the trust, ordinance 4 V. o. 17, s. 3, vested the trustees with all the powers which were vested in the Grand Voyers or the municipal councils by 36 Geo. III. o. 9, and by ordinance, 4 V. c, 4, ss. 37 and 45 ; 8 V. c. 40, ss. 28 and 30 ; 10 & 11 V. c. 7, ss. 33 and 39. And it ordered and enacted that the said trustees, in the manner which they deem fit, might cause the said roads and each of them, and the bridges thereupon, to be improved and widened, repaired and made anew, and might, for the purposes aforesaid, or any of them, by themselves, their agents and servants, go into and enter upon, and take any land or real property. In support of their pretension that the road should be thirty-six feet wide (French measure) the ditches forming part of the road, the appellants cited 41st 8. of 18 V. c. 100 (Q.), which amended the existing law as to the width of highways : " No front road hereafter to be opened shall be less than thirty-six feet (French measure) in width," and argued that this Act must have been based on the general custom which had existed up to that time of making all front roads thirty-six feet wide (French measure.) -' • In 18.54 the appellants macadamized the road in question and made the ditch on the north side of the road, thereby fixing, themselves, the limit of the road ; and the evidence showed they placed it there because there is on the north side of the road a hill which terminates at the ditch, and at the distance of one foot, and one foot nine inches from the edge of the ditch, in front of the cellar, the ground is four feet some inches higher than the level of the road, therefore it was not possible to pass there, or to make a ditch to drain the road. The appellants made the ditch at the foot of the hill, the only place where it was practicable to make it ; and they thereby left beyond the ditch and con- sequently beyond the road the ground they claimed as forming part of the road. The scuth side of the road was bounded by a fence, and between the fence and tiie north-east side of the ditch there was a width of thirty fef.t, and from tlie edge of the north-east side of the ditch to that of the corner of the cellar, there was a width of one foot nine inches ; at the south corner tlie width was nine inches less. The appellants' action was maintained in the Superior Court by Mr. Justice Casault. Respondent having carried the case to the Court of Queen's Bench, three of the honorable judges, Dorion, C.J., and Jtonk and Tessier, JJ., reversed the judgment of the Superior Court, Cross and Baby, JJ., dissenting. (Tlie judg- ment of Dorion, C.J., will be found reported in 3 Dorion's Q. B. R. G5.) The appellants appealed to the Supreme Court of Canada and chiimed that the said judgment of the Court of Queen's Bench should be reversed for, amongst others, the three following reasons, because : 1st. They had a perfect right to bring the action they instituted against the respondent ; 2nd. The road in question should be 38 feet 3 inches (equal to 36 feet French measure) wide at least ; and 3rd. Respondent had decreased the legal width of the road by at least 5 feet, which he was bound to restore to the appellants. Held, per Ritchie, C.J., and Fournier and Henry, JJ., that the rnad was an ancient road which was not of the width of 30 feet (French measure) when 760 Road — Continued. • • the appellants received control of it ; that the law clearly recognized such roads, and contemplated that the Grand Voyer, if he should think it necessary and practicable, should cause such roads to be widened, and this he had never done as regards this road; that the appellants in 1854 appear to have taken the road in the state it then was, and never to have exercised the power of widen- ing it given them by 4 V. c. 17, upon paying an indemnity to the proprietor ; and that whether the road was the legal width or not the appellants had no right to any ground beyond what formed part of the road, and served as such for the use of the public and for the ditches, if any ; and therefore could not claim the ground beyond the ditch on the north side of the road, which could not be, and never was, used by the public, and never formed part of the road. Per Strong and Henry, JJ., that the property of the road was vested in the Crown, and the effect of the statutes was not to take the property out of the Crown and vest it in the trustees, but to make them custodians of the road and the tolls, for the benefit of the bondholders and tlie public. The appellants failed to show either title or possession, and the action therefore failed. Appeal dismissed with costs. (Gwynne, J., dissenting.) The Quebec North Shore Turnpike Road Trustees v. Yezina.— 8th March, 1884. 2. Road Co. — Collector of tolls — Negligence — Liability of com- pany. St-e NEGLIGENCE, 37. 3. statute— Application of— R S. O. (1887), c. 159—53 V. c. 42— Application to company incorpor > ved by special charter — Collection of tolls — Maintenance o: road — Injunction. See CORPORATIONS, 49. • ..^ir ' •'■ HIGHWAY. • • ' ' ^' '■ 17 ! ■'T-J,' ,(i ■>(■ 1 -•. i-' :>:.i.\---'-^'\ Road allowance. ,, ; . Hee HIGHWAY, 1, 4, 6. .1 ,. r ■(1,1. ■ .'- ■■.■(■ .' Saisie Conservatoire — Petition contesting seizure before judg- ment — Judgment ordering petition to be proceeded with at same time as main action — Not appealable — S. & E. C. Act, E. S. C. c. 135, ss. 24 k 28. See JURISDICTION, 79. Saint John, City of. See ASSESSMENT AND TAXES, 3, (5, 9, 11. CONTRACT, 4, 20. 761 Sale of Goods — Damnges for hretich of tvarranty — Subsequent tiction for price — Evidence in rait igat ion. (!., wishing to procure a water wheel which, w'th the existing water power, would be sufficient to drive the machinery iu his mill, A. undertook to put in a " Four-Foot Sampson Turbine Wheel," which he warranted would be suffi- cient for the purpose. The wheel was afterwards put in, but proved not to be fit for the purpose for which it was wanted. The time for payment of the agreed price of the article having elapsed, C. sued A. for breach of the warranty and recovered $438 damages. A. subsequently sued C. for the price, and C. offered to give evidence \n mitigation of damages that the wheel was worthless and of no value to him. Objection was taken that it was not competent to C. to give any evidence in reduction of damages by reason of the breach of warranty, or on the ground of the wheel not answering the purpose for which it waa intended, and the learned judge presiding at the trial declared the evidence inadmissible. Held, on appeal, reversing the judgment of the Court of Appeal for Ontario, that as the time for payment of the agreed price of the article had elapsed when the first action was brought, and only special damages for breach of warranty had been recovered, the evidence tendered by C. in this case of the worthlessness or inferiority of the article was admissible. Strong, J., dis- senting. Church y. Abell.— i. 442. 2. Sale of goods — Goods sold hy ngcnt as principal — Right of set-ojf. The B. M. Co. (plaintiffs) sued 1). (defendant) for goods sold and delivered. D. pleaded that the goods wore sold to him by one A ; whom the defendant believed to be the principal, and that before the defendant knew that the plaintiffs were the principals, the said A. became indebted to the defendant in the sum of ?4>"'0, which he, the defendant, was willing to set-off against the plaintiff's claim. The jury found a verdict for the defendant on this plea. Held, that the defendant, having purchased the goods without notice of A.'s being an agent, and A. having sold them in his own name, could set-off the debt due to him from A. pereonally, in the same way as if A. had been the principal; and that the verdict should be sustained. The Bowmanville Machine Co. v. Dempster. — ii. 21. 3. Timber, sale. .SV^ AGREEMENT, 1, 4. ■'•''' 4. Contract for purchase of corn — Bill of lading — Draft on ^nir- chasera — Jus d ispon c n di — Dei i ve ry. W., a commission merchant, residing at Toledo, Ohio, purchased and shipped a cargo of corn on the order of C. et a!., distillers at Belleville, and drew on them at ten days from the date for the price, freight and insurance. This draft was transferred to a bank in Toledo and the amount of it received • by W. from the bank, and the corn having been insured by W. for his own benefit, was sliipi)ed by him under a bill of lading, which together with the 762 Sale of Goods — Continued. policy of insurance, was aBsi^ned by him to the same bank. The bank for- warded the draft, policy and bill of ladini» to their agents at Belleville, with instructions that the corn was not to be delivered until the draft was paid. The draft was accepted by C. ct al., but the carf^o arriving in Belleville in a damaged and heated condition, between the dates of the acceptance and the maturity of tlie said draft, C. et al. refused to receive it, and afterwards to pay draft at maturity. Thereupon the bank and W. sold the cargo for behalf of whom it might concern, credited C. et rl. with the proceeds on account of draft, and W. filed a bill to recover balance and interest. Held, reversing the judgment of the Court of Appeal for Ontario, Strong, J., dissenting, that the contract was not one of agency, and that the property in the corn remained by the act of W. in himself and his assignees, until after the arrival of the corn at Belleville and payment of the draft; and the damage to the corn having occurred while the property in it continued to be in W. and his assignees, C. et al. should not bear the loss. Corby v. Williams.— vii. 470. 5. Sale offish in storarje — Right to hold goods by bailee for unpaid purchase money — Delivery of part. Action of trover charging the appellants with converting 230 barrels of mackerel, wliich were the property of W. M. R. the respondent's assignor. One of the branches of t^ppellanfs l)usiuesa was supplying merchants who were connected with the fishing business in the country, and who in return sent them fish, wiiich was sold and the proceeds placed by appellants to credit of their customers. One S., who so dealt with appellants, in October, 1877, sent them 77 barrels of herring and '23G barrels of mackerel. On 3rd November, 1877, S. sold all the fish he had, including those mackerel, to one R. at 88 a barrel, when some were delivered, leaving •2iiG barrels in the appellants' store, and in payment received $4,000 and a promissory note for §4,000 at four months. This note was given to appellants by S. on account of his general indebtedness. On the 4th March, 1878, R. became insolvent, and the respond- ent, who was subsequently appoi)ited assignee, demanded the 236 barrels of mackerel and brought an action to recover the same. After issue was joined, the appellants proved against the estate of R. on the note and received a dividend on it. The chief justice at the trial gave judgment for SI, 888, less $41). 10 for one months' insurance and six months' storage, and found that the appellants had knowledge that the fish sued for were included by the insolvent in the statement of his assets, and made no objection thereto known to the assignee or creditors at the meeting. Held, Strong, J., dissenting, that the appellants having failed to prove the right of property in themselves, upon which they relied at the trial, tl:' respondent had as against the appellants' a right to the immediate possession of the fish. 2. That S, had not stored the fish witli appellants by way of security for a debt due by him, and as the appellants had kno)vledge that the fish sued for ^., were included by the insolvent in the statement of his assets, to which state- ment they made no objection, but proved against the estate for the whole 763 . Sale of Goods — ContimmJ. amount of insolvent's note, and received a dividend thereon, they could not now olaim the iish or set up a claim for lien thereon. ii ,) :.\ . ...,. ' ■ ■ ,, , Troop v. Hart.— vii. 512. 6. Umvritten comniercidl contract far — Acceptance, evidence of — Parol admissible -Art 12,15, C. C. (P.Q.). Held, reversinj^ the judgment of the court below, that in an action in the Province of Quebec upon an unwritten commercial contract for the sale of goods exceeding the sum of 850, oral evidence of acceptance, or receipt, of the whole, or any part of the goods, is admissible, under Art. 1235, C. C. Munn Y. Berger.— X. 512. 7. Consignment of goods sidyect to j)ayment — Agreement that purchaser shall not sell — Passing property. The plaintiff consigned crude oil to A., who was a refiner, oi. the express agreement that no property in the oil should pass until he made up certain payments. Without making such payments, however, A. sold tha oil to the defendants, without the knowledge of the plaintiff. Held, affirming the judgment of the Court of Appeal for Ontario, that although the defendantu ware purchasers for value from A., in the bulief that lie was the owner and entitled to sell the oil in question, the plaintiff, under his agreement with A., having retained the property in the oil. and not having done anything to estop him from maintaining his right of ownership, was entitled to recover from the purchasers tljc ij rice of the oil. Forristal v. McDonald. — ix. 12. 8. Contract — Appropriation — Payment. .See CONTRACT, 5. . . 9. Stoppage in transitu — Goods in bond. See STOPPAGE IN TRANSITU. 10. Contract, parol evidence to establish xvhen admissible — As to xvliether a mem. in rvriting contained the terms of agree- ment, a question for jury — Statute of frauds — Damages — Common counts. The plaintiff sued defendants upon a contract alleged to have been mad© by them with the plaintiff to deliver to the plaintiff at Saint John, N. B., 200 cords of good merchantable hemlock bark, suitable for tanning, at $4 per cord, the plaintiff paying freight from Shediac. He also declared upon the common money counts. The plaintiff at he trial gave evidence to the effect that the contract was wholly verbal, and that the defendants had agreed that the bark should be all good bark ; that it was to be delivered at St. John and measured on the cars there ; that the defendants were to send some one to measure it, and that if they did not plaintiff's son was to measure it ; that the plaintiff was to pay freight from Shediac, where the defendants were to load it on the cars, and as 764 Sale of Goods — Cuntimted. to payment the plaintiff gave evidence that $304.84, then due by defendants to plaintiff, was to be applied upon the bark, and that the defendants were to take leather from the plaintiff in payment of the balance ; that the bark was to be delivered in two or tliree months, as the plaintiff wanted it. In answer to plaintiff's order to forward bark the defendants sent forward three car lotida, which proved to be utterly worthless. The plaintiff also gave evidence that at the solicitation of the defendants he gave them his note for $500 at 4 months on the dofeiidants promising that the bark would be all in before the note was due, and that, notwithstanding the giving of the note, the defendants would take leather in payment of the bark as agreed ; that when plaintiff asked defendant Hamilton for a receipt for the note for $500, the latter wrote out the following paper : — "C. H. Peters, Esq., . " 1S76. " To Hamilton & Smith. " April 20, To 200 cords hemlock bark at Shediac, ?4 $800 00 " " " " 4 84 ...... .. -^•l'/..•,^ . ''' ■ $804 84 Cb. ■■•■'■■ '■ ■ " By note at 4 mos $500 00 " goods per statement of acct 304 84 $804 84 " The above bark to be measured on the cars in St. John. " Settled as above. " Hamilton & Smith." Upon this document being produced the defendants insisted that it con- tained the contract and that the plaintiff's evidence of the contract must fall to the ground. Both parties were permitted to give oral testimony to establish what the contract was. The evidence was chiefly that of the plaintiff and defendant Hamilton, and was very contradictory. The jury believed the plaintiff and rendered a verdict for him for $'J45.80 damages. > The Supreme Court of New Brunswick made a rule for a new trial abso- lute, being of opinion that the contract had been reduced to writing and was contained in the memorandum of the 20th April, 1870 ; that the words " at Shediac" in the memorandum showed that the bark was at Shediac at that time, and that the parties were contracting with reference to that particular bark. That being the case, it was unnecessary to make any stipulation about the delivery, because by the sale the property vested in the plaintiff without any delivery, and tlie evidence of the plaintiff as to delivery should not have ,. been receive^, for it was either immaterial, or the effect of it was to vary the terms of the written contract, which, being for the sale of goods above the • value of £10 was required by the Statute of Frauds to be in writing. On appeal to the Supreme Court of Canada, Held, that whether the mem. of the 20th April, 1876, was or was not drawn up by the consent of both parties with intent to be that which should settle and contain their contract in wliole or in part was a question for the jury, and the onus of proving that ''• the document was drawn up for that purpose lay upon the defendants. That Sale of Goods — Continued. the nature of the case required that both parties should be permitted to give oral testimony to establish what the contract was, and as the jury had wholly disbelieved the defendants' evidence the plaintiff was entitled to recover both on the common counts and on the special counts, and the verdict of the jury should not have been sot aside. ■'I ' Appeal allowed with costs. Peters y. Hamilton.— 10th June, 1880, 11. Contract of sale — Goods not specified — Intention to pass pro- perty — Appropriation. , , . . T., a brick-maker, sold by sample 50,000 bricks out of a kiln containing 100,000, to the plaintiff, who paid the contract price, and hauled away about 16,000. The balance remained in the kiln in T.'s yard, and were never in any way separated from the rest of the kiln, or appropriated to the plaintiff. The defendant (the sheriff) subsequently sold them under an execution at the suit of W. against T. Plaintiff brought trover against the defendant, claiming property in 34,000 of the bricks. The Supreme Court of New Brunswick held (Wetmore, J., dissenting),, that the contract was executed, and the property in the bricks passed to the plaintiff at the time of sale. 4 Pugs. & Bur. 234. On appeal to the Supreme Court of Canada, Held, reversing the judgment of the court below, that the sale was one by sample ; the bricks sold were not specifically ascertained, and there was no evidence from which it could be inferred that it was the intention of the parties the property in the bricks should pass before delivery. Appeal allowed with costs. , Temple Y. Close.— 16th February, 1881. 12. Plea of tender and 'payment into court acknowledges liability — Agent — Contract by, for undisclosed principal — Sale, with privilege of taking bill of lading, or reweighing at seller's expense. An action instituted by the Canada Shipping Co., to recover ^3,038.44, being the price of 810 tons, 5 cwt. of steam coal sold by their agents, Thomp- son, Murray & Co., through T. S. Noad Broker as per following note. " No. 3,485. " Montreal, 13th Aug., 1879. " Messrs. Thompson, Murray & Co.: — " I have this day sold for your account, to arrive, to the V. Hudon Cotton Mills Company, the 810 tons, 5 cwt. best South Wales Black Vein Steam Coal» per bill of lading, per ' Lake Ontario,' at $3.75 per ton of 2,240 lbs., duty paid, ex ship; ship to have prompt despatch. " Terms, net cash on delivery, or 30 days adding interest, buyers' option. " Brokerage payable by you, buyer to have privilege of taking bill of lad- ing, or re-weighing at sellers' expense." 766 Sale of Goods — Continued. The defendants pleaded that the contmct was with Thompson, Murray A Co. personally, and that the plaintiffs had no action ; and, by a second plea, that tlie cargo contained only 755 tons, 680 lbs., the price of which was J2. 808.72, which they had ofifered Thompson, Murray A Co., together with the price of 10 tons more to avoid litigation, in all $2,890.72, which they brought into court, without acknowledging their liability to the plaintiffs, and prayed that their action be dismissed as to any further or greater sum. It was proved that the defendants agreed to take the coal as per bill of lading without having ;t weighed. They, however, caused it to be weighed in their own yard, without notice to the vendors, and the cargo was found to contain only 755 tons, 580 lbs. About three weeks after having received the bill of lading, when called upon to pay, they claimed a reduction for the deficiency. Tlie Court of Queen's Bench for Lower Canada, Held, 1. That the plain- tiffs had a right to bring an action to recover the price of coal sold by their agents in their own name, and without disclosing their principals. 2. That the defendants had no right to refuse payment for the cargo on the ground of deficiency in the delivery, considering that the weighing was made by the defendants in the absence of plaintiffs, and without notice to them, and at a time when the defendants were bound by the option they had jjreviously niade of taking the coal in bulk. 3. That the defendants in tendering and depositing in court the sum of ^2,890.72 as the value of the quantity of coal actually received, had acknow- ledged their liability towards the plaintiffs. See 2 Dorion's Q. B. II. 35(5. On appeal to the Supreme Court of Canada, Held, j)er Ritchie, C.J., and Taschereau and Gwynne, JJ., that it was unnecessary to decide the question as to whether the action could be brought by the undisclosed principal, for by their plea of tender and payment into court the defendants had acknowledged their liability to the plaintiffs, although such tender and deposit had been made "without acknowledging their liability;" Fournier and Henry, J J., dissenting. Per Strong, J. — That the action by respondents (undisclosed principals) was maintainable. Per Fournier and Henry, JJ., that the action by respondents (undisclosed principals) was not maintainable, and that the appellants were not precluded from setting up this defence by their plea of tender and pay merit into court. At the trial it was proved that the defendants agreed to take the coal as per bill of lading without having it weighed. They, however, caused it to be weighed in their own yard, without notice to the vendors, and the cargo was found to contain only 755 tons, 580 lbs. About three weeks after having received the bill of lading, when called upon to pay, they claimed a reduction for the deficiency. Held, Fournier and Henry, JJ., dissenting, that the appellants had no right to refuse payment for the cargo on the grounds of deficiency in the delivery, considering that the weighing was made by the defendants in the absence of the plaintiffs and without notice to them, and at a time when the 7C7 SSile of Goods— Contimicd. ■ rj>uu^» .1 .!■.:■ defendants were bound by the option they had previously made of taking the coal in bulk. Y. Hudon Cotton Company v. Canada Shipping Co.— xiii. 401. 13. Agreement for sale of deals — Contract not complete — New trial. Action for an alleged afn^eement contained in the following letters : — MoNCTON, September 13th, 1880. Messrs. T. L. DeWolf & Co., Halifax :— Dear Sirs, — I will sell and deliver to you on the cais at Port du Chene, all the merchantable deals and deal ends I can manufacture at my mill at Meadow Brook, this season and next, during the shipping season, an estimated quantity from two to three millions. Deal ends not to exceed what may be required for broken stowage, and to be from three to eight feet long. Price — nine dollars per thousand superficial feet for deals, and two-thirds price of deals for ends, and fourths, if any. SPECIFICATION : 1 33 per cent., 7x3 and 8x3 35 " 9x3 , 10 " 10 X 3 . ' 14 " 11x3 8 " 12 X 3 and upwards. Average length, fourteen feet or more. About ten per cent, pine, balance spruce. The pine I will stick and pile well, and keep on my wharf uatil yon require them sent forward. n •.;•<.,■) About two millions to be ready for shipment by the first of July next, and a large portion ready as soon as navigation opens. Terms — cash on delivery. This offer to hold good until the first of October next. Yours truly, '' ' (Signed) Abnek Jones. ;• ■ ., '. M ...Mi.. c. , , N'. HvLiFAX, 29th September, 1880. Abner Jones, Esq., Moncton : — Dear Sir, — We wired you this morning that we accepted your offer for next season's cutting of deals, which we now beg to confirm. If you have any deals sawn this fall we might be able to take them here, we paying the differ- ence of railway freight between Point du Chene and Halifax. Please let us know what quantity you think you will cut this fall, what railway freight per car is to Halifax, and also to Point du Chene. Please let us know if you would ship what you onfc this fall to Halifax if we require them. We accept your offer, as made in your letter of the 13th inst., in all particulars. 768 Sale of Goods — Cdntinui'il, We think this will serve instead of writing out a contraot, but if yon require it, will fill one up and send you. Yours truly, T. L. DeWolp & Co. The action was tried before Mr. Justice King, at the Westmorland circuit, in December, A. D., 18B1, and resulted in a verdict for plaintiff for ^3,.')00. The jury were directed to find for the plaintiff, and that the only question related to the damages to be awarded plaintiff. The defendants' counsel moved for a non-suit at the close of the plaintiff's case. The defendants applied to the court en banc to set aside the verdict, and that a new trial be ordered on the grounds set out. This was granted. The learned judge at the trial held that the letters of the LSth September, 1880, and 29th September, 1880, constituted a complete and binding agreement, and that the subsequent correspondence between the parties did not show that such agreement was rescinded. The court (Allen, C.J., Weldon, J., Wetmore, J., Palmer, J. and Fraser, J. — King, J., delivering a separate judgment) in granting a new trial dealt only with these points, and held that the two letters above quoted constituted a complete binding contract between the parties, but that both agreed to abandon it — or, at all events, that certain letters were evidence of such abandonment — and that in this respect the direction to the jury was incorrect. King, J., while also of opinion that the two letters constituted a complete and binding contract, was inclined to think that tliere was a question for the jury whether the conduct of the plaintiff, after receiving the defendants' letter of the 17th December, and that in reply to his of the 16th December, was not such as to show that plaintiff acquiesced in the defendants' notice of refusal to abide by the bargain. On appeal to the Supreme Court of Canada, Held, that the two letters of the 13th and 26th September, 1880, did not constitute a complete contract between the parties. The rule having been taken for a new trial only, the court refused to direct a non-suit or verdict for defendant, but affirmed the rule for a new trial. (Counsel for respondent not called on.) Appeal dismissed with costs. Jones V. DeWolf.— 26th February, 1884. 14. Fraudulent scheme to obtain goods — And to give inadequate security —SimiUated hypothec — Right to sue for price. There were special counts in the plaintiff's declaration in this case, alleging that goods were sold to the defendants on a representation that the latter were the holders for value of a certain obligation and hypotheque in their favour by one Theodore Roy, of Montreal, for $3,000, payable by yearly instalments of 91,000, with interest ; that such obligation represented the bal- ance due defendants from said Roy on tho purchase of certain real estate sold to Roy, and on which he had paid $300 at time cf purchase, and that Boy was a man of means and had other property. The plaintiff sold goods to the 7G9 Sale of Goods — ' untituitd. (let'eiiclantH to the amount of ^2,000, and accepted as payment the first two inutalnieiits of uaid obli){ation, which wen; daly aHsit>iu-d ti> him, the dt-feiuhint l{oy not huinj,' ))roHunt at tlio time of such aHsiynmont, hut afterwards being taken to the notary's olTioe, wliere ho accepted the said transfer. Tlio declar- ation tlien allejijed tluit the said reprosentations by the defendants were false and fraudulent ; that the transfer of the property to Uoy and the said obliga- tion were frauilulenlly nnide to enable tlie defendants to use the said obli^{ation to obtain credit ; that Koy never paid anything on account of the purchase of the real estate, or entered into possession thereof, but that defendants kept possession and collected the rents of the property ; that the defendant Roy wan not a nuui of means, hut was a paiipi-r and not carrying on any trade or btirtine; s which the defendants knew, and that he was simply a i>rite noin for the defendants. The declaration also contained the common counts. The phiintitf therefore concluded that he had a right to demand the price of the said goods from the defendants, and prayed that the obligation bo set aside as regards the plaintiff, and that it bo declared that said Roy was the agent (prlte nom) of the defendants, and that defendant be condemned to pay the sum of $2,000. with interest and costs. The defence was that the allegations in said declaration were false ; that tlie transactions with Roy wore hon'i fide and the sale an actual one ; that tlie instalments of said obligation were accepted by plaintiff in payment of the goods after due enquiry ; and that even if the allegations were true the plaintiff could not maintain his present action. The Superior Court gave judgment for the plaintiff, finding that the property was worth much less than 82,000; that Roy never paid anything on the Kaid land nr entered into possession; and that the deed to and obligation from Roy were simulated and fraudulent. This judgment was confirmed by the Court of Queen's Bench, Justices j\Ionk and Cross dissenting. Held, iitTu-ming the judgments of the courts below, that the evidence shewed a fraudulent sclieme on the part of the defendants to obtain the goods of llio plaintiff and to cheat him out of the price by inducing him to accept an inadequate security ; and that under the circumstances the plaintiff was entitled to recover for such price. Henry, J., dissenting. Taschereau, J. — The court should not reverse the findings on a question of fact of the two courts below, except under very unusual circumstances — Ilayx v. Gordon, L. R. 4 P. C. 337 ; Gray v. Turnbull, L. R. 2 H. L. 63 ; Bell v. Corporation of Quebec, 5 App. Cases 04 ; Smith v. St. Lawrence, L. R. 5 P. C. 308. He agreed, however, with the courts below on the facts. Appeal dismissed with costs. Black Y. Walker.— 8th March, 1886. 15. Sitle of lumber — Acceptance of part — Right to reject revudnder. T. contracted for the purchase from D. of 200,000 feet of lumber of a cer- tain size and quality, which D. agreed to furnish. No place was named for the delivery of the lumber, and it was shipped from the mills where it was sawed to T. at Hamilton, T. accepted a number of carloads at Hamilton, but rejected some because a portion of the lumber in each of them was not, aa CA8. Dio. — 49 __ 770 Sale of Goods — Contimied. ho alloged, of the sizo and iiuftlity contraoted for. Held, iiffiriniiifj the juds- nitiit of tlie Court of Appeal for Ontario, Fnuriiier and Henry, JJ., disHcnting, that T. under the circuniHtances of the cawe had no rif^ht to reject the luniher, hiii only remedy for the deficiency heiii^{ to obtain a reduction of the price or damftj{e8 for non-deliv/ary accordinf< to the contract. Thomson v. Dyment.— xiii. 808. 16. Vendor a7i(l purrluiser — Oi)''n und notorious Hide — Actual j bank and D. L. for the wrongful > ■ detention of such goods : Held, affirming the judgment of the court below, that the contract of sale between J. L. and H. was rescinded by the action of J. L. in refusing to take poBBession of the goods when they arrived at his place of business and handing them over to D. L. with direction to hold them for the consignor, and in notifying the consignor who acquiesced and adopted the act of J. L., whereby 771 Sale of Goods — Continued. the property in luiil poHuuHiiion of the t^ooils became re-vested in IT. and tliero wns, conHe(iuently, ni) title to the goods in J. L. on Au^iiHt I'ith wlien tlie bill of bale wuB made to the bunk. Piotou Bank v. Harvey.— xiv. (117. 18. By agent of two firms — Goods of both principals — Singlu price — Excess of authority. Sec AGENT, 12. 19. Goods sold and delivered — Credit — Direction to jury — With- drawal of evidence from jujy — New trial. See EVIDENCE, 42. 20. Contract of sale — Particidar chattel — Repreftentation. MoD. bouj^ht lit auction, through an a^pnt, a billiard table described in ' the au'^tioneer'H advertisement as " a full size fi pocket English billiard table made iiy Thurston," etc., and wrote to M. d' Co., makers of billiard tables in Toronto, describini^ his table and asking terms of exchanf,'ing it for a new one of another style. On receiving' the information asked, JMcD. wrote that he could not accept the terms offered. M. & Co. afterwards wrote the follo\vin({ letter :— TonONTo, Oct. 2nd, ISSG. D. C. McDouoALL, Esq., Afient Halifax Banking Co., Antif^onish. Deau Sih, — Your laconic reply to our letter of 21th instant to hand. We would drop the matter if it was not for an inquiry which we liave just received from a private party in the far North-West who would like to purchase a good second-hand English table. We would therefore kindly ask you to make us your offer for the proposed exchange, and if we can possibly do it we will accept it. Give us as near a description as you can of your table, maker's name is essential, but as you have nothing with it but the billiard outfit (no ' life and pyramid balls and boards) you should not make your price too high, ■ or a deal will be impossible. Awaiting your kind reply, we remain, yours truly, Samdkl May & Co. To which McD. answered : I may just say I never saw our table yet, but am informed it is a very nice one, made by " Thurston " and very little the ■ worse of wear, being in the private family of Sir Edward Kenny in his country ■ residence near Halifax. This gentleman who purchased the table for us writes thus : " I got the 3 billiard balls and marker, and 19 cues, which is all that is needed for billiards. I am told the table is a great bargain, cost £200 in England, and is not much the worse for wear." The table is 6 x 12, and for particulars we would refer you to Jerry E. Kenny, Esq . or F. D. Clark, auctioneer, Halifax. Yours truly, D. C. McDoCGALL. M. A Co. then wrote accepting the offer and adding, "We trust that the EngliBb table is fully as leprtstnted ; and if you are eatigfied, you may ship it 772 Sale of Goods — Continufd. ,, , :,. at once, witli billiard balls, markers, 19 cues, cloth and what else there maybe. In the meantime we will get up a 4^ x 9 Eclipse Combination table in beat style, and with outfits for pool, carom and pin pool games. Awaiting your early reply, we remain, dear sir, Yours truly, Samuel May & Co." The table shipped by McD. on reaching Toronto was found to be an American made table with Enjjlish cushions and worth only from $15 to $25. M. & Co. brought an action for the original price of the new table. Held, affirming the judgment of the Supreme Court of Nova Scotia, that • McD. agreed to deliver to M. & Co. an English built table made by Thurston as described in his letter and having failed to deliver such a table he was liable to pay the full price of the one obtained from M. & Co. Present. — Sir W. J. Ritchie, C.J„ and Strong, Taschereau, Gwynne and Patterson, J J. May Y. McDougall.— Feb. 25, 1890.— xviii. 700. 21. Non-delivery — Part of large 2>cir eel — Lien of unpaid vendor. The defendant H. had over 4,000,000 feet of lumber in a yard in Rock- land, Ont., and sold 1,500,000 through an agent to L. of Montreal on six month's credit, ratifying the sale by a letter to the owners of the yard as follows : Montreal, 12th Jany., 1887. • Messrs. W. C. Edwards & Co,, Rockland, Ont. Gentlemen — You will please ratify Mr. Lemay's order for one million feet H mill culls 8-13 feet and 493,590 feet 3 mill culls 14-lG feet sold to Mr. William Little, f. o. b.. of barges with option to draw them from the piles, if he wants some during winter. Yours truly, , (Sd.) N. HUHTEAU ET FKiiRE. A few days after the sale the agent gave an order on the owners of the yard for delivery of the lumber to L. which order was accepted by the owners. L. had given a six month's note for the price of the lumber and just before it matured he asked defendants to renew, which they refused, and on L. saying that he could not pay defendant replied that he must keep his lumber, where- upon he was informed by L. of his agreement with the plaintiff made about a month after the purchase from defendant by which he pledged to plaintiff the warehouse receipt for the lumber as collateral security for advances to him bj plaintiff. On the trial of an interpleader issue to determine the title to this lumber it was shown by the evidence that the quantity sold to L. had never been separated from the defendant's lot in the yard and that defendant had always kept it insured considering it his until paid for. Held, affirming the judgment of the Court of Appeal, Strong and Gwynne, JJ., dissenting, that the property in the lumber never passed out of H. the defendant. Present: Sir W. J. Ritchie, C.J., and Strong, Foamier, Gwynne and Patterson, JJ. Ro8B Y. Hurteau.— Deo. 11, 1890.— xviii. 713, [The Privy Council refused leave to appeal.] 773 Sale of Goods — Continued. 22. Sale by weight — Contract, wheyi perfect — Davinge to goods before weigfdng — Possession retained by vendor, effect of — Depositary — Arts. 1063, 1064, 1235, 11,7 J^, 1710, 1802, a a Held, per Ritchie, C.J., Strong and Fournier, JJ., affirming the judgment of the Court of Queen's Bench for Lower Canada (appeal side), tliat where goods and merchandise are sold by weight the contract of sale is not i^erfect, and the property in the goods remains in the vendor and they are at liis risk until they are weighed, or until the buyer is in default to have them weighed ; and this is so, even where the buyer has made an examination of the goods and rejected such as were not to his satisfaction. Held, also, per Ritchie, C.J., Fournier and Taschereau, JJ., that where goods are cold by weight, and the property remains in the possession of the vendor the vendor becomes in law a depositary, and if the goods while in his possession are damaged through his fault and negligence he cannot bring action for their value. I'er Patterson, J., diihitante, whether there was sufficient evidence of accept- ance in this case to dispense with the writing necessary under Art. 1235, C. C. to effect a perfect contract of sale. Ross Y. Hannan.— xix. 227. 23. Partners — To whom credit given — Entries of goods on previous dealings — Evidence of partnership. See EVIDENCE, 03. Sale of Lands — Warranty — Effect of timber limits — Givil Code — Ads. 1515 and 1518 — Sale en bloc — Deficiency. By a deed executed October 22nd, 186G, for the purpose of making good a deficiency of fifty square miles of limits which respondents had previously sold to appellants, together with a saw mill, the right of using a road to mill, four acres of land, and all right and title obtained from the Crown to 255 square miles of limits for a sum en bloc of #20,000, the respondents ceded and trans- ferred "with warranty against all troubles generally whatsoever" to the appellants, two other limits containing 50 square miles. lu the description of the limits given in the deed, the following words are to be found : " Not to interfere with limits granted or to be renewed in view of regulations." The limits were, in 1867, found in fact to interfere with anterior grants made to one H. Held, that the respondents having guaranteed the appellants against all troubles whatsoever, and at the time of such warranty the said 50 miles of limits sold having become, through the negligence of respondent's auteurs, the property of H., the appellants were entitled, pursuant to Art. 1518, C. C. (P.Q.), to recover the \ alue of the limits from which they had been evicted proportion- ally upon the whole price, and damages to be estimated according to the increased value of said limits at the time of eviction, and also to recover pur- 7T4 Sale of Lands — Contimwil, suant to Art. 1515, C. C, for all improvements, but as the evidence as to proportionate value and damages was not satisfactory, it was ordered that the record should be sent back to the court of first instance, and that upon a report to be made by experts to that court on the value of the same at the time of eviction, the case to be proceeded with as to law and justice may appertain. .. v Per Strong and Gwynne, JJ., dissenting. — That the only reasonable con- struction which could be put upon the words " with warranty against all troubles generally whatsoever" in the deed, must be to limit their application to protecting the assignee of the licenses against all claims to the licenses themselves, as the instruments conveying the limits therein described, and not as a guarantee that the assignee of tht licenses should enjoy the limits therein described, notwithstanding that it sliould appear that they were interfered with by a prior license. But, assuming a different construction to be correct, tliere was not sufficient evidence of a breach of the guarantee. [Reversed by Privy Council, 9 App. Gas. 150 J Dupuy Y. Ducondu.— vi. 425. * ' ■ 2. Promise of sale — Construction of — Condition precedent — Mise ■ en demeure—Arts. C. G. 1022, 1007, 1478, 1536, 1537, 1538, 1550. On the 7th December, 1874, T. G., by a promise of a sale, agreed to sell a farm to D. M., then a minor, for §1,'200 — of wliich f?500 were paid at the time, balance payable in seven yearly instalments of §100 each, with interest at 7 per cent. D. M. was to have immediate possession and to ratify the deed on becoming of age, and to be entitled to a deed of sale, if instalments were paid as tliey became due, " but if, on the contrary, D. M. fails, neglects, or refuses to make such payments when they come due, then said D. M. will forfeit all right he has by these presents to obtain a deed of sale of said heroin mentioned farm, and he will moreover forfeit all monies already paid, and which hereafter may be paid, which said monies will be considered as rent of said farm, and these presents will then be considered as null and void, and the parties will be considered as lessor and lessee." After D. M. became of age he left the country without ratifying the promise of sale ; he paid none of the instalments which became due, and in 1879, T. G. regained possession of the farm. In October, 1880, D. M. returned and tendered the balance of the price, and claimed the farm. Held, reversing the judgment of the court below, Strong and Taschereau, JJ., dissenting, tliat the condition precedent on which the promise of sale was made not having been complied with within the time specified in the contract, the contract and the law placed the plaintid en demeure, and there was no necessity for any demand, the .ecessity for a demand being inconsistent with the terms of the contract, which immediately, on the failure of the performance of the condition, ipso facto, changed the relation of the parties from vendor and vendee to lessor and lessee. Orange v. McLennan.— ix. 385. 775 Sale of Lands — Continued 3. Vendor and pivrchasei — Verbal agreement — Subsequent deed — Alleged fraudulent representation by vendor — Refusal of judge to postpone hearing. \V. (ijlaintiff) being desirous of securine a riisidence, entered into negotia- tions with S. (defendant) to purchase a house which defendant was then erectin}^. W. alleged that the agreement was, that he should take the land (2J lots) at ^'100 a lot of fifty feet frontage, and the materials furnished and work done at its value. In August, 1874, a deed and mortgage were executed, the consideration being stated in both at $5,926. The mortgage was after- wards assigned to the M. & N. W. L. Co. W. alleged in his bill, that S., in violation of good faith, and taking advantage of W.'s ignorance of sucli matters, and the confidence he placed in S., inserted in th ) mortgage a larger sum than the balance due as a fair and reasonable market v Mue of the lands, and of what he had done to the dwelling house and other premises, and he prayed that an account might be taken of the amount due. S. repudiated the allegation of fraud, and alleged that W. had every opportunity to satisfy himself, and did satisfy himself, as to the value of what he was getting ; that he had told the plaintiff he valued the land at f'2,000, and that in no way had he sought to take advantage of tlie plaintiff. S. was unable to be present at the hearing, and applied for a postponement, on the grounds set forth in an affidavit, that he was a material witness on his own behalf, and that it was not safe for him, in his state of health, to travel from Ottawa to AVinnipeg. Dubuc, J., refused the postponement, on the ground that the court was only asked now to decree that the account should be opened and properly taken, and the amount ascertained, svhich would be done by the master if the court should so decide, and that the defendant would then have an opportunity of being present, and that he was not necessarily wanted at the hearing; and, as the result of the evideuce, made a decree in accordance with the contentions of the plaintiff, and directed an account to be taken. The Chief Justice of the Supreme Court, under s. fi, of the Supreme Court Amendment Act of 187'J, allowed an appeal direct to the Supreme Court of Canada, it being known that there were then only two judges on the bench in Manitoba, the plaintiff (Chief Justice) and Dubuc, J,, from whose decree the appeal was brought. Held, that under tiie circumstances, the case ought not to have been proceeded with in absence of appellant, and without allowing him the oppor- tunity of giving hif evidence. Fill- liilchie, C. J., and Strong and Gwynne, JJ., that on the merits there was no ground shown to entitle the plaintiff to relief. Per Ritchie, C.J.,and Strong, J., that the bill upon its face alleged no ground sufficient in equity for relief, and was demurrable. Schultz Y. Wood.— vi. 585. 4. Ofer to sell — Acceptance on completion of title — Specific per- fm^raance. On the 2Cth January, 1882, McI. wrote to H, as follows :— " A. McI. agrees to take 135,000 for property known as McM. block. Terms — one-third cash, 776 Sale of Lands — Continued. .'■ .f! . balance in one year at ei^jht per cent, per annum. Open until Saturday, 28th, noon." On the same day H. accepted thia offer in the following terms : — " I he^ to accept your offer made this morning. I will accept the property known as McM. block, being the property on M. street, for ?35,00(), payable one-third cash on completion of. title, and balance in one year at tight per cent. You will please have papers and abstract submitted by your solicitor to N. F. H., 22 D. block, as soon as possible, that I may get conveyance and give mortgage." On a bill for specific performance, the Court of Queen's Bench (Man.) decreed that H. was entitlf-^ to have the agreement specifically performed. Held, Ritchie, C.J., and Fournier, J., dissenting, that there was no bind- ing, unconditional acceptance of the offer of sale, and therefore no completed contract of sale between the parties. ,, . . I . >i ,, Mclntyre v. Hood.— ix. 55G. 5. Sale hy agent — Obtaining conveyance from pretended pur- chaser — Trustee and cestui que trust — Laches. In 1874, the plaintiff, W. J. T., before leaving Canada, conveyed certain lands, in which he had an interest as a8si;.!iiee of a contract to purchase, to his brother, G. T., one of the defendants. In April, 18.51, G. T., in anticipation of a suit which was afterwards brought by one C. against W, J. T., in relation to the lands in question, without the knowledge of his brother, re-assigned the property to him, and having paid the balance of the purchase money, a deed of tlie lot issued at G. T.'s reijuest to W. J. T., as such assignee. In October following a power of attorney was sent to, and executed by, \V. J. T. who was then in California, in favour of G. T., to enable him (G T.) to " sell the land in question, and to sell or lease any other lands he owned in Canada." In IH.'iO, G. T. conveyed the property to W., the respondent, who had acted as solicitor for W. J. T., and had full moans of knowing G. T.'s position and jjowers, for au alleged consideration of .§1,000, and \V. immediately re-conveyed to G. T. one-half of the land for an alleged consideration of S200. In 1873 W. J. T. returned to Canada, and in January, 1H7-1, filed a bill impeaching the transic- tiona between his brother and W., seeking to have them declared trustees for him. Held, reversing the judgment of the Court of Error and Appeal, and af!irmhig the decree of Vico-Chancellor Proudfoot, Strong, J., dissenting, that W. J. T. was the owner of the lands in question ; that he had not been debar- red by laches or acquiescence from succeeding in the present suit, and that the transactions between G. T. and W. should be set aside. Taylor y. Wallbridge.— ii. liKJ. 6. Vendor and purchaser — Contract for sale of land — Bill for rescission of, on ground of fraud — Or for coynpensation for deficiency — Contract perfected hy conveyance. The Bill of Complaint was filed by the appellant (plaintiff) by his next friend against the respondents (defendants) in JIarch, 1870, and made a case of actual fraud committed by Robert A. Murta, deceased, of whose will the defendants were executors. 777 Sale of Lands — Continued. ri'-. - ■■■:,<■ Oil the '2',)th of June, 1871, Murta conveyed to the appellant a piece of land described as containin>» by admeasurement one acre, " buinj; the north- west square acre of lot number thirteen in the tenth concession of the said township of Ileach, and which may be further known as beinf^ village lot number one on the registered plan of the village of Greenbauk, save and except one quarter of an acre, more or less, otT the south end of said lot number one, sold to one Henry Hall." The whole consideration was 'Jl.OOO, of which JTOO was paid at the time of the sale, d,nd a mortgage given for ^900. The appellant contended that the evidence established that Robert A. Murta, in the negotiations which resulted in the sale to the appellant, repre- sented that he was the owner of the land rnnniug from the east side of the travelled road to a high board fence which he then pointed out to the appel- lant as the rear boundary of the property he was offering to her for sale; that the appellant believed the statements and representations of the said Murta, and on the faith thereof purchased the property, believing she was getting the land Murta had so pointed out, and that the land so ])urcha8ed extended to the high board fence before mentioned, and included the orchard and yard in tlie evidence referred to. The evidence showed that the eaid Il')bert A. Murta was not the owner of lot numbar one on the registered plan in the village of Greenbauk, and that the said village lot number one was not identical with the north-west S(iuai'e acre of lot thirteen in the tenth con- cession of Iteauh ; Chat Kobert A. Murta was well aware at tlie time he made such representations, he was nut tlie owner of a portion of the said lands he pointed out, but that the same had been claimed by one lanson, whose title thereto he had acknowledged ; and she prayed (1) That tlie otnitract might be rescinded and set aside on the grountl of fraud ; or (2) That compensation might be awarded for tlie alleged delicieiicy in the quantity of land. ' Proudfoot, V.C, before whom the case was tried, found that there was no case of fraud proved as against Murta, and that the contract could not be set aside ; but lie thought that Murta had agreed to sell an acre to be measured from the travelled road, and that he did not own a part of the land which he agreed to convey, and decreed compensation for the deficiency to be made by the defendants to the plaintiff. The Court of Appeal for Ontario agreed with the finding of the Vico- Chancellor, so far as any case of fraud was concerned, but differed from the conclusion of the Vice-Ghancellor as to compensation, holding that after a con- tract had been perfected by conveyance a bill for compensation on account of defects cannot be maintained; tliat after the conveyance the purchaser is con- lined to his remedy upon the covenants, or, in a proper case, where lie applies promptly, to a rescission of the contract, I'ollis v. Porter, 11 Grant, 41'2. If, therefore, the Vice-Chancellor was of opinion that it would be inequitable to decree a rescission, he ought to have dismissed tlK> bill. But such a decree waa not warranted by the evidence. On appeal to the Supreme Court of Canada, K<vith him, and that statements in the guar- antee were false. By his bill May prayed that the sale be set aside, the portion of the purchase money already paid be re-paid to him, and that the mortgage given to secure payment of the remainder be cancelled. Held, reversing the judgment of the Court of Queen's Bench in equity, Manitoba, that the false and fraudulent representations made by Gilmour and McLean, entitled May to the relief prayed for against McArthur, McLean and Gilmour jointly and severally. Appeal allowed with costs. May Y. McArthur.— 20 C. L. J. 248 ; 4 C. L. T. 336.— 20th May, 1884. 9. Hypothecary action against sith-piorchasers — Acknowledgment of amount due signed by original vendor in error — Judg- r ment against original purchaser res inter alios acta as regards suh-purchasers when action brought against former after purchase and registration of deed by latter — Varia- tion of original promise of sale by subsequent deed — Evi- 7. so Sale of Lands — Continued. dence of notary vot ndwis»ihle to contradict deed — liovut^ on transfer of timber limits payable by purchaser when (tf/reemetit silent. Tins was an appeal from a judgment of the Court of Queen's Bench, reversint^ a juilf,'ment of the Superior Court, at Quebec, rendered on the 8tli of July, 1882, in an hypothecary action instituted by Dubuc, the appellant, aj^ainat the respondents. By its judtjment the Superior Court d< clared certain real estate, the property of the respondents, hypothecated in favout of the appellant " for the capital, interest and costs mentioned in his declaration, amounting; to the sum of f5,'2.j0 currency, with interest from the 7th of July, 1880, at the rate of eight per cent, per annum, and costs of suit, and frais dea piiven," condemned the respondents to surrender the real estate in 2. On the '2nd September, 1870, Dubuc signed a statement of account, aeknowle;lging that the purchase price then due by Connolly to him was $'l,44"2.ii3. The respondents contended that Dubuc could not go behind this representation, their purchase being made subsequently to it ; but the appel- lant alleged that he had only signeil such statement on condition that he was not to be bound by it, if incorrect, and that in any event it was not proved that it had ever been brought to the notice of the respondents. 3. On the .5th December, 1872, Connolly paid the Commissioner of Crown Lands, as the transfer bonus on the limits sold by Dubuc, the sum of $1,344. It was necessary to decide whether Dubuc, the vendor, or Connolly, the pur- chaser, was legally bound to pay this bonus, the agreement being silent as regarded it. 4. As respects the property mentioned in the agreement of the Slst July, 1872, as the Wolf property, the price of this property was fixed by the agree- ment ut Jl,350, but it did not then belong to Dubuo. Connolly, after the agreement on the 21st November, 1872, paid this amount to the owner, and he contended that although the property was omitted from the deed of the 21sb November, 1872, the two documents should be read in connection with each 782 Sale of Lands — ('(mtinwii. other, and the omission did not relieve Dubuc from the liability to carry out his promise of sale, or to be charged with the price when ptiid by Connolly. 5. The notary who made the agreement of the Slat July, 1H7'2, and the deed of the 2l8t November, la72, being called as a witness, statod : " I have no doubt in my own mind that this lot (Wolf) was included in the sale. It was not put in this intentionally to avoid a rf;pctition of the deed, and Mr, Hall undertook to make the assignment direct to Mr. Connolly, on getting paid out of that purchase money, which was part of tiio sale." The appellant contendeii. that this evidence could not be received to contradict or vary the terms of a valid instrument. The Supreme Court of Canada, Held, 1. Aftirming the judgment of Casault, J., who decided the question on demurrer, 7 Q,. L. 11. 43, and tiio unanimous judgment of the Court of Queen's Bench sustaining Casault, J. 's judgment, that the judgment against Connolly was ret inhr allot acta as regarded tlie respondents and not binding on them. 2. That there was no evidence in the record to sustain the contention that the acknowledgment of account signed by iJubuc was ever brought to the notice of respondents before they purchased, and therefore the appellant might properly show it had been signed in error. 3. Reversing the judgment of the Court of Queen's Bench, that the bonus of §1,344 paid to the Commissioner of Crown Lands, was a payment which t.\\e purchaser of the limits was legally bound to make, and which, therefore, could not be charged against the seller, Dubuc. 4. Reversing the judgment of the Court of Queen's Bench, that the appel- lant was not properly chargeable with the amount paid for the Wolf property, an entirely new contract having been substituted by the deed of the 21st November, 1872, for the promise of sale of the 31st July, 1872. 5. That the evidence of the notary could not be revieived to contradict the deed of the 21at November, 1872. Appeal allowed with costs. Henry, J., dissenting. Dubuc Y. Kldston.— 23rd June, 1SS4. 10. Vendor and purchaser — S'peclfic i^erfomnance — Contract not atoned by vendor, but subsequently admitted by his letters — Statute of frauds. Where property was sold by auction, the particulars and conditions of sale ' ' not disclosing the vendor's name and the contract was duly signed by the pur- ' chaser, but was not by the vendor or the auctioneer acting in the matter of sale and subsequently, in consequence of delays on the part of the purchaser, the attorneys for the vendor (one of whom was the vendor himself) wrote in the course of a correspondence which ensued " lie S.'s purchase we would like to close this." And referring to certain representations made in the advertise- ments of the sale : " They were not made part of the contract of sale. . . . Have the goodness to let us know whether the vendee will pay cash or give mortgage. If the latter we will prepare it at once and send you draft for approval;" and on a subsequent occasion: "lie S.'s purchase. Herewith 783 Sale of Lands— ^ '"«2,uOO. The mortj^age offered in fulfilment of this agreement was not a first mortgage — a mortgage of the legal estate — but was subsequent to another mortgage for a large amount. W. refused to acceiit the mortgage, and in an action on the agree- ment to recover the purchase money and interest reprfented by such mortgage it was admitted that the mortgage was not a first mortgage upon the land described in it, and that no notice had been given to the vendee of its being a second mortgage, nor had there been any waiver of his right to demand a first mortgage. On the contrary he had asked, " Is this a negotiable instrument ?" and was told " It is all right." Held, aflirraing the judgment of the Court of Queen's Bench of Manitoba, that under the terms of the agreement the plaintiff was entitled to a good marketable mortgage— that is a first mortgage upon the real estate. Per Ritchie, C.J. The words "negotiable instrument" did not mean a negotiable instrument in the nature of a promissory note, but an instrument which could be taken into the market aa a saleable instrument. Per Strong, J. An agreement to assign a mortgage on laud by way of absolute transfer or sale, or, as in the present case, to assign a mortgage on land in payment, or part payment, of other land sold by the proposed trans- feree to the proposed transferor, is a contract of which a Court of Equity would decree specific performance, and in carrying out a decree for apeciflo performance, the purchaser is always entitled to a reference as to title what- ever may be the nature of the property which is the subject of the sale, the right to a reference of title not being confined to sales of real estate. A Court of Equity would not compel a party who agreed to purchase a mortgage on land simply to take any other than a mortgage of the legal estate free from all prior incumbrances. The title in such a case which the vendor of the mort- gage impliedly undertakes to give is a good marketable title, which means a title to a mortgage of a legal estate in possession, just as the vendor who sells land without saying more impliedly agrees to show a good title to both the mortgage debt, the money secured by the mortgage, and to the security holden for the debt, the land; and he can only show the latter by proving the legal estate free from all incumbrances has passed under the mortgage. The same rule should prevail in a court of law, the constraction of contracts being the same in both jurisdictions. If the agreement had been executed the remedy 7H4 Sale of Lands— ' '""'''"""'• of till) pliiiiitilf would Imvi^ bofii upon nny covcimiitH which tho traiiHfer mif^lit have contiiiiiuil, or, if Htill in fwri, if it couhl bo Hhowii tlioro liivtl been any waiver of thu rit{ht to call for a uood titlo, the plaintilT niit(ht be concluded ; and thiH inivjlit have been a eonse(|iience of distinct notice to him during tlie re;,'ivinft therefor a receipt. On the day the appellants sold the said land and received the said 1^5,000 from the purchasers, Henry F. Champion, one of the respondents, called at the office of the appellants, who informed him of the sale, and the said Champion then demanded and received from the appellants the 85,000, and gave the apjiellants a receipt therefor. On the 14th day of the said month of January, the appellants received instructions from the respondents to sell 10 acres, being another part of said south half of lot 12, Pariah of Kildonan, east of Main street in the city of ■Winnipe^', at the price of f 1,500 per acre. On the 15th day of January, the appellants, as such at;ont8 of the respondents, sold the said 10 acres to one F. W. Barrett (actinj,' for the syndi- cate who had purchased the 145 acres) who agreed to purchase at the price at which the appellants had been authorized to sell, but the formal a^jreement was closed by said Barrett with Henry F. Champion, one of the respondents, to whom Barrett paid ?1,500 on account of the purchase money of 815,000, and Champion gave to said Barrett a receipt for the amount so paid. Prior to the expiration of the twenty days, within which the balance of the purchase money on the 145 acre parcel was to be paid, the purchasers discovered that the patent for 75 or 80 acres thereof (being what is known as the outer two miles thereof) had not been issued, and the respondents 786 Sale of Lands— ''"""'"'/(•//. wore witlioiit titlu to h\u:\\ pii ; nml on arconiit of tie's want of title in the reaiioinloiitH tlic imri-liUHfrs rufiHod to conipli-to tliuir purolmno, and from the absonco of n writing; 8it{ned by them they ooulil not be compelled to do BO. The (vppellanta brouglit an notion for commission upon the entire purclinse money, Sl.Sti'). The rt-rtpoiidcnta Hct up thn dofnnco tliat tlio appellants promiflcd to soil the Huid liviidrt, and to coinplfto suoii sale by prcpariiu; the nccosHary a;;ree- ment in writiu)} to make a binding contract with Hucli person or peraoiia as slunild become purchaHeiH of the laiidM. The caHo came on for trial bi-foro a jury who followed the chari.; ■ (if tlie Chief iIuHtice, and found a venlict in favour of the plain JffH for tiio full amount of thoir claim, thoroby tiivin^; tlicm 2.J per cent, upon the entire purdiase money of both parcels of land. Tliia verdict was movetl a^'ainst slice 'ssifully, and judgment was rendered directiufj tiiat the verdict slioidd bo re.lucfd to 91*25, boin^; coniniissioii at tho rate of "ij per cent, on the ■J.5,000 actuiilly paid, or, in tlie alternative, tluvt there nlujuld be a new trial without costs, the plain- tiffs to make their election between the two alternatives within '20 dayn. On appeal to the Supreme Court of Canada, Held, per Ritchie, C.J., and Fournier and Taschereau, J.I., that there had been a mis-trial, owin>; to cer- tain matters which oujjlit to have been submitted to the jury, not havinj4 been submitted by tho judj^o with proper directions, matters in reference tO' the nature of the terms upon which the appellants were employed, tho ques- tion wliether the sale went off throuj,'li tho nej^'lect of tho appellants to take a writini! bindin-,' the purchasers, or whether it wont off by reason of the vendors not being able to complete tho title, or because they were nnwilliuf; to do BO. Tiie order for a now trial sliould be affirmed, the plaintiffs to have the al'oernative, to be exercised within 20 days after service of tho order in appeal, of reducint^ his verdict to the '&123. Per Henry, J. — It was the duty of the appellants to take from tho pur- chasers a bindinj^ a}.;rcement under tho statute : and having neglected to do so, they were not entitled to any compensation. I'tr Strong, J., dissenting. — The appellants did^all they were bound to do, and earned their commission by finding the purchasers, and did nothing and omitted nothing which amounted to misfeasance or nonfeasance disentitling them to the commission which they had earned. McKenzie y. Champion.— 22nd June, 188.5. — xii. ()19. 13. Authority to (lulivor deed and receive purchase- money — Agent exceeding authority — New agreement. "■ See AGENT, 11. ■ : •' 14. Contract for sale of land — Suit for rescission of — Fratulident m isrepresentation — Evidence. Where the court below dismissed the plaintiff's bill praying for the - rescission of an executed contract, Held, that a clear case of fraud must be CAS. DIO. — 50 786 Sale of Lands — Continned. established to obtain the rescission of an executed contract, and the allej^tions of fraud made by the plaintift being uncorroborated and contradicted in every particular by the defendant, neither the court below nor the court in appeal would be justJfied in rescindinj^ the contract in question. Henry, J., dissent- ing, on the ground that" the evidence bore out the allegations of fraud. Appeal dismissed with costs. Hutchinson v. Calder. — 23rd June, 1885. 15. Sale under power in a mortg.age after foreclosure. See MORTGAGE, 15. 16. Sale of lots by 2)lan — Lanes shown on 'plan — Subsequent acceptance of conveyance accordivfj to dijfevent plans. The city of Toronto offered land for sale, according to a plan showing one block consisting of five lots each, about 200 feet in length running from east to west bounded north and south by a lane of the same length, and east by a lane running along the whole depth of the block and connecting the other two lanes. South of this block was a similar block of smaller lota, ten in number, running north and south 120 feet each. The lane at the east of the first lot was a continuation, after crossing the long lane between the blocks, of lot No. 10 in the second block. The advertisement of sale stated that " lanes run ni rear of the several lots." M. became the purchaser of the first block, and C. of lot 10 in the second. Before registry of the plan M. applied to the City Council to have the lane at the east of the block closed up and included in his lease which was granted. C. then objected to taking a lease of his lot with the lane closed, but afterwards accepted a lease which described the land as leased according to plan 380 (the plan exhibited at the sale) and plan 352 (which showed the lane closed), and he brought an action against the city and M. to have the lane re-opened. Held, affirming the judgment of the court below, that C. having accepted a lease after the lane was closed, in which reference was made to said plan 352, was bound by its terms and had no claim to a right of way over land thereby shown to be included in the lease to M. ' Held, also, per Gwynne, J., that under the contract evidenced by the advertisement and public sale C. acquired no right to the use of the lane after- wards closed. Carey v. City of Toronto.— April <), 1880.— xiv. 172. 17. Will — Devisee under — Mortgage by testator — Foreclosure of— Suit to sell real estate for pa.ynient of debts — Decree under — Conveyance by purchaser at sale under decree — Assign- ment of mortgage — Statute confirming title. A. M. died in 1838, and by his will left certain real estate to his wife, M. r " M., for her life, and after her death to their children. At the time of his death there were two small mortgages on the said real estate which were sub- sequently foreclosed, but no sale was made under the decree in such suit. 787 Sale of Lands— Cantinued. In 1841 the mortgages and the interest of the mortgagee in the foreclosure suit were assigned to one J. B. U., who, in 1849, assigned and released the same to M. M. In 1841 M. M., the administrator with the will annexed of the said A. M., tiled a bill in chancery for tlie purpose of having this real estate sold to pay tlie debts of the estate, she having previously applied to the Governor in Council, under a statute of the Province, for leave to sell the same, which was ryfu^ed on the ground that such leave could not be granted for the sale of a particular part of the estate, and if the whole estate were sold and there should be a surplus, there would be no mode of appoi'tioning such surplus among the devisees. A decree was made in this suit and the lands sold, the said M. M. becoming the purchaser. She afterwards conveyed said lands to the commissioners of the lunatic asylum, and the title therein passed, by various Acts of the Legislature of Nova Bcotia, to the present defendants. A statute having been passed in 1874 confirming the title to the said lands in the Commissioner of Public Works and Mines, M. K., devisee under the will of A. JM. brought an action of ejectment against the Commissioner of Public Works and Mines and the resident physician of the lunatic asylum which was built on said land, and in the course of the trial contended that the sale under the decree in the chancery suit was void, inasmuch as the only way in which land of a deceased person can be sold in Nova Scotia is by petition to the Governor in Council. The validity of the mortgages and of the proceedings in the fore- closure suit were also attacked. The action was tried before a judge without a jury, and a verdict was found for the defendants, which verdict the Supreme Court of Nova Scotia refused to disturb. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the court below, that even if the sale under the decree in the chancery suit was invalid, the title to the land would be outstanding in the mortgagee or those claiming under her, and the. plaintiff, therefore could not recover in an action of ejectment. SembU, that such sale was not invalid, but passed a good title. Henry, J., dubitaiite. Held, also, that the statute c. 30, s. 47 R. S., 4th series, vested the said land in the defendants, if they had net a title to the same before. Henry, J., dubitantc. Appeal dismissed with costs. Kearney v. Creelman. — 17th February, 18SG — xiv. 83. 18. Wurranty (((jalnst charijes and inciiinhraiiices — Promwe to pay tvithoiit reserve, by subsequent deed, ivith knowledge of assessments — Interest, agreement as to compensation. On the 28th June, J ^77, the appellants entered into an agreement before Hunter, N. P., by whic'i. without any reserve, they acknowledged to owe, and promised to pay certain sums of money amongst others to Mrs. L., transferee of one of the vendnrs, who, on the 3rd April, 1873, sold the Windsor Hotel property in Montreal to the appellants, and by the same deed Mrs. L. agreed 788 Sale of Lands — Continued. to asaist the appellants, in obtaining a loan of §350,000, and to relinquisli the priority of her hypothec for her share on the property, to extend to six yeara the period for the payment of the balance due her, waiving also any right to interest until the appellant's company had an available surplus after paying interest and insurance in connection with the new loan. Subsequently, on 15th June, 1880, Mrs. L., by notarial deed, transferred to the respondent the balance alleged to be due her under the deed of the 28th June, 1877, and the respondent brought an action to recover this balance with interest from Ist July, 1877, to the loth December, 1885, date of the action. To this action the appellants pleaded, niter alia, that under the deed of the 28th June, 1877, interest could be demanded only from the Ist July, 1881, the secretary of the company having on said date testified for the first time there was an available surplus ; and also that both principal and interest were compensated by the sum of §1,001.70 paid the city for assessments imposed under -42 and 43 V. c. 53, ^P.Q.), for the cost of public improvements made in the vicinity of the property prior to the sale of the property to the company in 1875. The assess- ment rolls originally made for these improvements were set aside by two judg- ments in 1876 and 1879. Held, affirming the judgment of the court below, that under tlie circumstances the respondent could not bo said to be the ijarant of tiie purchasers of the said property, and therefore he was entitled to the pay- ment of the balance alleged to be due under the deed of the 28th June, 1877, notwithstanding any cl<\im the appellants might have against their vendors under the general warranty stipulated in the deed of purcliase of April, 1875. Held, also, that by the terms of the deed of the 28th of July, 1877, interest could be recovered only from the Ist of June, 1881. Windsor Hotel Co. v. Cross.— xii. 624. 19. Voluntary fctyinent by piirckaaer — Lien of third imrty — Application of proceeds of sale — Interpleader act — Lamh taken or sold under execution. Where the purchaser of land voluntarily paid to the sheriff the amount of an execution in his hands in a bond fide belief that it was a charge upon the land. Held, that a party having a lien on said lands could not, under the Inter- pleader Act, claim the money so paid to the sheriff as against the execution creditor, even where he had relinquished his title to the land to enable the owner to carry out the said sale, and was to receive a portion of the purchase money. Semble, that as the lands were neither " taken nor sold under execution." the case was not within the Interpleader Act. Federal Bank of Canada v. Canadian Bank of Commerce.— xiii. 384. 20. Subject to mortgage — Absolute sale — Sale of equity of redemp- tion — Consideration in deed. B. sold to C. land mortgaged to a loan society. The consideration in the deed was $1,400 and the sum of ?104 was paid to B. C. afterwards paid 789 Sale of Lands — Cimtimied. §1,081 and obtained a dischartje of the morts^age. B. brought an action to recover the balance of the difference between the amount paid the society and said sum of $1,400, and on the trial he testified that he intended to sell the land for a fixed price ; that he had been informed by W., father-in-law of C, that there would be about SHOO cominji to him ; that he had demurred to the accept- ance of the sum offered, $104, but was informed by C. and the lawyer's clerk, who drew the deed, that they had figured it out and that was all that would be due him after paying «he mortgage ; that he was incapable of figuring it himself and accepted it _ .. this representation. C. claimed that the transac- tion was only a purchase by him of the equity of redemption, and that B. had accepted $104 in full for the same. Held, reversing the judgment of the Court of Appeal, Taschereau and Gwynne, J J., dissenting, that the weight of evidence was in favour of the claim made by B., tliat the transaction was an absolute sale of the land for §1,400; and independently of that, the deed itself would be sufficient evidence to sup- port such claim in the absence of satisfactory proof of fraud or mistake. Burgess y. Conway.— xiv. 90. 21. Sale a rc'mi'rc- — Term — Notice — Mine en demeure — Res judicata. Held, affirming the judgment of the court below, where the right of redemption stipulated by the seller entitled him to take back the property sold within three montlis from the day the purchaser should have finished a com- pleted house in course of construction on the property sold, it was the duty of the purchaser to notifj' the vendor of the completion of the house, and in default of such notice, the right of redemption might be exercised after the expiration of the three months. Tliere was no chose jugee between the parties by the dismissal of a prior action on the ground that the time to exercise the right of redemption had not arrived, and the conditions stipulated had not been complied with. Leger y. Fournier. — xiv. 314. 22. Unknown quantity — Sold hy the acre — Words "more or less" — Executors — Breach of trust. The executors of an estate were authorized by the will to sell such portion of the real estate as they in their discretion should think necessary to pay off a mortgage and such debts as the personal estate would not discharge. They offered f(jr sale at auction a lot described as sixty acres (more or less) section 78, Loch End Farm, Victoria District, and giving the boundaries on three sides. The lot was unsurveyed and was offered for sale by the acre, an upset price of $35 being fixed. By the conditions of sale a survey was to be made after the sale at the joint expense of vendors and purchaser. S. purchased the lot for ^cT per acre and on being surveyed it was found to contain 117 acres. The executors refused to convey that quantity, alleging that only some $'2,000 was required to pay the debts of the estate, and refused to execute a deed of the 117 acres tendered by S. In a suit by S. for specific performance of the contract for sale of the whole lot. 790 Sale of Lands — Continued. .:..».'•. Held, reversing the judgment of the conrt below and restoring that of the judge on the liearinL', Gwynne, J., diasenting, that S. was entitled to a convey- ance of the 117 acres, and that the executors would not be guilty of a breach of trust in conveying that quantity. ; Sea v. McLean. — xiv. 632. 2S. Vendor's lien — Sale of hind — Notice. W. S. agreed to transfer his timber limits to W. A. S. in case the latter shoul'l, within two years, pay off a mortgage to R. and other liabilities, and in case W. S. was obliged to pay any of such liabilities he was at liberty to sell such portion of said limits as would recoup him. At the same time W. S. wrote to R., authorizing him to transfer to W. A. S. said lands which he held as security on payment of his claim. R. assigned his claim and the limits to B. who, by agreement with W. A. S. and the executors of W. S. continued to carry on the lumber business formerly owned by W. S. Certain of the liabilities of W. S. not having been paid his estate claimed a vendor's lien on such limits, and relied on the letter to R. , and on notice to an attorney who pre- pared the agreement with B. to establish notice of such lien in B. Held, affirming the judgment of the court below, that even if such lien existed B. could not be said to be affected with notice of it. , ; Scott y. Benedict. — xiv. 735. 24. Purchase of land — Joint negotiations — Deed to one only — Evidence — Residting trust. McK. & S. jointly negotiated for the purchase of land, and a deed was given to S. alone, a portion of the purchase money being secured by the joint notes of McK. & S. In an action by S. to have it declared that McK. had no interest in the property ; Held, reversing tlie judgment of the court below, and confirming the judg- ment of the trial judge, Henry, J., dissenting, that the evidence greatly pre- ponderated in favour of the contention of McK. that the purchase was a joint one by himself and S. Held, also, that S. being liable for an ascertained portion of the purchase money there was a resulting trust in his favour for his interest in the land. McKercher y. Sanderson. — xv. 296. 25. By wife to secure debt of her husband — Simulated deeds — Art. 1301, C.C. (P.Q.). See HUSBAND AND WIFE, 5. . , 26. Judgment in licitation — Binding on parties to it — Constitu- tionality of an act of incorpondion of company — Vendor to company estopped from questioning validity of The Island of Anticosti, held in joint ownership by a number of people, ~ was sold by licitation for !8]01,000. The report of distribution allotted to G. B. (plaintiff) $16,578.66, for his share, as owner of one-sixth of the island 791 Sale of Lands — Continued. acquired from the Island of Anticosti Company, who had previously acquired one-sixth from Dame C. Langan, widow of H. 'r. Forsyth. The respondent's claim was disputed by the appellant, the daughter and legal representative of Dame C. Langan, alleging that the sale by her through her attorney, W. L. F., of the one-sixth to the Anticosti Company was a nullity, because the act incorporating the company was ultra vires of the Dominion Government, and that the sale by W. L. F., as attorney for his mother, to himself, as represent- ing the Anticosti Company, was not valid. The Anticosti Company was one of the defendants in the action for licitation, and the appellant an inter- vening part : no proceedings were taken by the appellant prior to judgment, attacking either the constitutionality of the Island of Anticosti Company's charter or the status of the plaintiff, now respondent. Held, afiBrming the judgment of the court below, Ritchie, C. J., and Gwynne, J., dissenting, that as Dame C. Langan had herself recognized the existence of the company, and as the appellant, her legal representative, was a party to the suit ordering the licitation of the property, she the appellant, could not now on a report of distribution, raise the constitutional question as to the validity of the Act of Dominion Parliament constituting the company, and was now estopped from claiming the right of setting aside the deed of sale, for wliich her mother had received good and valuable consideration. Forsyth y. Bury. — xv. 343. [Leave to apppeal was refused by the Judicial Committee of the Privy Council. .^Vt' Canadian Gazette, Vol. xi., p. 418J. 27. Contract — Rescission of — Setting aside conveyance of lend — Misrepresentation— Matters of title— Fraud — Action for deceit— Evidence. A party who seeks to set aside a conveyance of land executed in pursuance of a contract of sale, for misrepresentation relating to a matter of title, is bound to establish fraud to the same extent and degree as a plaintiff in an action for deceit. B. bought land described as "two parcels containing 18 acres more or less," and afterwards brought an action for rescission of his contract, on the grounds that he believed he was buying the who?e lot offered for sale, being some 25 acres, and that the vendor had falsely r^ipresented the land sold as e.xteuding to th-j river front. The evidence on the trial showed that B. had knowledge, before his purchase, that a portion of the lot had been sold. Held, aittrming the judgment of the court below, that even if B. was not fully aware thatithe portion so sold was that bordering on the river front, the knowledge he had was sufficient to put him on inquiry as to its situation, and he could not recover on the ground of misrepresentation. Bell Y. Macklin. — xv. .57^) 28. Sale by slierifF — Seizure su2yer non possidente — Art. 6 »Si 32, C. C. P., (P.Q.)— Registration of real rights— Art. 2091, C.C. See SHERIFF, 10. 792 Sale of Lands — Continued. ' 29. Stdtiiti' of frauds — Mdtters for futitre arrangement — Sale of land or of equity of redenvptlon. L. signed a document by which he agreed to sell certain property to W. for $4'2,500, and W. signed- an agreement to purchase the same, The document signed by W. stated that the property was to be purchased " subject to the in- cumbrances tliereon." With this exception the papers were, in substance, the same, and each contained at tlieend this clause: "terms and deeds, etc., to be arranged by the 1st of May next." On the day that these papers were signed L., on request of W.'s solicitor, to have the terms of sale put in writing, added to the one signed by him the following: "Terms, $500 cash this day, $500 on delivery of the deed of the Parker property, $800 with interest every three months until the six thousand five hundred dollars are paid, when the deed of the entire property will be executed." The property mentioned in these documents was, with other property of L., mortgaged for $30,000. W. paid two sums of $500 and demanded a deed of the Parker property, which was refused. In an action against L. for specific performance of the above agreement, the defendant set up a verbal agreement that before a deed was given the other property of L. was to be released from the mortgage, and also pleaded the Statute of Frauds. Held, affirming the judgment of the court below, Patterson, J., doubting, that there was no completed agreement in writing to satisfy the Statute of Frauds. Per Ritchie, C.J., the agreement only provides for payment of $6,500 leaving the greater part of the purchase money unprovided for. If W. was to assume the mortgage it was necessary to provide for the release of L.'s other property and for matters in relation to the leasehold property. Per Strong, J., the agreement was for sale of an equity of redemption only and as questions would arise in future as to release of L.'s other property from the mortgage and his indemnity from personal liability to the mortgagee, which , should have formed part of the preliminary agreement, specific performance could not be decreed, Williston Y. Lawson. — xix. G73. 30. Uii])aid taxes — Irregular assessment — Validating Act — Nul- lity. See ASSESSMENT AND TAXES, 24. 31. Sale in trust — Conditions to be performed by cestui que trust — Failure of — Revocation. See TRUSTS AND TRUSTEES, 21. 32. Specific performance— Contract — Absolute deed of land — Un- disclosed trust — Deed in name of third patry — Collusion — Statute of Frauds. See SPECIFIC PERFORMANCE, 5. 798 Sale of Lands— '''>«<'""<'(/. S3. Land, sale of —Deliver >/ to (Kjcoi — Pleadiwi — Arts. 1501, 150 J, a a S. T. brought an action to recover f>3,'200 as balmiceol; the purchase money of certain lands in Quebec sold by him to the N. S. li Co. To this action the railway company pleaded by temporary e>:ception that out of i!,307 superficial feet sold to them, S. T. never delivei-ed 710 feet, and that so lon^ as the full quantity purchased was not delivered they were not hound to pay. To this plea S. T. replied specially that he delivered {ill the land sold to P. B. V., the aijent of the company with their assent and approbation, to<4ether with other land sold to said P. B. V. at the same time. At the trial it v,-as shown that P. B. V. had purchased all the lands owned by 8. T. in that locality but exacted two deeds of sale, one of 3,307 feet for the Railway Company, and another of the balance of the property for himself. By the deed to P. B. V. his land is bounded by tliat previously sold to the company. P. B. V. took possession and the railway company fenced in what they rerjuired. Held, affirming the judj^ments of the Court of Queen's Bench for (L. C), that S. T. havin-,' » of thc^ jiiri((}. after leaving her by his will a much smaller uum than his daughters received, and she brouj^ht an action against the executors for specilic performance of the agreement to provide for her as amply as for the daughters, or, in the alternative, for payment for her services during the eleven years. On the trial of the action ft was proved that S., while living with her grandfather, had performed such services as tending cattle, doing field work, managing a reaping machine, and breaking in and driving wild and ungovernable horses. Held, reversing the decision of the Court of Appeal for Ontario, tliat the alleged agreement to provide for S. by will was not one of whicli the court could decree specific performance. But Held, further, that S. was entitled to remuneration for her services and §1,000 was not too much to allow her. Appeal dismissed with costs and decree varied. McOugan v. Smith.— xxi. 203. 7. Contract for exchange of lands — Time for completion — Exten- sion — Rescission — Conduct of party seeking relief. The exercise of the jurisdiction to order specific performance of a contract is a matter of judicial discretion, to be governed, as far as possible, by fixed rules and principles, but more elastic than in the administration of other judicial remedies. In the exercise of the remedy much regard is shown to the conduct of the person seeking relief. H. and R. agreed to exchange land, and the agreement, which was in the form of a letjcr written by H. proposing the exchange, the terms of which K. accepted, provided that the matter was to be closed in ten days if possible. R. at the time had no title to the property he was to transfer, but was negotiating for it. Nearly four months after the date of the agreement the matter was still unsettled, and a letter was written by H. to R.'s solicitor notifying him that unless something was done by the next morning the agreement would be null and void. Prior to this there had been several interviews between the parties and their solicitoi's, in which it was pointed out to R. that there were difficuitits in the way of his getting a title to the land he proposed to transfer ; that there was no registry of the contract which formed the title of tlio man who was to convey to him, and that the lands were subject to an annuity; R., however, took no active steps to get the difficulties removed until after the abov-e letter was written, when he brought an action against the proposed vendor nud obtained a decree declaring his title good. He then brought suit against II. for specific performance of the contract for exchange. Held, reversing the judgment of the Court of Appeal for Ontiirio' Taschereau, J., dissenting, that the action could not be maintained ; that B. not having title when the agreement was made, H. could rescind the contract without giving reasonable notice of his intention, as he would be bound to do if the title were merely imperfect ; that the letter to the solicitor was snfli- cient to put an end to the bargain; and that even if there had been no rescis- sion the conduct of R. in relation to the completion of the contract was such as to disentitle to relief by way of specific performance. 815 Specific P eriormsince— Cuntiniml . Held, also, aflirmin« in this respect the judf,'ment of the courts below, that time was orif^inally of the essence of the contract, but there was a waiver by H. of a compliance with the provision as to time by entering into negotiations as to the title after its expiration. Harris Y. Robinson.— xxi. 3'.)0. Stamps — On bill of exchange — Plea of want of. See BILLS OF EXCHANGE AND PROMISSORY NOTES, 2, G. Statute — Declaration by — Customs duties — Articles imported in parts — Subseq uent imposition of duty. The several parts of an article called an " Automatic Sprinkler" were manufactured in the United States and imported into Canada where they were put together. The Crown sought to collect duty on such parts according to the value of the complete article. There was no duty imposed on parts of an article at the time the information was laid. Held, that the subsequent passage of an Act, 48 & 49 V. c. (51, s. 12, re- enacted by 41) v. c. 32, s. 11, imposing a duty ou such parts was a legislative declaration that it did not previously exist. But nee now 53 V. c. 7, (D.) Grinnell v. The Queen. — xvi. 11!). 2. RaUioay Co. — Hpecud Act — Restrictive provisions — By-law — Bonus — Defects of forn i. The Act incorporating a railway company contained provisions respecting bonuses granted to it by municipalities not found in the Municipal Act. Held, that such special Act was not restrictive of the Municipal Act and it was only necessary that the provisions of the latter should be followed to pass a valid by-law granting such a bonus. Held, also, that all defects of form in the by-law were cured by 44 V. c. 24, s. 28, providing for registry of by-laws and requiring an application to quash to be made within three months after such registry, Bickford v. Town of Chatham. — xvi. 235. And >!ee RAILWAYS AND RAILWAY COMPANIES, 42. 3. Construction of — New Brunswick Liquor License Act, 1687 — Constitutionality of — Prohibition of sale of liquor — Grant- ing a license — Powers of Mayor of a city — Disqualifying liquor sellers — FJfect of. The New Brunswick Liquor License Act, 1887, provides that " all applica- tions for license, other than in cities and incorporated towns, shall be presented at the annual meeting of the council of the municipality and shall then be taken into consideration, and in cities and incorporated towns at a meeting to be held not later than the first day of April, in each and every j'ear." The interpretation clause provides that in the City of St. John the expression " council " means the mayor, who has the powers given to a muncipal council. It is also provided that when anything is required to be done at, on or before 816 Statute — ' 'ontinucd. 0. meetint^ of council, and no other date is fixed therefor, the mayor may fix the date for doin^^ the Bame in the city of St. John. Held, affirming the judj'ment of the court below, that the provision re- quiriuf? licenses to be taken into consideration not later than the first day of April is directory only, and licenses granted in St. John are not invalid by reason of the same being grantetl after that date. Held, per Gwynne, J., that this provision does not apply to the city of St. Joliii. Applications for licenses under the Act must be endorsed by the certificate of one-third of the ratepayers of the district for which the license is asked. No bolder of a license can be a member of the municipal council, a justice of the peace, or a teacher in the public schools. Held, that the legislature could properly impose these conditions to the obtaining of a license, and the provision is not ultra vires the local legislature as being a prohibitory measure by reason of the ratepayers being able to prevent any licenses being issued ; nor is it a measure in restraint of trade by affixing a stigma to the business of selling liquor. Danaher y. Peters ; O'Regan y. Peters.— xvii. 44. 4. Construction of — Assignment for benefit of creditors — Costs of execution creditors — Lien — Ontario Judicature Act, 1881, s. 13 — Validity of — Appeal. Sec ASSIGNMENT, 13. LEGISLATURE, 17. 5. Halifax City Assessment Act, 1883—46 V. c. 28, (X.S)— Sale of land under — Etl'ect of — Healing clauses — Lien — Priority over mortgage made before Act passed. See ASSESSMENT AND TAXES, 19. LIEN, J. 6. 36 V. c. 3, amended hy 35 V. c. 52 (Man.) — Setting aside letters patent — Error and improvidence. In an action to set aside letters patent for error and improvidence under the Manitoba Act, 35 V. c. H, amended by c. 52. Held, per Patterson, J.— That in the construction of the statute effect must be given to the term improvidence as meaning something distinct from fraud or error; letters patent may, therefore, be held to have been issued improvidently if issued in ignorance of a substantial claim by persons other than the patentee to the land which, if it had been known, would have been investigated and passed upon before the patent issued ; and it is not the duty of the court to form a definite opinion as to the relative strength of opposing claims. Fonseca y. Attorney-General of Canada.— xvii. 612. See LETTERS PATENT, 2. ., ^ . 817 Statute — Continued. 7. Prerogative of Crown — Interference with — R. S. C. c. 120, s. 79. Tlie Crown prerogatives can only be taken away by express statutory enactment. Therefore, Her Majesty's ri^ht to payment in full of a claim against the assets of an insolvent bank in priority to all other creditors is not interfered with by the provisions of the Bank Act (R. S. C. c. 120, s. 79), giving note-liolders a first lien on such assets, the crown not being na ned in such enactment. Gwynno and Patterson, JJ., contra. The Maritime Bank y. The Queen.— xvii. 657. Sec CROWN, 21. 8. Construction of— R. 8. 0. (1887) c. 124, s. 2— Assignment for benefit of creditors — Preference — Pressure. See ASSIGNMENT, 15. 9. Repeal— R. S. N. S. 4 Ser. c. -29—42 V. c. 1, s. 67 (N.S.)-Boards of health. S. 07 of the Act by which municipal corporations were established in Nova Scotia (4'2 V. c. 1) f,'iving them the appointment of health officers . . and a beard of health'' with the powers and authorities formerly vested in courts of sessions, does not repeal c. 2!( of R. S. N. S. 4th ser. providing for the appointment of boards of health by the Lie itenant-Governor in Council. Ritchie, C. J., doubting the authority of the Lieutenant-Governor to appoint in incorporated counties. Municipality of the County of Cape Breton v. McKay. — xviii. 639. And .vf,' MUNICIPAL CORPORATION, U. 10. Statute — Repeal of — ReMoration of former law — Distribution of intestate estate — Feme coverte — Husband's right to resi- duuTii — Xe.d of kin. The Legislature of New Brunswick, by 26 Geo. III. c. 11, ss. 14 & 17, re- enacted the Imperial Act, 22 & 23 Car. 2, c. 10 (Statute of Distributions) as explained by s. 25, Cur. 2, c. 3 (Statute of Frauds), which provided that nothing in the former Act should be construed to extend to estates of femes coverlet dying intestate, but that their husbands should enjoy their personal estate as theretofore. When the statutes of New Brunswick were revised in 1854 the Act, 26 Geo. III. c. 11, was re-enacted, but s. 17, corresponding to a. 25 of the Statute of Frauds, was omitted. In the administration of the estate of a feme coverte her next of kin claimed the personalty on the ground that the husband's rights were swept away by this omission. Held, that the personal property passed to the husband and not to the next of kin of the wife. Per Strong, J.— The repeal by the R. S. of 26 Geo. III. c. 11, which was passed in affirmance of the Imperial Acts, operated to restore s. 25 of the Statute of Frauds as part of the common law of New Brunswick, CAS. DIG. — 52 818 Statute — Continui'il. Per Gwynne, J. — When a colonial lef^islature re-enacts an Imperial Act it enacts it as interpreted by the Imperial courts, and a tortiori by other Imperial Acts. Hence, when the Enj^lish Statute of Distributions was re-enacted by 26 Geo. III. c. II (N.B.), it was not necessary to enact the interpretation section of the Statute of Frauds, and its omission in the llevised Statutes did not affect the construction to be ^lut upon the whole Act. Held, per Ritchie, C.J., Fournier, Gwynne and Patterson, JJ., that the Married Woman's Property Act of New Brunswick (C. S. N. B. c. 72), wliich exempts the separate property of a married woman from liability for her hus- band's debts and prohibits any dealing; vvith it without her consent, only suspends the husband's rights in the property during coverture, and on the death of the wife he takes the personal property as he would if the Act had never been passed. Lamb v. Cleveland. -xix. 78. 11. Construction of— 49 V. c. 45, s. 2 (Man.)— Transfer of personal property — Preference — Pressure — Intent. See ASSIGNMENT, 21. 12. Lands of tlie C. P. Ry. Co.— Charter of company— Exemption " until sold or occupied " — Exemption before patent issues. See ASSESSMENT AND TAXES, 23. 13. Construction of— Manitoba Libel Act, 50 V. c. 22— Manitoba Newspaper Act, 50 V. c. 23— Authority to publish newspapers — Deposit of affidavit or affirmation. See LIBEL, (5. NEWSPAPER. 14. Construction of —Municipal taxation — Sale for taxes — Validat- ing Act. See ASSESSMENT AND TAXES, 24. 15. Application of— Negligence of servant — Crown — Liability of —U V. c. 25— K k G. c. 38—60-61 V. c. 16, s. 18— Retro- active operation. Held, reversing the judgment of the Exchequer Court, that even assuming 50-51 V. c. IG gives an action against the Crown for an injury to the person received on a public work resulting from negligence of which its officer or ser- vant is guilty (upon which point the court expresses no opinion), such act is not retroactive in its effect and gives no right of action for injuries received prior to the passing of the Act. •^ The Queen y. Martin.— xx. 240. 16. 43 V. c. 8— Construction of Government railways— Injury by overflow of water. See CROWN, 30. 810 Statute — Continued. 17. Maintenance of county buildings— Establishment of county court house and jail— Right to renujve from shire town — R. S. (N.S.) oth Her. c. 20, .s. 1, as amended by 4(7 V. c. 11. See MUNICIPAL CORTORATIONS, 22. 18. K. S. O. (1887) c. 159 (General Road Companies Act)— 53 V. c. 42 — Application to company incorporated by special charter. See CORPORATIONS, 49. 19. As to effect* of recital in private Act, and distinction between public and private Acts. Corporation of the City of Quebec v. Quebec Central Ry. Co.-x. 563. Statute of Frauds— Bill for redemption— Absolute deed— Parol evidence to show that it was to take effect as a mortgage, held admissible— Evidence of plaintiff uncorroborated in- sufficient— 36 V. c. 10 (Out.). See MORTGAGE, 8. 2. Deed of land— Dispute as to joint interest— Trust account. See SALE OF LANDS, 7. 3. Vendor and purchaser — Specific performance — Contract not signed by vendor, and subseciuently admitted by his letters. See SALE OF LANDS, 10. 4. Boundaries — Agreement as to, whether executed or executory —Plan signed by adjoining proprietors — Purcliaser for value without notice— Discretionary jurisdiction of Court of Equity. See BOUNDARY, 2. 5. Contract, parol evidence to establish, when admissible— As to whether a mem. in writing contained tlie terms of agree- ment, a (jucstion foi- jury— Damages — Connnon counts. See SALE OF GOODS, 10. 6. Contract relating to interest in land— Part per forynancc. B., a resident of Britisli Columbia, wrote to his sister, in England, that he would like one of her children to come out to him, and in a second letter he said, " I want to f,'et some relation here, for what pro[)orty I have, in case of sudden death, would be eat up by outsiders, and my relations would get noth- 820 Statute of Frauds— Coh^/m !<('(/. ing. " On liearinj,' the contentB of these letters T., a son of B.'s sister and a coal miner in Enf^land, came to British Columbia and lived with B. for six years. All that time he worked on B.'s farm and received a share of the profits. After tiiat he went to work in a coal mine in Idaho. While there he received a letter from B. contaiuinjj the following : " I want you to come at once as I am very bad. I really do not know if ] shall f^et over it or not and you had better hurry up and come to me at once, for I want you and I dare say you will f^uess tlie reason why. If anything should happen to me you are the person who should be here." On receipt of this letter, T. immediately started for tlie farm, but B. had died and was buried before he reached it. After his return he received the following telegram which had not reached him before he left for home : " Come at once if you wish to see me alive, property is yours. Answer immediately. (Sgd.) B." Under these circumstances, T. claimed the farm and stock of B. and brought suit for specific performance of an alleged agreement by B. that the same should belong to him at B.'s death. Held, afiirming the judgmentof the court below, that as there was no agree- ment ill writing for tlie transfer of the property to T.,aiid the facts shown were not sufficient to constitute a part performance of such agreement, the fourth section of the Statute of Frauds was not complied with, and no performance of the contract could be decreed. Turner v. Prevost. — xvii. 283. 7. Contract — Matters for future arrangement — Terms, deeds, etc., to be arrani^ed by Lst of May next — Sale of land. See SALE OF LAJJDS, 29. 8. Contract — Deed of land — Undiscloned. trust — Deed in name of third parti/ — Specific performance. M. agreed by written contract to give to B. an absolute deed of property as security for a loan, the same to be held by B. in trust for the time the loan was to run. By B.'s directions the deed was made out in his daughter's name. The daughter having claimed that she purchased the property abso- lutely, and for her own benefit, an action was brought by M. against her and B. for specific performance of contract with B. and for a declaration that the daughter was a trustee only subject to the repayment of the loan. The defend- ants denied the allegation of collusion and conspiracy charged in the statement of clann and pleaded the Statute of Frauds. Held, Strong, J., dissenting, that the evidence showed that the daughter was aware of the agreement made with B., and the Statute of Frauds did not prevent parol evidence being given of such agreement. Barton v. McMillan.— xx. 404. Statute of Limitations. See LIMITATIONS, ' • POSSESSION. , ' , Stenographer. See SHORTHAND WRITER. 821 Stock — In buikliiif^ society — Transfer — By-law — Indebtedness to society — Security. See BY-LAW, 18. INSOLVENCY, 27. 2. Transfer of " in trust " — Duty of transferee to make inquiry. See TRUSTS AND TRUSTEES, 14, 18, 20, 23. Stoppage in transitu— (rootZs in bond. The appellantB, merchants in New York, sold to E. B. & Co., at Toronto, 250 barrels of currants on credit, and consigned the same in bond. A bill of lading; thereof was duly received by E. B. & Co., who paid the freight thereon and gave their acceptance for tlie price of the said goods, as well as for the cartage and American bonding charges. The goodR, on arrival, were entered and bonded in t'-e consignee's name, and placed in one of the customs bonded warehouses subject to the payment of tho duties. E. B. & Co. sold and delivered 150 barrels, and the remaining 100 barrels were bonded under 31 V. c. G, (D.), in a portion of E. B. & Co.'s warehouse, partitioned off and used by the customs authorities. Before the acceptances matured, and while a portion of the goods remamed in bond, E. B. i& Co. became insolvent. Held, affirming judgment of the Court of Error and Appeal, Ontario, that the trannitus was at an end, and that the appellants had lost the right to stop the goods remaining iii bond. Howell V. Alport, 12 U. C. C. P. 375, and Grahavi v. Smith, 27 U. C. C. P. 1, overruled. Wiley Y. Smith.— ii. 1. 2. Bill of lading, assignment of — Property in goods under replevin. See BILL OF LADING, 3. Streams — R S. 0. c. 115, s. 1, constmction of — Non-Jloatable streams — Private property. By the decree of the Court of Chancery for Ontario, the respondents were restrained from driving logs through, or otherwise interfering with a certain stream, where it p«ssed tlnough the lands of the appellant, and which portion of said stream was artificially improved by him so as to float saw logs, but was found by the learned judge at the trial not to have been navigable or floatable for saw logs or other timber, rafts and crafts, when in a state of nature. The Court of Appeal reversed this decree, on the ground that C. S. U. C. c. 48, s. 15, re-enacted by R. S. O. c. 115, s. 1, made all streams, whether naturally or artificially floatable, public waterways. Held, reversing the judgment of the Court of Appeal and restoring the decree of the Court of Chancery, that the learned Vice-Chancellor who tried the case, having determined that upon the evidence adduced before him, the slream at the locus m quo, when in a state of nature, was not floatable without the aid of artificial improvements, and such finding being supported by the evidence in the case, the appellant had, at common law, the exclusive right to use his property as he pleased, and to prevent respondents from using as a 822 Streams — Continued. lii{^liway the stream in question where it flowed throuj^h appellant's privat« property. Held, also (approving of Uoale v. Dickton, I'd U. C. C. P. 337), that the C. S. U. C. c. 48, 9. 15, re-enacted by the 11. S. O. c. 115, s. 1, which enacts that it shall be lawful for all persons to float saw loj^s and other timber, rafts and crafts down all streams in Upper Canada, durinf^ the sprinj^, summer anil autumn freshets, etc., extends only to such streams as would, in their natnriil state, without improvements, durinf^ freshets, permit saw lo«9, timber, etc., to be floated down them, and that the portions of the stream in (luestion, where it passes through the appellant's land, were not within the said statute, [The Privy Council has reversed the decision of the Supreme Court and restored the judgment of the Court of Appeal, i) App. Cases 302] , McLaren v. Caldwell.— viii. 435. Streets — Of city of Halifax, duty of corporation to keep in repair. See CORPORATIONS, 18. 2. Of city of Quebec — Authority to Nortli Sliore Railway Com- pany to use — Non-liability of corporation. See CORPORATIONS, 21. .3. Of town of Portland, N.B. — Lialjility for defect in sidewalk. See CORPORATIONS, 23. 4. Municipal corporation — Construction of crossing above level of street — Negligence. See MUNICIPAL CORPORATION, 10. 5. Municipal corpoi'ation — Statutory powers — Control over streets — Alteration of grade — Negligence — 34 V. c. 11 (N.B.) — 45 V. c. Gl (N.B.). See MUNICIPAL CORPORATION, 15. 6. Municipal corporation, duty of, to light streets — Liability for negligence — Position of hydrant — Obstruction of sidewalk. See MUNICIPAL CORPORATION, 20. 7. Municipal corporation — Improvement or alteration of sti'eet — Lowering grade — Injury to adjacent land — Compensation under — Statutory provisions — 51 V. c. 42, &. 190, (B.C.). See MUNICIPAL CORPORATION, 21. 8. Municipal corporation — Control over streets — Duty to repair- Transferred powers — Negligence — Notice of action — Insuffi- ciency of not pleaded— 34 V. c. 11, (N.B.) 25 V. c. 16, (N.B.'. See MUNICIPAL CORPORATION, 25. 823 Subrogation — Conventional — What tvill effect Art. 1155, a. 2 — Eifoneous noting of deed by registrar. No formal or express declaration of Bubrogation is required under Art. 1155, 8. 2, C.C., when the debtor borrowing the Hum of money doclarea in hie deed of loan that it is for the purpose of payinj^ his debts, and in the acquittance he declares that the payment has been made with the moneys furnished by the new creditor for that purpose. Where subrofjation is given by the terms of a deed the erroneous noting of the deed by the registrar as a dischar^^e, and the f^ranting by him of erroneoua oertifioateB, oannot prejudice the party subrogated. Owens Y. Bedell.— xix. 137. Substitution — Ri^'ht of subatitutes wlien .suUstitutiou open, to attack deed given for in.sufficient consideration. See DEED, 3. 2. Action by substitute against institute for detaching property. See WILL, 10. 3. Substitution, curator to — Rights of action — Intervention by a jdaintif in another capacity when irregular — Art. 154; cap. Held, aflirming the judgment of the court below, that a curator to a substitution has no right of action to recover from a curator in whose stead he has been appointed any monies due by the latter and belonf^ing to institutes. Also, that an assignee of the institutes has no right to intervene in an action brou^^ht by said assignee in his capacity of curator to tlie substitution, and in which no final judgment could have been obtained which could impair the legal rights of the institutes. Scinble. — \n intervention filed when the action has been heard on the merits and the case is en deliherc is irregular. Dorion y. Dorion.— 8th March, 188G.— xiii. Wi. 4. Minors — Tutor ad hoc — Intervention — Status— Arts. 269, 945, C. C. See TUTOR AND MINOR, 2. 5. Bank shares — Dividends — Intervention — Ees jiulicata. See JUDGMENT, 11. . 6. Substituted property — Pledge of shares by one of the gr/vcs — The shares lield in trust — Payment by curator with full knowledge of facts — Gondictio indebiti — Registration — Arts. 931, 938, 939, 1047, 1048, C. C. See TRUSTS AND TRUSTEES, 20. 824 Substitution — Continued. ,^. . . - 7. Curator to — Action to account — Divisibility of. See ACCOUNT, 6. WILL, 21. Succession — AceepUince of an insinlvent succemion — Whev ob- tained by fraud— Notary, duty of — Arts. 646, 650, C. C. (P.Q.) — Appe■, ■ ' ,,,-■■■' . = ,- S«e BANKS AND BANKING, 4. . 825 Supreme and Exchequer Courts Acts— 5-9 V. c. 11— Construc- tion of s. 17. The court of last resort in Prince Edward Island is the Supreme Court of Judicature in tliat province. Kelly v. Sullivan.— i. 1. 2. Construction of — " Sum or value in dispute " in appeals from Province of Quebec. ■sm jurisdiction. 3. Construction of s. 22, .IS V. c. 11. Held, under s. 22 of the Supreme and Exchequer Court Act, no appeal lies from the judgment of a court granting a new trial, on the ground that the verdict was against the weight of evidence, that being a matter of discretion. Boak V. The Merchants' Marine Ins. Co.— i. 111. [But get; S. C. A. Act 1880. h. 4, and the R. S. G. c. 135, s. 21, par. (-sin stock — Liability of sureties of cashier. See BANKS AND BANKING, 14. 3. Bank taking forged paper in renewal of notes — Release of surety. See BANKS AND BANKING, in. 4. Execution of bond by Government official for faithful discharge of his duties — Evidence of execution — Proximate cause of acceptance by Crown — Estoppel. See EVIDENCE, 35. 6. Surety — Endorsement of note — Agreement for commission — Failure to discount — Right to enforce agreement. See CONTRACT, H). 6. Embezzlement of bank funds — Bond given by surety to stifle prosecution — Illegal consideration. See CONTRACT, 57. Surveyors — Di.sputes as to bcjundary— Reference to surveyors — Duties of, under reference. See BOUNDARY, 5. Synod — By-law of — Alteration of application of Commutation Fund. See COMMUTATION FUND. * 827 # ' , T. Tariff. See CUSTOMS DUTIES. Tax — On tmnaient inortjiants, triiJor.s, etc. See LICENSE. 2. Upon tilin',^s in court— 43 & 44 V. c. 9, s. 9 (Q.). See LEGISLATURE, 7. 3. Non-liability of Crown for. See ASSESSMENT AND TAXES, 12, 24. PETITION OF RIGHT, 21. Telegraph Company — ^iiability of for message. See LIBEL. 2. Erection of line — Ri<^ht to cut trees. See TRESPASS, 7. Telephone — Service — Transmission of message — Use of wire. See CONTRACT, 54. Tenants in Common — Xon-joinder of tenants in common a» plaintifs in action for use and occupation — Mesne profits. C. O. H. ami J. E. H. were tenants in common of certain property under the will of tlieir father T. H. and each occupied a portion of such property. On the 30th Decemher, 18()8, the plaintiff purchased the interest of 0. O. H. at sheriff's sale. C. O. H. died on the 7th March, 1870, and his widow, the defendant, with the assent of J. E. H. remained in possession of the portion of the property which had been in the possession of C. O. II. As the result of proceediuf^s for partition carried on af^ainst the heirs of T. H., and to which the defendant was no party, the portion so occupied by the defend- ant was, on tlie 12th August, 1873, allotted to the plaintiff as sole owner. He thereupon brouj^ht au action for use and occupation, addinj,' a count in trea- pftss for the mesne profits since the death of C. O. H. The Supreme Court of Nova Scotia made absolute a rule nisi to enter a. non-suit, being of opinion that no action would lie for use and occupation, the widow occupyin;^ adversely ; that no action would lie for mesne profitB. as there had been no previous recovery in ejectment by plaintiff, and that even if a contract had been proved to susiain use and occupation, the non- joinder of J. E. H. as a plaintiff, was fatal to the action as brought. (See 2' Rusa, & Ches. 229). 828 t Tenants in Common — Continued. The Supreme Court of Canada, Held, 1. An action of trespass for mesne profits is consequential to the recovery in ejectment. 2. Even if such an action would lie uuder some circumstances without ejectment brought, the plaintiff could not recover without satisfactory eviderce of actual entry and possession. 3. After entry there is a relation back to the actual title as against a wrong-doer, and an action may be maintained for trespass prior to such entry. But in this case, besides a deficiency of evidence of entry, there was some evi- dence that the defendant remained in possession subsequent to the 12th August, 1873, the day the plaintiff's title accrued, with the assent of the plaintiff. Strong, 3., dubitante. i. In any event the action for mesne profits would not lie, the defendant having been previous to the 12th August, 1873, in possession with the consent of J. E. H., the co-tenant iu common, and being, therefore, entitled to a notice to quit, or demand of possession, before her possession could be considered tortious. Lecain y. Hcsterman. — January 28, 1878. 2. Tenancy in common — Con.sti'uction of will — Evidence to estab- lish —Intention — Severance. See WILL, 20. Tenant for Life — Insurable interest of. See INSURANCE, FIRE, 14. 2. Possession of tenant of — Statute of Limitations as respects remainder-man. Set POSSESSION, 9. Tenancy at Will — Statute of Limitations — Possession as caretaker ' — Finding of the judge at the trial. The plaintiff's father, who lived in the township of T., owed a block of 400 acres of land, consisting respectively of lots 1 in the 13th and 14t)i concessions of the township of W. The father had allowed the plaintiff to occupy 100 acres of the 400 acres, and he was to look after the whole and to pay the taxes upon them, to take what timber he required for his own use, or to help him to pay the taxes, but not to give any timber to any one else, or allow any one else to take it. He settled in 1849 upon the south half of lot 1 in the 13th conces- sion. Having got a deed for the same in November, 1804, he sold these 100 acres to one M. K. In December following he moved to the north half of this lot No. l,and he remained there ever since. The father died in January, 1877, devising the north half of the north half, the land in dispute, to the defendant, and the south half of the north half to the plaintiff. The defendant, claiming the north 50 acres of the lot by the father's will, entered upon it, whereupon the plaintiff brought trespass, claiming title thereto by possession. The learned judge at the trial found that the plaintiff eatered into possession and so con- 829 Tenancy at Will — Conthiwd. tinued merely as his fatlier's caretaker and agent, and he entered a verdict for the defendant. There was pvideiice that within the last seven years, before the trial, t'.e defendant as ajjent for the father was sent up to remove plaintiff off the land, because he had allowed timber to be taken off the land, and that plaintiff undertook to cut no more and to pay the taxes and to j^ive up posses- sion whenever required to do so by his father. Held, reversing,' the judj^ment of the Court of Appeal for Ontario, that the evidence estublished the creation of ii ntw tenancy at will within ten years. Per Gwynne, J.— That there was also abundant evidence from which the judj.'e at the trial mif^ht fairly conclucTe, as he did, that the relationship of servant, agent, or caretaker, in virtue of which the respondent lirbt acquired the possession, continued throughout. [Followed iulleward v. O'DotwJwe, 19 C. S. C. R. 3-11, see Possession, 10.] Ryan v. Ryan. — v. 387. Tender— Plea of— Effect of. See SALE OF GOODS. 12. Timber — Sale of — Ag^-eement for. See AGREF.MENT, 1,4. 2. License to cut. .SVe NEW TRIAL, 3, 3. Crown regulations as to payment of dues on. See PETITION OF RIGHT, 18. i. Advances to get out — Lien for. See LIEN, 2. 5. Proceeds of sale of tiinbei' — Ri^/ht to npply to re-pay advances — Account. The declaration of the appellant, (plaintiff) in the court of original juris- diction, set out, that at Quebec, on the 14th of June, 1877, he was the owner and in possession of a raft of white pine timber, containing about 150,000 feet, and valued at $30,000. That, buing in want of money, he then applied to the defendant Ross for a loan of f3,000, which he obtained on transferring to the defendant, as security, the raft in question. That the defendant had since disposed of the timber, but never accounted to him for the proceeds. The plaintiff, admitting that the defendant was entitled to re-pay himself out of the funds in his hands, an advance of ?3,000, and all ex[)en.-ies necessarily incurred by him in connection with the custody and sale of the raft, prayed that he be condemned to render an account, or, in default, to pay §30,000, the alleged value. The defendant, while acknowledging the receipt of the timber, pleaded, amongst other things, that it was received, not from the plaintiff Doran, but from one William Bannerman, whose property it was, under whose instruc- S.'JO Timber — C'o7itinueil . tioiis hu had tlisposed of it, and to whem he had, long before suit brought, duly accounted for its diHposal. As thd case turned exchisively on tlie view to be taken of the evidence reapectint^ tlie nature of tlio tranHuctioMS between Iloss, Bannerman and Doran, and the facts ate somewhat complicated, it is considered unnecessary to set them out at len{>tli. The Superior Court (Meredith, C.J.), held that the plaintiff was not enti- tled to the account for which he asked, tho dealings of defendant having been with Bannerman, to whom alone the defendant was accountable, and boran having no real interest when his action was brought. This judgment was affirmed by the Court of Queen's Bench for Lower Canada, and on appeal to the Supremo Court of Canada, it was Held, that it should bo aftirmed by tho latter court. Fournier and Henry, JJ., disaenting. Appeal dismissed with costs. Doran v. Ross.— 2.=Jrd Juno, 1881. Timber License — Injunction — Jf.1 V. c. I4 (P.Q-) — Sale h;/ com- 'iniHsioner of Crown lanch of lands sithject to current timber licenses, effect of— Licensees r'ujlds. Under the provisions of the Quebec Act, 41 V. c. 14, the D. of C. L. & C. Co., in November, 1881, alleging tliomsclvoH to be proprietors and in possession of a numbfir of lots in the township of Wbitton, P.Q., ol)taincd an c.r parti' injunction, restraining G. B. li. et al. from further prosecuting lumbering operations which they ha,', anil upon this supposition thatwlien Hardcastle made his will he had no title or interest in the land but what he derived under the will of Hu<;he3, viz., a life estate expectant on a prior life estate in Ann nut,'hes, and tlmt haviu"; predeceasosi'l tf> <;i> out ill tow " — ItistiDince. ,SV,' INSURANCE, MAmNH, 1. M. ( ''iitriict of, jiutliority to make. Sir M.VUITIMK ("OniT OF ONTARIO, 8, Trade —Hfstrniiit (»1' — FfM-eii-n corporation — Exclusive )in-lit to 'iperate tuleyraph line in Ciiniida. .SVf CONTRACT, 3C). CORPORATIONS, 18. Trade and Commerce. See PARLIAMENT OF CANADA, 5. Trade Mark — Inffinijement — Injuvction. B. et al. manufactured and sold cakes of soap, having stamped thereon a ret^istered trade mark, described as follows : A horse's head, above which were the words " The Imperial ; " the words " Trade Mark," one on eacli side thereof ; and underneath it the words " Laundry Bar." " J. Barsalou & Co., Montreal," was stamped on the reverse side. D, ft al. manufactured cakes of soap similar in ahai)e and general appearance to those of B. ct al.. having stamped tliereon an imperfect unicorn's head, being a horse's head, with a stroke on the forehead to represent a horn. The words " Very Best " were stamped, one on each side of the head, and the words " A. Bonin, 145 St. Dominiijue St." and " Lai ndry " over and under the head. At the trial the evidence was contradictory, b'.t it was Hhown that the appellant's soap was known, asked for and purchased by a great number of illiterate persons as the" horse's head soap." Held, Henry, J., dissenting, reversing the judgment of the Queen's Bench (appeal side) and restoring the judgment of the Superior Court, that there was such an imitation of B.. ff al.'x trade mark as to mislead the public, and that they were therefore entitled to damages, and to an injunction to restrain D. et al. from using the device adopted by them. Barsalou v. Darling.— ix. 077. 2. Action for infringemenf of, and for injunction — No remm- hlance likebj to deceive ordinary imrchasers — Jf2 V. c. 33, The appellant, a resident of the United States, manufactured a stove polish put up in small oblong cubical blocks, encased in a wrapper of red paper, on which was printed a vignette or picture of an orb rising above a body of water, and across the picture were the words " The Rising Sun Stove Polish," This com- prised the appellant's trade mark, and the same wasduly registered in the United States Patent Office, on or about the 8th July, 1870, and ever since that time the appellant used in the United States and in certain parts of Canada the trade mark in the form described. 840 Trade Msirk— Continued. On the '20th December, 1879, the appellant registered his trade mark with the Minister of Agriculture of Canada. jk j^iy-y.i _,, , . •, • About the 22nd October, 187t'>, the defendant registered a trade mark for stove polish, called by him " The Sunbeam Stove Polish," without any cut or device resembling sunbeams or rays. Afterwards, about the year 1877, the defendant put an indication of sun- beams upon his labels and upon his boxes containing packages of his stove polish. This placing of the device of sunbeams upon the packages was the subject- matter of the complaint in the present action. The action was brought for the purpose of recoverinji dania^^es from tlie defendant, and for an injunction restraining him from placing the said device oi sunbeams upon his stove polish. The defence tiled by the defendant in the Superior Court amounted to a denial that he took any portion of the appellant's trade mark as a device upon his packages of stove polish. It was not pretended by the appellant that the packages in which the stove polish was put by the original defendant, resembled those in which the appel- lant's stove polish was put up, but it was urged that the appellant's stove polish was known throughout Canada and the United States as "The Rising Sun Stove Polish ;" that persons hearing of the " Rising Sun Stove Polish,'' and en- (juiring therefor, could be deceived into taking " The Sunbeam Stove Polish " in lieu thereof, owing to the imitation of part of the device forming a portion of the appellant's trade mark, luid that the device upon the boxes containing the original defendant's packages of stove polish was even a greater infring'e- meut of the appellant's trade mark than was the device upon t)ie packages themselves. The Superior Court for Lower Canada, Johnson, J., dismissed the plain- tiff's action on the ground that he failed to show any infringement since the date of the registration of his trade mark, the "JOtli December, 187'J, and that for any infringement prior to that date he was prevented from recovering by 4*2 V. c. 22, g. 4. The Court of Queen's Bench concurred in dismissing the action, but upon the merits. On appeal to the Supreme CoiVii of Canada, Held, affirming the judg- ment of the Court of (j)n'.'cn's Bench, that the trade mark used by the defend- ant did not resemble tluit of the plaintiff, or a substantial part uf the plaintiff's. and was not calculated to lead a purchaser to believe that the goods on which it was placed were manufactured liy i)laintifT; in other words to deceive ordinary purchasers by enabling defendant to pass his goods as those of the plaintiff. Appeal dismiaBed with costi. Morse v. Martin.— January 12, IHh'). 3. Itujht ((> ((nr onc'n tnrn luirnc — Goods denignutcd hif oiir'n oun lutmc si'hl to (hreive public. Qage carried on pertnership with appellant, Beatty, a valuable asset of the business being a Beries of copy books dtsif{neJ by I'lvatty, and sold under Trade Mark — Continued. the name of " Beatty's Headline Copy Books." Beatty retired from the firm, receiving $20,000 for his share in the business, and Gage subsequently regis- tered as a trade mark the word " Beatty " in connection with the copy books. After the dissolution, Beatty, under an agreement with the other appel- lants, the Canada Publishing Co., prepared a series of copy books which were sold under the name of " Beatty's New and Improved Headline Copy Books," and a suit was brought by Gage to restrain the appellants from selling the said books. Held, affirming the judgment of the Court of Appeal, 11 Ont. App. R. 402, Henry and Taschereau, JJ., dissenting, that appellants had no right to sell " Beatty's New and Improved Headline Copy Books," with the name " Beatty " on the cover in such a position, or with such prominence of color or form, as might deceive purchasers into the belief that they were purchasing Ga(.:e'3 books. Appeal dismissed with costs. Canada Publishing Co. et al. v. Gage.— xi. 300. 4. Infringement of — Efed of registration — E.eclusice right of iifier — Property in descriptive xvordx — Rectification of registry. It is only a mark or symbol in which property can be actiuireJ, and which will designate the article on which it is placed as the nmnufacturti of the person claiming an exclusive right to its use, that can properly be rej;istered as a trade mark under the Trade Mark and Design Act, 1879, 42 V. c. 22. A person accused of infringing a registered trade mark may show that it was in common use before such registration and, therefore, could not properly be registered, notwithstanding the provision in s. 8 of the Act that the person registering shall have the exclusive right to use the same to designate articles manufactured by him. Tascherean, J., dissenting. Where the statute prescribes no means for rectification of a trade mark improperly registered, the courts may afford relief by way of defence to au action for infringement. Per Gwynne, J. Property cannot be acijuired in marks, etc., known to a particular trade as designating quality merely and not, in themselves, indii.-at- ing that the goods to which they are affixed are the manufacture of a particular person. Nor can property be acijuired in an ortlinary English word expressive of iiuality merely though it might be in a foreign word ur wonl of a dead language. Partio V. Todd. xvii. I'.tO. Trader — Tmnsient — By-law of city of Quebec iinposin;^ license fee on. .j — ■J4^ V. c. •>..', incorpor- atiw/ Domhiion Tclerjvaph Co. Tlie Act, 34 V. c. u2, incorporating the Dominion Telegraph Company, declares in the 4th section that the conipany may enter upon lands or places, and survey, set otf and take such parts thereof as may bo necessary for such line, etc., and in case of disagreement between the company and owners of lands so taken, oi in respect of any damage done to the same, it may be settled by arbitration in the mode therein described. By section 20 the company art- authorized and empowered to enter upon the lands of any person or persons, and survey and take levels, and to set out and ascertain such parts tliereof os they shall think necessary and proper for making the said intended telegraph, and all such other works, matters and conveniences as they shall think proper and necessary for the making, effecting, preserving, etc., the said telegraph, and to build and set upon such lands, such station houses and observatories, watch houses and other works, etc.. as and where the said company shall think requisite and convenient, etc. Provided always, that the said company shall not cut down or mutilate any tree planted or left standing for shade or orna- ment, or any fruit tree, unless it be necessary bo to do, for the erection, use or safety of any of its lines. ,,.. -,..,,. 845 Trespass — Continued. In an action against the company to recover damages for cutting down ornamental trees, the defendants pleaded that the trees were standing by the side of a public highway, and the defendants were erecting their lines of tele- graph along the highway; and because the trees were in the way and obstructed the passage of the line of telegraph, and because they deemed it necessary and advisable to do so, they committed the acts complained of by virtue of the statute and not otherwise. The Supreme Court of New Brunswick, Held, 1st. That the arbitration clause in the 4th section did not apply to a case like this, where the complaint was that the defendants had wrongfully destroyed plaintiff's trees ; '2nd. That the proviso in the '20th section imposed on the defendants, if the ornamental trees should obstruct their line on the side of the highway where they located it, the burthen of showing that it was necessary for them to take it on that side, and that the defendant's pleas were bad for want of an averment that it was necessary to cut the trees, not merely that they deemed it necessary. (See ;J Pugs. A- Bur. 553.) On appeal to the Supreme Court of Canada, Held, that the judgment of the court below should be affirmed. . Appeal dismissed with costs. The Dominion Telegraph Co. v. Gilchrist.— 15th February, 1881. 8. Action of against sheriff. See CONTRACT, 14. 9. TreapciKs q. c. /'., action for — Limitations, Statute of — Jiulgment entered for defendant, evidence of — Plaintiffs title to locus insuj(ficient, and evidence of continuous posw.s«io?i by defendant HU^cient. This was an action by L. P. F. for trespass for breaking and entering the plaintiff's close, described as certain land and land covered with water in Dartmouth, being and forming the bed, bank and waters of the stream leading from Dartmouth first Lake and falling into the waters of Halifax harbour, and breaking down and prostrating the fences and walls of plaintiff there standing upon the said close. The case was tried in 1873 before a jury, who were unable to agree and were discharged by the judge without rendering a verdict. No further proceedings were taken in the cauao until November, 1878, \vhen the plaintiff, as assignee in insolvency of said L. P. F., having intervened, it was ordered, by consent of parties, that a verdict should be entered for the plaintiff upon the minutes of the evidence taken on the said trial by the judge, and that the cause with said evidence should be remitted to the full court in banco at the next term thereof, who should have power to draw inferences of fact as a jury might and to enter judgment therein for either party, and, in case of said verdict for the plaintiff being sustained, the court should have power to fix the damages. The plaintiff claimed to be the legal owner of the locut in r/uo, under a deed from the Inland and River Navigation •Company, executed by the President and Secretary of that company to said 846 Trespass — Continued. L. P. F. on the first of April, 1870. The defendant claimed the same land under i\ deed from the executors of Jauies Stanford, as land to which Stanford acquired a legal title by an exclusive and uninterrupted possession, commenc- ing as far back aa 1832, and continuing up to the time of his death in 1870. The Supreme Court of Nova Scotia entered judgment for the defendant with costs. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the court below, that the plaintiff failed to shew beyond a reasonable doubt that the locus in quo was within the boundary of the canal property and included in the deed to L. P. F., but, on the contrary, the court below were justified in coming to an opposite conclusion ; and further, that the court below were (piite justified in com.ing to the conclusion that if the property was so included and the company ever had a title to the locus, there was evidence of such an exclusive and continuous possession that any such right or title was barred by the Statute of Limitations. Appeal dismissed with costs. Creighton y. Kuhn.— 13th Maj, Lss^. 10. Trespass q. c. f. — Marsh lands — Foxsesslon — Accretion — Justi- fication as comrtiiss loner of sexvers under R. S. iV. S. c.4-0 — " Xeiv work" — Sanction of proprietors. This ia an action of trespass brought in the Supreme Court of Nova Scotia, on the 23rd day of June, 1881. The land upon which the trespass in question in this cause is alleged to have been committed is a salt marsh lying outside of a dyked marsh, in the township of Falmouth, and between the dykes and the river Avon. It has been formed within the last forty years, or thereabouts, by an accumulation of mud gathered there from time to time, in front of the plaintiff's land, and extend southwardly and westwardly. It has been staked off for many years on the north-east, designating the division line between that part of it claimed and used for cutting grass by the plaintitf, on one side, and his neighbor Church on the other. It is bounded on the N. W. by the running dyke ; ou the N. E. by the stakes mentioned ; and on all the other portions of it by the Avon river, and a certain creek called the Windmill Creek. After the mud had sufficiently accumulated grass began to grow, which was cut by the plaintiff's brother, George, now deceased, for years. George died five years before the trial, which took place in May, 1882, having first made his will, by which he devised to the plaintiff all his landed property that he died possessed of. The stakes were there since about 1855 or 185(5, one of them being a solid, permanent ony, and the others, if carried away, being replaced, from time to time, by new cues, taking the solid stake as a guide. The plaintiff and his brother, on one side of these stakes, and Cimrch on the other, cut the grass year after year, or allowed others to do so, although the land does not appear to have yielded grass worth cutting till about 13 years before, one witness said 17. Since that time the pleiiitiff, either for his brother or for himself, cut and took away tlia grass growing there, or permitted others to do so. The defendant, who waa commissioner of sewers, and acting aa such, undertook to cut the 847 Trespass — (,'ontinued. ditcli ill question throut^h the property for the purpose of carrying awuy the water from the dyke, alleging that the means formerly used were inadequate for that purpose. At the trial defendant disclaimed any right personally, but sought to justify the cutting of the ditch as commissioner of sewers, claiming that the work came within the tirst part of the 4th s. of c. 40, Revised Statutes, (N.S.) which authorizes a commissioner to build or lepair dykes, etc., and that it was not new work within the meaning of the last part of that section, which says that, " In case of the commencement of new work, two- thirds in interest, of the proprietors of the land shall lirat agree thereto.'' It was admitted that there was no such agreement : and, in answer to a question submitted to the jury by the learned judge, they answered that the work was new work. The action was tried before Smith, .7., and a verdict ijiven for the plaintiff. A rule nisi for a new trial was taken out and was argued before the Supreme Court en banc, Macdonald, C.J., McDonald, Smith, Weatherbe and Rigby, J.J., composing the court. The said rule was discharged, Weatherbe, J. , and Smith, J., dissenting. On appeal to the Supreme Court of Canada, Held, that there was evidence establishing a continuous exclusive possession by the plaintiff, for many years, quite sulilicient to enable him to maintain an action of trespass against a wrongdoer who interfered with that possession. The question of "new work" was purely a (juestion of fact for the jury, and they having found in the affirmative, their finding should not be reversed. The intention of the legislature in this Act would appear to be to empower the commissioners of sewers to act in making ordinary repairs, or in any sudden emergency, without consultation with or the consent of the proprietors, but that these proprietors should not be taxed for the construction of any new work not immediately essential to the preservation or interests of common property, without their consent to such work being first obtained. As the defendant entered upon the plaintitY's property to perform this work, without the sanction of the proprietors first obtained, he could not justify the trespass under his conmiission. Appeal dismissed with costs. Henry, J., dissenting. Davison y. Burnham.— 17th February, 1885. 11. Interim injunction in — Order (juasliinjf, not appealable. .See JURISDICTION, 88. 12. Measu7'ements and distances — Verdict set aside hij court beloiv on review of the evidence — New trial — Order for, not inter- fered with. Action of trespasB and trover. The declaration alleged a troepass on certain lands claimed by the plaintiff, and had also a count in trover and a count for the trespass to personal property. The pleas traversed the allega- tions of trespass and conversion, and the allegations as to property in the plaintiff, and justitied by title in some of the defendants. 848 Trespass — Continued. The place of beginning in the plaintiff's grant was identified and the description then read " running south 52 chains to a large pine tree marked 'J. G.,' and then west," etc. To reach the locus the line should be extended about 50 chains more. . To that increased distance the surveyor's line on the ground extended, but there was no pine tree so marked either at the distance expressed in the description, or at the end of the surveyor's line. At the latter point, however, a spruce tree was marked " H. G.' and "J. G." The plan attached to the grant represented the lot as a different shape from that claimed, and the area expressed in the grant was inconsistent with plaintiff's contention. The cause was tried before Rigby, J., and a jury, and a verdict found for plaintiff. This verdict was set aside by the court en banc, McDonald, G.J., and Weatherbe and Thompson, JJ., holding that the plaintiff had given no evidence of title to the locun, and Rigby, J., holding that the preponderance of evidence was against plaintiff's contention. (5 Russ. & Geld. 431). On appeal to the Supreme Court of Canada, Held, that there was evidence for the jury that the line claimed by the plaintiff was the western line of his grant. The case, however, was not so clear as to justify the court in revers- ing the decision of the court below, come to on a review of the evidence ; but was a proper case for further consideration on a new trial. (Henry, J., dissenting). Appeal dismissed with costs. Gates Y. Davidson.— 12th May, 1885. 18. Water lots in Toronto harbour — Interference with use of, by owner — Navioation — Easement — Crown grant. See NAVIGATION, 4. ' 14. Title — Declaration of — Description — Boundaries — Patent im- providently nranied. The action v. as brought for certain alleged trespasses charged to have been committed by the defendant during the winters of 1878-9, 1879-80, and 1880-1, upon land alleged by the plaintiff to be part of lota 34 & 35 in concession C, in the Township of Etobicoke, in the County of York and Province of Ontario, and to be his property. The plaintiff claimed damages for the cutiing and removal of timber, and an injunction to restrain any future trespass. The entry and cutting of some timber were, at the trial, admitted on the part of the defendant, but it was contended as alleged in his statement of defence, that the land in question was not part of lots 34 & 35 in couoession C, but part of lots 34 & 35 in concession H, and was his property. .« .-< ./. Hoth parties derived their title under one Henry John Boulton, who executed a mortgage bearing date April 30th, 1856. to one Samuel Foster, comprising among other lands " lots numbers thirty-four and thirty-five in concession B, in the township of Etobicoke.' A suit in chancery was brought for a foreclosure of that mortgage, and in that suit a final order was made March 1st, 1874, for the sale of the mort- 849 Trespass — Continued . gaged lands, and under it lots 31 and 35 in concession 6, in the township of Etobicoke, were sold to one James Metcalfe. The said lots were conveyed to the said James Metcalfe in pursuance of such sale by the administrator and the sole devisee of the mortgagee Foster, by deed dated April 10th, 1875. By deed dated May 8th, 1875, James Metcalfe conveyed to John Black- well lots 34 and 35, in broken front, concession B. By deed dated July 14th, 18v5, the said John Blackwell conveyed to the defendant lots 34 and 35, in broken front, concession B. By deed dated October 27th, 1857, after the mortgage from Boulton to Foster, Henry John Boulton, the mortgagor, conveyed to the plaintiff a parcel of land containing seven acres, more or less, composed of parts of lots num- bers 34 and 35 in concession B, in the said township of Etobicoke, known as tlie Ox-bow, etc., describing it pai'ticuiarly by metes and bounds. This parcel, as described in this deed by metes and bounds, is the land in question in this action. It was not disputed by the defendant that by this deed the plaintiff acquired tlie equity of redemption in the land in question subject to the mort- gage from Boulton to Foster, but he contended that by the mortgage sale under tlie decree of the court, the title passed to the purchaser free from the equity as being a part of lots 34 and 35, in concession B., the whole of which lots were included in the mortgage and sold to Metcalfe. The plaintiff, on the other hand, contended that the land in question, although erroneously described in the deed of it from Boulton to him, as forming part of lots 34 and 35, in concession B, really formed part o^ lots 34 and 35. in concession C, and was, therefore, not included in the mortgage from Boulton to Foster. In the alternative the plaintiff contended that if the land in question did not form part of concession C, it formed part of broken front parcels of land lying in front of, and separate from lots 34 and 35 in concession B, and there- fore, was not included in the mortgage from Boulton to Foster, which contains no mention of any broken front. On the 2nd day of April, 1883, after the comraeucement of the action, the Crown granted to the plaintiff a piece of land said to contim 3]VV acres, and being the north bend of the Ox-bow or land in question, describing it by metes and bounds as being lot number thirty-five in concession C, of the township of Etobicoke. Held« reversing the judgment of the court below, that the evidence estab- lished that there were no such lots as 84 and 36 in concession C ; that the various descriptions in the patents and other title deeds also showed that the lands in dispute formed parts of lot 34 and 95, in concession B, and therefore the desoriptiou in the mortgage from Boulton to Foster was sufficient to include such lands, and the defendant was entitled to a declaration that he was seized in fee of such lands ; and that the patent issued'on the 20th April, 1883, was void, as having been improvidetitly granted. Appeal allowed with costs. -i ./..nJ.^<.■ ,. , ; t-^i ui ' Johnson V. Cposwmi.— April 9, 1886. CAS. MIO. — 5'4 850 Trespass — <'ontinueil. 15. On wild lands — Isolated acts of — Title — Statute of Limitations. Hee LIMITATIONS, 9. 16, Action of, for disturbing enjoyment of right of way — No exclu- sive user. See EASEMENT, 5. * 1.7. Title to land — Boundary — Easement — Agreement at trial to t]y (juestion of boundary only. See BOUNDARY, 4. 18. Title to land — Public highway — Dedication — Expropriation — Presumption — User. See HIGHWAY, 2. 19. Agreement to operate lines of telegraph — Trouble de droit — Claim for reduction of rent. See LEASE, 12. ■•■ ■• 20. Trespass to land — Title — New trial — Misdirection — Miscon - duct of -party at view of premises — Nominal damages. An action for trespass to plaintiff's land by placing ships' knees thereon whereby plaintiff was deprived of a nse of a portion of said land and prevented from selling or leasing it. The defendants denied plaintiff's title. At the trial plaintiff gave no evidence of actual damage but claimed that an action was necessary to protect his title. Evidence was given to show that the alleged trespass was committed beyond the street line, and plaintiff claimed that the street bad never been dedicated to the public and his ownership extended to the centre. Before the verdict was given the jury viewed the premises, one of tlie . terms on which the view was granted being that " nothing said or done by any of the parties or their counsel should prejudice the verdict." The judge charged the jury strongly against the plaintiff and a verdict was given in favour of defendants. Plaintiff moved for a new trio' oa the grounds of mis- direction and of improper conduct of one ot tlie defendants at the view. The court below refused a new trial. Held, affirming the judgment of the Supreme Court of New Brunswick, . that plaintiff was precluded by the terms on which the view was granted from . Betting up misconduct thereat in support of the application ; that there was no misdirection, and that as all plaintiff could obtain at a new trial would be nominal damages it was properly refused by the court below. SimondB v. Chesley.— xx. 174. Trover — Action of, against sheriff — Transfer of property by execution debtor — Misdirection by jury. In an action of trover or conversion against appellant, hi(^h sheriff of the • ' County of Cumberland, N,S., to recover damages for an alleged conversion by 851 Trover — ContinueiL the appellant of certain personal property found in the possesaion of tho execution debtor, but claimed bj the respondent, the pleas were a denial of the conversion, no property in pb.iiti£f, no possession or right of possession in plaintiff, and justification under a writ of execution against the execution debtor. The learned judge at tl e trial told the jury that he " thought it was incumbent on the defendant to h.ive gone further than merely producing and proving hi« execution, and that if i- transfer had taken place to the plaintiff, and the articles taken and sold, defendant should have shown the judgment on which the execution issued to enable him to justify the taking and enable him to sustain his defence." Held, that the sheriff was en utled under his pleas to have it left to the jury to say whether the plaintiff had shown title or right of possession to the goods in question, and therefore thare was misdirection. McLean v. Hannon.— iii. 706. See BILL OF LADING. CHATTEL MORTGAGE. Trusts and Trustees — Agent for sale of lands — Obtaining con- veyance from pretended p irchaser. See SALE OF LANDS, 5. 2. Of Quebec Turnpike Roads. See PETITION OF RIGHT, 6. ROAD. 3. Contract by trustee for Crown. See PETITION OF RIGHT, 7. 4 Land sold for joint benefit. See SALE OF LANDS, 7. 5. Defendant sued as trustee of church property — Denial of quality by. • ' ' See PETITORY ACTION. / ' ' 6. Assignment in trust — Legal title of Trustee as against equit- able title of mortgage of chattels — Priority. , See CHATTEL MORTGAGE, 3. 1. Charitable trust — Grant of land for school. See CHARITABLE TRUST. • 8. Commutation fund — By-law of synod — .A.ltering disposition of. See COMMUTATION FUND "^ ■■•r..i!A' i.'i i ""~ -■»'•'- ■•.'1 ■ 1 • '.^ '>. ■ ' ',•■'-■•■ ■•• 852 Trusts and Trustees — Contiiwed. ^„..a- ..-n t. _. -j,-.._'r. 9. Shares held in trust — Bank — Transfer to, as security, effect of — Mandatory and liledgee, obligations of — Action to account —Arts. 1755, 2268, G. C. (P.Q.) S. brought an action against the Bank of Montreal to recover the value of shares in the Montreal Rolling Mills Company, transferred to the bank, under the following circumstances. S.'s money was originally sent out from Eng- land to J. B., at Montreal, to be invested in Canada for her. 3. R. subscribed for a certain amount of stock in the Montreal Rolling Mills Company as toUows : — " J. Rose in trust," without naming for whom, and paid for it with S.'s money. He sent over the certificat "g of stock to S., and subsequently paid her the dividends he received on the stock. Becoming indebted to the Bank of Montreal, R. transferred to the manager of the bank as security for his indebtedness, some 350 shares of the Montreal Rolling Mills Company, and the transfer showed on its face that he held these shares " in trust." The Bank of Montreal then received the dividends, credited them to J. R., who paid them to S. J. K. subsequently became insolvent, and S., not receiving her dividends, sued the bank for an account. Held, reversing the judgment of the court below Strong, J., dissenting, that there was sufficient notice to the bank that J. B. was acting as agent or mandatory of 8., and the bank not having shewn that J. R. had authority to sell or pledge the said stock, 8. was entitled to get aa account from the bank. Arts. 1755 and 2268, C. C. On appeal to the Privy Council the judgment of the Supreme Court was affirmed, 12 App. Cases ()17] . Sweeny v. Bank of Montreal. —22nd June, 1886.— xii. 061. See TRUSTS AND TRUSTEES, 14, 18, 23. 10. PiU'chasu by mortgagee at sale — Right of mortgagor to redeem — Trustee for sale — Limitations — R. S. 0. c. 108, s. 19. See MORTGAGE, 16. 11. Society of Friends, or Quakers — Lands held in trust for — Authority of governing body. i . See QUAKERS. 1*2. I'urchast.' of land — Joint purchase — Deed to one only — Result- i.st. See SALE OF LANDS. 24. ing tru.st. 13. Sale of land — No title in vendor — Valuable comtideration — After acquired int<'rent — Riffhts of 'purchaser. If a vendor, having no title to an estate nndertakes to mil and convey it fbr valuable consideration his deetl, .;:ouKh having no pveaent operation either at law or in e<]uity, will bind any otttrest which the vendor may afterwards 853 Trusts and Trustees—' 'oiuintud. . ,"r!<;., . . » ..:,.. .'^ ■■ acquire even by purchase for value in the same property, and in respect of such after- acquired interest he will be considered by a court of equity to be a a trustee for the original purchaser, and he, and his heirs-at-law, will be com- pelled to convey to such purchaser accordingly. In other words the interest so subsequently acquired will be considered as "feeding" the claim of the purchaser arising under the original contract of sale, and ''be vendor will not be entitled to retain it for his own use. Per Strong, J. McQueen v. The Queen.— xvi. 1. See DEED, 10. • . , ., 14. Judgment — Bank shares held "in trust" — Substitution — Onus iwobandi — Res judicata — Art. 124.1, G. G. The fact of bank shares being purchased in trust at a time when the trustee was solvenii imports an interest in somebody else, and the onus ia upon a party who has seized such shares to prove that they are in ffcct the property of the trustee, and as such available to satisfy the demand of his creditors Sweeny v. Bank of Montreal, 12 App. Cas. 617, followed. A final judgment setting aside an intervention to a seizure of the divi- dends of bank shares founded upon an allegation that si.r-h dividends formed part of a substitution is noii re» judicata as to the corpus of said shares nor as to the dividends of other shares claimed under a'different title. Art. 1241, C. C. — Strong, J., was of opinion, in the case of Holmes v. Carter, that upon the facts shewn the judgment of the Court of Queen's Bench should be affirmed . Mulr Y. Carter, i _. ■ ,7.. Holmes Y. Carter, i"^^'- ^''*- 15. Estoppel— Art 19, C. G. P.— Right of suit by trustees (P.Q.)— Promissory notes given as collateral for price of side — Prescription. ', C. H. (the respondent) as trustee for certain creditors of the firm of R. M. and sons, sued J. M. M. (the appellant), a member of the tiiin, for 84,720, alleging : 1. A registered notarial transfer from one J.Il.M. to him, as trustee, of a similar sum with all rights, mortgages, etc., thereunto ajuwrtaining, due by the said appellant to J. K. M. for the price of certain real estate in Montreal ; 2, A transfer of certain promissory notes signed by the appellant for the same nmount find representing the price of Hale of said property, but which were to be in payment thereof only if paid at maturity. The appellaiil was a party and intervened to the deed of transfer and declared himself satisfied and sub- ject to its conditions. The appellant p]ea\.^:».,v ::- •. ^ .» . ,• ' . JO. Haul: stock — Sithstitiifed i^roperiy — Registixdion — Arts. 931, 93S, 939, C.C — Shares in trust — Condictio imlebiti — Arts. lop, loj^s, a a The curator to the substitution of W. Petry paid to the respondents the sum of $8,032, to redeem 34 shares of the capital stock of the Bank of Montreal entered in the books of the bank in the name of W. G. P. in trust- and which the said W. G, P. one of tlie ijivrSt and manager of the estate had pledj^ed to respondents for advances made to him personally. J. H. P. et al., appellants, representing the substitution, by their action demanded to be refunded the money which they aWene H. J. P., one of them had paid by error as curator to redeem shares belonging to the substitution. The shares in question were not mentioned in the will of William Petry, and there was no inventory to show they formed part of the estate, and no actc iFeiiiploi or remploi to show that they were acquired with the assets of the estate. Held, per Ritchie, C.J., and Fournier and Taschereau, JJ., affirming the judgment of the Court of Queen's Bench for L. C. (appeal side) that the debt of W. G. P. having been paid by the curator with full knowledge of the facts, the appellants could not recover. Arts. 1047, 1048, C. C. Per Strong and Fournier, JJ. — That bank stock cannot be held as regards third parties in good faith to form part of substituted property on the ground that it has been purchased with the moueys belonging to the substitution without an act of investment in the name of the substitution and a due regis- tration thereof. Arts. 031, <)38, 1)3<1, C. C. Patterson, J., dissenting. Petry v. La Caisse d'Econotnie de Notre-Dame de Quebec— .xi.x. 713. 21. Trustee — Conditions to be performed hy cestui que trust — Failure of — Ri'voratiov hy (/rantor. By deed between B., grantor, of the first part, certain named persons, trustees, of the second part, and P., grantee, of the third part, B. conveyed his property to the trustees, the trusts declared being that if P. survived 1$., and performed certain conditions intended for the support or advantage and security of B. which by the deed he covenanted to perform, the trustees should convey the property to P., and it should be re-conveyed to B. in case he sur- vived. No trust was declared in the event of P. surviving and failing to per- form the conditions or of failure in the lifetime of both parties. In an action by B. to have this deed set aRide, the trial judge held that B. when he executed it was ignorant of its nature and effect and set it aside on that ground. The fuil court, on appeal, dissented from this finding of fact, and varied the judf;- nient by directing that ♦^hc trustees should re-convey the property to B. on the grouml that P. had failed to i)erform the conditions he had agreed to by the deed. On appeal to the Buprenie Court : Held, aftirniing the decision of the Supreme Court of British Columbia, that the conditions to he performed hy P. were conditions precedent to his right to a conveyance of the property ; that by failure to perform them the trust in his favour lapsed, and B., the grantor, being the only person to bo 866 Trusts and Trustees — Continued. ■ ~ ■ benefitted by the trust, could revoke it at any time and demand a re-convey» ance of tlie property. Ti ... -- Poirlep Y. Brule.— XX. i)7. 22. Trust — Xot exjjresaed in deed — Parol evidence of- — Enforce' ment — Findings of fact. Suit brought to enforce an alleged trust in a deed absolute on its face, or, in the alternative, to ha%e the property re-oonveyed or sold according to the terms of the alleged agreement. The defendant claimed that he had given valuable consideration for the transfer to him of the property conveyed by the deed, and the plaintiff had accepted the same in full satisfaction and payment therefor. At the trial parol evidence was given to establish the alleged trust and its existence was found as a fact by the trial judge who made a decree orderin,; the property to be sold and the proceeds applied as, according to the contention o* the plaintiff, and the evidence in proof thereof, had been agreed upon. The full court (Supreme Court of British Columbia) affirmed this decree. Held, that the fact of the existence of the trust having been found by the • trial judge, and such finding having been affirmed by the full court, it should not be disturbed on this further appeal. Bowker y. Laumeister.— xx. 175. 23. Transfer of stock — Shares held in trust — Dafij of transferee to make inquiry. D. transferred to brokers as security for a loan certain shares in a joint stock company, the transfer expressing on its face that it was in trust. The brokers pledged these Hhares with other stock to a bank as security for advances, and from time to time transferred them to other financial com- panies, each transfer on its face purporting to be "in trust."' Eventually, the Federal Bank being the holders assigned D.'s shares, ami others pledged by the brokers, by a transfer signed "B. manager in trust," to T. the manager of the respondent company, who accepted the transfer "in trust" D. brought an action to redeem them on payment of the amount of the loan to him from the brokers. Held, reversing the decision of the Coui*^ of Appeal, Taschereau and Patterson, JJ., dissenting, that the form of the transfer tu the lotin company was sufficient to put tliem on inquiry as to the nature of the trust indicated, and tiiey svere only entitled to hold the shares of D. subject to payment of the amount he had borrowed on them. Sweenif v. The Hank of Montreal, 12 Can. S. C. R. tlC.l ; 12 App. Cas. G17, followed. Held, per Taschereau and Patterson, JJ., that "manager in trust" ou the transfer to the loan company only meant that the manager held the stock in trust for his bank, and that the transferee had a right so to regard it and was uot put ou the inquiry, even if Buch inquiry would have been possible in view m Trusts and Trustees— Continued. ;i '»;:%;.•: t;:T biij, <;j> .> ? T • of the shares not being numbered or identified in any way by which they could be traced. Duggan V. London and Canadian Loan Co.— xx. 481. [The Judicial Committee of thfi Privy Council hao granted leave to appeal in this case] 24. Title to land — Judgment against estate for debt of executor — Sheriff's sale — Purchase by execiUor — Possession taken by devisee — Statute of liimitations. Judgment was recovered against the executorB of an estate on a note made by D. M., one of the executors, and indorsed by the testator for his accommo- dation. In 1849 land devised by the testator to A. M., another son, was sold under execution issued on said judgment and purchased by D. M. who, in 1853, conveyed it to another brother, W. M. In 1865 it was sold under execu- tion issued on a judgment against W. M., and again purchased by D. M. In 1888 A. M., the devisee of the land under the will, took forcible possession thersof and D. M. brought an action against him for possession. Held, affirming the decision of the Court of Appeal for Ontario, Strong, J., dissenting, that the sale in 1849 being for his own debt D. M. did not ac(iuire title to the land for his own benefit thereby, but became a trustee for A. M., the dovisee, and this trust continued when he purchased it the second time in 1865. Held, also, that it D. M. was in a position to claim the benefit of the statute of limitations the evidence did not establish the possession necessary to give him a title thereunder. McDonald v. McDonald.— xxi. 201. 25. Devise to chiMreu and their issue — Possession of lamls taken by son one of the devisees and executora, but who had not proved will nor disclaitned — Consent of actint^ executor and trustee — Statute of limitations — Express trust. See WILL, 23. 26. Mortgage of railway bonds as security for advances — Second mortgage — Purchase by — Trust — Hypothecatioa of bonds to bank. Hee RAILWAYS AND RAILWAY COMPANIES, 72. Tutor and Minor — Sale prior to 1st Aug. 1S66 — Action to annul — Prescription — Arts. JJ4d, 22od, G. C. Held, affirming the judgment of the court below, Fournier and Henry, JJ., dissenting, that the action to annul a sale made in 1855 by a minor emanci- pated by marriage to her father and extutor (without any account being rendered, but after the making of an inventory of he community existing — between her father and mother) of her share in her *jher'B succession, wa» 858 Tutor and Minor— Continued. prescribed by ten years from the date when the minor became of age. Morean v. Motz, (7 L. C. R. 147,) followed. • Gregoire v. Oregoire.— xiii. 319 2. Sahstitiition — Minors — Tutor ad hoc — Intervention — Status — Arts. 369, 94s, a a In an action to account and for removal from trusteeahip instituted by the party who had appointed the defendant trustee and curator to a substitu- tion created by marriage contract, a tutor ad hoc to the minor children and appjl/s to the substitution has not sufficient <]uality to intervene in said suit to represent the minors. Art. 2i)l), C. C, provides for the only case where a tutor ad hoc can be appointed to minors. Strong, J., dissenting. Rattray v. Larue.— xv. 102. 3. Loan fu minor — Arts. 297 & 29S, C. C. — Obligation — Personal remedy for moneys used for benefit of minm' — Hypothecary action. Where a loan of money is improperly obtained by a tutor for hi.s own pur- poses and the lender, through his agent who was also thu subrogate tutor, has knowledge that the judicial authorization to borrow has been obtained without the tutor having first submitted a summary account as required by Art. 298, C. C, and that such authorization is otherwise irregular on its face, the obli- gation given by the tutor is null and void. The ratification by the minor after becoming of age of such obligation is not binding if made without knowledge of the causes of nullity or illegality of tiie obligation given by the tutor. If a mortgage, granted by a tutor and subsequently ratified by a minor when of age, is declared null and void, an hypothecary action by the lender against a subsequent purchaser of the property mortgaged will not lie. A person lending money to a tutor, which he proves to have been used to the advantage and benefit of the minor, has a personal remedy against the minor when of age for the amount so loaned and used. « Davis V. Kerr.— xvii. 235, 4. Sluvres held " in trust " for minor— Sale of -Tutor— Arts. 297, 20s & 299, C. C. See TRUSTS AND TRUSTEES, 18. 859 .A.-itr. .\^, Ultra vires. See RAILWAYS AND RAILWAY COMPANIES, 1. LEGISLATURE. MARITIME COURT OF ONTARIO. . ' PARLIAMENT OF CANADA. Usage — Existence of. '* . ■ . Set INSURANCE, MARINE, 1. Use and Occupation — Action for — Mesne profits — Tenants in common. • • ' • . , See TENANTS IN COMMON. , 2. Of land — Action for — Valuation. See LAND, 3. . ■ ' ■ '' ' 'i ..!! .■;!". •- ,. ,.■ '. . • - . ' .,- ^.j .' *»:■,' i. : '\ ' ■'' ■ .:\' ';":1 ' J ;■ .' . I .. i,,.< ' ' : .■ M . ' ^ ''. ■!-* 1 ' .■'•■■* ".'i'. ■,-■*■ ■ ^«- , fs Vendor and Purchaser. See SALE OF GOODS. SALE OF LANDS. 2. Action en restitution ; i See JURISDICTION, 22. 2. Against weight of evidence. .«fee JURISDICTION, 23. ' ' 3. Affirmed by two courts on weight of evidence not interfered with. ■' ';., ■ ''^\. ,;,. ,','...,.-,■, ,. Sm EVIDENCE, 21. >• ,,r ' , • .• 4. Rule to reduce — Or for new trial. Sec SALE OF LANDS, 12. ^■■^■- ^ • - ■ ■= - ^ ' ' NEW TRIAL. LIBEL, 7. EVIDENCE, 63. Vice-Adtiriralty — Court of — Jurisdiction to enforce penalties for illegal distilling. See PARLIAMENT OF CANADA, 18. 862 Vis-Major — Plea of — Fall of wall after lire — Want of precautions to prevent— Ai-ts. 17 ss. 24, 1053, 1055, 1071, C. C. See NEGLIGENCE, 31. ' ' Voluntary Payment. ■ • ■ ' - See ASSESSMENT AND TAXES, 4. w. Wager. — By election agent. " See ELECTION, 20. ' ) • ' Wager Policy. — Life assurance for benetit of another — 14 Geo. III. c. 48. . See INSURANCE, LIFE, 8. (.i^. i- •• f , Waiver. — Of notice of abandonment. ' ■^' *', . See INSURANCE, MARINE, 9. !(• -. I t: :v: 2. Of condition in policy of insurance — Not within powers of agent or inspector. , .. , , , . j = ; , ■ .ij ; . See INSURANCE, FIRE, 18. 3. Of condition in policy of insurance— Production of magistrate's certificate. mi: ... .,; .. See INSURANCE. FIRE, 19. 4. Condition in police of marine insurance as to bringing action within one year — Waiver of, must be pleaded. See INSURANCE, MARINE, 24. 5. Hypothecary action — Service of judgment — Absent defendant —Irregularity— Art. 476, C. C. P.— C. S. L. C, c. 49, s. 15. See PRACTICE, 3. 6. Insurance against accident — Neglect to give notice — Refusal to pay on other grounds. See INSURANCE, LIFE, 18. 7. Mechanics' lien — Materials supplied to contractor — Payment by promissory note — Suspension of lien. See MECHANICS' LIEN, 2. 8(33 Warehouse Receipts. — oi V. c. J (D.) — RUjId of jmypert;/. At the request of the Consolidnted Bank, to whom the Canada Car Com- pany owed a large sum of money, M. consented to act as warehouseman to the company for tlie purpose of storing? certain car wheels and pig iron, so . that they could obtain warehouse receipts upon which to raise money. The company granted M. a lease for a year of a portion of their premises, upon which the wheels and iron were situate, in corsideration of $5. The Consoli- dated Bank then gave him a written guarantee that the goods should be forthcoming when required, and he therefore issued a warehouse receipt to the company for the property, which they endorsed to the Standard Bank and obtained an advance thereon, which they paid to the Consolidated Bank. It appeared that M. was a warehouseman carrying on business in another part of the city ; that he acquired the lease for the purpose of giving warehouse receipts to enable the company to obtain an advance from the Consolidated Bank : and that he had not seen the property himself, but had sent his fore- man to examine it before giving the receipt. In February, 1877, an attachment in insolvency >=ifiued against the company, and K. et ah, as their assignees in insolvency took possession of the goods covered by this receipt, claiming them as part of ^e assets of the estate. M. then sued K. et al. in trespass and trover ' iv the taking. Hoid,/jer Strong, Taschereau and Gwynne, JJ., affirming the judgment of the Court of Appeal for Ontario, and that of the Court of Queen's Bench, that M. never had any actual possession, control over, or property in, the goods in question, so as to make the receipt given by M. under the circumstances in this case, a valid warehouse receipt within the meaning of the clauses in that behalf in the Banking Act. Per Ritchie, C.J, and Fournier and Henry, JJ., contra, th&t M, quoad these goods was a warehouseman within the meaning of 34 V. c. 5, (D.), so as to make his receipt endorsed effectual to pass the property to the Standard Bank for the security of the loan made to the company in the usual course of its banking business. Milloy ¥. Kerr.— viii. 474. 2. S4 V. c. 6, (D.) intra vires. ■ • ' ' ' • The appellants discounted for a trading firm on the understanding that a quantity of coal purchased by the firm should be consigned to them, and that they would transfer to the firm the bills of lading, and should receive from one of the members of the firm his receipt as a wharfinger and warehouseman for the coal as having been deposited by them, which was done, and the following receipt was given; " Received in store in Big Coal House warehouse at Toronto, from Merchants' Bank of Canada (at Toronto), fourteen hundred and fifty-eight (1458) tons stove coal, and two hundred and sixty-one tons chestnut coal, per schooners 'Dundee,' 'Jessie Drummond,' Gold Hunter,' and 'Annie Mulvey,' to be delivered to the order of the said Merchants' Bank to be endorsed hereon. This is to be regarded as a receipt under the provisions of Statute 34 V. c. 5 — value $7,000. The said coal in sheds facing esplanade is separate from and will be kept separate and distinguishable from other coal. (Signed), W. Snarr. Dated 10th August, 1878." The partnership having become insolvent, the assignee sought to hold the cofil as the goods of the t — ■■■' —r~ 864 Warehouse Receipts — Contiuued. insolvents, and filed a bill impeaching the validity of the receipt. The Chan- cellor who tried the case found that the receipt given was a valid receipt with- in the provisions of the Banking Act, and was given by a warehouseman, and that the bank was entitled to hold all the coal in store of the description named in the receipt. This judgment was reversed by the Court of Appeal for Ontario. On appeal to the Supreme Court of Canada, Held, reversing the judgment of the Court of Appeal, that it is not necessary to the validity of the claim of a bank under a warehouse receipt, given by an owner who is a warehouseman and wharfinger and has the goods in his possession, that the receipt should reach the hands of the bank by indorsement, and that the receipt given by W. S. in this case was a receipt within the meaning of 34 V. c. 5, (D). 2. (Ritchie, C.J. and Strong, J., dissenting), — That the finding of the Chancellor as to the fact of W. S. being a person authorized by the statute to give the receipt in question should not have been reversed, as there was evi- dence that W. S. was a wharfinger and warehouseman. 3. Per Fournier, Henry and Taschereau, JJ. — That sections 46, 47 and 48 of 34 V. c. 5 (D.) are intra vires of the Dominion Parliament. Merchants Bank of Canada v. Smith.— viii. 512. 3. Banking Act — R. S. C. c. 120, s. 53, et seq. — Disposal of surplus from sale of goods represented by receipts — Parol agreement as to— Arts. 1031, 1981, C. C. See BANKS AND BANKING, 18. 4. Insolvency, knowledge of by creditor — Fraudulent preference —Pledge— Novation— Arts. 1975, 1034, 1035, 1036, 1169, C.C. See INSOLVENCY, 32. Warranty — Effect of in sale of timber limits and lands — C. C. Arts. 515,518. Sm SALE OF LANDS, 1. " 2. No other insurance. See INSURANCE, MARINE, 17. 3. On sale of land — Against charges and incumbrances — Subse- quent promise to pay without reserve. See SALE OF LANDS, 18. 4. Application for policy of insurance — Answers of applicant. See INSURANCE, LIFE, 9. 865 VJarrainty— Continued. vrv.-r^'^v^ i>. .^ -.#, . 5. Action en restitution de deniers—Sa]e of personal ri(;ht3 with- out warranty for a bulk sum— Arts. L510, 1517 & 1518, C. C.,(P.Q.). .SVt" VENDOR AND PURCHASER, 2. 6. Ai^plication for life insurance— Reference to in policy— Mis- statement. See INSURANCE, LIFE, 15. 7. Life insurance— Unconditional policy — Effect of misrepresenta- tions. 5ee INSURANCE, LIFE, 1(5. . . , • 8. Or representation— Fire insurance— Statement in application. See INSURANCE, FIRE, 27. Water Lots— In Toronto harbour— Trespass— Easement— Naviga- tion. '"•' ■ ■'■-"-' ••■'■^■■'^^^'^ '•^■- See NAVIGATION, 4. , -. . , ; Water Rights— Land ordinance, 1865— Grant of water under- Riparian owners — Rioht to exclusive use of stream — Unoc- cupied water — Proof of notice of application for grant. See RIPARIAN PROPRIETORS, 5. Way— Of necessity— Adjoining lands— License — Prescription — Construction of agreement. See EASEMENT, G. Wild Lands — Isolated acts of trespass— Title— Statute of Limi- Limitations. r fl ■ - * See LIMITATIONS, 9. Will — Construct ion— Remoteness — Estate ta il — Heir-at-Law. P. F., sen., proprietor of 180 acres of Lot 13, 10th Concession of the Township of Drummond, Lanark Co., by a will, dated 3rd December, 1843, devised as follows : " It pleased the Lord to give me two sons equally dear to my heart ; to give them equal justice I leave all my land to the first great grandson descending from them by lawful ordinary generation in the mascu- line line, to him I bequeath it, and to him I will that it pass free of any -encumbrance, except the burying ground and the quarter of acre for a place of worship. To Duncan Ferguson, my son, I bequeath my family bible and five shillings over and above what I have done for him. ... To Peter Ferguson, my son, I bequeath my implements belonging to my farm, and to CAS. DIO. — 55 866 - Will — Contimied. occupy the farm and answer State dues and public burdens himself, and the lawful male offspring of his body until the proper heir are come of age to take possession, but Peter himself and all are restricted and prohibited from giving any wood or timber whatsoever kind away off the land, or bringing any other family on to it but his own. But if he leaves a situation so advantageous, and cannot maintain himself upon it. ... I appoint Peter McVicar, my grandson, to take charge of the whole place — farm and all that pertains to it — and occupy the same for his own benefit and advantage, according to the fore- mentioned restrictions and conditions, until the heir be of lawful age as afore- said." The testator died in 1849, leaving two sons, D. and P., jun., and three daughters and one grandson, P. McV., being a son of a daughter. When the testator died the property was subject to a lease, which e.\pired in 1857. P. P., jun., after havnig gone into occupation, in that year conveyed his interest to P. McV. and left the place. Subsequently, the appellant, son of I). F., and heir-at-law of P. F., senr., took a conveyance from P. McV., and thereupon the respondent, heir-at-law of P. F., junr., brought an action in ejectment, claiming that under the will his father took an estate tail which descended to him. The Court of Queen's Bench gave judgment in favour of the heir-at- law, which judgment was rct'ersed by the Court of Appeal for Ontario. Held, on appeal, that the devise liy the testator to his first great grandson being void for remoteness, and there being no intention to give to P. F., jr., any estate or interest independent of, or unconnected with, the devise to the great grandson, there was no valid disposition to disinherit the heir-at-law and therefore the plaintiff was not entitled to recover. Strong, J., dissenting. PiT Ritchie, J. — Where the rule of law, independent of and paramount to the testator's intentions, defeats the devise, the proper course is to let the property go as the law directs in cases of intestacy. Ferguson v. Fergu8on.--ii. 4i)7. 2, Ejectment — Statute of limitations — Acceptance of deed hy peraon in possesnion — "Any issue of his hcnly lawfully begotten or children of such issue surviving him" — Ques- tion not raised at trial. In 18,S0 James Gray took possession of east half of lot No. IH, in the Ist concesBion of East Hawkosbury, He resided on the west half of said lot with t his sons, and occasionally assisted in working the whole lot, until his deatl>, whicl> occurred in 1857. In 1847-48, while his son Adam was working tin- east half, and in possession, James Gray devised it to him by will, and the land was known aa "Our Adam's." In 1857 James (Jiay made a second will, in which he said: "I give and devise to my son John Gray, his heirs and assigns, etc., to have and to hold the promises above duscribed to the said John Gray, his heirs and assigns forever. But if my said son John should die with out leaving any issue of his body lawfully begotten, or the children of sucli issue surviving him, then in such case I will and devise the said, eto., to mv son Thomii.n Gray, his heirs and assigns, to have and to hold the same at tlw death of the said John Grav." After the father's death Adam remained in 867 ■ Will — Continued. possession, and in 1802 lie accepted a conveyixnce with full covenants for title from Jolin. On loth September, 18C8, Adam conveyed to A. McC, one of the respondents, and R., the other respondent, claimed title under A. McC, as landlord. In 1874 .Tolin died without leaving any lawful issue, and on the oth May, 1875, Thomas (appellant) broUi,'ht ejectment against respondents, but neither at the trial nor in term was any question raised as to the effect of John's deed. Held, 1. That James Gray, the father, at the time of his death had acquired a title to the lot by length of possession. That, under the will, John Gray, took an estate in fee, with an executory devise over to Thomas Gray, in the event that happened of John Gray dying without leaving lawful issue." 2. Tliat Adam, liaving recognized, in 18()2, John's interest in the land by purchasing from him, by deed of bargain and sale, a limited and contingent estate, its effect wag to stop the running of the statute, and the respon.lents cannot set up Adam's possession under John to defeat the contingent estate. 3. That the Court of Appeal could not refuse to entertiiin the (juestion as to the effect of John's deed, although not raised at the trial nor in ttrm. Gray Y. Richford.-ii. 431. 3. Administratrix with will annexed, jnirchase of real eMate by, ^vhen persumd assets of testator sufficient to pay off incum- brance— Subsequent parol agreement to sell part of said land null — Compensation money for land, ritjkt to and how to be treated — Revised Statutes of Nova Scotia, 4fh series, c. u'(J, s. Iff). About 1837 Andrew McMinn devised his lands to his wife, Mary McMinu, for life with remainder to Maria Kearney. Letters of adminisfration with the will annexed were granted to the widow. At the time of testator's death the lands were mortgaged for tloO. A suit to foreclose this mortgage was instituted after the testator's death, and it was alleged that under it a fore- closure was obtained, and tiie property sold, and purchased by tlie adminis- tratrix for £905. There was evidence that the ailministratrix received personal assets of the testator sutticient to have paid off the mortgage, had she chosen so to apply them. The sum of t;725 was lent to the adminis- tratrix by Ami Koan, her daughter by a former marriage. The adminiHtratrix then sold the property to the public authorities for t;i,7")0, out of which she paid her daughter i;400. From 1H58 the daughter, with the leave of the •vdmimstratrix, occupied about \ of an acre of the land, until, in 1873, under the authority of an expropriation Act, she was ejected from it, tlie commis. sionor taking in all 3 acres i'„tliB of this property, the balance being in the occupation of Maria Kearney, and her husband, Francis Kearney (the appel- lants). These 3 acres ,'ntii8 were iippraiaad at ?2,310, and that sum was paid into court to abide a decision as to the legal or "ipjitalile rights of the parties respeitively, Ann Kean, claimed a title to the whole of the land taken under an alleged parol agreement with hor mother, that she should have the laud in butisf action of tA'lb, the residue unpaid of the loan of the 868 Will — Continiced. £275, and obtained a rule nisi for the payment to her of the sum of $2,310, the amount awarded as a compensation for the land. In May, 1872, the admin- istratrix executed an informal instrument under seal, purporting to be a lease of her life estate to the ap pellants in the whole property, reserving a rental of J80 a year" and liberty to occupy two rooms in a dwelling house then occupied by her. On a m tion to make this rule absolute, several '' affidavits were filed, including those of the appellants. On the 18th January, 1875, the matter was referred to a master to take evidence and report thereon, subject to such report being modified by the court or a judge. The master reported that the appellants had the sole legal and equitable rights in the property. On motion to confirm that report, the court made an order apportioning the $2,310 between Ann Kean and the appellants, the former being declared entitled to be paid ?1,015.()1, and the latter, on filing the written consent of Mrs. McMinn, the residue of the $2,310. Held, on appeal, 1st. That the administratrix, having personal assets of the testator sufficient to discharge the mortgage, was bound in the due course of her administration to discharge said incumbrance, and that the parol agree- ment made by her with her daughter was null and void. 2nd. That when the land is taken under authority of leeislative provisions similar to Revised Statutes of Nova Scotia (4th Series), c. .iti, s. 40, et scq., the compensation money, as regards the capacity of married women to deal with it, is still to be regarded in equity as land. Kearney v. Kean.— iii. 332. 4. Construction of — Tenants in common or joint tenants— Costs. By will J. H. A. directed : — " Until the expiration of four years from the time of my decease, and until the division of my estate as hereinafter directed, my executors shall every year place to the credit of each of my children the sum of sixteen hundred dollars, and if any of my children shall have died, leaving issue, then a like sum to and among the issue of tlie child bo dying, such sum of sixteen hundred dollars to bo paid by half yearly instalments to such of my cliildren as shall ho of age or be married ; but if any advances shall liave been made to any of them, and interest shall be due thereon, such interest to be deducted from the said sum of sixteen hundred dollars. An regards the division, appropriation, and ultimate disposition of my estate, it is my will that, subject to the payment of my just debts and legacies, bo. liy the will he devised to his widow an annuity of 810,000 for her life, which he declared to bo in lieu of her dower. This annuity the testator directed should be chargeable on his general estate. The testator then devised and bequeathed to the executors and trustees of his will certain real and personal property particularly described in five schedules, marked respectively. A, IJ, C, D and E. iinne.xed to Inn will, upon these trusts, • viz. : Upon trust, iluriuf^ the life of his wife, to collect and receive the rents, issues and profits thereof which should be, and be taken to form a portion of his " general estate ; " and then from and out of the general estate, during the life of the testator's wife, the executors were to pay to each of his five 870 Will— Continued. "'■'' daughters the clear yearly sum of $1,600 by equal quarterly payments, free from the debts, contracts and engagements of their respective husbands. Next, resuming the statement of the trusts of the scheduled property specifi- cally given, the testator provided, that from and after the death of his wife, the trustees were to collect and receive the rents, issues, dividends and profits of the lands, etc., mentioned in the said schedules, and to pay to his daughter M. M. A., the rents, etc., apportioned to her in schedule A. ; to his daughtei' E. of those mentioned in schedule B. ; to his daughter M. of those mentioned in schedule C. ; to his daughter A. of those mentioned in schedule D. ; and to his daughter L. of those mentioned in schedule E. ; each of the said daughters being charged with the insurance, ground rents, rates and taxes, repairs and other expenses with, or incidental to the management and upholding of the property apportioned to her, and the same being from time to time deducted from such quarterly payments. The will then directed the executors to -keep the properties insured against loss by fire, and in case of total loss, it should be optional with the parties to whom the property was apportioned by the sched- ules, either to direct the insurance money to be applied in rebuilding, or to lease the property. It then declared what was to be done with the share of each of his daughters in case of her death. In the residuary clause of the will there were the following words: — "The rest, residue and remainder of my said estate, both real and personal, and whatsoever and wheresoever situated, I give, devise and bequeath the same to my said executors and trustees, upon the trusts and for the intents and purposes following." He then gave out of the residue a legacy of 51,000 to his brother D. K. , and the ultimate residue he directed to be equally divided among his children upon the same trusts with regard to hia daughters, as were tliereinbefore declared, with respect to the said estate in the said schedules mentioned. The rents and profits of the whole estate left by the testator proved insnfticient, after paying the annuity of $10,- 000 to the widow, and the rent of and taxes upon his house in L., to pay in full the several sums of Irl.CiOO a year to each of the daughters during the life of their mother, and the 800 to his wife J. M.. ';400 to each of his nieces, M. and E. 11., and ?> 100 to his brother, with reversion to the nieces if not claimed within a year, and the ronniinder to E. K. On the 17tii November, 1878, W. R. made anotlier will, which is tlio subject of the present litigation, and by wiiich he revoked his former wills and gave S'2.000 to F. S., for the poor of the parisli, of St. Rochs, and the remainder of his property to his " beloved wife, J. M." On the 10th January following, W. It. was interdicted as a lunatic, and a curator appointed to his estate. He renuvinetl in an asylum until December, 187'.), when he was released, and lived until his death with liis niece, ll. II., sister of the appellant. Chief Justice Mereiiitli upheld the validity of the will, and his ilecisiun was athrmed by tlie Court of Queen's Bunch. On appeal to tlie Supreme Court of Canada, Held, 1. Reversing the judg- ments of the Courts below, Ritchie, C. J., and Strong, J., dissenting, that tho proper inference to be drawn from all the evidence as to the mental capacity •a' 872 Will — Continued. .,.!;■■ — -!',iW of the testator to make the will of the 2l9t November, was that the testator, c at the date of the making of the will, was of unsound mind. 2. That, as it appeared that the only consideration for the testator's liberality to J. M. was, that he supposed her to be " my beloved wife, Julie • Morin," whilst at that time J. M. was, iu fact, the lawful wife of another man, the universal bequest to J. M. was void, through error and false cause. 3. That it is the duty of an Appellate Court to review the conclusion arrived at by courts whose judgments are appealed from upon a question of , fact when such judgments do not turn upon the credibility of any of the witnesses, but upon the proper inference to be drawn from all the evidence in the case. [An application for leave to appeal was refused by the Judicial Committee of the Privy Council] . Russell v. Lefranoois. — viii. 3.S5. 8. Construction of — Art. 889, civil code — Licthility of universal legatee for hypothec on immoveables bequeathed to a j^ar^i- ciilar legatee. ' On the 30th April, 1869, H. S. being indebted to J. P. in the sum of $3,000, granted a hypothec on certain real estate which he owned in the city of Montreal. On '28th June, 1870, H. H. made his will, in which the following clause is to be found: " Tliat all my just debts, funeral and testamentary expenses be paid by my executors, hereinafter named, as soon as possible after my death." By another clause he left to W. II. iu usufruct, and to his children in property, the said immoveables which had been hypothecated to secure the said debt of ?3,000. In 1879 H. S. died, and a suit was brought against the representative of his estate to recover this sum of f 3,000 and interest. Held, re- srsing the judgment of the Court of Queen's Bench, Strong, J., • disFcnting, that the direction by the testator to pay all his debts included the debt of $3,000 secured by tlie hypothec. Per Fournier, Taschereau and Gwynne, JJ. — When a testator does not expressly direct a particular legatee to discliarge a hypothec on an immove- able devised to him, Art. 889 of the C. C, does not bear the interpretation that such particular legatee is liable for the payment of such hypothecary debt !■. }vithout recourse against the heir or universal legatee. Harrington v. Corse.— ix. 412. "9. Construction of — Execvt^2, said sums to pay the shares of two of the sons, Alexander and Duncan. By the 4th clause he gave the sum of $1,600, without condition, to each of his sons, Alexander and Duncan. By the 5tb clause, he devised to his sons, Douglas aud Robert, two lots ; and after giving 875 Will — Continued. several legacies to his daughters, he proceeded : " And further that Alexander and Duncan work on the farm until the legacies become due." Alexander left the farm in 1871 and entered into mercantile pursuits. Held, reversing the judgment of the Court of Appeal for Ontario (6 Ont. App. R. 595), Ritchie, C.J., and Henry, J., dissenting, that the construction of the paragraph in the will, bequeathing the 81,000 to Alexander must be based on a consideration of the whole will, and that the intention was that Alexan- der's right to receive his legacy was conditional on his working on the farm and assisting in earning it. Oliver v. Davidson. — xi. 166 12. lleuiovalof executrix for wasteful and fraudulent administra- tion. Sre EXECUTOR, 5. .; ' • Id. Construction of — Contingent interest T. McK., a testator, having previously given all his estate, real and per- sonal, to trustees in trust for his wife for life, or during her widowhood, made a devise as follows : — " In trust also, that at the death, or sacond marriage of my said wife, should such happen, my son Thomas, if he be then living shall have and take lot number 1, etc., which I hereby devise to him, his heirs, and assigns to and for his and their own us3 for ever." The testator then gave to his other sons and to his daughters other real eslate in fee. He directed that all the said devises " in this section of my will mentioned and devised " should take effect upon and from the deatli or marriage of his wife, r.nd not sooner. He gave all his other lands in trust for sale, the rents and proceeds to be at his wife's disposal while unmarried, and after her death or marriage all his personal property and estate remaining Wiis to be equally divided among his children ; provided always, that in the event of any child dying without issue before coming into possession of his or her share " of tlie property or money hereby devised or bequeathed," the share of such child should go equally among the survivors and their issue, if any, as shall have died leaving issue. The residuary clause was as follows : — " All other my lands, tene- ments, houses, hereditaments, and real estate," etc. Held, Ritchie, C.J., and Fournier, J., dissenting, reversing the judgment of the court below, Keefcr v. McKaij, U Ont. App. R. 117, that the interest devised to Thomas was contingent upon his surviving his mother. ■ ' ' Merchants' Bank v. Kcefer.— 12th Jan'y, 1885.— xiii. 515. 14. Will, construct ion of — Devise to creditor of certain sjtecific lands and of unascertained chattels not superseded — Satis- faction. The will of the late John Severn by clause " B " provided as follows : — " I devise all the lands situate in said village of Yorkville, and particularly described in the first schedule hereto, unto ray son George, his heirs and assigns, together with their actual and reputed appurtenances, or with the same or auy part thereof, held, used and occupied or enjoyed, or known, taken 876 Will — Continued. or considered as part or parcel thereof, together also with all and all manner of engines, fixtures, utensils and implements, and the appurtenances and stock in trade therein, or in or about the premises at my decease, he or they paying in exoneration of any other estate, any incumbrances which at the time of ray decease shall affect the same, and this devise to be accepted by and to be in full discharge of any and eveiy claim he shall have against my estate at the time of my decease." Clause " L " provided : " And it is my will and desire that, if at any time between the day of the date of this my will and the time of my decease, any sale or other disposition of any of the said lands and premises herein specifi- cally devised by me shall be made by me, the consideration money received therefor in money or otherwise, to the amount thereof, or the value thereof, shall be a charge upon the whole of my real estate, and shall become due and payable to the devisee to whom the said land is herein specifically devised, or to his or her heirs, executors, administrators or assigns, within five years after my decease, with interest after the first year of my decease, the securities (if any) received in part or whole payment of such consideration, if any being at the time of decease, to be transferred, conveyed and assigned to the said devisee, his or her executors, administrators or assigns, and to be by him, her ' or them received as to the amount then owing thereon in part or in whole payment of the said consideration money as the case shall be." ' Betv.-een the date of the making of the will and the death of the said John Severn, the said testator sold the said properties specifically devised by Clause " B '' of the said will, comprising a brewery and stock and plant therein, to his son George, the appellant, the purchase money paid thereon being the sum of f 33,987.20 and it was contended on the part of the appellant that, to the e.itent of this sum of $33,987.20, the said appellant was entitled, under Clause "L" . of the said will, to a charge upon tho estate of the testator. The Court of Appeal for Ontario Held, reversing the judgment of Fergu- son, J., that in effecting the sale to the appellant, the testator made a sale in a manner not contemplated by him at the date of the making of the said will ; and that by the said will the said testator provided in Clause "L" for a sale by himself to some third person, and that the testator intended when entering into the agreement with the appellant to supersede the devise referred to in favour of the appellant, and that the effect of the sale was to accomplish that purpose. (See 8 Out. App. U. 725). On appeal to the Supreme Court of Canada, Held, reversing the judgment of the Court of Appeal, that the devise of the lands was not superseded — Gwynne, J., dissenting. But the appellant was not entitled to the value of the stock and plant in the brewery, in the event of their sale to him in the testator's lifetime, because what was given to him was not, as in the case of lands, certain specific ascertained property, but only fluctuating and unascer- tained property, tinit is, such property as should be on the premises at the time of the testator's decease. Appeal allowed with costs of all parties out of the estate. Bevern v. Archer. — 16th February, 1885. 877 Will — Continued. '■•■'■■' 15. Devisee — Mortgage by testator — Foreclosure of — Suit to sell real estate for payment of debts — Decree under 5 Geo. 11. c. 7 — Conveyance by purchaser at sale — Assignment of mortgage — Statute conlirming title — R. S. (N.S.) 4th Series, c. 36, s. 47. See SALE OF LANDS, 17. 16. Will, construction of — Legacy — Alienation of pro2}erty be- queathed by testator, e feet of — Partition — Estoppel. \V. F. by his will bearing date 11th February, 1833, inter alia devised to M. his daughter by an Indian woman and to E. and M., his daughters by ano- ther woman, a defined portion of the seigniories of Temiscouata and Madawaska, and the balance of said property to his sons W. and E. A short time after making his will the testator, who was heavily in debt, received an unexpected offer of £15,000 for the said seigniories, and he therefore sold at once, paid his most pressing debts, amounting to £5, 400 and the balance of £9,600 was invested by .'oaning it on security of real estate. At his death, his estate appearing to be vacant as regards the £9,600, a curator was appointed. On the 27th September, 1839, the parties entitled under the will proceeded to divide and apportion their legacies, basing their calculations upon the approxi- mate area of the seigniories dievised, and received the collected part of the sums allotted to each by the partition. In an action brought by W. F. the respondent, who was residuary legatee, against the curator in order to make him render an account, the court ordered the curator to render an account, which he did, and he deposited $50,000 and other securities. On a report of distribution being made W. F. (the respondent) filed an opposition claiming his share under the will. This opposition was contested by J., the appellant, on the grounds : lst.« That the legacies were revoked and that in his capacity of universal legatee to his mother (the legitimate child, he alleged, of the testator, and the Indian woman who was commune en hiens with the testator) he was entitled to one-half of the proceeds of the said £9,600 ; and 2nd. that in the event of his claim to legitimacy and revocation of the legacy being rejected, as by the will the daughters were exempt from the payment of the debts, he should, as represent- ing one of the daughters, be entitled to her proportion of £15,000, the net proceeds of the sale. Held, affirming the judgment of the court below, that J. (the appellant), not having at the death of his mother repudiated the partage to which she was a party, but on the contrary having ratified it and acted under it, was estopped from claiming anything more than what was allotted to his mother. Per Strong, Fournier and Taschereau, JJ. — That under the law prior to '^ the Code the sale of the seigniories which were the subject of the legacy in question in this cause, had not, considering the circumstances under which '♦^^ was made, the effect of defeating the legacy. Seinble, jter Henry, J.— That there was a revocation of the legacy. The judgment of the court below held that as the testator declared that the daughters should not be liable for the payment of his debts, partition, as- 878 VJill—Contimii'd. ■ ■ regards tliem, slioukl be made of the sum of £lu,O0O, the price obtained from the sale of the seij^niories bequeathed, and not of the £'J,GOO remaining in his succession at his death. On cross nvipeal to the Supreme Court of Canada, Held, that on the pleadinj^s before the court no adjudication could be made as to the sum of £5,400 paid by the curator for the debts, and that in the distri- bution of the moneys in court all that J. (the appellant) could claim to be collocated for, was the unpaid balance (if any) of his mother's share in the moneys, securities, interest, and profit of the said sum of £9,000 in accordance with the }j(trtii(je of the 27th September, 1839. Jones Y. Fraser. — xiii. 342. 17. Devise under — Ahsola te — Sii hsequent restriction — Repug n ancy. A testator directed his real estate to be sold and the proceeds, after pay- ment of debts and certain legacies, to be divided into twelve equal parts, " five of which 1 give and devise to my beloved daughter C. M., four of which I give and devise to A. E. F., (daughter), and three of which, subject to the condi- tions and provisions hereinafter set forth, I reserve for my son C. V/. M. But in no case shall any creditor of either of my children, or any husband of either of my children, daughters, have any claim or demand upon the said exeou- trices, etc., but their respective shares shall be kept and the interest, rents, and profits thereof shall be paid and allowed to them annually • • » during their respective lives." In an action by the daughters to have their shares paid over to them untrammelled by any trust. Held, affirming the judgment of the court below, that it was clearly the intention of the testator that the daughters should only receive the income from the shares during their lives. Foot Y. Foot.— .XV. 699. 18. Trustees under, in Province of N. S. prior to 51 V. c. 11, s. 69 — Comiuission to — Rule of law. See TRUSTS AND TEUSTEES, 1(5. , , . Id. Contingent interest — Protection against waste. •• '•' ^ By his will a testator provided as follows : :%. " I give, devise and bequeath unto my dear wife J. all and singular my real and personal estate, property , monies, etc., etc., to have and to hold the same, etc., to my said \vite J. her heirs, executors, administrators and assigns forever. " And my will is further that in case there should be any child or children of my deceased brother M., formerly of, etc., living at the time of the decease of my said wife, then that such child or children should receive out of the proceeds of my said property at her decease the sum of three thousand pounds, Halifax currency." D. the only child of M. during the lifetime of the testator's wife brought suit to protect his legacy against dissipation of the estate by the widow. Held, reversing the judgment of the court below, that D. had more than a possibility or expectation of a future interest ; he had an existing contingent 879 Will— Cotitiniml. intoreat in the estate and was entitled to have the estate preserved that the legacy might he paid in case of the happening of the contingency on which it * depended. Duggan v. Duggan.— xvii. 343. 20. Construction of — Devise — Joint tenancy or tenancy in common — Evidence to establish — Adniissibility of. A will devised certain property to the testator's two sons, their heirs, etc., and provided that the devisees should jointly and in equal shares pay the tes- tator's debts and the legacies in the will. There wer" six legacies of £50 each to other cliildren of the testator, and tliese were to be paid by the devisees at the expiration of 2, 3, 4, 5, G and 7 years respectively. Tlie estate vested before the statute abolishing joint tenancies in Nova Scotia came into opera- tion. Held, reversing the decision of the court below, Tascheroau and Gwynne, JJ., dissenting, that these provisions for payment of debts and legacies indi- cated an intention on the testator's part to effect a severance of the devise, and the devisees took as tenants in common and not as joint tenants. Fisher V. Anderson, 4 C. S. C. R. 406, followed. On the trial of a suit between persons claiming through the respective devisees to partition the real estate so devised evidence of a conversation between the devisees, which plaintiff claimed would show that a severance waa made after the estate vested, was tendered and rejected as being evidence to assist in construing the will. Held, Gwynne, J., dissenting, that it was properly rejected. Held, 2J«r Gwynne and Patterson, J.T., that the evidence might have been received as evidence of a severance between the devisees themselves if a joint , tenancy had existed. i • ' Clark Y. Clark. -xvii. 376. 21. Construction of — Transfer — Effect of — Sale of rights — Man- datory — Negotiorum gestor — Parties to suit for partition — Art 9-20, C. a P.— Purchase by curator— Art. l^Sl G. C. In 1871, C. Z. D., one of the institutes under the will of G. D. died without issue, and by his will made the defendant his universal legatee. Plaintiff claimed his share in the estate of G. D. under a deed of assignment made by defendant to plaintiff in 1862 of all right, title and interest in the estate. Held, that the plaintiff did not acquire by the deed of 1862 the defendant's title or interest in any portion of C. Z. D.'s share under the will of 1871. Held, further, that under the will of the late J. D., C. Z. D. 's share reverted either to the surviving institutes or to the substitutes, and that all defendant took under the will of C. Z. D. was the accrued interest on the capital of the share at the time of his death. By the judgment appealed from, the defendant was condemned to render an account of his own share in the estate which he transferred to plaintiff by notarial deed in 1862, and also an account of C. D.'s share, another institute 880 "Will — (.'(intiniti(L who in 1882 transferred his rights to the plaintiff. The transfer made by the ' defendant was in his capacity of co-legatee of such riglita and interests as he had at the time of the transfer, and he had at that time received the sixth of the sum for which he was sued to account. Held, reversin"; the judghient of the court below, that the plaintiff took nothing as regards these sums under the transfer, and even if he was en- titled to anything, the defendant would not be liable in action to account aa the mandatory or negotionim ijestor of the plaintiff. ■2. F. D. and E. D., having acquired an interest in C. Z. D.'s share after they had transferred tneir share to the plaintiff in 18(51), the plaintiff could not maintain his action without making them parties to the suit. Art, 920, C.P. C. Per Taschereau, J. — Qu(Pre ; Were not the transfers made by the institutes E. D., F. D.aud C. D. to the plaintiff while ho was curator to the substitution null and void under Art. 1484, C. C? Dorion y. Dorion. — xx. 430. 22. Devise of land without estate therein — Action for declaration of title — Pos.session — Statute of Limitations. See TITLE, 7. 23. Will — Construction — Devise to children and their issue — Per stirpes or per capita — Statute of Limitations — Possession. Under the following provisions of a will. " When my beloved wife shall have departed this life and my daughters shall have married or iloparted this life, I direct and require my trustees and executors to convert the whole of my estate into money . . . and to divide the same equal'y among those of my said sons and daui;htcrs wlio may then he living, and the children of those of my said sons and (iaughters who may have departed this life pre- vious thereto : " Held, nnersiiig the judgment of the Court of .\i)pei>l for Ontario, Ritchie, C.J., iliasenting, that the distribution of the estate should bo per cupitu and not per stirpem. A son of the testator and one of the executors and trustees named in the will was a minor wlien his father died, and after coining of age ho never applied for probate tliougli he knew of the will and did not disclaim. With the consent of the acting trustees i)e wont into possosu^on of a farm belonging to the estate and ren'.ained in possession 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 Htatute of Limitations. Held, aflirming the decision of the Court of Appeal, that as he held under an express trust by the ti^rms of the v. til, the rights of the other devisees could not be barred by the statute. Houghton V. Bell.— April 4th. 1892. 881 ■WWl— Continued. 24. Agreement to provide for gi-and-daughter by will — Services i-endered — Specific performance— Remuneration quantu'ni mem it. See SPECIFIC PERFORMANCE, 6. : .. - 25. Executor — Incumbrance on propei-ty of estate by — Judgment against executor by Legatee — Priority of, over pei-sonal creat case I give, deviHe and buijuuath the said property so hereby bequeathed to him to the said Helen Mahers in full property to bo disposed of by last will and tostanient or otherwise as she may think fit, and without any account to bo rendered of the same or of any part thereof to any person or (Hsraons whonisoover. "To have and to h')ld the said hereby becpiuathed and j/iven property to tlu< aaid •lames iMcGrogor, hia heirs and assigns, should he survive hia aaid mother, as and for hia and th^ir own property forever, and iu the event of hia predecenaing his said mot'ior< nto the aaid Helen Mahera, her heira and aaaigna, aa and for her and their uroperiy forever." CAB. DID. — 56 882 Will — Continued. .,.. v... ■,?.!"' '■i Held, affirming the judgment of the Court of Queen's Bench for Lower Canada (Appeal side), 1 R. Q. (1892) 197, that the will of J. McG. did not create a substitution, but a simple bequest of usufruct to his wife and of owtiership to his son. Held, also, that a sheriff's sale (dknl) of property forming part of J. McG. 'a estate under an execution issued against a person who was in posses- sion under a title from the wife, such sale having taken place after J. McG.'s son became of age, was valid and purged all real rights which the son might have had under the will. Art. 711, C. C. P., Patton v. Morin, 10 L. C. R. 267, followed. McGregor v. Canada Investment and Agency Co. — sxi. 499. Winding -up — Of insolvent bank under Imperial Companies Act, 1802. See CORPORATIONS, 15. 2. Of insolvent bank under 45 V. c. 23 (D.). See BANKS AND BANKING, 7. 3. Right of set off by shareholder in action a(;i.wist — 45 V. c. 23, 8. 70 (D.). See BANKS AND BANKING, 8. 4. Of insolvent bank — Pi'iority of Crown — Not taken away by 45 V. c. 23 (D.). See CROWN, 15. ' 5. Wmdhiff-uj^ Act — Compavy — Winding up order — Notice to creditors, etc — J^6 V. c. J3, a. 2Jf,. It is a substantial objection to a winding up order appointing a liquidator to the estate of an insolvent company under 45 V. c. 23, that such order has been made without notice to the creditors, contributories, shareholders or members of the company as required by s. 24 of said Act, and an order so made was set aside, and the petition therefor referred back to the judge to be dealt witli anew, Per Gwynne, J., dissenting, that such an objection is purely technical and unsubstantial, and should not be allowed to form the subject of an appeal to this court. Shoolbred v. Union Fire Ins. Co.— xiv. 624. 6. 4^ V. V. 13 — 47 V. c. 30 — Winding-up of insolvent bank — Proceediiiga in case of. -r Sections 2 A .4 of the Winding-up Ac*., 47 V. c. 39, providing for the wind- ing up of insolvent companies do not apply to banlts, but an insolvent banli whether in process of li(]uidAtion or not at the time it is sought to bring it under the Winding-up Act, must be wound up with tlie preliminary proceedings 883 Winding-up — Contimied. provided for by bs. 99 to 102 of 45 V. c. 23, as amended by 47 V. c. 39 (2). Strong and Gwynne, JJ , disst!ntin<^. ■" '" Mott Y. Bank of Nova Scotia. — In re the Bank of Liverpool. — xiv. 650, 7. Windinr/-wp Act — Bank — Shareholders in — Whuling up — . , , . R. S. C. c. 1.10 — Contributory — Calls on — Double liability ■ • ' —Set-off- Bank Ad—R. S. G. c. 120. A contribntory of an insolvent company, who is also a creditor, cannot set off the debts due to him by the company against calls made in the course of winding-up proceedings in respect of the double liability imposed by the Banking Act, Revised Statutes of Canada, c. 120. The Maritime Bank v. Troop.— xvi. 456. 8. Winding-up Act — R. S. G. c. 129 — Application of to provincial company — Winding-up proceedings — Reference to master. A company incorporated by the legislature of Ontario may be put into compulsory liquidation and wound up under the Dominion Winding-up Act, R. S. C c. 121). In assigning to provincial courts or judges certain functions under the Winding-up' Act, Parliament intended that the same should be performed by means of tiio ordinary machinery of the court and by its ordinary procedure. It is, therefore, no ground of objection to a winding-up order that the security to be given by the liquidator appointed thereby is not lixed by the order, but is left to be settled by a master. Shoolbred v. Clarke. — /" re Union Fire Ins. Co.— xvii. 265. 9. Winding-up Ait, R. S. C. c. 120, s. 3 — Constitutional law — Foreign corporations — Liquidation. ■ Section A of " The Winding-up Act," Revised Statutes of Canada c. 120 which provides that the Act applies to . . . incorporated trading companies doing business in Canada wheresoever inc ''i.oraied is intra vireti of the Parlia- ment of Canada. 2, A winding-up order by a Canadian Court in the matter of a Scotch company incorporated under the Imperial Winding-up Acts doing buainoas in Canada, and having assets and owing debts in Canada, which order was made upon the petition of a Canadian creditor with the consent of the liquidator previously appointed by the court in Scotland as ancillary to the winding-up proceedings there is a valid order tmder the said Winding-up Act of the Dominion. Merchant'n Hank of llalijux v. Gilli'upii', 10 Can. 8. C. R. 312, dis- tinguished. Allen V. Hanson. — In re the Scottish Canadian Asbestos Co.— xviii. 067. 10. Winding-ujy Act — R. S. C. c. 129 — Iitsolrent bank — Appoint- vient of liquidators — Right to appoint another bank — Dis- cretion of judge. The Winding-up Act provides that the shareholders and creditors of a company in li(]uidation shall severally meet and nominate persons who are to 884 Winding-up— Conthmed. -' ■^' ' qi- yiubaiW be appointed liquidators and the judge having the appointment shall choose the liquidators from among such nominees. In the case of the Bank of Liverpool the judge appointed liquidators from among the nominees of the creditors, one of them being the defendant bank. Held, affirming the judgment of the Supreme Court of Nova Scotia (22 N. S. Eep. 97) that there is nothing in the Act requiring both creditors and share- holders to be represented on the board of liquidators ; that a bank may be appointed liquidator ; and that if any appeal lies from the decision of the judge in exercising his judgment as to the appointment such discretion was wisely exercised in this case. i Present : Sir W. J. Ritchie, C.J., and Strong, Fournier, Gwynne and Patterson, J J. Forsythe v. The Bank of Nova Scotia (In re The Bank of Liverpool) —May G, 1890.— xviii. 707. 11. Of foreign company — Manager — Possession of liooks by — Re- fusal to deliver up. See EVIDENCE, 48. . , 12. Wmdi}}g-^lp Act — Joint and several debtors — Insolvency — Distribution of assets — Privilege — R. S. G. c. JJ9, s. 62. — Deposit taith bank after susjwnsion. Held, per Ritchie, C.J.. and Taschereau, J., affirming the judgment of the Court of Q. B. for L. C. (appeal side), Strong and Fournier, JJ., contra, that a creditor is not entitled to rank for the full amount of his claim upon tlio separate estates of insolvent debtors jointly and Heverally liable for the amount of the debt, but is obliged to deduct from his claim the amount previously received from the estates of the other parties jointly and severally liable therefor. Per Gwynne and PatterHon, JJ., that a person who has realized a portion of his debt upon the insolvent estate as one of his co-debtors, cannot bo allowed to rank upon tlie estate (in licjuidation under tlie Windin'lup Act) of hisother co-debtors jointly and severally liable without first deducting the amount he has previously received from the estate of his co-debtor. R. S. C. c. 129, s. 62. The Winding-up Act. Held, also, affirming the judgment of the court below, that a person who makes a deposit with a bunk after its suspension, the deposit coMsisting of ohequRS of third parties drawn on and accepted by the bank in question, is not entitled to bo paid by privilege the amount of such deposit. Ontario Bank v. Chaplin.— xx. 163. 13. Prenxjative — Exercise of local government by — Provincial rights. i^.,ty-\ .K'..><'» The government of each province of Canada represents The Queen in the exercise of her prerogative as to all matters affecting the rights of the province. The Queen v. The Bank of ^'ova Scotia, 11 Can. S. C. R. 1, foUuv.-ed. Owynne, J., dissenting. Winding-up — Continued. Under s. 79 of the Bank Act, R. S. C. c. 120, the note-holders have the first Hen on the assets of an insolvent bank in priority to the crown. Strong and Taschereau, JJ., dissenting. But see the present Bank Act, 53 V. c. 31, 8. 53, passed since the decision. Liquidators of The Maritime Bank v. The Receiver-General of New Brunswick. , , — xx. 695. Witness — Refusal to answer questions on cross-examination — Improper ruling — Misdirection. Plaintiff (respondent), a teller in a bank in New York, absconded with funds of the bank, and came to St. John, N. B., where he was arrested by the defendant (appellant), a detective residing in Halifax, N. S., and imprisoned in the police station for several hours. No charge having been made against him he was released. While plaintiff was a prisoner at the police station, the defendant went to plaintiff's boarding house and saw hia wife, read to her a telegram and demanded and obtained from her money she had in her possession telling her tliat it belonged to the bank, and that her husband was in custody. In an action for assault and false imprison- ment and for money had and received, the defendant pleaded, inter alia, that the money had been fraudulently stolen by the plaintiff at the city of New York, from the bank, and was not the money of the plaintiff ; that defendant as agent of the bank, received the money to and for the use of the bank, and paid it over to them. Several witnesses were e.xamined, and the plaintiff being examined as a witness on his own behalf, did not, on cross- examination, answer certain questions, relying, as he said, upon his counsel to advise him, and on being interrogated as to his belief that his so doing would tend to criminate him, he remained silent, and on being pressed he refused to answer whether he apprehended serious consequences if he an'iwered the questions proposed. The learned judge then told the jury that there was no identification of the money, and directed tliern that if they should be of opinion that the money was obtained by force or duress from plaintiff's wife they should ttud for the plaintiff. Held, Henry, J., dissenting, that the defendant was entitled to the oath of the party that he objected to answer because he believed hia answering would tend to criminate him. Power Y. Ellis.— vi. 1. 2. Right of two counsel to cro.ss-cxamine the witness. Ste CONTRACT, 4. 3. CrosH-examiniition of witne.ss — Contradiction. See CRIMINAL APPEAL, 4. Words, Construction of— Income. See AKSESSMENT, 0. 2. Good nierchantahle timber. _ __ Ste AGREEMENT, 1. 886 Words, Construction of— Con«m?<«(/. -^ . 3. Wilful offence. I- ; J See ELECTION, 8. ' j 1 4. At owner's risk. * ' See RAILWAYS AND RAILWAY COMPANIES, 6. 5. Go out in tow. See INSURANCE, MARINE, 1. 6. On view. * , See PARLIAMENT OF CANADA, 4. 7. Trader. ;. See INSOLVENCY, 14. 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B se o H x> .a H o 1-5 72 892 S R I > (• t J . . '_ r ! / 1 > 1) 1 ij S — — e8 rt « 1 £ ^ ^ jS > > > 13 'C » 0- 5e sfi 1" «3 O i-H ■^ is C5 »>" C5 I- »iS *M>, -^ t^ Eh' h4 C5 o i4 ■-. ^ =^ S SHhI «i5cq 12 z^- .si ^ m IS t "»■ **« Tl f-' iS •r ^ fi t- J'* . - ' . do MM 5 ^ M P5 tf tf 3 §^ 3S M O O 5^1 1-1 o o o o o o CO !» IN is t. > i a JS o X, •^' J3 C O a V H >, c i •a c o O o c :« > e u a b O 0; 01 ^ 3 o PS 03 o 60 a. .' ' u '■ I 893 APPENDIX B. Articles or the Codes Discussed and Referred to. Code, Civil, of Lower Canada. : See Action 7, Art. 2262. 8, Arts. 1056, 2188, 2261, 2262, 2267. Agreement 7, Arts. 1966, 1969, 1970. • h - Banks and Banking 4, Art. 1143. ; - ?; " 18, Arts. 1031, 1981. -■ '• ' ■- 25, Arts. 14, 1970, 1973, 1975. ''■• Builder's Privilege, Arts. 1695, 2018, 2103. Community, Arts. 1760, 1265, 774. Contract 1, Arts. }067, 1073, 1544. .. , " "" " 26, Arts. 2260, 2261, 914. " " " 48, Art. 2202. ' - Crown 27, Arts. 2188, 2211, 2262, 2267. ■ - - ,:, " 28, Art. 992. Damages 40, Arts. 1065, 1073, 1077, 1840, 1841. • - "' > 40, Art. 1056. _ -■.: "..^ 47, Art. 1056. i-L.'^.'':^" .-V-. .' 49, Art. 1054. ~. . . v 57, Arts. 1053, 1054, 1727. - J:. ' i^^ £3 Deed 3, Art. 970. *- ^: v^ ^^ s__. j. Domicile 2, Arts. 6, 63, 65, 79, 80, 81, 83, 1260. ^ . " ' Donation, Arts. 803, 1034. " v, v '■ 2, Arts. 806, 1592. - .j •^ 2; - 'J ;• ;. Evidence 53, Arts 14, 1234. Execution 3, Arts. 595, 599. ^; Executors 10, Arts. 282, 285, 917. ' i! 11, Art. 1711. 1 r Fraudulent Preference 6, Art. 1953. 9, Arts. 1039, 1040, 1082. ,. ' ' Husband and Wife 5, Art. 1301. - .■ t Hypotheque 4, Art. 2075. " ' .?• Insolvency 1, Arts. 993, 1033, 1035, 1040, 1981, 1982. -' i 27, Arts. 1970, 1981. ^ - ; " 30, Art. 2023. ■ S ^- ; k 30, 32, Arts. 1975, 1034, 1035, 1169. '^ * \S ■ Insurance Fire 8, Art. 2482. y- i ' - : ' Life 10, Art. 153. • ,^ '•? ^| > " 16, Arts. 2487, 2488, 2585. | "5 |i . " Marine 19, Arts. 2538, 2541, 2544. ' ' 24, Art. 2184. \ I '' 894 Code, Civil, of Lower Canadii— Continued. ^ ../."■ ci^-M :-.voJ See Judgment 11, Art. 1241. ' ' ' ' ' Judicial Avowal, Art. 1243. i' ■ i Jurisdiction 85, Art. 1624. - , • i -i - > i Land, Arts. 2188, 22(U, 2267. Landlord and Tenant 4, Arts. 1054, 1627, 1620. 6, Arte. 1053, 1027, lo2'J. Lease 13, Arts. 1612, 1614, 1618. Litigious Ri;^ht9, Arts. 1532, 1583, 1584. Malicious Prosecution, Arts, 2262, 2267. ■ ' ' Negligence 31, Arts. 17, (ss. 24, 1053, 1055, 1071 Opposition, Arts. 1379, 2191. Partnership 13, Art. 1867. '•'•■ "' ^ Petition of Eight 3, Arts. 2211, 2251, 2206. Pledge 2, Art. 1970. 5, Arts. 419, 1977, 2015, 2094. Practice 14, Arts. 485, 989, 990, 1583, 2187, 2216, 2243, 2265. Prescription 1, Art. 2250. 19, Art. 2262. ^ '. ' 20, Arts. 1056, 2188, 2261, 2262, 2267. ' ' Pro-tutor, Art. 290 et seq. Railways 55, Arts. 1973, 1990, 1998, 2009, 2017. Railways and Railway Companies 69, Arts. 1053, 1675. '' Riparian Proprietors 4, Arts. 503, 549, 2193. Sale of Goods 6, Art. 1235. " 22, Arts. 1063, 1064, 1235, 1474, 1710, 1802. Lands 2, Arts. 1022, 1067, 1536, 1537, 1538, 1560, 1478. " 33, Arts. 1501, 1502. Servitude, Arts. 557, 558. '' ' • Sheriff 10, Art. 2091. .( ... ... Subro:ation, Art. 1155, s. 2. ' ^' Succession 1, Arts. 646, ()50. Transaction, Arts. 1918, 1920. " •• Trusts and Trustees 9, Arts. 1755, 2268. ■ 18, Arts. 297, 2!)8, 299. " " 20, Arts. 931, 938, 939, 1047, 1048. Tutor and Minor 1, Arts. 2213, 22.53. " " 3, Arts. 269, 945. *'> ' " " 8, Arts. 297, 298. «■ ' ■'"'^ '- ' '*'-' " Vend or and I urchaser 2, Arts. 1510, 1617, 1518. Will 8, Art. 8H9. " tt, Art. 972. " 10, Art. 226M. " 21. Art. 1484. Code, Municipal, Lower Canada. AsBeBsment and Taxes 12, Art. 712 •' " 18. Art. 712. CorporatioHB 88, Art. 9H2. ' Code, Municipal, Lower Canadsi—Contimied. ,.; • See Corporations, 37, Arts. 100, 461, 703. , Prohibition I, Arts. 716, 74G. ; , Code of Procedure, Lower Canada. See Action 8, Arts. 431, 433. , ,, .. j ,■ Arbitration and Award 15, Art. 222. 24 Art. 134C. Assignment 6, Arts. 13, 19. - , , , . Builder's Privilege Arts. 333 e< «e(7. ./ , . . ■ Capias, Art. 7'J8. ,^ ., , • ,, Contract 10, Arts. 345, 346. .. , .. .., 12, A ts. 228, 229. ■, ,., , , , . 17, Artr 228, 229. ■ ■■ .. • ; , f Cc-porP*" ■ , Arts. 997 e< «eg, , , , v Dam- , . Art. 120. , . , , , Divorce, Art. 14. , , Elections 28, Art. 57. Fraudulent Preference 6, Arts. 798, 819, 821, 1050, 1953. Jurisdiction 35, Art. 1120. " 71, Art. 1110. " 83, Arts. 856, 887. , •• " 104, Art. 439. > 106, Arts. 1178, 1178a. Lease, Art. 19. . ' ' Notice 8, Gen. Provns, Ist pt. a. 22. : i Opposition, Art. 632. 2, Arts. 483,484, 505. i • . , , Petition of Right 3, Arts. 416, 473. Practice 3, Art. 47('». 10, Art. 451. 14, Arts. 154,510. ,-, , 34, Arts. 887, 888. ... Prohibition 5, Arts. 1023, 1031. i . . V Sheriff, Arts, 581, 638. 7, Arts. 688, 691, 694, 760. " 10, Art. 632. -^ .' ,,, , , Solicitor and Client 4, Art. 753. Substitution 3, Art. 164. ^ Trusts and Trustesa 16, Art. ly, ^ . , ,, ., . Will 21, Art. 920. " 26, Art. 711. . 896 APPENDIX C. Cases Approved, ]jistini;uisheu, Followed, Overruled, or Referred to. Aetna Insurance Co. y. Brodie, 5 Can. S. C. R. 1. Followed. See hVlDENCE,o3. . PRACTICE, 21. Allan Y. Pratt, 13 App. Cas. 780. Referred to. See JURISDICTION, 5G. Alport, Howell y., 12 U. C. C. P. 375. Overruled. ' See STOPPAGE IN TRANSITU. Anderson, Fisher y. 4 Can. S. C. R. 406. Followed. See WILL, 20. Attorney-General v. Contois, 25 Grant, 316. Referred to. .SV<; PETITION OF RIGHT, 18. Ball Y. McCaffrey, 20 Can. S. C. R. 317. Approved and fallowed. See REVKNDICATION, 3. Ballagh y. The Royal Mutual Fire Insurance Co., 5 Ont. App. R. 87. Approved. See INSURANCE, FIRE, 5. Bank of Montreal, Sweeny v., 12 App. Cas. 617. Followed. See TRUSTS AND TRUSTEES, 14, 18, 23. Bank of Toronto, Lamb y. , 12 App. Cas. 575. Distinguished. See LKGISL.VTURE, 18. Bank of Nova Scotia, Queen v., 11 Can. S. C. R. 1. Followed. .StY CROWN, 21, 31. Banque Jacques Cartier v. La Banque d'Epargne, 13 App. Cas. 118. Followed. See FOIUJERY, 3. Banque d'Epargne, Banque Jacques Cartier, v., 13 App. Cas. 118. Fol< loWL'd. See FORGERY, 3. Bank of Montreal, Sweeny y., 12 Can. S. C. B. UGl, 13 App. Cas. 617. Referred to and followed, .sv,- TRUSTS AND THURTEES, 14, 18, 23. Barton v. London & North West Ry. Co., 6 L. T. Rep 70. Followed, See FORGERY, 8. Bernardin v. North DulTerin, 19 Can. R. C. R. 581. DistinKuished. .s.v Ml NKTPAL CORPORATION, 28. Berthier Election Case, '.) Can. S. C. R. 103. Followed. iV* ELECTIONS, 44. 897 Appendix C. — ^'ontliwed. Boale Y. Dickson, 13 U. C. C. P, 337. Approved. See STREAMS. Blaikie, Grindley, v. 10 N. S. R. 27. Approved and followed. .sVv REGISTRATION, 8. Bouchard, Couture, v. 21 Can. S. C. R. 281. Followed. See JURISDICTION, 111. Black, Wheeler, v. 14 Can, S. C. R. 242. Referred to. .St'f JURISDICTION, 87. • ■ ,t Briseboid y. The Queen, I'j Can. S. C. R. 421. Referred to. Sec CRIMINAL APPEAL, 13. Bristol & Exeter Ry. Co. y. Collins. 7 H. L. Cases 104. Followed. See RAILWAYS AND RAILWAY COMPANIES, 43. Bpodie, Aetna Insurance Co. v. 5 Can. S. C. R. 1. Followed. See EVIDENCE, 53. - PRACTICE, '21. Brown y Pinsonneault, 3 Can. S. C. H. 102. Overruled. See ASSIGNMENT, 6. Brown y. Pinsonneault, 3 Can. S. C. R. 102. Distinguished. See TRUSTS AND TRUSTEES, V,. Brown y. The Toronto & Nipissing Ry. Co., 2() U. C. C. P. 200. Over- ruled. See RAILWAYS AND RAILWAY COJIPANIES, 21). Burland v. MofYatt. 11 Can. S. C. R. 7t). Distinguished. .SV>' TRUSTS AND TRUSTEES, 1.-). Burland y. MofTatt, 11 Can. s. C. 11. 7(>. Overruled. .S.'t' ASSIGNMENT, (5. Carson, Kielley, y. 4 Moo. P. C. C. G3. Commented on and followed. See L1:GISLATURE, 'J. Cogewell, O'Brien, y. 17 Can. S. C. R. 420. Followed. .St.' ASSESSMENT AND TAXES, 24. Collins, Bristol & Exeter Ry. Co. y 7 II. L. Caa. 194. Followed. s,e HAILWAVS AND IIAILWAY COMPANIES, 43. Commercial Bank y. Wilson, 3 E. iV A. Rep. 257. DisousMed. See CHATTEL MORTGAGE, 18. Confederation Life Ass. v. O'DonneU. 10 Can. S. C. R. 92; 13 Can. 8. C- R. 218. Adhered to. ,Se.- INSURANCE, LIFE, 7. Contois, Attorney General y. 2."> (ir. ;U(). Referred to. s.e lM;n riON of lU(iHT. IH. Corbett, Providence Washington Ins. Co. i> Can. 9. 0. R. 356. Approved. See INSURANCE, MARINE, U\. Corporation of Quebec y. Leaycraft, 7 (}. L. R. 50. Digtinguished. See ASSESSMENT AND TAXES, 12. CA8, nut.— 57 898 Appendix C — Continued. Corporation of Yarmouth y. Simmons, L. E. 10 Ch. D. 518. Followed. See ACCRETION, 1. County of Yerchcres y. Yillage of Yarennes, 19 Can. 8. C. R. 365. Fol- lowed. See JURISDICTION, 93, 98. . ,. , Couture v. Bouchard, 21 Can. S. C. R. 281. Followed. Sec JURISDICTION, 111. Cushing Y. Dupuy, 5 App. Cas. 409. Followed. See JURISDICTION, 82. Crysler, McKay, y., 3 Can. S. C. R. 436. Followed. Nt-e ASSESSMENT AND TAXES, 24. Dawson, McDonald, y„ 11 Q. L. R. 181. Followed. See PRESCRIPTION, 22. . . Desilets, Gingras v., Dig. "Damatjes" 23, Followed. See APPEAL, 53. DAMAGES. 57. JURISDICTION. 75. Desbarres, Doe D. y. White, 1 Kerr, N. B. 595. Approved. See LIMITATIONS, 9. Desmarteau, Hurtubise, 19 Can. S. C. R. 562. Followed. See JURISDICTION, 106. Dickson, Boale y., 13 U. C. C. P. 337. Approved. .Vtfc STREAMS. .- ,.■ Doyle Y. Falconer, L. R. 1 P. C. 328. Commenced on and followed. See LEGISLATURE, 9. Dupuy, Cushing v., 5 App. Cas. 409. Followed. See JURISDICTION, 82, Eureka Woollen Mills Co. y. Mobs, 11 Can. S. C. R. 91, Distinguished. See JURISDICTION, 03. Falconer, Doyle y., L. U. 1. P. C. 328. Commented on and followed. See LEGISLATURE, 9. Fauteux, Montreal Loan & Mortgage Co., 3 Can. S. C. R. 411. Followed. See PRACTICE, 10. Fisher y. Anderson, 4 Can. 8. C. R.-40fi. Followed. See WILL, 20. 5-,^ri Faderman, R. y., D. C C. 572. Approved. See CRIMINAL APPEAL, 6. - ., ,;i. (■..•* Gilbert v. Oilman, 16 Can. 8. C. R. 189. Ai)proved. ■' See JURISDICTION, 87. -iH Gilbert v. Oilman, 16 Can. B. C. R. 189. Followed. See JURISDICTION, 92. *J Gillespie, Merchants' Bank of Halifax v., 10 Can. M. G. R. 812. Distin- guislied. See WINDING-UP, 9. 899 Appendix C. — Continued. - ...... Oilman, Gilbert v., IC Can. S. C. E. Approved. c; > i- .: See JURISDICTION, 87. ' Gilman, Gilbert v., KJ Can. S. C. R. 189. Followed. •. .S'ee JURISDICTION, U2. Gilmour, Whishaw v., 15 L. C. R. 177. Approved. See PRESCRIPTION, 1. ■ •■ Gingras y. Desilets, Di-,'. " Damages," 23. Followed. Sea APPEAL, 53. DAMAGES, 57. , ' JURISDICTION, 75. . ,. Graham y. Smith, 27 U. C. C. P. 1. Overruled. See STOPPAGE IN TRANSITU, 1. .. ;' Grand Trunk Ry. Co. y. Rosenberger, !l Can. S. C. R. 311. Followed. See RAILWAYS AND RAILWAY COMPANIES, (Ki. Grand Trunk Ry. Co., Yogel v., II Can. S. C. R. (512. Distinguished. See RAILWAYS AND RAILWAY COMPANIES, 43. Grindley y. Blaikie, 11) N. S. Reports 27. Approved and followed. See REGISTR.-VTION, 8. Halter, Molson's Bank y., 18 Can. S. G. R, 88. Followed. See ASSIGNMENT, 21, 21. Hannon, McLean, y., 3 Can. S. C. R. 70(5. Followed, See SHERIFF, 12. Hart, Joyce y., 1 Can. S, C. R. 321. Overruled. See JURISDICTION, 5(5. Hodge Y. The Queen, ".» App. Cas. 117. Followed. See LKGISLATURE. 13. HoYey Y. Whiting, M Can. S. C. R. 515. Followed. See CIIAITEL MORTGAGE, 12. HowuU Y. Alport, 12 U. C. C. V. 375. Overruled. See STOPPAGE IN TRANSITU, 1. Hurtubtse y. Desmarteau, HI Can. S. C. R. 5(52. Followed. See JIUIISDICTION, 10(5. Jones V. The Queen, 7 Can. B. C. R. 570 Followed. S« CONTRACT, 38. . ,io' -' - . , 1 Joyce Y. Hart, 1 ('an. S. C. R. 321. Overruled. S.v.lUlUSDICTION,5(5. Keilley v. Carson, 4 Moo. P. CO. liS. Commented on and followed. See LEGISLATURE, i). King's Co. (N. 8.) Election Case, 10 Can. B. G. U. 53U. Followed. See ELECTION, 12. Lacombe, Queen y., 13 L. C. Jur. 269. Overruled. See CRIMINAL APPEAL, 13. Langloll, Yalin v., 3 Can. H. C. R. 1 ; 5 App. Caa. 116. Followed. See PARLIAMENT OF CANADA, 8. 900 . Appendix C— Continued. ' ''^■"''•- ' " P xibfiyqqA Lamb v. Bank of Toronto, 12 App. Cases, 575. Di8tin<^ui8hed. See LEGISLATURE, 18. 'Leaycraft, Corporation of Quebec y , 7 Q. L. R. 56. Distinguished. See ASSESSMENT AND TAXES, 12. Leclaire, McFarlane v., 15 Moo. P. C. C. 181. Referred to. See JURISDICTION, 30. ^ ''' Levi Y. Reed, Can. S. C. R. 482. Followed. See APPEAL, 53. ^ ' JURISDICTION, 75. '"— "' LeYi Y. Reed, (5 Can. S. C. R. 182. Approved. ' rn^eic.Vi Sec DAMAGES, 23, 57. Levi Y. Reed, Can. S. C. R. 482. Overruled. '"""'^ • (.-•, i f • See JURISDICTION, 5(). Lionais y. Molson's Bank, 10 Can. S. C. R. 526. Followed. Se,' PRACTICE, 10. London & North-West Ry. Co., Barton y., 6 L. T. Rep. 70. Followed. ■ .See FORGERY, 3. Maguire y. Scott, 7 L. C. R. 451. Dislinsuished.' '^"'^ "* ■^"*'** See PARTNERSHIP, 13. ' "' McArthur, Stephens v. lit Can. S. C. R. 41(5. Followed. *"*''* .SVt' ASSIGN. MEN T, 24. McCall Y. Wolfe, 13 Can. S. C. R. 130. Distinguished. '"^'^ See CHATTEL MORTGAGE, 12. McCall Y. Wolfe, 13 Can. S. C. R. 130. Approved and distinguished. See CORPORATIONS, 30. McCaffrey, Ball y. 20 Can. 8. C. R. 317. Approved and followed. See REVENDICATION, 3. McCaffrey, Ball, y. 20 Can. S. C. R. 317. Approved and followed. ,s,v REVENDICATION, 3. McDonald y. Dawson, 11 Q, L..R. 181. Followed. See PRESCRIPTION, 22. ^ .i\r,w»'/i.U y t^M\f\ McFarlane y. Leclaire, 15 Moo. P. CC. 181. Referred to. ,See,li:UISl)lCTI0N,3t). '* ' McOreevy y. The Queen, 14 Can. S. C. R. 735. Followed. See APPEAL, 20. McKay y. Crysler, 3 Can. S. C. R. 43G. Followed. o 'jJimO See ASSESSMENT AND TAXES, 24. McLean y. Hannon, 3 Cftn. S. C. R. 706. Followed. "* ^ •SVc .SHERIFF, lU. McManamy, Sherbrooke y. 18 Can. 9. C. H. 5i)4. Followed. ,S,v.H!UISl)ICTI0N,!»3. Megantlc Election Case, 8 Can. 8. C. R. 169. Discussed. '"*** See ELECTION, 80. 901 Appendix C — Continued. Merchants Bank of Halifax v. Gillespie, 10 Can. S. C. R. 312. Distin- guished. See WINDING-UP, 9. MofTatt, Burland y. 11 Can. S. C. R. 76. Distinguislied. See TRUSTS A.ND TRUSTEES, 15. Moffatt, Burland Y. 11 Can S. C. R. 76. Overruled. See ASSIGNMENT, 6. Holson's Bank y. Halter, 18 Can. S. C. R. S8. Approved and followed. See ASSIGNMENT, 21, 24. Molson's Bank, Lionais y. 10 Can. S. C. R. 52G. Followed. See PRACTICE, 10. Honk Election Case, Hodgina Election Cases 725. Approved. See ELECTION, 12. Horeau y. Motz, 7 L. C. R. 147. Followed. See TUTOR AND MINOR, 1. Morln, Patton Y., 16 L. C. R. 267. Followed. See WILL, 26. Montreal Loan & Mortgage Co. y. Fauteux, 3 Can. S. C. R. 411. Followed. See PRACTICE, 10. Moss, Eureka Woollen Mills Co. y. 11 Can. S. C. R. 91. Distinguished. See .JURISDICTION, 63. Motz, Moreau y., 7 L. C. R. 147. Followed. .SVe TUTOR AND MINOR, 1. North DufTerin, Bernardin y. 19 Can. S. C. R. 581. Distinguished. See MUNICIPAL CORPORATION, 28. North Shore Ry. Co., Pion y. 14 App. Cas. 612. Followed. See EXPROPRIATION, 10. O'Brien, In re, 16 Can. S. C. R. 197. Referred to. See CONTEMPT, 4. JURISDICTION, 107. O'Brien y. Cogswell, 17 Can. S. C. R. 420. Followed. See ASSESSMENT AND TAXES, 24. O'Donnell, Confederation Life Ass. y., 10 Can. S. C. R. 92; 13 Can. S. C. R. 218. Adhered to. , . .9c^ INSURANCE LIFK, 7. Ontario Bank y. Wilcox, 43 U. C. Q. B. 460. Distinguished. See SALE OF GOODS, 16. O'Shea Y. O'Shea, 15 P. D. 59. Followed. ,, ■S.r JimiSDICTION, 107. Patton Y. Morin, 16 L. C. R. 267. Followed. ' ^ See WILL, 26. PInsonneault, Brown y., 3 Can. S. C. R. 102. Overruled. .See ASSIGNMENT, 0. 902 Appendix C. — Continued. Pinsonneault, Brown v., 3 Can. S. G. R. 102. Distinguished. See TRUSTS AND TRUSTEES, 15. Pion v. North Shore Railway Co., 14 App. Cas. 612. Followed. See EXPROPRIATION, 10. Porteous y. Reynar, 13 App. Gas. 120. UistingulBhed. i , i ;,yO'f See TRUSTS AND TRUSTEES, 16. Pratt, Allan v., 13 App. Gas. 780. Referred to. . i.iv»?i See JURISDICTION, 5C. Providence Washington Insurance Co. v. Corbett, Can. S. C. B. 256 Approved. See INSURANCE MARINE, 16. Provincial Ins. Co., Robertson v., 3 All. N. B. 379. Followed. See INSURANCE MARINE, 11. Queen v. The Bank of Nova Scotia, 11 Can. S. C. R. 1. Sec CROWN, 21, 32. Queen, Brisebois v., 1"> Gun. S. C. R. 421. Referred to. See CRIMINAL APPEAL, 13. Queen, Hodge Y., •.) App. Gas. 117. Followed. ' See LEGISLATURE, 13. rr Queen, Jones v., 7 Can. S. C. R. 570. Followed. See CONTRACT, 88. i..„, y i;4 Queen, The, y. Lacombe, ]3 L. G. Jur. 259. Overruled. Sff CRIMINAL APPEAL, 13. Queen, McGreevy v., 14 Can. S. G. R. 735. Followed. See APPEAL, 20. Queen, Severn v., 2 Can. S. C. R. 70. Distinguished. See LEGISLATURE, 18. Queen's County (P. E. I.) Election Case, 20 Can. S. C. R. 26 SVe ELECTION, 12. .i ., Queen, The, y. Taylor, 30 U. G. Q. B. 218. Overruled. .Srt'LKGISLATURE,2. ,= ., R. Y. Faderman, D. C. C. 572. Approved. i ,S« tu lUA. i /e 9m Appendix C. — Continued. f/v Robertson v. Provincial Insurance Co., 3 All. N. B. 379. Followed. See INSURANCE MAKINE, 11. Rosenberger, Grand Trunk Ry. Co. v., 9 Can. S. V. R. 311. Followed. See RAILWAYS AND RAILWAY COMPANIES, 66. Ross Y. Torrance, 2 Legal News, 186. Overruled. See TRUSTS AND TRUSTEES, 15. Reynar, Porteous v., 13 App. Cas. 120. Distinguished. See LEGISLATURE, 2P. Royal, Mutual Fire Ins. Co., Ballagh v., 5 Out. App. R. 87. Approved. See INSURANCE, FIRE, 5. Ryan y. Ryan, 5 Can. S. C. R. 187. Followed. ' Sc<^ POSSESSION, 10. , . Wheeler y. Black, 14 Can. S. C. R. 242. Referred to. , , . , , ^ , , .See JURISDICTION, 87. Whittj, DesBarres, Doe d. v., 1 Kerr, N. B. 595. Approved. / ■ See LIMITATIONS, 9. . ■ ' Whiting, Hovey y., 14 Can. S. C. R. 515. Followed. '" See CHATTEL MORTGAGE, 12. ^ " Whishaw Y. Gilmour, 15 L. C. R. 177. Approved. See PRESCRIPTION, 1. '--irf.' • ■ •• Wilcox, Ontario Bank y., 43 U. C. Q. B. 460. Distinguished. , . .. See SALE OF GOODS, 16. Wilson, Commercial Bank y., 3 E. & A. Rep. 257. Disoussed, See CHATTEL MORTGAGE, 18. .- ., ,j^. . .i.; YlfolfT, McCall Y., 13 Can. S. C. R. 130. Distinguished. >-:!'.^'v /: See CHATTEL MORTGAGE, 12. WolfT, HcCall Y., 13 Can. S. C. R. 130. Approved and distinguished. f'' - See CORPORATION, 30. ': Young Y. Smith (Selkirk Election Case), 4 Can. S. C. R. 494. Followed. "!,' ' See ELECTION, 23. 1 1 - ■ . - , r . . . , , . . ....... .. . . . , ..... , V nl'.V!'! , :■ '- ' f; y'y .'...r ■.i; , ,, ••.■««-..*- . . . 'Ml I'i-j/ ./■>! i. ,;t.>j(j', '.■- V .-,.^. , • TABLE OF CASES IN THE DIGEST. ', / A '• U '^i; 1 I . Page of Name of Case and where reported. ^ Digest. Abbott, Fraser v , 095 Abbott V. Macdonald, iii. 278 411, G96 Abell V. Church, i. 442 761 Abrahams v. The Queen, vi. 10 192 Accident Ins. Co. of North America v. McLachlan, xviii. 627 448 V. Young, XX. 280 378 Adams, Crowe v., xxi. 342 804 Adamson v. Adamson, xii. 563 653, 686 Aetna Ins. Co. v. Atty-Gen'l of Ontario, xviii. 707 366 Aetna Life Ins. Co. v . Brodie, v. 1 369, 673, 678 Albert Minin^^ Co., Spurr v., ix. 35 136 Alexander, Nordheimer v., xix. 248 569 Alexander v. Vye, xvi. 501 289 Allan, Brown v., 146 Allen V. Hanson, xviii. 667 132, 591, 863 Allen V. Tiie Merchant's Mar. Ins. Co. of Canada, xv. 488 393 Almon V. Lewin, v. 514 869 Almon, Providence Washington Ins Co. v., 390 Amer v. The Queen, ii. 592 413 Ames, Fuller v., 140 Amyot v. Labrecque (Bellechasse Election Case), xx. 181 273, 296 Anclior Marine Ins. Co. v. Corbett, i.\. 73 380 Keith v., ix. 483 382 Anderson, Fawcett v., 8 Fisher v., iv. 406 677, 868 V. Jellett, ix.:i 315 Lawrence v., xvii. 349 61 Anfjlo-Continental Guano Works, The Emerald Phosphate Co. v., xxi. 422 .. 457 Anglo-French S. S. Co., Guilford v., ix. 303 137 Angus v. Calj{ary School Trustees, xvi. 716 443 Annand, Tupper v., xvi. 718 601 Annapolis Election Case (Mills v. Ray), xx. 169 272 Annual Conference of New Brunswick, The, Ray v., vi. 308 870 Antigonish Election Case (Thompson v. McGillivray), xx. 169 272 Archer, Severn v., 875 Archibald v. Ilubley, xviii. 116 119, 300, 659 Archibald v McLaren, xxi. 588 5)4 Argentenil Election Case (Christie v. Morrison), xx. 194 274, 6(i5 Arnold, Byrne v., 107 Arpin v. The Queen, 7iv. 736 21 906 Table of Cases in the Digest. Page of Name of Case and whore reported. Digest. Ashdown, Dedrick v., xv. 227 118 Ashdown v. The Manitoba Free Press Co., xx. 43 492, 578, G47, 664 Association Pharmaceutique de la Province de Quebec v. Brunet, xiv. 738 . . GOO Athabasca, The (C. P. K.,v. Neelon— C. P. R. v, Helliwell 522 Atlantic & North West lly. Co., Denning v., xx. 177 44 Attorney-General of Nova Scotia v. Axford. xiii. 294 113 Attorney-General of British Columbia v. Attorney-General of Canada, xiv. 345. 528 Attorney-General of Canada v. The City of Montreal, xiii. 352 50, 674 Attorney-General of Canada v. The City of Toronto 67 Attorney-General of Canada, The Dominion Salvaged Wrecking Co. v.,xxi. 72 187 Attorney-General of Canada v. Flint, xvi. 707 591 Attorney-General of Canada, Fonseca v., xvii. 612 488, 754 Attorney-General of Nova Scotia, The Warden, etc., of Lunenburg v., xx. 596 557 Attorney-General of Ontario, The Aetna Ins. Co. v., xviii. 707 366 Attorney-General of Ontario v. Attorney-General of Canada, xiv. 736 647 Attorney-General of Ontario, Mercer v., v. 538 477 Attorney-General of Ontario v. The Vanghan Road Co., xxi. 631 188 Attorney-General of Quebec, Reed v., viii. 408 478 Attrill v. Piatt, x. 425 240 Aubert G. llion v. Roy. xxi. 456 837 Austin, Page v., x. 132 169 Axford, Attorney-General of Nova Scotia v., xiii. 294 113 Ayotta V. Boucher, i.x. 460 413, 82i Ayr American Plow Co. v. Wallace, xxi. 256 89 B. Badenach, Slater v., x. 296 58, 319 Baechler, Pm-dom v., xv. 010 600 Bagot Election Case (Dupont v. Morin), xxi. 28 276 Bailey v. The Ocean Mutual Mar. Ins. Co. jix. 153 396 Bain, Choletto v. (Soulangea Election Case), x. 652 264 V, City of Montreal, viii. 252 46 Baird, Ellis v., xvi. 147 189, 438 Balfour, Williams v., xviii. 472 544 Ball v. T'le Crompton Corset Co. xiii. 469 612 V. McCaffrey, xx. 319 282, 453 O'.Shaughnessy v., xxi. 415 755 Bank of British North America v. Walker . . . .214, 425, 670, 671, 673, 697, 701, 706 Bank of Hamilton, Harvey v., xvi. 714 86 Banque Jacques Cartier, Giraldi v. , ix. 597 67 Bank of Liverpool, In re (Forsythe v. Bank of N.S.), xviii. 707 883 Bank of Montreal v. Haffner 526 The Manitoba Mortgage Co. v., xvii. 692 602 - . - - , Sweeney v., xii. 661 852 v. Worswick 526 Bank of New Brunswick, Scott v , xxi. 30 578 2\iMe of Cases in the Digest. 907 1 . ' Page of Name of Case and where reported. Digest. Bank of Nova Scotia, Foray the v. (In re The Bank of Liverpool), xviii. 707. . . . 888 . . ;. Mott v., xiv. G50 882 I" The Queen v., xi. 1 IDG* v:: .., . Smith v., viii. 558 107 Bank of Prince Edward Island, Inga v., xi. 205 70 Bank of Toronto v. Les Cureet MarguillierB, etc., dela Nativite, etc., xii. 25 432, 687 Perkins, viii, 003 67 Banuerman, Emerson v., xix. 1 I'^O Baptist v. Baptist, xxi. 425 457 Barbeau, Labelle v., xvi. 390 439 Barber, Gibbins v., xix. 204 484, 554 Barlow, Fairbanks v., xiv, 217 618 Barnard v. Molson, xv. 716 811 Barnard, Molson v., xviii. 022 447 Barned's Banking Co., Reynolds v 170 Barnes v. The Exchange Bank of Canada, xiv. 716 75 Barrett v. The City of Winnipeg, xix. 374 484 Barrington v. The Scottish Union A National Ins. Co., xviii, 015 447 Barry, Eoss v., xix. 300 295 Barsalou v. Darling, ix. 077 839 Barss, Merchants Marine Ina. Co. v., xv. 185 SSivi Barton, The Corporation of the Township of, tlit City of Hamilton v., xx. 173, 555, 820 Barton v. McMillan, xx, 404 813, 820 Bate v. The Canadian Pacific Ry. Co., xviii. 097 747 Baylis, Drummond v., ii. 01 92 Beamish v. Kaulbach, iii. 704 417, 677 Beatty v. Neelon, xiii. 1 181 North-west Transportation Co., xii. 598 If O'Donohoe v., xix. 350 27, 449, 812 v. Oille, xii. 700 575 Beaubion v. Bernatchez 433 Beaudet v. The North Shore Ry. Co., xv. 44 40 Beaudry, Grant v 581 BeauliBii, The Queen v., xvi. 710 41 Beausoleil v. Normaud, ix. 711 13 Beckett, The Grand Trunk Ry. of Canada v., xvi. 713 742 Bedell, Owens v., xix. 137 823 Bell, Eraser v., xiii. 540 046 Houghton V 880 V. Mackliu, xv. 576 531, 791 Eickaby v., ii. 500 339 Bell Telephone Co. of Car.ada, The Electric Despatch Co. of Toronto v., xx. 83 161 V. The City of Quebec, xx. 230 452 Belleau v. Dussault (Levis Election Case), xi. 133 205, 686 Belleau, The Queen v., vii. 53 625 Bellechasse Election Case (Aniyot v. Labrecque), xx. 181 273, 296 (Larue v. Deslauriers), v. 91 255 Bellemare, Dansereau v., xvi. 160 612 908 Tahls of Cases in the Digest Page of Name of Case and where reported. Digest. Bender, Carrier v 674 V. Carrier, xv. 19 151 Benedict, Scott v., xiv. 735 790 Benninj^ v. The Atlantic and North- West Ry. Co., xx. 177 44 V. Thibaudeau, xx. 110 . . ; . . 64, 348 Berber, Munn v., x. 512 763 Berfjeron v. Lassalle 495 BerHnguet v. The Queen, xiii. 20 150, 685 Bernardin v. The Municipality of North Dufferin, xix. 581 160, 186, 555 Bernatchez, Beaubien v 4J^3 Bernier, Tremblay v., xxi. 409 580 Berteaux, Borden v., (Kinfi'a County, N. S., Election Case), xix. 526 269 Berthier Election Case (Genereux v. Cuthbert), ix. 102 260 Bew V. Shortreed 500 Bickford v. Cameron, xxi. 379 66, 190, 457 V. Canada Southern Ky. Co. xiv. 743 737 V. The Corporation of the Town of Chatham, xvi. 235 153, 739, 815 V. Grand J unction Ry. Co., i. 696 * 6H9, 717 V. Hawkins, xix. 862 27 V. Howard 28() V. Lloyd . 35, 673 Bisaouette v. The North Shore Ry. Co., xvii. 363 311 Billinf^ton v. Provincial Ins. Co. of Canada, iii. 182 3iil Birkett v. McGuire 598 Blachford v. McBain, xix. 42 44^ XX. 269 CM't Black. Ells v., xiv. 740 243 V. Walker 768 Wheeler, v., xiv. 242 794 Black Diamond S. S. Co. of Montreal, Trainer v. , xvi. 156 83 Blanchard, Bourget v 423 Boak v. Merchants' Marine Insurance Co., i. 110 411, 677, 825 Bond, Coumee v 511 Boomer, McGreevy v 189 Booth V. Haiti, xxi 637 fi()7 Borden v. Berteaux (Kind's County, N. S., Election Case) xix. 526 2ti9 Boscowitz. GriHiths v., xviii. 718 66/ Bosse, Parailis v., xxi. 419 66, 190 Bossoni Wallace v., ii. 4S8 , 340 414 Both well Kloctiou Cage (Hawkins v. Hniith), viii. 676 259, (i86 Bouchard, Couture v., xxi. l28I 45H Boucher, In le H'2'> Ayotte v.. ix. 460 418, h24 Boulanffer, (Jrand Trunk Uy. Co. v 7H3 Bourget v. Blanchard 428 Dowker v. Laumeister, xx. 175 856 BowMianville Machine Co. v . I>empflter, ii. 31 761 Uoycc, Tlie I'h.u lix Mut. Life In«. Ca. v., xiv. 728 875 Doyle, CoBgruve v., vi. 165 Hi ToUe of Cases in the Difjest. 909 Page of Name of Case and where reporteil. Digest. Bradley, McLea,ii v., ii. 335 1(54 Brady v. Stewart, sv. 82 510 Brantford, Waterloo it Lake Erie Ey. Co. v. Huffman, six. 336 lo9 Brassard v, Langeviu (Charlevoix Election Case), i. 145 248, 695 ii. 310 41» Breakey v. Carter 46» Bracken, Jenkins v., (Queen's County P. E. I. Election Case), vii. 247 •25& Brien, Guuthier v., (L'Assomption Election Case), .xxi. '21t 277, 680 Brij^liouse, The Corporation of the City of New Westminster v.,xx. 520 556 Briseboi':, v. The Queen, xv. 421 197 British American Ass. Co. , Gerow v., xvi. 524 304 V. Law, xxi. 325 397 British Can. Lumber Co., Grant v., xviii. 708 291 British Columbia, In re County Courts of, xxi. 44('> 485 British Cohimbia Towing Co., Sewell v., (" Tlie Thrasher " Case), ix. 527 .... 806 (•' The Thrasher " Case). . . .480, 670, 675 Broadhead, Tlie Penman ^lannfacturing Co. v., xxi. 713 18 Brodeur v. Cliarbonnt-au ( Uouville JOlectioii Case), xxi. 28 276 Brodie, Aetna Life Ina. Co. v.. v. 1 309, 673, 678 Brossard v. Dupras, xix. 531 323 Brown v. Allan 146 Darling v , i. 360 707 DarUnti v., ii. 26 .SOO The Dominion Salvage & Wreckinj,' Co. v., xx. 20.1 452 Great Western Railway Ky. Co. of Canada v., iii. 159 718 V. Lamoiita»{ne 120 McArtluir v., .wii. 61 281 Browne v. Pinsoncault, iii. lUJ 469 Brule, Poirier v., xx. 97 855 Bruneau, I'aradis v., (Richelieu Election Case), xxi. 168 277 Brunet, L' Association Piiarmaceutiquo de la Province de Quebec v., xiv. 738. . 600 Pilon v., V. 318 l'J5, 680 Buck V. Kiiowlton. xxi. 371 897 Bull, The Imperial Fire Ins. Co., v., xviii. 697 86G Bulmer v. l)ufroHiiu 873 " The Union Hank of Canada v 88 Bur^ioss v. Conway, xiv. 90 788 Burkiior, Wallace v tt«9 lUirlan CO, 190, 457 Mitclu'll v., (West Huron Election Case), viii. 126 259 Perry v., (Prince County, P. E. I., Election Case), xx. 20 271, 003 Pictoii School Trustees v., ii., 090 100 V. Tate, XV. 022 9 V. Wait 332 Canapbell v. Grieve, (North Perth Election Case), xx. 331 274 The Kingston A Bath Hoad Co. v., xx. 005 508 McDongall v., vi. 502 532 v. Patterson, xxi. 015 122 Canada Atlantic Uy. Co. v. The Corporation of the City of Ottawa, xii. 305 .. 550 V. The Corporation of the Township of Cumbridgo, XV. 219 184, 557 V. Moxley, xv. 145 738 Stanton, v 430 Central Ry. Co. v. Murray, viii 313 12 Company, Kyle v., xv. 188 072 Investment A .Vgency (^o., McGregor v. xxi. 499 881 N. W. Land Co , Lynch v., xix. 204 484, 554 PublisJiing Co v. Gage, xi. 300 840 Shipping C!o., Hudon (Cotton Co. v., xiii. 401 761 Bouthcrn By. Co., Hickford v. , xi v. 743 737 V. Clouse, xiii. 139 735 V. Cunidngham 31 • •• V. Duff 84 • V. Erwin, xiii., 102 780 .' V. Gatftold 84 ' ' •• V. Jackson, xvii. 816 748 ^^*^ • • V. Norvell 84, 673 ♦■''•''' ^ V. Phelps, xiv. 183 738 Table of Cases in the Digest. 911 Page of Nanio of Case mid where leportefl. Di^eBt. Canada Temperance Act, 1678, and Couuty of Kent 106 County of Perth 105, G79 Canadian Bank of Commerce, Federal Bank of Canada v., xiii. 384 788 Stevenson v. xxii 352 Canadian Pacific Py. Co., Bate v., xviii. G',t7 747 V. Chalifoux 749 Cornwallis, Rural Municipality of, v., xix. 702.. ., 54 V. Fleming;, xxii. iVi 459 Ilelliwell V 522 V. Lawson 729 V. The Little Seminary of St. Tl drAse, xvi. GOG. . 441, 741 Major v., xiii. 233 73G V. Neelon 522 V. Robinson, xiv. 105 222 V. Robinson xix. 292 5, CGI, 710 Rural IMunicipality of Cornwallis, v., xix. 702 .... 54 Slmw v., xvi. 703 407, 443 V. The Western Union Telegraph Co., xvii. 151, 123, 154, 185 Cannon v. Howland Ill Cape Breton, The Municipality of, Crewe-llead v., xiv. 8 527 The Municipality of the County of, v. McKay, xviii. C89 .533 Carey v. City of Toronto, xiv. 172 7Hfi Carrier v. Bomler (')74 Caron, O'Brien v. (Quebec County Election Case), xiv. 429 2G6 Currick, Hunter v., xi. 300 Gil Carrier, Bender v., xv. 19 151 Carson, Martley v., xiii. 439 704 XX. 634 757 Carter, Breakey v 4 Timmeruian v., xxi. (i'.tl 55 City of Toronto, Atty.-Gen. of Canada v., 57 Carey v. , xiv 172 780 City of Winnipeg, Barrett v., .xix. 374 484 V. Wright, xiii. 441 081 Clark V. Clark, xvii. 37(5 879 Tlie Queen v., xxi. 050 459 V. Scottish Imperial Ins. Co., iv. llli 368, 088 Green v 014 V. Odette (The " Marion Teller ' ) 521 Shoolbred v. (Iii re Union Fire Ins. Co.), xvii. 2()5 0J8, 883 In )•<• Virtue v. Hayes, xm. 721 444 V. White, iii. 309 10 Clarkson v. Ryan, xvii. 251 61, 445, 488 Claude, Weir v , xvi. 575 584 Cleveland, Lamb v., xix. 78 234, 817 Close, Tom pie v 705 Clouse, Canada Southern Ry. Co., v., xiii. 13'.t 735 Cogswell, O Brien v , .wii. 420 53, 503 Cogswell, Webber v., ii. 15 499 Colchester v. Watson, 176 Coleman, Hayes v 833 Coleman v. Miller 301, f,78, 083 Collette V. Lasnier, xiii. 503 Oil Collins v. Cunningham, xxi. 13!t 540 Collins V. Everitt 210 Collins v. Ross, (Lisgar Election Case), xx. 1 270, 003 Colter V. Glenn, (Ilaldimand Election Case), xvii. 170 208 Colville, Titus v., xviii. 709 292 Commeau v. Burn.s, (Gloucester N. B. Election Case), viii. 204 258 Commercial Union Ins. Co., Logan v., xiii. 270 303 Commercial Union Ash. Co., Summers v., vi. 19 359 Coinmi!onnell, X. 1»J :171 V. O'Donnell, xiii. 218 372 V. O'Dounell, xvi. 717 373 <'onmee v. Bond • • ^ • ; • 511 CAB. nio. — 58 OH Tahle of Cases in the Digest. Page of ■■' y . Name of Case aud where reported. ,. .!./• i ■••,. ii Digest. Connecticut Mut. Life Ina. Co., jVIoore v., vi. ()34 419, 695 Connecticut it Pasaumpsic Rivers Railway Co. v. Morris, xiv. 818 300 Connely, The Guardian Asa. Co. v. , xx. 208 367 Connolly, The Provincial Ins. Co. of Can. v., v. 258 379 Conway, Burgess v., xiv. 90 788 Corbett, Anchor Marine Ins. Co. v. , ix. 73 380 Corbett, McKenzie v., 384 Corbett, The Providence Washington Ins. Co. v , ix. 2.56 383 Corby v. Williams, vii. 470 7fil Cornell, Walker v., 595 Cornwallis, The Rural Municipality of, v. The Can. Pac. Ry. ;i.^M ,- ; Page of Name of Case and where reported. Digest. Edmondg v. Tiernan, xxi. 406 526 Edwards v. Mayor, etc., of St. John 48 Eisenhauer, Kaulbach v., (Lunenburg Election Case), xx. 169 272 Electric Despatch Company of Toronto v. The ]5ell Telephone Company of Canada, xx. 83 161 Elliott, Flanagan v., xii. 435 51 Peers v., xxi., 19 530 EUis V. Baud, xvi. 147 189, 4.38 Power v., vi. 1 885 ■' V. The Queen, xxii. 7 133, 458 Ells V. Black, xiv. 740 243 Emerald Phosphate Co. v. Anglo Continental Guano Works, xxi. 422 457 Emerson v. Bannerman, xix. 1 1 20 Erb V. The Great Western Ry. Co., v. 179 719 Erwin, Canada Southern Ky Co. v. , xiii. 162 736 Esquimalt & Nanainio Ry. Co., Hoggan v., xx. 235 206 Waddington v., xx. 235 206 Essou V. McGregor, xx. 176 88 Esaon, Wood v., ix. 239 563 Eureka Woollen Mills Co. v. IMoss. xi. 91 431, 575 Evans v. Skelton, .xvi. 637 4()6 Everitt, Collins v. , 210 Exchange Bank of Canada, Barnes v., xiv. 716 75 V. Fletcher, xix. 278 78 V. Gilman, xvii. 108 658, 675 • _ V. The People's Bank 79 '* • •• Springer v., xiv. 716 75 .■,.. ■_;■■••;;■; ■ f. ■ ■ ■ ■ ,, . •■■".;; Fairbanks v. Barlow, xiv. 217 648 Fairchild v. Ferguson, xxi. 484 90 Farmer v. Livingstone, v. 221 487 V. Livingstone, viii. 140 607 Farwell, The Ont. Car Co. v., xviii. 1 745 The Queen v., xiv. 392 715 Wallbridge v., xviii. 1 745 Faulds v. Harper, xi. 639 541 Fauteux, Montreal Loan & Mortgage Co. v., iii. 411 20, 797 Fawcett v. Anderson 8 Federal Bank of Canada v. Canadian Bank of Commerce, xiii. 384 788 Feuton, Church v., v. 239 48 Ferguson, Fairchild v., xxi. 484 90 V. Ferguson, ii. 497 865 '■' • ' • • V. Troop, xvii. 527 466 Ferland, Flatt v,, xxi. 32 454 Fielding v. Mott, xiv. 254 528 Toble of Cases in the D'ujeat. 919 Page of Name of Case and where reiiortecl. Digest. Filiatrault v. De Beaujeu (Soulanges Election Case) ()7t), (582 Hardy v., xvii. 292 842 Fisher v. Anderson, iv. 400 077, 808 Fisher, Jones v., xvii. 515 750 Fisk, Stevens v 235 Fitzgerald, The Grand Trunk Ry . Co. v. , v. 20 1 720 The Grand Trunk Ry. Co. v., xix. 85!) 2<>5 v. McKinlay 107 Fitzrandolph v. The Mutual Relief Society of Nova Scotia, xvii. 333 370 Slianly v., 275) Flanagan v. Elliott, xii. 435 51 Flatt v. Ferland, xxi. 32 454 Fleming, Canadian Pacific Ry. Co. v., xxii. 33 45!) Fletcher, The Exchange Bank of Canada v., xix. 278 78 Flint, Attorney-General of Canada v., xvi. 707 591 Foley, Webster v., xxi. 580 525 Fonseca v. The Attorney-General of Canada, xvii. 012 488, 754 Foot v. Foot, XV. 099 878 Forristal v. McDonald, ix. 12 422, 098, 703 Forsy the v. The Bank of Nova Scotia {In re The Bank of Liverpool), xviii. 707 . . 883 Forsyth v. Bury, xv. 543 790 McAllister v., xii, 1 116 Fournier, Leger v., xiv. 314 789 Eraser v. Abbott 095 V. Bell, xiii. 540 040 Jones V 078 Jones V. xiii. 342 877 V. Pouliot, iv. 515 228 Proulx V. (Prescott Election Case), xx. 190 274, 005 v. Stephenson 575 V Tupper 421 ^V. Uace v., ii. 522 234 Frechett J v. Goulet (Megantic Election Case), viii. 109 259, 070 ix. 279 202 Fredericton, City of, v. The Queen, iii. 505 590 Frty, The Mut. F. Ins. Co. of the County of Wellington v., v. 82 350 Fuller V. Ames 140 The Chandler Electric Co. v., xxi. 337 509 Fulton V. McNamee, ii. 470 402 '■: ■ ^ G. \ ^r ...-.' -■; ■ Gage, Canada Publishing Co. v., xi. .300 840 Gagnon v. Prince, vii. 380 285 Galarneau v. Guilbault, xvi. 579 310. 440 Gallagher v. Taylor, v. 308 .'WO Gardner v. Kloepfer, xv. 390 (iO Garland, The (Monaghan v. Horn), vii. 409 518 v. Genimill, xiv. 321 103 020 Table of Cases in the Digest. ,f, Vat;e of •■' Name of Case and where reported. u /■ ; ,. >. . ; i,..i Diyeet. Garland, McLean v., xiii. 866 320 Gates V. Davidson 847 Gatfield, Canada Southern Railway Co. v 34 Gauthier v. Brien (L'Assomption Election Caae), xxi. ilt '277, 680 V. Normandeau (L'Assomption Election Case), xiv. 42!) 266 Geddes, Wilkins v., iii. 203 415 Gemley, Low v., xviii. 685 800 Gemmill, Garland v., xiv. 321 163 Gendron v. McDougall 420 Genereux v. Cuthbert (Berthier Election Case), ix. 102 260 Georgian Bay Lumber Co., The, v. Macdonald, ii. 364 330 German v. Rothery (Welland Election Case), xx. 376 275 Gerow v. The British American Assur. Co., xvi. 524 3!)4 Providence Washington Ins. Co. v., xiv. 731 3!)2, 675 Providence Washington Ins. Co. v , xvii. 387 395 V. The Royal Can. Ins. Co., xvi. 524 394 Gerriken, Reeves v. , 689 Gibbins v. Barber, xix. 204 484, 554 Gibbons v. McDonald, xx. 587 (,4, 707 Gibbs, Wheeler v. (North Ontario Election Case), iii. 374 253, 416 (2), iv. 430 2.54 Gibeault v. Pelletier (Laprairie Election Case), xx. 185 271!, 665 Gibraltar v. Hughes 174 Gilbert v. Gilman, xvi. 189 438 Jonas v., v. 356 494 McDonald v., xvi. 700 '^4, 290 Gilchrist, Dominion Telegraph Co. v., 844 Gillespie, Merchants' Bank of Halifax v., x. 312 160 V. Stephens, xiv. 709 2 Gilman, Exchange Bank of Canada v.. xvii. lOS (i.'s, 675 Gilbert v., xvi. 189 438 Gilmour v. Magee, xviii. 579 467 Gingras v. Desilets 212 v. Symes 14 Giraldi v. Bank Jacques Cartier, ix. 597 67 Gladwin v. Cummings 426 Gleeson, Domville v 843 Glen, McKay v. (South Ontario Election Case), iii. 641 252 Glengarry Election Case (McLennan v. Chisholm), sx. 38 272, 663 (Purcell v. Kennedy), xiv. 453 266 Glenn, Colter v. (The Haldimand Election Case), xvii. 170 268 Gloucester, N.B., Election Case (Commeau v. Burns), viii. 204 258 Godson V. The Corporation of the Citj of Toronto, xviii. 36 714 Goldie, Smith v., ix. 46 608, 689 Goldsmith, The Corporation of the City of London v., xvi. 231 552 Gore District Mut. Fire Ins. Co. v. Samo, ii. 411 355 Goulet, Frechette v. (Megantic Election Case), viii. 169 259, 676 ix. 279 262 Grand Junction Ry. Co., Bickford v., i. 696 689, 717 Table of Cases in the Digest. 921 Tune of Nftuie of Case and where reported. DiRest. Grainl Junction Ry. Co. v. Corporation of Peterboro', viii. 76 101 Grand Trunk Ey. Co. of Canada v. Beckett, xvi. 713 742 V. Boulan<;er 738 , V. County of Halton, xxi. 716 (11 ',. V. Fitzgerald, v. 204 720 xix 359 295 Jones v., xviii. 696 746 V. McMillan, xvi. 543 153,657,740 'V. Morton 732 . . , V. Kosenberf^er, ix. 311 720 . V. Sibbald, xx. 259 748 V. Treinayne, xx. 259 748 V. Voael, xi. ()12 732 V. Wilson 7l'2 Grange v. McLennan, ix. 385 774 Grant v. Beaudry 581 V. The British Cauadinn Lumber Co., xviii. 708 291 V. Cameron, xviii. 716 506, 582 The People's Loan & Deposit Co. v., xviii. 362 400 V. The Queen, xx. 297 203, 675 Grasett v. Carter , x. 105 19, 92, 229 Gray v. Coughlin, xviii. 553 545 V Pvichford, ii. 431 866 Great Eastern Hail way Co. v. Lambe, xxi. 431 649 Great North-Western Telegraph Co. v. The Montreal Telegraph Co., xx. 170.. 472 Great Western Ins. Co. v. Jordan, xiv. 734 393 Great Western Ry. Co. v. Brown, iii. 159 718 V. Erb, V. 179 719 Green v. Tlie Citizens' Ins. Co. xviii. 338 42 V. Clarke 614 Greene v. Harris, xvi. 714 796 Holman v., vi. 707 331 Greenwood, White v., (Shelburne Election Case), xx. 169 272 Gregoire v. Gregoire, xiii. 319 857 Gregory, Halifax * Cape Breton Ey. & Coal Co. v 727 Grieve, Campbell v., iNortli Perth Election Case), xx. 331 274 Griffiths V. Boscowitz, xviii, 718 661 Town of Portland v., xi. 333 177 Griffith, Walmsley v., xiii. 434 704 670, 697, 699 Griunell v. The Queen, xvi. 119 207, 815 Grip Printing & Publishing Co. v. Butterfleld, xi. 291 (UO, 687 Guardian Assur. Co. v. Connely, xx. 208 367 Guiudian Fire and Life Assur. Co., Hobbs v., xii. 631 362 Guay V. The Queen, xvii. 30 311 Guelph Lumber Co., Petvie v., xi. 450 178 Guilbault v. Dessert (Joliette Election Case), xv. 458 267 i Galarneau v., xvi. 579 316,440 -' • V. McGreevy, xviii. 609 156 ^22 TaUe of Cawn in f/,r JHr/fst. X- • y. , , , PaRn of Natiio of CaHe ari'I wlioro reportot], i , ) , • l)i(,' 2(^4 H. Ilttcki.tt V. Perry (Priiico County, V E. I. Election Case), xiv. •jCi.l 2(;r, Utiffiier, T?aiik of Montreal v., (iJank of Montreal v. Worswick) r>2<; Ila^ar, Seatli v., xviii. 715 jjH Ilaldimand Klection CaHe (Colter v. Glenn), xvli. 170 2(W (Walwli V Montague), xv. V.\~> 208 Halifax nankin^ Co., Creit^liton v., xviii. U() r,OH V. Matthew, xvi. 721 ] lO Nova Scotia Central |{ailway Co. v., xxi. .'):t(; 71'.» V. Kinitli, xviii. 710 20l> * Cape Breton Hy. .V Coal Co. v. (Jre^ory 727 lloekin v., 423 liovy V 57'.) City of V. Kenny, iii. !;»? HOC V. Lonlly, xx. .'O.'j -53 V. Oaken, iv. tMO 3,4 V. >V'alker I75 City Ily. Co. v. The Queen . . ;j7, (;7ll Street Ry. Co. v. .If)yco, xvli. 'mil 1 ji; Hull V. Dominion of Canada Land nnd Colonization f^o., viii. Ki] H:t() V. Mcl'aijdi'n 723 Montreal V, xii. 71 r,ll. 080 Halter, MoIhoh'h nank v,, xviii. hm 02 Hallon, Comity of, 'I'iie (Mand 'I'runk liy. Co. v.. \xi. 71(; .. 01 Election Cane (LiihIi v. Waldie). xix. r>.>7 i»H, 'J70, (IH2 Hamilton, City of, v. The Corporation of th(' TownHhipof Harton, xx. I7;t r,r,r, I'eterH v 7(53 HampHon, VVinoberK ^ • . *'•'<• •'''■' 450 Hanrf)ck, Tionn v., xii. t.'.i'i 32i Haninm, Hohb v., xix. 227 773 ilHnnr>n, McLoan v., iii. 700 H50 HanHon, Allen v., xviii. 007 \Vi, V.il, HH'A llardnnin v I'ntiiam, xviii. 71 J (100 Hardy v. Kiliatrault, xvii. 2»'i 84!1 Harper, Catnerrni v., xxi. 278 30fl H.irper, FaiifiH v., xi. iVA'.t rAl HarrinKton v, CorMo, ix. 112 g72 IlarriN, Greene v., xvi. 711 7{)fl HarriH v. HohjnHon, xxi. .H!iO fjl4 Hart, .Joyce v., i. 321 031, 412, Ml Hart, Troop v., vii. 512 7(J2 narty, O Hullivan v., xi. «22 BOH xill. 4H1 70a Tf Canes in the Difjfsf. !)2:i i'nyo of Naiiio of CaHO and whore roportcid. ' DI^UHt. Hurvey v. Tlio llaiik of Ilainilton, xvi.71t H(5 I'ictou Hank v., xiv. 017 770 Hiistiii>{H Mut. F. liiH. ('o. V. Klminioii, ii. 804 U'*') Hiitcley, MorcliaiilH DuHpatcli TriinHportation Co. v., xiv. '>Vi 121 ilatliaway v. (Iliapliii, xxi. 23 325 HawkiiiH, llickford v., xix. 'M'i 27 V. Smith (Uotliwell I^loction Ca»c), viii. (ITU ■>'>'.>, «8« llayeH v. Coloumii H33 lli> eH, Virtue v. In r<; Ciarko, xvi. 721 -1 13 Ilfhert, PinHonncault v., xiii. 4ijO i)'>4 Hfdjje, McMilliui v., xiv. 73(1 7!)', Hi-lfcniaii, WkIhIi v., xiv. 73n 710 llclliwoll, Caimdiiui I'aciflc Ily. CIo. v.. 522 HciKifTHon V. (Jiiilli't (WuhI Nortliuiiiljcrlaiid El(!ctii)ii (Jiiho), x. <>3.'i 203 IIi'iidorHoii, OhIi'ii-mi; v., xviii. OUH 003 IIiunoHBy, Davit'H v., (Qiiooh'h County, I". I). I., Ill.ictioii ('hho), xx. 'JO .. 271, 003 I [ci bort v. Donovan ( ^l, 700 llitt V. I'linPorij.', xviii. 2110 Ml2 Hiwftnl v. O'Donoiioi!, xix. 3 »1 r,()l, Mi I I ickcy, lloHc v., .'34 I Ii(4f,'inH v. Wftikf^nri, xvii. 225 4'.tl , O'lH hlHlop v. Tljo Corporation of tliu Town of MoCiliivniy, xv. 1ms 072 TowiiHliip of Mcidillivray, xvii. 17'.» 333 Hobbu V. The fJuanlian Fire and Lift: AHMur.ro. xii. 031 3*'i2 Northern AwHur. Cu xii. 031 302 Oiitiiii.) lioan (V l)fb(;nturo Co. xviii. lH;t 514 llocliulai^a Itank, Tiiu Union Hank of Iiowctr Canaila v 3.'it Ilockin V. Halifax & Capn llrcton Uy. A Coal (H 123 Hoe, Mnllin v -JlK Hoi.;^nn v. The ]^Hi|iiinialt ]2(>, 673 Ings v. The Bank of P. E. I., xi. 265 70 Inverness Election Case (McDonald v. Cameron), xx. 169 272 Irvine, V»'illianis v., xxii 461 Isbester v. The Queen, vii. 696 62S J. Jackson, The Canada Southern Ry. Co. v., xvii. 31 Kaulback, Beamish v., iii. 704 417, *'«77 V. Eisenhauer, (Lunenburg? Election Case), xx. 1(59 '272 Kean, Kearney v. (572. (!H4 Kearney v., iii, 332 8(17 Kearney v. Creelman, xiv. 33 512, THii V. Dickson 431 Dickdou v., xiv. 743 3.H3 V, Keau 1172, t'.sl V. Kean, iii. 332 8()7 V. Oakes, xviii. 148 312, o><2 V. The Queen 313 Keefer, Merchants' Bank of Canada v., xiii. 515 (WH, M7,"i Keith, Anchor Marine Ins. Co. v., ix. 483 382 McCuai« v., (The Pictou), iv. 648 19. 517 Kelly V. Imperial Loan and Investment Co., xi. OKi 540 V. bulivan, i. 1 32, 411, (W5, 825 Kennedy v. Pi«ott, xviii. 099 42 I'urcell v., (Glengarry Election Case), xiv. 463 2()f5 Kenny, Chisholm v ^89 City of Halifax v., iii. 497 803 v. The Queen. . . . : <'3(5 * Kent, County of, 7m re Canada Temperance Act, 1878 10(5 Keroack, MoKinnon v., xv. 1 11 322, 437 Kerr, Davis v , xvii. 2*5 n">S Milloy v., viii. 474 070, 8(13 Kidston, Duhiic v 779 Dubucv., .^vi. ."JST 288, 38(i, 05fl King, The Hector, ft''., of 8t. George's Parish Parrsboro' v., ii. 143 82 Buoton v., xviii '12 294 King's County N.H. ....leotion Case, (Borden v. Derteaux), xix. A2G 209 (Diokie v. Woo V. Whitfield 18tJ Knowlton, Buck v., xxi. 371 3117 Kuhn, (.'reif^hton v., 845 Kyle v. The Canada Co., xv. 188 (■)72 L. habelle v. liarbeau, xvi. 3!)0 430 City of Montreal v., xiv. 7U 222 Labcrge, Choquetto v., (Montnui^^ny F'lection Case), xv. 1 2fW Labreccjue, Amyot v., (Bellechase Election Case), xx. 181 273, 2SH) La Caisso d'Econom- de Notre Dame de (Quebec, I'litiy \ ., :dx. 713 855 La Corporation de la aroisso de Hte. Anne du liout du I'lsle, Reburn v., xv. 'J2. 183 La Corapa^ne de Villas du Cap Gibraltar v. Hughes, xi. 537 174 Lacoste v. Wilson, xx. 218 23(» Latlamme, The Mail Printing Co. v., 493 Soiuerville v., (Jacijues Cartier Election Case), ii. 21») 249, 284 Laird, Ross v 351 Lake, O'Sullivan v., xvi. r»3i; 442 Lakefield Lumber aud Manufacturing (^c;. v. Siiairp, .six. (157 205 Lakin v. Nuttall, iii. t;85 11, 097 Lalibert6 v. The Queen, i. 117 193, 570, 825 Lamarche, L'Hcurcux v., xii. 460 2, 674, 678 Lamb v. Cleveland, xix. 78 234, 817 Lambe, The Greit Eastern Ry. Co. v., xxi. 431 649 Molson v., x\ . 253 481 Lamontagne, Brown v., 120 Laniourcux v. Molleur 7) . 602 Lancashire Ins. Co., Howanl v., xi. 92 'M'l, 481 Landers v. Woodworth, ii. 158 479 Lane, McDonald v., vii. 462 768 Langevin, Brassard v, , (Charlevoix Election Case), i. 145 248, 695 ii 319 418 V. LeH Comniissaires d Ecolu pour la Municipality de St. Marc, xviii. rm 447, 516 Langluia, Valin v., (Montmoroncy Eleotion Case), iii. 1 281, 478, 677, 684 (Muntmorenoy Election Case [3]), iii. 90 262 Langtry, Dumoulin v., xiii. 268 671 , 761 Lapierre, Champoux v 4'2(i L'Union Ht. Joseph de Montreal v., iv. Ifl4 80 fiodiar V , xxi. ftO 455 TaUe of Cases in tha Duje-st. 927 Vano of Naino of Case ami wlicro rciioited. Diijeht. Laprairie Election Case (Gibeiiult v. relletier), xx. 185 273, (Uio Lariu, Chapman v., !•'. 34'J 13H Larue v. DcHlanricrs (Belleoliasae Election Case), v. 91 255 Larue, Rattray v. , xv. 102 H58 Lasnier, Collettc v., xiii. 503 (Ill La Hoci6te Canadienne Franvaiae de Construction de Montreal v. Daveluy, XX. 44!) 104, 341), 453 Lassalle, Berf^eron v. , 41)5 L'Association Pharmacoutitiue de la Province do Quebec v. Brunet xiv. 73rt . . Laurie, Robertson v., (Shelburne l!llection Case), xiv. 25H 2()5 Law, The British America Assurance Co. v., xxi. 325 H!)7 Lawless v. Sullivan, iii. 117 47, (W4 Lawlor v. Lawlor, x. i!)4 534 Lawrason, The Trust & Loan Vm. v., x. ti7!) 533, (;7(» Lawrence v. Anderson, xvii. 34!) tU Law Society of Upper Canada, MacDouj^all v., xviii. 203 811 Lawson, Canadian Pacific Ry. Co. v. , 72!) Williston V. , xix. <)73 7!)2 Leacock, Shields v. , 004 Lebeau, Portras v., xiv. 712 513 Lecain v. Hostprnmii 827 Lediic, McGreevy v., 801 Lees, Stewart v. , 93 Lefebvre v, The Corporation of the City of Quebec ]7() Monette v. , xvi. 887 489 Lefrancois, Russell v., viii. 335 (179, 871 Leger v. Fournier, xiv. 314 789 Le Maire etc. de Terrebonne v. Les Scours etc. de la Providence, 134 Lemay, McRao v. , xviii. '?»0 42 Lenoir v. Ritchie, iii. 575 41(), 474 Les CommiHsaireB d'Ecole etc. de St. Gabriel v. Lea Scoura de Notre Dame de Montreal, xii. 45 51 Les ConimiBHaires d'Ecole do St. Marc, Lan^evin v., xviii. 599 447, 51i> Lea Cut6 et Mar^uillers de la Paroisso de la Nutivit6, Bank of Toronto v., xii. 25 4.32, «87 Lea EccleaiaHti<|ues de St. Bulpico do Montreal v. The City of Montreal, xvi. 399 52, 440, 711 Lea Bueura de Notre Dame de Montreal, Lea Commiaapi'ieB d'Ecole, etc, de St. Gabriel v. , xii. 45 51 Lea Sumra A de la Providence, Le Marie, etc., de Terrebonne v 434 Letourneux v. Danaeroau, xii. 307 847, B77 Lett, St. Lawrence and Ottawa Ry. Co. v., xi. 422 782 Levi V. Reed, vi. 482 412 Levia, Corporation of the town of, v. The Queen, xxi. 31 818 Levia Election CaBc (Bollcnu v. Duaaault), xi. 133 2)15, (i8<> Levia, Town of, Quebec Waiahouae Co. v., xi. 006 72U •*928 Table of Ciises in the Digest. Page of Name of Case and where reported. Digest. Levy V. Halifax and Cape Breton Ry. & Coal Co 579 Lewin, J. D. Ex parte, xi. 484 4'J Alnion v., v. 514 8(U) V. Howe, xiv. 722 20 Wilson, ix. 037 532 L'Heureux v. Lamarche, xii. 4(50 2, 674, (578 Liggett, Treacey v., ix. 441 238 Lionais v. The Molson's Bank, x. 526 20, 872 Liquidators of the Bank of P. E. I., Morris v 68 Maritime Bank v. The Queen, xvii. 657 201, 817 The Receiver General of New Brunswick, .\x. 695 79,204,884 Maritime Bank v. Troop, xvi. 456 883 Liquor License Act, 1883, In re 509, 679 Lisgar Election Case (Collins v. Ross), xx. 1 270, 663 Little Seminary of Ste. Therese, The Canadian Pacific Ry. Co. v., xvi. 606. . 441, 741 Liverpool A- London it Globe Ins. Co. v. Wyld, i. 604 353, 676, 825 Livingstone, Farmer v., v. 221 487 viii. 140 607 Lloyd, Bickford v 35, t)73 Logan v. The Commercial Union Ins. Co., xiii. 270 363 London and Canadian Loan Co., Duggan v., xx. 481 856 * Agency Co., The Rural Municipality of Morris v., xix. 434 451 it Agency Co. v. Warin, xiv. 232 563 London, Corporation of the City of v. Goldsmith, xvi. 231 552 Life Ina. Co. v. Wright, v. 4()6 369 Long v. Hancock, xii. 532 321 Longueuil Navigation Co. v. The City of Montreal, xv. 566 ■1«2 Lord V. Davidson, xiii. 166 684, 8'i7 Lordly, The City of Halifax v. , xx. 505 555 Low V. Gemley, xviii. 685 309 Lucas, Merchants' Bank of Canada v. xviii. 701 318 Lunenburg Election Case (Kanlbacli v Eiseiihaucr), xx. 169 272 Lunenburg, The Warden, etc., of, v. The Atty.-Gen, of N. 8., xx. 596 557 L' Union St. Joseph de Montreal v. Lapierre, iv. 164 80 Lnah v. Waldie (Halton Election Cawe), xix. 5.57 28, 270, 682 Lynch v. The Canada N. W. Land Co., xix. 204 484, 554 Sevniour, xv. 341 470 Wood 783 Lyon, Murray v. (Pontiac Election Case), xx. 626 276, 6(!6 Macdoagall v. The Lo .v Society of Upper Canada, xviii. 208 811 ISIackinnoii v. Keroack, r\. Ill .• 322 Macklin, Boll v., xv. 676 531, 791 Mader v. MoKinnon, xxi. 645 132 Magee, Gilmour v. , xviii. 679 467 Table of Citaes in the Digest. 929 Page of Name of Case and where reported. Digest. Magee, Kane v., 247 Magiian v. Dugas (Montcalm Election Case), ix. 'J3 201 Ma^'o^ Textile & Print Co. v. Dobell, xiv. 664 18-2 Price, xiv. 664 182 Mail Printin<5 Company v. Latiamme 40i$ Maire, Le, etc., de Terrebonne v. Las Sceurs, etc., de la Providence 434 Major, Canadian Pacific Ry. Co. v. , xiii. 233 736 V. Corporation of Three Rivers 422; Manitoba Free Press Co., Ashdown v., xx. 43 492, 578, 647, 6C4 V. Martin, xxi. 518 493 Manitoba Mo-tgage Co. v. The Bank of Montreal, xvii. 692 ()02 Manning, Nasmith v., v. 417 160, 695 McDonald v. , xix. 112 158 Marcheterre, The Ontario li Quebec Ry. Co. v., xvii. 141 441, 700' " Marion Teller, The "" (Clarke v. Odette) 521 Maritime Bank of the Dominion of Canada v. Stewart, xx. 105 452, ■ ...■,,, The Liquidators of, v. Receiver General of N. B., xx 695 .. 79 Marquis, Danjou v., iii. 251 414 Marshall, McRae v', xix. 10 524 v. Municipality of Shelburne, xiv. 737 91 Martin, The Manitoba Free Press Co. v., xxi. 518 493 v. Moore, xviii. ()34 448 Morse v. 839 The Queen v., xx. 240 202, 710, 818 V. Roy 082 Martley v. Carson, xiii. 439 704 XX 634 737 Matliieu, The Quebec, Montmorency & Charlevoix Ry. Co. v., xix. 426 .... 44, 450 Matthew, Halifax Banking Co. v., xvi. 721 119 May v. Mc.\ rthur 074, 779 McDougall, xviii. 700 771 Mayor, etc., of Fredericton v. The Queen, iii. 505 590 Montreal v. Hall, xii. 74 511 St. John, Edwards v., 48 V. MacDonald, xiv. 1 551 McSorley v. , vi. 531 45 V. Pattison 173 Sears v. , xviii. 702 408 M. C. Upper, The, (McCallum v. Odette), vii. 30 517, 676 Meagher, Power v. , xvii. 287 854 Megantic Election Case (Frechette v. Goulet), viii. 169 259, 676 ix. 279 202 Mercer v. The Attorney-General for Ontario, v. 538 477 Merchants Bank of Canada v. Keefer, xiii. 515 688, 875 Lucas, xviii. 704 318 . . McKay, .\v. 672 75 . , Moffatt v., xi. 46 16,671 CAS. Dio. — 69 ...... 930 Table of Gases in the Dif/est. Page of Name of Case and where reported. Digest. Mercliams Bank of Canada v. Tlie Queen 03(5 • - -,..■ ,. Smith, viii. 51-2 688,80,3 Wliittitld (581 Halifa.x V. Gillespie, x. 312 169 McNutt, xi. 126 85 Whidden, xix. 53 9, 77 Despatch Transportation Co. v. Hacely, xiv. 572 124 Marine Ins. Co., of Canada, Allen v., xv. 488 393 V. Barss, xv. 185 393 , Boakv.,i. 110 411, <)77, 825 Butler V 390 of Canada, O'Connor v. , xvi. 331 394 V. Runisey, ix. 577 381 Troop v., xiii. 506 392 Meroier, Price v. , xviii. 303 659 Miller, Coleman v., 301, 678, 683 Confederation Life Assoc. , of Can. , v. , xiv. 330 374 V. Dut,'^an, xxi. 33 752 •: Stephenson, xvi. 722 290 White, xvi. 415 289 Milloy v. Ken-, viii. 474 670, 863 Mills v. Ray (Annapolis Election Case), xx. 109 272 Milhillu Mut. :\[ar. & F. Ins. Co. v. DriscoU, xi. 183 385, 401 Minister and Trustees of St. Andrew's Church, Montreal, Johnston v., 1. 2;i5 643 Minnie Morton, The (Owen v. Odette) 519 Mitchell V. Cameron (West Huron I'dection Case), viii. 126 259 Holland, xvi. 087 853 Mitchell, xvi. 722 308 Mockler, Mc( lowan v. , 421 Moffatt, Burland v., xi. 76 ,59 V. The Merchants' Bank of Canada, xi. 46 10, 671 Moir V. Tiie Corporation of the Villajje of Huntingdon, xix. 363 189, 449 Soverei^jn Fire Ins. Co. v., xiv. 612 364 Molleur, Lamoureux v. , 71, 092 Molson, Barnard v., xv. 716 811 V. B iruard, xviii. 622 417 V. Lambe, xv. 253 481 Molson's Bank v. Halter, xviii. 88 02 Lionais v., x. 526 20, 872 Thompson v., xvi. 664 70 Monaghan v. Horn, (The Garland), vii. 409 518 Monette v. Lefobvre, xvi. 387 439 Montague, Walsh v. (Haldimand Election Case), xv. 495 268 Montcalm Election Case, (Magnan v. Dugas), ix. 93 261 Montmagny IClection Case, (Choquette v. Laberge), xv. 1 207 Montmorency Election Case, (Valin v. Lauglois), iii. 1 251, 473, 677, 684 iii. 90 252 Montreal, City of, Atty. -Genl. of Canada v. , xiii. 352 50, 674 Bain v., viii. 252 40 Table of Gases in the Digest. 931 Page of Name of Case and where roiiortod. Digest. Montioiil, City of, v. Labelle, xiv. 711 222 Lea Ecclesiastiques, etc. v., xvi. 'd'M 52, 440, 711 Loiifiuenil Niivij^ation Co. v. , xv. 5(3(5 482 Wylic V. , xii. 384 oO Montreal City Passenger Ky. Co. , Parker v 674, 083, (58(5, 731 V. Hull, xii. 74 511, (ISO Loan & Mort^'aj^'e Co. v. Fauteux, iii. 411 20, 71)7 Ottawa & W. Ry. Co. , County of Ottawa v. , xiv. 193 221 Street Ry. v. Ritchie, .xvi. CiTi 513 Telegraph Co., The Groat Western Tele^-raph Co. v., xx. 170 472 V. Wylie, xii. 384 Moody V. Jones, xix. SliG 5, 159, 710 Mooney v. Mcintosh, xiv. 740 95 Moore v. The Connecticut Mut. Life Ins. Co., vi. 6.34 419, 695 Martin v. , .xviii. (J34 448 Moran, Taylor v. , xi. 347 391 Morden, The Rural Municipality of South Dufferin v., xix. 201 484, 5 J4 Morgan, Cote v. , vii. 1 (■)76, 712 Morin, Dupout v., (Baf;ot Election Case), xxi. 28 276 V. Tlip Queen, xviii. 407 198 V. The Queen, xx. 515 203, 748 Morris, The Connecticut & Passumpsic Rivers Railroad Co. v., xiv. 318 300 V. Liquidators' Bank, P.E.I 68 The Rural Municipality of, v. The London A Can. Loan & Agency Co., xix. 434 451 Morri.son, Christie v. , (Argenteuil Election Case), xx. 194 274, (')65 Kandick v. , ii. 12 413 V. Jf'^Cuaig 642 Morrow, Waterous v. , 138 Morse v. Martin 839 Morton, Cranio Trunk Ry. Co. v., 732 Moss, The Eureka Woo'ien Mills Co. v., xi. 91 431, 575 Mott v. The Bank of Tiova Scotia, xiv. 650 8v2 Fielding v. , xiv. i,54 528 Stuari v. , xiv. 73 1 600 Mousseau (Atty. -General), Reed v. , viii. 408 478 Mowat v. McFee, v. (id 590 Moxley, Canada Atlantic Ry. Co. v. , xv. 145 738 Muir V. Carter, xvi. 473 407, 694, 853 Muirhead v. Shireff 684 Muirhead v. Shirreff, xiv. 735 21 Mullin v. IIuo 219 Mulock, Patterson v., (North York Election Case) 682 Municipality of the County of Cape Breton, Crowe— Read v. — xiv. 8 527 V. McKay, xviii. (')39 533, 817 Municipality of North Dufferin, Bernardin v., xix. 581 160, 186, 555 Sliolburne, Marshall v. , xiv. 737 91 Munn V. Berger, x. 512 763 Mnrdooh, Chesley v. , ii. 48 283 932 2\ible of Cases in the Digest. Vnne of Name of Case and whore reported. .'■ '.i ■ "■ Digest. Murphy, The Kin-^ston & Pembroke Ry. Co. v., xvii. 582 744 The Queen v 314 Murray, Canada Central Ruilway Co. v., viii. 313 12 V. Lyon, (Pontiac Election Case), xx. G2G 270, (166 >:.v . Warner v., xvi. 720 334 Mutual Fire Ins. Co. of the County of Wellington v. Frey, v. y2 356 Ilelief Society of N. S., Fitzrandolph v., xvii. 333 370 V. Webster, xvi. 718 376 McAllister v. Forsyth, xii. 1 110 McArthur v. Browu, xvii. 01 281 May, V. 074. 779 Stephens v. , xix. 446 63 McBttin, Blachford v., xix. 42 448 v., XX. 209 666 McCaffrey, Ball v., xx. 319 282, 453 McCall v. McDonald, xiii. 247 118 . ; , V. Wolff 673 xiii. 130 117 McCallum V. Odette (The M. G. Upper), vii. 30 517,076 McCarron, McGreevy v 144 v. McGreevy, xiii. 378 151 WcColl, Tupper v. (Pictou Election Case), xx. 109 272 McConafjhy v. Denmark, iv. ()09 504 McCord, Wadsworth v. , xii. 400 237 McCorkill v. Kuif^ht, iii. 233 585, 694 McCrae v. White, ix. 22 842 McCraken v. Mclntyre, i. 479 163 McCuaig v. Keith (The Picton), iv. 648 19, 517 Morrison v. , 042 McDonald v. Abbott, iii. 278 414, 69G V. Cameron (Inverness Election Case), xx. 169 272 •^v .... . City of St. John v., xiv. 1 551 ■'", ..... V. Crombie, xi. 107 320 '.■''ii. , r . . . Dawson v. , , 586, 683 vio ' . . . , V. Doull : , . 384 ;{. .,.. Forristal v., ix. 12 422,698,763 i'?.V ... '^- '^''^ Georgian Bay Lumber Co., ii. 864 339 :■■: Gibbons v., XX. 587 64,707 \i-\ .l.sc. . V. Gilbert, xvi. 700 24, 290 ..'..•, ... V. Lane, vii. 402 753 i.\ I .... V. Manning, xix. 112 158 ^.. , ... Mayor, etc., of St. John v., xiv. 1 651 t^t't. McCall v., xiii. 247 1)8 *>*'» .:■"« , ^'- McDonald, xxi 201 857 V. McPherson, xii. 410 82 Worthington v., ix. 327 594 McDonnell v. MclNIaster 246 McDpugall v, Cameron, xxi. 379 06, 190, 467 i^, ( 7/. V. Campbell, vi. 502 532 Table of Cases in the Digest. 933 Page of Name of Case and where reported. ' Digest. McDougall , Gondron v 429 May V , xviii. 700 771 MacDougiill V. The Law Society of Upper Canada, xviii. 203 811 McDou«all, Smyth v., i lU 28H McFaddeii, Hull v 723 McFarlaue, Parish of St. Cesaire v., xiv. 738 182 Putt rkin v., xiii. (i77 535 Tlie Queen v. , vii. 21(i 030 .1 , V. The Queen, XVI. 393 1!)7 Eaphael v., xviii. 183 854 McFee, Mowiit v. , v. 6() 5'JO McGliee, Phoenix Ina. Co. v., xviii. til 25, 395 McGillevray, Corporation of the Town of Hislop v., xv. 188 672 McGillivray, Corporation of the Town of Hislop v., xvii. 479 333 Thompson v. (Antigonish Election Case), xx. 169 272 McGowan v. Mockler 421 McGreevy v. lioonier 139 Guilbault v., xviii. 609 156 v. Leduc 801 ' ' V. McCarron 144 McCarron v., xiii. 378 151 v. Paille i;i V. The Queen, xiv. 735 21 'J ho Queen v., xviii. 371 155 v. The Queen, .\ix. 180 43 McGnjjnr v. 'I'he Canada Investment & Agency Co., xxi. 409 881 l-^Hson v., XX. ITC) 88 McGu.;iin v McGusan, xxi. 207 60, 190, 456 V. Smith, xxi. 203 813 McGiiirc, P.iikett v 598 Mcllrcitl), LuuU v., xiv. 739 22 Mchitos-h, Mooney v., xiv. 740 95 Mclntyre v. Hood, ix. 550 775 Mc(Jraken v., i. 479 163 McKay, Cliin-'jhill v.. (lie Ship "Quebec"), xx. 472 665 V. C'rysler, iii. 43(i 47 V. G:in (South Ontario Election Case), iii. 041 252 , 1 ■ The Merchants' Bank of Canada v. , xv. ()72 75 The Mutiicipahty of tlie County of Cape Breton v., xviii. 03!) 553, 817 McKean v. .Jones, xix. 489 662 McKcnna v. IvroNamee, xv. 311 152 McKenzio v. Ciianipion, xii. 649 784 V. ( orbett 384 . - V. Kittnd^e, iv. 308 165, 084 Shaw v., vi. 181 108 McKercher ' . Sanderson, xv. 290 .... 790 McKiiday. litz^^erald v., 107 Mackiniion v. Keroack, xv. Ill 32.*, 4.')7 McKinnon, ^iader v., xxi. 645 122 934 Table of Cases in the Dujest. Page of Name of Case and where reported, « .■ Digest. McLachlan, The Accident Ins. Co. of North America v., xviii. 627 448 McLaren, Archibald v., xxi. o8ft 514 V. Caldwell, viii. 435 821 JMcLean v. Bradley, ii. 535 16i V. Garland, xiii. 366 820 b*K V. Hannon, iii. 706 850 'Zi The Queen v '. 399 Vi : viii. 210 631 Sea v.,xiv. 632 789 Smith v., xxi. 355 121 V. Wilkins, xiv. 22 641 McLellan v. The North British and Mercantile Ins. Co., xxi. 288 367 McLennan v. Chisholm (Glengarry Election Case), xx. 38 272, 663 Grange v., ix. 385 774 McLeod V. The New Brunswick Railway Co., v. 281 12, 676 The Queen v., viii. 1 630 McManamy, The Corporation of the City of Sherbrooke v., xviii. 594 446 McMaster, McDonnell v. , 246 McMicken v. The Ontario Bank, xx. 548 297, 546 McMillan, Barton v. , xx. 404 813, 820 f-' / . . Byers v., xv. 194 17 ;<'. - . . The Grand Trunk Ry. Co. of Canada v., xvi. 543 153, 657, 740 L^i ... v. Hedge, xiv. 736 795 The South-West Boom Co. v., iii. 700 645 V. Valois (Vaudreuil Election Case), xxii. 1 . . 460 Walker v., vi. 241 135 McNab V. Wagler 699 •VcNamee, Fulton v., ii. 470 402 McKenna v., xv. 311 152 McNutt, Merchants' Bank of Halifax v. , xi. 126 85 McPherson, McDonald v., xii. 416 82 McQueen v. The Phoenix Mutual Fire Insurance Co., iv. 660 3-56, 688 V. The Queen, xvi. 1 229, 280, 505, 516, 641, 852 McRae v. Lemay, xviii. 280 42 V. Marshall, xix. 10 524 McSorley v. The Mayor, etc., of St. John, vi. 581 45 McWillie, The North Shore Ry. Co. v., xvii. 511 744 '"' .:■ ''' '•' " ■ r^r"* ■ N. Nasmith v. Manning, v. 417 160, 69ft Neelon, Beatty v. , xiii. 1 181 Canadian Pacific Ry. Co. v 522 Neill V. Travellers' Ins. Co., xii. 55 378 Neilson, Snowball v., xvi. 719 407 Nelles, White v., xi. 587 650 Nevina, The Queen v. , 427 New Brunswick Ry. Co. , McLeod v. , v. 281 12, 676 v. Robinson, xi. 688 726 Table of Cases m the Digest. 935 ';• 't',' Page of ■yr-'tW--- Name of Case and where reported. n ..'r. imj • - j : > Digest. New Brunswick Ry. Co. v. Vanwart, xvii. 35 74$ New Westminster, Corporation of the City of v. Brighouae, xx. 520 556 New York Life Ins. Co. , The, Vezina v., vi. 30 370 NichoUs V. Cumraing, i. 395 45 Niclioleon, Temple v., 114 Nordheimer v. Alexander, xix. 248 568 Normand, Beausoleil v., ix. 711 13 Normand, Chagnon v., xvi. 661 442 Norniandeau, Gautbier v., (L'Assoniption Election Case), xiv. 429 266 North America Life Ass. Co. v. Craigen, xiii. 278 374 British & Mercantile Ins. Co. v. McLellan, xxi. 288 367 I^ufferin, The Municipality of, Bernardin v., xix. 581 160, 186, 555 Northern Ass. Co., Hobbs v. , xii. 631 362 North Ontario Election Case, (Wheeler v. Gibbs), iii, 374 253, 416 '■ (Wheeler V. Gibbs). iv, 430 254 ' Perth Election Case, (Campbell y. Grieve), xx. 331 274 Shore Ry. Co. , Beaudet v. , xv. 44 40 •'• ..,., Bigaouette v., xvii. 303 311 ''*'■•■ . . V. McWillie, xvii. 511 744 «"-■: - Pion v., xiv. 677 756 >■ ( v. Trudel '. 793 V. Ursulines of Quebec 36 North-West Transportation Co., Beatty v., xii. 598 181 North York Election Case, (Patterson v. Mulock) 682 Norvell, Canada Southern Ry. Co. v., 34, 673 Nova Scotia Central Ry. Co. v. The Halifax Banking Co., xxi. 536 749 Nuttall, Lakinv., iii. 685 11, 097 ^'•^ • 0. ■ ."• •/■ ' '■' " " '■' Oakes v. The City of Halifax, iv. 640 33 Kearney v., xviii. 148 312, 582 O'Brien v. Caron (Quebec County Election Case), xiv. 429 206 V. Cogswell, xvii. 420 ".J, 503 ' '•■'' V. O'Brien '297 ' I V The Queen, iv. 529 620, (isa ' * ' ex rel. Felitz, xvi. 197 133, 439 Ocean Mut. Mar. Ins. Co., Bailey v., xix. 153 396 Spinney v., xvii. 326 395 O'Connor v. The Merchants' Marine lus. Co., xvi. 331 394 Odette, Clarke v. ("The Marion Teller ") 521 McCallum v. ( " Tlie M. C. Upper "). vii. 36 617, 676 •" Owen v. ("The Minnie Morton") 519 O'Donnell, Confederation Life Ass. of Canada v., 370 X, 92 871 **^ xiii. 318 872 xvi. 717 378 O'Donohoe v. Beatty, xix 356 27, 449. 812 Heward v., xix. 341 507, 654 936 Table of Gases in the Digest. - " Page ol Name of Case and where report*. 3. Digest. O'Donohoe, Stammers v., xi. 358 782 Ogden, Dawson v., 797 Oille, Befttty v., xii. 706 575 O'Keefe v. Curran, xvii. 590 601 Oliver V. Davidson, xi. 166 874 V.Johnston 651 '.- Vernon v.. xi. 156 38, 6^t3 O'Meara v. Tiie City of Ottawa, xiv. 742 4118 Ontario Bank V. Chaplin, xx. 152 ... 29,79,348,672,884 McMicken v.. xx. 548 297, 540 (•fiJi v. Stewart 571 •fj.? Car Co. V. Farwell. xviii. 1 745 rjii) :; Coal Co., The Western Ass. Co. v., xxi. 383 398 r^i Loan and Debenture Co., Hobbs v., xviii. 483 544 ;,7-j ,1 North, Election Case (Wheeler v. Gibbs), iii. 374 253, 410 (V iv. 430 254 p.I & Quebec Ry. Co. v. Marcheterre, xvii. 141 444, 700 (.(.( V. Philbrick, xii. 288 188, G87, 088 ti> South, Election Case (McKay v. Glen), iii. 641 252 O'Regan v. Peterp, xvii. 44 483, 815 Osborne V. Henderson, xviii. 698 . 603 O'Shaughuessy v. Ball, xxi. 415 755 O'Sullivan v. Harty, xi. 322 308 xiii. 431 703 Lake, xvi. 636 442 O'Toole, Wallace V 713 Ottawa, Corporation of the City of. The Canada Atlantic Ry. Co. v. xii. 305.. 550 Idl . . County of. v. The Montreal, Ottawa A Western '■■'•- Ry. Co., xiv. 193 221 ''C ,■ Agricultural Ins. Co. v. Sheridan, v. 157 358 •W City of, O'Meara v., xiv. 742 498 Owen v. Odette ("The Minnie Morton") 519 Owens V. Bedell, xix. 137 823 wo; t... „a1^m .r'l'^M'.yl Pagev. Austin, X. 132 109 Paill6, McGreevy v., 141 Paint v. The Queen, xviii. 718 312 Palmer v. Wallbridge, xv. 050 471 Palmerstoii, C'^rporation of the Town of, The Wateroua Ensjine Works Co. v., xxi. 556 502 Paradis V. Bos66, xxi. 419 66, 190 Bruneau (Richelieu Election Case), xxi. 168 277 OV The Queen, v., xvi. 710 41 Parish of St. Cesaire v. McFarlane, xiv. 738 182 Parkdale, West v., xii. 2.50 550 Parker v. Montreal City Passenger Ry. Co 074, 083, 686, 731 White v., xvi. 699 4 Tahk of Cases in the Digest 937 '" ■ .' Page of -•>" Name of Case and where reported. Digost. Parsons, The Citizens Ins. Co. v., iv. 215 476 The Queen Ina. Co. v., iv. 215 476, 693 V. The Standard Fire Ins. Co., v. 233 357 Partlo V. Todd, xvii. 196 841 Patch V. .Pitman 389 Patterson, Campbell v., xxi. 645 .. 122 V. Mulock (North York Election Case) 632 Pattison, Mayor, etc., of St. John v., 173 Peak, Shields v., viii, 579 341, 417, 676 Pearson, Sherren v., xiv. 581 605 Peck V. Powell, .xi. 494 609 Peers v. Elliott, xxi. 19 530 Pelletier, Gibeault v., (Laprairie Election Casel, xx. 185 273, 665 Penman Manufacturing Co. V. Broadhead, xxi. 713 18 Penrosev. Knight 689, 776 People's Bank, The Exchange Bank of {^^anada v., 79 of Halifax v. Johnson, xx. 541 161 People's Loan & Deposit Co. v. Grant, xviii. 262 400 National Bank of Charleston, Stewart v., 81 Perkins, Bank of Toronto v. viii. 603 67 Perrault, Cimon v. (Charlevoix Election Case), v. 133 256 Perrault, Reeves v., x. 616 ... 335 Perry v. Cameron (Prince County P. E. I. Election Case), xx. 26 271, 663 .,, . , Hackett v. (Prince County P. E. I. Election Case), xiv. 263 265 Staiidly v., iii. 356 4 Perth, County of, Z/i ri; Canada Temperance Act, 1878 . 105, 679 Peterboroutfh, Corixji-ation of County of, C()rj)oration of County of Victoria v .5.58 The (iniud Junction Ry. Co. v., viii. 76 101 Peterkin v. McFarlane, .\iii. 077 533 Rose v., xiii. 677 535 Peters v. City of St. John, xxi. 674 56 , , ., Danaher v. , xvii. 44 483, 813 V. Hamilton 763 O'Regan v., .wii. 44 483, 815 v. The Quel)fC Harbinir Connnissioner.s, xix. 685 160 Sovereign Fire Iuh. Co., of Canada, v., xii. 33 362 Petrie v. (Juelph Lumber Co., xi. 430 178 Petry v. La Caisse d'Econoi;;:e de Notre Dame de Quebec, xix. 713 835 Phelps, Canada Southern Ry. Cu. v., xiv. 1.^52 725 Philbrick, Ontari.j & (iueliec Ry. Co. v., xii. 288 188, 687, 68S Phoenix Ins. Co. v. McCihee, xviii. 61 2.5, 895 Mut. Life Ins. Co., Boyce v.. xiv. 723 375 Ins. Co., McQueen v., iv. (MJO 356, ()88 Pichi- V. The City of Quebec 497 Pioton, The, (MeCuaig v. Keith), iv. 618 19, 517 Bank v. Harvey, xiv. 61" 770 Election Case, (Tupper v. MeCoU), xx. 161) 272 School Trustees \ . Camel-on, ii. 690 166 Pigeon v. The Reconler's Court and the City of Montreal, xvii. 495 4S3 Piggott, Kimnedy v., xviii. 6!)9 42 Pilon V. Urunet, v. 318 125, 680 938 Table of Cases in the Digest. Va'io of Name of Case and where reported. Digest. Pinsonneault, Browne v., iii. 102 469 Pinscnneault v. Hebert, xiii. 450 054 Vi:m V. The North Shore Ry. Co., xiv. 677 756 Pitman, Patch v., 389 Piatt, Attrill v., x. 425 240 Phmib V. Steinhoff, xiv. 739 95 Poirier v. Brule, xx. 97 855 Poitras v. Lebeau, xiv. 742 513 Poitvin, Ih re 327 Pontiac, The Corporation of the County of, v. Ross, xvii. 400 743 Pontiac Election Case (Murray v. Lyon), xx. 626 276. 666 Portage Extension of the Red River Valley Railway, In re 487 Portland, City of, Williams v., xix. 159 554 Portland, Town of, v. Griffiths, xi. 333 177 Poulin V. The Corporation of QueVjee, ix. 185 479 Pouliiit, Eraser v., iv. 515 228 Powell, Peck v., xi. 494 609 Power V. Ellis, vi. 1 885 V. Meagher, xvii. 287 854 Preeper v. The Queen, xv. 401 196 Prefoutaine, Dufresne v., xxi. 607 101 Vallee v., xxi. 607 101 Prescott Election Case (Proulx v. Eraser), xx. 196 274, 665 Prevost, Turner v., xvii. 283 819 Price, Magog Textile & Print Co. v., xiv. 664 "182 V. Mercier, xviii. 303 659 Prince County, P. E. I., Election Case (Hackett v. Perry), xiv. 2()5 265 (Perry v. Cameron), xx. 26 271, 663 Prince, Gagnon v,, vii. 386 285 Proulx V. Eraser (Prescott Election Case), xx. 196 274, 665 Proviilence Washington Ins. Co. v. Almon 390 ■ , . v. Chapman 386 ■;•'■ V. Corbett, ix. 250 383 ■■■''• V. Gerow, xiv. 731 392, 675 xvii. 387 395 Provincial Ins. Co. of Canada, Eillington v., iii. 182 359 V. Connolly, v. 268 379 Pugh, Robertson v., xv. 706 393 Pugsloy V. Ring 241 I'un Pong, Hett v., xviii. 290 812 Purcell V. Kennedy (Glengarry Election Case), xiv. 453 266 Purdom V. Baechler, xv. 610 600 Putnam, Hardnam v., xviii. 714 060 Quebec Central Ry. Co., The, The Corporation of the City of Quebec v., x. 5t'3. . 721, 819 City of, The Bell Telephone Co. of Cajiada v., xx. 230 452 Piche V 497 The Quebec Gas Co. v. xx. 2;iO • 452 Corporation of The City of, Lefebvre v 176 Poulin v., ix. 1H."> 479 The Quebec Central Ry. Co. v., x. 603 721 Table of Cases in the Digest. 939 "'*•■.■»'. Name of Case and where reported. Digest Quebec, Corporation of the City of, The Quebec Street Ry. Co. v., xv . 164 18+ V. Queen 040 j County Election Case (O'Brien v. Caron), xiv. 429 266 t«rt, , Ga"* Co. V. The City of Quebec, xx. 230 452 \,y. Harbour Comniisaioners, Peters v., xix. 685 160 ^;, Montmorency and Charlevoi;: Ry. Co. v. Mathieu, xix. 426 44, 450 ^. North Shore Turnpike Road Tmsteeb v. Vezina .' 758 ,_ Street Ry. Co. v. The Corporation of the City c.f Quebec, xv. 164 184 • Warehouse Co., The, v. Town of Levis, xi. 666 726 Queddy River Driving Boom Co. v. Davidson, x. 222 478 Queen, The, Abrahams v., vi. 10 X92 Amer v., ii. ,592 4I3 J,--, Arpin v., xiv. 736 21 y. f . . V- The Bank of Nova Scotia, xi. 1 I99 ^,^ j V. Beaulieu, x vi. 716 4I V Belleau, vii. 53 (;25 Berlinguet v. xiii. 26 150. (585 V. Boucher 325. J ,. .. Brisbois v., xv. 421 197 i'>H '.":' Burroughs v., xx. 420 203, 609 j„; Carter, Macy & Co. v., xviii. 706 207 J,,, V. Charland, xvi. 721 4I c.i,> 1 ;■ ■*'• Cliesley , xvi. 306 "... 288 Cr^ ' . Chevrier v., iv. 1 229, 231, 621 j^), : v. Clark, xxi. 656 459 (>,;,, Corporation of the City of Quebec v., 640 f,,.. Town of Levis v., xxi. 31 313 iU> .stv. Cunninghiimv 194 ty. ' v. Dartmouth, 9, 509 515 m .1'; ■ ""'• I^""t''«> vi- 342 C2» i0. ' Downie v., xv. 358 I95 f-v '. "*'• '^""W' "'• 3*^5 63» ,;, ' ■ Ellis v., xxii. 7 133, 458. i.rv .i^n "■ I'^arwell, xiv. 392 715 Grant v., xx. 297 203, 675 'Grinnell v., xvi. 119 207, 815 ,,„,. Guay v., xvii. 30 3II jV,.- " ' The Halifax City Ry. Co. v., 37, 679 ,j^.. ' V. Hubert, xiv. 737 39. Humphrey v., xx. .591 151, 204 Isbester v., vi. 696 (;28. Jacobs v., xvi. 433 197- John v., XV. 384 19g. Jones v., vii. 570 (jlg Kearney v 313 Kenny v., 636. Laliberte v., i. 117 I93, 570, 825 Liquidators of the Maritime Bank v., xvii. 657. . 201, 817 V. Martin, xx. 240 202, 710, 818 Mayor, etc., of Fredericton v., iii, ,505 590 v. McFarlane, vii. 216 030 McFarlano v., xvi. 393 I97 V. McGreevy, xiv. 735 21 940 Table of Cases in ike Digest. Page of Name of Case and where reported. '■ ' Digest. ■Queen, The, v. McGreevy, .wiii. 371 165 McGreevy v., xix. 180 43 V. MacLean 309 viii. 210 631 V. McLeod, viii. 1 ; 630 McQueen v., xvi. 1 229, 280, 505, 516, 641, 852 The Merchants' Bank of Canada v., 636 Morin v., xx. 515 203, 748 xviii. 407 198 V. Murphy 314 V. Nevins 427 ..;,.. O'Brien v., i v. 529 620, 686 ;;;• ex rd. Feliiz, O'Brien v., xvi. 197 133, 439 il_.. Paint v., xviii. 718 312 .,^- . V. Paradis, xvi. 716 >. 41 <; ; ' Preeper v., xv. 401 196 Mt7 ... ■ Quirt v., xix. 510 202, 591 w -• v. Robertson, vi. 52 622 ■; .; , The St. Catharines Milling and Lumber Co. v., xiii. 577 337 V. The St. John Water Commissions, xix. 125 158 Scott V. , ii. 349 193, 681 <3ueen, Jhe, Severn v., ii. 70 474 V. Sniich, x. 1 632 634 .: V. Starrs, xvii. 118 154, 678 V. Taylor, i. 65 411, 825 Theal v., vii. 397 192 V. Trepanier, xii. Ill 328 Tylee v., vii. 651 625 Vezina v., xvii. 1 311 V. The Warden, etc., of Dartmouth, ix. 509 515 The Warden, etc., of Dartmouth v., xiv. 45 515 & the Western Counties Ry. Co., The Windsor & Annapolis Ry. Co. v., x. 335. ;, , ' - , . 333, 683 Wood v., vii. 631 696 vii. 634 629 ■Queen Insurance Co. v. Parsons, i v. 215 476, 678, 695 ■Queen's County, P. E. I., Election Case (Davies v. Hennessy), xx. 26 271, 663 (Jenkins v. Brecken), vii. 247 256 Quirk, Thomson v., xviii. 695 119 Quirt V. The Queen, xix. 510 202, 591 R. Radenhurst, Draper v., xxi. 71 1 836 Raleigh, Corjwration of the Township of, Dillon v., xiv. 739 183 Williams v., xxi. 103 560 Ramsay, Reid v., 420 Rand, Chapman v., xi. 312 108 Rankin, Roblee v., xi. 137 84, 428 Rapiiael v. McFarhuie, xviii. 183 854 Ratte, Booth v., xxi. th37 667 lUttray v. Larue, xv. 102 858 Table of Cases m the DUjed. 941 •'> '\^ ' .... Pafie of Xmiie of Cnse and where reiiorted. Digest. Rattray v. Young 1-1!), 002' Ray V. The Annual Conference of New Brunswick, vi. 308 870 MiIIh v. (Annapolis Election Case), xx. lU'J 272 Reburn v. La C'ori)oration de la Paroisse de Ste. Anne du Bout de I'lsle, xv. S)'l 183 Receiver- General of New Brunswick, The Liquidators of the Alaritime Bank v., XX. «95 79, 204, 884 Recorder's Court and The City of Montreal, Pigeon v., xvii. 405 483 Rector, etc., of St. George's Parish, Parrsboro', The, v. King, ii. 143 32 Red River & Assiniboine Bridge Co., Rolston v., 564 Reed, Levi v., vi. 482 412' V. Mousseau (Attorney-General), viii. 408 478 Reeves v. Gerriken 689' V. Perrault, x. 616 335 Reid V. Ramsay 420 Rennie, The ' 'tterson LumV)er Co. v., xxi. 218 860 Reynolds v. Barned's Banking Co , 170 Richardson, Vaughan v., xvii. 703 445, 694, 700, 706- XXI. 359 80[> Richelieu Election Case (Paradis v. Bruneau), xxi. 168 277 Navigation Co., Dixon v., xviii. 704 109 Richford, Gray v., ii. 431 866 Rickaby v. Bell, ii. 560 339 Rider v. Snow (Stanstead Election Case), xx. 12 271, 296, 410, 693, 754 Ring, Pugsley v., 241 Ritchie, Diocesan Synod of N. S. v., xviii 705 233 Lenoir v., iii. 575 410, 474 ;-i . The Montreal Street Ry. Co. v. , x vi. 622 513. Snowball v., xiv. 741 98 Roberts v. Vaughan, xi. 273 84 Robertson v. Laurie (Shelburne Election Ca-se), xiv. 258 265 Robertson ■. . Pagh, xv. 706 393 The Queen v., vi. 52 622 v. Wigle, (The St. Magnus), xv. 214 22 ^V-t'i ,f^^ v. Wigle, (The St. Magnus), xvi. 720 520 Robillard, Ca verhill v; , ii. 575 584 Robinson, Canadian Pacific Ry. Co. v., xiv. 105 222 v., xix. 292 5, 661, 710 Harris v., xxi. 390 813 '"■ New Brunswick Ry. Co. v., xi. 688 726- Roblee v. Rankin, xi. 137 : 84, 428 Rodburn v. Swinney, xvi. 297 : 543 Rodier v. Lapierre, xxi. 09 455 Rogers v. Duncan, xviii. 710 243 Rolston V. Red River it Assiniboine Bridge Co 564 Rooney, Schroeder v., 403, 434 Rose V. Hickey 534 V. Peterkin, xiii. 677 535 Rosenberger, The Grand Trunk Ry. Co. v., ix. 311 720 Robs v, Barry, xix. 360 295 Colhns v., (Lisgar Election Case), xx. 1 270, 663 The Corporation of the County of Pontiao v., xvii. 406 743 Doran v., 829 V. Hannan, xix. 227 773- 942 Table of Cases in the Digest. _ . ,v Page of Name of Case and whore reported. Digest. Ross, Holland v., xi.\. 56(5 205 V. Hunter, vii. 289 843 V. Hurteau, xviii. 713 772 V. Laird 351 V. Ross .■ 30fi Rothery, Gprman v., (Welland Election Case), xx. 37(> 275 Rouville Election Case, (Brodeur v. Charbonneau), xxi. 2o> 27(5 Roy, Corporation of Aubert-Gallion v., xxi. 456 837 Martin v., 682 Royal Canadian Ins. Co., (Jerow v., xvi. 524 3!)4 Smith v., 385 Royal Ins. Co. v. Duffus, xviii. 711 293 Rumsey, The Merchants' Marine Ins. Co. v., ix. 577 381 Rural Municipality of Cornwallis v. The Canadian Pacific Ry. Co., xix. 702 54 Morris v. The London & Canadian Loan & Agency Co., xix. 434 . . .» 451 South Duflferin v. Morden, xix. 204 484, 554 Russell V. Lefrancois, viii. 335 679, 871 Ruttan, Trust and Loan Co. v., i. 564 228, 688 Ryan, Clarkson v., xvii. 251 61, 445, 483 Darling v 435 V. Ryan, v. 387 19, 828 Whelan v., xx. 65 54 Rykert, St. John v., x. 278 399, 613 S. _ , Samo, Gore District Mutual Fire Ins. Co. v., ii. 411 355 Sanderson, McKercher v., xv. 296 790 Saiigster, Hood v., xvi. 723 444 Scammell v. James, xvi . .593 441 Scaulan, Western Ass. Co. v., xiii. 207 391, 681 Schofield, Carvill v., ix. 370 805 School Commissioners for the muninipality of Ste. Victoire, Hus v., xix. 477 245 cf St. Valentine, Tremblay v., xii. 546 244 Schroeder v. Rooney 403, 434 Schultz V. Wood, vi. 585 669, 775 Schwersenski v. Vineberg, xix. 243 294, 661 Scoble, Sinnott v., xi. 571 831 Scott V. The Bank of New Brunswick, xxi. 30 .... .578 Benedict, xiv. 735 790 The (Jueen, ii. 349 193, 681 Scottish Canadian Asbestos Co. In re (Allen v. Hanson), xviii. 667 883 Imperial Ins. Co., Clark v., iv. 192 358, 688 Union & National Ins. Co., Barrington v., xviii. 615 447 Scribner, Kinloch v., xiv. 77 770 Sea V. McLean, xiv. 632 789 Seaman, West v., 388 Sears v. The Mayor, etc., of the City of St. John, xviii. 702 468 Seath V. Hagar, xviii. 715 448 Seeton v. King, xviii. 712 294 Selkirk Election Case (Young v. Smith), iv. 494 254 Table of Cases in the Digest 943 Name of Case and where reported. Dig.jst. Severn v. Archer ^-r^ The Queen, ii. 70 474 Sewell V. British Columbia Towing Co. (The Thrasher Case) 480, 070, 075 ix. o27 800 Seymour, Lynch v., xv. 341 47O Shairp, Lakefield Lumber & Manufacturing Co. v., xix. 0.57 205 Shanly v. Fitzraiulolph 279 Shannon The Hastings Mutual Fire Ins. Co. v., ii. 394 355 Shaw V. Cadwell, x vii. 337 gOj^ The Canadian Pacific Ry . Co. , x vi. 703 407, 443 McKenzie, vi. 181 jq3 St. Louis, viii. 385 4^3 Shelburne Election Case (Kobertson v. Laurie), xiv. 258 205 (White V. Greenwood), xx. 169 272 Shelburne, Municipality of, Marshall v., xiv. 737 91 Sherbrooke, Corporation of the city of, v. McManainy, xviii. 594 446 Sheridan, The Ottawa Agricultural Ins. Co. v., v. 157 358 Sherren v. Pearson, xiv. 581 505 Shields v. Leacock Cq4 Peak, viii. 579 34I, 417^ 070 Ship " Quebec " (Churchill v. McKay), x.x. 472 C.w ShirreflF, Muirhead v (534 xiv. 735 21 Shirreff , Swim v 142 Shoolbred v. Clarke (Re Union Fire Ins. Co.), xvii. 265 658, 883 The Union Fire Ins. Co., xiv. 624 882 Shorey v. Joiie.s, xv. 398 fjO Shortreed, Bew v., qqq Sibbald, The Grand Trunk Ry. Co. of Canada v., xx. 259 748 Silver, The Dominion Telegraph Co. v., x. 238 489 Simonds v. Chesley, xx. 174 gjO Sinnott v. Scoble, xi. 571 831 Skelton, Evans v., xvi. 637 4(5(5 Slater v. Badenach, x. 296 58 319 Smart, In re, xvi. 390 33I 440 Smith v. The Bank of Nova Scotia, viii. 558 107 City of London Fire Ins. Co. v., xv. 69 364 V. Goldie, ix. 46 608, 089 The Halifax Banking Co. v. , xviii. 710 293 Hawkins v. (Bothwell Election Caae), viii. 076 259, 686 McGugan v. , xxi. 263 813 V. McLean, xxi. 3.55 121 The Merchants' Bank of Canada v., viii. 512 088, 863 The Queen v., x. 1 6.32 634 V. The Royal Canadian Ins. Co 385 Wiley v., ii. 1 821 Young v., (Selkirk Election Case), iv. 494 254 Smyth v. McDougall, i. 114 283 Snow, Rider v. , (Stanstead Election Case), xx. 12 271, 296, 410, 693, 754 Snowball v. Nailson, xvi. 719 407 v. Ritchie, xiv. 741 96 v. Stewart 57O 944 Tahle of Cascn in the Digest. I'aKe of Name of Case and where roportr^d. DIueHt. S(Burs, les, de L'Awile tie V\ Providence, lo Maire, etc., de Terrebonne v., 434 S(eurH, les, etc., de Notre Dame de Montreal, Corporation de St. iTabrie' v., xii. 45. 51 Sojnbra, The Corporation of the Townsliip of, v. The Corporation of the Township of Chatham, xxi. ;«)5 501 Sonierville v. Laflamme, (Jacfpies Cartier Election Case), ii. 216 241), 284 Soulanges Election Case, (Cholette v. Bain), ?c. 652 264 (Filiatrault v. DeBriaiijeu) (176, 082 South Dufferin, Rural Municipality of, v. Morden, xix. 204 4!S4, 554 Norwich, Township of, Huson v., xxi. 009 502 Ontario Election Caje, (McKay v. Glen), iii. 041 252 Souther, Wallace v., ii. 508 284, 072, ()83 xvi. 717 86 Southwost Boom Co. v. McMillan, iii. 701 645 Sovereign Fire Ins. Co. of Canada v. Moir, xiv, 012 364 V. Peters, xii. 33 302 Spears v. Walker, xi. 113 145 Spinney v. The Ocean Mutual Marine Ins. Co., xvii. 320 395 Springer v. The Exchange Bank of Canada, xiv. 71(i 75 Sproule, In re, xii. 140 329 Spurr V. The Albert Mining C ., ix. 35 136 Stadacona Eire & Life Ins. Co Caldwell v. , xi. 212 360 Cote v., vi. 193 167, 682, 683 Stammers, O'Donohoe v., xi. 3.58 782 Standard Fire Ins. Co., (Caston': Case), >ii. 644 180 Parsons v. , v. 'J'iS 357 Standly v. Perry, iii. 356 4 Stanstead Election Case, (Rider v. .Snow), xx. 12 271, 296, 410, 093, 754 Stanton v. The Canada Atlantic Ry. Co 430 Starrs v. Cosgrave Brewing and Malting Co. of Toront'^ xii. 571 599, ()97 The Queen v., xvii. 118 154, 078 Steadman, Venning v., ix. 20() 317 Steamer ilagnus, (Robertson v. Wigle), xv. 214 22 Steel, Jamieson v 465 SteinhoflE, Plumb v., xiv. 739 75 Stephens v. Chausse.. xv. 379 223 Gillespie v., xiv. 709 2 v. Mc Arthur, xix. 440 03 Stephenson, Fraser v., .j75 Miller v., xvi. 722 290 Stevens v. Fisk 235 Stevenson v. The Canadian Bank of Commerce, xxii 332 Stewart, Brady v., xv. 82 510 V. Lees 93 The Maritime Bank of the Dominion of Canada v., xx. 105 4.52 Ontario Bank v. , 671 V. People's National Bank of Charleston 81 Snowball v ;i70 Stuart v. Mott, xiv. 734 600 St. Catharines Milling and Lumber Co. v. The Queen, xiii. 577 337 St. Cesaire, Parish of, v. McFarlane, xiv. 738 182 St. Gabriel, Corporation of, St. James v. , 147 St. James v. Corporation of St. Gabriel 147 Table nf Cof^es in the DujeM.. ■ ' 945 l'ft(;o of Nanio of Case and whom roportoil. ... ) Dinnst. Ht. .lolm, f!ity of, v. Cliristio, xxi, 1 "init iVfaycir, iitc, of, Kdwavd.s v., 4S City of, V. Miicdoniikl, xiv. 1 •''>">1 McSorliiy v., vi. 531 ■(•"> Mayor, etc., of, v. Patti.'4oii IT."? (^ity of, l'(!tors v., .\xi. (17 1 •'">•> .S<'arK v., xviii. 702 I'iS Tiiniin'rinan v., .\.\i. (ii)l •"> V. Ryk.Tt, X. 278 ;«)!>, (".13 Water Coiiiiiiis.sionws, Thr (iuoon v., xix. 125 lf>S St. .Jnhn.-i, Tlio Ofutral Vermont Ry. Co. v., xiv. 288 52 St. Lawivnee & Ottawa Ry. Co. v. Lett, xi. 122 732 St. Ijoiiis, I )anHer('aii v., xviii. 587 87, 2(')!» Sliaw v., viii. :!85 41S St. Mafrniis, The, (lloliertHoii v. Wiffle), xv. 214 22 xvi. 720 520 St. Ro.se, The Corporation of tlie Village of, IJiihois v., xxi. (>5 . . . .' 455 Sulivan, Kelly v., i. 1 32, 411, G0.5, 825 Sullivan, Lawle.ss v., iii. 117 47, 084 Suite v. The Corporation of the City of Tlin^e Fivers, xi. 25 481 Sunniiers v. Thi^ Commercial Union A.ss. Co., vi. 1!) 3.')0 Sun Life Ins. Co., Vi^nner v., i.vii. ;i!)4 377, 095 Sntiierland, Cox v., 10 Sw(ieny V. Tlu^ Rank of Montreal, xii. Ofil 8.52 Swim V. Hhirreff 142 Swinney, Uodlmrn v., xvi. 297 •'"'43 Sword, Tile Sydney & Louisburg Coal & Ry. Co. v., xxi. 152 282 Sydney it Jjoui.il)m'jj; C!oal & Ry. Co. v. Sword, xxi. 152 282 Syme.H, < iinj,'ras v., 14 Synod of the Diocese of Huron, Wrii^ht v., xi. 95 120, 073 Toronto v. l)e BliU|uiere .,. . ;. . ; • • ■ ^^^ ,;... ■ ■■■:'••'■■ ri;_ Tate, ("anieron v., xv. (>22 .i . .V.' 3 Taylor, ( Jallagiier v., \'. :^4)8 -"WO V. Moran, xi. 347 -^'Jl T!:., .^iieen v., i. 05 411, 825 V. Wallbridge, li. 010 770 Temple V. Clo.se 705 Nicholson .,,._. ., 114 Theal V. The Queen vii. 397 .". T. 192 Thihaudeau, Benning v., xx. 110 04, 348 Thompson v. McfJillivray (Antigoui.sh Klection Case), xx. 109 272 The Molson's Jiank, xvi. 004 70 Thomson v. Dyment, xiii. 303 709 Quirk, xviii. 095 119 Thrasher Case— Sewell v. B. C. Towing Co 480, 070, 075 The, ix. 527 8W' Throe Rivers. Corporation of the Cit,\- of, Major v., 422 Suite v., xi. 25 481 Tiernan, Edmonds v., xxi. 40(i 520 CAS. DIG — 60. 946 Title of Cases in the Digest. Page of Name of CaBo and whoro reported. Digest. Timmerman, City of St. Jolm v., xxi. C91 55 Titus V. Colvillo, xviii. 70!» 292 T(xld, Partlo v., xvii. liHJ 841 Toronto, City of, Att'y-<»<'ii'l of Canada v., 57 ((, J Carey v., xiv. 172 780 tWil CciKiration of the City of, (Jod.son v., xviii. 'Mi 714 ..* CJravol Road Co. v. County of York, xii. 517 1(» Town of Levis, (Quebec Warehouse Co. v., 726 Portland v. Griffiths, xi. ;«3 177 Saint Johns, Central Vermont Ry. Co. v., xiv. 288 52 Township of Cambridge, The Canada Atlantic Ry. Co. v., xv. 21!) 1K4, .'V>7 Chatham v. Townshij) of Dover, xii. 321 548 ,^, Raleigh, Dillon v., xiv. 739 183 Soiith Norwich, Huson v., xxi. 609 5<)2 Tracey, Young v 147 Trainor v. The Black Diamond Steamship Co., of Montreal, xvi. 150 83 Travellers Ins. Co., Neill v., xii. 55 373 Treacey v. Liggett, ix. 441 238 Tremayne, The Grand Trunk Ry. Co., of Canada, v., xx. 259 748 Tremblay v. ]5(!mier, xxi. 409 580 School Commissioners of St. Valentine, xii. ."illl 244 Trepanier, In n:, xii. Ill 328 Tr 392 Trudell, Tlie North Shore Ry. Co. v 793 IVust and Loan Co. v. Lawrason, x. (J79 533, 070 V. Ruttau, i. 5liv Table of Cases in the Dh/esl. 947 tr Namo of CaRo and wluTd ropnitod. DiROHt. Valin V. Langlois, (Mrmtmn.-.'iioy lOlcction Caso), iii. 1 2ril, 17^, (177, 084 V. Langlois, (Montnioroiiny Klection Caso), iii. !)0 ' 262 Vallee v. I'refontaino, xxi. ()07 101 Valois, McMillan v., (Vanclre\iil KIcction Caso), xxii. 1 400 Vanwart, The New BninHVvick I!y. Co. v., xvii. 3") 743 Vaiuhcuil Mli'ction Cmd, (McMill.au v. Valois), xxii. ■• 400 VanmnoH, Corporation of the Village of, The Coriwraaon of tho County of V(^rehc Piilmor v., xv. 050 471 Taylor v., ii. f.Ki ,,.,. 770. Wftlmsley V. fJriffiths, xiii. WW \:!', ll^.'/ :'"[''':'}. .". 704 '....,...■...■.:. ft70, 097, 099 Walsh V. Iloffornaii, xiv. 7:5.S 716 Monta-,'!!!' (Ilaldimaiid Klcction (^aso), xv. 495 .^. .;'.'.,', j. '.,;,'.. 2IJ8 Warden, etc., of I Dartmouth v. Tlif <2iiten, ix. 509 1 . .'. 515 xiv. 45 ;...r::^:';"«l6 Ltmcnburff v. Tiu' Attorney-(Jcneral of Nova Scotia, xx. .59() UTi'J Warin v. Tho London & Canadian Loan I'i Agency Co., xiv. 232 5<)5 Warnor v. Mnrray, xvi 72(» ^ '.'.!. . ., : . , iViVT".'. . . . 334 Wamoek, KliMipfisr v., xviii. 701 .'. .V ..'.'.'.'...'•'••■ ••» Wnterbnry, Dewe v., vi. 143 ";■.',".■'.'." 810 Wrtterous v. Morrow II'.S Watcroiis Kngine Works Co. v. Corporation of tii(! Town of I'alnuirston, xxi. .550. . . .562 Watson, lUirnham v 681 Colchester, v ^ 175 Webber v. Cogswell, ii. 15 "'. , '. . ..'. 499 Webster v. Foley, xxi. 580 ..'.'..!.. .'. ." (SiS Mutnal Relief Society of N. S. v., xvi. 7tS .'.'. ......... 376 Weir V. Clavule, .xvi. 575 '.',. . . '. .'.' 084' Wc^don V. Vangh.an, v. 35 !...^ 134 Welland Election Ca.se (( J(irman v. Hothery). xx. .'!70 ,....'.,..'.:'...'.'.. ... 275 We-Ht v. Parkdale, xii. 250 '. ". .,',^1.. .,.._... ^ 550 v. Seaman !.!"..'!...'. ".T 388 H\iron Election Case, The (Mitchell v. Cameron), viii. 120 '. .'. '. '..'.' 259 North umlx-rland Election Ca.se (Henderson v. Guillct), x. (i35 203 We,stern AsBur. Co. v. Doull, xii. 440 .302 OSf^ V. The Ontario Coal Co., xxi. 383 ^ .,. T.,. I 398 *W V. Seanl.an, xiii. 207 ■.'...'.'!.' 31II, 081 f«''> Ins. Co. V. Joimston, iv. 215 078 Union Telegraph Ce., Canadian Pacific Ry. Co. v., xvii. 151 ]■}:;, 1.11, 185 Wheeler v. lihvck, xiv. 212 794 tWJC V. Gibbs (North Ontario Election Case), iii. 374 ,■ ■'■ v' ■ • ' '-'"'•'• *^^ iv.iiW ',. ".':.'!'?.' 254 .-in . r. .. . ">lj'l'l7l.J 'Kl . _. Whelan v. Kyan, xx. (w .•. . ..„».. ..„, i>l Whidden. Tlie Merchants" Hank of Halifax v., xix. 53 . ..,,». ,,,,i. ,, , 9, 77 Wiiite, Clarke v., iii. 309 ■. . . ' 10 v. Currie 811 V. Greenwood (Shelburne Election Case), XX. 109 272 McCrae v., ix. 22 342 Miller v., xvi. 445 ,« - ..,..;',..... 289 V. Parker, xvj. 099 tf--\' • ■'■, • • v»,f ••••• * Whitfield, Knight V .■..".....''.'.'■. :'." . :^'.'!': '186 v. The Merchants' Bank ',", 681 Whiting, Hovey v., xiv. 515 181 Wliitman v. Th<' Union Rank of Halifax, Xvi. 410 CO, ill, 7<»0 Wigle, K<.berts(in v. (The St. Magnus), xv. 214 22 xvi. 720 520 Wiley V. Smith, ii. 1 821 Tahle of Cases In fJte Digest. 949 ".> ' , ra(,'os of Nil luo (if CaRO and where roiuii'ted Digest. Wilkins v. Gedden, iii. 203 415 McLean v. , xi v. 22 541 Williams v. Balfo\iv, xviii. 472 544 V. The City of Portland, xix. Wit 554 Corby V. , vii. 470 "dl V. Irvine, x\ii 401 V. The C(iriK)ration of the Tt)wnship of Kalei^'h, xxi. 103 560 Williston V. Laws( m, xix. 073 792 Wilson, Grand Trunk Ry . Co. v., 722 Lacostc v., XX. 218 23<» Lewin v., . x. 037 532 Winchester v. lUiil-.y, xvi. 330 808 Windsor & Annapilis Ry. Co. v. TKk Queen and the Western Counties Ry. Co., x. 335 633,083 Windsor Hotel Co. of Montreal v. Cross, xii. 024 787 Wineberg v. Ilnnipson, xix. 309 . 450 Winnipeg, City of, Barrett v., xix. 374 484 V. Wright, xiii. 441 081 Wolff, McColl v., Niii. 130 117 v., 073 Wood V. Esson, ix. 239 563 , Lynch v. , 783 V. The Queen, vii. 031 '. . . 090 vii. 034 029 Sclmltz v., vi. ,585 009, 775 Vauglian v., xviii. 703 225, 529 Woodworth, Dickie v., (King's County N. S. Election Case), viii. 192 258 V. Dickie, xiv. 734 91 Landers v., ii. 158 479 Worswiclt, Bank of Montreal v., 520 Worthington v. McDonald, ix. 327 594 Wright, The City of Winnipeg v., xiii. 441 081 V. The Incorporated Synod of the Diocese of Huron, xi. 95 120, 073 I , , V. Kane '. 590 London Life Ins. Co. v., v. 400 369 Wyld, The Liverpool & London & (ilobe Ins. Co. v., i. 604 353, 076, 825 Wylie v. The City . if Montreal, xii. .•<8 1 50 Wynian v. lnii>"vial Ins. Co., xvi. 715 365 Yon v. Cassidy, \ viii. 713 842 York, County of, Tlie Toronto Road Co. v., xii. 517 16 Y