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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 -*•"■"--' -'■•''^- •■ ■ ^' C^e ^ Mt 5-12 ONTARIO 8-11 SU A TABLE C O^ompi ON )ONTAINING A A DIGEST OF Y THE REPORTED CASES I -' J DETEKMI.NKD IN » V_' ' \ \ THE DIVISIONS OF ^ Ts "> %\t Supreme Court of Itt^itature FOR OnSTT-A-RIO, AND Ibe ^uprme and (BMht^mx (K0Mrt$ of Canada, CONTAINED IN VOLUMES 5-12 ONTARIO REPORTS. 9-13 APPEAL REPORTS. 10, 11 PRACTICE REl'ORT.S. 8-11 SUPREME COURT REPORTS. 1 ELECTION CASES, TO PAGE 382. WITH A TABLE OF CASES AFFIRMED, REVERSED, OR SPECIALLY CONSIDERED. (iJampiUd h\i Order of the ^aur J-wietij of ^^v (Gannda, BY JAM'.S F. SMITH, Esq., F. J. JOSEPH, Esq., ONE OF HKR MAJE.STY S COUNSEL, OF OSGOODE HALL, BAKKLSTEH-AT-LAW. TOGETHER WITH AN APPENDIX, JONTAINING A DKiEST OF CASES REPORTED IN VOLS. 1, 2, AND :i OF CARTWRKJH'l" S CASES ON THE BRITISH NORTH AMERICA ACT, 1807, BY JO^JN R CARTWRIGHT, Esq., OF OSGOODE HALL, BAKRISTER-AT-LAW. > u < o TORONTO : ROWSELL & HUTCHISON. 1887 piwWPWi wmmmmw'^ p./ SI PRE V. ■^ K.STK,i!i:i) lu'coi-'liiiu to the Act of tin Parliament of ('aiiaihi, in tlie year of our Lord one thousand oiglit hundred and eighth jven, by The Law Society of Uitek Canaha. in the office of the Minister of Auriculiure. KOWSKLL AND HL'TCHl^ON', PKIXTEKS, TOUONTO.. SI Hon. 8ik ^ KxT. . . . Hon. Sajiu: Hon. Teles Hon. Will Hon. He\r Hon. John Hon. .John ( Hon. John ; Hon. Georgi Hon. Chris'i Hon. Joseph Hon. Feathe (a) The Chief CHIEF JUSTICES AND JUDGES OF TlIK SUPREME AND EXCHEQUER COURTS OF CANADA AMI iiF TIIH SUPREMK COURT OF JUDICATURE FOR ONTARIO- > < u Supreme aiut (^xcluoucr tTouvt^ of u^anatla CHIKP .lUSTHK. Hon. Sir William Joiinstoxk Hitchii:, KxT \|i)ioiiitril '. Itli lit' J;tim;ii'y. lN7!>. IL'lXil'N. Hon. Samuel Hkxuv Stho\<; Hon. Telksihork Folkmkr Hon. William Alexander Henry . . Hon. Henri Elzkar Tasciiereal . . Hon. John Wellington Gwvnne .VpliDiiitt'd ^tli (if OotoliiT. 1S7.V Sth of Octol)fr, IS?."). 8tli of Octolier, 1S7.">. 7th of Octolier, lf<7S, 1 Itli of .liiiiuiiry, h^7'.l. z s lb o M.VS He •JnilN \V|.V( ^1 Ifo.V.SlK ALI Q.c... Hon. John Q.C. . Hoy, Or.r VER MASl'KRS AVI) IIKFEIIEKS -MINISTKIIS OF .TL'STICK AND ATTDKN'KYS-GEN KKAI- |Ml»sitev$ and ^^tUvtn. KOBKKT GliADSTO.VE Dalton, Esq., Q.C. .. Appointed Clerk of the Crown iiml IMi;i> of the Court of Queou's Bench, 'J Ist nt' February, 1870; appointed MasltT in Chanihers, 2.'$rd of August, l.^^Sl. 'I'liDMAS HoixiiNs, Es(.i., (^».( '. Appointed Master in Ordinary of tlic Su- jneme ('ourt of Judicature for Ontario, 10th of January, 188:5. John WiNcuKSTEK, E.S(v \j>pointed Registrar of the Queen's r.endi Division -JSth October, l^SJ, and Orticial lleferoe of the Hitfh Court. 22nd of -Marcii, 18St ^Hini$tcv5i oi ^justice i\\n\ ^U z 9 DOMINION OF CANADA. lloN'.SlK ALEXANDKuCAMlMiKLL, K.(!.M.<;., Q.( • Appointed 20th of May, 1S81. liox. JolI>f D.VVin SpAllKoW I'lIOMPSOX. g.C ■• 2;")th .September, 188"> ATTORNEY-GENERAL FOR ONTARIO. Hoy. Oliver ^Iowat, Q.C Appointed ol.st of Octoljer, 1872. 85. BMt I ■leiiiiilMm (ftaitor$ mA ^i^fiiovtfv^ OF TIIK SIPRKME AN]) KXOHEQI i:il COIRTS OF CANADA AMJ (IF TlIK MVI^-ltiNS (IF IlIK SI I'llOIK COURT ol" .IlDICATniK \\)\l ONTARIO- RKI'ORTEHS. lloHEitr Cassels, Q.O Aj)pointetl Kegistrar 8th of Octolior, 1S75. <;korgk Duval " 20tli of January, 187(i. ASSIS'J'AXT KKI'ORTKl.S. < iiAKiiis U. Masters Aiipointed (teiupoiarily), l"tl) St'iiteinli. r, 1S(S5, (|)f'nii!iiieutly) 1st Oetuhof. ISS-;. Akchihald (Sa.nuwith C'amI'Bki.i Appointed .'ircl March, 188G. ^U|)i'cme (fouvt of MutUrnturc fov (Dntatio KDITOJIS. CnuisTOPHER Robinson, Q.C Appointed 30tli of May, 1S72. I AMES Frederick Smith, Q.C " 30th of June, 1S8.'). HEl'OUTERS. COURT OF APPEAL. Alexander Grant Appointed 1 1th J'ebruary, I.^JSl'. THE HIGH COURT OF JUSTICE. (,>UKENS BKXCH DIVISION. ■•Salter J. VanKou<;hnet, t^.C Appointed 25th of June, 187^. CONnFON REEAS DIVISION. (Jeorgk Frederick Harman Appointed 7tli of Deoenibei', is7_'. t'HANCEItV DIVISION. AvGLSTis Henry Frasek J.kfhoy Ai>]iointed 20th of May, 1882. (Jeoroe Anthony Boomer " 8th of May, 188;3. PRACTICE REPORTS. Thomas Tayi.or Kolph Aj^pointed 1st of March, ]87tt. THE N Adair v, Wmli Adams V. IJl.io V. City Adainson v. Vi Adjahi, 1'oMiisl Alexander v. S V. \^ Allan, Hon. G. Allen v. l^ynn . , Anchor Marine \uderson v. Jel Andrews, Re . \iig\o American Rowlin Ambrose v. f-'raa \in.sden v. Kyle irbitratidii hetw bee R. W. C Archer v. Severn Vrdagh v. City o irkell V. Roach bmour Re— Mo Armstrong, Re Farr v. Fors rseott V. l.illey tkins V. Rtolciii ttoruey fJenera ttrill V. Rlatt ustin Mining C yotte V. Boiiche adgley v. Dickso ailoyv. Jellett 4 iiin V. City of M iiker V. Atkinsoi — V. (irand Tn — V. Jackson V. Mills . . dl V, Crompton ( — V. North Bri luveatment B TABLE OP THE NAMES OF THE CASES CONTAINED IN THE DIGEST. Adair v. Wnde. . Ailiuiis V. lil.'ickwell . . V. City of 'J'oroiito CoU-MX. .47:2, 631, (180, ()S2 . . :).').S, c..'?: 71!) 241, rm, 073 lOl.CMN. Adaiiison v. S'eager Adjalii, Towiisliip of, v. Mcl'^hoy 478, 50;"), riOO, )()7 Alexander v. .School Trustees of (Jloucester 141, 14J, 143 V. Wiivell '285 Allan, Hon. V,. W., In re, IS, 20, 303, 420, jVJS, 008 .\llfn V. Lyon 103 Anchor Marine Ins. Co. v. Corbett. . 340, 7r)S | V. Keith . . 338, 342 | \iider.son v. .Tellett . . . . . . . . 207 ; \ndrews, lie .. .. .. 8, 271, 321 , 09o i \ngli) American Casings Co. (Limited), v. j llowlin .. .. 132; \nil)ro3e v. Fraser . . 160, 311, 403, r)39, 630 | \iiisden V. Kyle . . . . . , 207 | Vrbitration hotween the Ontario and Que- bec II. \V. Co. and George Taylor, In re r)76 .-)S0 Archer V. Severn 256, 263, 415, 444, 61)0, 746 bdagh V. City of Toronto .. .. . . 7()1 Irkull V. Itoach 107, 730 Armour Ke— Moore v. Armour . . . . 202 ; rinstrong, Re . . . . . . . . 455 | V. Farr . . . . 76, 21 1, 026 ] V. Forster . . . . . . 3(i, 564 j rscott V. l.illey 45, 301, 390, 607, 6.33, (i97 j itkius V. Ptolemy 6, 447, 758 | ittoruey fieneral v. (ioodcrham 224, 244 | for Quebec v. Reed 24, 85, ' 603, 600 ttrill V. Piatt 174, 179, 209, 244, 429, 622, 703, 704. 708 ustin Mining Co. (Limited) v. (Jeuimell 113, • 114, 755 yotte V. Boucher . . 41, 282, 6.53, 665 Ball V. The Rector and Chnrclnvardons of the Church of the Ascension , . 744, Hamtield v. Town of Niagara Falls. . Bank of British North America v. Western Assurance Co 141, 150, 243, 339, 472, of Commerce v. Bank of British North AuK'rica . . . . 534. of Hamilton v. Harvey 48, 49. .52, V. John T. Noye Manu- facturing Co. of Montreal v. Davis V. ItatTner. . of Toronto v. Cobourg, Pcterbonnigh and Mai'mora R. W. Co. 114, 177, 210, ; Barber v, V. Macjjherson. of Toronto v. Hall 24, 34, 21 1, 250, 3S0, V. Perkins . . Barber .. ..621,022,027, .5.3, .59, Barclay v. Zavitz . . . . 747, Barker V. Westovcr .. .. .. 310, Barsalou v. Darling Barwick and Lot 3, on the north sifrr . 11, 4.S7, 4!t7, ")(tM, (iOT Miikfiin! v. Town of Cliatliam lol, iMIt, ")!)."), 7.">7 Hi;.'Kiirliir('-iiij,'gnrv. StiiiHori '2(M, T'JS, 7.'iS, 74(» Hiiigliiim V. WaintT .. 6r)7, (>">!», tiS 1 ami Wrigglesworth. i!f .. Ui.S, (l4, ti7'2 ()!)(). 7r)lt Hli iiklcy V. ('ori)oration of I'l-fstott, (i4'i, .'"JO l!l<>iin V. lUuan, .I'J'J, (127 Hliss V. hofckh 470, 71'_' Ho^■:u■t V. Township of Seymour 4'_'4, 44!t, 4.'(> :m, r)7o liolt ami Iron Co., Ue— llovcmU'nV, Casi.' 107, KIS, 114, IL'C, l'_'7 iSoithwick and the City of Ottawa, Ke .. 4()0 V. \ oinig , . Hoswell V. (Jrant . . IJotliwell Klection (l)oni.)- Smith liindtliee V. Piurke Hoiiiti n V, Hl.ikt! l!oii>7. 414 ;5'J7, 398, 4(10, .")l(i 289 (i, 112, 128, .-)41 l?rid;.'es V. Iteal lustate Loan and bebeiituie Co 183, 4.38, .-)98 I'.iighani v. McKen/.ie 146, 5.30, S42, '>:>{, SiVi 60(), 607, 7.-)7, 75.S Briton Medical and General Lifo Associa- tion (Limited), lie S.'), 114, 127, 128, 347, 7.")."), 708 lirodie V. Northern R. W. Co. 268, 587, 700 Hrondi V V. Craham, 2.30 lirookc V. McLean . . 70, 175, 532. 605, 678 lirooks V. Conley 6, 70, 374 llroughton v. Citizens Ins. Co., . . 229, 230 Rrown V. Cousineaux . . . . . . 535, 605 V. Howland, 48, 115, 210, 238, 269, 699, 758 V. John.ston .. . .. 7(!, 211 V. Nelson 92, 97, 140, 249, 353, 373, 6.52 V. Porter 140, 680 Rruce, County of v. McLay . . . . 5, 597 Brundagu v. Howard . . . . 4, 94, 374, 659 Brussels, Village of v. Ronald 95, 175, 271, 444, 465, 526 Rryce, McMurrich & Co. v. Salt 319, 371, 605 Bryson v. Ontario and Quebec I!. W. Co. 273, 309, 577 Buckley V. Beigle 397, 399 Bud worth V. Bell . . 133, 524, 607 liuilding and Loan Association v. Palmer 287, 293 Bull V. North British Canadian Investment Co. (Limited) . . . . 530, 531, 605 Buhner v. Bruniwell . . . 2.37, 398, 673, 756 Burgess v. Conway 151, 667 Burland v. Motfatt 34, 183 Burn V. Burn 247, 253, 258, 262, 274, 479, 510 532, 5'?3, 692 Burnet V.Hope .. . 424,425,510 Burns v. Mackay . . . . . . . . ^.°<5 V. Young '.iOl Bushell V. Moss, Re . . 199, 200 Butterworth v. Shannon . . . . 56:; COLUMN. c. Cain V. .hinkin . . 178, 414 Caldwell V. Stadftfona Kirr ai! I Lifi; In.Hur- ancuCo. I7t;. 218, 331 , 3.'t2, 3.35, 337, 532, 667 Cameron v. Allen 203, 75S V. Bickford . . 4, 10, 24.'>. 248, 510 V. Camiiron . . . . 230 — V. Canada Fire and Marine Ins. Co v. Carter V. Rutherford Campliell v. Cole •— v. .lames V. Martin ..331, 334, 660, 755 275, (12,3, 62 i 36!> .310, 311, .371, 474 5.37,542. 60.^ 88, 5.5ti Ciimhridgc — -— Central R.»\V. Co. V. M(Kerricher478, 61S, 619, 620, 762 Canada Atlantii; R. \V. Co. v. Corporation of the Citv of Ottawa 391, 449, 59.'> Township of 451,. 594 Murray 114, lis, 629 Canada Pulili! 525, 540, 76'.'! Tostello v. Hunt 4;i-'ote V. (j^oulet— (larvill V. Schotield Casner, Re V. Haight Casselnian v. Casselnian Chaniljerlen v. Clark . . V. Chamberlain Chapman v. Rand V. Tufts Charles, Re —Fulton v. Charteris v. Charteris Chatterton v. Crothers Ching V. .Jetfery Chisholin and the Corporation of the Town of Oakville, Re . . . . 146, 569, 599, 66? = Cholette V. Bain — Soulanges Election 18.'i. 484, 49ri#'oughlia v. Holl Christie v. Burnett . . . . 91, 239, 608, 60!i| -'oulter, Re Christopher v. Noxon , . . 137, 141, 60:| Jourt v. Walsh Citizens Ins. Co. v. Campbell . . . 189: ^Jowan v. Besser^ Clark V. Eckroyd 392, 521i !r.iig. Re V, Hamilton Provident and Loan J'rane v. Craig . 'ottinghani v. C Society 289 Jrawford v. Bue -andthe Townshipof Howard, Inre 449, 45' -V. i^ama Timber Transport Company (Limited) 132, 472, 475, 70J - V. St. Catharines 131, 132, 32»ros3en v /'rooks V. Stroud 'roome and the ( Biglej CULUM.N. 178,414 nsur- ;, r)32, (i(i7 •203, T.IS I. 248, 510 .. 23(» : IllH. ;, (UiO, 7r».') i, (123, 62 1 .. 3f)it I, 371, 47 •! (,ri42,6(i"> S8, nr.tj ), 020, 7«2 ration itv of 3'Jl, 4411, 51).') hip of 451, 594 114, lis, 6211 103, fi74 .•11 . 570 360,421 es 405, 444 'I'own- I, 281, 32S. 3, 557, 60(1 inniee, I4i> II, 246, 084 It, 373, 652 1)11,210, 531 605 6, 206, 750 !2, 712,722 (;74, 67:' Black, 32 TABLE OF CASES. IX. com; MM. 735, 749 ('larke v. Darranj;}! V. Lan^'l^■v . . . ..V>2, 024, O.M, OOO V. Town of I'alim>rstmi 24, .191, 421 405 V. iriiion l''iri! liiHurantc Co. 84, 85, 125, 120, rjH, .3,3(», :n5, 337, ;«>7, 75s • t'a.ston'H Case 107, 114, 125, 140 5.")3, 029, 047, 04S, 049, 051, f;53 Chalx.t's CaML- . . 22,"), 247 Claim of tho Aj,'riuultural Firo Iiisuraiici; Co. of Watertowii, Nuw York 337, 347 Mu llxport Lunil)tT (.'(). .. 351 Mcl'hcuH Claim 337, 347, 367, 000 Clarksoii v. [•'ire lua. As.sociation .. .. 220 V. Sniilcr . . . . OS, 477 (laxton V. Shil.U'y , . . . 23, 218, 427, 750 Cli'ator, III ru . . .. .. 728,732 ( Ifgn V. Crand Trunk U W. Co. . , 583, .5S5 CliMiilciinan V. ( Irant .. .. .. .. 372 172, 090, 703 ' ( k'udiiming v. Turner ;('losc V. K.icclian<,'f iJank . . 147, 304, 350 't louse V. Canada Southern R. W. Co. . . 575 ji'ouhraue V. .Morrinon .. 140,228,000 Manufacturing Co. v. Lanion, 29, 7 1 5,50, 559, 604, (iOl ( 'iilliornc V. Town of Ni.agara Falls . . 403 Cole and The Canada Fire and .Marino In.s. Co. , Ke— Closes Case .. .. 110,121 Coleman v. Hill 181, 4.32 aCollins v. Hickok .309 Comnieau v. ilurns— (ilouce.'Ster Election (Doni.) 6U4 l.omH.jrcial National Bank of Ciiicago v. Corcoran . 44, 53, 01, 128, 351 L'onip.ignie de Villas du Cap (Ubraltar v. i Hughes 69 I'onfederation Life Association v. O'Donnell 211 i 344, 558 V. Miller .. 549 227^'onii»ce v. Canadian I'aciKc K. W. Co., 0, 149 i roi.iTMS. CnKsstield v. Oould . . .621, d'u, 071, 072 Crowter— ( Vowtur V, Hinm.in 257, 69.'l ( 'iilhane v. .Stuart . . . . . . 35, 69.> Ciiivcrwoll V, I'.irney 223,560 Cunningham v. Ifagar — I'reacott Election (Out.) 11, 184, 485, 480, 488, 493, 494, 499, 503, 75rt I). Dainty v. Vidal . . 392. 399, 672 D.iniuls V. (iraml Trunk 11. W. Co. .. 581 Darling v. Collatton .352,392 V. Darling 229 V. .Niidlan.l I! W. Co. . . . 580 V. .Smith . . 3, 130. 201, 251 Dart V. Citi/i'UH Insurance Co. . . 548, 559 Davics Brewing and .Malting Co. v. Smith 103 Davis V. Can.adian I'acitic K. W. Co. 582, 7.57 V. Fiewltt 290, 305 V. Hulihard 079 V. Lewis .325, 094 Dawson v. Motfatt . . . . 163, 0.36, 052, 602 De .Sousa, In re 44 Demorest v. Crand .Tuuction R. W. Co. 540, 579 V. Mi.llan.l H. \V. Co. 27, 422, 423. 522, 540, 574, 595, 032, 609 Denne i i i the Town of Peterborough, In re 457 Devereux v. Kearna . . 205, 506, 507 Deverill v. Coe 20 l'''ltaon\. Dickson .. .. .. .. 733 ' I lion V. 'J'ownslr.^j of Raleigh 5, 219, 45,), 5.'3, 731, 74!) ,309, 440 161,214 . . 25!) 539, 54'.' .. 300 .. 4(i .. 73 . . 08•^ i '), 540, 702 .. 4: Town 19, 599, 6t5j tion 18S, • 240, 548, 557, OtiO, 084 L'onway v. Canailian Pacific K. W. Co., 581, 757 L'ook V. ?:(! wards 397, .398 — V. Lemieux . . . . .372 — V. Noble . . . .731, 738, 743, 748 - — V. Patterson . . . . 10, 13, 248, 681 t'ooke and Driffil, Re 7.36 ooper V. Dixon 285, 293 L'opland v. Corporation of Blenheim 137, 470, 473, 720, 756 'orbet V. .Johnson . . . . . . 176 Jorbett V. Harper . . 670 Donald V. Donald Doi.nelly v. Hall V. Donnelly. . Donovan, Ke— Wilson v. Beatty V. Boultbee . . V. Herbert . . and Morphy, Re .'ore V. Ontario Loan and Debenture Co. 444, 599 .'Ornish, Re . . . . 406 'osgrave Brewing and Malting Co. of Toronto V. Starrs. . .. .. .. 300 :ostello v. Hunter . . 248, 307, 415 'ote V. Goulet — Megan tic Election (Dom.) 233, 489, 492, 502 -ottiiighani v. ('ottingham 484, 49'i| Joughlin v. Hollingsworth 9, 608, 6O0-i -oulter, Re 141, 60:|tourt v. Walsh owan V. Besserer 'raig. Re -raue v. Craig . . Crawford v. Bugg Jrooks v. Stroud roonie and the City of Brantford, Re 70, 359, .360, 448 rossen v. Bigley 063 m 392, .521 Loan re 449, 4.")' mpany 2, 475, 70; 1, 132, 32: 28, 323, 430, 477, 622, 602, 666 , , 137, 543 , ..309 .. 41, 411, .392, 559 4, 205, 748, 749, 754 , , . . 658, 698 .. 322 . . 160, 395, 396, 758 , , ..27 746 61, 637, 757 310, .328, .329 151, .523, 64.5, 650, 758 ..604, 605, 600, 079 40,413 644 80, 573, 643 208, 308, 31 1 Corporation of . . 454, 468 85, 505, .506 470, 709 277, 313, 439 41 35, 309, 315, 417, 651 3.53, 354, 355 ..182, 183, 212, .301 212, 274 Dorland v. .lones Douglas V. Hutchison Dover, Corporation of v, Chatham . . Doyle v. Bell . . Duck V. City of Toronto Dufresne v. Dufresne Dumble v. Mcintosh . Dumbrill, Re . , Duncan v. Tees Dunlap V. Dunlap Duiilop V. Dunlop Dunn V. The Board of Education of the Town of Windsor 422,571 Dunsford v. Carlisle . . . . . . . 233 Dunlin v. McLean . . . . . . 135 Dyment v. Northern and North Western R. W. Co 76, 135, 240, 535 V. Thomson . . . . 614, 670, 702 V. Thompson . . . . 670, 702 E. East Middlesex Election (Ont.) — Rhoder v. McKenzie 490, 492, 493, 498, 499, 502, 757 East Simcoe Election (Out. ) — Reid v. Drury, 483 485, 487, 491, 495, 496, 499, 500, 503 X. TABLE OF CASES. COLUMN. istiiirin V. Piaiik of Montreal, . . 3.3, 44, 757 i l)ert« V. Hiooke, IM, 200| il^.u; V. Xoi'tlieru R. W. Co. . . oSG i MiTslio Township of v. Village of I'ai.sley 446 lizalietiitowu, Township of v. 'J'he Town of H.-ockvillu, . . 30."), 328, 4r)2, 570 lliott V. lirown 2(».S, 30!) ' Stanley, !)3, 155 His V. ^l.ell . . . . 90, 240, 473, ,')42, 701 iij,'lish, lie .. .. 315,630 nriek v. Tdwiiship of Yarmouth . . . . 721 rwin V. Canada .Southern R. W. Co . . 576 urcka Woollen Mills Co. (Limited) v. Moss 1 1, 474, 476, 6()5 !xeliange Bank of Canada v. Barnes 131, 133, 245, 564, .567 -^— V. Counsell .. 119 • V. Springer 245, .504, 567 V. Stinson .. 119 '".xport J-umher Co., Re .. .. .. 351 0. COI.l'MX. I Hall V. Canada I Cage V. Canada Publishing Co. 151, 4G.S, 572 1 v. Collins' Calbraith v. Irving . . . . 76, 39H, 536, 617 f i»g ^o. Gardiner V. Chapman. . . .325, 326, 703, 704 | ">'■ Far(iuhar Gardner V. Kleopfer .. . .. 41, 217 i • v. (Jritiith Garland v. Omnium Securitiei Co. . . 198, 755 >j v. I'ilz V. Thompson Garner v. Hayes (iarrett v. Roberts 11 50, 275, 280, 474, 606 |Halliwoll v. Tii . . 762 I Diocese of O 87, 15.3, .323, 504, .505, 1 Hammill v. Ham 524, 661, 75.5, 7r)(; JHamiltoii Roa ( 103, 272, 661 I Rerthier Election ' > 11, 487, 497, 503,667:1 and F IJ I'rovidt F. Farmi'i- v. Livingstone Furidw V. Tobiii Fan Ids V. Harper Feathcrstonc v. VanAllen Federal liank v. Harrison V. Hope V. Northwood . . Fenton v. County of Simcoe, Ke .27(i . 9^ 171,172 203, .357, .377 , .391. 412, 413 , 149, 475, 681 538. 512, .51)7 52, 372 .. 509 218, 391, 446, 451 . . 292 147, ti07 Gemmill v. Garland . . tlenereu.x v. Cuthbert (Dom.) George T. Smith Company v. (Ireey 223, 23 George Taylor and the Ontario and Quel.iec K. W. Co., Re . . . . 349, 522, 58(1 Gibbon V. Michael's Bay Lumber Co. (Lim- ited) 192, 672, 756 ;|Hare V. Cawthroj Gibson v. McDonald 6.32, 6.3,S IHargraft v. K (iilchrist and Island, Re . . 432, 439. 695liHainden, He— ILi Gillen v. Roman Catholic Episcopal Corpo- ration of the Dioce.se of Kingston in Canada 43.3, 434, 562, Gilmore v. Township of Orford, (iilroy v. McMillan, . . Giraldi v. La Banque Jacques Cartier 162, 4.30. 695 Glass v. Burt 64, 297, 68S -— — ■ v. Camenm .. .. .. 251, 374 Gloucester Election (Dom.) — Commeaii v Bums I:u-per v. Culljert 646 ,546 2.35 F'erguson v. l''erf.'Uson . . ■ V. .McMartin V. Winsor 179,180, 183, 219, 236, 429, 532, 599 Ferri.s v. Ferris 213, ,308, 314, 315, 603, 688 Field V. (ialloway 108, 112, 295, 379, 5.39. 634 < Joddard v. Coulson . . (ioldsmith V. City of London Gonee v. Leitch Gordon . . 255 O'Brien, Re Phillips , . Cameron Gordon v V, V, Cioring v. v. Fit/gerald v. Wilson a Solicitor, Re 660 ..648 25.3, 554, 651 ..649 . . 50 202, 375, 606 .. 687 ..199 ..611 554 416 659 o.io Fleming, Re F'letcher v. Field V. Noble . Foley V. Moran, Re . Foott V. ^IcGeoige Forfar v. Climie Forristal v. McDonald Foster v. Allison V. Moore V. Ru.ssell .. 241,408 Fox and the South half of Lot No. 1, in the tenth concession of Downie, Re 741, 753 — V.Symington 201,203 Fuches V. Hamilton Tribune Printing and Publishing Co. 124, 401 — , Copp's Case . . . . 124 Fulton Bros. v. UpperCanadaFurnitureCo. 89, 90 Fimston and tlie Corporation of Tilbury East. In re 303, 45i>, 4.54 Furlong V. Reid . . . . (33, 246, 291, 474 F"radeuburgh v. Haskins . . . . . . 288 Ircclu'tte V. (.oulet — Megantic Election (Dom.) 245, .502 255, 436, 442, 556, 742 200 228 210, .5.37, .538, 548, G().-| London Mutual I''ire Ins. Co. 28, 85, 86, 227, .331, 333, 335, 337, 33.S (Joughv. Bench 11,137, 138, 273, 529, 654, 656, 6(;(l . . 154, IS!) 74.10 194, 399, 401 1.58. 444 145, 197, 317 . . 406, 4(iS County of Pe- ..152, 154, .5.58, .5!);! Co. V. Rosenberger, .58."i s'. Vogel . . . . 58> iHarrington v. Coi Harri.s v. Moore V. Watirlo irvey v. Dowlii tion (Out !j V. Harvey i- V. McNauj (i(i4|Hately v. Merchai 406 1 tion Co. 57, 7 7'_>0|Hawkins v. Smi ,52!) i (Dom.) ly V. Paterson lays V. Armstrong ealey v. Dol.ion enderson v. (Jui Gould v. Beattie Graiiam v. Bolton V. Lang V. Ross V. Spettigue V. Williams . Grand Junction R. \V. Co. v tei'bf)rough Grand Trunk R. W. flrangev. McLennan .. .. ,. ..621 (irant v. La Banque Nationalc 43, 408, 444, 671 V. Grant 144, 195, 550, 607, 6.37, 630 V. Middleton 680| Grasett v. Carter, 10, 28, G5, 6(i. 1.52, 179, 180. 234, 248, 329, 629, 66(i Gray v. Alexander V. Town of Dundas Green v. Ponton V. ^^'atson (Jreenizen v. Hums 145, Grey v. Grand Trunk R. W. laiul Election feiKlrie v. Neelon flepburn v. Park Terring v. Brooks [erring and Napar 11. 'w. c;o. . . lewison v. Towns) jwitt v. Hei.se lickey v. Stover. nil v. Hill -V. Macaulay [ V. Northern Co. lilliard v — V lillyard v, linds, Re- Arthur Gemme Thurstr (irand '. -Hinds 35(iL 707, 708, 711»l'slop v. Town.shii .. .5!):! 159, 515, 75!'Pobb3 v. Guardian V. Northern lodgson ."nd the Freel v. Macdonald 539, 542. 609, 61.^ Co., In re 54S. 559, 604, 60.- . 41,44,4 . . 369, Freeman v. Ontario and Quebec R. ^V Friedricii V. Frieilrich. . Friendly v. Needier . . v. Canada Transit Co Frith v. Ilyan . . Frost V. Hines . , Fiye V. Milligan 605, 606 Co. 578 7, 645 .. 201,202 76,615 226, 604, 606 .. 435 281, 305, 701 Grieve v. MolsonsBank Grip Printing and Publishing Co. of Toront V, Butterlield Guest V. Hunter Guilford v. Anglo-French S. S. Co. 425. 472. 641, 7. Gunn V. Burgess . . 8, 58, 249, 510, GCH Guy, In re v. Grand Trunk R. W. Co. 198, 202, loover v. Craig 604 In re 4, 56J loener v Merner logg V. Maguiro 215, 216, 51'2 loldeii v. Smith 407, 76'.' lolderni's.s v. Lanu lolling-iworth v. Ii lonsbergyr. In re- OH'MN. TABLE OF CASES. H. COLUMN. 17.3 Hall V. Canada Land and Colonization Co. ■ V. Collins' Bay Rafting and Forward- ing Co. . . . . , . . . 58, it'J, 40") I V. Far(iuharson . . . . . . . . 20 V. Critlith . . 7, 5.3, 404, 646, 6.')!, 6.'i2 ; V. Pil/ 136, 407 *Halli\voll V. The Incorporated .Synod of the Diocese of Ontario . . . . 77, Haininill V. Haminill . . .. .. 727, Hamilton Road Co. v. Flatt . . and Flaniborough lload Co. v. Binkley , V. Flatt 75(5 72S 554 721! V. 'L'ownsend 106, .315, 323, 721 Provident and Loan .Society v. Campbell 168, 210, 379, 438 V. Gilbert. . 2.-)0, 275, 624 Hare v. C'awthropo 540, 68lt Kefgan . . . . 44, 728, 743, 749 168, 572 ).36, 647 •03, 704 41, 217 108, 755 j 474, 606 .. 762 i04, ,505, 755, 756 272, 661 tion 503, 667 223, 232 il.iec .522, 5S(i ^ini- 672, 756 632, 633 ;Hargralt v 43!) 695;jH'Unden. I!e--Harnden v. Ilarnden 2S, 604 ,n,o.' ' Hu-per v. Cidbert 4, 48, 75, 131, 379, 436, 567, u in ; «98 562. 646; Harrington V. Corse .. .. .. 444,745 54l')ijHarris V. .Moore .. .. .. 239,758 23.'i '4 ^'- \\'aterloo Mutual Fire Ins. Co. . . 3,34 430 6')."iiHarvey v. Dowling — South Renfrew Elec- '.)(,; "(ISs^ tion (Ont.) 498, .503 ol-.i'^ 374;; V. Harvey . . . . 112, 295, .375, 540 ^ y_ p. V. McNaughton . . . . . . 293 ()(i4 '^Hately v. Merchants Despatch Transporta- 4(i(ii5 tion Co. 57, 73, 131, 134. 149, 151, 589, 757 7•>0;fHawkin^! v, Sni.ith — Both well Election ;. r,.H|| (Dnm.) 4S3, 484 556, 742 P^'^y ^'- I'aterson . . . . . . 71, 756 .' 200 plays v. Armstrong . . 504, ,505, 758 228 J^ualey V. Dolson .. 51,81 (jO.-iiHenderson v. (iuillet — West Xorthumber- land Election (Doni.) . .487, 491, 492, 495 eiidrie V. Neelon .. .. .. ..671 lepburn v. Park 62, 288 erring v. Brooks . . . . .304, 683 lerriiig and Napanee Tamworth and Quebec 399 401 i, ^'' W. C'(j. . , .. .. 14,577,578 XI- COLUMN. Hopkins V. Hopkins .. .. ., 313 Hoskin V. Toronto (Jeneral Trusts Co. . . 102 Howard v. Lancashire Ina. Co. . . . . 331 Howell v. Armour . . . . . . . . 3S9 lluberv. Crookall 174, 187, 189, 191, 472, 473 Huggins v, Hu'die.s V. V. Law Boylt; Briti.sli American Ins. Co Handin-Haiid Ins. Co. London Assurance Co. 258, .321, 691 151. 7.'>6 1.5, 1.39, 55;> 15, .336, .558 15, 1.39, 5.)S, 55! » v. Monro . . 97, 240, 615, 6.59, V. Kees2()3, .308, 312, 31.5, .321, .3.50, 351, 377, 378, ,540, ,541, 5.53, 559, 661, 692, 695, 699, 7.55 llugiison V. Gordon .. ..371 Hungerford, Corporation of v. Latimer 12, 82 H\uiter V. Carrick .. .. .. .512 V. Gilkison ;300, 319, 384, 388, 3110, 678 Hutton V. Waiizer ., 1.30, 1.55. (i51 lluyck V, I'roctor .. . 258, 2 iO liyman v. Boui'ne . . . . . . 64, 534 V, Cuthbertsoa ,. 5,62,61,290 54S, 28, 8.5, f 337, 33s || ,656,66(11 154, 1S!I .. 74.-f' 158, 444!5Icwis(ni V. Townshipof Pembroke 448, 451, 45: 1!'7! 31:; ' , 717 406 4(1^ Jlcwitt V. lleiso .. ., 355,535,605 I>e' ItHickey v. .Stover, . 246, 304, 412, 413, 472, 607, 730 ill V. Hill 255, 2,57 I. Ibbotson V. Henry . . 5, 84, 317, 462, 601, Her V. Her Imperial Hank of Canada v. Metcalf(^ 70, ' 222, 433, -134, 622, 625, 654, 657, {i5S, Ingalls V. MoLaurin .. ,. 440,411, Ingles V. Guelpli Lumber Co, Ingram V, Ingram .. ..315, 141, 112, Ings V. Bank of Prince Edward Island. .52, 12L .-.41, International Wrecking end Traiis]>c)it. itioii Co. V. Lnbl) (iu, Ireland V, Pitcher ,. 1.36, 140, M3, .•!9i), Irwin V. .Sperry Ivey & Co. V. Knf)x . . 7. 58 424 2K3, ()!)() 563 142 651 120. 635 642 529 683 284 .lack v. .lack . , 52, 162, 281, Jackson v. St.aley James V. Ontario and Quebec 1!. W. t^ii. 577. Jjimieson v. Prince Albert Colonization .to .58,' I 58 62 If: 444, 6 6.37, 63^1 , 680 1179, 180. 1 629, 66t' .. 35ti| 70S, 71 .. .5!): 1 515, 1 609, 61i. 54s. 604, 60' 4"4, 56'J lonto !16, 51'2 1 407, 76'-' 125. 472 1641, 75-; 1510. ecu 1 98, 202, 604 -V. Macaulay . . . . . . . . 18 - V. Northern Pacific Junction R. W. Co. 303 lilliard v. Arthur , . ,375, 550, 551, 606 401 V. Arthur V. (lenimell V. Tlnirston 639 illyard v. (Jrand Trunk R, W. Co, 173, 477, 582 inds. Re-- Hinds v. Hinds . . . . 417, 524 islop V. T'owuship of McGillivray 371, 422, 715, 718 7",!ipobb3 V, Guardian Ins. Co,.. 332, 335 V. Northern Ina. Co. . . . , . . 332 Jeffery v, Hewis , . . . . 1 Jenking V, .lenking ,. ., 281, .Jenkins v, Drummond v. Millar, In re Jennings v. (irand Trunk R. W. Co. — — V. Hyman . . V. Moss, .lohnaon v. Kramer , . . .413, 735 V. Ross, Re West Middlesex I ^30, 444 1!)0, 246 34!>, 580, 759 Co. 5.50, .■.56, 607 S. 20, 23 375, 507 ,. 729 . 200 . . .506 . 290 . 32 75« 740, ']lce- lodgson ."nd the Township of Bosanquet, In re 466,712 loeiier v Merner 248, '?!t9 logg V. Maguiro , , . . . . 24S, 754 lolden V. Smith .368, 606 lolderness v. Lang . , . .270. .3!)7. 699, 702 folliiigsworth v. Hollingsworth L3L 1.33. 146 iDUsbcrgv^r, In re— Honsbcrger v. i\rat/, 25.3, .57, 264, 691 loover V. Craig . . , , 146, 602, 629, 700 tion . . Johnston V, Shortreed Jones V, Kinney V. Tuck .loseph Hall MauufacturingCo., Re 125 3«, Kaiser v. Bnynton Keays v. Emard Keel'er v. Ilo.if . . V, McKay • V. Hazlett .. 504 . 671 638, 661 II, 14 126, .551. 653 271, 611 K. 131, 403. .5!)-., 600, 74.3 ,.2.37. 2U, 76, 621 ,, 23, 5311 (.8, 621 624 6.-7, 737 < o o z i >■ H > i :-4p.Mfratt V. Merch Lancy v. Brake Landreville v. Gouin . . Landry v. City of (JttaM-a . . Langtry v. Dumoulin 75, 79, 87, 143, 148, 233, 234, 244, 602, Lanlante and the Town of Peterborough, ' In re 214, 468, liatta V. Lowry l.Auder V. Carrier V. Curriu Lavery v. Wolfe Law V. Town of Niagara Falls Lawlor v. Lawlor 212, Lawaon v. Powern — Re Murray Canal 212, Laxton v. Rosenberg . . 401, Lea and the Ontario and Quebec Railway, Mahoney v. Macdonell Makius v. Robinson . . Malcolm v. Hunter Malcolmson v. Hamilton Loan Society Malot v. Township of Mersea Manson v. Manson Mara v. (Jox . . Marrin v. Graver Marsh v. Hunt . . Martens v. Birney Martin v. Evans v. Miles Re 154, 609, 613, 513, 234, 248, 266, 278, . . 354, 390, 529, Leadlay v. McRoberta Lean v. Huston Jjee, H. Ia, In re — V. McMahon Leech v. Williamson . . Legacy V. Pitcher T^egarie v. Canada Loan and Banking Co., Re I,K;may v. Chandierlain . . . , 185, Lennox Election ((Jnt)--Miles v. Roe 486, Leslie V. ( alvin . . . 260, Lett V. St. Lawrence and Ottawa R. W. Co. i^ewin, .James 1)., Ex parte 17, 24, 218, 661, V. Wilson . . Lewis, Re — Jackson v. Suott , . 682, 738 207 542 231 709 434 320, 409 699 579 615 518 323 392 355 605 200 475 494, 496 518 315 699 412 754 Masse v. Masse Massey Manufacturing Co., Re V. Toronto Printing Co. Massie v. Massie Masters v. Threlkeld . . Mathews v. Hamilton Powder Co. Maughan v. Casci May v. Morrison v. Ontario and Quebec R. W 224, 47:! I 405, am .. . 245, 70: 1 Provident and j . , 474, 4:i. .. 327,711' 621, 622, 6% 68, 174, 474 40! 23ii; . . .372, m 33, 288, 3 403, 439, 440, 441, (IDS . . 304, 68;' 111, 423, 5()S 185, 191, 47 V. Scratch >'(iI.son8 Bank v. Mnntcalm Electii Moiiteith, Re— ]^ teith 11, V. Me Transpc V. Merc V. Walsl Miiore V. Mitchel 182, 411, V. Moore . . Moorehouse v. Bo Morgan P]nvelope Morphy, Re— Mor J Morrison v. Earls — — V. Morri Morrow v. Connoi v. Jenkin (5(ll Morton v. Grand ' v. Ham ill Society and lot N 15^ 4'J^ Megantic Election, (Dom.) Cote v Melville, In re 181, 596, Mennie v. Leitch Merchants' Bank Co. 425, 585 592, 755, 75! , (Joulet2;« 489, 49: - Frechette v. Gou- let . . 245, 50,: 726, 727, 755, 757, 75: 94,175,34: v. Herson . . . . .35 v. Monteith 7, 56, 216, 2rv: 256,257,2.58,261,262,28 320,322,346,376,521, 5r>; (i04, 607, 6* v. Van Allan, In re 2(U, 2(K 380, .')5 of Canada v. Smith 10, 55. 8 v. Hancock, . . 1 V. McKay 271, 281, .566, .')6 of Halifax v. McNutt V. (Jillespie 86, 119, 12 the County of .Moulton and Car and the Coun Moxley v. Canada Mulkins v. Clarke iluUhoUand v. Ht Mulliga V. Grand Mundell \. Tinkis Munn V. Berger, •Mi'.nsie, In re 258 V. Lindsa^ Miircar v. Murphy v. Co. Murray, He-Purt ▼. Malloy Bolton Dalton Kings t< TABLE OF CASEa. xui. COLUMN. I •t.l.r.MN. 10 ^fi'-' M'Tdmnts Marine Ins Co. v. Kumsey 338, 339 Murray Canal, Re-Lawsoii v. Powers '212, 307, lu, oo,),i ^, j,,i.^,,,j ^ ^y ^^^ y Ontaiio Rolling Mills 616 i 320, 409, l^.i 293 i -'''"* ^' lult 488 Roe— Lennox Election (Ont. ) 138, 486, V. Warner 22S 494, 496, 505, 759 Music Hall Block In re— Dunible v. Mc- 401 496 3 Mill V. Mill 323,702 Intosh 41,204,205,434 oj.?' o-A Milli^^i" V. Confederation Life Assurance Co. 345, • Muskoka Township and Village of (Iniveu- g*|' j:^/] 472, 474, 549. 558, 684 hurst, In re . . !5, 304, 405, 466 Reid, Vo- i Mlllet'e V. Litle 550, m' v.Sabuurin Co 426, 470 Muskoka and Parry Sound Electinn — Paget Millican v. Headon 032, mf\ ^''''"y ''■ ^^^^ 254, 74: 1 y of V. Fauquier 246, 482, 485,487, 489, 492, 493, 496, 497. 572 191,232, 315 158, 417,479 ..279 54, 700 Mo. - and the Township of Onondaga, Re 317, 318, 451, 452, 462 Macdonald v. Rullivant ,,,. 1 Millville Mutual Marine and Fire Insurance ■; oyl'i Co. V. DriscoU . . . -225, 335, 343, 699 , • ^'J Zryl Miui.sterof Education and Mclntyre v. Pub- 1 ■ , ,„' i.1,. I lie School Trustees of Section 8, of the ! Vk\' i-'^l \ 'I'ownship of Blanshard, In re . . 422, 572 \ ** ' ^j^.LMinkler v. McMillan . . . , 226, 605, 758 ' o„„i Mitchell V. Cameron .. .. .. .. 500 ■ • "'.jj , \Ve.st Riding, County I,!' • of Huron Election . . S03, 380 434 Cronibie . . . 287, 295 Lennan . . . , 747 McCall 64, 291, 293, 294,295, 533 McDonald 10, 154, 435 McRae. . 411 Ntrwich Union Insurance ( 'o. 226 230, G05, 758 Piper Robinson • V. City of London Fire Insurance Macfie v. Pearson Co. (Limited) 70, 281, 332, 335, 341, 536, Mac(iregor v. McDonald 759 ' Mackenzie v. McGlaughliu V. Gormley . . . . . . 508 ^L•lckey v. Sherman Motratt V. Merchants Hank of Canada 97, 215, ; Maclean v. Anthony .. 279, 281 Macpherson v. Tisdale V. Scratch . . . . 19, 172, 193, 667 McArthur v. Town of CoUingwood M.ilsons Bank v. Turley . . 52, 278, 300, 5()5 v. The (iueeu , 689 7t','J 1 11. 48\i 503, 60; j '^.^g '..!',; Mc.iitcalm Election — Magnan v. Dugas 11,488, McBean v. McBean ' 024 4-il ^^^' ^''^ McCallum, v. (iracey. Re ",.',.,',,', Mduteith, Re — Merchants' Bank v. Mon- v. McCailum oirJ -n-l teith 1 1, 56, 248, 2C2, 264, 552, 607, 756 McCanu v. Preneveau . . — V. Merchants' Despatch and McCarter v. Mc(Jarter Transportation Company . . . . 72 McCarthy v. Cooper . , — V. Merchants' Express Co. . . 563 McCaskill v. McCaskill V. Walsh . . 137, 259, 538, 634 McCaw v. Ponton, . . 245, 7o:! and ; 474, 47'.; 327, VU' , 622, 02t , 174, 47i .. 401 .. 231.; 372, m, 288, 3?; 441, m, 304, 68; 1, 423, 561 , 191,47 .. 601 .. loSl .. 4 411, 71: . . J" I 425, 585:; . . 648 .. IS4 •S, 164 10, 88, 27U, 647 .. 219 .708 28, 637 26, 522 4(i8, 710 172, 392, 657 222 198, 199 141. 143, 144, 373 186, 189 190, 234, 418 692 .'■)63, 619, 6.'>4 .. 11, 157, 601, 657 Moore V. Mitchell V. Moore . . Moorehouse v. Bostwick Morgan Envelope Co. v. Boustead Morphy, He— Morphy v. Niven 607, 262, 263, 596 McCraney v. McLeod Morrison v. Earls . 50, 106, 274, 510, 759 ^ McCuUough v. Sykes V. Morrison . .752, 727, 753, 755 1 McDonald v. Elliott Morrow v. Connor . . . .465, 536, 684, 691 ! v. McCall — V. Jenkins ,. .. 738; v. McUae 556 188, 191 I McClure v. Kreuteziger 614 207, 314 McConkey v. Town of Brockville . . .711 . . 33 McConnell v. Wilkins 147, 371, 610, 606, 607 .. 616 McCrae V. Backer 621,625 26, 762 251, 605, 628 412, 415, 435 . . 408 208 l)ulet 2So 489, 49; IGou- 245, 5ft 757,75! 175, 34; .. 3.i; |216, 25'; 262,28 1 521, 5nS 607, 6'> 1 201, 20; 380, 5S 10, 55 .. 11 rm, 5(1 futt 119, VI Morcon v. Grand Trunk R. W. Co. 84, 596, 680 1 v. Murray 156, 222, 225, 2.33, 241, V. Hamilton Provident and Loan j 246, .391, 473. 475, 605, 606, 625, 685, 686 Society . .. .. 136, 442, 444, 607 1 McDonell v. Building and Loan Association 136, — and lot No. 6, on Plan No. 580, in | 196, 607 the County of York, Re.. 22, 478, 698 j McDougall, Re 49.174 Moulton and Canborough, Townships of, v. Lindsay Paper Mill Co. 555, 604, and the County of Haldimand. In re 66, 605 166, 319, 420, 421, 718 \ McDougall Trusts, Re. . 2.')6, .322. .'524 Moxley V. Canada Atlantic R. W. Co. 229,247 McElheran v. London Masonic Mutual Mulkins v. Clarke 523, 627, 663 MuUhoUand v. Harman 28, 209, 215, 2'2, 399. 403 Mulliga \'. Grand Trunk R. W. Co. . . 472 Mundell \. Tinkia 183, 235, 274 j McFarlane v. Gilmour Munn V. Berger, . . . . 615 ', v, Johnston Be; jfit Association McEwen v. Dillon V. McLfeod . . V. Milne 355, 357. 604 . . 398, 402 13, 379, 640 244, 274 426, 676 89, 755 •Munsie, In re 258, 262, 550, 552, 554, 559, 604, | McGarvey v. Town of Strathroy 135, .327, 328. 752,7531 329,631.712 718 V. Lindsay 214, 248, 318, .348. 669, 702, i McGil)bon v. Northern and North- Western 743, 747, 752. 753 I U. W. Co .586 Miircar v. Bolton 506, 569 j McGregor v. Keiller . . 2.3.'>. 243. 413, 668 Murphy V. Dalton 268 v. McDonald 228,231,2.32,557.605 — V. Kingston and Pembroke R. W. v. Mc(Jregor . . 317, 400, «>0I Co 574.595,756; v. Walsh .. ..137,2.59,634 538 Murray, He--Purdham v. Murr.'ty .. .. 298 I Mclntyre v. Hood .. 90,655 ▼. Malloy 752 v. Thompson 236 o I/) o z Ibi > i XIV. TABLE OF CASES. COLUMN. .. 5, 6, 84, 418, f)39 ..155, 182, 431, 519 61 , 148, ir)'2, 246, (i4I . . 277, 393 209, 236, 395 630 26, 148 ..315, 061, 689, 749 755 McKay v. Cummings V. il oward McKellar V. Mcdibbon McKcnzie v. Dancey V. I) wight __ V. McGlaughlin McKi'isii! V. McLean McKiiiil.'^uy V. AniiKtrong McLaclilin v. Usl)orne McLiUcii V. CaKhvul' . V. Caiia.lii Central H.W. Co. 356, 379, (;06 V. CMniniercial Union Ass. Co. 332, 335, 3.36 . V. Marks . . . . 304, 535, 605, 606 V. .Sti])hens . . . . 151, 152, 568 Mei>:ai(;lilin v. (inui.lTrunk R.AV. Co. 426, 470, 581, 585 McLaughlin v. Moore . . 224, 306 V. Schaffer 145 McLean v. Antlmny 357 V. Ureithaupt . . . . . . . . 017 V. <;arland .32,286 V. Hamilton Street Hallway Co. 189, 470, 538 . V. Shields . . . .376, 377, 378, 559 V. Smith . . . . 311, 375, 392 McLellan v. Winston . . . . 97, 762 McMahoii V. Speneer . . 629 McMiclmel v. (irand Trunk H. W. Co. . . 582 McMillan v. Grand Trunk R. W. Co. 367, 472, 589, 600 V. Wansliorough McMullen V. I'c.lley •■ MoNalib V. Oppenheimor AlcXoeley V. McWilliama Mcl'hersdn v. Md'hersou O'Brien v. Clarkson O'Callaghan v. Bergin O'Donnell v. O'Donnell O'Donohoe v. liobin.son V. Stammers Ogdeu V. Craig. . O'Hcron, Re Oliver v. Davidson Olmstead v. Eirington, Re COI.UMH. 31. 408 . . 366, 644 672, 679 ,251, 300, 5.57, C84 ..28, 91, ('10 3.-i:{ 45, 346, 66(1 74.-, 139, 198, 556, 569 607: O'Moara and the City fpf Ottawa, Re 4.52, 4(i'j Omnium Securities Co. v. Richardson 90, 97,; 222, 65.5, 7511 1 Ontario and Queliec Raihv.ay Co. v. I'liil- . . 57m brick Bank v. Burke v. Leiiiont V. Revell Loan anrl Savings Co. and Re . . Orford v. Orford Orpen v. Kerr . . O'Sulhvau V. Harty 48, 223, 370, 601 34, 2s;; .. 355, .")2U P(i\\ers, . . 735, 74llf 694, 695, 7311 McC^uud V. Cooper . . Me 370, fiOl 34, -is:; 3;-).'), r.-JJ 7.3"), ()'.tri, tiot), <)r)o: .. 25bi rut 7311, 14( •JUi 75b •28, 11 -2, til'), 'iinv 48;")", 487 493. 490 497, ",: 378, 30 DO.) COLUMN. I Plumb V. Stfinhoff 180 I Pluminer v. Lake Superior Native Copper Co 1'28, 370 Poison V. Dogeer .. 102, 5,33, (il '2 Porteous v. Muir 50, 238 . V. Myers 103 Portland, Town of v. (Jritliths 470, 472, 474, 721 Pouliu V. City of Quebec . , 80, 358, 304 Posvell V. Calder . . . . 283, 289, .322 V. City of Loiulou Assurance Co. 000, 081 V. Peck 430, 522 — V. Quel.-c In.s. Co 681 l'ui-.iley V. IJonnett 418, .537 I'latt V. (irand Trunk Kaihv.ay Co. .591, .595 I'urve.s V. .Slater . . 24, 20, 547, 004. 755 I'niitice V. Consolidated l?ank . . 43, 81 I'ruscott Election (Ont.) — Cunningham v. Hagar 11, 484, 485, 480, 488, 49.3, 404, 499, .'■)03, 750 i'ruttie V. Lindner . . , , . . 557 I'litcliard V. Standard Life As.surance Co. 129, 259, 351 Prittie v. Snider 043 Proctor V. Mackenzie. . .. .. .30,71 Providence Washington Ins. Co. v. Corbctt 342 Provincial Insurance Co. v. Cameron .. 108 V. Worts.. ., 108 Q. Quay V. Quay 143, 144 Quebec Bank v. Radford . , . . . 309 57-1* City of V. Quebec Central R. AV. Co. 177 441: 241,. 590 3'J!i J Warehouse Co. V. Levis .. .. 594 031 i Queddy River Driving Boom Co v. Davidson 80, . 72,sri 703, 708 249, 354i|Queen City Refining Company, In re 121, 124, . , 35Si 192, 551, 553 9. 03, 04 iQuillinan v. Canada Southern R.W. Co. 420, 536, 321, .52,r' 575. " 07'i Quimby, Re— Quimby v. Quimby 197, 206, 19,i I 229, 230. ! R. (iv2, 0S4 515, 654 J Rainy Lake Lumber Co., Re 00\i Ramsay v. Midland R.W. Co. Ratte V. Booth 410, 427, 536, 703, 704, Regina v. Doutre V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. . V. V. V. V. V. V. V. j V. t '^'• i '^•- V. V. V. /19 742 .548, OOo 448, 71'' Kl of 457 iFire 330, 4bx 205, 208p ;an) - 005, 641 . 44S |o. V. 196, 380 4.32, 441.', 542, 5'.)s! 292. 68': 108, 13!'. 142, 1.5'; . 4o: . 6s:; 1 473, 75!^- \v. .V22.58(' J 129, sr.i |lf.2, 20'.i 1 (!28, 7U 126, 132 .. 220 706, 707, 708, 757 Real Estate Loan Company (Limited) v. The Yorkville and Vaughan Road Company 285, 756 Reddan, Re 193, 207 Reea, Re— Urquhart v. Toronto Trusts Co. 131 264 192 316 152, 224, 244, 473,607," 668 167, 168, 248 . . 45, 388, 550, 633, 097 165 V. Bank of Nova Scotia 41, 44, 169, 215, 699 459, 697, 756 166, 108 362, 364, 366 84, 153, 154, 164, 16.5, 167, 302, 479, 667 Reeves v. Perrault Regan v. Waters Regina v. Andrews — V. Aiscott — V. Bail . . V. Bassett V. Bent . . V. Brady V. Bunting V. Carter 382 V. Chayter . . .459, 756, 757, 758 V. County of Perth . . 210, 448, 714 V. Coutts . . . .458, 755, 7.'>0, 75S V. Daiv .359, 302 V. Dillon 290 I )oyle Dunn Eli . . Elliott Fearman Fee .. (iravelle H.nll . . llalpin l!o(lL'ins Hollistcr .Jiiniiisiin Kennedy Klein]) 301, Liiekie I.yneh ^laekelizie Miu'Lean MeCartliy MeDoiiald MeLeod McXic.d Marshall Martin Meyer Newton Nunn COLUMN. 141 302, 303, 629 .528, 671 . . 149, 305, 367, 382, 383 ...362, 364, 387, .388 ..160,319,071,758 362 387, 460 3S3, 388, 427 359, 362 ■361, 306, .384, .388, 7.'">6, 758 384, 389, 460 290, 388, 757 .. 301, .302, 304, 305, 389 . 303, 304, 3()5, 3(57, 382, 384 100, 108. 388 . . 74, 387, 389, (JO I 74, 358, 304 90, 479, .527 3t:0, 388 .508, 702 74, 388 :i.3, 757 . . 520, 585 224, 233, 384, 385, 4.59 107, 382, 420, 10, 106 380, 403, 108, 384, 44, 387, 74, 386, 403, . . 388, 755 758 755 596 097 Reid ( )rguii Ramsay [361, 364, 384, 033, 034, 099 Ree.l ., ...38.5,451,401,755 Ricliardson 10, 11, 144, 7.3, 84, 167, 383, 384, 387, 423, 470, 544 V. Rodwell 302, 363 V. Rvan .. 1, .38, 364, 3().5, 389 -.• Sanderson . 82, 303, 364, .300, 389 V. Scott . . . . 74, .544, 034 V. Shavelear .. .. 259, 319, 756 V.Smith .. 99,511,528 V. Sparham 74, 138, 224, 387, 427 V. St. Catharines Milling and Lum- ber Co 80, 319 . V. Swalwell 74, 380, 463, 596, 758, 7.58 . V. Walker 44, 386 ■ V. Warden and Council of the Town of Dartmouth . . . . 422, 572 - V. Young 165, 359, 362, 363, 365, .366, 387, 544 - ex rel, Felitz v. Rowland 447, 551, .572 573, 672 Re O'Brien 88 644 Stewart v. Standish 216, 570, 572 W'lson V. Duncitn . . 447, 551 V. Drury -Fast Simcoe Election (Ont. ) 483, 485, 487, 491, 495, 406, 499, .500, .503 V. Gowatis . . . . 104, 757 Renfrew Election (Ont.) — Harvey v. Dow- ling .503 Reynolds v. Roxburgh . . .305, 470, 700 Rhoder v. McKenzie — East Middlesex Election (Ont.) 490, 492, 493, 498, 499, .502, 757 Richard v. Stillwell 299 Richardson V. Jenkin ,. 135, 140, .529 V.Ransom .. .. 418,544 Riddle v. Mcintosh . . . . 732, 73.3, 750 V. McKay, 13,3,607 Ringrose v. Hingrose . . . . . . . . 314 River Stave Co. V. Sill .. 291,351 Roan V. Kronsliein 212, 246, 39,5, 398, 411. (iOO Hohbins V. Cnll'ee 52'», 002 Roberts v. Lucas 549, 605 < O o o flC > IBM X 3 XVI. Koberts v. Vaughan . . Robertson v. Cowan . V. Daley . . V. Patterson V Thomas . . TABLE OF CASES. Robins v. Brockton Kobinjon v. Herein V. Cook COLUMN. 47 131 214,414 . . 657, 659 35 464 2, 251 34, 59, 60, 215, 269 . . 26, 52, 373, 666 507, 604 Koblee v. llankiu Robson V. Kobson Rodden v. Mclntyre— South Victoria Election, (Ont.) 11,497,501 Rogers v. Loos. . . . . . . . 133, 522 Re, — Rogers v. Rogers 507, 553, 605 Romney, Township of, and Township of Mersea 448, 453 Rose Belford Printing Co. v. Bank of Mon- treal 41, 758 Rosenheim v. Silliman . . . . 227 Ross V. Oarscallen . . . . 303, 375, 606 V. Grand Trunk R. W. Co. 409, 577, 626 V. Machar . . . . 107, 108, 120, 241 V. M alone 250 Royal Insurance Co. v. Byers . . 21(i, 280 Russell V. Lefrancois . , . . 10, 724, 752 Ryan, Ke 524, 643, 652 V. Bank of Montreal . . 53, 215, 271, 392 V. Canada Southern R. W. Co. 470, 550, 5S5, 606, 686 V. Fish , .. .208,541,542,551 V. .Sing . . 91, 97, 561, 654, 655, 757 Sanderson v. McKercher . . 408, G88, 689 Sarnia Agricultural Implement Manufactur- ing Co. V. Perdue 153, 304, 531, 549, 605 Saunders v. Breakie Schafl'er v. Dumble Schrader v. Lillis Schragg v. Schragg Schroeder v. Rooney Soott V. Benedict .212,669,702,728 ..100, 297, 602,676 . . 91, 93, 525, 526 650 11, 149, 219, 260, 295 625 COLUMN. Smart v. Soranson . . . . . . 205 Infants, In re 301, 321 Smith V. Bank of Nova Scotia 44, 110, 529 V. City of London Insurance Co. 333, 335, 699 V. Fair 58, 291 V. Greey . . 224, 225, 226, 231, 517, 51S V. Goldie . . 176, 511, 513, 516, 517, 757 V. McLellan , . . . 308, 545, 749 and the Township of Plympton, In re 466, 467, 712 V. Port Dover and Lake Huron R. W. 595 Co V. Smith . . Snarr v. Badenaeh Snider v. Orr 137 V. Snider V. Corporation of Tilsonburg 328, 452, 458 . V. Crerar 187, 191, 476 v. Wye 369, 661 Scougall V. Stapleton 246, 247, 418, 419, 474, 685 Scribner v. Kinloch . . . . . . 10, 61 Scale V. Johnston . . . . . . . . 413 Servos v. Servos . . . . . . . . 531 Sewell V. British Columbia Towing and Transportation Co. 470, 536, 638, 639, 642, 661, 667 Seymour v. DeMarsh . . . . 210, 539, 605 V. Lynch . . . . . . . 394 Siianagan v. Shanagan . . 273, 318, 403 Shaver, Re 323, 573, 729, 730 Shaw V. St. Louis . . . . 373, 665, 666 Shepherd v. Canadian Pacific R. W. Co. . . 13 V. Kennedy . . . . . . . . 416 Sheridan v. Pigeon 428, 698 Sherwood v. Goldman . . . . . , 546 Shields V. Peak . . 39, 85, 373, 541, 665 Simmons and Dalton, Re 86, 154, 423, 477, 481, 673, 756 Simpson v. Corbett . . . .211, 261, 415, 695 Sinnott V. Scoble 171, 173 Slater v. Anthony , . . . 28, 357, 637 V. Badenaeh 284 V. Oliver 288 V. Purvis . . . . . . 530 .Small V. Lyon 139, 142, 521 150, 151, 215, 603, 733, 753 . . 9, 348, 634, 743 314, 537, 542, 557, 605, 607, 650 137, 314, 537, 542, 557, 605, 607, 650 Sorenson v. Smart . . . . . . . 376 Soulanges Election (Dom.) — Cholette v. Bam 83, 484, 496 South Renfrew Election (Ont.) — Harvey v. Dowliug 483, 498, 503 South Victoria Election (Ont.) — Rodden v. JMclntyre 497, 501 Southam v. Hanton . . . . 47, 49, .SOO Spears v. Walker . . . . 93, 98, 453, 762 Spurr V. Albert iMiniug Co 519, 610 Sriglcy v, Taylor . . . . 482, 506, 572 St. John V. Rykert 49, 159, 349, 415, 436, 519 St. Lawrence and Ottawa R. W. Co. v. Lett 315, 471 St. Thomas, City of, v. Credit Valley R. W. Co 595, 659 St. Vincent, ^own of, v. Greenfield 240, 715 Standard Bauk v. Wills . . 370, 552, 605 Fire Ins. Co. . Re— Barber's Case . . 123 Caston's Case . . 123 ■ Chisholm'sCase 122 Copp, Clark & Co. 's Case ., 123 Kelly'sCasel22, 12:{ Turner's Case .. 122 ; v. Hughes 354, 355, 75.') Life Assurance Co. , Ex parte 256, 336, 346, 521, 55.S Star Kidney Pad Co. v. Greenwood 50, 176, 279, 685, 698 Stark v. Fisher . . . . . ..14.'^ Stearn v. Pullman Car Co 589, 59 Stevens v. Barfoot . . . . . . . . 271 , Turner & Burns Foundry and Gene- ral Manufacturing Co. (Limited) v. TiMyner. Sweet V. Piatt Sweetman v. ft Sylvester v. M Symmers v. Li Synod v. De Bl Tatev. Globe Taylor v. Cook • v. Magr V. McCi — V. Mora — and the Co., K( V. Sister Temple v. Toroi Thames Naviga Thin, Re Thomas v. Came V. Inglii V. Store Thompson v. Ca Co. ■ v. Fai V. Gor V. Ton 59, 60, 316, 42 . . 19. 23, 246 ..743 .. 142 606 . . 558, 680 374, 377, 526, 540 . . 192, 475 Barfoot Stevenson v Stewart v. Dick V. G'l;;!; ...' -l-.^rCo, V. IVi'cK' . V. Sulil' iiu . V. Suttoji Stillwell V. Renntt Stimson v. Block Stobbart v. (iuardhouse Stratford, Town of v. Wilson Stuart v. McKim , . , , .... Stuebing, In re, Anthes v. Dewar 264, 265, 604 64! Suite V. City of Three Rivers 86, 358, \U Sumnrerfeldt v. Worts, In re 52, 75, 200, 2i)( 569, 7'), .Summers v. Summers . . . . 729, 74: Sutherland v. Cox . . 67, 174, 757, 7 84, 464, 478, 54 Tilsonburg Agric v. Goodrich Tinning v. Granc Titus a Solicitor, Todd V. Dun, W Tomlinson v. Mo V. No ada. Toronto Street Torrance v. Livii Towers v. Domin Tracey v. Foulds Travis v. Travis Treacey v. Liggei Treleaven v. Goul (Ont.) 487, 4i Trent Valley Can the Road to Trinity College v. Trust and Loan C Tucker v. McMah Tuckett v. Eaton Turner v. Domini( inn ^rm^^y "'• ^tewart ( 100, ^..t Union Fire Insura 71.8, / .il Union Loan n.n<1 .*; Vaiidewaters v. Hi Van Egmond v. To V^anKoughnet v. D TABLE OF CASES. xvii- JLCMN. .. 2or> 01, 321 10, 529 )3, 335, 699 58, 291 il7, 518 )17. 757 )45, 749 re 466, 167, 712 W. .. 595 733, 753 634, 743 i05, 607, 650 (57, 605, 607, 650 . 376 ! V. 484, 496 yr V. 498, 503 ill V. 497, 501 , 49, 309 453, 762 519, 610 506, 572 436, 519 Lett 315, 471 I.VV. 595, 659 240, 715 , 552, 605 Be.. 123 ,86.. 123 Case 122 k & .. 123 122, 123 se.. 122 355, 75.') 256, 336, 521, 553 176, 279, 685, 698 .. 143 589, 59.'. .. 271 ene- ) V. 316, 427 . 23, 246 .. 743 .. 142 . . 606 558, 680 526, 540 192, 47o Sweet V. Piatt , Sweetman v. Morrison Sylvester v. Masson Symmers v. Livingstone Synod v. De Blaquiere COLUMN. .278, 728, 734, 749 . . 132, 357 .. 513,755 296, 614 ,232, 303. 472, 476 Tate V. Globe Printing Company . 189, 606 Taylor v. Cook 222, 510 V. Magrath 429, 644, 647, 690, 691, 692, 519 V. McCullough . . . . 7, 678 V. Moran . . 340 and the Ontario and Quebec R. W. Co., Re .. .. 340 522, .580 V. Sisters of Charity of Ottawa . . 557 Temple v. Toronto Stock Exchange 41, 117, 176, 755, 756 Reed 86, 11;-, 612 321,331 .. 195 270, 612 228, 557 Ins. Thames Navigation Co. (Limited) v. Thin, Re Thomas v. Cameron V. Inglis V. Storey 6, 268 516 15, 260, 666 6, 269, 329, 564, 758 Canadian Pacific 265, 591 Thompson v. Canada Fire and Marine Co. .. .. --- - V. Fairbairn V. Gore V. Torrance , . 110, 115. 281,. 392 253, 257, 263, 604 .. 294 . . 725 Tilsonburg Agricultural Manufacturing Co. V. Goodrich . . Tinning v. Grand Trunk R. W. Co. Titus a Solicitor, Re . . Todd V. Dun, Wiman & Co . . Tomlinson v. Morris . . V. Northern ]{. W. Co. 107, 226 . . 680 .. 645 .. 186 699, 702 Can- ada 139, .5.3.5, 543, 605 Toronto Street Railway Co. v. Dollery 5, 70, 663, 722 Torrance v. Livingstone . . 51, 535, 542, 638 Towers v. Dominion Iron and Metal Co . . 613 Tracey v. Foulds 241, 246 Travis v. Travis 298 Treacey v. Liggett 308 Treleaven v. Gould — North Ontario Election (Ont.) 487, 488, 490, 491, 492, 494, 500, 757 Trent Valley Canal and Land Expropriated at Fenelon Falls, Re 180, 704, 759 ■Re Water Street and COLUMN. Vanmere v. Farewell. . . .247, 428, 475, 686 Vanaickle v. Vansickle . . . . 726 Vanataden v. Vanstaden . . . . 357, 652 VanVelsor v. Hughson 152, 242, 380, 410, 507, 698 Vardon v. Vardon 7, 221, 312, 315. 561, 645, 658, 759 Venning v. .Steadman . . Vermilyea v. Canniff . . Vernon v. Oliver Veiratt v. McAulay . . Vickers' Express Co. v. R. W. Co. Victoria Election — Rodden v. Mclntyre . . 11 Victoria Mutual v. Freel 131, ,379, .W Fire Ins. ("o, v. Thomson 337 Vineburg v. Grand Trunk R. W. Co. 29, 589, 700 Vogel V. The (irand Trunk R.W. Co. 84, 757 W. Waldie and the Village of Burlington, In re 87 148, 600, 716 Walker V. Walker 314 , Re -Walker v. Rochester . . . . 649 V. Ro.ss — Re West Middlesex Elec- tion (Ont.) ..501 V. Murray 243, 750 Wallace v. The Board of Public School I Trustees of the Township of Lobo 138, 571 I V. The Town of Orangcville 217, .327 V. WaUace Waller v. ( 'laria ' Walsh V. Elliott, Re , . Wabnsley v. Grittith, V. Mitchell Walton V. Apjohn V. Simpson ■ V. Wideman . . Wannamaker v. (ireen 4.37, 596 . . 140, 556 201 131, 13.3, 277, 5.38, 562, 563, 654, 656, 666, 672 139, 140, 607, 631, 7.56 . . 5, 225, 504, 569 278 530 717 the Road to the Wharf 28, 170, 173, 265, 535, 572, 714 Trinity College v. Hill . .348, 436, 441, 443 Trust and Loan Co. v. Lawrason, 196, 432, 637 Tucker v. McMahon . . . . 247 Tuckett V. Eaton . . . . 203, 420, 472 Turner v. Dominion Iron and Metal Co. . . 6 U. Udy v. Stewart 6, 224, 429, 472, 473, 606, 630 100, 7r.t|Union Fire Insurance Co. , Re 120, 121, 125, 149 v. Boomer 13, 551, 606 iw, .T.v yuiuil rilO LllSUl ikllVJC V>U, , in 728, 73'. Union Loan and Savings Co. 478, 545 |265, 604 64! 358, 3,'.! |200, 2911 569, 7.''' 729, 74J 757, '''' V. Vandewaters v. Horton . . 1.38, 201, 443 Van Egmoud v. Town of Seaforth .327, 678, 707, 708, 710 VanKoughnet v. Deniaon 156, 160, 177, 234, 235, 468, 662 Wansley V. Smallwood 6, 1.37, 1.39, 140, 149, 1.5.3, 303, .549, ti06, 607 Ward V. Hughes . . 76, 435, 475, 542 Wardrope v. Canadian Pacific R. W. Co. 25, 242, 243, 7.56 Warin v. London and Canadian Loan and Agency Co 703, 705, 707, 7.57 Waters v. Donnelly 273 Watson V. Northern R.W. Co., Re 574, 591, .595 V. Westlake , . 675. 7.56 Webster v. Haggart 12, 13, 14 v. Leys . . 605, 607, 312 Weinhold v. Klein 246 Weir V. Niagara Grape Co. . . . 599 Weller v. Proctor . . , 540, 605, (iSO Wells v. Trust and Loan Co. of Canada 442, 444 Western Bank of Canada v. Greey. . 219, 678 Westgate v. Westgate . . 138, 281, .323, 478 West Huron Election — Mitchell v. Cameron 303, 380 Middlesex Election, Re— Johnson v. Ross . . 504 Walker v. Ross . . . .501 Northumberland Election (Dom. ) — Henderson v. (Uiillet. .487, 491, 492, 495 Sinicoo Election (Ont.) — Bedford v. I'hclps. . 485, 486, 488, 495, 497, 498 500, .501, 7.56,7.59, \. Village of Parkdale 46>*, o63, 581, ,595, 719 < NiWHIIlii xvni. TABLE OF CASES. COLUMN. VVheeler and Wilson Manufacturing Co. v. , VVilaon 110, 112, 392 VVhite V. Beenier . 13, Hf!, f).51, 55,5, 606 V. Nelles . . 23, 377, 402, 702 — Sewing Machine Co. v. Belfry 134, 606 V. Township of (iostield .. 712 Whiting V. Hovey 31, 35, 58, 61, 62, 114, 149, 356, 607, 755, 7.>7 Whitney v. Toby 283, 759 Wicher V. Darling 92,93,159 Wicksteed v. Munro , . 346 Wilby V. Standard Fire Ins. Co 1,50 Wilcocks V. Howell . . 185, 191, 192, 376, 472 Wiley V. Lodyard . . ,5.3, 81, 349, 414, 44- W-lkms V. Mcl-ean .. . 1,57,437,444 Williams v. Crow 147, 602, 60G, 607, 661, 681 :— V. Roy 253, 752 Wills V. Carroll 1, 550 Wilson V. Keatty . . . 644, 645, 650 V. Duncan . . , . . 551 ■ V. (irahani . . . , . . . . 734 V. Irwin 375, 606 V. Roberts 136, 191 V. Roger McLay & Co. , . . 533 V. Wainfleet, Re 421, 715 V. Wilson 206 V. Woods . . . . . , 188 Wilton V. Northern R. W. Co. . . 583 Windsor and Annapolis R. W. Co. v. The Queen 176, 528 VVinstanley and Southerly 35 feet of lot 11 West side of Jarvis Street, Toronto, Re 731 749 Withrow V. Malcolm Woltz V. Blakely, Re Wood V. Armour V. Esson WoodruflI'v. McLennan 00H7MH» . . 429, 514 .. 201,202 102, 738 703, 704, 707 ..371 51,'J Woodword v. Clement Workman and the Town of Lindsay, In re 1,38, 452, 455, 570 Worthington v. Macdonald 509 Wrayv. Morrison .. 70,326,40.3 Wright V. Incorporated Synod of the Diocese of Huron 71, 79, dd^ V. Jackson . . . . . 182, 713 V. Leys . . . . 92, 150, 438, 672 Wyld V. Clarkson 36, 300 V. Hamilton Mutual Ins. Co. . . 118 Yeman v. Johnston . . . . 24, 524, 652 York, County of v. Toronto Gravel Road and Concrete Co. . . 95, 663, 673, 722 Yost V. Adams . . . . . , . . 741 Young V. Monlen, Re .. .. 1,38,199 V. Nicliol 419, 629 V. Purvis . . 256, 321, 730, 743, 748 Z. Zumstein v. Hedrick 749 AFI Abrath r. No Q. B. D. : Young V. Abrey v. Newi See Wood Allan ('. xMcT See McDo 412 ; MeCi R. 337, p. I A. R. 430 ' Andrew v. Ba. See Whi.i Andrews, Re, See Re Pai Archibahl i>. B\ See Friend] Attorney Cenei referred to 5 O. R. 37 Badenach v. SI S. C, sub. S. C. R. 20 Bain v. The Ci Q. B. R. 22 252 Baker v. Mills, ] The Wester et al. 12 O. Ball V. Cromptoi 228 ; affirmt Bank of British P. R. 468, a V. The Men P. R. 72.... of Montrea reversed S. 1 of Nova Sc 503, not foll( Casings Co. R. 391 . . . . of Ottawa I referred to Card V. Cooh of Toronto versed S. C, Barker v. Leesor from by Burt George, 10 A Barnes v. Bellam; See Boulton" 532 )H! MN. 29, 514 31, 202 32, 738 04, 707 371 513 e 138, 55 ,570 509 26 ,403 est ! 79 , fi95 82 , 713 CASES AFFIRMED, REVERSED, OR SPECIALLY CONSIDERED. 'h .. 749 PAGE, Abrath v. North Eastern R. \V. Co., 11 Q. B. D. 79, 440, commented on. See Youn^' V. Niehol, 9 O. R. 347 419 Abrey v. Newman, 16 Beav. 431, followed. See Wood v. Armour, 12 O. R. 146 . . 738 Allan ('. McTavish, 2 A. R. 278, followed. See McDonald v. Elliott, 12 O. R. 98, p. 412 ; MeCuUough v. Syke.s et al., 11 P. R. 337, p. 628; McMahon v. Spencer, 13 A. R. 430 629 Andrew v. Barker, 7 Chy. 701, disousaed. See Whi.ug v. Hovey, 12 A. R. 119. . 356 Andrews, Re, 11 P. K. 199, distinguished. See Ue Parr, 11 P. R. 301 321 Archibald c. Bushey, 7 P. R. 304, followed. See Friendly v. Needier, 10 P. R. 267 . . 202 Attorney (Jeneral n. Mercer, 5 S. 0. R. 538, referriid to. See Simpson v. Corbett, 5 O. R. 377 ; 10 A. R. 32 261 Badenach v. Slater, 8 A. R. 402 ; affirmed S. C, sub. nom. Slater v. Badenach, 10 S. C. R. 296 284 Bain v. The City of Montreal, 2 iJorion's Q. B. R. 221 ; affirmed S. C, 8 S. C. 11. 252 519 Baker v. Mills, 11 O. R. 253, followed. See The Western Bank of Canada v. Greey et al. 12 0. R. 68 678 Ball i;. Crompton Corset Co. et al. ,9 0. R. 228 ; affirmed S. C, 12 A. R. 738 .... 512 Bank of British North America v. Eddy, 9 P. R. 468, affirmed. See Pawson et al. u. The Merchants Bank of Canada, 11 P. R. 72 684 of Montreal v. Haffner, 3 O. R. 183 ; reversed S. C, 10 A. R. 592, p. 407. of Nova Scotia v. La Roche, 9 P. R. 503, not followed. See Anglo American Casings Co. (Limited) i'. Rowlin, 10 P. R. 391 132 of Ottawa V. McMorrow, 4 0. R. 345, referred to and commented on. See Card V. Cooley, 6 O. R. 229 46 of Toronto v. Hall, 6 0. R. 644 ; re- versed S. C, 6 O. R. 653 250 Barker v. Leeson, 1 O. R. 114, dissented from by Burton, J. A. See Parkes v. St. George, 10 A. R. 496 63 Barnes v. Bellamy, 44 Q. B. 305 followed. See Boulton et al. v. Blake, 12 0. R. 532 400 rA(iE. Bartlett r. Pickersgill, 1 Cox 15, 4 East 577n, (|u;ere if still to ]>v regarded as good law. See Kitchen v. Dolau, 9 O. R. 432 560 Beatty et al. o. Neelon ec al., 9 U. R. 385 ; reversed S. C, 12 A. R. 50 106 V. The Northwest Traii.sportation Co. (Limited) et al., 6 O. R. 300 ; reversed S. C, 11 A. R. 205 116 Beckett r. The Grand Trunk R. W. Co., 8 O. R. 601 ; affirmed S. C, 13 A. R. 174, and by the Supreme Court 471, 584 Beemcr and the Trustees of the Presbyterian Church of the Village of (Jrimsby and the Corporation of the Village ,)f (irima- by, In re 8 O. R. 98 ; affirmed S. C, sub noni. Beemer and the Corporation of the N'illage of Grimsby, 13 A. H. 225, 223 Bell i>. Riddell, 2 O. R. 25 ; affirmed S. C. 10 A. R. 544 50 Bennet r. Tregent, 24 C. P. 565 ; (approved of in McMullen r. Williams, 5 A. K. 518,) followed. See Ellis v. Abell, 10 A. R. 226, 240 Beswick i\ Bappy, 9 Ex. 315, followed but not approved of. See Cameron c. Allen, 10 P. R. 192 203 Black i). Fountain, 23 Chy. 174, followed. .See Smart o. Soranson et al., 9 0. R. 610. 205 *;. Wesley, 8 U. C. L. J. 277, fol- lowed. See In re Knight i\ The United townships of Medora and Wood, 110. R. 138 74 Bleakley v. The Corporation of Prescott, 7 O. R. 261 ; reversed, S. C. 12 A. R. 637 720 Boale i'. Dickson, 13 C. P. 337, remarked upon. See Mackey v. Sherman et al., 8 O. R. 28 708 ' Board v. Board. L. R. 9 Q. B. 48, distin- j guished. See Smith c. Smith, 5 O.K. 690 215 , Boice c. O'Loane, 3 A. R. 167, commented on and followed. See McCuUough v. Sykes et al., 11 P. R. 337, p. 628 ; Mc- Mahon V. Spencer, 13 A. R. 430 629 Bolckow V. Foster, 7 P. R. 3S8, distinguish- ed. See (ieorge T. Smith Co. v. Greey et al., 11 P. R. 345 232 Booth V. Conlton, 2 Gifif. 520, followed. See Snarr et al. v. Badenach, 10 0. R. 113. 743 > o o z Urn o m XX. CASES AFFIRMED, REVERSED, ETC. PAOE. 119 ; affirnied Brayley '■. RUis ct .il. 1 O. P.. S. ('. !) A. H. St).-) Hree/i' r. Mi.llaiid It. W. Co., 'JO Chy. 225, followed. Si'e King ut ivl. r. Alford et al., 9 0. H. «43 Brice r. Munro, 7 O. l\. 435; reversed S. C, 12 A. H. 453 Brock, ('orporation of TownHliiit of, /•. The Toronto iMiil Nipinsing R. W. Co., 37 Q. M. 372, followed, .^cc Heard et al. r. Credit Valley It. W. Co., 9 0. K. GIO. Browne /•. Broekville and Ottawa R. \V. 189 406 128 591 Co., 20 (,>. li. 20: lowed. See May R. W. Co., lOO. , referred to and f(d- /'. Ontario and (i>uebec K. 70 592 Bruce, Conntv of, r. M( atlirnied .S. C, 11 A. I.;iy, 3 11. 477 O. M. 23 597 BrusseU, T'orporation of tlie N'illage of, r. Ronald et al. , 4 O. R. 1 ; atlirnied S.C. 11 A. R. G05 456 Hums r. McKay, 10 O. R. 167, followed. SeeMcltoI.ertM c. Steinoft', 11 O. R. ,3()9 290 I'. The City of Toronto, 42 Q. B. SCO, distinguished. See Rleakley r. Town of I're.suott, 7 O. R. 2til, but see S. C, in appeal, 12 A. R. ("M 720 Hurritt i: Marlborough, 29 Q. B. 119, ap- proved. See Heenier r. The Corpora- tion of the N'illagc of (irinisby, 13 A. R. 2-J 716 Hurrow.s v. Walls, 5 DeG. M. & G. 233, dis- tinguished. See Re Crowter — Crowter v. Hinnian, 10 O. R. 159 693 Buraill r. Tanner, 13 (,). 1!. D. 691, followed. See Cameron r. Rutherford et al., 10 P. R. 620 369 Cain V. .Tunkin et al., 6 0. R. 532; affirmed S. C, 13 A. R. 525 178 Caldwell )•. McLaren, 9 App. Cas. 352, fol- lowed. See Mackey r. Sherman, 8 O. R. 28 708 Calvert v. Godfrey, 6 Beav. 97, considered and distinguished. See Blean r. Blean, 10 0. R. 693 322 Cameron r. Bickford, 11 A. R., 52; revei-sed by Privy Council, not reported 510 I'. Wait, 3 A. R. 175, explained. vSee Beemer r. The Corporation of the Village of (irimsby, 13 A R. 225 .... 716 Canada Atlantic R. W. Co. »'. The Corpora- tion of the Township of Cambridge, 11 0. R. 392 ; reversed by Court of Ap- peal S. C, 23 C. L. J. 236 451 ('. The Corpora- tion of the City of Ottawa et al. , 8 O. E. 183, 201 ; affirmed S. C. , 12 A. R. 234, p. 449; and followed in Canada Atlantic R. W. Co. V. Corporation of the Town- ship of Cambridge, 11 0. R. 392 .... 594 Temperance Act, 1878, and a poll holden in the city of St. Thomas, In re 9 0. R. 154; affirmed S. C, 12 A. R. 677 360 Canadian Land and Eirxigration Co. r. The Municipality of Dysart et al. , 9 0. R. 495 ; affirmed S. C. 12 A. R, 80 21 PAOI. Carey r. City of Toronto, 11 A. R. 416 (whicii reversed 7 0. R. 194), atfirmed by Supreme Court. See CasaeU's Digest, 482 622 Carroll et al. r. The Corporation of the Vil- lage of Parkdale, 7 O. R. 270. 8 O. R. 59 ; reversed S. C. 12 A. R. 393, but judgment of ('ourtof Appeal reversed by the I'rivy Council 719 Caughill r. (Mark, 3 O. R. 274, referred to and eoniinented on. See Card i: Cooley, 6(). R. 229 46 Centre Wellington Election, 44 i). B. 132, referred to and distinguished. See Re Simmons and Dalton, 12 O. R. 505 ... 481 Chamberlain v. Turner, 31 C. P. 490, fol- lowed. See Carson r. V'eitch, 9 O. R. 706 400 Chamberlen v. Clark, 1 O. R. 135: affirmed S. C. 9 A. R. 273 259 Chapman v. Rand, (not rejjorted) approved. See lie Canada Temperance Act, 12 A. R. 677 421 Charteris, Re, 25 Cliy. 376, commented on. See Charteris ('. Charteris, 10 O. R. 738. 68S Chovallier /•. (aivillier, 4 S. C. R. ()()5, fol- lowed. See Shields v. Peak et al., 8 S. C. R. 579 66.5 Chishohn v. Morse, 11 C. P. 589, distin- guished. Sec Sorenson r. Smart, 5 O. R. 678 378 Chirch r. Fenton,2SC. P. at p. 404, doubted l)y Wilson, C. J. See Deverell c. Coe, 11 O. R. 222 20 Citizens Insurance Co. r. Parsons, 7 App. Caa. 96, commented upon. See (Joring v. London Mutual Eire Insurance Co. 11 O. R. 82 85 Clark i: St. Catharines, 10 P. R. 205, dis- tinguished. See Clarke v. Rama Timber Transport Co. (Limited), 10 P. R. 384.. 132 : Clarke >'. Union Fire Ins. Co., Re, 10 O. R. 489; affirmed S. C, sub. nom. Re Union Fire Ins. Co., 13 A. R. 268, but re- versed by vSupreme Court 120 ('. Union Fire Ins. Co., 10 P. R. 313; affirmed S. C, 6 0. R. 223 351 Claxton i: Shibley, 9 0. R. 451 ; in part re- versed S. C. , 10 O. R. 295 23 Clouse I'. Canada Southern R. W. Co. , 4 0. R. 28 ; varied, S. C. 11 A. R. 287. . . . 575 Cobbett V. Warner, L. R. 2 Q. B. 108, fol- lowed. Sec Grand Junction Railway v. County of Peterboro', 10 P. R. 107 ... . 558 Colliar et aL v. McCallum— Monk Elec- tion (Ont.), 32 Q. B. 147, distinguished. See West Simcoe Election (Ont.) — Bed- ford V. Phelps, 1 E. C. 126 501 Collins r. Locke, 6 App. Cas. 674, distin- guished. See Schrader i*. Lillis, 10 0. R. .358 91 ] Columbine v. Penhall, 1 Sm. & G. 228, fol- lowed. See Thompson et al. v. Gore et al.,12 0. R. 651 294 Commercial Bank v. Cooke, 9 Chy. 524, fol- lowed. See Thompson et al. v. Gore et al, 120. R.651 204 Ca Conmce et a — ( 'anai men et S. C. 12 Consumers ( pr.iotice ■I Act. R. 148 Conway /■. ( R. 67:! : wav ''. I 12 A. i: Co.igravi' F!i( '•. .Stan- S. C., I Cottinirliini II. 704 : Court '•. W; S. ('., !t T'owell r. guished, ilinnian, Credit \'alley I!. W. ('( See Herr and Quel) I'unningliam (Ont.), 1 1 koka and Paget r. 1 Daines r. Har Huber r. ^ Uavaimey v. I guished. '. O. U. 691 Davev v. The 1 W. Co., 1 70, commc (irand Tru Davidson v. versed S. C son, 11 S. Uavis ('. Murra; Walton ?'. UetJear v. Smi ■See Foster Denison, Ex pa Carnegie v. ada, 5 O. I w. Deni See Willia Dickie v. Wood tion (Dom. See Count (Dom.)— G 255 Dillon r. Towns affirmed by Dixon V. Snarr, i re Jenkins Doe. d. Jones i' lowed. Se 0. R. 239 . SpaflFord lowed. See 215 PAOR. 416 nieil jest, .... 622 Vil- . R. but raed . ... 719 rl to >ley, . . . . 46 132, ! Re ... 481 1 fol- . R. . ... 400 . 421 CASES AFFIRMED, REVERSED, ETC, XXI. I re- 0. tin- lo. ^13; . 351 i 23 575 . 558 501 ] 91 ; fol- et .. 294i lol- 1 let . 2Q4 PAGE. Conmec et al. i'. Cftnadian Pacific R. W. Co. — Canadian Pacific I'. \V. Co, r. Con- nienetal., 11 I*. I{. 149, rever.scd. See S. C. 12 .'\. R. 744 684 Consumers ( ias Co. r, Kissock, 5 Q. R. .'i42, practice laid diiwn in, not altered liy (). .1. Act. See i)avie.i r. lliddjard, 10 P. R. 148 679 Conway r. Cimada Pacific R. W. Co., 7 O. F\. Cu'.l : iilliniicd ,S. C, sub. noni. (Jon- way '". Tlie Canadian Pacific 1!. \V. Co., 12 A. R. 708 r,8l Co.igrave ni'cwingand MaltingCo. of Toronto r. Stair.H, .') (). H. 18'.); in jiart reversed .S. C, 11 A. it. \r^G .300 Cottini.di:\in ('t al. i: Cottingliani et al., .T 0. I!. 704 ; rovcr.scd S. C, 11 -X. I!. 624. . 622 Court''. Walsh, 1 (). 1!. 167; a.'M-med, S. ('., A. R. 294 41 ( 'owell r. ( Jatoondie, 27 Reav. .')f8, distin- giiLslicd. See Ite Crowter — ("lowter c. Hinmaii, lOO. R. W.) 093 Credit N'alley Ft. W. Co. r. (Jreat Western U. W. Co., 4. A. i;. 532, distinguLshed. See Herring and Napanee. Taniworth and Qael)ec It. W. Co., 5 (). K. .S49 . . 577 ('unniiigliain '•. Hagar— Prescott Election (Out.), 1 E. C. 88, followed, ^ee .Mu3- koka and Parry .Sound Election (Ont.) — Paget r. Eaiuiuier, 1 E. C. 197 246 Daines r. Hartley, 3 Ex. 200, followed. See Ruber r. Crookall, 10 O. R. 475 174 Oavainii'y r. Rrownlee, 8 A. K. 355, distin- guished. See Healey r. Dolson et al., 8 (). K. 691 51 Davev v. The London and Southwestern R. W. Co., 11 Q. B. D. 215; 12 Q. R. I). 70, commented on. See Peart c. The Crand Trunk R. W. Co., 10 A. R. 191. 584 David.son r. Oliver et al. , 6 A. R. 595 ; re- versed S. C. , subnoni., Oliver r. David- son, 11 S. C. R. 166 745 Davis ('. Murray, 9 P. R. 222, followed. See Walton r. Wideman, 10 P. R. 228.... 530 Detiear v. Smith, 11 Cliy. 570, followed. See Foster v. Russell etal, 12 0. R. 136 659 Denison, E.x parte, 3 Ves. 552, followed in Carnegie v. The Federal Bank of Can- ada, 5 O. R. 418 67 V. Denison, 17 Chy. .306, doubted. See Williams v. Royet al, 9 0. R. 534 253 Dickie v. Woodworth — King's County Elec- tion (Dom.), 8 S. C. R. 192, followed. .See County of Gloucester Election, (Dom.) — Commeau v. Burns, 8 S. C. R. 255 664 Dillon V. Township of Raleigh, 13 A. R. 53; affirmed by the Supreme Court 219 Di.xon V. Snarr,6 P. R. 336, followed. See In re Jenkins v. Miller, 10 P. R. 95 200 Doe. d. Jones v. Davies, 4 B. & Ad. 55, fol- lowed. See Stobbart v. Guardhouse, 7 0. R. 239 732 Spafiford )'. Brown, 3 O. S. 95, fol- lowed. See Ross v. Malone ft al. , 7 0. R. 215 250 PAOE. Dominion Loan Society v. Darling, 5 A. R. 577. followed. See Fergiison r. Winsor, 11 (). R. 88 183 Donly r. Ilolniwood, 4 A. R. 555, distin- guished. See Whiting et al. r. Ilovey et.al, 13 A. 15. 7 31 Donovan, In re — Wilson r, Reattv, 29 ( 'hy. 2H0 ; reversed S. C. 9 A. R. '|49 650 )'. Herbert, 9 0. R. 89 ; afiirmed S. C. 12 A. K. 298 40 Dorland r. .Jones, 7 ()• R. 17; reversed It. C. 12 A. R. 543, anil judgment in appeal allirmed by tlie Supreme Court 80 Douglas i: Hutchison, 6(). H, 581 ; reversed S. C. 12 A. R. 110 .308 Dover, P^ast .and West (Corporation of the Township of), and the (.'orporition of the Township of (-'hatham, In re the arl)itr;ition between, 5 O. it. 32.') ; af- firmed S. C. sul> mun. Corporation of Dover ('. Corporation of Chatham. 11 A. R. 248 468 Drake v. Wigle, 22 C. P. 405, followed. See Saunders r. Hreakie, 5 O. R. (i()3 669 Dublin, Wicklow and We.xford R. W. Co. r. Slattcry, 3 Api>. Cas. 1155, commented on. ."^ee Peart /•. The Craud Trunk R. W. Co., 10 A. R. 191 584 Dundas r. Hamilton and Milton Road (.'om- pany, 19 Chy. 45^i, followed and ])re- ferred to McLaren r. l'aldwell,29 Chy. 438. See Mc(iarvey r. The Corporation of the Town of Strathroy, 6 O. It. 138. 631 Dungannon Election f'ase, 1 O'M. & H. 101, referred to and followed. See Prescott Election (Ont.)— Cunninghanj v, Hagar, 1 E. C. 88 488 Dunlap ('. Dunlap, 6 O. R. 141 ; in part reversed, S. C, sub nom. Dunlop v. Dunlop et al, 10 A. R. 670 274 Duval v. Casgr.ain — L' Islet Election (Dom.) 19 L. <'. .Jur. 16, followed. See Megan- tic Election (i)om.) Frechette v. (ioulet et al, 8 S. C. R, 169 502 Dyment v. Thompson, 9 0. R. 566; affirmed S. C, 12 A. R. 6.59 670 Dynes r. Bales. 25 Chy. 593, followed. See Weir !'. 'The Niagara Grape Company et al, 11 O. R. 700 599 Eastman v. Bank of Montreal, 10 O. R. 79; affirmed S. C, 23 C. L. .1. 235 33 Eberts et al v. Brooke, Re, 10 P. R. 257 ; reversed S. C, 11 P. R. 296 154 Eden r. Wilson, 4 H. L. C. 257, distin- guished. See In re Cleator, 10 0. R. 326 732 Edgar et ux. r. The Northern R. W. Co., 4 O. R. 201 ; affirmed S. C, 11 A. R. 452. 586 Elliott I'. Brown et al. , 2 0. R. 3.52 ; reversed S. C, 11 A. R. 228 .309 Elton V. Sheppard, 1 Bro. C. C. 532, fol- lowed. See Morrow v. Jenkins, 6 0, R. 693 738 Empire Gold Mining Co. v. Jones, 19 C. P. 245, followed. See Piatt v. The Grand Trunk R. W. Co. of Canada, 12 O. R. 119 162 u OS o z Urn o xxn. CASES AFFIRMED, REVERSED, ETC. PAGE. Essex ('. Ro.ihpster, 42 Q. B. RZ.I, comincnted on. Snc ('iirporatioii of Dover v. (-'or- IKinitifin of Cliiitliaiii, II A. K. 248 408 Eiu\:kn \V(,olloii Mills Co. r. Mohh, 11 S. 0. It. 01, (lisliiigui.shed. Sfu llowiinl r. LaiiciiMhiro Iii.s. Co., 11 S. C. H. 92 . . 331 Kxcli.inuf Hank r. .Vrwcll, 1!) C. I.. .). '.'.IH; (listiii^iuislicil. Sec McC.illum c. M(;C,il. Iiiiii, II I*, i;. 17!) 144 of Ciiiiadii I'. .S[)riiim.T ot al — S.inu! plaiiitillH r. liariics et al., 7 O, R. 3011; atliriiio.I S. C., 13 A. II. 3!)0 .... nti? 184 412 412 Farmer /•. 'I'lu' Ilamiltnii 'rrihiiiio (/"o., 3 (). r)3.S, i[istiii>,'iiiMiii;(l. .Si!u Macdonoll ('. .{(jliiiisoii, 12 A. R. 270 Fatilds et al. /'. Ilarpt^r ut al., 7 A. R. r)37 ; n,'ver,scMl S. C. 1 1 S. ( '. R. (;3!) FeariLside r. Flint, 22 Cli. D. r)7it, not fol- lowed. See MeDonaM i: KUiott, 12 O. i;. !)H Feather r. The (,tiiern, (i 15. & .S. 2!)3, ap- proved. .See Windsor and .Annapolis R. \V. Co. (1. The (^hieeii etal., 1 1 .App. C.is. 607 028 Ferguson /\ Winaor, IOC). R. 13; reversed ,S. C. II (). R. HH 183 Fit/gerald i\ McKinlay, 21 C. f,. .1.. 2i)», not followed. .See Regina ''. Klenip, 10 (). R. 143 363 FleniinL', Ro, 1 1 I". R. 272 ; reversal .S. C. II I'. R. 42(5 250 r. Livingstone, 6 P. R.63, followed. 8eeln re Jenkins c. Miller, 10 I'. R. 95. 200 Fleurv I'. Pringle, 2()Chy. 27, followed. .See Smart c. Soranson et al. 9 (). I{. 040 . . 205 Foott r. Rico, 4 (). It. 94, ainrmed. See Foott c, MuCcorge et al., 12 A. R. 351. 687 Forrester r. Cainphell, 17 Cliy. 379, a])- jjroved. See i'eterkin r. MeFarlane, 9 A. R. 429 598 Fo.\ r. Symington et al., 9 O. R. 767 ; re- versed S. C. 13 A. R. 296 201 Fraser ('. Thompson, 1 (iif. 49, distinguished. Thomp.son et al. i: (ioreet ah 12 O. R. 651 294 Friedrieli /•. Friedrich, 10 R. I{. 308 ; af- firmed with variation as to costs S. C. II). 64(i 645 Frietseh r. Winkler, 3 Chy. Chainh. 109, followed. .See Hull r. North British Canndian Investment Co. (Limited) et ah, 10 1'. R. 622 530 Froatenac, Corporation of the County of I'. The Corporation of the City of King- ston, 30 Q. B. 5S4, distinguish id. See The Corporation of the Township of Elderslie v. The Corporation of the Vil- lage of I'aialey, 8 0. R. 270 446 Fry I'. Milligan, 10 O. R, 509, followed. See Tomlinson v. Morris etal. 12 (). R. 311. 702 Fulton et al. c. Upper Canada Furniture Co., .32 C. P. 422; reversed S. C. 9 A. R. 211 90 ■Gage V. The Canada Puhlishing Co. et al., 6 O. R. 68 ; 11 A. R. 402 ; atfirnied S. C. sub nom. The Canada Publishing Co. v. Gage, 11 S. C. R. .306 674 PAGE. (iairdnerr. Cairdner, 1 O. R. 191, followed. See Re Cooke ami Dritlil, 8 O. K. .'>30. 73« Gallagher r. Mathie. 2 U. C. L. J. N. S. 73; followccl in In re Knight i\ The United Townships of Medora and Wood, 1 1 (). R i:tN 73 (Jumble ('. (Jummcrson, 9('hy. 199, approved of. .See ( '.imeron et al. i'. ( '.irter et al., 9 O. R. 42t) 623 (-ardner /•. Rarber, 18 .Jur. 508, considered and eonnnented on. See Cook r. Noble, I2 0. R. «1 74S (iarnett r. Hradley, 3 A[>p. I'as. 044, consi- dered and followed. .See Wilson r. Roberts, II P. |{. 412 191 Giblett V. Hobson, 3 Myl. & K. 517, fol- loweil. See .Murray et al. i\ Malloy et al. 10 0. R. 46 . . .' 752 Oillain r. Taylor, L. I!. 16 Ivj. 5S4, followed. See Lahatt /'. (!anipbell, 7 O. R. 2.")0 .. 751 (iordon etal. r. (lordon et al., 11 O. R. 611 ; upheld in part S. C., 12 0. R. .593 556 j (iraham r. f.ang, 10 (). R. 24S, not followed. See Baker *J. Atkinsim et al., II (). K. 7.35 19.-> ,., Williams, S (). R. 473; aflirnied S. C. , 9 O. R. 458 406 Grand .lunction R. W. Co. '•. The County of I'eterlxirough, (i A. R. 339; atliruied .S. C, 8.S. C. R. 76 593 firay ik Rail, 23 Chy. 3!t0, approved and fol- lowed. .See Core v. Tlie Ontario Loan ami Debenture Co. etal., 9 O. It. 326.. .599 V. 'The' (Corporation of the Town of Dundas, 11 O. R. 317; alfirnied .S. C, 13 A. R. .588 711 Green r. Duekett, 11 Q. B. D. 275, fol- lowed. See McKay etal. >.: Howard, 6 0. R. 135 519 Greenwood r. Verdon, 1 K. & -1. 74, distin- guished. See In re Cleator, 10 O. R. 326 732 Grip Printing and Publishing Co. of Toronto /•. Buttertield, 1 1 A. R. 145 ; reversed S. C, 11 .S. C. R. 291 512 Guest et al. v. Hunter et al, 2 0. R. 233; artirnied S. C, 10 A. R. 127 407 Hall V. Conder, 2 C. B. N. S. 22, eonnnented on. .See Verniilyea r. C.u,nniti', 12 O. R. 164 516 Hamilton Provident and Loan Society v. Campbell, 5 O. R. 371 ; aflirnied S. C, 12 A. R. 2,-)0 379 Haminill et al. r. Hamniill et al. 6 0. R. 681 ; affirmed S. C. 9 O, R. 530 727 Hardman r. (iuillet— West Northumberland Election (Dom.), 1 E. C. 32; reversed S. C, sub nom. West Northumberland Election (Dom.)— Henderson et al. v. Guillet, 10 .S. C. R. 635 491 Harris, Re, 24 Chy. 459, explained and fol- lowed. See Peel v. Peel, 11 P. R. 195. 668 V. Mudie, 7 A. R. 414, distinguished. .See M(!(Tregor c. Keiller et al, 9 O. R. 677 414 CASES AFFIRMED, REVERSED, ETC. .... 711 fol- nl, tJ 519 stin- ). 11. 73-2 onto rsrd 512 233 ; 407 iited 510 379 . K. 727 and •seJ and . V. 491 fol- 95. 668 ed. R. 414 '•. Hand-in-Hand Insurance Co., 9 O. R fil5 336 unter v. Carrick, 10 A. R. 449 ; affirnied S. C, 11 S. C. R. 300 512 utohinson n. Collier, 27 C. P. 249, followed. See Lyttle v. Broddy, 10 0. R. 550 23 doubted by Wilson, C. J. See Deverill v. Coe, 11 O. R. 222 . . 20 ynes it. Smith, 27 Chy. 150, referred to. See MoVean v. Tiflin, 13 A. R. 1 408 iglis !-. Beaty, 2 A. R. 453, followed. See In re Honsberger, Ilonsberger v. Kratz, 10 0. R. 521 257 ing V. Morrison, 27 C. P. 242 ; approved. See Badgley v. Dickson, 13 A. R. 484.. 15 PAO E Harvey i). Farnie, 5 P. R. I!i3 ; 6 P. D. 35 ; 8 App. Caa. 43, followed. See Magum V. Magurn, 11 A. R. 178 313 Hiirwich Klection Case, 3 O'M. & JI. 69, distinguished See West Sjineoe Klec- tion (Out.)- -Bedford v. Phelps, 1 K. C. 126 487 (lately et al. v. Merchants' Despatch '-'o., 4 (). R. 723; alHruied S. C, 12 A. R. 201 73 V. The Merchants' Desi)atch Trans- portation Co. et al., II P. R. 9; re- versed S. C, 12 A. R. 640 . 151 flayne v. Maltby, 3 T. H. 438, distinguished. Sec Verniilyea r. CannifT, 12 O. R. 164 516 Hendrie v. Neelon, 3 O. R. 603 ; aflirined S. C, 12 A. R. 41 Hepburn v. Park (it al, 6 (). R. 472; fol- lowed in llaytnan v. (hithhcrtson, 10 O. R. 443 62 icks V. Newport, &c.. Pi. W. Co., 4 15. & .S. 403, commented on. Sec Beckett v. (Jraud Trunk R. W. Co., 13 A. R. 174. 471 illianl r. Arthur. 10 P. R. 2S1, .i26. dis- tinguished. See Ross ('. Car.icallcn. 11 P. R. 104 .375 lldlihs et al. I'. The Northern Assurance Cf>., 8 O. R. 343; allirmc.l S. C, 11 A. R. 741 .3.32 V. The (Juardian Fire Ins. Co., 7 O. R. 634 ; alhrmcd S. C, 11 A. R. 741 . . .332 obson r. .Slierwooil, 4 Bcav. 184, followed. See Dcvcreu.x r. Kearns et al., 11 P. R. ir,2 .^06 (idge ('The Queen, 9 App. Ciis. 117, fol- lowed. See Suite /•. The Corporation of Three Rivers, II S. C. R. 25 .358 ohnes r. Reeve, 5 P. R. 58, followed. .Sec In re Knight v. The Unitc O. R. 7.39, followed. See Rol)inson et al r. Cook, 6 O. R. 500 . . 269 Kleopfer r. (Jardiuer, 10 0. R. 415 ; reversed on appeal 217 Kn.app u. Noyes, Amb. 662, considered and commented on. See Cook r. Noble, 12 0. R. 81 748 Knight ('. The United Townships of Medora and Wood, 11 0. R. 138; affirmed S. C, 14 A. R. 112 717 Kough V. Price, 27 C. P. 209, commented on. See Barber iK Macpherson, 13 A. R. 356 59 Lancey v. Merchants Bank, 10 0. R. 169 n ; followed in preference to Ivey v. Knox, 8 0. R. 6.35. See Burns et al. v. Mackay et al. 10 O. R. 167 285 Langtry et al. r. Dumoulin et al, 7 0. R. 499 ; varied as to costs S. C. , lb. 644 . . 75 XXIV. CASES AFFIRMED, REVERSED, ETC. PAOE. Lawlor v. Lawlor, 6 A. R. 312 ; leversed S. C, 10 S. C. R. 194 212 Lazarus v. Corporation of Toronto, 19 Q. H. 9, commented on and distinguished. See Landreville v. Gouin, C O. it. 455. . 469 Lefi, Re, 21 C. L. J. 154, followed. See Re Philbrick and Ontario and Quebec R. W. Co., 11 P. R. 373 580 r. McMahon, 2 0. R. 654 ; affirmed S. C, 11 A. K. 555 278 Leech v. William.son, 10 P. R. 226, followed. See Standard Ins. Co. r. Hughes, 11 P. R. 220 354 Leniay ;•. Chamberlain, 10 O. R. 638, fol- lowed. See 1'odd v. Dun ^^'iman & Co. etal., 12 O. R. 791 186 Lethieullieur v. Tracy, 3 Atk. 796, followed. See Stobhart r. Cuardhouse, 7 O. K. 239 732 Lett V. St. Lawrence and Ottawa R. W. Co. 11 A. R. 1 ; affirmed S. C, sub nom. ' St. Lawrence and Ottawa R. W. Co. i: Lett, 11 S. C. R. 422 471 Lewin et al. v. Wilson et al., 9 S. C. R. 637; reversed, S. C, 11 App. Cas. ()39 .... 412 Lincoln Election, (Out.) — Kykert r. Neelon, H. E. C, 391, commented on. See West Simcoo Election, (Ont.) — Bedford r. Phelps, I E. C. 126 487 L'lslet Election — Duval i\ Casgrain, 19 L. C dur. 16, followed. See Mogantic Election (Doni.) — Frechette r. Goulet et al., 8 S. C. R. : G9 502 London and Canada Loan Co. i\ Wallace, 8 O. R. 539, distinguished. See Gordon et al. 1'. Gordon et al., 1 1 0. R. 611 ... . 255 Londonderry Election Case, 1 O'M. & H. 27S, referred to and followed. See Prescott Election (Ont.)— Cunningham r. Hagar, n-:. C. 88 488 Long V. Hancock, 7 0. R. 154 ; affirmed S. C, 12 A. R. 137 291 Longeway i\ Mitchell, 17 Chy. 190, followed. See McDonald v. McCall, 12 A. R. 593 294 Lord Liflord v. Powys Keck, 30 Beav. 300, distinguished. See Morrison v. Mor- rison et al., 9 O. R. 223 727 Maberly fi. Turton, 14 Ves. 499, referred to. See Donald et al. v. Donald et al., 7 O. R. 669 746 Macara v. Gwynne, 3 C'hy. 310, referred to. SeeThomp.son v. Fairbairn, 10 P. R. 533 263 Macdonald o. Crombie et al., 10 A. R. 92; affirmed S. C, 1' S. C. R. 107 287 V. McCall et al., 9 0. R. 185; affirmed S. C. , 12 A. R. 593 294 !'. Worthington, 7 A. R. 531, varied. See S. C, sub nom. Worthing- ton r. Macdonald, 9 S. C. R. 327 .... 599 Macdoncll v. Roliinson, 8 O. R. 53; affirmed S. C. 12 A. R. 270 184 Macfie r. Pearson, 8 0. R. 745, distinguished. See Standard Ins. Co. v. Hughes, 11 P. R. 22 354 Maddison v. Alderson, 8 App. Cas. 467, fol- lowed. See Campbell c. McKerricher etal., 6 0. R. 85 620 PAGE Magurn v. Magurn, 3 0. R. 178 ; affirmed S. C. 11 A. R. 178 31o Masse r. Masse, 10 P. R. 574, not followed. See Herring r. Brooks, 11 P. R. 15. . . . 683| Massey Manufacturing Co., Re 11 O. R. 444 ; affirmed S. C, 13 A. R. 446 .... Ill Maude c. Lowley, L. R. 9 C. P. 165, fol- lowed. See West Simcoe Election (Out.)— Bedford r. Phelps, I E. C. 126 5(i McAndrew v. Barker, 7 Chy. D. 701, dis- cu.ssed. Sec Whiting v. Hovey, 12 A. U. 119 14: McCall ('. Woolf, (not reported) followed. See Whiting et al. i\ Hovey et al., 13 A. R. 7 6: McCallum r. (Jrand Trunk R. W. Co., 31 Q. K. .'")27, referred to and followed. See McMaster v. upon and Johnston ^IcNeeley r. versed S. lerchants B, 5 0. R. 12 Moffatt I C. R. 46. Heiiilen Silvei lowed. Se 0. R. 7.39, etal., 9 O, on. See H 492 .... lidland R. W. Co., 2 0. I 677 I ^I'^l '^*';3^''"" ^"'^ ^"'^^'^'^ ^- ^^'- ^''•' ro:aiilIer '•. Handil If' ^'- ^' '<^ '^■' .'■Ice Becme Jilloy r. Kerr affirmed S. ills '•. Scott, [ Smitli et a 160 itchell ('. Car tion, 1 0. K C. R. 126 . V. Gooii upon and ex Johnston et offatt V. S crate C, SO. R. 1 c. Provincial Insurance C'o., 6 P. R. 101 ; practice laid down in, not al- tered by O. J. Aiii. See Davies i'. Hub- bard, 10 P. R. 148 6? McCarter c. McCarter, 7 O. R. 243, distin- gushed. See He Crowter — Crowter v. Hiumaii, 10 O. R. 159 69 McCarthy r. Cooper et al., 8 0. R. 316; affirmed S. C, 12 A. R. 284 61S, McCaul V. Theal, 28 Chv. 48, followed. See ] Partlo V. Todd, 12 O. R. 171 07';! McCracken i\ Creswick, 8 P. R. 501, le- ferred to and distinguished. See Re Young c. Morden, P' P. R. 270 Wi (inaghan. Town McDonald *•. Forristal, 29 Chy. 300; affirm- \- -'«0, ovei ed S. C;.. sul). nom. Forristal v. McDon- | " ansboroug aid, 9 S. C. R. 12 61,iionck Election (i V. Elliott, 12 O. R. 98, distin- I V;'*!'"'"- .^. ", * ---'.--« distmguished timi (Ont.) — 126 onteith v. The Transportatic td.S. C, 8 A oorehouse v. Be versed S. C, arison i\ Moat, Lean v. Hust )rri8(>n v. Morri firmed S. C. 1 )iton I'. Hamilt( ciety, ;0 P. I P. H. 82 ixley I'. Canada P. R. 553; r 93 irdock, Re, 9 I followed. Sci R. 482 rphy II. Halpin tinguished. S 12 A. R. 270. rray et al. c. T C, 7 A. R. ( uom. Canada Murray, 8 S. guislied. See Powell v. Peck et al., 12 O. R. 492 -l.Vi ('. Murray, 2 O. R. .573, followed See McCrae i'. Backer, 9 O. R. 1 6!:^ et al., 3 O. R. 573 ; re- versed S. C, 11 A. IL 101 6: McEwan v. McLcod, 46 Q. B. 235, followed. See Shepherd v. Canadian Pacific R. W. Co., 11 P. R. 517 46 Q. B. 235 ; affirmed S. C. , 9 A. R. 239 McGregor v. (iaulin, 4 Q. B. 378, considered and distinguished. See Taylor v. Ma- grath, 10 O. R. 669 6S r. McNeil, .32 C. P. 538, com- mented on. See Johnston v. Shortreed etiil., 12 0. R. 633 6' McLaren v. Caldwell, 29 Chy. 4.38, not followed. See Mv,- larvey v. The Cor- j)oration of the Town of Strathroy, 6 O. R. 138 6 The Commercial Union Asaur I ance Co., 7 O. R. 64 ; affirmed S. C, 12 A. R. 279 McLennan v. Grange, 2 Dorion'e Q. B. R. 212 ; reversed S. C, aub nom. Grange V. McLennan, 9 S. C. R. 385 61 CASES AFFIRMED, REVERSED, ETC. XXV. 141'| PAGE firmed 3131 lowed. 15.... 683| 0. E. f5 .... HI 35, fol- lectiou C. 126 5(11; 1, dis- 12 A. Ilowed. al., 13 .,31Q. 1. See X. Co., 3., 6 P. not al- ii. Hub- , distin- iwter V. R. 311); FAOE. IcMaater v. Garland, 8 A. R. 1, observed upon and explained. See Brown et al. v. Johnston et al., 12 A. R. 190 76 IcXeeley v. McWilllanis, 9 O. R. 728 ; re- versed S. C, 13 A. R. 324 241 lerchanta Rank of Canada, r. Moffatt, T) O. R. 122; affirmed S. C, aul) nom. Moffatt r, the Merchants Bank, 11 S. C. R. 46 97 eiiden Silver Co. v. Lee, 2 (). R. 451, fol- lowed. See Kitching r. Hiuks et al.,6 0. R. 739, p. 60; Macilonald )•. McCall (!t al., 9 O. R. 185, p. 29.5. Connncnted on. See Hepbnrn v. I'ark et al., 6 O. R. 492 62 iliilland R. W. Co. /•. Ontario Rolling Mills ("o. , 2 O. R. 1 ; affirmed S. 0., 10 A. R. 077 616 ^ Mliller '•. Hamlin, 2 O. R. 103,-diatinguished. •^•^■1 See Becmer i-. Oliver, 10 A. R. 656. . . 218 ilillov r. Kerr, 43 Q. B. 78 ; 3 A. R. 35 ; affirmed S. C. , 8 S. (!. R. 474 .54 nils '•. Scott, 5 Q. B. 360, discussed. See Smith et al. r. firoey et al., 11 I'. R. 169 67- 69 ilitchell ('. Cameron — West Huron Elec- tion, 1 0. R. 433 ; reversed S. C, 8 S. C. R. 126 61' 1 V. Goodall, 5 A. R. 164 ; observed ed. See j [501, le- See Re affirm - lcUon- distin- al., 12 )llowed. 517 303 4rv;i 573 : re- illowed. R. W. iffirmed isidered Ma- 8, com- ortreed 8 , not e Cor- hroy, 6 Asaur- C, 12 . B. R. iGrange upon and explained. See Brown et al. v. 67r« Johtistoi' et al., 12 A. R. 190 76 offatt r. Scratch, 6 O. R. 564 ; reversed S. i C, S O. R. 147 ; 12 A. R. 157 19 19S (inagban. Township of, r. Dobbin, 2 C. L. •T. 260, overruled. See McMillan i'. Wansborough, 10 P. R. ,377 227 onck Election (Ont.) — Colliar et al. r. Me- Callum, 1 H. E. C. 154, .32 Q. B. 147, distinguished. See West Simcoo Elec- tion (Ont.)— Bedford v. Phelps, 1 E. C. 126 501 onteith v. The Merchants Despatch and Transportation Co., 1 (). R. 47 ; affirm- tlS. C, 8 A. R. 282 72 foorehouse v. Bostwick, ., O. R. 104 : re- versed S. C, 1 1 A. R. 76 .33 orison r. Moat, 9 Ha. 241, followed. See Lean v. Huston, 8 O. R. .521 518 ■arrison v. Morrison et al. 9 O. R. 223 ; af- •>* firmed S. C. 10 O. R. 303 727 arton r. Hamilton Provident and Loan So- ciety, ;0 P. R. 6.36 ; affirmed S. C, 11 65 P. K. 82 135 xley V. Canada Atlantic R. W. Co., 10 P. R. 553; reversed S. C., 11 P. R. 6" 93 229 idock. Re, 9 P. R. 1.32. explained and followed. See Re Smart Infants, 11 P. R. 482 .321 i|)hy It. H.-'lpin, Ir. R. 8 C. L. 127, dis- tinguished. SeeMacdonell v. Robinson, 6:1 12 A. R. 270. 184 krray et al. r. The Canada Central R. W, C, 7 A. R. 646 ; affirmed S. C, sub uom. Canada Central R. W. Co. v. Murray, 8 S. C. R. 313 118 PAGE. Murray v. McCallum, 8 A. R. 277, distin- gui8he\ Wells, 18 Chy. D. 477, followed. See McCiregor r. McDon.ald et al. , 11 P. R. 386 232 Parkes v. St. George, 10 A. R. 496, followed. See Whiting et al. r. Hovey et al., 13 A. R. 7, p. 61 ; Haymau v. Cuthbertson, 10 0. R. 443 64 2 0. R. 342, followed. See Kitching i-. Hicks et nV ,6 O. R. 739, p. 60. Reversed S. C, 10 A. R. 496 63 I m 3 ttS o X 1/1 XXVI. CASES AFFIRMED, REVERSED, ETC. PAGE. 675 59 Parkes r. St. (ienrge, 10 A. R. 496, distin- guishetl. See McKellar et al. v. Mc- (iibbon, 12 A. 11. 221 61 Parsons c. Queen's Ins. Co., 2 O. K. . 183, followed .See In re Lake .Superior Native Copper Co, (Limited), 9 O. It. 277 325 Ratti! r. Booth et al., 10 0. R. 351 ; reversed S. C. 11 O. R. 491 706 Redmond t: Redmond, 27 Q. B. 220, fol- lowed an. Lilley et al. 11 O. PAGE Regina v. Halpin, 12 O. li. 330, not follow- ed. See Regina v. Fee, 13 O. R. 590 . V. Klemp, 10 O. H. 143,Jonowed. See Lyman v. Eli, 10 0. R. 727 c. Malcolm, 2 O. R. 511, distinguish- ed. See Regina i\ McDonald, 12 0. R 3G; 3d V. McLai aifirmed S. C Kiidoch et al. 381 38 iedJen v. Tutop, 6 — V. Roddy, 41 Q. B. 291, followed. See Regina v. Sparhani, 8 O. R. 570 — V. St. Catharines Milling ar.d Lum ber Co., 10 O. R. 196 ; aifirmed S. C. 13 A. R. 148 ('. Stubbs, 7 Cox. C. C, 48, followed. See Itegina i-. Andrews, 12 O. R. 184. . V. Wallace, 4 O. R. 127, commented on. See Hegina r. i'.lliott, 12 0. R. 524, p. 364. Followed. See Hegina r. Sand- erson, 12 0. R. 178 ,1. Walsh, 2 O. R. 206, commented on. See Regina r. Elliott, 12 O. R. 524 Ileid V. Reid, 29 Chy. 272, commented on. See Dobbin v. Dobbin, 11 O. R. 534 . . Rhodes v. Moxliay, 10 W. R. 103, followed. See Eastman v. Bank of Montreal et al., 10 O. IL 79 3',! icribner v. Kinlocl See Whiting A. R. 7 . . . . .See Sorenson i 22 Selkirk Election ( 4 S. C. R. 49 Election (Don 11 s. C. R. 13: Richards v. Chamberlain, 25 Chy. 402, re- ferred to. See McVean r Tiilin, 13 A. R. 1 Ringrose v. Ringrose, 10 P. R. 299 ; aflirmed S. C, lb. 596 Robertson t: 1 >aganeau, 19 C. L. J. 19, fol- lowed. See Walton r. Widcman, 10 P. R. 228 5;j V. Thomas, 8 O. R. 20, overruled. See Whiting et al. v. Hovey et al., 13 1 556, distin- — Crowter v. R. 1.53 A. R Rodbar.l r. Cooke, 25 W. It. guished. See lie Crowter Hinman, 10 O. R. 159 Rody ('. Rody, 1 C. L. T. 1J6, overruled, See Devereux v. Kearns et al., 11 P. R 452 5(1 Rogers v. UUman, 21 Chy. 139 ; remarks of I'roudfoot, .)., followed. See Neil v. Park 10 P. R. 476 Rosenberger r. (irand Trunk R. W. Co., 8 A. H. 482; alHrmed S. C. sub nom. Craud Trunk R. W.Co. v. Rosenberger, 9 S. C. R. 312 Ross r. :\lalone, 7 0. R 215; aflirmed S. C. 7 0. R. 397 Ryan v. Devereux, 16 Q. B. 100, referred to. See In re Munsie, 10 P. R. 98. . . . Rykert o. Neelon— Lincoln Election (Ont.), H. E. C. 391, commented on. See West Simcoe Election (Ont.)- Bedford V. Phelps, 1 E. C. 126 4' Saxton r. I lodge, 37 Barb. (N. Y. ) 84, dis- tinguished. See Vermilyea o. Canniflf, 12 0. R. 164 Schibsby v. Westenholz, L. R. 6 Q. B. 155, followed. See McLean i". Shields et al., 9 0. It. 699 Scott V. The Corporation of Tilsonburg, 10 O. R. 19; aflirmed S. C, 13 A. R. 233 ieyniour v. Lynch S. C, 13 A. R ihort r. Ruttan, P. See Kitching r fichell's Case, L. guished. Sec Fire ami Marin 8 O. R. 92. ... iilsby V. The ( 'orpr R. 524, distinj al. r. Brockton Simpson v. Corbett S. C, 10 A. It. iiiclair v. The (Jn L. It. 5 C. P. 39 r. Peck et al., '. kelton !'. Thonipsf guished. See Prescott, 7 O Imith V. City of Loi 38 ; affirmed S. V. Dresser, L. 378, referred to etal, 9 0. R. 1 V. Merchants 1 15 ; reversed chaats Bank v. V. Neale, 2 C. ; on. See Vermil 164 V. The Port R. W. Co., 8 0. 12 A. R. 288... itammers v. O'Donol 161 ; affirmed S hoe v. Stammer tandard Fire Ins. ( versed in part S P 0. R. 204; revel Itark 7\ Fisher, 1 1 1 Ireland r. Pitel t. John r. Rykert, ed. See Powell 492 t. Thomas, Corpor The Credit Val 332 ; affirmed S itevens v. Barfoot. versed S. C, 13 Ittwart r. Rounds. See Mc(.'iinncll ) tilhvcll i: Keniiit reversed S. C. 1 CASES AFFIRMED, REVERSED, ETC. XXVii. PAOE. fjcribner v. Kinloch, 12 A. K. 367 ; followed. See Whiting et al. ?'. Hovey et ai., 13 A. K. 7 61 — — »'. McLaren et al., 2 0. R. 265; alfirmed S. C, sub nom. .Scribner i'. Kinlocli et al. , 12 A. R. 307 61 3sBedJeu v. Tutop, 6 T. R. 607, distinguished. •See Sorenson v. Smart, 5 0. R. 678. . . . 376 2iftelkirk Kluction (Doin. ) — Young o. Smith, 4 S. C. 1!. 494, followed. See Levis Election (Doni.)— Belleau v. Dessault, 11 S. C. R. 133 496 471 ; affirmed re- 10 5( C. Keyinour v. Lynch, 7 0. R S. C, 13 A. K. 525.... 155, al., !. 10 R. 394 ^liort i: Kuttan, 12 Q. R. 79, not followed. See Kitching v. Hicks et al., 6 O. I!. 739. 60 ^ichell's Case, L. R. 3 Chy. 119; di.stin- guished. See I'e Cole and tlie Canada Fire and Marine Ins. Co. — Close's Case, 8 O. E. 92 121 ^ilsby V. The Corporation of Dunville, 8 A. R. 524, distinguished. See Robins et al. r. Brockton, 7 0. R. 481 4G4 Simpson v. Corbett, 5 O. R. 377; atfirnied S. C, 10 A. R. 32 261 Sinclair c. 'I'he Great Eastern R. W. Co., L. R. 5 C. P. 391, followed. See Powell V. Peck et a!., 12 O. R. 492 436 Bkelton r. Thompson, 3 O. H. 11, distin- guished. See Bleakley v. Town of Prescott, 7 O. R. 261 720 Bniith V. City of London Ins. Co., 11 O. R. 38 ; affirmed S. C, 23 C. L. J. 235. . . . 333 V. Dresser, L. R. 1 Eq. 651 ; 35 Peav. 378, referred to. See Hughes v. Rees etal., 9 0. R. 108 692 V. Merchants Bank of Canada 8 A. R. 15 ; reversed S. C, sub nom. Mer- chants Bank v. Smith, 8 S. C. H. 512. . 55 V. Neale, 2 C. B. N. S. 67, commented on. See Vermilyea t>. Canniff, 12 O. R, 164 516 V. The Port Dover and Lake Huron R. W. Co., 8 O. R. 256 ; affirmed S. C, 12 A. R. 2S8 595 itammers v. O'Donohoe, 28 Chy. 207 ; 8 A.R. 161 ; affirmed S. C, sub nom. O'Dono- hoe V. Stammers, 11 S. C. R. 358 619 taudard Fire Ins. Co., Re, 7 0. R. 448 ; re- versed in part S. C. , 12 A. R. 486 . . 122, 123 Kelly's Case, 7 0. R. 204; reversed S. C, 12 A. R. 486 122 7;jitark v. Fisher, 1 1 P. R. 235, affirmed. See ^ Ireland r. Pitcher, 11 P. R. 403 143 ft. John V. Rykert, 10 S. C. R. 278, follow- ed. See Powell v. Peck et al., 12 O. R. 492 436 t. Thomas, Corjjoration of the City of, v. The Credit Valley R. W. Co., 7 O. R. 332 ; affirmed S. C, 12 A. R. 273 .... 659 tevens v. Barfoot. 9 O. R. 692, in part re- versed S. C, 13 A. R. 366 271 tfcwart ('. Rounds. 7 -A. R. 575, followed. Sie McC.inncll r, AMlkin.s, 13 A. R. 43S 371 lui'U r. Rennie et al., 7 O. R. 3.")5; reversed S. C. 11 A. R. 7'i4 475 i PAGK. Summers r. Summers, 5 O. R. 110, distin- guished. See Re Shaver, 6 O. R. 312 730 Sutherland v. Cox ct al. 6 O. R. 505 ; affirm- ed S. C, 13 A. R. 525 67 Sutton r. Sutton, 22 Chy. D. 511, not follow- ed. See MacDonald r. McDonald, IK). R. 187, p. 10 ; McDonald v. Elliott, 12 O. R. 98 412 Re II Q. R. 1). 377, distinguished. See Scraggo i'. Scragge, 11 !'. K. 218. . 650 Swansea v. Thomas, 10 Q. P>. D. 48, followed. See P.oultonotal. v. Blake, 12 0. R. 532 400 Symes r. Hughes, L. R. 9 Eq. 497, com- mented upon. See Mundell r. Tinkis etal., 6 0. R. 625 235 Synod ('. DeRlaquiere, 10 P. R. 1 1, followed. See Bank of British North Amerii'a v. Western Assurance Co., 11 P. R. 431 . . 150 Taylor v. Whittemore, 10 Q. B. 440, cited and apjiroved of. See Kitching ;•. Hicks et aL, 6 0. R. 739 '. 60 V. Moran, 24 N. R. Rep. 39; rever.sed S. C. lis. C. R. 347 340 Thames Navigation Co. J.imited) v. Reid et al.. 9 O. R. 754 ; reversed S. C. 13 A. R. 303 115 Thomas v. The Queen. L. R. 10 Q. B. 31, ap- proved. See Windsor and Annapolis R. W. Co. V. The Queen et al. 1 1 App. Cas. 607 528 Thompson et al. v. Canada Fire and Marine In.iurance Co. et al., 6 O. R. 291 ; re- versed S. C. 9 O. R. 284 115 Thomson v. South Eastern R. W. Co. 9 Q. B. D., 320, followed. See Miller i>. Con- federation LifeAssociation— Confedera- tion Life Association c. Miller, 11 P. R. 241 558 ('. Torrance et al. , 28 Chy. 253 ; affirmed S. C. 9 A. R. 1 725 Thornton r. (Jaiistock, 9 P. R. 535, followed. See Gould v. Beatty, 11 P. 1{. 329 189 Thurlow I'. Sidney, 1 O. R. 249, commented on. See Corporation of Dover v. Cor- poration of Chatham, 11 A. R. 248 468 Tiffany v. Clarke, 6 Chy. 474, remarked up- on. See Re Murray — Purdham v. Mur- ray, 9 A. R. 369 298 Tomlinson et al. v. The Northern R. W. Co. et al. ; affirmed as to costs S. C, 11 P. R. 526 139 Travis v. Travis, 8 O. R. 516 : affirmed S. C. 12 A. R. 438 298 Trinity (\)llege r. Hill, 2 O. R. 348 ; re- versed S. C. 10 A. R. 99 442 Truesdell v. Cook, 18 Chy. 532, followed. See Weir n. The Niagara Grape Co. et al., 1 1 O. R. 7tK) 599 Trust and Loan Co. v. Lawr.ison etal. fi A, R. 286 ; affirmed S. C. 10 S. C. R. 670. . . 196 TurnbuU I'. Forman, 15 Q. B. D. 234. fol- lowed. See Scott v. Wye et al. II I'. R. 93 369 Ui'iiMi I'iri' Insutaiici! Co. . 10 O. II. 4.'19; af- tiiniid S. C . 13 A. R. 2(;s, Imt r vcr-.d ly SuiU'ciue Court 120 S S o o SB o g XXVlll. CASES AFFIRMED, REVERSED, ETC. PAGE. Valin r. Langloia 3 S. C. R. 1, followed Ke Simnious and Dalton, 12 0. R. 505 154 VanEgmond v. The Corporation of Seaforth, 6 O. R. 59i), distinguished. 8ee Gray t>. The Corporation of the Town of Dun- das, 11 O. R. 317; ISA. K. 588 711 VansickL v. Vansickle, 1 O. R. 107 ; re- versed S. C. 9 A. R., 352 726 VanVelsor v. Hughson, 25 Q. B. 252 ; affirm- ed H. C. 9 A. R. 390 410 Vickers lixpress Co. v. The Canadian Pacific R. W. Co., 9 0. R. 251 ; affirmed S. C. 13 A. R. 210 591 Vogel V. The Grand Trunk U. W. Co. 10 A. R. 162 ; affirmed S. C. sub nom. The Grand Trunk R. VV. Co. e. Vogel, 11 S. C. H. 612 588 Waldie v. Burlington, 7 O. R. 192 ; affirmed See In re Waldie and The Corporation of the Village of Burlington, 13 A. R. 104 716 Walker v. McMullen, 6 S. C. R. 241, fol- lowed. .See Spears V. Walker, 11 S. C. R. 113 453 Wallis r. Andrews, 16 Chy. 6.37, followed. See McP:wan r. Milne 5 (.». ]{. 100. .. . 274 Ward r. Sniitli, 11 Price 19, not followed. See .Marrin r. (iraver, 8 0. R. 39 401 Warin et al. r. 1'he London and C^anadian Loan and Agency Co. etal.,7 O. 1{. 706, distinguished. See Ratti; i'. Booth, 10 O. R. 3.')1, p. 410; affirmed S. C, 12 A. R. 327 705 Watson V. Bradshaw, 6 A. R. 656, observed upon. See Travis v. Travis, 12 A. R. 438 298 Webb V. McArthur, 4 Chy. Chamb. 63, fol- lowed. See Dawson, r. Moffatt, 10 P. R. 366 652 Webster v. Leys, 10 P. U. 86 ; affirmed S. C, 5 0. H. 599 312 West V. The Corporation of the Village of Parkdale, 7 O. R. 270, 8 0. H. 59 ; re- versed S. C, 12 A. R. 393, but judg- ment of Court of Appeal reversed by the Privy Council 719 West Huron Election — Mitchell v. Cameron, 1 O. R. 433 ; reversed S. C, 8 S. C. R. 126 303 Northumberland Election (Dom.) — Hardman et al. v. Guillet, 1 E. C. 32 ; reversed S. C, sub nom. West Nor- thumberland Election (Dom.) — Hender- son et al. )'. Guillet, 10 S. C. R. 635 . . 491 PAOS, White V. Beemer, 10 P. R. 531, followed. See The Union Loan and Savings Co. V. Boomer, 10 P. R. 630 551 V. The Corporation of the Township of (iosfield, 2 0. R. 287 ; affirmed S. C, 10 A. R. 555 712 Whiteside v. Miller, 14 Chy. 393, comment- ed on and followed. .See Orford v. Or- ford, 6 0. R. 6 739 Whiting et al. v. Hovey et al., 9 0. R. 314 ; in part reversed S. C, 13 A. R. 7. . . .61, 6i Wicksteed v. Munro, 10 0. R. 238 ; affirmed S. C, 13 A. R. 486 346 Widmeyer v. McMahon et al, 32 C. P. 187, referrred to and distinguished. See Re Young V. Morden, 10 P. R. 276 199 Wilkins )'. Jodrell, 13 Chy. D. 564, consi- dered and connnented on. See Cook v. Noble, 12 O. R. 81 748 r. McLean, 10 O. R. 58 ; reversed S. C, 13 A. R. 467 151 Williams v. Crow, 10 A. R. 301, followed See McConnellr. Wilkins, 13 A. R. 438. V. Burgess, 10 A. & E. 499, con- 37 6U9 244 188 i i)'.'5 nip. Ian . sidered and followed. See Lumsden et al V. Davies, 1 1 A. R. 585 Willis V. Andrews, 16 Chy. 637, followed. See McEwan v. Milne, 5 O. R. 100. . . . W^ilson )'. Woods, 9 0. R. 687, disapproved of. See Moore v. Mitchell, 11 O. R. 21. Windsor and Annapolis R. W. Co. v. The Queen et al., 10 S. C. R. 335 ; affirmed S. C, 11 App. Cas. 607 Wood V. Silcock, 50 L. T. N. S. 251, distin- guished. See Robertson v. Patterson, 10 0. R. 267 65Si)nt. Wright V. The Incorporated Synod of the Diocese of Huron, 29 Chy. 348 ; reversed S. C, 9 A. R. 411, 11 S. C. R. 95 .... Yokham v. Hall,. 15 Chy. 335, considered and distinguished. See Claxton v. Shib- ley et al., 10 0. R. 295 Yost V. Adams, 8 0. R. 411; affirmed S. C, 13 A. R. 129 Young V. The Corporation of Leamington, 8 App. Cas. 577, distinguished. See Ro- bins et al. V. Brockton, 7 0. R. 481 . . V. Smith — Selkirk Election (Dom.), 4 S. C. H. 494, followed. See Levia Election (Dom.) — Belleau v. Dessault, 11 S. C. R. 133 741 J. Act . . . App. Cas R C. P. D. ... 0. L. J aL.T c. s. c Chy. \v. D Jon. Stat. N. B )oiu ^. C E. C. ... ). ).J.A. . ). R ). S E. I. . Q. . R B. D. . 46lHi!ue , Gr S. N. S. 4911, S. O. . , 0. R. . . I 0. L. J. I C. L. J. N. S PAGE.! ?ed. Co. ... 5511 ahip 71'2| ent- Or- .... 739| 314; , . .61, 62 •med .... 341) ABBREVIATIONS 187, eRe 199 748 onsi- ok V. srsed iwed. .438. , con- len et jwed. 0.... roved a. 21. \ The irmed iatin- :rsoD, ,f the 'crsed Idered Shib- C, ton, 8 Ro- ll .. jom. ), iLevia sault, 241 ISS \. J. Act Administration of Justice Act. ipp. Cas Appeal Cases, House of Lords and Privy Council. A.. R Appeal Reports (Ontario). C. P. D Common Pleas Division. L. J Canada Law Journal 15:l0. L. T Canada Law Times. t. S. C Consolidated Statutes of Canada. Chy Grant's Reports. 'hy. D Chancery Division, 6^' I'oi). Stat. N. B Consolidated Statutes of New Brunswick. )om Dominion of Canada. C Election Cases. J. O General Orders of the Court of Chancery. I. E. C "Ijdgins' Election Cases. mp Imjjerial Statutes. Han Manitoba. (j5S )nt. Ontario. ). J . A Ontario Judicature Act. -J ). R Ontario Reports. ). S Old Series Queen's Bench Reports. ,,, '. E. I Prince Edward Island. '. Q Province of Quebec. 741 \ R, Practice Reports. J. B. D Queen's Bench Division. 461 iue Province of Quebec. I. G Rules of Court. S. N. S Revised Statutes of Nova Scotia. 49#. S. Revised Statutes of Ontario, 1877. C Jame Case. 0. R Supreme Court Reports. J. 0. L. J Upper Canada Law Journal. J. 0. L. J. N. S Upper Canada Law Journal New Series. ADDENDA ET CORRIGENDA, Column. 60 — 7 lines from bottom, for 2 0. E. 45, read 2 0. R. 451. 64— 5 (( l( " and " to. 4 (1 11 " H. & W. " p. 297. 151— 2 f 1 II Omit Ex : 186—23 CI from top for 719 " 791. 196— 9 It from bottom, " A. B. " A. R. 210- 9 (t 1 1 " P. K. " 0. R. 222 17 {( 1 1 " Plamby " Palmby. 255— 4 <( from top, Insert affirmed in part. 12 0. K. 593. 297—15 tc It for 5 0. R. 516 read Schaffer v. Bumble, 5 0. R. 716 301-32 l< II Insert Jieqina v. Arscott, 9 0. R. 541, p. 633. 308—20 <( from bottom, for 411 read 441. 334—30 n from top, " 9 0. R. " 7 0. R. 371-24 u from bottom, for 12 A. R. " 13 A. R. 376- 9 l< from top, " 426 " 462. 420—20 II from bottom. " Quinlaji " Quillinan. 427—12 II from top, " Boothwkk ' ' Borthwick. 533—29 II II " 61 " 612. 0. R. 716. 33. DIGEST OF THE REPORTED CASES IN THE SUPERIOR COURTS OF ONTARIO, AND THE .SUPREME COURT OF CANADA, OONTAINKI) rs \(iM'MK.S r)-l-2 OXTARIO REPORTS. <) I.S AITHAL REPORTS. 10,11 PRACTICE REI'ORTS. S-ll SUPREME COURT REPORTS. VOL, 1 ELECTION CASES to Pa<;i: ;?,s2. ABANDONMENT. I. Of Action— .SVr (Josts. II. Of Seizi'kk— .SVc Smekikf. III. Of Siup— SVc Insuuanck. ABATEMENT. Of AcTKiN — SVc Action. ABSCONDING DEBTOR. I. Jddoment, 1. II. Attachment, L I. Ji;i)i:ment. After judgment lias ))eeii entered ap^ainst an alisoonding debtor pursuant to the finding of a (.'iiunty Court Judge on a reference under R. S. 0, (J. (is s. n, tile Niaster in Chambers has no jurisdiotion to set aside tlie judgment at the iiistance of another creditor who wishes to be let in to defend. H'(7/.i v. Carroll, 10 P. 1!. I4-J-Cliy. D. II. Attachment. (Joods were sold to the defendant by the plain- tiffs upon a live months' credit, and he refused |t'i accept a bill of exchange at live months for t\mv price, 'i'lie plaintiffs, before the expira- |ti(iu of the five months, issued a writ of attaeh- iiient against the defendant under the Abscond- jing Debtors Act, R. S. O. c. (iS, on an aliidavit that dcfcudaut was indebted to them for goods sold and delivered : Hehl, that to bring a case within the statute, thoi-e must be a debt duo and payable at the time of tin.' issuing of the writ, and that in this ease tlieri' \\as no sm:h debt as swoin to. The attachment was tlnrefore set aside. A'//A- if "/. v. /iariii:<, 10 P. R. '-'O.— Dal- ton, Miistir —Cameron. Seinble, that in proceedings of this kind the existence of the debt itself may be enijuired into. Ih. The mere fact that a writ of attaehnicnt against an absconding debtor is in the sheritl's hands does not bind the debtor's land, and ilie land is not bound until seizure. Jinlihison v. lirnfnt, 10 P. R. R>7.-Dalton, ilastrr. The slieriffs bailiff went to ainl entered upon thi! land of the debtor, on whieli his family re- sided, and tinding there no goods, did not leave any one in possession ; he said that he had no instructions lieyond the wai'rant to seize the hind ; he told the del)tor"s wife at the time tliat the land would be sold, but he did no other .act of seizure : — Held, that tiiere was no seizure, and that ti. fa. lands )ilaced in the sheriff's hands suli- se(|Uent to the writ of attacliment, were entitled to priority. //). On the '25tli of .January, 1884, seven warrants of attachment at the instance of different plain- tills were issued out of a Division Court against the goods of the defendant, an absconding debtm, and under them the l)ailiff seized certain goods, Subsecpiently and on the sanu,' clay a writ of at- tachment was issueil by the plaintiff in this suit against tiie defendant as an al)S('oiiding debtor, a'ld the goods seizecl by the bailiff were delivereil u]) by him to tht; sheriff ])ursuant to section 1(> of the Al)sconding Debtors Act, Five other Di ■ision Court attachments and oik; County z ACTION. ■Court attachment were afterwards i.ssued. Judg- meiits were recovered by all the attaching credi- tors ; executions were issued in the suits in the iJuperior and ('ouuty Courts ; and tlie clerk of the nivision Court furnished the sheriff with a certified inenioranduni of the juilgnients in that Court, hy virtue of which each creditor men- tioned in it was entitled fcjr tlie i)uriif)se of shar- ing in the proceeds to he treated as a plaintiff who had obtained judgment aud sued out execu- tion, ['ending this suit an order was made for the sale of the goods attached under the writ, and the goods were sold, and the proceeds of the sale paid into Court. I'pon a motion for distri- | Inition of the moneys in Court the plaintiff's claimed payment of their costs of suit in priority to all otlier claims. It was ordered t'lat ttie costs of issuing the phiintitl's writ, and tlie fees and chargi'S jiaiil to the sheriff for executing it should he paid first out of the fund, because these costs and charges were necessarily incurreil in seizing, recovering, and preserving the property, and that any fees which had been incurred in the J )i vision Court in issuing the warrants of attach- ment on the 'J.Tth .January, anil seizing the pro- perty and holding it till it was delivered to the sheriff should also be |)aid out of the fund, and also the ccsts of the order directing the sherifl' to sell, and the costs of tliis application, and that after payment of these charges the fund should be distributed ratal)ly among the creditors. JJar- iiwj Hal. v. Smith, 10 P. it. .SfiO.— Osier. On the 27th of September, 1884, the sheriff seized certain goods of the defendant under two writs of execution. On the :-iOth, a writ of at- tachment under the Absconding Debtors Act, was issued and placed in the sheriff's hands, under which he seized all the defendant's pro- fcrty, credits, and effects. On the 1st and 2nd October, two more writs of attachment were placed in his hands. On the 13th of October, the sheriff sold under the executions and realized enough to satisfy them ; the moneys remaining in his hands pending these proceedings. On the •20th of October, the sheriff received a certificate under the Creditors Relief Act, 1880, and an- other certificate on the 24th. On the 2()th he sold the balance of the defendant's proi)erty. dfcc, seized by him. After this various certificates and executions were received by him. On the 14th of October, he had made the entry in his book under the Creditors Relief Act. Xone of the attaching creditors had placeil executions in the sherifTs hands :--Held, that as the proceed- ings under the Absconding Debtors Act had been commenced prior to the sale of the goods, and therefore prior to the sheriff being required to ftct under the Creditors Helief Act, the hitter '« AlUilTK.VriON AND AWAIU). HI. Accounts befoke the Mastek. 1. (h')ii:ra/h/ — .S(ff Practice. 2. Murtijaije Suits— See Mortgage. I. Actions for an Account. See Harpir v. Cnlbprt et aL, 5 O. R. 152; Cowan V. Jiesnercr I't al., 5 O. R. ()24 ; Carnerjit V. Federal Bank of (\inadn, 8 O. II. 75 ; lie Klrl-patriek — Kirk/ialrick v. Sfi.reiii^on, 10 P. It. 4 ; L'ame7-on v. Blekford, 1 1 A. R. 52. I II. in. IV. V. VL VII. VIII. IX. X. XI. XII. ACTION. By and Acain.st whom Maintaixablk, 5. Notice of Action, 5. Cause of Action, 6. Cross Action, 6. By and Against Particular Person's. 1. Bji Pernont Aiji/rieved, 6. 2. Bi/ AMi(/nee of Chose hi Action — See Chose in Action. 3. By and Against other Persons — See The Several Titles. Parties — See Pleadin(;. Joinder of Causes of Action — Set Pleading. Disclaim SK, 0. Abatement of Action, G. Compromising or Setfling Actions, 7. Consolidating Actions— AVe Praci'ick. D1S.MISSING Actions— .Sf'« Pracfice. xih. suspens Felon XIV. Hestkap XN'. Rkvivin. and K 1. Bv AND Al Held, follow! I R. 4%, that til creditors, could iisiile a chattel 11 dclit was ineorri Vnthberlsiiu, 10 ( The defendant iiuiit in Toronti Dnllery for the lit the city, sucli risk and withou pniperty. Both intended that tli moved along Shei L'nder a liy-law n hiliitcd nuder a [ ing into, along, o written permissii this case no sucl ill the course of 1 line of the track c was upset, thus for two days, du sustained loss by ilaiiiage to their A., dissenting,) ti was liable for the J. A. , as the plaii superior right of street, a duty was per precautions v arising from obsti of the building ol removal, and whi removed along tl tfie traffic. Toi-oi DoUerii ft al., 12 , Where a person (itliers is disentitle cannot do so on be Dillon V. The Toiv ■'^ee Bcattij et al. U. N A returning offic lu action for pena ion Act, R. S. 0. 1 ()5.— Q. B. D. To a chief const? rrest. See AfcKc To constable in "mnding cattle. I ' (i25. fo Division Coi 'luss et al., 11 0. To registrar in an iiterior to his disrai W County 0/ Bruce ACTION. XI ir. XIV. XV SrspENsioN or AfTiONS ts Casks ofI As to raising oltjectinn to want of nntii-o of ac- Fki-onv, 7. I tion by jilea. See Vrrratt v. McAiilnii ft nl.. 't liKsTiiAiNiN.j AcT.0N8-.,mnnn,j., (i 6. 11. 4(M». 1;kvivini') Actions — See Scirb Facias' To insiiector of fisheries, luuU'r 31 Vict, c f!0. AND liEVlvoK. j Sec ['titnimj v. Slmdni'iii, 9 .S. C 11. 20(>. I. Hy AM) AdAINHT WHOM .MaINTAINAIW.K. Held, following Parkes c. St. Cicorge, 10 A. K. 400, that the plaintiffs not heing execution ' I crfilitors, could not maintain an aetion to set ' a.siile a cliattel mortgage on the ground that tiie (luht was ineorniotly stated therein. Ilijman v. ,CnthkrUou, 10 0. R. 443 -t^. H. D. | 'i'he defendant Jefiferys, owner of a frame tone- iiiiut in Toronto, agreed with Ids co-defendant l»rilh;ry for the removal thereof to another part (if tliecity, such removal to be made at L). 's own I risi< and without damage to that or any other hiriiperty. Both defeinlants contemplated and I intended that the house was to be drawn and j Imiived along Slierbourne street forsonjedistanue. ^ ] Under a bylaw of the city, all persons were pro- i hiliited under a penalty from moving any l)uild- ing into, along, or across any street without the ! I written permission of the board of works. In' I tills case no such permission was obtained, and liii tlie course of hauling the building along the lliuu of the track of the plaintiffs one of the sills ] Iwas upset, thus preventing its further removal ; I for two days, during which time the plaintiffs Isustained loss by the non-receipt of fares and t lilaniage to their pro]ierty ; — Held, (Burton, J. ' ].\., dissenting,) that Jefferys,as well as Dollery, | Iwas liable for the loss so occasioned. Per Osier, j A., as the plaintiffs had, by their charter, the ; [superior right of user and occupation of the ! street, a duty was cast upon J. to see that pro- j Ijier precautions were taken to prevent injury lari.-'ing from obstructing the railway by means lof the building of which he was procuring the jrunioval, and which could not from its size be Ironioved along the street without obstructing tilt; traffic. Toronto Street Railway Comi)anij v. \DoUery tt al., VI A. R. 679. Where a person suing in behalf of himself and (itliers is disentitled to sue on his own behalf, he ^;annot do so on behalf of the others interested. )Ulon V. The Toxmxhip of RaleUjk, 13 A. K. 53. See Beatty et al. v. Neelon et al. , 9 0. R. 385, III. CaISE <}V ArlloN. Where one brought action against the rcgi.s- tered owners of a certain vessel for the value nf goods supplied before they became sucli owiier.s, n(tt on the order of the defendants, but on tiie order of one O. (.'., between whom and the de- fendants no relation of agency was proved : — Held, that tlie plaintitf coiilil not recover : — Held also that it was open to the defendants to shew that their real interest was tli.at of nmrt- gagees. though ostensibly registered owners. 'I'he fact tliat the vessel got tiie l)enefit of tlie su]>- plies and necessaries did not make the registered owner liable. Xelsoii v. H'ii/lc ft al., S < >. R. 82. — Boyd. In an action under 40 Vict. c. 43, s. 47 (I*.), brought in Ontario against a shareholder tiiere resident, of a company whose liead office w.as in another province, where judgment had been obtained by tlie plaintiff against the company, and execution tliereon had been returned unsatis- fied : — Held, reversing the judgment of liose, .1., 7 O. R. 43."), that the cause of action against the shareiiolder was complete without the return un- satisfied of an execution against the conipany in Ontario, iirice v. Mitnro el nl., 1'2 A. R. 453. See also Brooks v. Ctivleii ct al., 8 O. R. 549; Cotinii'c el al. V. Canndian I'lici/ii- R. IV. C'l., II P. R. 149. See also .Subhead I., p. 5. II. Notice of Action. A returning officer is not entitled to notice in Jul action for penalties under the Ontario Elec- pin Act, R. S. O. c. 10. Walton v. Apjohn, 5 0. (J5.— Q. B. D. To ,a chief constable in an action for malicioua Jrrest. See McKay v. CummiiKjH, 6 0. R, 400, To constable in an action of replevin for im- bnunding cattle. See fbliottson v. Henry, 8 O. ti25. To Division Court bailifif. See Pardee v. p/aw el al., 11 O. R. 275. To registrar in an action to recover feesreceired Interior to his dismissal. See 'The Corporation of he County of Bruce v. McLay, 11 A. R. 477. IV. Cro.ss Action. For compensation fordefectinquality of goods sold. See Turner v. Dominion Iron and MeJal Co., 11 A. R. 315. V. Bv AND Aoain-st Particular Persons. 1. By Persons Af/f/rieved. See Verratt v. McAulay el al., 5 0. R. 313; Atkins V. Ptolemy, 5 0. R. 366. vni. Disclaimer. Costs after defendant di.sclaimes any interest in the result of a, suit. See Wani^ley v. tSin'iH- wood, 11 A. R. 439. IX. Abatement of Action. Scmble, that under O. J. Act rule 383, an ac- tion of seduction abates by the death of the plaintiff. See Udy v. Stewart, 10 O. R. 591. The plaintiffs, formerly owners of a line of steamers, brought this action against the defen- dants, who were formerly owners of another line of steamers, alleging that by certain miarepre- sent.itions on the part of the defendants as ta o ANIMALy. 8 ciiitiiin ooiitiiicts allegoil liy tlieiii to be held in ooiinuutiim with thuir hiif, thuy, tho pliiiiitiffs, wen; induced to enter into an uj^n;enient with the dul'eiidantH fur the .'unalgiuniition of the two lineH and tlie fornmtion, in conneetion \;'itii the tlefeiidants, of a joint atoc k company to own and run tlie same, and weelving dainaj^es in respect of 8Ueh misreprcMentations. One oi tiie defenihmts died after issue joined :- Hehl that nevertheless the action eoidd l)c pro<'eeded witii against the surviving defendants : — Meld, also, that tiie ac- tion was rigidly lirought liy the present plain- till, and not l>y the company. Jtid/tij i-l at, v, ^'a'luu tt uL, !) O. II. .SJS,").— Wilson. ,\. < '(iMI'liOMI?,!.' iK Sr/iTLiNii Amio.Ns. ADMISSIONS. .SVc Evidence. ADVERSE POSSESSION. See LiMiiATios ok AcTiONa. ADVERTISEMENT. S<;e Salk ok Land uy Ordek ok the Court. A mariicd woman can conii)r()nMse an action lirought in her own mmi'j against her husband. See I'ltn/oii v. I'-ov/-,//, b O. I!. 71!). Where certain creditors and the administrator were parties to an order in chandlers compronus- iug an action respecting certain assets of tiie j estate: — Held, that they were bound by such comprondsc. and could not injpeacli in tliis ad- j ndnistration jirocecding tiie validity of secuiities i which had been in (juestiou in tlie action compro- I niised. M iu.il' I Ills liaiih v. Mmitiil/i, 10 1'. R. 4()7. Notice given to compromise a criminal charge. See JM/ V. ///-A/. 7, 10 A. R. 544, i>. 50 | See also I/ti/l v. C'llillh it iil., 5 0. 1!. 478; FriiiUri/i v. Frhilrii-h, I'o 1'. R. .S()8 ; S. C. Ih. 546. AfiENT Sec PiJI.NClI'AI. AM> AOENT. AGREEMENT. •SVe L'ONTHACT. AIR. See Carter v. (JrauM, 10 O. K. 331. XIII. Si'si'KNsioN OF Actions in Cases of Fki.onv. To an action for assault and battery defendant pleaded that before action brought the plaintiff laid au infornuition before a magistrate, charging defendant with feloniously, &c. , wounding the plaiiititl', with intent to do him grievous bodily harm, thereby charging the defendant with felony : that defendant was brought before the magistrate, ami committed for trial, which had not yet taken place : that the subject of both the civil and criminal prosecution was the same, and that plaintill's civil riglitof action was suspended until the criminal charge was disposed of: — Held, on demurrei , plea good : and an order was accord- ingly made staying the civil action in the mean- time. Tuijlur V. JJci.'atluii^li, S V. R. 30!). — liose. ALIEN. Foreign trustee for infants, See lie Andreirs 11 i\ \\. 190. ALIMONY. See HusHAND and Wife. ADDING PARTIES. See Pi.r.AUiNG. ADMINISTRATION. I. Ok Estatks— .SVt' Exkcutohs and Admin- LSTKATOKS. II. Ok Insukaxce Co.mi'anv's Deposit — See l.NSUKANCB. ADMINISTRATOR. See EXECI-TOUS ANO AoillNI.STHATORS. AMENDMICNT. I. Of Convictions — See Inioxicatini, Liquors — Justices of TiiE Peace. II. Of Pleadings— .S'ee Pleading. III. Of Judgments— iS'ce Judgment. IV. Of Executions — See Execution. V. In Controverted Ei.kction Proceeh iNGs — See Parliamentaky Elections, ANIMALS. I. By-laws Regarding - Cokporation.s. ■See Municipal VIII. Fko.m I XVI. From In XVIII. FkomT.' II. Impounding— .S'ee Impounding Animals, III. Injury to— .S'ee Railways and Hailway Companies. Effect of Bills of Sale Act, R. S. O. c. 119, where animal conveyed by one of two owners. See Gunn v. Bunjens, 5 O. R. 085. p. 58. APPEAL. 10 ANNTITY. .SVr Wri.i,. Iiitfiist on. See Simrr i-t al. v. Ihtdfimch, !0O. i;. I3I. OURT. }1. A ndrew" XICATINC. A(.'K. ANTK NUPTIAL SK'ITLEMKNT. .Vcc FltAlDII.KM' CilNVKVAMK 'K(n'i:i,h LEt'^Io^s unicipal inimai.s.i UailwavI ). c. 119,1 owners.! I Al'l'KAI.. I. (Jknkhai.lv, il. II. Costs (iKNKHALr.Y, II. Ill, ,STAVINfirH(iCKI'.l)lS(;s rKNIiINC AlTKAl, — .SV" I'raiti(;k. ■ IV. Tit 1'hivyCouniii.— .Vcf-fKivvCouNni, Ari'KM.s. \'. To ,SUI"HKMK ColKT — .Vc<; Sui'KKMK CoruT OK Canada. VI. To CoIliT Ol' Al'l'KAI. — SV^ COUKT OF Al'l'KAI-. VII. To Divisional Cotht — .SV,'ivi'n dut^ iiotii'cs ol' M|i|i(iil, Imt tlirounh inadvcrti'iiru si't down tlu^ apprd on l)fh;df of the defendants the j^ravel road eoiiiiiaiiy only. Under tile eireiiiiistaiices .stited ill the jiidi^iueiit, the other defendants were idlo\ve(l ti> .set dow II their a|)|ie;d. Liirisy. '/'hi' TnHn'l SIri ' I Unfrl Itihul Cn. et III., 10 P. I!. l."».— Osier. When a deoi.sion of the Court of .Apiieal in Eni,dand is at v.-u'lanee witli oii(^ of the Court of Appeal in this province, the lutt<'r sli. - Prondfoot. Seiiible, where an appeal is iii.uie i'roiii the exer- ci.se of iliscretion by a judiit!, the court should not review such discretion. .\ rill v. Triterlli-rs Ins. Co., !» A. l;. .>t ; h'riilini V. /{ir/„n. As to reversing jiid^^inent of judye who tried the case on tindiiij; of fact. See .]/> ixli(UifK Hank of Vdiiiula V. Smith, S .S. C. K. "il'2. Peniarks upon reversing the thulings of a judge or jury upon a (lucstion of fact or of mixed law ami fact. Scvihinv v. Kinlueh !i.^iir/ ii lit., II r. It. .'(I. 'lilt! jiiilj^iiifiit iif tlii^ fiiiirt 'icliiw ill an clri'tioii cum; will nut Ui: rtivri'si'il nnlciN rlcaily wriuij,'. /trrl/iiir h'.l'i'iiiHi, lliiii n iw it nl. v, I'lil/ilii rl !( S. ( '. Ii. lO'J; Miiiiliiihii Kliiliiiii Miiiiiiiiii V. I)iiilii.< III,, !);{ ! /'(■' inn.ll CiiUi't f-lii' .slinlllil 1,'i't Ih'I' Lnstsnt' that a[ipL'al, liut as to tin: rtst nl tlii' suit, to .savi^ the expi'iisi; anil tiiiulilu nf appoltiniiiin-'iit, no costs HJioiilil liu j^ivt'ii or ri;ijt'ivuil. (luinjli v. lUficli, U O. l;. (>'.)',)-( hy. 1». ( 'ost.s nf apiiual aro not carrinl liy tlii' wnrils " cnsts of suit as ln'twi'di sojicitnr ami ilii'iit," liiit ri'iiiiirr tn 111' siii'iially iiniitinui'il in the nnltT fur ta.xatinii. A'c Muidiilli — Mi ri-liiiiil'< Iliiiil; \. Mimti'il/i, II I'. K. .Sdl. — linyil. WIkti; an ,i]HnllaMt nniittril to take an nhjec- tion in tliu cniiit hclou , tlu' Court of .\]ipi'al, on allowing' an ajijieal on that yrnuiiil, refusi'il him his costs of appeal, (lurri'tl \. ltiilicrl-<, 10 A. It. (iuO. AltlUTIiATFoN ANI» AWAIM*. I. Si I'.Ml.ssloN i)K KkKKKKSiK. I. H'liiil iiiiii/ III llifirml, \'2. ■_'. Iiil'miirv mull I' tin •/inliiiltili'i' A'/ iiinl V. L. .". Art. (tt) UiHirdlhj, VI. ())) A 11)11 III f ruin Aim I'll, \'^. II. Is I'Aurii I i.Ai; Casks. 1, I mil r fn.iiu'dni'i' /'o/iciV.i -.S'lc Issi i;- ANCE. 2, ('nihrtlii Minilri/iiilArt—Sii' Misiri- I'AI, CunroltATIiiNS. .'{. I'lnlrr Hiiiliriiij Arl.i—.S'ir liAll.WAV- AMI llAll.WAV Cli.Ml'ANIK.s. ill. AWAIlli. I. L'.irriitioii, 14. I\'. Skitim; ASlliK AMiSi avisi: I'i UN AwAitn. I. /'or /{iciptioit or /I'ljiiUioii nl' hJv'nliitri-, 14. 'J. Otiiir Cil.ir.-:, n, \'. C'llSTS, 1,'j. 1. Si iiMlssioN 111; lti;i.EUl':.S( E. 1. U'liat mail In: llifi'rriit. Hi^^ht to I'L'fur iiii indii'tniunt caiul all luattur.-, in dill'eruiiL'u liutweun |ilaintitl's ami ik'feudants in respect of a public roail, itc. See Thr Cur- /lorittkiii nf till' 'J'liinieiliij) nf //iiin/ir/nnl v. /jit t'liiiir, 13 A. 11. 315. Appeal ilisniisscil Mithniit ensts w licic the ineniliel'.s of the cniirt were all nf npiiiioii fnriliU'er- cnt reasons, that the o'ller lielow, was wroiiL;, Imt (lid not agree as to the extent it should he iiiodi- lieil or reversed. .Srlirmilir rl nl, v. /inuini/, 11 A. 1!. 073. An application for further .security fur costs of apjieal on the ground of tiie insolvency of one or more of the sureties should he made to the court appealed froni. Lunmdru v. JMivis, 10 1*. U. 10. — Hurton. A1TEA11A>XE. Srr PiiAcrirE. ArrOUTIONMKXT. Of Rent— 5'(c Laniimiki) and Tena.nt. See McCaslc'al v. McCaskill rl al., 12 0. 1\. 7S3. 2. Itrfrrcncc umhr tin' Jiid'iraturr Act and C. L, /'. Art. (a) Gruerally. Actions involving the investigation of Ioiil; accounts will not he referred as a matter m ciiurse. There is nothing to prevent parties agree- ing to a consent reference of all matters in dis- pute ill an action, even though involving investi- gation of long accounts. IVehster v, J/ui/jarl d a/.,y O. K. 27— C. I'. D. At the trial nf this action a compulsory order of reference was made, referring " all (juestioiis I ari.sing upon the pleadings in this action between ' the jiarties, iueluding all ipiestions of account, (if | any)," to an olHcial referee " for enquiry and re- port :" — Held, that this was a reference under I sec. 47 of the Judicature Act, and not one under sec. 48, and the referee having made a general ■ finding by his report, (set out in the statement,) the case was referred back to him to give speeilic I Hndings : — Held also, that objections to special j liudings in a report nmat be raised by notice of I ! motion. Luney v. t^.tneri/, 10 P. R. 285. — Itose. The master in chambers and local masters ami I county judges, acting under Rule 422 of tln,'| I Judicature Act, have no jurisdiction '-ider sees. l:! AIM'.ITUATION AND AWAHD." I t ^d C. L. of loii;; liatter „H,d .iwes. W/iilr V. /!>'fi,irr, 10 I'. II. Ml, - I'lcivd. Fi'lliiwod in Tin' I'nion l.nmi (tin/ Siir- f»7< C'liinixiiiy V. J!ii(iiiiir, 10 I'. I!. (i.'IO, — lione. An ap|"'al frmn tlic MastrrH urdcr directinj.; a riliri'iicc was trt'iittii as a .siilistantivc nioticm, 1 ;uiii a rifeit'lK'i' was diiccteil, iimh'r IJiile .'(•_'■'( of tljr Jiidiuaturi: Alt. 'J'ln t'liiun /.(Hill mill S(ir- iii'ji L'oiiipoini V. Hiiiiiiivr, 10 I'. It. (iHO. — ■Ito.'te. Ili'ld. that tlif Mi.itti'rs in i|iU'slion in tiii.s caHc ». re pro|Mr for a trial liy a judge, and that tiie I I liiintllt' was nut entitled to give prini.i faeie evi- I iliiHi' of a hreat'ii of coidraet. and then have a I telereiieeas to d.iniage.i. CooL'tdl. V. I'litlirton, I A, l;. l<4.'). (li) Aj>iii'idj'yiiiii Airtinl. The order of reference made liy the presiding J judge at tiiu assi/es was : " I'pon tin; eonsent I cif the parties, I do order ann the issues jnined in this action he re- Iferied, ' iVc. It was urged that the actinn hcing liiiie which involved the investigation of long' liKxiiUlits, the refereui'e must lie deemed to h.ive licen made compulsorily, .md the consent to h; ve llHell merely to the arbitrator named. It ap- llii.ared that, as a matti;r of fait, the learned Ijuilge exercised no discretion, Imt, on the parties luiiHouncing their emisent, he made the order ; l.'iiid at the time suggested tlie insertion of a clause J;iiitliiiri/ing an appeal, if such were desired, hut lit was not re((uired : — Held, that the reference Iwiis a eonsent reference, and there wa.s no appeal. WrUn- V. Jlii;ij,ni d (il., !l (.). II. "JT -('. I'. D. Held, alliriulng the judgment of the (,>uecn's I'.iMch (4() Q. 1'.; •-':)■>), that an appeal will lie I'riiin an award made' |iursuant to a consent re- Ifei-ence at nisi prius under seition L*0.')('. L. I', i lAft. MrKiroH V. MrLiwI, It A. i;. L':!!J. i 111 the case of a voluntary nisi priu.s subinis' Isioii to arliitratioii in which a right of appeal is •served l>y consent, the procedure is governed Ihy U. S' ()■ e. 50, ss. l!)l, !!)•_> and \'Xi, and the Jtiiiie for aiipcaling from the award runs from the jilate of tiling. ,Slcl';wan r. McLeod, 4(i (^>. K. I'J.'i"), ftjiloweil. S/ic/iliiril V. T/ic C(Uiit(/iiiii I'ltci- , 1/iV Jtailiray Conijtani/, II V. K. 517. —Boyd. ing that defendant's anid.avit.i disclimed new matter. 'I'hi.s the enurt lefiised, and dismissed the motion, the majnrity of the judges Imlding that plaintills were hound liy the order of tl:t^ judge, and ennld not proceed im the speiial pa- per until that older was rcscindeil, tin- remain- der of the cniii't refusing the applicition on the merits. Oil appeal to the Supreme I'mirt of Canada : --Meld, that the cause w,is lightly on the M]ieeial paper, and should have lieeii heard on the merits, and the cmirt should have exer- cised its discietimi as til the recelitinll or rejee tioii of .iHidavit.-. in ripl\-, .Strung, .)., dissenting on thegi'iiiind th.it such an appe.d shnulil not Id; heard. The Cnii. .Stat. .\. li. c. ;17, s. I7:t, ap plies as well to neitiuiis for new trials, where till' grounds iipiiii which the mntioii is li.iscd are suppnrted liy altid.'ivits, .-is in other I'ascs. it i iiiaUes no ilistiiictiiiii, Imt applies to all "motions founded on allidavits." Joia.i v. Tml;, II .S. (.'. Jt. 197. 111. AWAIMI. 1. K.n cut lull. 'I'liree arhitratiu's on the elose of the evidence agreed on their liiiding, ami a minute thereof was made in writing liy one nf them Imt not signed, and it w.is understood that nothing further was to lie done hut have a formal award drawn up and executed. Next d.iy the award was di.'ivn up and ejci^cuted hy two of the .irhitr.itorH in the prcsciu'e of each other, hut in the ahseiicc of the thiril arliitrator, who two days afti^rwards I'Xceutcd it in the presence of one of the other arliitrators. in an action on such award : Held, atlirming the jinlgineiit of Ilagarty, ('. .1.. that the award should have liccii executed liy the three arliitrators together, and tli.it it was invalid. Sait V. Nu(t, 5 U. K. 'law -(,'. 1". 1). The cause w\'s referred hy court of nisi prius arbitration, the award to be entered on the "i.stea as the venlict of a jury. After the award he appellants obtained a judge's order for a stay if proceedings, and for the cause to be entered 111 the motion jiaper of the eouit below, to ena- ile the appellants to move to set aside the award ', mil obtain a new trial, on the ground that the i iiliitrators had improperly taken evidence after I lie ease before them was closed. Before the term ; 11 which the motion was to be heard, ajipellants :] iliaiuloiied that portion of the order directing the ':uise to be placed on the motion paper, and gave t^ he usual notice of motion t .^et aside the award \ iiiil postea, and for a new trial, which motion, ly the practice of the court, would be entered ^ 111 the special paper. Defendant, in opposing ] iicli motion, took the preliminary objection that .i lie judge's order should be rescinded before 'i ilaiiititl's coulil proceed on their motion, and ] )teseuted affidavits on the merits, and plaintiH's eiiuested leave to read allidavits in reply, claini- W. ,Si;TllN(i AsiPK .\NI> .SrAVINc; I'UocK.KIMNiJ.-f ON Aw.VlU). I . /•%/' lii'ceplioH or I'rjir/ion uf Emhniy. I The improper reception or rejection of evidence liy an arbitrator, without any corru])t intent, does not anioiiiit to legal misconduct upon which \ an award will be set aside. Wrh^lcv v. Iliiijiiii rl \,'l at., !»0. It. 27 -C. P. I). 'I'lie evidence received consisted in statements made by the plaintitl" ante litem iiiotam in sub- stance contirmatory of his evidence before the arbitrator ; and the rejection con.sisted in tin; ar- bitrator's refusal to receive parts of the plaintilfs examination without the whole being received. I It did not appear that the arbitrator wa.s in- tlueiiced by the evidence objected tc and he made no rciiuest to be allowed to reconsider his award; — Held, that while the evidence objected to was not strictly admissible, the award could not be interfered with on such ground, and espe- cially so since 11. S. O. c. 50, s. "iS'.t, when it did i not appear to have occasioned any miscarriage on the merits. /l>. s I i 1^ 2. 01 /wr C'«.ir.s-. Communications with arbitrators after evi- dence closed. See lIi'rriiHj (tiid Niii>niire, Tilin- worth awl (Jiwb'C li. W. Co., 5 O. R. 349. ir, ASSESSMENT AND TAXES. 16 The aw.inl in this case luiving been directed to Ijc made witliin a year l)y an order of the Cbancci'v Division where tlie parties were liti- gating,' conueniing it :-- field, that the motion to set it aside or refer hack should have licen made in that division. In r<- Ihi ('orimnitiua of the T'lirimlii/i of Muskobi cnid tin- ('orjii>r(i/!o)i of the VilLujcofllramnhurxt, G (->. K. 3;")'.'. — Cameron. Tlic hill in this case was lileil to rectify an award made under a submission to arbitration between the parties, on the ground that tlie arbi- trators con!: a person may be, or to what country he is bouii'l by allegiance as a subject or citi/on, if he conii i to this province, and reside here, and contrai • debts, and i.s about to quit the country (that i- in fact to change his residence to a foreign coun- try, even though that countiy be his [dace of iLi micile) with the intent to defraud his creditors, li is subject to arrest as it jiriA'ails in tins proviuc. Kerstennniiv. MvLrlbm, 10 I'. U. l'_>--'.— Wilson. Held, that .i defendant cannot rely on a chaii.' of residence to a foreign country so as to avci i the law of arrest, to which ho was subject in tin- province at tlie time he incurred the debt upHi! which the action is brought, when that chaii.'< of residence has been ett'ected by a fraudulci flight to avoid arrest. /'/. i V. Costs. Where it was determined that neither party was entitled to the costs of arbitration uiiiler the statute ; liut tlie company, in order to take up the award, jiaid the whole of the arbitrators' fees:— Held, th.it a summary order could not be made to recoup the (.onipany for one half the fees out of the moneys payable to the land-owner, and such order was refused without jirejudice to an action for the same jiurpose. lie I'litllirh-k ami Ontario ami QiwUc 11. 11'. Co., 11 1'. R. 373.— Boyd. Costs of arbitration and award where proceed- ings stayed in :ui action on a policy i)ending arbi- tration as to amount of kiss. !See I/ini/tifi v. liriliah Aiiicricttii //i.s. Co., and lliojlits v. The London A. inn ranee ('i>., 7 O. R. 4()t") ; llnnla'.i v. The Hand in Hand Inn. Co., lb. GIG. A.'^.^AULT. Action fou-.sVc Tkkspass. ARBITRATOH. See AiuiiTHA'iioN and Awakd. akchitj:ct. Although an architect, eni])loyed by the owner, for rew.ard to superintend the construction of a house may, as between the latter and the con- tractor by the terma of their own agreement be in the position of an arbitrator and his decision as between them unimjieachablc except for fraud or (liahonesty. yet as between himself and his employer he is answerable for either negligence or unskilfulness in the performance of his duty as architect. Irving r. Morrison, 27 C. I'. '242 approved. liudyUy v. Diekson, 13 A. R. 41)4. ASSESSMENT AND TAXES. I. A ss I -.ss Mi; NT. 1. Inronie and l^ropertj of Corporatioi: 1(). 2. Lands. (a) UeneraUij, 17. (b) Crown LamU, IS. (c) Xon-Besidenl Lands, 10. 11. Avi'KAI, to COIKT OF REVISION AS; Col'NTY ik-DCK, 'JO. III. Coi.i.KcnoN OF Ratks, 21. IV. Sai.k of Land fok Taxes. 1. Proof of Taxes in Arrear, 21. 2. Warrant to Sell, 22. 3. Olijeetionn Cured hj Statute, 22. 4. Other Cases, 23. V. MiSCELI.ANKOl'S CASF..S, 24. VI. Taxf.s liF.rwKKN LandloroandTenant- See I.ANiii.uHi) and Tenant. VII. Exemptions uy Municipamtif.s — .^ Municipal ("oiu'oii.vnoNs. VIII. Covenant fou Ta>eh— .Vie Landlok. AND Tenant. I. Assessment. 1. Incotne and Property of Corporations. The plaintiff company was a foreign corpoii tiou with its head office in England, but earn ing on insurant iiirjicy office at eliii'c ffir Canac -lu-.uice premiu auciit of the co iio^i tr.'insaeted miller 4.S \'ict. ,is taxable iucrii the coni]iaiiy ai :i.''iit paiil taxes |i.iitly derived fi ivccived. and tli li'cii previously tiiii'. to the liea( the iiiuiii(,'ipality nicilt was made, 7'/.- ri:eni.r. Ins V. Tlir Ciirjniral 7(1. I!. 34:1.— F i!y sec. 2.") of t Art' of 1SS2 it t;i\e.-i It'vieil aiiil ^ ■'"liii sjiall be |-,-i :''; v.iJiie of the real I'iir^ of tile city -MUid est:ite of t itt'nicd and dec] leiits of the said ■:.|iital stock, iiii ^tlJ..•k compr.'iies, -■iatod in business x'vyiiig of a poll that " the whole levied U[)oii the w [lers-iiiial, and rata Jiiiiiniiit of the sa' tallied, provided rated above the ji tile s.ime Act prov ■ lilies and corpor; this Act, in like ii tile purjioses of si ir any agent, or in; paiiy or corporatio III he the owner ol :ipital stock and ; iHiatioii, and shal iiiiiceeded against ii'oiilcnt of the 1 assessed under the seiiuently l^iid the y ofiiee at Kingston, ( (ntariii, anil tliu lieail taxes \\\\ tn l,S7.'i, when he K't't tlie (iHice for C'anaihi at Montreal :-Uehl, that in- and did it return until lss:i, an d t' iiiurhooii len lonn( d at Kinj,'ston hy tlie his ]iart and tliat of A.'s h;id Ikh'u sold fur taxi -inance iirenuunis rec iii.'iiit of the eomiiany there, for insurance husi- hut he had reei'ivi'il no notic !■ of any t;i\es lieing transacted through liini as such agent, were, , in arrear. n an action li idcr 4:i Vict. (>. iahle at Kingsti y H. ind lus will' will) lail silhscnueli taxalile income or iiersonal ])roiiirty against that liotii p itly aeijuireil his title, it appearei d I )ecii assi'sse d iiii]iaiiy an I its d agent, altli dy in the 1.S7-. togetiier in IST.'i, were not assi-ssed at all lit liaid taxes on liis own illConll^ whicii was iu ISTt, Mere assessed toiiether th north rtly derived from eoiiuiiissious oil the preniiuius half of lot l.'{, one-tenth of an acre" in 1 ST."), t< veil, and the fact tjiat the preiniui iiaving gethe'- as th ith part of lot I.'V ill ISTti, in hieii ]irevioiisly sent liy the agent, after coUec- one p.ircel as "north part l.T' in 1S77, and that tiiir, to the head ollice in .Montreal, were not in | they had hecn sold for the taxes due on hoth the iiiuiiicipality of Kingston, when the assess- i parcc's down to IS77 and for those on the north iii'iit was made, did not make any diliereiice. - , jiiece for 1S7S : - Held, that the tax s.alo was in- 77" I'hiiiiix liisiiv. K. '.'.') 1. — Fergus liy see. '_»."> of the .'^aiiit .lolin City Assessment I |„ the year 1S7.") a lot of l.iud cont.ii Act of 1SS2 it is providrd that ill •-'00 rates aiK I p.itelited as ilot w;is assessed oil a chaii.'' to avni ! ■t in tlii-| 3l)t llpo!! b ehaiij.'! [uululeiit I tuxes levied and iinposcil upon the city ot .>. d. In was also so assessed, excep I part of the city to he taxed and upon the per- j titv of land was stated to he KM) instead mi' L'OO it that tin; ipi ic d estate of the iiihahitants and of ]n eiiied and declared to acres. lie wliole •JOG :icies was oucuiii iiv a L'lits lit the sail I city. ; iiihahitants or resi- 1 tuiiant who duly paid the taxes for each year in- • * And upon the j eluding 1S7'.>. On the nonresident roll flir lS7!t, jqiital stock, income, or other thing of joint | the east h.ilf of the lot appeared .as.scssed as 100 stu^k eonipa-iies, coriioratioiis, or iieisoiis asso- j ,.^,.res, v.ilue .■*S00. Uy reason theroof it w.as re- 1 .'iatcd in husiness. And after providing tor the , turned to tl I'onnty treasurer as in arrear tor luvyiiig of a poll tax, such seetimi goi'S on to .say \ th,. taxes of 1S7!», and a .sale th that "the whole residue to lie raised k'Vicil u[)ii 11 the whole ratalile p ;i>iiiial, and ratahle ii property, rea ill hi 1 and lercot 111,11 le Meld, the sale for taxes was iiiva lid : that tho ncoiiie anil real value, am '1 tl assessment on the resident roll for 1S71I, w.is of auiiiuiit of the same as nearly as can he ascer- th lO.N .\S d, jiroviiled that joint stock lall le whole stak lot 111 which the taxi e 111 statiiii th Well; pa le ipl.'uititv 111 1,1111 1 tl) not lie j mo acres not makiiit; such asses.snieiit less an as- itcd ahove the par value thereof." Sec. 'JS of i sessinent of the whole lot, while the error of ]mt- same Act provides that ".all joint stock com . |uiiics and corporations shall he assessed, under I this .\et, in like manner as individuals ; and for 1 the liiu'iioses of such assessment the president, ting the enst half on the not atlect the owner's rii; V. llewU, !t O. K. .St)4 ( Qiia're, whether nonresident roll couM it to the land. J. ].,., the i luvsiilciit of the hank of New llrnnswick, was i i~si ssi'd under the provisions of the ahove Act, I "U led and \icrsiiiial jiroiierty of the hank valued, | ' 11 the aggregate, at .s|, 100.000. The capital, ^st'iik of the hank at the time of such assessment, ] \v,is only .^1,000,000, and he oll'ered to pay the | t:i\i s nil that amount which was refused. It was ii'it disputed that the hank was possessed of real j and iii-rsonal property' of the assessed value. < 'n I'l ■ " (h) Crairn I.idhU. In 180S an order in council was p.assed for a grant of land to \V., the dauglitor of a IJ. I']. Loyalist, lii ISIS certain land w.is loi'ated there- under, and a patent issued therefor. In ISIO W. letitioned the ( Jovernor-in-Coiiiicil, stating that ipcal from the Supreme ('ourt of >. oil was jiassed, stating tli.'it if N.'.s tax title (7c dill li le did not rei|uire a p.itent. hut if not, th H. tl r, f f< 11 (). R.'2-22— Q. B. "'overnnien t h no power to ni.iUe a free j^rant i :f the land. In liSOS tlie Crown granteil the land to 11., who conveyed to the defendant; ()., I''., \>, )eni<' tne owner ol lour is lanils, anc slands caUed th d (' I ii .1 (). )n Ijeen sonietinic known .as ishuu The defci *.VH ».,")•_' on a tiic h.danee a mutual ins ulter payniei ( .\[itiises. F.O uas no ineiii l^tlie st;itute 1-1 ilding a liouse, iScc.. on it. < >. had jireNioUsly pi;i|i|,l||.il in rt H ,, , 1. 4. I ,. ,w I. -<•! ; i.1 i. crilied tiy that name eM, (reversing l.urton, .K. (. O. jv. i.(,4,)^ that ; ^.^j,,^.,, „:,,^^t ^.^^^^ ,„ Th 1 tl lati'iit. d was di H. under T)!* (leo. 111. e d *i ( IV. only Iv 1; mil 'ran te.l Ai- t "y the Crown were to 1 salt () assessment and sale, and as, under were uemaiKleu formation asses owed, and Jiaiil all til it j assessnr fniiii general ii le islands, and so assessr the eireunistanees, the laiiil s never r passed (Ult of il \esteua're also, whether the phiintill' had any claim against the Crown for the moneys paid at the tax sale ; at all events after the tax sale the parties dealt with the lan. c. ISO. the Cdunty treasurer is n .t bound by the roll, but can receive evidence ainl correct errors therein, and th.at in this case liv could have done so as ti> the " iiieorrei't descri|i- tion" and the "erroneous charge " based thereon. and tli.it the taxes were ]iaid. and " satisfactoiv proof" being made on these ]ioints, it woiiM have been his duty to stay the sale, and if so i; was the duty of the court to interfere and \n\A< the wrong. The Assessineut Act reeogni/.es tlu' possibility of evidence being given to evade ni neutralize entries upon the roll an•, !) (). U. :](i4, ]). IS. II. Al'I'KAI. Tl) CoriiT (II' I'vHVlSION .\NI) C()U.NT\ .IcncK. \Vhere an assc'ssmcnt roll was returned to tl;i county clerk's ollice on the 1st -May, but the cir- tilicate was neither signed nor sw(un to till 4tl; May, and additions were made to the roll hi terested persmi within two years tr.mi the time ,.^^.j^,, ^,^^ j^^ .^,„i ^^(, ^^ .^,„i ^i,^ „„ti^.^ ^, of sale. I he land in i,uestion wa.s in IS,!), as- ^,,^ .^j^^ assessed (slgce.!* informe.l them tli.t .se.ssed as non-resident. Defendant became the ; ^,^ ' ,„„^^ -.^ i,,,^;^,^ „f ^ ,,.1^,,^,, f„i,,t,,,,: owner 111 IS,S, and having come to resi.le there- , , ."^ f,,„„ the hitter date :-Hehl, thata notice o; on HI the former year, improperly panl these ^ .^•^,^.^, j^.^,, ,„^ ij.^,, ^^r.,y .^as in time, becau.. taxes to the collector instead of to the treasurer. ;^,\i ,.„,f^..^, „„t - ,i^,.iivered to the clerk com .ui.! thi isniissi'i ti.;.. b: May. as well as because that was not the grouiii taken before the (Joint of Itevision : — Held alsi had the Ciuirt of Itevisioii proceeded on thai ground tlieir decision would ha.-' been bindiii: oil the county judge. A inan.l. "Was then fore directeil to the county judge . , '-y the a|i peal. In ir Iftr Hon. (.'. W. Allan, 0. 11. 110 - Wilson. Seinblo, the county council having extendi; the time fur the return of the roll to the loth ": ai: :]iiiiuiii notes ]ii'alcil to the :t!ic .■issessnie iiiiuiity jud^ i]i|niiitill's thei iiiiiil hrimght illM. that th tliiial : and tl piiiahle *« 'Hii/Hii,;/ oj h'''ii III Luxil.u K Tl lol • III an actii i'Mrpuration o flucinhers of th iiii'easing the that townsl i;)'J.0OO over 1 liig taxes tliei'e iMcccdings of larts of a fraui coiis[)iraey She holding of t ,; iii/iiihers theret 3 iici'case the us ;?; ;viileiice was a» alilc value of tl hat the highest M.1,000. It wa I tcvs of the Coi ■; lection as coum tj i.iiiy's asses.-iiiiei *' riicured their e 1,' that if the mid be incrci Liet meeting v i' hringiiig on iltirniiug tlie de 0. n. 41);-.,] tl ■re not '^uliicie lurt of llevisi Nuid ; and that ;lit'r than by an iite of Halibui iiiKKliitn LiokI I hmk'qialUij of 1 withstaiiiling, put up and sold for the taxes of 1S7!), a trilling sum, on the .'Wtli December, 1SS2. 'Y\w tre.isuier's deed was dated l.-)tli February, 18S4 ; — Hehl, that the sale could not be siipfiort- ed, as the notice re(piired by s. 10!), that the land was liable to he sold for taxes, had not been given, and that such irregularity was not cured by sees. 1"),-) ;inil loli of the Act. Hutchinaon v. Collier, 27 C. 1". 240; Church v. Fenton, 28 C. J', at p. 404, doubted by Wilson, C. J. : Per Armour .). — The substantial compliance with the provisions of 1!. S. (». c. ISO, ss. 108-111 iiiclu- I June, although that date was disregarded by sive, is a condition jirocedent to the right to sell ' parties to this application, the applicant had ii non-resident land for taxes :— (^mere, per Wil- right the ))ower to appeal within fourteen day Boii, C. J., whether there was not evidence that from such date. //). III. C ^enible, where I' property, am -lies puts it on Oof 1!. S. O. c jilt to collect . 700 -C. P. IV. S.u. I. Proc "11 an applieati risers Act, It. I iisur to carry on vendor clainu lined to produ 20 21 ASSESSMENT AND TAXES. oo I, aiiil ciiu- iipropi-iets li'i^isliitiw. 212 -V. 11. :illeil tlu'iii ived (). l.y ])i'ovii)u.~l\ 1(1 was lb > H. ascn- i.l all tliil ^'I'licnil in so asse.sscii r tho y<'iii> 1 (HI ishiiiM roll, and it 111 ail actini! , was slicwi: taku as tiii- , and <». i~. I)., it WIS FlM'i^USoIl. laud assc.-s Assessmcr.t surer is ib.t viiluiice aiMl ;lns case \v •uct dL'scri]!- sud therLMJii, satist'actdi'v s, it wouli and if so it re and ninl cogiii/cs till' to evade m tieial books ir'inliiir-v'n. p. IS. Nl) COUN 1 ■■r Tlio ilefcudanta assessed the iilaintifl's for S.'i'JO. .")'2 oil ail alleged iiieonie of SilKJiOOO, lieing the lialance of moneys reeeived liy the i)laintitrs, ;i imitutil insuranee eonijiany, for [ireniiuins, &e., aitttci payment of the current year's 1 isses and '^txptiises. The plaintitls contended that there was no income for that the said lialance, under tiic statute relating to the iilaintills, was to he ss;i|ipli(il in reduction of the amounts on the jire ^^*iiiiiun notes for the ensuing year, and they a])- [laKd to the Court of lievision who coiitirmed t!ic assessment. Tliej- then apiiealed to the uiity judge who dismissed the appeal. The :i]ilaiiitill's then paid the amount under protest, v«iiid lirought thi.s action to recover same hack : — ,3iild. that the decision of the county judge was IliiKil ; and this action was therefore not maiii- ^aiiiahle. Tin Luiii/nH Miittud Fin: //i.ttiniiife UninliltlllJ of ('(t)l(lllll V. Till' t'lll'jIOrit/iliU llj'tllf ■^Uii of Luiiilon, 11 O. 1!. 5'Jl'. — I'roudfoot. '■■ In an action to restrain the defendants, the i.irpoiation of the township of iJysart and the jjutinhers of the (.,'ourt of Revision thereof, from '!|n(.riasiiig the assessment on the plaintill's lands ;|a that township to §'J4.S, 1 1 ,'1. 7."), an increase of ^^ID'J.OOO over the previous year, and from levy- :^ iii; ta.xes thereon, the plaintiU's alli'ged that the iiiicceilings of the Court of Jtevision were all larts of a fraudulent and improper arrangement iiiil conspiracy that had I leeii entered into heforc I, he holding of the said Court of Revision by the ; iiiiiihers thereof in conjunction with others, to ; iKivase the assessment of the plaintill's. No ■f vidence was adduced as to the actual or asses- i; iilile value of the lands, hut the plaintill's stated I hat the highest hid tliej' had had for them was Ml.OOO. it was further alleged that the nieni- Ic's of the Court of Revision had before their thrtiou as councillors, comiilained that the coni- j,iiiy's asses.'jinent was not high enough, and had irnriired their election partly through aniiounc- ''lat if they were elected the assessment Bi. (rued to ti/ l)ut the en 11 to till 4ti he roll hi e notice t- |l them tlitit liii fourteen It a notice "i |iie, becausK jlerk com- licates ami iiid that tlk ; disinisSLd the notii't |s from 1st |the grouii' Hehlah^ (1 on tlii leu biudiii Iwas till 1' the ;i: U. II' » "iilil he increased, and that they Inid held a liviit meeting with other persons and arranged fc'i liringi;;g on ajipeals to that Court : — Held, lliriniiig the decision of the Chancery Division, 0. It. 411;"),] that the matters complained of re not 'nillicient to atlcct the judgment of the luurt of Revision so as to render it void for and ; and that the plaintill's had no remedy ;her than by an appeal to the .Stipendary Magis- fate of Haliburton, under U. S. <>. c. G, s. 'J.S. umiillaii LionI (inil Emii/ralion Cuiii/nnin \. The 'mkipalUij of Di/mrl ft uL, \'2 A. 11. SO. validity of the tax sale than the treasurer's deed, and what might be obtaiiKMl from the Treasurer's books, returns, and wai lants, to which lie referre(l the purchaser: — Held, that the treasurer's lists of lands in arrear for taxes furnished to the w;ir- deii would l;e as valid evidence of the non-|iay- meiit as the treasurer's warrant to the slierill' un- der It! Vict. c. ISl', s. ■").■), was held to be by the judgment in Clarke >'. liuchanan, "J.") Cliy. r)M ; .111(1 that coupled with the warrant from the war- den they Would be concliisivf, and would atl'ord evidence of nonpayment up to the time of the sale : -Held, also, that the certiticate of the treasurer that the land was not redeemed is suf- ficient, and that .in allidavit cannot be re(|uiie(l from a jiublic oHici^r as to the proper disdiaige of his (liity. More evidence may be re (uiied as between a vendor and purchaser than in a suit where the owner or those claiming under him are parties. Jt'i- Mur/oii ouil Lot Xu. I! mi /'Inn \ii. 'iSD in the County of York, 7 O. It. 5i). — I'roudfoot. A sale in l.SSO of non-resident lands for taxes being impeached on the ground of no taxes being due, the original non-resident collector s rolls for IJS77, 1S7S, and 1S7!I. \\i;re produced, shewing amounts in arrear for each year respectively, which with interest aniouiited to the sum lor which the land was sold. The due preparation of the warrant to sell, and advertising in the Oliicial (iazette were also proved : — Held, sulli- cieiit proof of the taxes being due. Filyji riilil tt ul. V. ir(/.-fO« et aL, 8 0. 11. rw!)— Chy. 1). 2. U'an-intt In Sill. it was objected that the warrant was not ;id- dressed to any one. It recited that the treasurer had submitted to the warden the hind li.iblc to be stild, and proceeiled : "Now, I, tlie warden, c(jmmaiid you," i^c This was given to the treas- urer, was produced by him, and was acted on by him. The warrant purported to be drawn up liursuant to ',\'2 Vict. c. 3(i, s. I'2S: — Held, that the warrant was suliicieiit. The court will not he jiunetilious in adhering to the letter of die statute wh.ie there is rctisonable accuracy, and no possible lU'cjudicc resulting from literal in.ic- euracy in the frame of the warrant to sell. Fit:- ijrrald ft al. v. WiUuu rl nl., 8 U. R. 55'.)— Cliy. I>. Til. Coi.LIXTION OK RaTK.S. penible, where there is a suUicient distress on le property, and the municiiiality by its own Vhes puts it out of its power to distrain, sec. f(i oi i!. .S. (). o. 180, does not avail to give the lit to collect by action. Cni.^on v. Viitch, 9 K. 70(3 -C. v. b. O. extendi 1 the i5tli ' k-ded by al,' j'ant had «'■ Irteen day;] i\'. .S.ii.K 01' L.\si> Fi)K Taxe.s. I. I 'roof of Td.ii'.i in An ear. |'>ii an application under tlie \'endors and I'ur- liisers Act, il. S. O. c. 10!», to compel a pur- per to carry out a [lurchase, it was siiewn that ' vendor claimed through a tax stile, and had cliuud to produce any further evidence of the ', 3. Ohjidions Curnl hi/ Statute Certain lands, worth from .^(iOO to SSOO, h.iv- ing been sidd in November, IS8I , for ?;().0(i taxes, being one-eleventh in excess of taxes re.illy due, the sale was on this ground set aside by I'roud- foot,.!., who hehl that R. S. (». c. 180, s. 155, did not cure the error, and thtit the maxim de minimis noii curtit lex did not aiijily ; but, on an iippetil to the 1 >ivisional Court, the judgment of I'roudfoot, J., (0 (). i{. 451,) w:is reversed. I'er Boyd, C— In Vokliam r. Hall, 15 Chy. :«."), the excess of sttitute hibor tax was eletirly illegal, and its inipositi. It. 507. H. K. ASSICNKK. See ll\NKl;ll'T(V ami fNSdLVIStV. 1. ill- III. IV. V. VI. vri. VI 1 1. IX. ASSKJXMKNT. For iiir. liKNF.Krr of Creditoks — > liANKiui'nv AM) Insolve.ncy. F'r.Afini.KNT Assignment — *^Vp Fraip i.en r Convicvances. Ok (miods ANTi Ckattei.s— .SVr Bills Sale and Chattel MonniACJEs. Ok Chose in Ai tion — See Chose Action. Ok PdWEK — See Dowek. Ok .linoMKNTS— .SVc Jkimiment. — I'm'l t'll'AL AND Sl'RETV. Ok Lhases-~.SV(' Landlord and TenasJ Ok .Moktoaoes — See Mohtijaok. Ok 1'atents— .>V(> Patent ok Inventh Assignment of nioncy in court — solicit-: lien. See Vtiiiaii v. Joliiinlon, 11 P. H. 'J3I. ASSIZES. .See Court of Assize. ASSlTH.t NCE. See Insi'kanoe. ATTA 1. Who ma II. Wh.vt m III. KE,sTiTr I\'. EXAMINA 7. A judgment c Jug, liecome a rice of an attael i,Mr)iishee contiii iitor, the jmlgni jiiiouiit owin^y creditor, after IiiiiiHiiit h;is bvX'ii bua.ses to he a de |tvie. .). Act, ast( |lii! form of the is.- tlie ivgistrar, n; pe service upon tl riler, tliei'e was ai l"iii the garnishet ji[ieal t(j the ful iuarl el III. V. jl/ci jMcLeod contraot m^^v. for which lu pKii the frame wix ps wholly enclosei |)rk was all ijomji iOMiiipleted on or |S4. .\lcLcod wei |ived the tw. 1. Who mav AiTACii, "Jo. II. What may hf. AiTArnKD, 'i't. III, Hk.stiti rioN UK MuNF.v Paid Ovki:, '2(). IV. Kxamination ()|- .Jri>(;.Mi:NT Dkisiuh, '27. I. \Vlli) MAY AlTACII. A judgment creditdV dous not, luiiporly sjieaU- Jill', hccoinu 11 crc'dit( of tlio ^'iiriiishcu liy »vr- ici: of an attaching order u])oii tlio litti'i'. The ;,irnislioo continues to ho duhtor to hi.s own ori;- liitor, tlie judgment dohtor, until lie has paid the iiiiuiuiit owing into court, or to tiic attaching JLit'ditiir, after order .so to pay, or a levy of the kiiiouiit has l)>^en niaihi of hi.s proiicrty, wlien lie Kases to he a debtor as to the amount i)aid or jivied : — Held, therefore, tiiat tlie phuntiiV, wlio liiil ohtained a garnisliee order, garnisiiing :i Bt'l)t line from tlie IJrockville ,ind < >ttawa Kail- ,ay ("oMiiiany to W. S. , his judgment dehtor Juiui'li railway was now represented by the de- li'ii(laiits), w.is not a " creditor'' <>/ t!ie saiil com- );iiiv. liolding a bona tide claim against it with- •_'7 Vict. c. 57, s. 10. Wardrii/,!' v. Tlic Con- Vdiim /'ttcijic liitUivaij Conqtnnij it ul., 7 0. It. I.M.— Ferguson. n 11. ^N'llAT M.VV I'.i; Al TACHICI). The defendant, a member of the Legislative •ly, which he handed the Speaker of the Assenddy to wait the action I I tlie iroiiS(> with regard to the alleged bril)ery. he plaintill's, judgment creditors of the dufen- lut, is.sued an order attaching all ilelits due "111 ( '. to the defendants, claiming that the Diicy so handed to him became a debt jiayable i tlie defendant. The court, (ialt, .1., dissent- • ;.', without expressing any opinion on the ' eiits, directed an issue to be tried, under llule I), (). ,1. Act, as to the garnishee's indebtedness. : he form of the iasue was subse(iuently settled ,■ tiie registrar, namely whether ,'it the date of It' service upon the garnishee of the attaching er, tiiere was any debt due or accruing due 'imi the garnishee to the defendant, which on j leal to the full court was held sutlicient. 'uarl rl al. v. Mr Kim, S O. li. 7;i!»— C. P. D. , McLeod eontrajted with Mawkins to erect a mse, for which he was to receive i}\.'l'l'y : -S'iOO nil tile frame was ii|), .S^iOO wiien tlie building IS whcdly eiiidosed, and the balance when the ' I'k was all cmnpletcd. 'I'lie building was to completed on or betore the .Srd of Keliruary, 84. McLeod went on with the work and rt;- lived the two .sums of SI^OO, but he had luit com- ted the building on the WrA of l''eiiruary, 1SS4. K', however, continued the work till after that lie. and until after the 1st of April, when the ildiiig being stil! niUinished, Hawkins entered, ik possession, and comiileted it. McCraney >'iin, having a judgment ag.iiiist McLeod, ol - iii'il and s.Tved an attaching order and garnish- j suinruins on Hawkins, the garnisliee, on the i h of Mandi, IS84; Held, that at the time of j viiig the atta(^iiing order no debt existed ao- 1 ding to the terms of the contract, and no pro- 1 miso to pay had arisen by implication, and there- fore there was nothing upon which the attadiiiig order could operate. Mi < 'rain if ii ul. v. McLi'iid ft id., 10 P. II. r)3'.). -Dalton, ■^A^s^ /•— Rose. By the judgment in this action the defendant was fouMil to owe the i)laiutitl ?<115, and he was ordered to pay the plaintill's costs of action, less some interlocutory costs .iw.irdeil to tiie defen- dant. .Subse(|uent to judgment cert.iin creditors of the ]daintili' issued garnishment ])idcess from a I »i vision Court, attaching ail dtdits due from defendant to plaintilf. After the taxation (,," the plaintill's costs, but before tin; tax.ition of tiiis defendant's interlocutory costs, the dcfend.uit paid.SlI,") into tiie l»i/isioii ('ourt, having jire- viously paid another sum of .^jl.") to the sherill" to procure his release from arrest under a cajiias after judgment in this action : Held, that the costs coming to the iilaintilV coiistituti'(l an at- tachable delit bef(U'e taxation, which was iiouiid by the service of the garnishment process, and jiropeily )iay;ible into tlu^ l>ivisioii ( 'ourt after it was ascert lined by taxation ; and the defendant could not ol)ject that his set-otl' was not a.seer- tained at the iime of payment into court, as it was by his own default ; ,iiid therefore tiie money paid into court pursuant to the jittachineiit w.i^ to be taken to bo part of the money due to tlie lilaintill' for costs, and not as reiireseiitiiig the s.aiiie debt as the moiiev paid to the sherilf. Mur- l)h'r.soH V. Tisdiih. n'l". K. '.'(il. — lioyd. E. A. conveyed real and personal estate to one B. upon trust, to convert the same into nioins', and jiay debts, &c. , and as to any balance re- maining, upon trust to pay the same to II. .A., son of !•;. A., or if B. should see tit he might in- vest the same in the purchase of a homestead, and convey the same to 1!. A. in fee : — Held, re- versing the judgment of the County Court, that there was in- debt due from U. to R. A. which could be garnished liy the creditors of I! A. MrKliidt< ij w. Anii.itniiiij, 10 A. 1!. 17. Debts owing to the defendant from persons liv- ing in ( )iitario are " assets in ( )iitario which may be rendered liable to the judgment,'' within tlio meaning of Rule 4,") (e), (). j. Act. I'lirrii v. .S/(Uri;'ll 1>. 1!. ,-)07.- Itose. Held, reversing the judgment of the court Ik;- low, that under the garnishee clause's of the C. L. I'. Art of Prince I'^dward Islaml traiiscri))ts of .ss. (iO ;in Ovkh. An apfieal from the onhir of a county juilgo directing payment over to the plaintitl by a gir- iiishee of moneys in his hands was .illowed by the court in a former judgment (10. A. R. 17) It appeared that the gariii.-ihel' had paid over the moneys in his hands befcue tin; a|ipeil was in- itiated : Held, that the eertiticate of the forniei" judgment properly contained an award of resti- tution of the money so paiil, w liicli the court had authority to make under 4.') N'ict.c. (»,(». Mr Kind- .sey v. Annslroiij, II P. R. 200— C. of A. I O i 2 ; o 3 UNIVERSITY OF WINDSOR UBRARY 27 AUCTION. 2s IV'. KxAMiNATioN OF JuDc.MKNT Debtor. A K.itisf.'utory answer, ujioii examination as a jii„l:.s V. Slrauit, 10 P. li. LSI. -Wil- son. The defendant in his examin.ition said he had no real estate nor any personal estate. In the fall of 188'2 lie h.ad about .f.'WO in money ; he paid his Kills with it, and lost the balance at the horse r.aeesat I'.utFalo. Since the fall of IHWi he has been in his f.ather's emjiloy ; he gets nothing but his lioanl and clotliing. When asked as to the conveyance of the *^annery lot to his father, which he held in trust for him, he said : "I coidd not say what tiie consider.ation was, or whether i was paid anything or not ; 1 forget ; I can"t thiidv of it, I forget whether 1 received any money for that then or since ; it was before judgment. * * My father wanted me to get it fixed" ; — Held, that the defendant, in liis examination, h.id disclosed his property and his trans.actions respecting the same ; ami had not concealed or made away with his pro[ierty in order to defeat or (Icfrauil his creditors. //'. > , however, that the defendant had not ■ VLi . fullj' or tnithfully with respect to the (, ^; <:, I'jceiving or not receiving money or other consideration ; and that the answers he had given rest)ecting \.',» transactions with his projierty were not s: *■ ' 'tory by reason of the illegal and \\ ngfiii msposition of it by gambling or horse racing and otl'orwise. //'. Defendant w.'is allowed to .aj)pear for further examination , and onlered to ]iay tlie costs of the first examination and this application forthwith. lb. personal service upon the defendant of the Ma- ter's direction and of the notice of motion t' commit was not necessary, /{r /larnden, Hun ilnix. llarmlen, II I*. 11. 35.~Hoyd. •Against sherilT for disobedience of interpleaiit ; order. See Mac/fan \. Anthoini ; Slater v. ,1/ l/iotn/, (iO. K. .S.SO. For disobedience of injunction. See Gra^'!: ,. Cartrr, (i U. R. 584. I A judge of a County Court, acting under th authority of 48 X'ict. e. '-.'(J, s. (> (Out.), remove . ail assignee for creditors and substituted .anotiit- I assignee. The first assignee, .as alleged, retust i to deliver over the keys of the place of bu.si)ns- of the insolvent to the second assignee, and tlit judge m.ade an order for the issue of a writ of at t.achment against the first assignee for coiitem|ii I — Held, that the juilge, in acting under the st;i- I tute, was not exennsing the powers of the Coun- ty Court, but an independent statutory juri.v diction as persona designata, and had therefor^ no power to direct the issue of a writ of attach- nient ; and prohibition w.as ordered. Re /'(C iimttv, II I', i;. 403.— Wilson. ATTORNEY. Sf-e Attorn kv-Cknku.^i..— Solicitor. 29 Sec A I l,ial>ilitj' of ri "itii lii'i'ij V. (Ini nt ATTACHMENT OF THE GOODS OF DEBTORS. Si-e AiiscoNDiNti Debtor. ATTACHMENT OF THE PERSON. Vow Contempt ok Proces.'^ or Order of the Court. Attachment .against the president of a com- pany for disobedience of a writ of mandamus was refused because it appeared that he could not, by himself and without a majority of the board of directors, perform the .act required by the writ and the other directors had not been served. Deiiiorcst v. Midlaml liaihcay Company, 10 P. R. 8-2.— Wilson. Attachment not secpiestration is the proper •remedy for disobeying a mandamus, lb. (il. O. Chy. -01 and 'JUG are still in force in the <'hancery iJivision. I'lxin a motion to commit the defendant (an adniinistnitor) feu- neglecting .to biiiig in his accounts before a d.ay named pur- ' suant to the direction of the Master ; — Held, that ; ATTORNEY-G KNER AL. Senible, tliat on an application to questi'i, patent under the Patent Act of 1872, tlie int- vention of the attorney-general is not essem: In re Tlu Bill TdejihoiH Coiiijiaiiij, 9 (.). R. ." — C. P. U. The (juestions in this case relating to the li: Insur.ance Company .-^cts, so far as raised, werr held not to be of such a constitutional charaot .as to require notice to the .attorney-general of tl:; province, or the minister of justice of the il- minion. Goriiiy v. T/w London AfiUual F'm- lu' Co., 11 0. R. 82.— O'Connor. The attorney-general ordered to be madt; I party to a ease involving the title to a ro.a(hvii I in Older to give protection to the Dominion 3e-m. ]J. I), Held, reversing t lui't. that proceei kiiitained on a wri 29 BANKRUPTCY AND INSOLVENCY. 30 AWARD. See AllBITRATION ANDAwAI!!). tuniiil)lf iniiiiudiatuly after tlie execiitidii tliorc- j of. For such [)ur{)((sii it is nccossary that the I writ siioiild iiu retiirnal)lo on a (hiy certain. , (Ffagartv, ('. .1. ()., disseiitiiig.) /'r<"-i,ir v. i M(t<-hir.i>' it ((/., II A. It. 4Sti. BAGf;A(;i:. i.iahility of railway cnnipaiiy for loss of. See i "milifrij \\ (Inuid 'J'ntiik I'ailinn/ Co., i'.i A. It. | HAIL. .\ judge's order to hold to bail in the sum I S.SOO, was f)litaiiio(l in an action of tort, in limli the jtlaintilf swore to a cause of action for 'idO. The l)ail piece was in the usuil form, tatiug ; " liail for .S.SOO hy order of, '\tc. The itiii;nizaiiee of bail was in the words of the t;Uiite, namely : " ^'ou," the bail '-do jointly I severally undertake that if the defendant II the original action shall be condemned, then K- shall pay the costs and condenniation money, render himself to the custody of the sheritl, " ,. "or you will do so for him." Itule S!) of ;'. T. 1S.")(), i)rovi, ifuiit the amount mentioned in the .ludge's ; and therefore the liail in this ac;tion were iiiiy liable for the .'?.S()() the amount mentioned li tlie •ludge's order, and the costs of the original till iif tiiis action. 'J'lie reasonal)leiiess of having lie recognizance express its meaning in simple Inguage, instead of adhering to a form of words llapted to meet a diH'ereiit practice, suggested. takr V. Jackson et uL, 9 O. 11. (>(il — C. P. I). The plaintiffs issued a writ of capias, irregular Bilcoiitradict(U'y in its provisions. It purported I lie issued in a pending action in which judg- t'lithad been reeovoreil, and claimed the amount [the judgment and further costs. It reipiired ke defeiulant to put in special bail, which by its Icogiiizance meant an undertaking by sureties pay the condemnation money, in which the tfeiidant " shall be condemned in this action." he claim indorsed upon the writ and the re- hireinent as to special bail were alone a]i])licable la pending action on the judgment. The bail I the sheriff undertook that special bail would put in, and special bail was put in : — Held, I'lt the defendant and his sureties had, by put- in special bail, treated the writ as one issued I an action on the judgment, and had placed the Ifendant in the same position as if he had ap- ared in such action, and a statement of claim llivered after such an appearance was there- Te regular : -Semble, sect.ion 34 of the ('. L. 1'. fct.(lt. S. (t. c. ilO, sec. .Si),) lias not been re- liiled by rule i"), O. J. Act. Cocltrani' Muna- Y>»i''iii'i Compitny v. Lamoii, 11 1'. It. 102. — he-V. ]}. I). lold, reversing the judgment of the County lurt, that proceedings to tix bail cannot be Viitaiiied on a writ of ca. sa. which is made re- I5AILMENT. The plaintitf had been forsonietimc a guest of the defendant, an inii-kcepe.r, and on leaving the inn, after paying his bill, was allowed to leave a box containing some jiapers and books alleged to be of value to the plaintilf, in the room of the inn used for storing baggage, itc, the plaintiff intended to take it away the day following, but owing to illness lie did not call for it lor several weeks afterwards, when it w.is discovered that the box was lost, tiiere was no otiier evi ii t'liiiTv i>K Costs. — .Vtc (.'(is'i> i:ivK Sk- 1. AsslCNMKNT KCil' I'lIK IJK.NKKIT UK (JliKlJlTOHS. 1. Jhi'd. ;i) /J.iiriiliim nj, llt'lil ifVtr.-.iiiL,' till! decision of I't-rguson, .1., !)(). l;. ;{14, (liurton, J. A., ili.ssfiitiiig), that the (liriictor.s of uii iiiioiiior.itiil tiailin<,' Loinpiuiy liail jiowcr to autlioii/i' tlic exci-'iitioii of an assi;;ii- uuM.t for thf Ipiiulit of creditors of tliu i-oiniiaiiy, i and that till' defendants, exeeution creditors, as | Htranj^ers to the eonipany could not oliject that the authority of the shareholders was not given or tliat tiiey had not r..tilied the deed: J>only r. llolinwooil, 4 A. 1!. ;").")',, distinuuislied. Per Burton, .J. A., that the directors could not do so without the sanction of the siiareliolders. H7o7- /'(/;/ 1/ ((I. V. //(trt'i/ if til., \:i A. 1!. 7. Atlirnied hy Suiirenie Court, not yet reportt'd. (h) Ol/irr C(/M-.,-. The assigliinent was executed by one of the ]iartiicrs for a cn-ijartiier under verlial instruc- tions from the co-]iartner before leaving for I'lng- land to sign foi' him, if an assignment liecmii; necessary ; an. ]). An assignment in trust for creditors, amongst other things, authorized the trustee to sell for cash or on credit, and if on credit, with or with- out security for thu halance of jiurchase money 1 remaining un])aid. and also to pay in full any ' dehts which constituted a lien on the assets where deemed advisable in the interests of the trust : — Held, athrining the judgment of the (■(Uirt below (•_' <>. I!. ri'J.')) that the introduction into the trust deed of power to sell on credit, which was so given in gond faith, did not invali- ! date the assignment: — Held, also that the dis- ' eretion vested in the tiustee to pay such liens in full did not invalidate the deed. O' lirhti ct al. ' V. i'ktrkxiiu, 10 A. 1!. (iOS. j By a deed of assignment for the benefit of creditors the trust w.is declared to Im " to sell j anil dispose of such portions of thesaiil estate as shall be readily saleable either for cash or credit, , or under the jiowcr hereinafter contained to carry on the said liusiness. * * and to stand pos- j sessed of the said moneys, &c., and all prolits j and increase arising therefnun, in trust to Jiay," Ac, and a subseiiuent part of the deed provided | that the assignee "shall have power to employ the said party of the lirst j)art (the insolvent) or j any other person in winding-up the affairs of th,.- said trust estate, in collecting and getting in liisj estate and ellects hereby assigned, and in can y ( iiig on his said trade ; — Held, aliirming the jiiili; nicnt of tile County Court, Hagarty, C. .1. li.,| dissenting, tliat the provisions a''ove set fortii tlid not invalidate the deed. Ji'iiiiiinjs v. Mi,- Hal., 10 A. 1!. t;<,)(5. Accidental omission of claim from schedule u\ debts. See MiLinii v. (lurlaiiil, 10 A. 1!. 4U.'i. Hut see Cassel's iJigest, p. 177. -. S'lidcc (ij Cluuiix. II. A. B., being unable to pay his creditors :• full, made an assignment to Iv F. tJ. for tin;:- beiielit. V.. V. I>. advertised in the Uiitiin. Ca/ette and a local ]ia]H,r, under K. S. (). i 107. as amended liy4(i\'iet. c. 0, (Out.) for all it, ditors to send in their claims and by his clerk ( M. I), sent notices to eacii creditor from a ii>: furiiislicil by the assignor to said C. !•",. !>., wiiiiii list he said must have contained the names of thi- plaintill's and C. & Co., who had assigned a claiiiij they had to the plaintitl's. No claim was sent inl umler the notice l)y either the plaintills or C. il Co., and the defendant distriliuted the estiit'-! without i-cgard to the plaiiitifVs or C. & Co. .A:| the trial it'a]ipeared that K. !■'. I!, had H. A. I). - books, in which there was a ereoit to the jiLiii: tills ami C. & Co. ; that H. A. P.. tohl him bcfdiv he divided the estate that (-'. & Co. hiid sued iiiiii,! and on the day of the division he received a kt ter fi'oiii ]ilaintill's' solicitor notifying him. .Nj pi'oof was given of the iiostiiig of the indiviclii;il| notices to either plaintitl's or C. it ( 'o. :— Iblii, that the defendant had notici: of the plainlili- elaim, and that he was lialde to tlie plaintill'.-i fiq their and C. & Co.'s proper dividend on tlir estate. A trustee is not exonerated by the .At: if he had actual notice of tiie claim before disti;] butioii. even though he may have sent the nnti, ])rescribed, and received no iispouse to it. l' ('iirHiii/ llnir'iiKi mill MalHiK/ ( 'om/itiiii/ v. Jilit'\. ()(». i:. Chy. D. 441. — Ferguson. 3. I'roiif iif Cliiliiis. F. agreed with the IJank of Montreal fm line of credit to be secured by tlie discount' certain bills and notes which he had himself counted, and which he indoised and delivcicl; the bank. He al.M) arranged with the McrcliiirJ Bank to discount his own notes to be seeureil the deposit of his customers note.? as collatciaJ F. then failed, being largely indebted to lutJ banks, and made an assignment for the geiurl benefit of his creditors. In proving their eland on his estate before the assignee, the banks ci:| teiitled that they were only bound to give cin; on the amount of their claims foi' sums reecivj on the collateral securities up to the date of t:| assignment. In an action by another credit'; entitled to share under the assignment, agaiil the banks and the assignee. It was: — lleld,l| lowing Ithodes v. Moxliay, 10 \\ . \l. lOIi, tin creditor is entitled to prove for tiie whole aniduJ of his debt, and to take a divideiul uiioii vM whole without prejudice to his lights against; curities he may hold, subject to the (jualilicat: that he must not ultimately receive more tl:J •JOs. on the JU. The state of the accounts, at lij J. Piirhi'V.^h 33 BANKRUPTCY AND INSOLVENCY. 34 Itiiiii' till' claim i-i put in, is that wliioh forms tiiu lliasis III till! diviiluiul .slieut, .•mil the iiniimnt i.s tn lixfil liy tlic ii.s.sigiiL'f, as at that ilute. Any liiidiRys n.'L'L'ivc'il \n\iiv to that from ii)llattral.s .u'l' I to 1)1' ci'iulitoil ; tiii>>sL' rt'i.'L'ivi'il uftiTwanls Irmn |sik:1i siiiiroos ni'oil not to Ik; tal\cn into arcnnnt, |iiiili.'>^ tliuy, witli tho (liviili'ml, hrini,' up tiio Lmniint rcM'uiviMl hy tin; '■rcilitor to 100 ut.s. on Itlit' ?^. That suhstautially hotli lianivs weii' in JtlR' saniu jiosition as to t,Iiu set/uritii's in tlu'ir llwiiiis. 'i'iiat tlicTi! was a ilistinct contract tor a lliiiu' III credit to tlic ih'litiir liy tiic iianli of Mont- ■nl, anil as lonu as tii.it line was not cxcccilcil, ilio iianic coulil |irovc' on tlic fimtini,' of that cnn- Itnict as tiic oii,L;inal ilulit. anil hoiil the cnstomer's fciiiti's (liscountcil in jmrsnancc of it as .sccnritics. pt.. H. iiii-C. I'. 1) I'lc .1. liein^' in partnership, ilissolveil iiml pvii lei I their assets. .'^nllsel)Uently V.. lieingsueil .M., an imliviilnal creilitor, m.nle an assiun- tilt iif all his estate, real anil ])i!rsonaI, for the ^iiL'tit of his ereilitors. ami liy the terms of the siij'iinient, placeil his ii.irtnership ami imliviilnal I'lUtiirs on the same footing. In an action hy . I'afti'r he hail olitaiiieil jnilL'meiit) to set asiile I- assiLrnment. it was : — Melil, that after th.' -•^'ihitinn ami ilivision of .assets. K. 's shai'c lie- iiie his sejiarate [iroperty, .iml conM not lie l.-i,'iieil tor the lienelit of his )i,irtnership crc'ili- |v3 until his imliviiliiiil ilelits were lirst p.ai'l, that the assignment as to personalty was li.'ul f(l must he set aside, hut that a dehtor may e a preference to one creditor over another ler the .Statnte of l^lizal)eth, and that the as- ^iiment as to realtv was g 1. Martin v. •""••■, (JU. 1!. •_':«.— Boyd. I'Mi the dissolution of ;i partnershi]p between L. " W., the latter transferred all his interest in k' IKirtnci'sliip to L., who sulisei|lleiitly liecame Kent and assigned all his estate, including , nt part of it which had formerly heeii assets of i ■ iiartnerslii|), to the defondant, in trust to jj.ay ' lu; claims of his creditors ratably and |M'opor- j liiately,and without ]neferenee or priority, re- ! iliiizing such liens, claims, charges, and priori- as the law directs :'' — Held, reversing the ;'Mient of Proudfoot, J., o O. R. 104, th.it ler the terms of the deed there was no pri- |ty between the separate creditors of I,, and oint creditors of \j. and \V.. all being ore- 'irs of L., and that both cl.-isses of creditors entitled to be )iaiil pari passu. Mnnrrhini.-ic Bostinr/.; 11 A. 11. 7li. .V'c al.so IJaii/.- of Ti>ri,)it,j \, J/u/l, (i (). I! ().".;! •"•. A■■^.^i■t/ll■l. The ilutiis of an assignee under such an in- strument as the one in ijuestion in this case are analogous to those of executors and trustees nd- ministering estates, imd tlu; court will consider that a year is a proper time \Mthin which the sale of the )iroperty assigntd is to be made, wliere the assignment Iea\es the time .and mannei- of such sale in the discretion of the assignee. If the sale be not made within a ycai' the onu.s w ill be east on the assignee of satisfying the court of his bona Hdes in seeking further delay. <)iittir!o llinih V. lAtnluiit it III., (! O. l;. 147. -'-liovd. The defendant, who was .issigme for creditors of th(-' mortg.igor, was thieatening to remove cer- tain of the property comprised in the mortgiige, acting, as he said, for the iienetit of the creditors. 'i"he plaintill's el.iimed an injunction to lestrain him. In his defence he alleged that he was a creditor of the mortgagor .at the time of the ex- ecution ot the mortgage in (piestioii, and that after the commencement of this snit he lecovcinl a judgment for the amount of his debt, and he claimed a right to the pioperty taken by him ;i» .against the plaintill's as such creditor :--l{elil. that he was entitled thus to avail himself of his position iis a creditor at the date ol the mortgage, notwithstanding the fact that in removing the goods he alleged that he had acted for tlie bene- fit of the creditors, and although he did not re- cover his juilj,'ment and execution before the commencement of the snit. Ilnhhi^nn it iil v. <■„',!.■, () (). i;. .-)'.10.- Feri'iison. lellrllt ot creditors takes assignor had to the pro- .'{ All assignee fur tlie onlv such title as his per'ty. ///. In the absence of a statutory title to sue .as re ]iresenting creditors, such as is cmilerred by l».inkru[>tcy and insolvency statutes, an assignie in trust for creditors can only enfoice the s.inie rights as the person making the assignment to him could have enforced ; therefore the defen- dant could not, by a plea in his own name, ask to have a conveyance, made by the debtor to the pl.iiiitiiV jirior to the assignment under which defendant claimed, rescinded urset aside as Iran- ilulcnt against creditors. The nullity of a deid should not be proiiounced w ithout putting all the jiartics to it en cause en derl.ir.itioii de jugement conimun : — Semble, that plaintiti, being a sccidiid purch.iser in good faith and for v;due, aei|iiired a valid title to the propei'ty in (|Uestion which he could set up even against an action broui.dit directly by the creditors, /liir/ninl v. Jlnilnt 11 .s. 0. It. 7(;. [See 4S Vict. c. 'id (Out.)] (). Dlaibnil. Where fl., an insolvent, had assigned all his assets and stock in trade to S., as trustee for cre- ditors, and the plaintiti' claimed a specilic lien on the same to the extent of certain trust moneys, which had. come into C.'s hands, as trustee and executor for the plaintiff, under the will of his (the plaintill's) father, but had bi;en wrongfully converted by C. to his own use, and en'])loyed in I O o as o ftS i 35 BANKRUITCY AND INSOLVENCY. m\ lii.s own biisiiifss to Jiay his tnuliii^' lUlits, Init ;is ti> wliiili tlifii,' iliil nut iipiiiiir U> ln' any identity or connii'tion witli tlic stork in ti'iuk; ;issi;,'ni;il to S. ; — llclil, tliat tiie plaintid' as against S., was only iMititlfil to a dividenil with the otiier ere- I ditors, on the full amount, with inti're.it down to the tinir ol' the as.si','nnuiit. < 'nl/innr v. S/niirl rt ii/., i\ (», U. !»7. -lioyd. In /m action hy a creditor of an insolvent Mj^ainst tiu' assii^'iiee under an assiennient loi' the henelit of creditors to rei'over the aiuoiuit of the dividend deelarecl u]ion iiis claim, the defendant jileaded as a defence tiiat the plaintili' disi)uting the valiility of said iis.signnient had as an execu- tion creditor of the insolvent, caused tiie gooils as.;igned to lie seizi;d, and on the trial of an in- terpleader issue directed had endeavored to ini- peach tlie said assignnii-'nt, and that having thus rejpudiated the assignment he could not now claim the henetit of it : — Held. ((t'C'onnor, .)., dissent- ing), a good deft'iice and that the )ilaintiirs were not entitled to recover. Jt was eonteniled for the plaintill's that the said action not having heen li'ied upon the merits, the Court having held that th(^ iilaintill's being assenting jiarties to the assiguiiient we're estopped from .aftei'wards im- peaciiing it, this defence formed no liar to the plaintill's right to rard; as a -'reditor niioii the estate of the insolvent : — lleM, th;it the mere liringing of the ai'tion w:is a sullicient repudiation to disentitle the plaintill's from I'ei'oveiing. Per o'Connoi'. .)., tlial liy the judgment of the Court the plaintill's were relegated to their position and status under the assignment, and therefore to the lienelit of it. k'/(i'/,/ir v. (Innliii i\ 10 O. J!. 41.'i — <,). I). I >. Reversed in a])peal not yet reported. See also Bauin'r v. O/io r, 10 A. O/lnr C(tn(m. ().')(i. An assignment for the general henelit . c. lilt. Whitiiii/i't^al. V. Iliirt'ijit a/., ]:i A. It. 7. .A petition was presentccl hy the husband of |). to declare his wife a lunatic which was op- ]iosed by her. Pending the hearing of the peti- tion 1). assigned her separate estate for the liene- lit of her creditors. The court dismisse. with goods on the guarantee of .M. _M, made an assigmnent foi' the beuelitdf creditors under 4S \'ict. c. ■_'•!, ((hit.) li. assigned in like manner a fewdays after. The plaintill's jiroved their claim for the full ;unouiit on .M.'s estate, and stated tiiat they helil as m-. eurity their claim , against 15. s estate, but did ni.; value it. li. ell'ected a composition with her i i.. ditors, and gave composition notes therefor. Tli. defendant .M.'s .issignee refused to pay ;v divideiM to plaintill's until they had valuecl their secuiitv on 15.'s estate, ''pon a special (,ase being st;it'! for the opinion of the court, it was : —Held, tir ■ liy li.'s assignment his estate was ]ilaeed in ri|. todia legis, protected ''"'in judgments and i\. cutions, and madeava .able f< , the creditors wli were thus potiMitially seised ot their prj|i(;r |ii i portion of the assets. The original [lersoHi claim was thus transmuted into ;i claim in rein, and so could fairly be regardeil as in the natic of a sc'curity, which the [ilaintitl's were iiound ; value under Sec. IS, sub-s. 4 (//. ) ITyA/ . ' ,,'. v ClxrLs.jii, 1-2 O. It. o.s;i. -lioyil. 11. i-Nsoi,\i;Nr A( r 187j. 1. A.-:/. When an .assignee in insolvency elects, umle^ sec. S4 of the Insolvent Act, 1S75, to allow: creditor to retain, at a valuation, the proptni ■which he holds as security for his debt, the (rI ditor beconu;s a purchaser at that valuatiiJ frceil from any right or e(piity to redeem on i:.T p'trt of the insolvent or his estate. JJiU v. 7/ it ((/., II A. It. 45S. Where the secured creditor has valued his s curity for the purjiose of proof, the policy at] ex)iress language ot the Insolvent .Act, ]S7o. < (juire that the decision of the assignee shall i promptly made. .\ formal resolution of the*! signee allowing the creditor to retain the [irj perty is not necessary. Therefore where tlii.-. signee had ample means of knowing the \alui' the assets before the creditor )iroved his el;i and valued his security in .lanuary, 187!I. ^i whei'e no meeting of creditors was held a" that date till the ,S()th of .Inly following, an. It estate was sold without any refel'cnce to tie curity ; and whei'e nothing further was doiif the assignee until tin: l."5tli October follouiiil when he wrote to the creditor : " Voiir claiiiH riled sliows ;i b hut Mr. I.eitcli imtesyour claii i\:c. . it Was : I tied his eleetioi tlie security, a t" ledeem it fo .'>. !■' I'll III! \\ ., the respi iiad had variou: 'liMounted lor telest notes rei 'iiisiness. I). 's aiiiNimteil to a '. man of Very s i teivil into A iiev ^'"p,is on L'l'fdi •"^."i.OOO, upon a r plying such go( available capital .\hnut tiVelve d; ni-w business, In with foreclosure '■vim advanced h I lied in paying t ^a,j.'. and the su l-ldbyW. I). ■''■ \\ . and was gi "11 his indebtedn. te uork carefuir iii.-elvent about " -lilt liy .Melt., as Lia-e to \V., it w meat of the (.Join Mtisijud the (111 11 the Insolvent Ac at the time of tli 'lilestioii coiitenii ijiiist of necessitv /e" V. Whltl', \)\ '■'- iu l,S7S, be I'lessioii in biisim I'lied to his credit tiie piiynicnt of t "1 '-^(i, 000, after de civditoi's consent agreed to accept iiieiiths, on eoiiditi l)e endorsed to t s|i'Muleiit) agreeing '•"iidition that (;. .^ ;->■ s) name .S7,") |n i-'iidorsatioii, and (, iliect. Thereupoi ■iiimunt of over .•;< ''• s creditors. (» 'I'lviiig deposited J ;ille .Maiie Hank, jlie had eiulorsed, j as.issigiiee of (J., K'l^iimiMg that the Pl'eie fraudulent, ai ;l'usited niiiiht Ik :'"-■ henelit ofalK; '"■ jiidsnient of tl '.'"•-■.jHitchie. C. .' :l'at the arrangen "liieii the nionevs ''"■aiiie pledgcd'to "^ lii'-iolvent .-Vet i"J fraud oil the c: K ;J7 BANKRUPTCY AND INSOLVENCY. 38 till il mIiiiws 11 liiilance over .security of .•<;{, t)!)l. Il{, liiit Mr. Leitcli (the iniri'lijiHer of tlu' I'statf) dis- i.ntc's your claim to any iliviilciiil, on the ;.;roiiii(l,'' ,Vi .. it was ; lIcM, that tlie assij^ncc liail signi licii iiif) cU'c.tioii to alhiw the ereilitor to retain the sei'iiiity, anil his alianilonnunt oi any right to leileeni it for tile estate. /'/. .'!. /•'rmiil It/Ill Fiuiiiihih III I'ri/i f' iii'i". W'., the resiiondent, was a |private hanker wlio ii, III liail various dealings with one I)., and Jiad ih>iounted for liiin at an exorliitant rate of in- terest notes received iiy D. in tile course of his 'iiisniess. IJ.'s indel)teilness on new transactions aliinuntctl to a '.arge sum of money, hut, lieing a iiiiui of very s nguinc teniiieranicnt, he had en- teiid into a new line of l)usiness, after olitaimng :;iiim1s on credit to the amount of St, 000 or S.'i.OOO, upon a rciiresentation to tlie iiaitics sup- (ilviiig such goods tiiat, altiiougii witimut any ;iviiilahle capital, he had experience in luisiness. Ahiuit twelve days after lie liad commenced iiis iru Uusincss, lieiug threatened hy a moitgagee with foreclosure [U'oct'eilings, lie ap|ilieil to W .. wlm advanced him S,'{00, [lart o: .liich was ap- |.heil in paying the cnerdne inter sc on the niort- .M:;!', and the surplus in retiring a note of l)."s i.rid by \V. I), executed a mortgage in favour "! W. and was granted a rcduci'd rate of interest uu liis indebtedness, and was told he would have tn work carefully to get through. I >. liecamo insolvent about four montiis afterwards, in a -nit liy Melt., as assignee, impeacliing tlie mort- .;;i;:e to \V., it Was: — Held, allirniing tlie judg- iiieiituf the Court of Appeal, that .McK. hail not -itislied the onus which was cast upon him iiy tlic Insuhent Act, of sliewiiig that the insolvent ;it the time of the execution ot the miu'tgage in riuestiim contemplated that his eniliarrassmeiit imist of iiecessitv terminate in insolvency. Mc n.i. V. WliiO', ills. C. K. •-'•-'. (i., ill IS7S, being unable, on account of de- luvssion ill business, to meet his liabilities, ap- lilieil to liis creditors for an extension of time for the payment of their claims, showing a surjilus of sii.OOO, after deduction of his bad debts. 'J'he creditors consented to grant his reipiest. and agieed to accept (i.'s notes at 4, S, I'iand 1(! iiiuiitiis, on condition that the last of them sliould lie endorsed to their satist'action. N. (the re- s|"iiiileut) agreeing to endorse the last notes on iiiiidition thatd. should deposit in a bank in his t.N.'sj name .STo ])er week to secure him for such fluliirsatiiui, and (1. signed an agreement to that itlcct. Thereupon X. endorsed (i.'.s notes to an uiiiiiint of over 154,000, and they were uiveii to li.s creditors, (hi ;{lst .July, "lS7!», <;., after liaviiig deposited 8'_*,007.S7 in X.'s name, in the \ ille .Marie Bank, failed, and X. jiaid the notes 111; had endorsed, partly with the ••::2.007..'S7. i'-., IS assignee of tJ., brought an action against X., iclamiing that the payments made to X. by*;. |wi.re Iraudulent, and jiraying that the money so < liusited might lie reimbursed by X. to B., for iie lieiieht of all (i.'s creditors : — Held, atlirining le juiliiiueut ot the Court of (Queen's Bench, '.'lie. ) Ritchie, C. •!., and l''ouriiier,.)., dissenting, liat the arrangement between (!. and X., by ivliicli the moneys deiposited in the bank l>y (i. Hi.aiiie pledged to X., was not void either under ic Insolvent Act or the Civil (.'ode ; there was 111 fraud on the creditors, nor such an abstrac- tion of assets from creditors as the law foiiiids, lint a pi'o|ier and li'gitiinate a|ipiopriatii>ii of m portion of ( ;."s assets in furtheraiiii' and not in contravention of the rights of the creditor-, giv- ing at the most to the surety a preferential se- curity wliii'h could not be said to liave been in conteinplatioii of iiisidvency or an unjust pnfer- elice. li' iiiii'ili U \. .XuriiKiiiil, !l S. ( '. I!. 711. I'"., ii slii])o\\ nil' ill \'armoiitli. .N. >., emplnyid as his agents in Liverpool .1. dt t o., the deleiidaiit ■ i. being ii nieiiiber of their lirni, and as agents in XcH N'ork he employed the liriii of S, iV B.. of which the ihfeiidant S. was a nieinlier. In the course of his dealings with tliese agents he became indebted to botli lirms for acceptance by tliein of his dialts, madt: when ln' was in want of inoiiey, towards the payment ol which they received the freights of his vessel and limit tallies in iiioiiey. (hi one occasion he said that he Would give to tile Liverpool linn a mort;;aL;e nil the •' 'J'seriiogora " or ••.Magnolia" when they should reijuire it, and in a snbsei|uent conversa- tion with a member of the hrm he agreed to give siiili mortgage on certain conditions wliieh were not carried out. He also promised the liilii in .\ 'u ^'ork to give them seciiritv in case any ti.iiig happened, and inintioned as such .seeurity a niort;^age lui tile " 'rseinogora. " .Vccording to F.'s own statement In- had sutlirient jiroperty to [lay his liabilities wiieii these conversaticiis took place. A few Weeks after these conversations took plaii', I', executed a mortgage of '^"^ shares of the '•'I'sirnoijora" in favour of tlie ilefeiidints .1. and S. and had tlie same recorded, and witiiiii thirty day^ thereafter a writ of attachniciit in insolvency was issued against him. The plain- till', who was ap|ioiiited assignee of I''. 's estate by his creditors, tiled a bill to have the mortgage set asiih', claiming that it was void under sec. \'A'A tii tin; insidvcnt Act of IS7."). The defen- dant .L did not answer the jilaintifT's bill, and the other defendants denied that the mortgage was made in conteinplatioii of insolvency, and also claimed that as it was made under tin- pro- visions of the .Merchants' .slliippiiig Act, (Imp..) it was not afi'ected by the Insolvent Act of I's7.'). The judge in eijuity, liefore whom the cause was heard, made a decrei; in f.avoiir of the plaiutitt and ordered tliu mortgage to be set aside, and the Supreme (Jourt of Xova Scotia dismissed an ap|ieal from that jiidgnieiit. On appeal to the Supreme Court of Cinida :--IIeld, allirniing the judnnieiit of the court below, (Henry, .1., dis- senting.) that tlu; promise to give security "in case anything should happen " could only mean ••in case the party should go into insolvency,'' and that tile transfer was void under Sec. \'V.i nt the Insolvent Act of I S',.") : — Held, also, tliat th.- provisions of the ^.i ,;! nits" Ship[>ing Act did not prevent the property in the ship passing to the as.-,igiiee under the Insolvent .\ct. Juiu-i v. Kiniir^U 11 S. C. i;. 708. 4. I'rimd in dlifniiiiiif/ Gooiln or Crcdil. P. et al., niercliaiits carrying on business in Liigland, brought an action for .'54,000 on the common counts against .). .S. et al., and in order to bring S. et al. within the purview of sec. \'Mi of Ih" Insolvent Act of 187"), by a special count alleged ill their declaration that a purchase of goods was made by S. et al. from them on the ^ s s 1) DANKKir'n V AM) I NSOLVENCV 4'^ n I'ldMi I', ct ill., tlicrcliy liccoiniiij/ tlifir citilit'its uitli intent t(i (Ifliaiiil I', ft ill. .1. S. (iiiipil l.'Hli Marili, ls7!t, and .iiintlii.'r jiunlm.sr im thi' •-".ttli .Marcli lit tlio Nanir year; that ulicn S. ft III. nmilu till' Miid imi't'lia.sfs they liail |ii(iiiiili!f caiiHt fill lM-li(;\ iiij^ llif insf IvfH to l>f nnal)lf to nicft tlifir fni,'agiinfnts anil UDnfialfil tliu fact fiiiniiiig !'. ft 111, Iniit) iuiiiini;.st ntlnr plias. iihailiil tliat tlif inn- tract (Jilt (it wliirli tlif allf^nl laii.sf ot' acticin aiosf van niailf in l'Ji'.;laiiil anil nut in Canaila. 'I'll this jilfa 1', ft 111 ilfniiififil It U .'IS :i;.;t'f('i! tli.it tlif Jilt adiiins \\f ic til 111' tlfatfd as aiiif iidfd liy allfyiiii,' that tlif df tf ndaiit.s WiTf tradcr.i and 111 iti>li siihjfcts if.sidfiit and doiiiii ilfd in ( 'anada at thf tinif lit tlif |illlrliasf nt tlif ,i;iiim1s 111 i|llfs- ticiii ,'iiid had ."-iilis'-iiiifiitly lifi'uiiif iiisulvfiits iiii- dir thf lii.--ii|\f nt Aft ut IS7''>. and aiiniiilinfiits thfiftii. I'll- Kitfhif, ('..I., and Kiuunifr, .1 . : I. That Sf r. I.'idiit the Insiihfiit .\ft (it I. S7'') is intra \ilfs lit' tlif I'arliaiiifiit lit < 'anada 'I'iiat thf fhar^'c (it fraud in thf (irfsfiit suit is niuifly a ])i(ifffililij,' to fiifdiff )iayiiifiit (if a dflit iliidfr a law rulating tn liaiikiii|itfy and insdlvfiii'y uvc r ■wliifli Miilijfft inattfr the I'ailiaiiifiit uf Canada has ixiWfi' to Ifgislatf. :i. AltlidiiLili tiio fraudii- lent act fharufd was foiniiiittcd in aiiothf r ('(Hin- try iHyi.nd thf tfiritorial jiirisdii'tion uf the fonrts in Canada, the dffiiidaiit was not f.\fin|it for that ifasoii from liuliility nndfr the jirovi- sionsiif thf Kfllth sec. of thf liiaolvfiit Aft, IST'*. and tllflftdi-f the ]ilfa dfinurrfd to >vas had and tlii^ ajiiif.il shoiiid lif disiiiissfd. I'f r ( iwyiiiif, .1., tlif dfiiiiirifi' ihifs nut raise thf inifstion whfther the sec. Il^ti of tliu liisolvfiit xXct of IST.'i is or is not ultra \ ires of thf doniinion |iar- lianifiit, for \Nliftlifr it It or not, thf |ilfa ilf- niiirred to is liad, ina^'inuoli as it coiiff.-sfs the ileht for wliifh the .ictioii is l)idiii;ht, and that such (Icht was incurifd under fireuiiistaiicfs of fraud, and otl'fis no niatter whatever of avoid- aiicu or in liar of the action ; therffore, if the apiiual lie fiitf itaiiifd it must Ik; disniissed. Per Strong, Henry, and 'J'ase lu n an, .1.1.. tlieif lieing liothili;,' either in the laiinuatre or olijeet of the 13()th see. of the Insolvent Act to warrant the iiniilieatioii that it was to have any etreet out of ('anada, it must he held not to e.xtelid to the pureliase of goods in Knglaiid liy defendant, .stated ill the seeoiul count of the declaration. In this view, it is iiiineefssary to decide as to the constitutional validity of the fiiactnieiit in •lUestion, and the aiipe.tl slionld lie allowed. The eourt being ei|ually divided, the a|i))eal v\ as dis- lllissed, without costs. Sliiihl-s v. /'(•((/.•, S S. C. K. JTD. 5. Oth< r Ca.f'-s. In ejectment ]ilaiiitili' claimed title under a deed from the assignee in insolvency of I'. D. J'rior to the issue ot the writ of attachmeiit in insolven 'V P. I». had conveyed the ]ir(i|ieity to his In-other L. |). Tv,d of the creditors elaiiiifd that the lUed was fraudulent, ,iiul iiiadi; a dc • niaiid uiidfr Sfc. (ifS of tlic Insolvent .Act of 1S7.") on the assignee to t.-ikc iirocfcdiiigs to have the deed set aside, which the assigiiee, on instnuv tions from the ci-fditors, refused to do, \shfieuiioii the two creditors ohtaiiied from the judge an order under that section authorizing them to 'jiike the iiroceedings on their own liehalf. Pro- oeedings were tlifieii]ion taken .-iiid the deed i^et aside. The land was aiivertised, the jieriod there- for heilig shoitiiifd liy the judge, and wa.il sold to !•',, liiit in reality to the |)laiiitill to whom I', conveyed, The assignee was notitifd of the sal, and re(|iii'st('(l to fXffiite a eonveyance to flu |>iiii,haser which, under iiistnictions fidin the cii • ditors lie iffnsfd to do, w lif rfU|Miii an ordfr vva> (ilitaiiifd from tlii- jiidgf diri'cting the assigiifi- t" f Xfi iitf the df( il, thf a^sigiiff's solicitor ittteiid- iiigand ii|iiiosiiig the making of the order. I'lnh r sec. (W the '• lieiielit derivi-d troin such ]iriiceeil- ilig:-; :-,l-uil! ln.loli>; c \i liisi\fl_> to the cii,'dil.(ir in- stitiitiiig the saiiif for his lifiiclit ;" and uinh i sff. "i, no sale is to lie fomiilftfd unless it "h.i-i lieeii s.-inctioiifd liy thf ficditors at tluir tir>t nieeting, or at any siilisei|iicnt meeting calhi'i I'.i the ]iui'|iose or liy the insjiectors ;" and ;ilso tie |ieri(id of the advertisement might he shoitclu m •■ hy the ci-fditors v\ ith the ainiroval of th.' judge :" -Held, Kosf, ,1 "liting, that tin sale ,111(1 the ilffd tliii'i was valid. I'li • ialt, .1. — The fllfft of sci . oM was to withdraw thf ]iioiifrty fidiii the general hody of ereditol^. and to Vest it in the litiL;.iting creditors ; and, >■■ far as regards [iioi-fcding iindi'i' this section, cre- ditors when I'eferred to ill the statute meant liti gating creditors, and not the gfiu-ral liody of en ditors ; and the sale having liceli sanctioned !> siuli litigating ci-fditors, sfC. T!S had liceii coin ]ilie(l with. J'er ('aineron, CI. — Under see, ti>( the henelit to accrue finm the lunceeding passed from the fstatt' to thf litigating fi-fditois; aii'i the sanction of all the creditors retfired to in sec. 7!S w','is not iciiuisitc ; lint even if it weir. the defendant, a mere stranger to the insolvein \ jiidccfdings, was not in a ]iosition to raise tli' olijection. Pel- ( 'ameron, C. .!., also. — An n- sigiiee niiiK-r the Insolvent .-Xct 1,S7.", is not iiieii i\ thee.vccutor (it a power, Imt takes the lcg,-il fst,ii which on conveyance liy hi'-' vests in his yraiit' i elothed with the trusts v which it w,is in Vested in the, -issignce. J e, .1. The men ing of sec. (ifS was not t litigating credi tors Were to have the exeii,.-ive heiietit of tli- lirocceiling without limitation, hut merely tin heiictit thereof as creditors, that is, payment nt their delits in full ; hut any siiriilus must go te the other creditors : that on the deed to L. \K lieiiig set aside the property- did not vest in tin litigating creditors, liiit was in the assignee win held it in trust to so distriluite it, and this lieiiig' a matter for the general lieiictit of the ereditm- it was suliject to the other lU'ovisions of the Act. and therefori.' to the ]irovisi(iiis of see. 7S, wliiel' had not liffii complied with, so that no .sale was made, and no title passed thereunder, lie .lar- vis ('. Cookf, 'Jll Cliy. ."03, considered and coin- liientcd .111. The detcndaiit set up that he- hi! a title hy ]iossessioii ; and that the title was out- standing ill a mortgagee ; hut the evidence f.'iihd to estahlish it. JJoiidran v. J/iiiicii, U O. I!. Ml — C. I'. I). Held, allirmiiig the aliove decision, that tin sale was not one suliject to the control of tin- general liody of creditors, and therefore that tin- restrictions of sec. 7"» of the Act were inappli- e.ililc, and the sale v:;i» valid : — Held, also, thiit the defendant failed to estalilish his claim of title hy possession. .V. ('., 1'2 A. K. '-"JS. Held, atlirming the judgment of the Chaiicerv hivision (I (), P. 1(17) -Siiragge, ('. .1.0., diss: Th.-it an assignnielit under the Insolvent Act I,S7."), hy an insolvent mortgagor does not stop the runniii;.' (it tin- Statiiti tin- ( lailii lit ' 1- '/' V. iy,i/.~ 111. -V cK'ditoi v\ .liter the excri ,i»Mfllti-il to .issiglice ill v\il tupped from ,if tlieassigiiiiieiit -Osier. -Vs to fllect after assigiinif See /// /-( Atii.iii' SO. I!, •J2.'). f 'olistriletiiill nipt" in a hy-l; h'.rc/diliiir, ,S ( t. Piiiiiity of f I p.iyiiifiit of iiiMi lieL-oiiif insohcii Sri,/lii, I 1 S. ( ••^ee also .1 i/nt '■ ('iii:(,i|-KS, II. Dki'osits, 111. T.VKIMi C I. '•'innu -'. \y„rrlH. INC .( VJ. .^Ils(■|.:I,r,A.^ y. WlMKNij- _ The plaintitl's v\ i^iieipie drawn hy (if -Montreal, at I aplieareil the won tieai, Toronto, at piisited by the jila tlifir bank at T., a iiess was sent by t ti'ealat T., and h\, to tile former. I'l where it was dishe i-'liargcd back by i plaiiitilf's' hank, an pliuiitill's. It api Were habitually ii tliuir elieipies wit! -MiMiti-eal :— Held, wurds was, that 1 "iiiild make no cl "lid that they did i I't'iiig funds to niee tlic right to charge were no funds. Ti pat,;/ V. Th,' Buhh- r>44. See Ui-ii:!-,:. V. 77,, 1'. -44. 40 11 I'.AXKS. 4:1 Stat' •ani' >■ iii- iicali- •l-fili- ,f 111- ly 111' '•nt "' t.. I,, h ill til. llcillL' litnl- ■Art. wlii.l- If W a> :u .lar- (.-(iiii- w. lia'l Hit- fail. d l;. Ml it tin- if till- at the apiili- tll!lt If title liioi-rv That ,-). liy liiiiin.L: (it thf Statiito iif l.iiiiitiitiims so jih tn kcup iilivi; tli.' .'liiiiii lit the iiiurt".!','''!' Mgaiiist thv, l.iii, !l A. It. '.'iW. 111. MlscKl.t.ANKOlS CVSK-*. A ci.ilitoi ulni iitti'iidoil a nu'otin:; iif cTi'.IitoiM afti'i' th.' i^xi'cutioii of a tlcod of as.sij,'imiuiit, and ..•^j.'nti'il t'f !H,' aj.|i.ilMli'd a tnistci' to aiil tlio as>i;,'iifu ill wiiiiliiii; up tin.' cstatti wa^ llidd ts- tii|i|ii'd finiii aftriwai'ds dcnyiiiu the vaii.lily of th.assii^iiiuuut. 'iiiri/iiir V. A'Am///-/', 7". K.()0.'{ (Nil!-. .\-. til iH'c't of i\tiiij,'iii.sliiin'iit iif iiiort^^ay.' aft. !■ as.sii,'mii<'iit in iii.solvciit'y liy nioit^'agor. .Sc,. /ii r. .i/(/va' Jtnll Jllu,± — /Jinitl'/' v. Mrllliusll, SO. i;. •-'■Jo. ( 'iii.^ti'iictioii of w.ii'd.s •' iiinolvont and liaidv- riiiit"in a livdaw. Sci- Tiiii/'l<' ' . T"r'iii/ii Sfm-/: !■:.,, -hi, 11^1, SO. i;. TO.'i. I'liniity of till' Crown nvor otlicr I'lcditoi's to [1 lyiiifiit of niom-y.s lUpo.sitfd in ■> li.iiiktliat )ias liiiiinu' insidvoiit. ."^uu /.'■ //'(n' v. lit' i/: nj' .Xorn Siui/iii, 11 S. C. 11, 1. Seu al.sii ,l//'-'/i- V. I'.niirh, i\ !l S. ( '. \\. KiO . I'.A> KS. I. t'iii;i,ii i:.-i, 41, II. Dkposits. 4-2. 111. TaKIM: (.'nl.l.AIKI; \I. S|,( tl;ll\. 1. 'I'l (II rdlhl 4'J. '1. Wili-i liiii(.ank on theii' eheijues with the assent of the liank of j -Mimtreal : — Held, that the whole ettect of the wurds was, that the Bank of Montreal at T. w.iuld make no charge for cashing the chciiue, j aiul that they did not assume the risk of tlierc being funds to meet it, and that they did not h)se the right to charge it back on ascertaining there Were no funds. The Itu.v-lii Ij'ord I'riiituKj Coni- /«(/(// V. 77(1' BmiI: of Mont mil i-t ai, \'2 O. It. I i'lW. •■•iee t//-/e/v- v. Tht Mol^oa's Ban/:, S 0. H. 1(J'2, i. 44. II. |)|.ln>IT>. Thf ]ila\ntill plaie.l in IIh h.inds of I'ne.T., a practising m.M. itor, a nmrtgagc given t.' ' i jilain- till' by line I!., toui'tlnr with a dis.h.ii ... theri'i.f duly exuiilte.l, lor the purpose of eliaMiilg .1. to i.'.iive [layniiiit of the miirti.;aui' money, wlii.li I!, was Imi I'owiii;,; Ironi a Loan ('nnipaiiy, an. I whi.'h it was iii'r:uigi' t, b>tueiii llie piamtill .ind .1., in the presence of the local iManatjel ..I a li.ink III which .1. was the solicitor, sh.iid.l b<' ih'ii.isiti.l by the snlicitor in such bank to the .redit of the plaintiir, and a deposit ic cipt olitainctl therefor. .1. did rei'eivethc lu.mev by a chcijue of the Loan ( 'ompany, amounting with interest to .S(i,4r).">, \\hich he deposited in the b.'iidi to his private a.- .•ount. .\biiut ten d,i\'s afterwar.ls lie drew upon his account fur -St, ((()(», wlii.li he dcpnsited ill tin' same bank to the credit of the plaintitV. obtaiind a di'posit receipt therclor in favniir ni tin' plain till', and traiisiiiitti'd the same to the plaintilf on tlie I'tUhof .August, I'SSI, telling th.- iihiintiM' in his l.'ttcr that '• the lialali.'i' will be >.iit iu'\t Week." He drew upiiii the lull. I for his ouii pill poM's, an. I .lied, with. lilt reii.l.'iing any a.'.'.iuiit. on the 4th of Septenili.'i' I'oll.iwiiig : H.'ld, tli.'t the bank was not all'ecte.l with notice .il the money -.i 'le- po>it.'.| li.iiig trust moneys, s" as to render th.,' bank li.dile for J.'s iiiisapiirnpriati.iii thert.if. .After tin,' ileposit of tin- jilMintill's ninney .1. re- eovereil a sum of S|, IS'i.'.l.", for th.' .Icf.-iidant S. j as her solicit.ir, whi.'h h.' also deposite.l in th.' ' same account on the '_'4th of August, Is.sl. I'p to tht! time of J. 's death the ainoinit at his er.'- . lit always e.xcce.le.l this sum :- lleM, that the nmneys so deimsiteil by .1. had been liel.l by him 111 a fi.luciary character, ami might be f.illowe.l liy l>. A: .S. ; but (in this reversing th.' ju.lgineiit of the Court below) as between the plaiiititl an. I S., tli.at S. had a tirst .-barge upon the sum at the cre.lit of .1. for tlu' full anioiint of her.leposit, and that tlie balance w.is apiilicable to tin: .lis- cliarge of the plaintitl's deiii.iii.l. The bank claii 1 the right t.i charge against the account in priority to the ('laiiiis of the plaiiitifl' ami .•>. che.jiies .•ind iiiitcs of ,1. presentcl .ir maturing after notice to the bank of .l.'s death: — Hel.l, that they coiil.l not do so, and in conse.iuence of having iiia.le such claim both in this ( durt an.l the Court below, they were refused their costs. /iailr;/ V. Ji'//,lf rl lit., !l A. B. 187. in. Takini: Cui.i.atkk m. Si.i rnrrv. 1. Hi'.ni-mUn. Section "JS of the revised regulations respecting the sale and iiiaiiagemcnt of timber on Crown lands in uebec provides that " limit holders, in order to enable them to obtain advances neces- sary for their operations, shall have a right to pledge their limits as security without a bonus becoming payable,' anil it further ].rovides that " if the party giving such pledge shall f;iil to Jier- form his obligations towards his creditors, the latter * ' may obtain the next renewal in his or their own name subject to payment of the bonus, the transfer being then deemed coinp'ete. " Ju 187") and I.S70 one F., who was now repre- sented by the plaintifl's, proctired for the jiurpose of his business operations as a lumberman, cer- tain pecuniary advances from the defendants, the National Bank, through B., their local inan- j eager, and to secure repayment, gave to the de- 43 BAWDY HOUSE. 44 4.'. fendaiits certain promissory notes and valual)le securities, and as tullateral stcnrity also <,'ave a written jiledge dated Sijitendier "Jlst. I!S7oi'ted on its face to lie " for advan(-fs made and td he made" to liini. in I.S77. «ith tlie ecii- sentof !5.,F. eaneelk'd tiii.s su]>|poscd jiludge, and yave what jiurjiorted to lie a new iiludgu of the lieensL's to the National l!;ink, wliieh simply stated that he thereliy \)ledj^ed all his liuhts, titles, and intcrots in the lieensis to the defen- dants, and which new jileilge was indorsed on sub- se(|\ient renewals of the licenses. 'I'lic ilefcndants did not at any time hind themselves to make anj' further advances to F. , hut as a matter of fact in liSTT, liSTiS, and 1S7!I, F. eontinueil to leeeive ad- vances from the defendants. In KSS'J, J'', lieinj,' still indelited to tiiem in a huLje sum, and the pledge of the tindier limits still in force, the de- fendants, pursuant to the aliove section of the re- gulations, obtained an issiu' of the licenses di recti J' to themselves. The jilaintitls now brought this action for discovery of tlu' securities hehl by the defendants on account of I''. "s indebtedness, and for I'edemption, and lor a declaration that the de- fendants had no lien on the tindier lindts in (|ues- tion : — Held, that as to the advances made lie- fore the pledge was given the security was valid, but that as to the future advances, tlu- pledge of the tindier linnts was invalid as being in contra- vention of ;i4 \'ict. c. "), S.40, ( I'om.) : - Held, how- evf'r, that inasmuch ,'.s the defend iiits, although they had obtaineil the issui^ of the licenses direct- ly to themselves, and thus procured a complete title to the pro[)erty, under tlu^ alio\ c section of the regulations, ne\ertheless voluntarily restrict- ed their claim to a lieu upon it for the whole amount of l''.'s indebtedness, they were entitled to judgment declaring such lien, and th;it on pay- ment of such indebtediiess the defendants shoidd convey the property to the plaintilbs : -Held, further, that it was open to the jilaintitl's in this action to object to the transaction as contr.iven- ing the Banking Acts, and it was not necessary for the p\ir[iosc of such objection that the pro- ceedings should be by tlic Crown : — .Sendile, that if a mortgage ujion lands be given to a bank as security for future ailvanees in contravention of the Banking Acts, and after the debt has been contracted or advances made, another mortgage be executeil upon the same ])roperty as adilitional .security for the debt so contracted or advanci'S made, the second mortgage will be valid.. (Irueen's Bench, that the transfer of 15. to the bank of T. was not given to secure a past debt, but to cover a contemporaneous loan, and was therefore null and void, as being a contravention of the ISank- ing Act, ;?4 \'ict. c. ">, s. 40. liniik uf 'I'lironto V. l\rkbi.-<, S S. (". n. (iO.S. Sale of security at under value. >-im /'nnliiv V. T/iv Cviiwlklulid Bunk, 13 A. K. Git, p. 81. IV. MlSCEI.L.\KEOUS CaSE.S. ' The Act as to bauka and banking and warp- ' house receijits does not aiiply to a foreign bank- ing corixiration. See 'I liv ('otinin.rchil Sa/ituci' Bank of C/iiCd'jo v. Corcoran, O. II. 5'2~. Loans made on deposit of stock. See Cnrxufi, v. The Ft (It ml J lank q/' Caiiai/a, 5 0. K. 41S. A bank manager is not acting witho\it tlu scope of his authority iu accejitiug the cheiiue n: a customer to deliver to another customer on a particular day, or on the happening of a specilii il event. Orierry. T/ii Alol.-iuiif Bank, 8 O. 11. I'ii' (;. p. I). Transfer of stock. See Sniilh v. Bank of A* "• .S"co//((, ,S S. (', 11. .-),-)8, p. 110. I'roving claims on Insolvent's Instate. See A'c-'' nHin V. Bank of Montreal d «/., 10 0. \l. 70, p. -m- i Priority of ( 'rown over other creditors for pay- ment of moneys deiiosited in a bank that has In come insolvent. See Jiifjina v. Bank of A'i/< ' , Srolia, 11 S. C. 11. 1. HAPJUSTKlf AT LAW. T. C'orNSKr, Fkk—.SVc Costs. II. Ki-.T.\rNF,K— 5(.'(' Sor.ii'iToK. BASTARD. Hevisc to illegitinuite cdiild who dies duriii, lifetime of testator, leaving legitimate issue. ." .V()».s'(/, O. It. .SO-C. P. 1». The convi lilaintiH' "di( JiDuse and ho stitutes, and the statute," i;ive a satisf .siilficient. 1 Milted from. l.-.;i -(,». B. I), See als( ri:n Tlicstatute- til Benevolent S. (>. c. 1G7. fodt. BAWDY HOUSE. A conviction under 'A'2-',]',i \'ict. c. 28, (Dom. ) fur kecqting a house of ill-fame, ordered payment oi a tine and .'osts, to be collected by distress, and in defaidt of distress ordereil imprisonment : — Held, good. Jii(jl„ii V. Walker, 7<'- B. 18(i. — Rose. A conviction, for keeping a disorderly lioiisi and house of ill-fame, was — Held bad forawardiMi;. after' the adjudication of a penalty by tine ami im])risonment, further imprisonment in default I of sullicient distress or of non-payment of tin line; and — Held, also, that this was not a mere | formal defect within sec. SO of .'52 & 33 Vict. .'52, (I'om.) ; — Held, also, that theellectof sec. 'JS I was not to take away the writ of certioniri, //'• I ijina Y. J)'irla(r(lxon, 11 P. B. 9i>. — Osier. The defendant was convicted under the pi" eeedings taken under 32 it 33 \"ict. c. 32, ( Dfuii.i, not 32 k 33 Vict. c. 28 ( I >oni. ), for keeping a hcmsi' of ill-fame. Tlie conviction merely "ordereil but ilid not "adjudge" any impnsomnent or any I forfeiture of the line imposed : — Held, l)ad, as substituting the personal order of the magistrati' I for a. condenuiatiun or ad'udicatiou. lii'ijiint v. Xcu-lon, 11 0. R. 08.— O'fonuor. Sn G.\MiN(; lill.l.S OF E.\( I. P.\KriKS. 1. Partni II. ."^TA.Ml'S, 4.' III. Tl!ANSKi:i I\'. PliOTKST . V. M.\ki:r, 4 VI, Lmiorski VII. Actions ( 1. Intcrt.oiisi;i;, 4S. AcrinNS ON. 1. liiti'viM I'crurii-ah/<>, 40. , Dfkkncks to Action's. 1. Coiisidi'nifi'iii (in n (I'roinid of Defence. (a) Aci'iiinniitiliilion iir Want of Con- aliliriiliiin, 4i). (1)) Puiiktl Failure of Cun.i'uleratiitn, 40. (c) Frnuit anil lllcijal Conthli ration, ")0. 2. Tinw (liren for /'ai/inent, 50. 3. Other Difmces, 50. MlsrEI.LANEOt.S L'a.sks, 52. . JfHisincTioN oi' Division CoruTs.— •S'rc Division t'oniTs. IT. Stami's. On an appeal from the rejiort of a master who Iliad allowed the claim of a creditor based on a lliniinissory note nnBtam]ied at the time of its lie- liiij; made, and not properly double 8tami)ed until I iifter the repeal of the Stamj) Acts by 4.'> Vict. c. I (l>oni.) It was : — Held, that such double stanij)- liiig was sutlicient to validate the note, such right being reserved under the words, "existing or accruinj,' rights aie )iresirved." and that no dis tinction could be made lutwecn a note that wi-. current and a note that was overdue. Cauiihill V. (lark, -A ( ». I!. 27-, and P.ankof Ottawa c.Mc Morrow, 4 ( ), I!. .S4."i, refeii'cd to and cominentcd on. Vanl\. Coo/, i/, f> (). 1!. 22!).— B.iyd. 'I"he action was bronglit by T. et al. against (i. to recover the aiiinunt of a bill of exchange. It appeared that the draft wln-ii made, and wiun received by T. et al., had no stjunjis ; that tliev knew then tliat bills and |ironiissorv notes re- i|uireil to be stani|icd, but never gave it a thought, and their lirst knowledge that the bill was not stamped was when tlu y gave it to tluir attorney for coUeitinn on the 2{ith l''ebiuaiy, l.S.SO,and they immediately put on doubk' stamps. The liill was received in evidence, leave being reserved to the defendant to move for ;i nonsuit ; the learned judge stating ids opinion tliat though as a fact tlie plaintifls kin'w the bill was not stamped when they received it, and knew that stamps were necessary, they accidentally and not intentionally omitted to ailix them till their attention was called to the omission in l'"ebru:ir\', 1880 : — Held, 1 . That the ipicstion as to wiirtir.r the hiilder of a bill or draft has allixed duubie 8tam])s upon an unstam]ied bill or draft so sunn as the state of the liill was brought to his kiimv- ledge within the terms of 42 \'ict.. c. 12, s. I."{, (Dom.) is a ipustion for the judge at the trial and not fiirthejurv. ((iMvune, . I., dissenting. ) 2. That the " knowledge" ii'ferred to in the Act isai tual knowledgt! and not imputed or presumed know- ledge, and that the evidciu'c in this case sho\veil that T. acquired this know ledge for the lirst time j on the day be allixed stamps for the amount of : the double duty, 2()th Pebruary, ISSO. ;{. That the want of ]iroper stain)iing in due time is nut a ! defence which need be pleaded. ((Jwyiiue, .1. dissenting.) C/iainnan v. Tnft.i, 8 S, C It. ^A'.]. It. remitted by mail to V. a draft on Bay of Fundy (i)narrying Co., Boston, .Mass., in payment of an .account of the company, of which I!, was superintendent. The draft, when receivi'd by v., was unstamped, and V. atiixed stani]is re- (juired by the amount of the draft, and initi.ilcd them as of the date the draft was drawn, w hicli was at least two days prior to the date on ^^ iiirli i they were actually attixed. The draft was imt paid, and an action was brought against It., who pleailed, according to provisions of Cons. Stats. New Brunswick, c. .37, s. 8H, sub-s. 4, "that lie did not make the draft.'' On the trial the draft was oirered in evidence and objected to im the ground that it was not snilieiiiitly stamped, the j plaintitl' having previously testitied as to the I manner in wliieh the stamps were jiut on. and having also sworn that he knew the law lelating ! to stamps at the time. The draft was admitted, ' subject to leave reserved to defi'ndant to move for a nonsuit, and at a later stage of the tiial it was again olVered with the double duty atlixid. The trial resulted in counsid .agreeing that a nonsuit should be entered with leave reserved to defendant to move for verdict, couit to have power to draw infereiues of fact. On mntion, I pursuant to such leave roserved, the Suiuemo Court of New Brunswick .set asiile the nonsuit and ordered .a verdict to be entered for the pl.ain- till'on the ground that the defect in the draft of want of fttanip slmuhl have been specially plead- 2 OS o 47 BILLS OF EXCHANGE AND PR03IISS0RY NOTES. 4.^ ■Ill <;il. Ou apiieiil to tlieSuijruiiie Court of Canada :— Jfelil, Strong and (iwynnc .J.J. dissunting, that double duty .should have bcun i)laci;d NiiTICK UK i)lSll(iNOUJ{. The defendant, a married ■n'oinan, w.as entitled to dower in the lands of a former husband who died in 1S()(!, iiut dower had not been assigned to her. After the death of her saiil husband she C(mtiiiued to reside on the lands till ISSlJ, when she indorsed a note for the accommodation of her .son, and to an action thereon she set up that she had no separate estate, but even if she had, being an accommodation indorser only, she was not liable. A jndgnieiit having been rendered against i her, she moved for a new tri.il, alleging in adili- tion to her f(Uiiier defence, want of notice of tlis- honour. That a]iplication having been refused .she appcak'd to this ( 'ourt, when the ruling of the learned .ludge below was atlirined, as the pro- .llt's siL,'ll.i nil unilii ilale. Ilia;,; ill rciiiw,, Wlu'irlau hrought t , witii intrust at the I'ate of two per cent, per month until paid. IJy a covenant for payment cini- t lined in a mortgage ileed ,if tlie same date, livcii liy the detcMiilaiit to Liie plaiiitilt' as a col- Literal security fortiie iiayineiit of this note, tlie lirfc'iiilant covenanted to ]iay "the said sum of s.S.iiOO MM the nth day of .Inly, iSli'J, with inter- ■-t thereon at the rate of twenty-four per cent. |i.r aiiiiuin until paid." .\ judgment was reco- vrifd upon the note, i)ut not upon tlie covenant. rill' master allowed for interest in res[)eet of t lis delit six per cent, only from the date of the ricovery of the judgment : — Held, that the pro- I'fr ciinstructioii of th(! terms of both the note and tlie covenant as to payment of interest was, tliat interest at the rate of twenty-four percent. i^hiiuld be paid up to the llth July. ISli'J, ami Milt that interest siiould bo paid at that rate after ,-iicli day if the princijial should then reiinuii iiMpaid. SI. Jo/iii (•/ -(/. V. h'ljhrt, 10 S. ('. it. -JTS. Sl'k; aUo JiaiiL of /fmni/f'iii v. Ilnvn'ij, 11 l'. K. 14."i. kt the com \\ as niaki; lat the ill 1 ; and tli.it J as to tlh let was 11' : J cmiditi"': |l not liLi:. of sec. '■' ithisniiti dl )y or" ). 11. Ii5' Id debtur.l VII. Dkkf.ncks to A( tions. 1. (Jiinnhlirathiii as n (I'roinnl of Difcin't. (a) A(yoiiniiod(ifi O. K. I'S-t,*. H. I ». (c) Frm/il anil /III 'I'lt t 'lui^i'l' ralii,)i. To ,111 .ii'tion on four promissory notes made by the defendant and one H.. payable to the lilaint!tf, tlie defendant set u]) that tlu- notes were given for the purchase of the plaintiff's interest ill cert.iiii homestead lands in the State of Miclii gaii, II, being the purchaser and defendant jairety : that under tiie laws of .Michigan only persons of 'Jl years of ,ige could homestead lands; and that the plaintill" was under that age. There was no representation tliat plaintill' was of age, and H. obtained fiom idaiiititla surrender of his interest in the land, wlureliy he was enabled to have iiimself located in his stead, wliich he other- wise might have had dittiiiulty in doing, and In- got the same rights which lie would have got if the plainlitr had Iiecn ot full age :- Held, that it could not lie said that there was no eoiisideratioii for the notes, nor any misrepre.-'entation ; and the plaintill' was therefore held entitled to re- cover. FMr/a r w XiM; SO. It. |-2_'-('. P. I». Counter claim .'dieging framl in obtaining the. note. See Morri.'UDi it al v. Earls, o ((. It. 4Ht ; (I'lirlaiiil V. T/ioiiiiisoii, !) (). I!. .'ITli. The defendant It. having been charged with inisapiilying tines paid into his hands as a justice of the peace, and proceedings instituted auainst him in rcs[)uct thereof, the plaintill', jiending an investigation of the charge, volunteered his aid to assist It. ill ell'ectingasettlemeiit of the amount claimed by the inunici[)aiity, which he undertook to discharge upon the defendant It. giving his promissory note for the annmnt, indorsed iiy his wife. The idaintifl' thereupon settled the amount claimed by giving his note therefor, wiiiih he alleged he had subsec|Ueiitly [laid, and the defen- dants joined in a proiiiisscu'v note in the manner proposed by the idaintill': — Held, allirining the judgment of the court below. '2 ( >. It. •_'.■>, that the transaction in etl'ect aniounted to a com- promise of a criminal charge, and therefore that plaintill was not entitled to recover on the note given by the defendant. /!< H v. I.'ii/ildl, 10 -V. It. 544. Sec Slai Kidm II I'ad ('oiiiiiiuii/ it al. v. i.lrn n- irtiiiil, ') O. It. "JS, siijira. ■J. fiiiii' li'irnil'ia' /'ai/nidil. Held, that evidence of a parol agreement to extend for two years the time for the payment of a note payable on dem ,nd. was not admissible. l'er(ialt, .I.--Kven if the evidence was admis- sible, by the terms of the agreement, in tiiis case, the time was to be suspended (Uilyoii jierformance of certain conditions, wliich the defendant had failed to ilo, and therefore the iilaintill' was en- titled to enforce immediate pavmeiit. I'nrtiii'is I'l at. V. .M Hint at., SO. II. rJ7— (.'. 1". i >. On the 'JOth .\ugust. 1877, defendant I!, made a note of that date for .S700, at eighteen months, in favour of 1)., and for his accommodation, which It. gave to 1). without any restriction as to its use. I), endorsed tho same and handed it to tho plaintill'; and at the same time gave the plaintill' his, D.'s, own note of the same date at three mouths, taking from plaiutill' the following I OS o «^ 61 BILLS OF EXCHANGE AND PROMISSORY NOTES. 5-I Hr)3 receipt ; " Pieceivcd from Tt. a note endorsed by ; 1>. . jiiiyalilo tij;liteeii nuiiitlis after (late. furSTOO, whicli note is given me only as e(il]iiteral semuity for till- iiayineiit ot ecrtiiin note en. • and vlieii said note is fully paid, I a<.'ree to retnrn s.iine. " On the 'J4tli Scjitcndier. a statement of aeeonnt took ]plaee lietween the plaintitV and 1)., when 1>. took u)i the note of the 'J!)th of Angnst. liy givin;,' ]ihiintifl' another note for the like amount at tliiee months : — Held, I{osc. J., disstiiting, that the true eonstruetiou of the aiTi'duent was, that 1>. should have eighteen months, or so mueli thereof as the plain- till' ehose to give him. in whieli to pay off the ST'lO ; and that D.'s note njight he renewed from time to time, so long as ])aymer.t was not ex- tended heyond the eighteen months ; and that under the eirrumstanees the note of the "24111 Septendier eould not be deemed to iiave been taken .-is a payment of the note of "Jilth of Aug- ust, hevanney r. lirov nlee, S A. 1\. .S'l"), dis- ' t nguished. Per Rose, .f. — The etl'eet of the a ,'reenient was, that the note was given as eol- Icteral seenrity for the [layment within the time l!mite due from file defeiid.'int in his capacity as shan holder or eontributory : — Held, reversing tli. judgment of the court below, that the rejilii-i tioii was bad in l,iw. //c/.s- v. Tin- Bunk uf I'r'n,.. K'liriiril JJiuiil, 11 S. (•.' 1!. L>()5. Plea of payment to garnishor. Sec Iiuhli. v naii/ym, 11 S'. V. Pi. i;!7. The statement of claim was, that the defen- dant, being a director of a company, jointly ainl severally with three others made a promissdiv note payable to said company, with the intent that it should be used by the company upon tli^ credit of the makei's for the jiurposes of the coin paiiy, and the company indemnilied the maker; against liability thereon ; that the ])laintifis dis- counted the note for the company, and with tin knowledge and consent of the defendant, [laiil the ])roceeds to the coni])any, and the money wa^ applied to the purposes of the company, and that after default in payment the defendant gavi security to the iilaiiitiii's against his liability U[iiiii the note: — Held, on demurrer, statement of claim good, and that the ]ilaintitl's were entitled to ro- cover against the (iefendant the amoant of tlii. note, though not a negotiable instrument. Ilail iif lliiDiiltijii V. Iliin-i'ii, !) O. Ii. (!.'),"). — Wilson. See also Tin l-'idrrnl liunk v. Ilopi\ (5 O. R •2()!t ; Mvl-ioii.-: Bank v. Turhi/, 8 O. P. •2[};i. Vni. Mis( Ki.LANKor.s Casks. A cheque given in settlement of losses :.t matching eo)ipers is a note of hand given in cmi sideration of a gambling debt within see. o.S, sul- sec. 'A, It. S. <). c. 47, an. J. did before maturity. W. .1. told I>. J. that he had got the money from M with whom he had had dealings, as 1). J. knew but I >. .1. had no notice of any wrong iloini; in connection with the money : — Held, affiriiiiiij the judgment of P.oyd, C.,'lO (J. R. 1, that thi mortgage ceased to be an incumbrance on tlu land wiien the note was retired ; that M. coiil; not follow his money into the note, and was tluii fore not entitled to stand in the shoes of 1). .1. .as to the security held l)y him, even if it had htcil a mortgage to secure the payment of the iutt' Jack v. Jack, VI A. R. 47ti. BILLS OF LADING AND WAREHOUSE RECEIPTS. 54 ■\Vlicrc certain securities had been assigned as Icoll'iural for tlio jjaynient of a pmniissoiy note ,f>|,()00, wiiicli note was partly jiaid and a niw ,,.,ti L'iven, .-uieli seeuritics may Iju held until the jdi'lptis di.suharged liv jiaynient. Wi/'i/ v. LkI- ,„f,./, 10 r. i;. is-j.- iiodgins, J^/.(>. K. .'5'J. Scaring onchirser hy chattel mortgage. Sue \ llii lUn- \ . Mitc/i/i' rxoi), ISA. 1!. .Tid. >ir al.-o //aiiking .\ct. I'er Ritchie, C. .1., and I'liiiriiier and Henry, .1.1., contra, th.it M. ijuoad these goods was a waro- housenian within tie meaning of o4 Vict. c. ."), ( Doni.,) soastoniakehis rect;ipt endorsed ell'eettial to pass the iiroperty to the Standard Bank for the security of the loan made to the coin[i.iny in the usu;il course of its ii.mking liusiness. Miflui/ V. Ken; 8 S. C. U. 474. The appellants discounted for a trailing tirni, on the understanding that a i|Uaiitity of coal purchascil liy the firm shuiild be consigned to them, and that they would transfer to tiie tirin the bills of lading, and shonhl receive from oiie of the mcniliel's of the linn his receipt as a wharf- inger and warehouseman for the coal as having been ileposited by them, which was done, and the following receipt was given : " Received in store in Big Coal iloiise warehouse at Toronto, from Mercliants Hank of Canada, at 1'oronto, fourteen hundreil and fifty-eight (1,4.">8) tons stove coal, and two hundred and sixty-one tons chestnut coal, jier schnnners "l)iiiidee,' "Jessie Drummond," "(iold Hunter," and "Annie Mnl- vey," to be delivered to the onlcr of tiie said Merchants Hank to be endorsed hereon. This is to be regarded as a receiiit under the provi- sions of statute .'U \'ict. c. ,")— value 87,000. The said coal in shcib; facing esplanade is se]ia- \\\U' from and will be kept separ.ite and distin- guishable from other coal. (Signed,) \V. Snarr. Dated loth August. 1878."' The partnersiiip iiaving become insolvent, the assignee sought to liolil the coal as the goods of the insolvents, and tiled a bill impeaching the validity of the receipt. The chancellor, who tried the ease, found th.at the receipt given was a valid recei])t within the jirovisions of tiie ISanking Act. and was given by a wareliousemun, anil that the bank was entitled to hold all the coal in store of the deseriiition named in the receipt. This judgment was le- verned by the Court of .-Viipeal for Ontaiio, and on apjieal to the Sui>reme Court of Canad.i it wa.s : — Held, reversing the judgment of the Court of Appeal, 8 A. I!. !.">, that it is not neces- sary to the validity of the claim of a hank under a warelionse receipt, given by an owner who is a warehouseman and wharfinger, and has the I «/) «/% ^66 BILLS OF LADING AND WAREHOUSE RECEIPTS. yiioils ill liis posseHnioii, that the receipt shoiihl j the M. and D. banks brought in their chiinisui reiieli the liiuids of tlie bunk liy inihir.senient, ! creditors. Other creditors oiiposeil tliese claiii.i illid tiiiit tlie receipt given by \V. S. in tiiis case ] on the grounds that tlie banks bad been |i:ii; was a receipt witliin the meaning of ;{4 \'iet. c. i lurge sums in I'eduction of tiieir debts by asst!. 5(l>()ni.) U. (ititcliie, ( '. .)., and Strong, .1., dis- 1 of the deceased, wliicli they had taken aftci' h;, senting, ) tliat the linibng of tlie cliancelh)r as to \ death and before a(bninistration. The banks >i; tile fact of \V. S. being a person autliori/.ed l)V i up tiieir iigl:t to tlie assets so taken under wai- the statute to give the receijtt in (jiiestion slionld I iiou-^e receipts tiierefor, signed \i\' H. ami In, not liave been reverseil, as there was evidence j by tlicni. It appeared that .M., who was a [.p. that W . 8. was a wharlinger and warehouseniaii. ! visiiin menliaiit, in his liftitinie had obtain. 3. (IVr Fournier, ilenry, and 'rasdiereau, tbJ., that sees. 4(i, 47 and 4S of H4 Viet. e. ") (iJolii. ) arc intra vires of the I (omiiiion I'-.irliainent. J/< /■ cliniidi Bonk •'/ ('KiiiiJa v. Sndlli, S S. ('. It. ol'J I", a miller gave warehouse receipts for wheat to the plaintills attached to notes made by him. ));iyable to their order, to take U)i his overdue notes which were secured by like receipts. The receipts were in the following form : " llcceiveil in store in my w.iieliouse or mill from farmers, •J, 000 bushels of wheat, to be delivered to the order of myself, tefoie ti. receipts matured, .\I. disappeared and was s?,! secjuently found dead. Hefore hisdeatli becaii. known, H. ami his scjlicitor took possession' the cellar and the jiroperty covered by tlic i. ceipts, and posted \\\\ in the cellara notice st.iti;. j that H. held the proiierty therein as wareli(iii> . man of the banks, to whom he had granted !■ ceipts. Two days after taking iiosses^ion, H| refused to be any longer responsible for the [i; perty, which was sul)sei|Uently taken by t! banks under their receipts, and as it was rapi:! deteriorating was sold by them. At the time the sale tiiere was no personal representative: M.'s estate, nor was there any execution etc': tor. It appeared by tiie evidence of H. that;, had signed the recci|its at .M.'s request ami a- nnitter of form, but that he had not leaseil i: cellar, nor had he any control over it luir ti.: 1 - 1 1 1.1 i. 1 1 ■... 1 ii .. I proiiertv contained in it: — Held, that the rectii;. wlieat covered by the receiiits, and admitted that ; ' ' i i i »i <.- i i «.i ■ ^ . . . i '... . . \ Were good between the parties and by the icsi;.- of the siiliseipient dealings they were reliaiiii | t:.: the wheat and tiour in his mill was eovere .*. i..:, ii i ^, . ., 1.-4. I' 1 i 1 ii ■ I act ot intervention oil H. s part during tlie I about the same tiuantity ot wheat and Hour in c \i \ l ■ ii.ii- . r •luantity and about the mill at the date of the last receipt \ as there was in ':>ri' fiien' vi-.-iw .... '. " iipiui the wheat of T. ; or at any rate there was a mere substitution or continuation of securities according to the original understanding of the parties: — Held, also, tliatT., having undertaken to keep "the grain separate and distinguishable visible and continued possession of the bailei' lie .Miiiili'illi — Ml rr/iiutts litnik it A. l;. DO. ('iiii>truction of conditions in hill of lading — iialiility of earriers. .See llntihi d nl. v. Mir- \.u,h /Jis/i'(lc/i 'J'r<(n-ijior/iil!<)>i Co. itnl., 12 A. .JOl. i>. 73. BILLS (JF SALK AN!) CHATTEL M()UT(JA(ii:s. L t;i:.NEi;Ai.i.v, 57. II. Foii.M ANii lli:(,>ri.srri:s of, ")S. HI. UKiusruATioN ani)('iiaN(ii;of1'()sse.ssion'. 1. Affiiliint of Jioii'i Fiilr.i, ,')<). 'J. Hi'ijittntfion, (iO. li. C/aoir/e of' Pu.s.tc.f'^ion , G 1 . l)Ks(i;ii'TioN OF Goods, 01. CoNSIDKKATION ANU BuNA FlUF.S, ()'2. \V}t() MAY Impeach, (Jo. llOUglltt-j ■ipped tliq pliers') (i»1 I other til eeeipt wt id to €■ |k the sill 'aiiceil t lurning ta 1 puriiose If ter taki'J rda: "EI Fkavi) and Fjiaiidui.kn r I'ukfkkf.nle.s- .Vie F«AL'DfI.KNr C0NVi:VAN( KS. hands: — Held, (overruling IJohertson r. Thomas, S (). I!, 20), that assignments for the hcnelit of creditors were until 4S \'ict. "ifJ (')nt., ) within the Act relating to ciiattel mortgages and hills of sale: i;. .s. (>. e. ll!t. Whitimi vi iiL v. Umvif nring the year, and while in B.'s possession, she was seiy.i'(l and sold by the sheiitl' under an execution against !>., but notice of A.'s ilaim was given to the sheritV and |)nblicly at the sale. .Siibsei(U('ntly the mare had a colt which was in greinio at the time of tiie s.ile. In an action by A. against ('., the ])nrchaser at the sheritl's sale, in which V. contended that the {{ills of Sale .Act, I!. S. ( >. c. ll'.t, avoiiied the plaintill's title as against the execution, it was: — Held, th.it the Act was in- teiuled to apply to personal chattels susceptilile of s|)ecitic ascertainment ami of aci'iirate descii))- tioli. and capable of being transfi/rred and pos- sessed in s))eiie, and did not a)i]tly to an indivis- ible chattel like that in the |)resent case; that .A. and l>. were tenants in <-ommon of the mare ; that H. s ])osscssion of the mare was not his sole or exclusive possession, but the jiossession of both ; that the sheritl's sah; passed only I'.. 's in- terest in the mare, and (.'. by his ])iirehase be eame a eo owner with .\. : and that the property ill the eolt followed that of its dam. and that A. was an owner of an undivided moiety in both. (Innn v. /tKn/i-^-t, 5 0. K. 085. — lloyd. 1. (illNKKAI.LY. Uii incorporated trading company being in in- Iveut circumstances, the ]U'esident and .seere- K iiii the 15th August, ISS4, in pursuance of a ntiiiii of the ho.ird of directors joined in ex- litiiig to the plaintill's — one of whom was pre- ont of the eomiiany — as trustees for creditors, lassignment of all the red and personal estate of H'liiiiiiiiny. stock in trade, rior delivery, the refusal of the judge of the County Court of Hastings to disturb the \ verdict w.is atlirmed. Taterson r. Manghin, .S!» , (,>. 1'. .'171, ap[U'oved of and followed. //((// v.. «/l %y% 5C BILLS OF SALE AND CHATTEL MORTGAGES. 'Jii Colli ii-< lid II Jfiiffiiii/ mill Fiirirdnliin/ (oiiliKtiii/, I'j A. u. tir.. It is esst'iitiiil t(i tlir valiility of .•■.chattel iiioit- giigeto suciii'u tlie iiic)rtgiij,'(,c iii'uiiist the iiuhirHe- iiioiit cpf any hill . e. ll!t, th;it it sliiiiiM set tnrth lully the uiirceiiieiit hetweeii the Jiaities ;ui(l the aiiKillllt til the liahility intended to lie created, and that the liahility which it indfesises to secuiv, shoidd lie truly wtated. linrhir v . .Udi'/i/nr-inii, 1,'i A. 1!. ;!.">(;. In X()vi!nd)er,,l.SSl ,tht' iilaintill'endorscil a nute for till! aeeciiiiniodatiiiu ot M, for S')')(t at three ludnths, and a.s indemnity against any liahility in resiiect thereof, or ol any renewal, took from M. a chattel mortgage which was only renewed once, although the note remained unpaid until the 4th of Novemher, lS^i'2, when S'tO was jiaiil )>y M. on account, and a new note at .six months wa.s given foi- S.'jOO in which the plaintitl' joined as maker instead of as indorscr. ami after this note hecanic! due and had remained un[)aid foi' six months the plaintiH olitaiued a second mort- gage from M., reciting that lie hail indorsed a note tor S')'t{), which hail not hcen jiaid, and that ))laintill' was still liahle thereon, or on the re- newal thereof, and was liahle to lie called upon at any time to pay the amount, and the plaintitl' was called upon to [lay and actually did jiay the note and interest amounting to ahout .S.'ilK). Jii an interpleader [iroceeding at the instance of an execution creditor of .M. : — Held, (allirniiug the judgment of the County Court) that the mortgage was void as against such creditor. The distinc- tion hetwecn mortgages under the 1st and under the (ith section of the Act, considered and acted on. The distinction hetween the two classes of eases provided for l)y the (ith section, considered. Kough r. I'rice, I'T "C. P. :<(»!»; Ontario Hank r. Wilcox, 42 Q. B. 'M'J, commented on. //'. Sec T/if SI(ri'n-<, Tiirwr . II. T.Sit, p. (10 ; /'i(/7.(.s V. .S7. <;<„ri/r, 10 A. I!. 4{)(i, ]). (j.'J. See al.-() JiiiliintDitit itl. v. Cuu/:, GO. II. i)'M. III. ItKinsTHATIOX AND ChANCH OF rosSESSIOK. 1. AjfiildrH of Hi ma Fhli-.-t. The plaintifi's .sold a portahlu saw-mill, engine, boiler, i&c. , to (>. cfc K., htit the prfiperty and right of possession weie not to pass until pay- ment of the price. (.>. &. K. used the mill, &e. , us a portable mill, for which tliey were desigiipd, and then under tlie lielief that they were the ]iurchasers of eert.iin land from the Canada ( 'om- jiany through the company's agent, erected the mill, &c. , thereon, so iis to assume a permanent character. It .-ippeared, however, that the agent had no jiowerto sell, and the land was afterwards .sold to the defendant. On the i'2th Novemher, 188H, prior to the defendant's ](urchase, the de- fendant took from (J. it K, a inoitgage on the land to secure an alleged iudehtedness to him ; and on the l.")th Novem'Der a chattel mortgage on the above chattels, 'i'he latter mortg;ige did not state the amount of tne indebtedness : and the alhdavit of Ijona fides was eijaally defective, ns it merely stated that the mortgagors "are sum of money," no sum being mentioned, (ij. the 'JTth November, on the boiler being i\. changed for another one, (). it K. gave plaiuti!!. a chattel mortgage thereon. There was a im.. descrii>tioii tiieiein as to the nundier of thus,- the boiler, and as to the land on which it «:i. situated. The defendant having elainu'il th., mill, itc, as against the plaintitl's : — Held. tlir. the ]plaintifl's wel'c entitled to recover daiiia^'. not only for the goods owned by them, but al- foi' the boiler under their chattel mortgaj^c. i r though it w.is suliscijiieut to the defendant >. tli. latter was voiil as against the plaintills. ti.. amount of indebtedness existing or creati il i.v the mortgage not being mentioned therein, aii.; in the atlidavit of bona hdes as rei|uired by ti, hrst and second sections of I!. .S. (). e. ji'.l:^ Held, also, that parol evidence Was adnii.-sililv to shew that the boiler in question was the "ii- mortgaged. 'Jln' Sli n ii.-<, TiirmrA' Jiiinis i'n tli'i/ mill (iiiii'riil Mdiiiij'di't ili'uiij Co. (I.'ilii'i' V. Um-fiint, !) o. 1{, (iil'J. — Cameron. 2. J'l i/iy/riitioii. K. having become security for repaj'ineiit !■. li. of .S(i(K), an agreement in writing was entiu into that in consideration thereof II. did asM. to K. ""all his right and claim to the goods ,ti, stock-in-trade in the store of M. to an aniuui, sulli(;ient to reimburse K. whatever he nuiy [m in er\\ said, and should there not lie stock enough J: that pur[)ose in the store at such time, the Im ••iiu-c after deducting the value of the said sto'« shall be made up of the book debts then on tiir| bouk.s of H." This agreement was not ru; tered. li. subseiiuently made an assiguiiuij for the benefit of liis cieditors to C, at wlii : time only about S'-'O worth of the stock was ti.: same as had been in the store at the time of ;;,: said agreement, and K. 's administratrix r ■- brought this action against H. for repayiuwiil and in default, for payment by C. out of t:,r| liroceeds of the stock and book debts of H., i as well as H. F. & (,'o., creditors of H. wlm executed the assignment to ('., being made pirl ties ile'endant with H.): — Held, reversing tl dccisitiii of I'voudfoot, J., that, so far as the 1 debts were concerned as to which registrat; was unnecessary, the agreement was valid .'■•■ binding as against the creditors as well as I: Taylor r. Wliittenuire, 10 (). H. 440, cited anJ of ; Short i: Ruttau, 12 i). B. 7!t, 1 1 Kilrlilii;/ V. JJidv et al, (J 0. l\. ::!ii- approveil followed. Chy. D. Held, also, atlirming the decision of Proudlm'. .1., tliat though an assignee for the benefit of 'I'l ditors could not take advantage of the want' registration, yet creditors themselves might, il though luit creditors by judgment and executi'S at the time of the assignment ; and followi!;.| I'arkes v. St. (Jeorge, 2 t). R. 842, and Meri'l^ Sdver Co. v. Lee, 2 O. K. 45, that the assigniiKE'l I did not prevent them from impeaching it. / Held, furtlier, that the terms of the agreeiiii).: I were not sutHciently comprehensive to covert:! substituted, rentiwed, or added stock in tr,i'ir| lb. fully indebted tome," tlie mortgagee, "in a large. See also yiV//i'/i«u/J v. Cook, 6 0. Iv. 590. ■ol BILLHJOF SALE AXD CHATTEL MORT( JAfiE.S. (52 IRmI. (I;, pliiinti!!. :;iH ;i lii;. )t' tlui-s. loh it \v:i. I liini'il tl,. lel.l, th,>; ■ (luiiui:;- I 1, but al- ■t^n^r. t .; laiit .-. ti, ntil^. ti.. M'oatiil i'V lori'iii. Mv. red liv tiiv C. I ill:- I a(liiii>siii: IS till- I !; iirii'f I'" ayinciit i. vas eiitt.'!' flid asM.; 3 yodils all an allium,: ic may \<.u ;ty as uti'!\ t'lHiugli j; ne, thf !i:i. sai'l stu' » tlu'll (111 tl. IK it IVgl- [issiguiiui.;' , at will'... luk M-as ti.: Itime of tii: latrix I'l" reiiayiiKii;. out of tiii of H., I I. whdlu: iiiadt! i«; Iversiuj; tit [IS the 1.1'"' ■egistrat;":.| valiil ii:;. iwell as H citt'il ;iik B. 7!l, i- ). ]{. 7:5''-i I Proutlfiif'-I iiffit of '1- Ihe want ■ might, li. |1 exiii'iitt: followi!. m M.Ti'lr: lassigiiiiii'' l»g it' 'i agreeiiiti' cover tK in tiM'i- l590. 3. Chatnjc oj Poxicssinit. ', Tiic defeiulauts seized goods in the jiossossion i,f Midi, under an execution against iiiin ; and the iilaiiitiiVs, the IJanlc of M., claimnl the goods as :issii.'nees under an uni-cgistcrcd liili of sale uiveii !iV Midi, to one !•'., as collateral seeui'ity for in- (I'flitiiliiess. There was nochangeof |iiissessioii. Aft' rwards McL. agreed with the liank to hold the goods as tenant at will at a rental, and suli- jeqiu'iitly the l)anli made an inell'eetual attempt td take jiossession : — Held, (ri^versing the jiidg- iiK'iit of the County (Joui't of iiaiiihtoii), that the .ittriiipt to take possession of the goods w,as not ' .sii!li<'ient to satisfy U. S. O. c, ll!l, and tliat the It'fiiidant was tiierefore entitled to succeed, raikesc. St. (leorge, 10 A. il. 4'.Ki, distinguished. )l,K'lluriirtoii, .1. A., ami (ialt. d.— The s,de of the ilebtor's i;iMul3 was not only aecom[i;uiied by an immediate and complete delivery, but was followed liy an a'tiud and continiu^d tdiaiigc; of ]iossessioii ; and wu'i therefore valid as ag,iiiist creilitors under it. S, (). e. 110. s. ."). I'er Patterson, .J. .\., and Uiisc. .1. — The actual eliaiii;e which must im- iiH'diately follow the sale is the s.amo change which must continue ; and it could not be said to Iw.'c been eontinueil where the vendor appareiit- Iv resumed his place in the shop containing the ■.'iKiils in (juestion, one day after the sale, though ill reality as clerk or salesman for the purchaser. .irnhiii'r v. Khilur/i el nL, \- A. It. 'Mil. Held, reversing the judgment of Ferguson, .1., I ft (). It. 314, that in this case there had been such an actual and continued change of possession as t'l defeat the executions against the company. PiU'kes c. St. (ieorge, 10 .\. It. 4!)li, and Seribiier r. Kiiildch, 1-2 A. Jt. :J()7, followed. W/iHiii;/ ct al. |v. Hvciij ct at., 13 A. 1!. 7. .See Cammerchtl NalUjital Bank of (^lilraijo v. )i. oS ; IJii minion Bank U.DariiUon, et al., 12 A. H. DO, p. 57. IV. DE.scKimos OK Goods. I In an action against a sheriff for false return Itlie defence was that the goods seized and sub- lsi''iuently, on his being indemnified, abandoned liy liiin, and which were on H.dd Lake, Huck- lli'ini Lake, Sandy Creek, and Scpiaw River, were Ic'ivered by a chattel mortgage to a bank, the l^'iirids in which mortgage were described as being |"iiow in and ujion the waters of .Mud Lake. Il'iueou Creek, I'lu'con Lake. StnrL;eon L.ike, and ISiiigog lliver, and the shore adjacent thereto. Tl'lie evidence shewed that the former waters pveie well known as such, and as distinct from jaiiil forming no part of the latter, and that no |l«rt of the goods seized had ever been "in and liiliiiii" the latter ;— Held, that the wonls in the Imiirtgage, " now in and upon." expressly limited Ithe goods to which they referred to those g'lods hvhich were then upon the waters ineiition'Ml in Itlie inortgage, and the shore adjacent thereto, |iiid could not include the gomls seized. D'ln- •■il;i V. J fall, 7 O. K. 581 -Q. IJ. IJ. The president and secretary of an inroi-[i ir.ited eomiiaiiy, which w.is insolvent, executed an .is- signinciit to trustees for creditors of all the real estate of the conniiiiy, and also of •• Ail and singular tiie personal estate ami eH'ccts, stoi'k in trade, goods, chattels, rights, and credits, lix- tures, book debts, notes, accounts, books of ac- count, clioses in action, and ,all other tlie p'.'isonal estate ami etf'ects whatsoever and wheresoever, and whether upon the premises where the coin- ]iaiiy's business is now cirried on or elsewhere, which the company is possessed of or entitled to in any way whatever, ' which as.s!L,'iimeiit was duly lih^d on the following day, and tlie business was coiitinueil as before until the ■-'.'h-d of the same month, when letters were written liy the secretary in wliicii the trustees were ne'iitloned, and live days later \Vhitiii_', one of tin trustees, demanded ami received from the inanai;i'r of the company the keys of the ]iost otiice Imx, and di- rected the m.inagi'r to keep the concern running. (Ml the 4th of Octolicr the tii'st of scvi'imI c.\i'cii- tions against the goods of the eom|paiiy was sued out anil idaced in the sheriff's hamls : -Held, allirming tin.' judgment of l''ergu.-i'iii, •!., !» < ». It. .■!I4, that the descri[itioii of tlie goods w,is not siitiieicnt within the meaning of 11. .S. ( ». c. 1 \<), s. •_>;{. Whitiiiiiif al. V. llnr.ii ,t al., V.i A. It. 7. Semble, A description of property in a bill of sale or chattel mortgage .as '"the stock in-trade ' of the grantor in a spei.ilied locality, siieli as his store or warehouse in such a place or street is sutiicient. Nolan r. IJoiielly, 4 O. It. 440, ob- served upon. MeCall e. Woolf, ,Sup. (.'t. ('an. [not yet reportedj followed. If). V. CoNSIliKK.VTION' .\ND IjON.V. FiUKS. Part of the consideration of the mortgage was covered by a draft drawn by the mortgagee a merchant in the course of business, on the mort- gagor, his custouuM'. and discounted at a liank : — Held, that the mere fact of the draft having bemi discounted at the bank wouhl not justify the (Jourt in assuming that the debt represented by the draft was paid, and that the remedy on the draft was to be .-done looked to ; and therefore that the ainouiit of the indeiitedness in the mort- gage could not be s!ud to lie untruly stated. .Meriden Silver Plating Co. c. Leo, 2 ( >. U. 451, commented on. ll'iihnrii v. Park it "/., (i ( >. R. 47--'.— Osier.— C. P. D. Held, following Hejiburn i'. Park et al. , (! O. R. 472, that the fact that the notes in (|Uestion Were held by tie mortgagees' bankers on discount did not invalidate the mortgage, //'///co; v. ( nlh- \ l/erttoii, 10 U. 11. 443— Q. B. i). Q. and A. carrying on business as licensed vic- tuallers were indel)tcil to the defendant S., a wine merchant, to the amount of .'r!l,551.(;'i ; and licing desirous of obtaining further advances to aid them in carryin;; on tlieir business. a[)[(lied to .S. tiierefor, which S. agreed verbally to in ikc I upon receiving security for .such ad v,-ui',-es as well j as such prior indebtedness, and Q. and A. ac- eordingly on tin; 24th of laniiary, ISS2. executed a mortg'ige t i S. on all Iheir stock in-trade, se- eiiring .Si, 400, S. agreeing to make the further I ,nlvanccs in money and goods, as they should re- (|uire them in the course of their business, and I he did in fai't between the date of the execution o as o G3 BONUS. Gl (;.» (if till' ni'irt<5njc ami tlio 3nl of March fullowiiii;, advaiii.u til tlit'in ii^lUJO in iiioncy ami l^doiIh, ami tlie balaiiie nf tlie fiiitlicr ailvaiicc was ready to lie given to thiiii at any time ihirin;,' tiiat iirriod. 'I'lu' affidavit of indi'liridliesn in tlie.sinn of 8-, tOO was in tlie nsiial t'orni. and tlio niortj^aj^u wa.s duly registered. (»ii tiie last mentioned date <,>. and A. eXeented a deed of as-iignment for eredi- tors to till! del'endant ( '. ot all tiieir estate, wliero- npon S.. treating tliis assignment as a hreach of the eovenant against selling or ]>arting with jios- .session of the goods, seized tin'Ui in tiie iiands of tile assignee and sold the same, undertaking to hold tiiu Jiroeeeds .snlijeet to tiie order of the eourt. 'rhereU|ion the iiiaintill', a simple eon- tract ereditor of *). and A., njion a rieinaud due at tlie date of the mortgage, instituted prneeed- ings .seeking to recover jiayinent of ids elaini for .S10).!>4 and interest, and also seeking, on liehalf of all the creditors of t^. and A., to have the mortgage declared Miid.and the annmnt realized on tlie .sale of the goods paid to the assignee i — Held, that even if the fact of the mortgage being ex))ressed on the face of it to he made for a sum greatly in excess of what it was proved was due, was such an olijection as miglit render the secu- rity void under U. S. (). c. I lU, as against cre- ditors, yet it lieing clearly shewn that everything between the parties in connection tlierewith was done bona lide, and there being no creditor in a ])osition to seize the goods if the mortgage were wot aside, the plaintilV could not succeed, and the eourt (Patterson, .J. A., dissenting.) reversed the juilgnient of the court below, {2 (). K. '.U'2.) Per rattcrsoii, .T. A., the mortgage and the iUtidavits ai'coinpanying it, though in their form and state- ments complying with all that is presciibed by the statute, being untrue in fact rendered tlie security void. Per Hurton, .1. A. — Although no ground was shewn for impuaehing the transac- tion as a fraudulent preference, the mortgage under the Chattel Mortgage Act, 1!. S. 0. e. 11!), was invalid as against creditors who were in a position to attack it. which tiie plaintill' here was not, and as any informalities in the transaction were cured by the mortgagee having taken pos- session of the property, the plaintilf could not maintain the action. Per Osier, .J. A. — Tlie agreement between the mortgagors and mort- gagee niij^ht be lookei I upon as having been I'eally one for a present advance, tli(Uigh tiie amount was to be paid out to them as they reijuired it. It was not necessary therefore that it should be set forth in the mortgage under sec. (i of the Chattel Mortgage Act, iL S. (). c. lilt. Barker r. ijeeson, 1 (>. K. 114, dissented from, per linrton, J. A. /Vn/w v. St. 0<'or(/e, 10 A. K. 4%. See also Fnrloh'j v. Pild, 12 O. R. GOT. VI. Who m.vv Imi'E.vch. The plaintiffs took a chattel mortgage from W., who the next day assigned to the defendant in trust for the benetit of his creditors. The defendant was not a creditor, and before any ei'editor had been informed of the assignment the plaintid's, who had omitted to register their mortgage, demanded of the defendant the goods contained in it, which was refused, whereupon this action was l)rouglit. Upon the application of the defendant, with the consent of .^I., a cre- tlitor of W., the master in chambers ordered M. to bo added as a party dof('ndant, in order t . test the validity of the plaintitl's' mortgage : Held, aliirining the order of (Jalt, .1., who ri < cinded the master's oider, that the defemhii.t was not entitled to the order, for when the plaiii- till demanded the goods the creditors had iii right, and they cinild not by a subsequent ussi n; make good their claim under the asaignnient. Ilywuh v. /loiiriir, .5 (.). It. 4;i0— C. P. D. A judgment or execution creditor is i-ntitli '■ to im|)each a chattel mortgage on the ground < an irregularity or informality in tlu^ execution ■' the document, or by reason of its non-coinpliain ■ with the ])rovisions of the ( 'battel .Mortgage Ai ; (I!. .S. (t. c. I lit) ; l)nt a creditor who is not in j position to seize or lay on an execution on tii- property, cannot maintain an action to have tlir instiunient declaied invalid. A creditor in that position can only maintain such a iiroceedin.' where the security is impeached on the gi-oiiii 1 of fraud. /'(/;7,v.s v. St. <.Vo;;/,', 10 A. 1!. 4!t(i. Held, following Parkes r. St. fieorge, 10 A. ll. 4!)(), that the plaintiffs, not being executini, creditors, could not n.aintrdn an action to stt aside the mortgage on the ground that the debt was incorrectly stated therein. Jli/iiian v. Cnlhlii'iisoii, 10 O. U. 44a— g. B. H. See Kitihiitii V. //;(■/■.-( ct rtl., (> O. I!. 7S!), p. 0(1; See also .l/((tv/o/(((W adjoining wniieriy belongei 1') exact indicati n'tween them. '1'. ■ii;. veyor to asce: yiir wi'ut to the iiiriied his nortlii 'lit an oil I fence, i tliu land between .Mill tiie line of tl wii.s his biiiindary 1 jtiR' average line of it met the post. I I'lij'-ctiiig. A (vw iiivliitict and build ill till- presiMice of I'Ut tile boundary b tiiu surveyor's liiar ating was eoninu mnifdiately, and T •' tile line on tlie riie first time that < "luaihiry .so markei iiiiise were up ar.d i I'l'.iliii' money had 1 filil, thiit C. was e lie line run by the "iVMr// V. Vnrti'i; 1( III 18(il, \V. I), p "'iimled on the '.so: ,ist liy William stri trt'et, and running i iic siHitlierly portii ':in. which plan si wti-ii the plaintiir s \ai-tly (100 feet froii takes or other n iiti' the bouiid/iric- 1-- land so laid out. "I'-miingland to th It. was laid out in 'II. aiid a .street wa fl,\; limit of the fir iiiit iif the second [ "ever, of this str i''-;iter than the first 'le, and the parti Im Hipeared to ha "wii street and th r-t plin ,vero aetin '""1^'. d., I. -I'lui t ^'^ plaintitr's and d 'iimiciicing at a pn 5 tl.. liliOKKR. 69 'ci liAii.wAYs— .SVi' Hah. WAV' WAY CoMPANIKS. ■VILWAV- Burt HOOKS. Sci' Col'VKIiWlT. AM' J!aii.- struct, as iin-'asiiffd on tin' niuiiiul iit tlie tiiiiu I wiii'ii tlu' iil.'iii wiiH inailt; ; l)iit in tlio absonce i)f I cvidcni'i' mIiow in^' a nu'asnrcnii'nt on the li;vt.'llt'il stn.'tt, tliiit piiint I'lMild not In' ai'<-'<'|)tfil as tlnj tnif I'oint of coiiinu iici Hunt of tlic Imiinilai'V in .|Uistion. '_'. Inasiiiuili as tli nvtvanccs to till' iiartii's wii'i' niailc ai nlin^' to tlic tiiv-t (ilan, tJR' SL'ConiJ |ilan coiiM not In' inv(jkfii to aid in as- ucrtainiii!,' tlu' limits of the lotssoconvi'VLil. /''. Kenilant of U. INICII'A'- BOUNhMlV. I. r)i:s( lunioN iiK F,AM)— .SVc Dkkk. II. Party Wai.i.s— .SVc Ht'iLDiMis. III. r.Y Waiku— .SVc Watkii and Watku ('(iru.sE.s. T. was the ownerof lot !t, and ( '. was the owner |(.f lot (S adjoinini,' it on the; south. Iloth lots hail ||iinntily bilonycMl to one peraon, and there was ■ iio exact mdieation of the true lioundary line | lii'tween them. T. Iteiny about to hnild, em|d(>ye(l ii ■ii;.veyor to a.seertaiu tiie lioundary. 'I'lie .sur- v.yiir went to the place, and asked < '. where he , ikiinied his northern boundary was. ('. pointed: I ut an old fence, running,' part of the way aeross ' [tlic laud between the lots and an old post, and Is.iiil the line of the fence produciMl to the post IwiLS his boundai'y line. 'I'lie surveyor then tocdv Itiie average line of the fence and )5i-odueed it till |itiiiet the iiost. He staked out this line. ('. not liji'ctiuL'. A ivw days aftcrwarcls T. , with his liivliitcct and builder, went on the yiound, and. liii tlic presence of (.'., the builder aj^ain marked lut tlic boundary by means of a line eounectiny kill: surveyor's marks, C". not objecting. Kxca- pting was commenced accordini; to that line Jiiiinediately, and T. 's house was built acciu'diiig the line on tin; extreme Ycrge of T. 'slaml. riic lirst time that < '. raiseil any objection to the iiiuiKlary so marked was when the walls of 'l'."s |i"iisc were up a:;d ready for the roof and eonsi- 'ivihlc money had been expended in building: — ' rlilil. tint I'. WHS estopped from disputing that the line run by the surveyor, was the true line. , ilriKitt V. ('i(r/,'r, 10 S. V. I!, lu"). i hi 18(!1, W. D. v., who owned a piece of hxnd | •lUiided on the south by Qneoii street, on tiie J l.istlij- William street, on the west by Duminer | Itreet, and running north some distance, laid out |lie southerly (lortion into lots depicted ui)on a Jil;in. which jilaii sIiowimI the boundary line be- | IffW'ii the plaintiff s and defendant's lots to be Ixai'tly l)0() feet from uecn street was iter than the lirst jilan on its face .showed it lie, and the parties :?. PdMTISH NOP.TII A.MKIiK'A ACT IS(i7. .S'm CoNSriTITKINAI. I, AW. BROKER. The pl.iintilf ]iledged with the defendants, cer- tain sliares of b.ank stock, as security for a loan under an agreenient in writing, providiui;, that he was to keep up a cash margin of not less than 10 per <'ent. above the market price ot tiu^ stock. and authorizing the bank, in the event of def.iult. " to .sell or dispose of the said security without notice, and to apply the proceeds in liipiid.ition of the said advance. " The plaintill' elaii led that bcf(n-e default was made, the bank wroni.'fnlly loaned or sold his stock withfint his knowledge or consent ; and that he was entitled to credit for the amount realized, ;iud to a return of interest paid, and damages for being coni]iellcd to give addition.il security, 'i'he defendants alleL'ed that although the stock was transferred b.ickwards md forwards by w.iy of loan, it was never .sold until default w.is made ; — Held, that if tlie stock was sold before default made, sueli sale was tor- tious, and following ex |iarte I lennison. .'! Ves. o.a;!, that a loan of the stock was a sale ; and tint the- plaintilF might eUn-t, either to claim d.-im.eics, or aflirni the sale and claim the proceeds .iiid protits made by the bank ; one element of the incisure of damuLies being, the highest point of the stock market between the conversion and the lext de- faidt. But that if default %vas made, the bank was entitled to sell the stock without notice ; but oidy for the purpose of licjuidatin.' the a 07 BUlLDINc; C'ONTliAlT. i;ii liucii tr.'uisferrcil. ('(iviu n'lc v. Tlf FkIi nil lionL- III (' ii F. was tu |iiiirhas.j anil lariy for tlie iilaiiitill .'illO shins i)t Feilrial Hank stuck un ii.iyiiieiit l>y plaintitl ut .'i iierciiitagc un tin.' imiehase inuiiey ut' the stuck ealli'il " inarj,'iii," ami tiie jilaintitl' was tu kee]i iij) his iiiar^iiis in ease of a fall in the value iif tiie stuek ; and tu eiiahle F. tu carry the stuck, a time luan w.is also arraiij^eil for the lialance uf the ]iureh,ise inuney, i>i^ which the , plailititr was to ]iay ,S per cent. It a[)|ie,ii'eil that no stuck had ever liccn [iiirchased for the ])lain- titt, and the defemlants never had, and did nut carry any stuck (uv tlit; )il,iiiititl, hut were, as it is terined, " siiuii" on this stuck :~Hcld, that the defendants haviii;,' tailed to carry uiit the .'im'ecnient tu carry the .stuck for the jilaintitl', the plaintitl was entithd to recover hack from the det'ciidants the money paid as margin, in- terest, i*tc., as money had and received tu the pl.'iintill's use. Snllnrhiiiil \. Cor il dl., (> it. \l. .■|(),".— ('. r. I). Atlirined 1)V the Court of Appeal, i:{ A. i;. ■,-2:>. The defendants set up an alleged cu.stoin and Usage (li the stuck e.xch.inge, that where a broker h employed to purchase stuck tor a ciiKtunicr un iii.irgin he is at liiierty tu he himself the seller and noiiiiiial pledgee of the stock, and to charge a cMiiimissiun as if a real sale had liceii ell'ected, althuugli at the time he may nut ho uwiier of a single share ; and that the hrukcr fultils his ob- ligation, if he is prepared at any time to deliver tlie stock to his customer ; — Held, that no such custom could prevail ; for nut only would it lie directly oppose,! to the law which regul.ites the transactions between broker and emjiliiyer, but it has this furtlier delect, that it substitutes the personal liability of perhaps an insolvent broker for the real security of the stock. //;. .'>ee next ■ ease. ] The plaiiititr, a bmker, iiledged certain stock w ith tlie defendants, brokers, for advances, and it was agreed that the plaintitl' might call for his stock or the defendants for their money on two days' notice. Tiie defendants lieing in need of ; that stuck immediately used it for the purpose of lining their own engagements. SubHe([ueiitly the defendants alleged that the idaintitt' was in | default, and the plaintitl', not being aware that '' till y had disposed of his stuck, g.ive them his ]ii'iiinissory notes for the amount elaimed by the defendants. He subsccniently discovered that they had sold the stock. The defendants set u]) ill defence to this action fur the wrongful sale an .•illeged custom of brokers that upun stock beiny pledged to a broker he might use it as his own, being ready to return to the pledgee when called n|iun an eijual number of siiares of the .same' .stuck : — Held, that no .such custom was ]iroved, j iiur would such a custom be valid ; that 'the par- 1 ties might have agreeil to be bound by such iiiin iier of dealing, liiit in this case no such ayiceim ut was priived. Murn v. Cnjil al.. (i < •. II. u.Mi. Held, alsii, that the difcndiiiits might law fully have re pledged the stock toelialilc them to la^si. the ad Vance -1 tu thi' plaintitl'. imt tliat the s.ili ^ ami other dispusitiuiis uf the .-tuck lpy the del. n- daiits without liulice to the plaihtill', ami wliui he was not in def.iiilt, were uiinigful, and tli.it the pl.i.intill was i ntitled to recover troiu the ilr- leiidalits the prices at which they sold tiie stu' k, The jury found that the sctth ineiit MJiich n-. suited in the ]il.iintitl' giving mites to the dcii n- daiits was made by him with full know ledge ..| his rights, luit under pressure, and on tiiis anil oilier lindingH a veriliet was returned for tin; del'eiidants. The Court, being of oiiiniuii tint the plaintitl' was entitled to a verdict but i-n- this tindiiig, and that the limliiig was ag.iiii^t , law and evidence, directed a new tiial. /''. A linn of brokers ])urcliased twenty shares u[ liank stuck fur the detendant, the latter aLireeiiii: tu rep;iy tu the furiner tiie price paid tlierclni' on delnand witii interest, liie brokers to imld tin^ stuck us ciiil.iteral security and receive a ten pi r cent, margin and iiiie (pi.arter ]ier cent, cumiuis- sion. The iirokers took tin- stock in tliciruwn names, and tiiiii transferred it to a loan coiiip.iiiy tugetiier witli utiier stuek of tiie same cliaracter. tile tr.insfer by tiieiii, thougli absolute iti form, iieing in fact a pledge to secure the repayment of ;i iiiucii larger ainoiint than tiie sum jiayaliii' liy tile defemlaiit. Tile pledgi; had no refereli''' to the transaction with defendant, but was fur the iirokers' own purimses. Tiie defendant wis not informed of tin; transfer, and calls fur furtiicr niaruins were made frum time tu tiiiie, as tii'j stuek fell. On tiie -'Ttli .luiie, IS84, the biukcK suspended ]iiyment. at which date tiie stock ii;iil fallen considerably ; and on the '-'lith Deceliilur they made an assignuiciit for tiie lieiietit fif cre- ditors to tile plaintitl'. Neither at tiie time uf tiie suspension or assignment, was any unpledgi i or uniiyjiutlieeated sti civ held fur ur by tlic brukeis, nur was any transferred to tlie )ilaintitF. tluM-e lieing only a right in him to redeem .uiy stock undisposed of iiy tlie iiiedgees. On tla 4tii August, KS8,"), after the stock had, l)y legis- lative enactment, lieeii reduced to une-lialf it- original pal' v;due, ur from .'JIOO tu.*."it) per sii.ir , tile i)l;iintitr oti'ered tu transfer twenty shares nf the reduced stuck, which till' defendant refitsi'il to accept. The plaintitl then liruiigiit tiiis actinn against defendant to recover the alleged balaiKc due on the stock : — Held, there could be iiu rt- covery, for tiiat the delive '^ the -toek ami payment of 1 1 pri' were mm mreiit acts, aii'i the broker^ v' i a position after the time ii\i r the sain while at tiie .Litl's otl'er there s no stuck n; lie per share ol i.iat wliicli tiie I'd for ill' defendant. Cliiii:-< i -C. 1'. I). BUILDING COIs'TIlACT. I. CoN'l'U.Al'l-— 5V(' \\'uliK AND LahoVP II. MEciiA.Nifs' Lien— .SVc 1-ien. BU i. fie iimrliasi^ Iniililiiii,' lots, III I til Imild (III such lots cotta^'cs custili^^ alioiit sl.dOO uai'li for cvury one ot' its iiifiiili( rs. In II ! V to olitaili its ohji'ct the ioiii|)aiiy, tliroiiuli r- iliii'c'toi's, olicyiiij,' tin; iiistriutioiis of tin: -li.iii'lioldcrs, on tin; Ttli ( K'tolitT, \S'i. pui'- iia^i'il till' ])articiilar lots dtsii jlnil in the l)y ',iu- and contracted for the luiildinj^ of twiMity- ■■111 uottai,'os at J^l/J.')!) each, tiic amount that 1. h of the .sharohoidi'is had agreed to (lay. A , :ir ehuiscd.diirin;,' which tile cottai.;e.s were huilt ml drawn liy lot for distrihutioii anioiit; the :iii luhurs. On the llth Octohcr, 1S7.">, the \en- iuis of thu lots and contractors for the huildiny ■ i t he cottages tiorrowed money from the l>o- iiiiiiou Huildinj,' Society, and transferred as ..jliiteral security the moneys due them by the ,|i|i.llant.s ill virtue of the deeds of imrchase and iiiildiii;,' contract. The a|)|iellaiit com]iany ao- |ited the transfer and paid soinc moneys on vii'int, and linally a deeil of settlement acte de ' .ilcinelitde coinpte was executed hetween the •uii companies, upon which was liasi^l the suit !', H., the r('spondent, as assi;^nei! of the l>o- iiiiiioii -Mortya^e Loan ("ompaiiy, (wliicli name i.is siihstituteil f(jr that of "The Dominion lliiiidini,'Society," by 40 \'. c. SO, (I)oni.,) against lie appellants. The ij lestion argued on the a|)- 1. ,il was whether tile purchasj of the lots and ■ "Utract f(U' huildint,' enttn'ed into l>y the direc- 'nis was intra vires of the apjiellant conipany ; Held, atlirmiiiy the judgment of the court low, that as the transaction in (juostioii was r tile purpose of carrying out the objects of the -iciety in strict accordance with its views, it was not ultra vires. (Strong and (Jwynue, .J.I., iissenting.) VumpiujnU' (Jilt- ■iliar v. Jluijhcs, US. V. U. .W7. BUILDINGS. L Paktv Walls, G9. II. .MlSCKLLAXEOUS C.\SE.S 70. ilL BiiLuiNa Contract— .Vee LiE>f— Work AND Labour. IV. CoVKNANTS IN LeASKS. — SfC LaNDI.OKI) AMI TkNANT. I. Tarty Walls. Phe plaintitl' was the surviving trustee under ■Jiu will of one .1. B. of curtain laud, on wliicli I was erected a two storey brick house, the wost- trly wall of which formed the boundary o' "ue L.'.s land, immodif.tely adjoining the plaintilf's '111 the west. L. leased to F., who erected tliL'ioon a large brick building, using the plain- tilf's westerly wall as a party wall, inserting i'lists therein, and building thereon so as to raise !t two stories higher, thereby weakening the plaintitr's wall. F. mortgaged to a building ^iicicty, who, on default, sold to the defentlant : — Held, that the plaintiti', under the C)iitario bulicature Act, rule 95, was entitled to inaiutaiu an action as representing the estate, without making the i;estui ipii tnistent parties ; and that he was entitled to a derree that the deleii(|:inl should desist from further using the wall lniilt on the pliiintill's wall, or the ends of the ioi-,ts whirh he had placed therein, luit not to a direc- tion that the defeiidanl should pull down sueli wall, which the defeml.uit had not erected:— Ik'ld, also, that the (ilaiiititr Was entitled to rtv cover as ilaiiiages the expeiiS(! of removing such wall, so ei'eited on his wall, am' the damages occasioned by his wall lieiiig wcakeneil, but not damage's for the loss of a sale of the proiu'rty by reason of the erei:tion. Ilrimki v. McLiun, ') O. It. -JOlt— ('. I'. D. See ll'/vf// V. Miirri-iiii •! ;il., !l(). It. INO, ini'm. See also llrool-.i v. ('oiilii/ . l!. '^\\) \ K'i(iii/\\ Mifl;, ir.ir, I'J .\.'i;, 34(1: liniK ,-'mI lidtik /' LoHihn Fin- Ins. Co. (LhnU.d), VI O. U. 700. Duty of architect in superintending erection of buildings. See liddii/ci/ v. iJirtioii, 13 A. K. I 494, p. 15. HV LAWS. I. MiNicii'AL Coiii'oitATiONs — See Mrsi- ril'AL Coni'ORATloN.S. II. Tavi;iin ani> Sitor Lk'knses — See Intoxi- (•ATiNi; LigroKs. No .seal was alfixed to a municipal by-law, but an impressi.tn of the seal was made thereon : — Held, suOicieiit. Cro'imr ami tin- Miiuiripdl ('iiii ■> ■ cil of tin: City of Branl/'ji-d, (i (). R. ISH. -itose. . //(('/ v. r<(tcrsoii, II 1'. K. 114.— liosu. A juilu't! in chanilieis has no power to leseiiul his own oilier lor a writ of ea. sa. or to diseharge the (lefenilant from eu>to(ly after the order has heen a'ted npon. McXithh v. (J/ijicii/aitiur, II V. H. -JU. — Ko.se. A loeal judge of the higli eoiirt has no power to order the diseharge of a defendant held in eiistody undir a ea. .^a. issued out of the high court ot ju.stiee. Ciir/intiii' Maiiiifart iiriiKj Coin- I'ltiii/ \. LiiiK'fii, II P. l;. .Sol. — (lalt. A sheriir upon arresting a judgment delitor under a ea. s.i. thereliy liecoines .it onee entitled as iigailist the eXeeiitlon ereditor *< *"nll [lolllidage on the amount ol the exeeiiti' > McA\tlj v. oji/ii i(ii'ork hy the N. S'. ( '. 11. 1!. Co., and from New York to Knghimi liy the (i. W . Steamship Co.. hills of hiding ln- ! ing given at London to the pl.iintitr hy a pcrsnu j who signed as agent sevciallv aii,'iit t.> i:ertioiari is taken away ■oulil properly liave heen u[ion service of notice of appeal to the Sessions, h.l.l j..intly lialtle in this action. The judgment tliat being the first pnicee.liug on an apjieal fronr I.I Osh r, •). A., 4 (). K. 7-3, as to the defen.h'ints tlie conviction, li-ijiii't v. I.iincli, Vl ( ». I!. 37-J.— tic .Merchants !>cs])atch Cniiiany was aliiinied, Wilson. Iliitilii ,1 III. V. Tli'Mirclniiit.-i Dit. U. .3',»1. --\Vilson. .See also i!"jiii<' v. Spiir/uini, 8 (). 11. .'570. III. lU.TiHN OK Whit. Hel.l, that an amendeil convicti.in cannot be put in after the return of a writ of certiorari. li't'il'tii'i V. Ma<-b tr.ii-, (i (>. |{. 10"). — Piose. Hel.l, that on tlie ivturn of a writ of certiorari) a recognizance is uiiiiecessarv. I!"i\nti v. Xdim, 10 P. II. 3'.):). — Hose. A magistrate can amend his conviction at any time before the return of the certiorari. .See A*. ■ ;/('/((( V. McCarilni, 1 1 ( ). !!. (!.")7. Hel.l, that since the passing of the Dominion ill their fav.jur, an.llinding it a.lverse, apply for Statute 4i) Vict. c. 41t, s. S, there is n.i longer a writ of certiorari and jiroperly obtain it. Black ■. Wesley, 8 U. C. L. J. '-'77; (iallaglier c. Ilathie, '1 C. C. L. .J. N. S. 73, and Holmes v. liceve, .") P. Ik. bS, followed. Ill ri' Kiihjht v. 77/1 Uiiitid Tiiir. AlHraieil on Appeal. necessity for a defeii.laiit, on removal by certiorari of a conviction against him, to enter into the re- cognizance as to costs f.u'merly re.juired : — Held als.) that the words '"shall no longer apply'' in sec. 8 mean that from the .lay of the passing of the statute the Imperial .Act 5 Heo. II, c. lit, shall no longer apply, not that tlie Imperial Act shall cease to have application in Caiia.la up.)n a gen- eral order being passe.l under sec. (i of the Do minion Act. Ihniiui v. Smdir. U, P2 O. K. .31)1.-- Wilson. CHAMBERS, JUDOES'. See Pkactrk. II. Tu Bkini; 11' Convictions. 1. ii'i'Ueralli/. Hel.l, that a defendant is not entitled to re- move proceedings by ceitiorari to a .Superior < '.nut from a police magistrate or a justice of the pea.e after conviction, or at any time, for the |mi[iose of moving for a new trial for the rejec- ti..u of evidence, or because the conviction is against evidence, the conviction not being before tile court and no motion made to i^uash it. A'.- i;<;." V. mchanUon, 8 0. U. (J5I— Q. li. D. .,., -i. r i • ■ i. i. 1 1 Where one having obtained an assignment of a I tie writ of certiorari is not taken away i)y i . , . ■ ,. ° t. i i ^ *.• , c .• lit) co.ioo\': 4. •}.■> /!»,-,. \ i> ■ : I judgment against a inortg.igor brought an action S'ction'J8 of 32-33 \ let. c. 32, (Dotn.) JteiiiiKi v.^ ■! fi " ■.»! .. ,i i,„ i n- , , 1 1 n 1. II- ill in his own name against the mortgagee who ha. I HfliardiiOH, \\ r. li. Du, — Osier. i ii i ii ^ f i * i i,;„ „, ' " I sohl under the power of sale to make him ac- Held, tliat tliough not expressly so enacted, 4i) ] count for certain suriilus moneys left in his hands Vi.t. c, 4'J, (Do.n.,) IS r-lrospective in its opera- 1 after su h sale :— HeM, that the plaintill' was eii- tii.iis and applies to convictions whether made ^ titled so to sue, and that such assignment of judg- CHA.MPEKTV AND MAINTENANCE. •/% 5 I >^i«. ( i> CHURCH. iiu'iit was not in coiitiavfiitiDii of tlic law re- spt'ctinj; (■liiiiiipt'i'ty and maiiitciiaiicc. Ilarpir V. Cidht rf (I (d.. 7>\). l;. I;VJ.— I'Vigusoii. Afti:r tlie hfaiiiij,' and lii.foic tlio appeal was aii;ii(,(l, a inotion was iiiadc to stiiko tlic case out of the list, on the ground of niainteiianee, and it Mas shewn that the defi-ndant, tiie Uev. .1. 1'. I)., did not wisU to proceed with tiiis suit; lint tiiat as he was pressed to do so liy his vestry and ehurchwardens. lie allo\\cd his uauie to he used as appellant upon hein^; indeninitied h}' the lattir as to costs. I'ei- li^yd, l '.-There' was niainten- anec in the s\iit thon_i;h not in tlie c:rinnnal sense, and the case siiould 'le struck oul I'cr I'roud foot, .1. — There was no maintenance. The de eree of l"\'r<,'uson, J., was, however, varied liy aliowiiii; the costs of all parties np to the iiearinj; to come out of the fund. Lamilrij v. hinuiiiiim, 7 (t. I!. (144- (hv. 1». nilLD. .S'" InKANT— I'.VKIAT AMI ClIII.H t'iiAN(.iX(; ri..\(i: orruiAL. S'l I'i,i:aoino. CIIAIIITN . I>i;\ rsi; n. s,, W'li.i,. 'I'liere can he no niarsliallin;4 of assets in fav (jur of a charity. Bnh,,- v. //ya/v, S 0. il. ;V_'S.— Ferguson. ( llitsK IN At 'IK tX. Ai rA( ii.Mr.Ni' OF ])Kin's— .S'm AiTA(ii.\ii.Ni ijKliTS. Held, — I'osc, ,1., e.xiirissing no opinion dn i ]ioint ■ hat where an assi<.'nmcnt of a mortjn,. on Ian. I was ahsolute in form, tliough as a matt.- of fact the assij;nor retained a i-ij^'ht to part ol li,' money, an action on the covenant in the nnot Ua^'c must hi' lirou<;ht in the name of tliuassi::ii' >. 'll ((/■(/ V. ///';///. X, SO. i;. i;5,s- C. ]'. \). I While the defendants ('. iV V.. were ne;;oti,it I ini,' with tlie defendant .1. fcir tiie puiihase oi lii- 1 stock of i;oods. the idaintitl's presented to ( . ,V v.. an order uiioii them for ]iart of the antieip.it' '■ jiurchasc money, \\ hicli (H'der tlu'V had oht.-iiiM' from ,1. in payment of a deht due hy him to tli. plaintiU's. This order ('. k V.. I'efused to pay . i accept. The sale was suhsei|Uently eom]ileti'! and the jiricc paid in full to .1. : -Held, that n- charge on the purchase niouev had thus heun created, and payment therefore emild not l)t' en- 'forced against ('. it V.. .Miteliell /'. (ioodah. .". I A. I!. 1(J4. and Me.Master r. (iarland, .S A. W. I. I oliserved u]ion and e,\]ilaini'd. Jlrairn el nl. \ Jn/ulslni, ,1 ill., \'l A. l;. !!10. See ;\\i,o .\riii.. I;. I 7'it) ; Diinicii/ v. The Xnvthi m aiiil Xi.rl/i Hi -'■. I y.'. ir. Co., 11 (>. i;. -M-.i ■. cuihra'dii V. //•/■;„/. - O. 1!. Tf)!. t'l'Airi'Ki; I'Airrv. Sii' Siiii', CliATTKL. I. (iiFi- HI'— .Vir (ill r. II. lliKi: (i! - X.. Ilii:i\i;. 111. .MiiKli.AOi; JV — S,v llll.ls di-' S.M.i; .\ND (.'ll.M IKL .Muliro.MiKs, III. (uriMii. CiiriK II or Kni;i,ami, 7(). 'i'lllSTIKSol- IJl'.I.K.Iors iNsriTiriON- bi;visi;s TO - ,v. ( W'li.i,. pari; I. I 111 i;ell Hi IvMII.A.Mi. c Kev. .1. II. lii'iiii,' the incnndient o h in the liiocese of (liitario, which was (■ii.\Tii';i. .M(ti;T(iA(ii':. Siv lllLI.s e. .'^Al.l. AM> t'llATTKL MoltTc AdKs, ilowed, ami ha\ing acted in such capacity ;iii'; performeil the duties thereof for several Je.u-. discontinued the services in two other chureli.- which were attached to his paiish. A eoinuii- sion was issued hy the I'.ishop under the Cnn:- in that hehalf of the Synod of the said L»ioi'i>. No. N, " To en(]uire into the causes which led t the closing of the said churches, and to rep. 'it whetiierthere was law ful excuse for the said le* .1. 11. s discontinuance of the exercise of his iiiiii isteri.d otlices in said churches, and to rep.ii" _ _ whether there was sutlicient ])rinia facie gi'oiiii: for instituting further ]pi'oceedini;s against tl- .'V ciiei|Ue given in settlement of losses at match- said Kev. .1. H. as provided hy said ( 'an"ii ing coppers is a note of hand given in considera- The eoinmissiorers reporti^d that the churrin- tion of a gand)ling deht within s. 't'.\, siih-s. .'t. It. hail heeii closed " hecaaise rlie niemheis of tli' .S. O. 1. 47. and such a security is void under !) chnrcli refused to attend and |iiovide for the iiiiii Anne c. 14, even in the hands of a hona tide istrations of the Kev. .1. II. in these churchi> holder for ^•alue, In n- Sininni r/'i l(/l v. Wur/.-i, that an estianueinent existed hetwecn the~:u. J'J (). K. 4!S— (^ l>. 1). . lUtv. ,1. 11. and his parisliionerM, auil they il Si( iJA.NKs. iliiii'il his mi mil of the com lint of such ]ii ocure a coll ,inil they die ti'iii of furth ll.'Vi'd there w ministerial usi :i |irini;i facie iii'dings ag.'iii liiit they were .iuction of otht that adduced, i:i;,'s Would no' ih-^cipliiii; undt .\ftcr the ni.i still Kev. J. I lUMiheiiey, tiie M'.d, revoked. Miiil appointid .iiid the .S\ii(ii .1 . •'' ! •'he anil I'p ' ' u actim 1.1 :iel the ,^ He. ', chat tile s.'i'onil section i with such an miller section has the ri^iit of M'l'tion thirtee; I'lpwer to caiici |il,iiiitill', either iri.il hy the l»i( titr must snccei wurd " inimora not I'cstricted 1 ing pai aciilar o iif the same nat «•'■// V. T/ir /nc(, iiiihiriii 1 1 (I I., 7 Certain land ' I'rown, dated Ii I!. i;.,aml\V. A 'ii'Uetit of the \y tiirever, as .'i chi the iiih.'diitants iiplHirtenant to This patent WiV another, dated > to tlie same trus fiiriiier patent, a iiiiieh only of tl the purposes of a ;'liould he so ai)| tiie said land a.s lit tile ]parishion the trusts .nnd trusts were ;is fn same f(U- the sole ili'igyman of the 'I'ssors apjiointi.'' the i'^piseopal ( 'i luid is a|ipurten; with tiie assent ( tlic rents due o use," * • ;llli ^111(1 an iiieumlieii ti'cs sjiould coil' :iMil his siiecessor f'l and for tlie tiii.sts." Certain 'ly aiiotlier patei April, 1811», to V CHURCH. cliiit.'il his minish'.atioiis. But tliat in tlic npiii- jdii (if the cmiiiiiissiiiiiL'r.s. thoproiitu aildiicud wore lint of siieli ;i nature as eiailil lie relied on to ]iroeuve a efinvietion in an Meclesiastieal Court : ami they deelined to : omnieml the (iro.seeu- ti'iu of fui'ther legal aetion, althoui;h they he- li.ved there was no h(i])e of a restoration of his ministerial usefulness there, and tliat there was ;i |irinia faeie ijround for institutine further ]iro- iiediiiLrs against him as provided liy the Canon ; litit they were of opinion tii it witliout the ]U'o- iliiction of -itlier and nuuh strung'er evidenee tlnn tliat adduced, tlie iistitution of further proeeed- iiigs would not re' alt in a charge of hreaeh of iliinti/d the Kev. A. Iv 'I", as hissuccessor, Hill the ."^ynod deidined to p.iy iiim (tiie l!e\'. .1 . C ' ♦he annual jiroceeds of the endi)Wnient. rp a action lie'iig hrouu'ht hy tiiu l!ev. .). II. t.i ...,,,iel the Synod to pay iiini such proceeds: - He. ', chat the oU'ences (if any) came \\ ithiu tlie -i'cond section of the Canon ; that any one ciiarged uitli such an (jli'euei' has tlie rigiit to he tried, under section oiii;, liy tlie hioeesan Court, and has the rigiit of aiijieal to the metropolitan, under -I'ction thirteen ; that the llishoji had not the |Hiwer to cancel and annul tiie license of tiie |i!,iintitt', either without or for cause, without a trial hy the Diocesan Court ; ;ind that tiie plain- titr must succeed : — HeM also that the general U(ird " innnorality" as used in the Canon was not restricted hy the wor/' /In' J)it_iri:ie of iiiiiKi-iii it (il., 7 <)• I!. <)7. — l'V-rgus(ui. certain land was granted hy jiatent from the I'rown, dated Deoemher •Jdth, 1817, to I). B., .J. i;. It., and \V. A. as trustees, for the sole use and ''fiielit of the parishioners of the town of Y(M'k t'lrever, as a churchyard and Imrying grouml for the inhahitants of the said tov, n of ^'ork, a'lil ;i|ipnrteliant to the church tlien huilt thereon. Tliis patent wa; siii'rendered to the Crown, a:.d iiiiuther, dated Septemher 4th, IS'2(), was issued thiiiild lie so appropiiated, aU'l that such part of tlie saiil land .as w.is not so reipiiriMl for tin' use "I tile ]iarishioners should he held upon and for the trusts and uses thereinafter stated, which trusts were as follows : — " In trust to hold the <:une for the soh; use and lieiietit of the resident ' Kigynian of the said town of York, and his suc- 'ssiirs apjiointed or to lie ap]iointed rectors of the I'lpiseopal < 'hurcii therein to which the said 1 iml is appurtenant, to make lease lanies, ,ind his succes- sors in the saiil rectory forever as a corpor.-ition sole, to and for the same uses and u[ion the same trusts as are mentioned ami expressi'd in the said ]i;itent and deed. The l!e\'. It. .1. C. succoi'ded the s.iid Hon. and Kev. .1. S. as iiKnimhent on the Kiiii l'"eliru;u'\-, IS47, and was in possession of tlie s.dd lands, and in leceipt of the rents and pnitits thereof until the time of his death, which liapipoiiod on the'JOth M;uih. ISS'J. In the veil ISiii; the statute •_'0 & :)(t Viet. c. Kl, entitled. " An Act to pi'ovido for the sale of rectory lamK in this province," was passed hy the parliiiment of Can.'ida, which gav" the Incoi'porated .Synod ted, ''full juiwer and author- ity to sell and alisolutely dispose of any l.•lnd^ granted hy tlii' ( 'rown in such I )ineese, as a glehe of, or as appurtenant or heloiiging to, or a]ipro- priated for, ,'uiy rectory of the said elmrch in such hioeese. liy whatever name the same may ho called, or in whomsoever the title thereto may he vested." In a suit brought hy the iiiciim- beuts of several rectories which wen' sulisc(|Ueiit ly erected in the said city of Toronto, and the Synod of the Hioeese of Toronto, to have the lands covered by the patent of IS'-'O and the deixl of IS'J.'i divided up uiider the provisions of tli.it 2 . J!. 4!Mt) that tliu lands in (luus- ' tion were ciiverud hy tile terms of the Act : that ]piior to tlie yea; iMfiG there were rectory lands derived directly from the clergy reserves, and land>i sjieeially granted to trustees, wliich were treated as end(Avnients for rectories, and that the legislature intended to deal with both classes; tliat the delivery up and cancellation of the jiatent of IS17, lieing to correct an error, could nut lie held to he such a consiileration as would make the ]iatcnt of IfSL'O a grant for value ; that ( row n grants whicli were of a quasi pulilic charac- ter weie dili'eient from piivate gifts, and the Synod, in the case of the former, had petitioned fur and (ihtained the power they desired : that 14 it 15 \ict. c. 175, s. 12, (('. S. C. c. 74.) afford- ed strung evidence that ]irior to the year I S(i(i tlieie had Iteeu endowments for rectories out of the pul)liu domain, as well as out of the clergy reserves. jAiitijtri] v. JJiiiiivalin, 7 <>. U. 014 — <'hy. I>. As to evidcTico to establish the status of cer- tain rectors. .See S. C, 7 O. II. -I'M. Upon an ap])lication by the churchwardens of St. James's (.'hurch for leave to appeal from the judgment of tlie Chaneery I'ivisional ('(lurt (7*'. I!. (i44) in their own names, or in the name of the I'cctiir, tile the Synod (the successors of the church society) repealed all previous by- laws res|)ecting the fund, and made a dilt'erent appropriation of it : — Held, atlirmiiig the judg- ment of the court below, !( A. I!. 411, which re- versed the decision of I'roudfoot, J., 'J!) Chy, 348, Foiirnier and Henry, ,1.1. dissenting, that under the terms of the trust there w.as no contract he- twcen the plaintitl' and defendants ; the trustees had [lower, from time to time, to pass by-laws regulating the fund in {piestion and making a ■ilifl'ertnt appropri.ition of it, for the support and inaintonnnce of the clergy of the diocese, ,and the plaintiff must be .assumed to have accepted his stipend with that knowledge and on that condi- tion. iVtiiilit V. Jnciir/iuntfid Synod of the Dio- cese of llui-on, 1 1 S. C. H. 1)5. II. TkCSTEES of RkLIGIOUS IX.STITUTKINS, In 1821 J. Bowerman and .1. Bull joined in con- veying certain lands to three persons, trustees (,t the \\ est Lake meeting of friends, appointed l.v the monthly meeting to secure tiie titles of unit- iiig house lots, and burying grounds, " to \y,\\. and to hold saiil jiarcel of liuid hereby graiitu.: unto the aforesaid trustees of said monthly niui t ing for the time being, and for thi-ir siiccess.ir- in trust as said meeting shall from time to tiiin see cause to api>oint, for the only use and lientt.t of said nie('tiiig, " and in I8.'55 Ijowerman exeiut ed a further conveyance of a portion of thus.. lands of which he had been the owner to twd n; the said trustees, "ami to their su ressors, ii, trust for said .iieetiiig so lung as the liiemlii.i. constituting it shall remain and lie from time ti. time continued in religious unity with tiie yearlv meeting of friends (called (lUiakers) as now e> tablished in London, ((Id l']iiglaiid, and no lei|. ger ;" habendum " unto the aforesaid trustees ■ the said monthly meeting, and to their successi.i< in trust for the time being as said meeting slmil from time to time .'^ee cause to appoint, for tli.. only use, behoof, ;iiid b^'iietit of the said niontlih meeting." 'I'lie defendants contended that tli. identity of the existing iiiontlily meeting witn that describe 2. To Ex,;: Exec li. To Tni tees. COMMISSION COLLATERAL SECURITY. To Banks— S'ec Banks. COMMIS.S 6 so 81 COMPUTATION OF TIME. 82 its fill if thv wliioli ;' ts lUflll- IlL' l.llll- ;feii(luMt>. illllui'tin:! ) riL;li!^ oiiuld li- 2 A. i;. yut ii ruligiiii:- lointnitii iiigs in.'.'. (»: 11. i; When certain securities had been assigned as ccill.itt'ral for the payment of a promissory note ,ii .'^1,000, whicli note \>-as partly paid ami a new iiiiti- given, such securities may be held until the .|,.|,t is discharged by payment. Though the n'lnedy of a creditor to recover a debt be barred iiv the Statute of l.imitatinns, he may liold the unilateral securities for .such (hjl)t until paid. W.hy V. Lnlyiinl, 10 I'. 1!. I8'_'. — Hodgins, .)f,i.-,- •.,■ in OnliiHti'ti. Tlieplaintitr, being inilcbte,OOt). The limits weresubsecjuent- !y sold by the purchaser for a very large sum. I'revious to the attempted s.ale by auction the iliUndanta had received siver.al oilers of sums iiiiire than suHicient to pay dtl' their claim. In an actif)n brought by the plaintiti" against the de- li iidants for selling at a grossly inade(iuate price, Arnioui-, .1., gave judgment in favour of the [ihuntill', with .S1!*,().')4.,SS damages, which, on a|i|ieal to this t'ourt, was athrnied witii costs, ilagarty, C. J. <)., dissenting, im the ground tluLt. under all the circumstances, there sliouM 111' .1 new trial for the purpose of further investi- s;;ition. I'er Ibirtmi and I'attcrson, .I.I.A. The luleiidants sohl by ]irivate contract, without authorisation, and did not take [tropfr steps to have the limits valued. I'er Dsler, .1 .A. The iliteiidants were l)Ound to exercise i)roper care iiiil discretion, and toado[it such means as would lie adopted by a prudent man to get the l)est price that could be obtaineil. I'nnfirr v. Tin Connul- "htai Hank, 13 A. It. C'J. .Stv I leak u V. DuUon c((il.,S O. U. 001, p. 51. COM.MLSSIOX. 1. Fur Sekvres I!i;Ni .Vcjknt. ■J. I'u Kciciiliirs aii'l Adiiiiiiisirtifar.'^ — .See E.KECuroH.s .\Ni» AuMiNisru.vroHs. ;{. To Trii.stcfs — See Tiusrs .^nd Trus- tees. 'd.MMI.SSION TO K.KAMINi: WITXE.S.S. iSie EVIDENIE. COMMISSIONKU.S OF POLICE. •See I'OLHE. 6 COMMITMENT. I. Akkkst— .">Vt Ahkest. II. ATrACllMENT— .SV'' ATr.UHMENT OF THE I'eksun. A warrant of cnnnnitment need not be ilated if not issued too soon. Il"jin. K. 17S.~(»sler. COMMON CAUKIKKS. .See C.VIiUIElJS. COMPANY. Sie (.'oni'(ii:\rioNs. COMPENSATION. I. KokTakim; ou l.N.ii itiso La.nhs. 1. JJi/ Miiiih-ipiiVtik.i — See MfNit ii'ai-Cor- I'OHATIONS. 2. Bii llitibraij—SeeWwx.w \\s xs\> Rail- way V'o.MPAMR.s. II. Foil iMlMiOVEMEN'r.S— .S'f' I.Ml'iloVEMENT.S ON L.VNli. III. On Sales ok Lank— .Vm- Sale of Lanp. IV. Fnii Use ok Wouks and Improvements IN StKEA.MS— .SV( W.VTER ANli WaTEK Courses. V. To A(iENTS— .SVc I'UlNi II'AL AM) AoENT. VI. ToEXEUI Tons — V.< EXECCTORS AND Au- MINLSTRATOUS. Vll. To Trl-stees — See Tiitsrs and TiirsTEES. compkomi.se. Ok Actions— .SVe Action. Note given to compromise criminal chargi'!. See Bell v. IMdell, 10 A. It. 544, p. 50. lleference of indictment ami all matters in dirterence to arbitration. See Corpin-nthm itf the Townshi/i oj'HauijKrf'uid v. /.uffiinn; l.'{ A. K. HI 5. COMPUTATION OF AMOUNT DUE. Hee Interest on Monev.— Judgment. COMPUTATION OF TIME. See Time. «/) jMNMt* 83 CONSTITUTIONAL LAW CONDITIONAL (OXTi;.\( T. Mrh \ (' 1/ Sai.k iiian(i:. III. Of Saf.k — NVy Sai.i. ip| Land i-.v Okhku (IF TIIK ( 'dlUT. I\'. In Wills— ,v.^ Will. rcnsoimlili: ^'romul for .such liflitf. Cininiiiii;/.^, ti (). I!. 400— (". 1'. D. Linltility in rciileviii for iiiiiiro|ifrIy iiii|ioiiii ilij,' .sliuc]!. Notice of iietioli. Sec IlihoHsm, Hiiirii, SO. U. ()•_'■"). Ai,'iccnioiit to account for fees rcceivcii county cfinsitiililc Ijy chief of iiolicc of a tii« See 77- Wilson ('(irporafii'ii ti/' /hi' Tomi of Stntlfiji'l SO. K. 1(14. ' CONFLICT OF (ASKS. •S'l ( CoF Ill's. CoXslDKlJATloN. J. In I'.ili.s ami NdiFs— .V'- |'>n.i..s of E.\- cnANiJi: anii I'lioMis.sojiv Notks. 11. In Hills hf Su.i: and Chattki, MciiiT- (;a(.fs .Sii Bills of Sai.k and CiiAiTKL MdHK.AGKs. IIL In C(jnii;a('Ts— .S'(<' Contract.s. I\'. Inauh.xai V \iv — ,SVi' Fi;Ari> ANii Misi;f:i'- l;FSF.NTATIliN. coXS'l'nirioXAL LAW. I. (;KNFliALL^, S4. IL Co.NSTiTrrioN.vLnv or Staittks L Uiiili'r /!ri/i. I'.. I). ■ The lej,'islativc enactments of a countiy \\.v. no liindiu!,' force jirojirio viyorein another con nti , and a legislature cannot autlioiizc c(ir|)iiratiM created Ijy it to carry on business in a foi(i. country. Whei'c. however, a legislature assuiu so to do, such authority is only a legislative siiii tiou to the agreement of the corjiorators to tr.ii act their husiness aliroad as well as at licni Clarh-i' v. i'liiiiii Flrr Ins. Co., 10 1'. IL ;{ Hodgins, MaMci' in Onliniiri/. Ill CONSIMKACV. Si I' Chiminai. Law. r>y deimty returning oHiccr and agtnt of can- didate to interteri' with the franchise of voters. iiiiii/ mill t/if 'rili'pliiiue. Maimj turlini Com}mnii anil tlir Minidi'r of AijricuUv 7 O. 'il. ()05.— Osier. As to the power of the I'rovuicial Ooverniii'j to apjioiiit police magistrates. See linjimf Jlicliiiiit.^nn, S O. U. (I.^I. I'er Patterson, .l..\., the legislation of t Dominion Parliament forliidding tin; defeinlii tontracting against liability for their own lu geiice is not iiltra vires. I'mjil v. Tin' Cr Ituiln'oii I'linijiiini/ -Miirlon v. 'J'ln Same C\ini/« 10 A. H. Id'.'. 11 tor the sanu all. in any of M ilire ill uhirh t iiii; competent iiiiK'tnient was \ The term "pro .V t refers to loca iiitradistinctioii i ail jiroviiices j ,iiiiUty. Cliirl:. v i:f. -Hodgins, .1/ Tiif defendant, i> illeurporated 'irliament, 41 \ :i< provided that rotation contaiiii my falsi' -tatci "iii'i'sliip uf tin the <-i)|icc,ilinciit iired property, m r of aii\- ejiange i •iiied piMpeity, a It of the eoiiipai li.y void ;•• -U,.| s pro\ideii for |i\ t matters I if tlie • "iitario, over uh ■v jurisdiction . ; '|ier subjects uf .^1' 111) force or \it t per se. but only iiioililied by sai inner j)ro\ided for tri'fin cuntaiiieil. | il The (,)ueen Ins. ( >, lomniented iipoi '»'»«/ Firr In.-:. Cii The Acts .SI \'ict. ( '■'. (Doin.,) relating t ultra vire.s the '\ ■Ion Mill, I III iinil iiiiiteil) (•_>) !•_> o. i; As to see. ]:Ui of tli la vires the Do •/'/^' V. PiiU; SS. 'Vi' I'ournicr. Iln ti(ins4(;, 47and4S Jiking Act ls:i) an rlianient. '/'In .]/, II'. SS. c. i;. 31-_>. Held, that (,tiieliec inipos.'d a ilut\ 'ihit (lied in court ifin is ultra vires t A/tiirni //-^^ ni nil i 141. d < The jurisdiction of the Provincial Lcgislat over " ]iroperty and civil rights'' does nut elude the Parliament of Canada from giviiii' an informer the right to recover, by a civil act a penalty imposed as a punishment for Inil at an election. 'I'lm Domiiiioii IHectioiis .■ 1S74, by sec " .... [iroviiies that all penalties; '^' forfeitures other than lines in cases of mi nieanor) imposed h_> the .\ct shall be recovcial with full costs of suit, by any person who t'rtaiu ordnance la •• ill ISoS. patented "f T., with the foil, rovided always, aui foUowing condition 11 lie deilicatcd hy ( iheniniaintained'fii '); for the use, t)eii(.t iliitants of the .said ' . Thee iiied from the On( "iwering them '-ti we of" the .said Ian \!rK(ni lIUlHIlill. COySTlTUTIOXAL LAW. SG ceivc'l . i il tn«: li /•(''(( .1 ,iit for tilt; same, l>y actioii of ileht or infonna- _;!iiii, ill any of Uoi' .Maji.sty's cniiits in the ind- iiiiu in \\ liicli tiic oau.su of action arose, liav- i; (.•onijiutent jlirimliction : — lleM, that tlii.s uutniont was valid. J)ui/li v. lit II, II A. K. I'lie term "i)i'ovin(ial oliifcts" in tiif !'•. \. A' \.t refers co loeal ohjeets « itliin a |irovinee, in ■((//(//■'' ^,„t|--iilistinetion ' ■■ olijeets wliiih are eoniiiion ;ill jiroviiiees in their collective or l>oMiinion Mllty. Cl'll-hiX. I'llinll Firr /iK. Ci)., 10 1'. K. ;!. -Hodgins, Masfi r-iiiOriliiniri/. Tile (lefciiilaiit, a nnitiial iiisnrance eoni|)a!iy, - iiiror|)i)riitecl liy an Act, of the Oomiuion iiliaini'nt, 41 Vict. c. .}(), liy sec. -JS of whi.'h 1- providiMl that "any framlulcnt niisrc|)re- litition lontaineil in tiie application therefor, ,Liiy falsi' .^tateuient respect inj,' the title or the iiirrshil) of tile applicant oi' his circnnistaiiees, the coiieealnient of aiiy ini'unilirance on tiie -urcd property, or the faihn'e to notify the coni- V of any change in the title or ow ncrship of tiie •iircd property, and to olitain the written eon- it of the company thereto shall lender the ill y \i)id : " Hchl on demurrer, that the inat- .- provided for by the aliove section wi'i'e snli- t matters of the " l'"ire Insurance I'olicy Act" nntario, o\-er which the )iroviiicc has exc'lu- V iurisdictioii , and althou.i,'h they iiii;j;ht he .i|)cr siihjects of lejxal contract, they would i\c no force or vitality tliioujfh tin; l)oniinioii t per se. lint only I'.V lieiiii^ used as reiplired iiioditied liv said Ontario Act, namely in tiie inner )iro\ ided for variations to the conditions riciii contained. Citizens Ins. Co. /'. Parsons .11 The (.tiiceii Ins. Co. /•. Parsons, 7 A))p. (.'as. coliimciited upon. (lur'oiil v. Tin' Lojulnii. '">wtl Fh-r [„s. r,,., II (). i-!. S± -O'Connor, The Acts -.U Viet. e. 4S, (Doiii.,) ,uid lU \'iet. '.I. (Doni..) relating to insurance comiiaiiie.s are t ultra vire.s the I >oniiniou Parliannnt. /o ■'lull Miiliiiil mill (liiiiral Lifr A--'«iri4 \'iet.e. ■"> (l)oni.,) (the liking Act 1S71) are intra vires the Dominion rliament. '/'/('■ Mi rchniiis ll(tiil: c/' Ciniinln v . III. SS. C. K. ol-J. Held, tiiat (,»llel.ec Act, 4:} .t 44 Viet. c. !), imposed a duty of ten cents n])oii e\ery ,il)it tiled in court in any action dejiending rill is ultra \ires the Provincial Legislature. Altiiriii //•(>'' /(' /■((/ i\ir(jiii lirr v. Jin il, II) Api). 141. ;rtaiii ordnance land vested in the ( 'rown in ISaS. patented to the corjMM'atioii of the of 'I'., with the follow iiig clause in the patent : iiivided always, and this grant is suliject to following condition, viz., tjiat (the land) ' * 11 he dedicated hy the said corjioratioii, and tliem maintained for the purpose of a piihlie ic for the use, heiielit, and recreation of the litauts of the said city of 'I'., for all time to '' ' * , The corporation of 'I'., in 187(1, lined from the Ontario Legislature ,in Act [oweriiig tlieiii '"to Iea.se, sell, or otherwi.sc :«jsu of" the said laud, and one of their com- mittces transferred it to.iuotlier to use as ;; cattle market, reciiving a yearly rent therefoi whiih tliey applied to a jiark fund as provided hy tiie .Vet giving the ])ower to sell, iVe. In an action hy a ratepayer to )ireveiit the lanil heing used ,is a cattle marki;t, and more money heing spent on it for that purpose, in which it was contended that the land was granted upon a I'onditioii under whic'li tin; ( 'rown might retake it, anil that tin- .Act of the Provincial Legislature was ultra viics in dealing with it. It was : Held, (,n ilemurrcr, that the wiM'iIs in the patent " Provided alw.ivs and this grant is siilijeet to the following coiidi tioiis," did not create ;i condition annexed to tin estate granted, hut a trust was created the saiin' as if the words useil had heeii " upon the follow iiig trusts, " and that liy the grant the grantors jiarted with all their estate and interest ; that the matter came within suli s. IS of s. 't'J P>. N. A. Act. " Projierty and Civil rights in the Pro- vince," and the Provincial Legislature was the pro]ier one to legislate on the suhji'ct, and the suhject, iiiid tin; Act was not ultra vires. *A'i »- iii'i/i/ rl nl. v. '/'//'■ ('iir/iiiraHon o/' /In Cih/ nf Tn- /•o»(/'o. /,(/., li»0. i;, •JIL — Ferguson. Professing to act under t';i' ]iowers contaiied ill their .Act of iiieor])oration, 4.") Vict. c. I(H> N. P>., the i). W. I>. Co. erected liooms and jiicis ill the (j>iieildy river which impeded navigation — the locus heing in that part of the river w Inch is tidal ;ind nra'igalilt; : —Held, that the Pid\ in- cial Legislature might iiii;orporate a liooiii com- pany, hut could not give it jiower to ohstruct a tidal navigalile river, and therefore the .\ct 4.") \'iet, e. 100 N. !>., so far as it authorizes t!ie acts done by the eonipany in erecting 1 ms and other Works in the (j>ueddy river olistiuctiiiLr its navigation, was ultra vires the .New liriinswiek Legislature. (Jmihlii Ilii-'C hnriinj il'imii i'i>. v. Ihn-hlsim, 10 S. C. K. -i-n. Held, |)er liitchie. C..1. and Strong and l'"oiir- nier, .1.1.. that the provisions of the |)rovineial statute, 4'_' it 4.'{ \'ict. e. 4, (<,>ue. ) onlerine houses in which s))irituous lii|Uors, iVc, are sold to he closed on Sundays and every day lietwceii ele\"eii o'(;lock of the night and until five o"(;loik ill the morning, are jiolici' n'giilations within the ])owi;r of the Legislature of ijlucliec. I'mdiii \ . Th' ('(n-piimtioii n/\)ii & .'{0 Vict. .-. It;, hting an Act to pioviclc fur the s;ih' of tlic rectory hiiuls of tliis indviiicc, is Ultra vires and vah Daltou, Maskr — Armour. I)y au order of the county judge, uiion the application of the jilaintill, after hearing mimer- oiis parties, inchuhng the defendants, a certain street on a registered plan was closed up. 'I'here- alte." the defendant municipality passed a by-law declaring the street in (pitstion open. (,)n a niotion to (luash the by-law :—HehI, that the by law shouM be (plashed, as having been passed ill disregard and conteni|)t of the order:— Held, also, that as the order .shewed jurisdiction on its lace, the evidence upon w hich it had been made sJKJuld not be looked at on this application. ir In- DK.MNITY. '). Coi)triti't.-< of Marriai/i' -.Vcc Hi'.si'.and AND W'iKK. 0/ //(■»•(■)/(/ — .S'c'cMA.-iTKIl AND SkHVANT. Of Imwratici' — .SVc In.sukanck. Of TrlliDiril — .S'(7' I,ANDI.(HtD AND Tknant. !). Of Partnei's/iip — Sec PAHTNKKSirir. 1(1. Of S'lnrti/.sliij) — S(i: ruiNcirAi- AND .SUUKTV. 1 I. Sill<> of (IiiikIa — Set .'^ALF. OK fiODD.S. \'l. Sale i)f Lduil — Si'i' Svi.r, of Lands. 111. Snip of TiinhiT — .Vcc 'I'lMiiEit. It. Wm-rniilij — SVc Wakkantv. I."). Wiirh (iiitl Liiboitf — Sfi' Work and Lauoi'I!. (). s the i-oiirt li.'low, 3-2 C. P. 422), tli.it tlicio li i,l not lit!cn sliown "a clear m'ccs.fioii on liotli sidi's to "111' unci tlif siiiiii; set nf tt'riii.i," and tliiit .i I'oii- diiiU'il .•lyrccnicnt li;iil not lii'i'ii iniido out In'- tWL'cii tliu parties. III. II. wrot'; to (). "I have (jnn.sidorcd tlio niatti'i' of onr convcrHatiiiii, and offer yoti .'?S()() for tlir jiropcrty." <>. replied: "I Inve ymir f.ivniir ofTerin;,' S.SOt) for the pro])erty (de.seril)iin,' it). I have concluded to ;vcee])t your oiler." The evi- dciiet^ showed that ;it the |iiior conversation I'l'- ferred to in I!. 'a letter, It. w.is seekiii;; to Imy the property in cpU'stion on terms of live or seviii years' credit :-Held, th.it as the .icecpt iie^' Ipv (). was as of a ea.sh (pU'er, whih' it. did not iiitiiid to make any such ofTer, the contract coidd not lie apeeitll^■dly enforccMl. the parties diU'eriiii; in their understandiiij.; of it. < hiniiinii Srrnrith ■; ('■,,,!■ /III})!/ V. h'ir/iiir l.tnn, ~ O. U. 1S2. — lloyd allirnied oil ajipeal. //* , 18."). A letter containim,' an oll'er written " without ])rejiidii'e'' means " 1 make you ;u\ oUVr ; if you do not accept it this letter is not to lie used .iiriinst mc,"l)iit when the otFer is acceiited the pl■ivile^'e is removed. S. ('., 70. I!. lS-2.— Moyd. T'er Piurtoii, .). A., when a proposal is inadc> in writili!,' hy one p.irty ami .iece|)ted ail idem liy the other, I itlier verlially or liy acfiiiL,' u]ion it. the contract is a written one. A7/;\ v. .[lull. 10 A. R. '12{\. On thoSOth .Taiiuary. IS,S'2. M(,-T. wrote to H. j as follows : " A. Mel'. ai.,'rees to take .■?.').").( II If) t'nr ]iro]ierty known as NfeM. hlock. 'reriiis- (im- third c.i.'ili, halanee in one ye.ir at eii,dit )ier ec nt. )ier annum, ^^\^vn until .Satuid.iy L'Sth, noon " On the same d.ay H. accejited this oirer in the following,' terms : " I heir to accept your oiler m.ide this morniii;. T will ace ^pt the propeitv known ,'is M("il. hlock, heint^the jiropcrty on M. street, for S,S.'),000, payalile one-third casii oii completion of title, and h.d.iiicc in one yi'ar at eiiilit iicr cent. You will jilease have papers .nid alistract submitted hy your solicitor to X. I". ||., l''si|.. 'I'l. 1). block, as soon as ])ossiblc. that \ inav Ljet I'onveyance and L,'ive niortji.-iije. " On a 1. FuiniATroN OF riiK Tontkai r. 1. Ihi ljilter-< that there was no binding, unconditional ac- llie wonls "coming to accept" did not shew an | ecptanee of the offer (>f sale, and therefore no ^tual ai ecptanee, but wen; merely an expression iiiteiitiiiii to do .something in the future. .\fr- '■ com|)leted contract of .sale between the paitie; Mr/iitinr V. I/i>f,(/, 9 S. ('. I!. .-,.-)(;. ^'tir,n\-,Jii/ni;vi.s' V. I'ltpi-r CiiikkIk Fiiniitiirr Com-' ki.v, '.'A. K. 211. The plainfifl's having agreed to suppK' the dc- kn.laiiN with KlO.OOO'feet of lumber subject to ppL'ctiiiii, th(! defeiiilauts in a subseiiuent letter Bsuiiu'il that this was t > be " .Vinerican iiispec- ioii, and the plaintiffs .answered "we do not liiiiw anything about American inspection, but fill Miliniit to any reasonable inspection." .No Vniial waiver of the inspection claimed by the Icfuiiiiants was made by them, neither was there |iy agreement by the pl.iintitfs to submit to such piwction :— Held (reversing the judgment of When' iM'operty was sold by aui tion, the p;ir- tieul.irs and conditions of s.ilc not diselosiuir the vendor's 11 une. ,ind tiie contract w.is dulvsiirned by the purchaser, but was not by the vcmhu- oi the auctioneer acting in the matter of s.iie. and subscipii'iitly, in conseipience of delays on tin; part ol the |)iireliaser, tln^ attorneys for the \eri- dor (one of whimi was the \eiidor himself) wrote in the course of a coires]ii)iideiieo which ensued : " l!e S.'s iiurchase, wi; would like to close this."' And referring to certain rejirt^seiitations ni.ide in the advertisements of the sale: "They wei<' not made part of the contract of sale * * Have the goodness to let us know whether the vendee will jiay cash or give mortgaire. If tho latter we will ptVpare it at once and send yoii draft for approval ;" and on a siibse(|U'tit occa- sion : " lie .S.'s purchase. Jferewitii jilease re- s HVfOb 91 CON Til ACT. cfivu ilct'il fiirainn'<>Viil,"iiii(l nii iuuitlicr nicisioii till. VLiiilnr liiuiHilf wiciti' '• I .sliiill tiiUf iiiiiiii:iliuti' sti'liM t• I!. -liO ; Cfiri.'.tli V. linniot, i'o(». i:. edit. II. Cli.NSIIiKIIAriON. On May -Ttli, KSS"), iLi'taiii iiiiliviihialH funii- iiii; a I'iu'ar iiiaimlartiil'iTs a.-ssuriatioii, aiiirii!j;st wiiniii was tlif ili'tiiiilaut, ciiiisiilerin;.' tlifiiisL'lvt.'s am,'i'ii'Vi'il Ky thu lUfliiln-Ts ut' the ci;;ar niakirs iiuiiiii, wliii ii'fiiscil to IdwiT till' jirii'i' of iiiakiii;.' a jiaitii'ular kiml of eiyar, uiiti'i'cd iiitu an ayrcr liKiit in w riting lictwucii tliiinsclvu.s ol thi' lir.st jiart anil S. ut the .secninl Jiait, as t'nllow.s ; •' Wliiivas, fur the iiiiitual ailvaiitagu and iiro- tuLtidii lit' the iiaitiLS heivtu * it has heeii agreed that tlie jiartiis ui' the liist part shall lieeiiine severally Ijiiiliid tii S. in the huiii of il^.'iOO, lii|uiilateil damages in ease any of tlieiii shall at any time during the eontimianee of this agreement, either directly or indirectly, Imy or sell any cigars marked * * with thu lahel.s of the eigar niaker.s niiiuii, or shall use '* " iu connection with the niaiuifactiii'u of cigars liy liiiii any cigar n.akers union laliel, ■* * or shall |)eriiiit ' * any cigar makers union, or an\' union urset of men to coni|iel him to hire or einploy union men only, or to dismiss any em- ployee. Mow, therefore, * * the parties hereto of the lirst ]iart severally covenant with 8. each for himself that he will, in case lie shall at any time liereaiter violate any of Uie foregoing stiimlations (setting them out) immediately pay to .S. the sum of .S"il)0 : the intention lieing that in ease of a violation of all or any of the stipula- tions * aforesaid hy any of the parties hereto of the lirst part, he, the said party so otl'ending, s'.all inmiediately forfeit and ^lay to S. the full sum of .SoUO, * * becanse of his SI) oU'eiiding, as li((iiidated and ascertained dam- ages (and not as a, penalty), to he by S. ajiitlicd, &e. * * 'i'he intention, also, being that the entire sum of .S'lOO shall be the amount of the ascertained and liiiuidated damages .if any viola- tion or breach wliatevei', of any of the stipula- tions * '* aforesaid on the part of any one ot the parties of the lirst part.'' 'i'he defendant having broken the above agreement in all re- spects, S. brought this action against him to recover ??riOO as liijuidated damages :--Held, that the mutual obligations imposed by the contract constituted a suHicient consideration for it: — Held, also, that the agreement was not invalid, on grounds of jmlilic imlicy. and as in undue restraint of trade. Collins r. Locke. () App. ('as. (•i74: and Hornby r. Close, I,. It. •_* »,». B. loS, distinguished. Si-lu-iidcr \. l.il/is. lOO. K. ;Hr)S. — I'roiidfoot. The defendant, having delivered ties to a rail- ^vay company in e.vcess of his contract, as he alleged, arranged that such ties sliould be I'c- tiiriied as received by the company on a contract with the plaintiir. In aiitici|iatiiiii uf such re- Liiriis, and of payment tiicrclor, the pi lintill' jiaid ' the defendant .■*l,flOO, and brought this actinu t . recover the sanii', alleging that he never wa.> ,ii,. ' to iirocure II turns or p.iyiiient from the railw.i company, and that thi consideration for ti ..■iiiLOOO iiad thill fiilc laileil. It w.is .^Inwii i I eviiliiice that the pl.iintill' had. in a claim aL,' lih-- the i.iilway company for l!l,.S.S,'{ ties, imlu.l, ;{,'_'()(( delivered by the defendant, aiul thal.ti railwa.v company disputing sudi claim, a si tt|. mciit li.id been eHicted, the jil.iintitl aceeptih. •I^LOOO in full of his claim, and giving the n.u, pany a formal release of all demands: — llil.i. that, to the extent to which the ties were ild; vered by the defendant on plailitill' s accniiut. the latter could Hot, in view of the eirciinistaiR. ,, allege failure of consider.ition ; but that he n i. not lioiind by the settlennlit to pay tor ties tin! were not delivered, and therefore tliat the di.t!. mination of the actimi depended upon the ii> ,!• of the iiiipiirv directed as to the number uf t;., delivered l.iy defendant ; and an ajipeal froiii ti,. judgment directini,' sinh iiii|iiiry was accordiii:;]. disiiiisied. The olijeclioii, that the judge at tli. trial slionld have himself decided the issue ,is t failure of eonsideration, instead of directiiii; .,; inijuiiy before the master, is not one that ti. court will entertain. J''i(il/ii r.i/ijiif \. VaiiAl'' ]•_' A. i;. i:a .See II kA.;- V. JJarllii;/, !) O. K. .•)ll, p. 'Xi. III. t)i'i;i;.\iiiiN of iiii; St.mi ri: Of I''i;.\i ; -. 1. Aiji'i'i nil III--: nut til hi- I'l r/'uriiii il iv'itliiii ii )'■ ,' .See Jli-iiini v. Xrliuii, 7 < '. K. !)0, p. !)7. Ii. A'/rimii iit-i X> ''' ■■<'<(tri/ til /i) in Wi-ltiii'j. j The ])laintiS', who was mortgagee of eert;i;. lands, alleged that \.., the present holder of ti. mortgage, [lurcliased it from (.'. with knowlid. of the fact that C- had purchased it from ti. original mortgagee as trustee for the plaiiitn: who was to be allowed to redeem on paying wli;r j ever C. should pay for the mortgage, and a i.v! tain additional sum for L'.'s services; and soil;;:.: to redeem on payment of what was due iiiiM- the said agreement with ('. : — Held, that ti: above agreement fell within the statute of framl.. and should be evidenced in writing : — Held. ;il.~ that even if this were not so, L. could imt i- atiected by such agreement, having purcli:is' i without notice of it. Wri'jlil v. Lrijsii u/.,Hii.\.. SS -Chy. D. IV. Validity .\s 1;kg.\I!I)s PfiiMc Pui.n v. 1. Itintrainl of Truilc. I), on entering the employment of \V. as :i.;ii:: in the vending of teas and eoH'ees, eovenaiitci with \V. not to engage in the sale or delivciv"' teas or coHees in the city of Toronto, eitlui :■ himself or as agent for any other person Imim: least two years after leaving W. s employ. \V. now moved for an injunction to restrain I)., wi; had left her employment, from violating the aii.'Vr coveiiint : - Held, that the covenant was biiiilm. ii]ion I)., notwithstanding that the considciati.i. for it might have been inadeijuate : — HcM i that the above covenant was not invali'l groundsof public policy. A covenant in rcjtr.uu'.i S, and H.,tradi |iie.s3 to K. under MW3: -".S. & H. iiiidcr a iien:ilt,3 w CONTRACT. 94 of ct'l't:i:, Ut if fraui';-, lolil. al- llll ill.lt i: purclKh' . as a^i'i:: ivcnaiitr. jlivi-i'V"' I'itlii'V :■ •son I'll' j: I y- " tlioalhiVf I IS lillnlili. ;iili.TatKiL| ilci.hus' iivaliil 'i| rc.-itiMiii'. ■ tia'k' is iiiit invaliil uiiIihh tli ■ rt'straiiit is lar- ., 1' ami wiiK T tliaii tlic |)ii)tei.'tiiiii i>f tlii^ cnvu- i„iiiti<' I'aii iPiissiMy rci|uiru. Wir/nr v. /)irlhi'/, Ml. 11. nil. ill.SU. Sou Schniihr \\ LiUl^, i()<>. K. .TjS, [.. !tl. \I. ICri'Ki r (IK MiMi II' M. Kv-i.wvs, s, iV Co., I'oiitrnutors fur tlic (.'ruction of .almiM- iii^' t'lir till' I'usjioiiik'iit ill till! L'ity of St. .ioliii X. I',,, lii'iiiiglit an artiiiii ilaiiiiiii!,' to have lii'i'ii iire- niiteil liy n'S]iiiiiili'iit I rum larryi inbuilt tiu'ii'coii- tiMi't. TliL' ili.'L'laratioii also I'oiitaiiii.'il tliu I'oiil- iimii I'duiits, part of till' >viirlv having hi't'ii |ii'r- I'lriiiiil. I>y the turiiis of tlir I'lniti'art tliu iiiiilil- iiiL,', wIr'II eructi'il, woulil imt liavi,' uoiUoiiiilI to till' iiinvisions of a liy-law of thu i-ity jiassi-il iiMilii'antlioi-ity nf an Act of tlu'goiu'i'al assiMiilily il'NiW l'>iiiiis\vii.'k, 41 \"ii't. r. 7) two ilays aftui' till' roiitrai't was sigiu'il. ( >ii tlu' trial of the ai:- •mil the [ilaiiitiirs Were iiunsuiti'il, ami an apiili- "itimi to the Supri'imi Coiirt of Ximv I'iniiii wii'k ti. set sui'h mnisiiit asiile was refused : -JleM, lli'iiiy, .)., liisseiiting) tliat the liy law of the villi city of St. .loliii iiiaile the saiil eontniet il- li'^l, ami, therefore, the plaintill's ooillil not re- iviir. Walker '•. MeMilleii, (I S. f. I!. 'J-H, iiilliiwcil. I'er Henry, .F. — That the ureetion of :!ii' hiiililing wmilil not, so far as the oviilunee h'lweil, ho a violation of the hy-law, ami tlieru- iirt', tlie non-suit slionhl he set asiile ami a new ri,il iiiiloreil. Sjii'iriv. Waltr, 11 S. ('. I!. Ii;}. Vll. ('oNSTiircriiiN III'' Ci)Nri!.\rrs. 1. (I'liiirallij, Tlie mil! now is, that if the legal iiirt of the mtraet in ipiestion can he severoil from that wiiiuh is illegal, tlie former shall stainl goml ulietlicr the illegality exist hy statute or eoin- .'iioii law. KilchiiKj V. //d'/.'-.' rtdl., (i O. 1!. 7."{'J — lliy. 1). S. iiinl H. , trailing partners solil out their busi- ness to K. umler a written agreement, as fol- Inws;— "S. & It. ill) lierehy himl themselves to K, miller a penalty of S'i.OOl), that tiiey will not 111 husiiioss in Cliesley in iiarilware for the term if live years." Within the live years S. eoni- hiieiiceil a lianlware husiness in Cliesley, in con- iii'i.tiim with M. : — llehl, that tiiis iliil not iiiouut to a broach of the above agreement, ■tliiiiigli the matter was not free from iloiibt. \iy.!w!i V. Stanl-'i/ I't a/., 7 O. It. :ioO. — lioyil. Defeiulant agroeil to furnish 'ilaintitl' with liiioiiey to construct a ilrain in tiie township of ll'iiuwicli, known as the Memiie ilr "ii the amount 1 he fiiriiisheil " not to exeeeil the sum of s| ,.")00 ; any time." anil to pay the same to plaintill' as iiteii ,uiil in such sums as niiglit be reipiireil, the ilaiiititf to give the ilefeiiilant his note for each Imm rei|uireil, ami to pay ilefemlant interest at I- per cent, per annum for the use of saiil moneys. I'l.uiitill' allegeil that upon the strength of this ligi'oeiiieiit he eontraetel with the towiishiii to V'liistnict the ilrain. Defciiilant fiiruisheil moneys ■ rum time to tiiuo to the ])1 lintill', excee ling in fill i?l,.")00, but not sutlicient to eoiiiplete the lli'iin, aiiil ilofenilint rofuseil to furnisii more. lie plaiiititT borrowcil moneys from others at less than \'2 per cent, interest, but claimeil ilani- agc^ for allegeil breacli of his agreement, eonteml- ing that he was thereby ilelaye I in riiiipleting tlio ilrain, and that owing to such ilelay and to llio winter setting in he lost largely, iiisteail of mak- ing a prolit, wliieh lie woulil otherwisi' have niailo ; -llrhl, that whether the agroemeiit w.is to furnish money to the extent of sl.'iOO only, or to siieli extent as might be iieees.sary for tho eonstiui'tioii of the ilrain, not eviei'iling .SI, ■">()() at liny one time, the only ilamages fur which de- fi'llilant was liable would be tlie iliU'el'eme be- tween the rate of interest payable to defendant under the agieiiiieiit and tlie market late of in- terest at the time uf the breach. I'er Ainionr, • I., under the true I'onvtriictinn of the agneinent the defendant was boiiiid to siipplv S|, ,")()() only. Mmnh V. A. ;/.'/i, SO. i;. ;!',»7 -i.t.'i;. i>. The |ilaintill', suing as assii;iiee uf jui appeal bond gi\i'ii by the defendants in (;. ,\: .M. mi an ap(ieal, which was dismissed, by S. and tin- X. I!. 11. company from a judgment recovered by (i. it .M., claimed the amount of the judgment with costs and inti'i'i'st, less a sum realised by the sheritr mi (i. ,V M.'s Ii. fa. goods by the sale to the plaintill' of a mill and lixtures ere -ted by thu X. 11. II. (,'o., on {Jrown lands which the eoni- pany oceuiiieil niidir a letter of license fium the eonimissioiier of Crown lands. Tlie dcteiidants Were shareholders in the company, and after the sheriir'ssale they and the jilaiiitiir .igrced to take steps to rcorgaiiis'' the coniiiany, 'he plaintill' to accept shares in s iti.>factioii of his claim. This agreement, which the plaintill' had refused to carry out, was relied on as a defence to this action. Xi the trial the learned juiIl:c held th;it the agreement was too vague lorspecilic [icrt'oriii- aiice, and was thei'elore no deleiice ; and being of oitinion that nothing jiassed by the shciill s salo to the plaintill', he gave judgment for the whole amount of the original judgment of ( !. it M. with costs and interest, against the wish of the plain- till', who claimed only the reduced amount. Tin; ilofeiidants moved against the judgment i'es))oet- ing tho agreement, and a divisional (.'onrt of two juilges, while agreeing that it was too vaguo for speeilio perform nice, ditl'ered as to its allording a defence to the action. The ])laintilt' also moved to reduce his judgment by deducting the amount of his bid at the sheritf's sale; but that order, by reason of the judges disagreeing, was nut granted On ap[)eal by the ilefeinliiits it was : — Held, that the agreement was only to accept shares in case the company was reorganised, and such agreement allorde I no defence to this ac- tion ; and that the judgment could [ironerly be varied by entering it for the reduced amount. The n])peal wis therefore dismissed, with c ists. I>riiiiih<'i'' V. liitrinl ri al., l.'i A. K. .■!;>7. The |)laintitrs under a by law granted the de- fendant a bonus of .S'_'(»,o()0 to aid liim in the miiinfacture of steam lire engines and .'igrieul- tur.il imiileinents, subject to a condition in the i)y-liw til at he should give a luortga^fe on the fictiry iiremises for 810. 000, and a bond for S|0,OI)0, to bo conditioueil : (1) for the carrying oil of such manufactures for "JO ye irs ; \'2) during that period to keep S^IO,*)!):) inve-ste I in the fa •- tory ; and i'A) to insure tho buildin,' and plant ill |)laiiitilis' favour for S10,OOJ. Tiie defend iiit give tho bond and niirtgage, tlie latter coiitiiu- . ing a CDvenaut for insurance, and he invested tli'! 21 «/« 06 CONTRACT. %■ !?.W.O(lO, :is sti|iulat(il fnr. lie also made a fiirtlu-r | iiioi t),M).n' ciii tile |ir« iiiiscH to tli(! iiliiiiititl's lor .*.*t,(Mi(», not iiiciitioiicil iii tlic liy-la\N. 'I'lie factory WftH one ill wliicli IS to L'."t irii II iiii^lit liavci lii'cii fiiililoyiil, anil wlm li could liavf tunuMl out KMI mowers ill a year. In tlic roiuscof two years only •JO liiowirs were eoliJ-tiiuted, and tlu^ iiiliiilier of jiersoiis ( in|iloyed d\\ iiidled down from 1,S or '20 to two or tiiree : Held, that the |jerforniaiice conteliiidated liy the parties of the eontraet to carry on maiiulacturcH was one reasonaldy com- iiiensiirate with the cajialiilities of the factory ; mill that, upon the evnleiicc, the iletendiUit had liiiled in the performance : Held, also, that the !?IO,0(MI iiiortj,'ai.'c was j.'iveii as a security for any ilamajics the piaintitls might sustain liy the de- fendant's default, to ail extent not ;,'reater than !?|(l.(l()(», ;iiiii not as a charge lor that specitiesiim ; ' Held. .•iNo, that, as the .•?:!, 0()(» mortgage was not aiitlioi i/cd hy the liy law. as to it tlie plain- titl.s were not entitled to any relict. liemaiks Upon elements to he consideicil liy the master in assessing the damages, ('iirjidnilinii of tin- I'illiuji of' JiniK.iy horse or .steam power, upon such terms as might ho jigrced on with the municipalities through whlcli the road might piiss, entered into an agreement with tlic county, wherehy it was agreed that the ciiiu])aiiy should he at liherty to lay down a tramway along a certain road ; tliat the tolls to he eollectcil i-hould not exceed certain s]iccilicil rates on one and two horse vehicles ; that the cuiiipany, if rei|uircd, should run two jiassiiigcr cal.s daily each way. or in lieu thereof an oiiinihus or sleigh ; that ill case horses, eariiages, teams, or other vehicles or animals met tin.: horses, waggons, carriages, or other vidiiclcs of the company, the latter should iiave the right of way, and that "so soon as this agreement shidl have heeii rati- fied hy the said coriioi atioii, the said coimiaiij' shall forthwith withdraw their said traction en- gine from the pulilic liighways of the said county, and sh.'iU iliscontiniic the use of the said tractifiii engine, and of any other traction engine, iqioii or along such jiuhlic highways." The company insisted that they Wfre at liherty, uiidiT the agreement, to run n steam motor upon the said tramway. Tliereu]ion an action was instituted hy the eorjioratioii to restrain the use of steam [lower on the tramway, wliii-h relief the court lielow (I'roudfoot, .1.), on the hearing of the cause, granted. l']ion ;\]ipeal, this court being ei|uallj divided, the aii|>i al was dismissed, with eo.sts. I'll' llagarty, < '. •!. and I'attersoii, J. A. (agreeing with I'roiulfiiot, .1.), on the true eon- struetion of the agreement there was, if not an express, at least an implied iiiialilicatioii exclud- ing the use of steam as a motive power. Per Hurtoii. .1. A. and Itose, .1., what the company had agreed to ahandoii was only the right there- tofore exercised liy them,— under tiie genera! law, ;{l Vict, e ;U (It. S. (). c. I8(i)— of using traction engines on the puhlic highway, and that they were not restricted hy the agreement from using steam motors on tlu' tramway. 77(c Cur- jKiratUiu <>)' III'' Vuniihj af York v. The Tomntu (Irarcl Jiniid (Dul Cdiicr'ti Co., 11 A. 11. 7()"). jXtfirmed hy the Supreme Court. [ Under .1'J A 3.T Vict, c. 7, whiili provides tlmt the printing, hiiuling, and other liki; work ii i|uireil tor till' several departmeiifii of the goviin. mciit shall he done and fui nished under coiitia< t-. to lie entered into under authority of the goveriini in eouiicil after advcrtisemciit for tenders, tin; under secretary of state adMitiscd for tcinli i^ for the printing "rei|uireil hy the Hever.d A- partniciits of the government. ' The siiiipliiiiis tendered for such printing, the speciticatioiis m, licxcd to the tender, w liich were sup]ilieil hy tin giiverninent, containing vaiimis provisions as t . the niaiiucr of performing the work and givii,j of Security. The tenders were acee]ited liy tli. governor in council, and an indenture was i\. lilted hetwceli the suppliants and Her Majr>t;, hy which the suppliants agreed to perform iiL i execute, kr., ".ill johs or lots of printing I. ' the several departments of the ( lovcriinieiit c ;' ( 'anada. of reports, iVc, of every deMription aii kind soever coming within the dciioiuiiiatioii it dc]iartiiient.il ]>riiiting, and all the work ai<" that if the lirm should well and truly pay tlui: iudchtedness. then the hond and agrecliiii.; should hecome wholly void. In a suit hroiijilii . mion the said agreement against (i. M., allegiii: : a delicieiicy in the assets of the firm and iinlift- I edness to the hank. . I!. ■.'.;.); //»;//-..>• V. Mn„i;, \\ A. 1!. M\i. i \'l II. I'i:i,iiii;MANri'.. Till' |)lailitill ai;rrt!il ti |iiiii'lia.si' fnnii the ile- iiinlaiit 7l» shaif.s (if stock in the IHoIm' I'rintiiij,' I .iiii|iaiiy. aiiil gavi- to tlir ilcl'i.'iiilaiit his iioti', |uyalilu ill two y*'ai'.s, lor tlii' pi'lcc of the nliart's, i whi'li wui'i' traiisfurri'il to liiin. At tin- ilufi'ii- lalit's K'niK'-st liu tlii'ii 1)Il'iI^i;iI tlu'Hi- 7<) sliaii'S, ! ,,iiil, as tliu jury foiiiul, lint tlii' ilcfcinlaiit 44 iitluT sliaii's of lii.s own, to plcilyc to a Kank, uliiih ilisi'oiiiitnl till" iioti' for till- ili'fi'iiilaiit. Tlic jury also foiiinl that it was a t'oinlitioii of tin; i.iircliasi; that the difi'iiilant, who hail a lai'LTi" iiitirrst ill tin,' (ilohu I'riiitin;,' Co., slioiilil ki'i'p tip' iil.iintiir in the iiositioii w liidi hi; ori'iipicil as naiia'^in;;; ilii't'ctor of the (ilohu Printiiii; ( 'o., at ,1 tixiil salary, 'i'lie ilffi'inlaiit at the maturity nitlio nntu it'tiivil it, ami took an assiL,'ninriit to Liiiisi'lf of the ll'O shares. The iilaiiitill' haviiiy liciii afterwards ilisiiiissed frnin his [lositinii as iiKinagiiiL,' direetor, hronLjht this aetioii for a re turn of the 44 shares, on the gronml that the imrpiise for whii;h they had hein ]iledf,'ed, (vi/ : the raisiiij; of money liy the defeml.int for lion. (ioiirj;e hrown's estate, ) had heen fiiltilled ; and fur a return of the note, and to he relieved fimn tilt (iiirehasc of the 7(> shares, on the ground that the eonditinn of the luirehase, (vi/. : hi.s heiiig ivt;iiiied inoliire.) had not lieen fullilled, hilt li.'ul !ii.eii hrokun hy the; defemlant's ]iroeuriiig his ili.' shares ; and that tlie plain- titf's remedy, if .'iny, for wrongful dismissal w.is hy an imlepemleiit ictioii : — Held also, that the ilifeiiilant having performed his portion of the .igieeineiit, the ■'statute of Fraiuls, as regards au'ieements not to he ])erformeil within a year, Wiis not applicalile to the uiidurtaking to keep the plaiiititf in ollice. Hrnirn v. Xel^oti, 7 0. ]!. TO-l.'. P. 1). In order to recover in an action for non -per- formance of a contract to do work, the plaintiff nuist shew a williiignes.s'aiid readiness on his part tn iierforni, and on the defendant's part a distinct ami unei|uivocal ahsolute refusal, and that such iinisal was treated and acteil upon liy the itlain- I till ; for, if after refusal, he continue to urge or lUniaiid compliance with the contract, lie must he deemed as considering it as not at an end. I McLdlau V. Wiii'itoii et al., 1'2 (). J{. 4,'?1 — C. I'. I.). Ill this case the iilaiiitlflTset up ;i contract innde with ih'tendaiits, to cut and lay down on the de- lindaiits' limits a i|uantity of ties ; tli.it he w.is to ship his ontlit to I'ort Arthur, \Nhrre he was to receive instructions from defiiidants as to the nii'.'ins and w.iy of foruarding same to the place where the work was to he pirformi'd. The |i|aiii- till' sent his oiitlit to I'ort .Vithiir. and clainn d that defilid.iiits neglected .•Hid refused to give such instructions and refused to carry nut the eiiiitr.ict wlierehy the plaiiitill was daiiinitied : " Held, that the evideiiee disclosed that the lilainfiir himself was not ready anil willing to perforin the contract ; ami further, if a refusal t^« jierform hy defeiidantH was |iroved, th.it it wha not tre.ited ami .'leted upon hy plaintill' as such, hut thereafter he continued to treat the contract ••IS still suhsistiiig : — Held, therefore, the action failed. //'. See .V/,.i//'.vv. II'k//'/'. 1 1 S. C. J!. ll.^, p. !i;{. I.\'. iJKsriNlilvc. CiiSrU.VCT. On the •Jnd August, IS7S, 11. ('. .t 1'. eiiteieil into a contract with Her .Majesty to do thi; ex- cavation, itc, of the (ieoigi.in llay liraiieh of the Canada I'acilie llailway. Slioi tly after the date of the eoiitraet and after the I'ommeiieeuient of the work, 11. C. it !•". associated with themselves si'Ver.il partners in the wmk, amongst others .S, it K. (respondents), and oil .'iOth .lune, \>>'1'.K the whole contract wa.s jissigneil to .S, it K. Sulise- i|Uciitly, on tlie "J.-itli .Inly, IS7 the trans- fer and assignment of the contract to S. it II., the contractors should lie notitied that the eon- tract was taken out of their hands ami annulled. In ciiiisei|iieiice of this notitication, S. it I!., who were earyiiig on the works, ceased work, and with theciinsent of the Minister of I'ulilie Wmks, reali/.eil their ]ilaiit and presented a claim lor damages, and tinally 11. ('. it V. .'ind S. it 1!. tiled a jietitinn of riglit claiming .S'i'iO.OOO damages for hreaeli of contract. The statenunt in de- fence set U]) inter alia, the 17th el.iiise of the contract which provided against the contractors assigning the contract, and in case of assigiiineiit without" Her .Majesty's consent, eiiatiled Her Majesty to take the works out of the contractors' hands, and employ such means as she might see lit to complete the same ; and in such case the contractors should have no claim for any further I payment in respect of the works perfornied, hut remain lialile for loss hy reason of noii-eonipletion hy the contractor. At the trial there was evi- dence that the Minister of I'uhlic Works knew that S & K. were partners, and that he was satislie I that they were connected with the con- cern. There was also evidence that the depart- ment knew S. & 1!. were carrying on the works, ami that S. it 1!. had heen infornicd hy the l)e[iuty Minister of the deiiartnient that all that was necessary to be otHcially recognized as con- 1 •/% g «9 CONVERSION. 100 traitors, was t(» send a letter to tlio ^'overniiiuiit Iroiii II. (.'. & F. Ill tin,' Kxclidiiior, lli'iiry, J., awarded tlie HUi)]iliai>t.i olTI. 040.77 dan)af,'es. ' Ml aiipeal to the .Supreme Coiiit of ( 'aiiada it was Held, rever.siiij; tiio jiiiij.'iiieMt ol lleiiry, .)., (l''otiriiier and lleiiiy, .1.1., di.s.seiitiiij.'.) 'i'liat tlieie was IK) evid(!iice of a l>iiiiliiif4 a.s.seat on the part L.\i!OL'l{. CONTRIIiUTlOX. Si I ISSI liANCi:. ('ON'TKIlll'TOHlKS. .V(( t'(i|;l'(ii;ATloNs. COXTUIIU'TOI! V N K( ; ld( I KNCK. .sVi Nkcimcknck. (•(»\ti;()vi:i;ti:i) i:i ix tions. 1. .MiNicirAi, .V(c Mr.Nii ii'Ai, Coki'oka- TIllN. I'\i:i lAMKMWKV s'.'' I'aki.iamkntakv Ij.kc- 'I'Kl.N.S. cnNVIinsKiN. I. .)i Cm ATTKi.s, !»;». II. (>i l;l•:\l.T^ i.vri) I'kuson vi.tv, 102. I. (>(• CllATTKI.S. 'I'lie plaint ill uas e\icutiiidf II. !),, widow of '1". I>., w iiose exeiutiu- the defendant w.n. 'i'lle jii liiititr iLuiued a [liaiio in tiie hiuisi^ lately oeeii- )pied liy the wido v, of \v'iieli tlu' (h'feiidant li.id the ki'y. At an i i*4TV1c •• liet«eiii the plai.ilili' ;ind defe'idaiit thv tatter elaiiued the piano, liilt Slid h.! WIS wiliiiiL; to leave llie c|in stion of the ownership to a piMxui to he named. The |ilain t. If left hiiii, proini.. i;. i>. I B. h.ivii'g )i(issessiiin of certain noods of S.. <, I deuiande.l ciieiii of him on Decciiiher ■_'."?id. I; I ntfiiseil to .allow till! more Imlk' •• ods to in.- n I moved until aft<'r ( 'hristmas, on t.ie ground tliat jit \\()uld interfere witii his own trade. Oi; heceiiilier L^th, S. eoiiiineiiced this actiiui Ti.i I dam.igcs, on tlie grounil of wrongful <-ouvei.ioii and dcliiition of the goods hy I'.. On I>ecenil)er I "Jd, 15. iiotihcd S. that he could umovc tiie le- mainih'r of the goods. ,S. thereupon sent toi them, hut liiidiiig some of tlielii had lieeli seizeil under [irocess of attachment out of the lM\isi(i:i Court, removed the rest, ai d afterwards cdii- ti'sted ill the Itivisidii Court the ow neislii;. "' tliose seized : — Ihdd, allirming the judL;iiiei:. ..i the Master in Ordinary, that .S. was entithil i" dam.ages for the detention of the goods on |ti- eeinhir ;.';{rd, liut the ineaslire tructioii or removal .eiver.se to the ]ilaintill s pnipeity, hut tile pl.iinlilf was ultimately pn VI nted from getting tlu^ j;oods, not liecause u! tne defendant's misconduct, Imt hecause tin- claim of atl.iching •ri'ditois intrrveiicil. i'lic I old learning on the suhject of " t'nnversi.iu iieeil not lie iiniiorted Milo the system iuti"- (luccd l>y the .liidicature Act, which proviuv? 'for redress in ease the plaii'till s gciods an , widiigfiilly (U't.aiiied, or in ease he is wroiiglulli di'piivcd of them. In all such e.ises the ifii (|Uestioii is, whether there has lieeii such all un aiithori/.'d ilealing with the jilaintill's propcitv as !i;is c.iused him ilam.ige, and if so, to wImI I'xteiit has he sustained damage. Stiiifun v. IllnrL; II (». It, ;i(i.--l{,,Nd. A liank jil.iced an execution against -M. 'li' I .int ill "s son .iiiil one ('., in the hands of M. . Uivisinu Coi'.rt liailiir, under whi.'li V>. sei/e.j ,i stallion as licloiigiiig to M., which iiliiintitt cl;:!;. ed as her |iropeity, and w liicii pcndiiiL; iii:- pleuu r pioo edings iiistitiiti d liy her, was [il,. "i with ,111 innkeeper. .Sulisei|Uently .in execii;;.:. hv I' .i-.iinst tlic same p.irties was placed in tic slienll s liaiids. 1','s sohcitor infornii'.l the .slierilf of all tlie circumstances, and he on tlii' .'trd Hi (iilMr, olit. lined from the innki.'cper a writ;." undertaking to keep the horse stat. .1 t" '<'■■ under sei/.iire hy the slieiitl' until fill tiler ol ■ > from til.' slHiilh On I 1th Oetoher the shei ill "i. noli. I pl.aiiitill 's cl.iiiii intei ple.ided. On III ■^t Octoli.r, ilie |ii\isiiiii Court intciplc.ulcr 'a.i- '!■■ 1, \ riiieii in the ] >ii'i ill' at ( lie •i"t ejaini an I'l' ;oie hc'ing ■ii'- liorse, Ini i: ap until lii: 'It did Hot •■ii:!'. On ■■'■■■ iif [laid, l,u Miii^ or r. , ..M.l l.y ]}. ( :i.ilc harring : ■ :orthwilli , 14tli ^■ovellll i-iilist tlie li,- .■•ii\ersion, an .'■uit directiii; :iie liorse, los? her, af.er lorse was ■ccpt it un notice of at il'l he no re ■ ; tile reas'iii ::i'l notice of a t'l connect tin tii.it though tin ''V tlie sherill ■ lid make tic. '•i' pt the horse iiteifered with 1 ■!■ it, or in ^-' . it being at y. I». ■\u engine, -Mpped liy [il, V. litteii order •;i!ii agreed on, '• ' pcutahle en i'-'^d o,. shipineii ■1 notes withii iiii"iiiit to heci "iinterniaiided, '■■' lie at K.'s risj. :- iii.iiid was to a ■I'd the title the ti:ls. !•:. agreeing ; ;t the plaintili, :!i iKiyiilent the 'ii'l remove the i*er same to pi "I'dtion as rec ' 11. and to J);) " te-^ or other ( ■ I'l' dliess to be ■' i,\ was put u| "•illi right to pill •■"<■ lor one or li H. 'Vife died on ' • '■ will .ippoiiite !"'"'r ("o sell or ( ■ ^tairi.x was m- i :'-7tii April. |,s '■I "'<• i-ight, tith ■~ "ell ol himsel '■I'll the mill bui "-'"e, ,Ve., and 'I'l lueinises, mi ' "• After the • '-'■'! the land, ni ' ^'t^ the F. |,oa ■^^' 1 liuidanvcas !"1 CONVICTION. 1U2 ■ iiiii ill tlie {ilaiiitiff's favour. AN'heieinmii the Ml' 1 ill' at ( iici; iiotitiud tlu; iiuikoc'iier tliat liu did 'i..t ilaiiu any ttirther right to huld tlic iior.sf. i;. foil! IxMiig so iiotitifd, tho iilaintitV duin.iiiikMl till hiirso. Ijut the iiiiikL'ciiL'P rcfiibud to delivLi' i- \t\i until his chaiges for kuupiiig it woi'i^ jiaid, ■ It did niit assuit any right to liold for thu .,.• iiiF. t)n LStli NovenihiT, part of the charges .'.. ir [laid, hut it nr 1'. , and the halanee was sifoseipiently .1 liy 1>. On the ;ird >i'<)Vend)er an oriler was i.L.lr barring l'."s claim and direiling thesherill ;.. lurthwitli deliver the liorse to i)laintitr. On 14th Noveniliur tiiis .letion was connneneed ,. iiust tile hank, 1'., the sheiill and hailili, for . .iivi-rsiiin, and disohedieiiee nf the order of the . Mit directing redelivery, elainiing tlie value nf tip horse, loss of earnings, i\:e. About Ih'd I'e- :iiber, af.er tile coiiinieiicemeiit of the action, •li' horse was tendered to ]jlaintitV who refused :■ irrupt it unless damages and costs were paid. \" notice of action was given : — Held, that there lidd be no recovery against any of the jiaities • ! the reason (1) that the baililV slinuld have id notice of action ; ("2) that tiiere was nothing ;.. iiiinect the bank or I', with liie seizure ; (',\) •i.,it tlimigh there was wii.it cnnstituted a sei/.ure 'y the sheritl', sn as to entitle him to interplead ,11 1 make the innkeeper liable if he hail not k' pt tile horse for him, the siierilt' in no way .i;:iihred with the liailill's iiwssessinii orcoutrul . r it, or in any way ecniverted it to his own ;- . it Itcing at tiic time in the custody of the '::\. J',in/n V. ^7r^.^ (/ '(/., no. K. "-JT.") ('. I', l>. .\ii engine, Imilur, and other maihiiury, wer ■ ■ . I'ped by plaintill's to tile defendant I",, under V, ritten nrder In slii[(saini- to his adilnss as per •'.III agreed nil, vi/. , #S7t") ; >'L''J.") to be allowed lor ':. - portable engine and boiler, and !?•').'{") to lie ^■:<1 II,. shiinnent ; but, if not settled for in cash ■1 imtes within twenty days, then the whole II. 'luit to beciiine due. Tho order not to be 'iiiitermanded, and until paymeiitthe niachiiiery ■ ' 111' at 1). s risk, which he was to insure, ami on ; iii.iiid was to assign the policy to the [ilairtiU's, lid the title thereof svas not to pass out of iihiin- :\'U. \l. agreeing not to sell or remove same witli- t the plaintilis' lonsciit in writing. Un default :i iMVinent the plaintill's could enter and take iImI leiiiiive the machinery, and 1^. agreed to ili .11 same to plaintill's in like good order ii. . iiMitiiiii as received, save ordinary wear and • II. and to pay e.\pinses of removal. Any ■.. 'lv< or other security given iiy Iv for his in- lit diiess to be (Millateial tlu'reto. The niaedii- ly was jiut up in a mill on premises leased, ;!li right to purchase, by defend, uit I ►. to I'l s • li' for one or live years from I Ith .March, l.NS.'j. K. nile died mi the iJlird Octolier, ISSH. ,ind by ■ r u ill .ippdinted I'], sole executor, giving him !"iW' r Ui si.ll or dispose ol any pro|)eity to which ■ ', demise. leased the ■lid premises, mill and machinery, to K. bir one }' ir. After the execution of this lease I >. molt- - 1. id the land, mill and machinery to thedelen- 1 iitM the F. Loan Society. 'I'lie defendant 1'.. ■vVii puid any cash, Imtgave his [iioniissory note at three months, which was renewed from tinn' to time, lilt ultimately K. having failed to pay same, t'lC ]ilaintili's demanded the maciiinery when I), imtilied phiiiitills not to remove same. ;is also did the .'Society : - Meld, that the otl'ict of the transaction was, that the pro|ic'rty was in the plaintill's. .-ind tli.it they w< n entitled tlnirto ; and that there was an ille;. .d detention liy the defendants 1). and K. amoiint.in.' to a conveision : and that tl-.e 1'. t'o. by having iiotilicd piaiiitill not til reiiiove the michineiy, were proper par ties to tin suit to give iilainlills full relief ; and that unli'j's defendants allnwid plaiiitilfs to re- move the michinery on demand, the plaintill's were entitled to recover SO.'iO with interest, be- ing the price (if maeliimry , and th.it upon re- moval ol the iMigine and boiler the sum ol ,'ij;(iO for rejiaiis slnmlil be paid by pi lintilVs to I >. to be repaid to pl.iiiitills bv K. I'lil-mii it nl. v Dri/.u-it iiL, iL'o. i:. -j:.-) -C. V. D. II. OlIlKM.TV INlo Pl.KsiiV vi.TV. 1'. btilig the nwiicl of .•eit.vill l.ini.> WMS -i ived by a railway company witli notice of expinpria- tion and tindiied a sum of inoiuy foriight of uay and daiiiagi-, which he refused. SubseipH iitly on the a]iplicati<)n uf tiie rnmpaiiy and with thi consent of I'.'s solicitor the county jndgt madi an order fixing the amninit of security tn In- giv n foi- damages, and the priie of the l.iiid. anil giving the company possession upon their payiiiir the amount of .-ucli security into a bank to the joint credit "f I', and the company. The money was jiaid ii. ]iuisuant thereto. .\ii aibi tr.ition w,is then pioc.eiled with, and the com- pensation to be jiaid for tin value of the land taken and the d.image to the remainder, was lixed by the award in sejiarate sums. I'lor id iiigsaiid ap|icals as to the costs kept the m.ittir ojien. and the money leinained to the rii'dit ot the .joint account until I*, liied. after making his will, by which he ilcvisi d all his real estate to a truste-, and appnintcd the plaintitV cMciitoi . The defendants were appnintcd trustees ill place of the trustee u.iliied ill tlie w ill. U}ioll a special case for the opinici of the i i^l:iii v. '/7e '/'dihiiId (linii'id Trulls Cn.. l'_'o. n. 4Mt. -Pioudfoot. •Sie ll'i.M'/ v. .1 \-l o. K. l-tfl. «/% g CONN imiiN. I. lU M \i,isTi;.\ii,s. !. i;< i„ nt/ y-Sic jLsTlfKs OK iiir. I'k.voe. io;3 CORPORATIONS. il)y- right tliLTciii i.s williuji tn [nimit \i\^ licunsut.' to jjiihlibh ; Imt without aiy wiitiiii;. tluri' may I'u Mich coiiihict on the [lai t ot the owimm'. in assent- I ilig to ainl elicoiiragiiiL; the iiitriiij:ciiieiit coin- phiiiieil ot, as to iliseiitilh' liiijj to relict in eiiuity liy way of injunction. AH'h v. /.//<.//, ,"> ( ». It. (il 5. "lioyil. ( ■., tlie Wlitei'ot a liook, pi inteil tiic lioiikw iiich lie intenileil to coiiyrii^ht u itii notice therein ot cojij'light liaviii:,' liccn .-ccilliil, allhollgli he hail not at tile time actually taken the .ite[is to ol)taiii eojiyriglit. lie, however, did this iiiereh in anticipation of ajiiilying tor co[iyiiyht, w hich he suhseiiinntly a|>plicd lor and olitaincd. I'ur- tiieiinoie, it a[ipcaicd to lie sanctioned liy the practice at the ollice at (Utawa, and tla re was no piihlicatioii of the iiook till aiter the statu- tory title of the author was complete : Held, that this did not invalidate the patent, and (jilajre whether it was an infringement of sec. 17 of the Act lespectiny copyrights, lis \ict. c. ,S8, (Uom.), so as to .sulijcct (i. to any pi'iialty. On the title [lage of the book as piilili.-.|ied the plain- till' caused these words to he printed : " I'.nter- od according to Ai't of I'arlianient, in the year KSS;{, Ity .1. A. (Jeinmill, in the ollice of the Minister of Agi icultiiic, at Ottawa:' — Held, that this was sullicicnt c/•.>• of, 11 ;j. 3. I'l'i-Muiiil l.iuliUilii iif, ll.">. 4. ('iiiitriicis liitirri'ii />'nicfiii'-i (mil ('•■n.. I'll nil, I l.">. f). K.iii iiiiiiilt'iiiii ii/' < >jiiri r-t /'or / li-'fOI'i I';: Si I MviDKNCi;. ^'. Li M.II.I I V olColM'ol; AI'loNs To Ml'MI'li ■ IKi. \l. CoNTV.M IS W nil C'oKI'iiK.VI loss, 117. \'II. Win HI Nell' A< IS. I. A/,/iliriillni, III', lis. •_'. I.iiiiiiiliiiiir.<. I'JO. ;{. (• iiilrihiilin-'ii.-', Vl\. 4. I'niclin. (a) /'ijirii.i of till' Court, Jiidijcs, c Miisi, r... I -24. (h) .l/-yiM,/v. 1-j.J. (c) (illii r r,/.v, ,v, I •_•."., 5. rc.s/.s, 1 •_><;. ti. . l'J7. .\. I II AIM i;i;i:i> .\m. otiiik ( 'nHron.ATiiv 1. /I'lliikillil — Sir I'l.VNKS. 'J. HiiiliUliiJ Siirlrfii .■^-- Sic 111 II.OINi. ^' ( II'.ITKS. ;!. l^rrlrsinslkal.^Sir ('lllKCII. 4. lii.^iirnurr -Sic InsiTvAM ■"). .Uni.iri/ial — Srr .Ml'.mcii-.; <,-, jmiim 1 IONS, (i. Hiiilii-nij.'t— Sii i;\ii.\\A\s ANii Km:, W AV (o.Ml'.V.NU S, 7. Hiiiiil (.'miipniiii -s Sir \\ AV. COIH'OKA rioNS. f l''ol:.M.\rii)N. 1. l'roiiiiilrr~. (a) /■'iiiii'l iiiii/ MiAildtniiilili, lU4. (h) (Hill rCiisis, 10(). II. StikK. !, Siili.scri/iliiiii j'lir, IO(i. ■J, Ciill.-i. (a) .Sotin ()/', Ml.S. (It) Olliir lo t'i:Kl>i- lOlJS, 111. I. l'ol:M.\IIo,s-. I. I'riiiiiiili r.<. (a) I'rniiil null Mi^irpri ■iriifii/inu . .\ .s'.iit was lii'ought against a joint stock cmi paiiy, a-id against four oi the .shareholders w I. ■ liad heeii the 'd'onii-tcrs of the coiupaiiy. 'I'li' hill allege;' cJMt the defenilants. other than tin' company, h.n'i lieeii carrying on the luinlier Im-i iiess as partners and had hecomu eiuliarrasscil ■ that they tinii concocted a selielne of form i ml: i joint stork company ; that the sole olijeet of tli pioposeil company was to relieve the ineiiilH i- tlie linn from personal liability for ilehts incuiiiM in the said luisincss and induce the imhlic toiul value money to cans on the Kusiiiess; that appli- cation was made to the government of Oiit.iii for a <;hartcr, and at the same time a prospci ti ■ was issued, which was set out in full in Hie hiH; that such itrospectus contained the follow iiig pat agraphs among others, which the plaintill'alKi;i'l toliefuUo: 1. The tinilier limits of the conipaii) inclusive of the rcco.'it purchase, consist of 'J'.'-: scpiare miles, or 14'.'. 400 acres, and are esliiiiati'i to yield I'OO millKni Net of Innilier, '_'. The ii terest of the piopi ictors of thf old oiniiaiiy iii iC« assets, ustiniated at alioiit •':!14C,000 user !ii liilities, has ..t .'lU.'i.OOO, uli.il. if th. w ill lie list paiiy. .'i. I'l w ill he is.-iie jMr Cent, yi "\ rr tli.it am amongst .-ill t tile holders -'.nipaiiy hin imiiig the yi I'll' aniiiini, vMitiiig. 5. ..i.iiiliaiiy. ow lie .ilile to p,p nary as well .-i tlic luiulier 1 dii, tlic prolit- The lull flirt I - I died for st' tile --t.llelllcllt III tile old CO] new ill the c tniit: of issniii ni»ed iimditi lii.el'.' known 'luw eoiupany. the assi ts of t i til tiie ( (atari' i.»siicil hut 1 1 -r.uited ; that ll'il Udltll .^1 h !iut vvci'u Wort "'. the ciiiitrai III the amount agiiinst the dii rrsi'iit:ition. 'i till- promoters i"'-t- III the IK tii'V li.'id lloiie-i ii^iliili!lit three w.ild: 1. Kesei iiir preference a till' cnlltr.'Vct to during the year tile directors ai tinli. riieconi| plaiutiU's [Hit tl .r.iiinil : — Held "lints helow, J tin plaintill's ci oiapany liy w,i lii'i ailse it ap|ie.i liiildcrs and allii -I 111 s .-ifter lll'C II. iipreseiitatii -•'I'-t the di'fe '' iceit, that -III case of fi,' '•title plniiiliH- *!•". a til the ,il ili^e to the Out alter the prosper '"III ill the pros ■liaieliolders wei a-i the new com liahir for the dei -ivcii ; and as ti ra.Hsid condition 1 ■liiMiil that the *iT ' •* to hr insiii tlii> liahle in ai '■"'/'/( J. II III 1,1 r ( till lUJ CORPORATIONS. lOG l.ilitics, liiis been triviisfeired to the new company ai .riUr).000, ill! taken in jiaid uji stuck, and tliu wliiil :)f the [iriiceeils of the prcicrential stock will he use,', for the purposes of tile new coin- piUiy. •'{• I'referenee stock not to exceed #7.">.(KI(I w ill lie issued liy the conipany to j^iiurantec ei^ht |pir cent, yearly thereon to the year KS80, and •■\rr that amount the net prohts will he divided :iiHiinj,'st all the .shareliolilers pro rata. 4. Should tin holders ol preteri uce stock so desire, the i.iiipany )iin take that stock hac'k iiiiiiii; the year ISSO at pai, with eiijlit percent. ),,! annum, on rccciviiij,' six months' notice in writing. 5. Kveu with present low prices the (.iiipany, owing to their superior fai'ilities, will In; alile to pay a handsome dividend on the- ordi- nary as well as on the iiiefcrence stock, and when the hunlier market improves, as it nuist soon do, the prolits will he correspondingly increased. The hill further allegeil that the plaintill's suh- » iihed for stock in the coni|iany on the faith siied hut 111 fore tin; stock certili.'ates were :.'raiited; that the assets of the old eoiiipaiiy v.\.''o lint udi'th .^14(1,(100, (ir any sum over lialiilities, l.iil were W(U'thless : an. I pr.iyed for a rescission III the contra<.t foi taking stock, lor rt payiaeiit ..1 the amount of such stock, aii.l for damages i.Miiist the directors and promoters for misrep- !. sriitation. There was evidence to slnnv that til.' promoters had reason to helieve the pros- I t> of the new eo:'>i>aiiy to he good, ,'iiid that till V had honestly vai. led their as.sets. (In the ir:;uiiieiit three grounds of ndief were put for- ward; 1. Iicscissioii of the contract to siihscrilie •nr |ireferenee stock. '2. Spceilic pi'rl'ormance of til. .'. infract to take hack the prcfe-reiice stock luiiiig the year l.SSdat pai'. ■'{. I l.imaLres against ilif .lirectors and promoters 'or luisreprcsciita- ti.ii. 'I'lu' company having hec mic ins ilvent tho I'liiiitiU's put their case |)rinci^ially on the tliinl .r..iiiid : — Held, attiniiing the ju.L'ineiit of the ..lilts heh.w, -' (t. K. '-MS: II ,\. K. :!;tti, that til. ilaintill's could claim no iclici agaiiii-. the iiiiipany hy w;iy of rescission of the co itract, 111. aiise it appe.iiT.l that they had acted as nhare- Ih.l.lers aii.l allirnieil tin ir . ontract as owi ers of 'iiiies aftir hecoiiiing .iwiire of the grounds of 111 ■iei)resentatioii : Held, also, as to the ai^tioii i.iiiist the di'fendants other than the company 1.. 'eceit, that the eviilence fuileil to estaidish ^'i ii tease of fraudiihmt misrepresentation as to ■(title phiintiHs to succeed us for deceit : -Held, il»'.. a to the alleged coni ealiiieiit of the molt .M-e to the I liit.irio itank. it having hecn given .liter the prospectus was issued, it could not have l.i u ill the prospectus, and. iii..reo\er. that the •11,01 holders were in no way damnilied tlierehy, !■- the new Company would have heiii cipially liilile for the deiit if lie- mortgage li.nl not heeii ;iveii ; and as to the eoiiiealinent ol the endiar- lasKi.l eoii.litiiui of the old eoiiipmy, the evi.Kiicc* >lle\v. d that the ohi linn clid not helij'Ve thein- sil . s to Ih' insolvent : and iii neither e.isc were ti . \ liahle III an action of this kind. I'ltfh v. '.'■'/''' Lmnhtv Coiiijiitiii/, 11 N. «.'. H. 430. The )iliiintitrs, formerly owners of a line of steamers, tiled the hill in this cause against the defendants, who were formerly owners of another line of ste.imers, seeking damages in respect of alh'ged misrepresent. ition< on the ]iai t of the de feiiilants as to certain contracts alleged hy them to he lii'M in c.inne,ti..ii with their lino, .and wherehy the plaintill's allege.l they were induce. 1 to enter into an agreement with the d.'feiiilants for the amalgamation of the two lines, an. I the formation in comiectimi with the .hfeii. hints of a joint stock com;. any t.p own ,iiid run the same. The agreement was nia.le in I leccmhcr, IsTti, the charter of the ciinpimy was ohtained in March, I.S77. ami the plaintilts liecam.: aware of the ill legeil niisrcpreseiit.tlioiis in May, IS77 ; notwith stamliiig whi.'li they continued t.i carry on the hiisiness, allotted shares, and aliowcil dividends to lie paid until an. I after the hill was tile. I, w hich was not till l''ehruary, ISSj. 'Ilie cause was not hroiight to a he.iriiig till May, ISS4, and one of the ilefeiidants dicl while it was pen. ling. Tlie cvi.lenee as to the alleged misrepresentations was .•luitli.ting : -Held, reversing the.lecisi.m of Wil soii.t'.d.,!H >. \'k. :{S"), that this was m ell'cctacom moll law action of dceit, and the misreprcseiita tions allegi-d re.|iiiiv.l proof of the cle.irest kiml : ami. thcrei.iri'. tli.it the hmg clelay. the e.inreseiitatioiis made to the idaiiititls. ' Hull ii rl nl. v. .V't7.//( >lai, M \. K. .-)U. llehl hy Wilson, U. .1., that the action could he proeicd.il with against the surviving defen- dants. X. '■., '.I o. i;. :!.s.-.. See ;uso .1/. o/')V.■')(,/, l.-i ,\. K. .•..'!l. t^hiaTe, whetlier a married woman can legally he one of the live iiieiiiher:, reimir. 1 by H. S. O, c, l.")'J. to form a joint sto.k co;u|i.iiiy lor 1 urjiose i>l purchasing .1 roail. /''. the II. Stock. I. Siihscriiition/'ii: Shares had iweii a«niifneil in the ("onipanys hooks hy ihe managing -In cctor in hia own name, i */% ^ 107 CORPO RATIONS. in- lo'J .18 to '■.WMity sliiinjs, ■■iml ha ;ittoriiey for .iiiotlit'r, as to thirty, to tin; (k'tt'iuliiiit, wlin diil not sign till! n^s^l.•^l foriicil .loc'.iitaMci' lor ;uiy of tluin, Imt a certiliciilc unili'r tin- corporatt; seal oi the com- pany anil the si'.'natnn' of tlic jiresiiliMit, vicc- pri'.-^iilcnt anil .ici ii'tarv of the ronipany was .si'iit to liini, ciMtilyini,' tliat lit; \ as file ri^istcrnl owiiL'r of lln' twiiity sliarcH ; ami dcfciiilant liail, in a l)i|l lili'il against a tiiinl party for framlu- Icntly imliuMML' liini to piinliasr the sharis. for uhicli he liail jiaiil Sr)ll(), ailniittcil that lir had piirchasrii the fifty shares : Iji'ld. that dofiii- dant was a siiarcliolih r as to tin 'sr fifty siiarcs : - Si'inhlc, that if any further formal arts were re ipiired to he done on the jiart of the ihiendant to ronstitntr him a shai-eliolder he cnrld hi' direeted to perform them. /i'p. The di.-fendant witli othe r.-i aijreei to apply for a patent for a company for m;'.nnf.ietnriny ()nr- (loses, under II. .'^. < •. e. j.'O. and sij:!ieil:', stoeU list snliscriliin:; for eertain shares, and a^jreein^ to pay therefor as [);o\ ided \i\ the .\et ami the hy-laws of the eompahy. SuhheijUently a jieti- tion puroortinj; to he hy thiiteen of the siiliMii hers, hut omlttin^' the defendant's name, was |)re.sented to the l,ieiitiuant-( iovernor of ( >ntario for a patent ineorporatini; the petitioners and "such others as might heeonie slrut holders in the jonipany therehy eicated a hody eorjiorate, ' iSte. The stock list, how.-'ver, suhscriLeil hy the defendant appeared to have heen hied in theollice of the seeretarj' .4' State. 'I'he petitioners wei'e aeeonlingly incorporated, " and each and all sm li othei person or persons a- now is, or are, i r >.liall at ai;y time hereafter become a shareholder or shareholders in the sai com[iany under the pro- visions of the said Act, " wc. 'I'lie defeliiiant did not snhseipunt.y to the ineoi |iiiratioii •.uh.-icrihe for stoiU, hut on the contrary rep.idiatod his former suhscrijitioii : Held, that the defendant was not a stoikholdei-. and was. therefore, not liahio for calls mi the shares wh.ich he purported to have siih^crihed for. 'I"(l. '(,). I!. \). Where a conilitioiial agrei nieiit to take shares ill a (.•oinpany is hroken the shareholder is freed from liahility mi such shares. Ihit where the agreement is cnllateral the shandioMer is li;ilile on such shares, hut has a rightof action for indem- nity or d.imagi s against such company. Chirkf Tin' L'liidii Fir'- hisiirinivi' Cd.- ('(tslm,'-^ Cii.tr, i(t I'. I ;.:!:!'. I iiodgins, .1/0./, ,• //* <^v/;,„,,-y. A contract hetw.cn a company and a person who makes application for shares must hi' dealt with as ordinary contracts; there must he an otl'er hy the one to take shares, ami an acceptance (if such otler hy the comiiaiiy. (.)ne H., siih- scrihed for shaies in a company, hut no shaies were fornijilly allotted to him hy the directors. Calls were made hy the general manager, .'ind notices of such calls were sent hy the secretary to, and recei\eil hy II. hut the calls had never heen autliori/i'd hy the directors : — Held, that the iinauthori/ed acts of thi ollicers named could not he construed to he an allotnielit, or a iiotili- catiun of an allotment of stock, sons to hind the conip.'vny or prove an acceptance of H.'s suhscrip tioa for .stock. /A' /ii>/> in,,! Irmi (.'oniiiaini - ~ Ilovoiidtu'.'i (\i-ee /'•>ri' v. (t'iii//,/i l.iiiiihir Co., II s ('. U. -t,-)!). .See also Suhliead VII., ?,., p. l-.'l. 'J. Cllls. (a) y,ili<-r ,,/, I'er Spragge, C. .1. ().. and Hagarty, C.-l .Notice of a call piil)lished in a ni'wspa|)er in ■ district is siillicieiit to render the sharelinii ■ residing in that district li.ihle to pay the i li. notwithstanding that the notice m.iy not hi. heen pnhlished ill other districts where sto^i^ hild. Ihirtmi and I'.ittersmi, .hi. A.. Meld ti: the enactli. 'lit as to iintiee on,i;ht to he con.-.! i U' strictly ; particularly if hy a literal readiiii: > the otlu'r [Ji'ovision calls were held v.did th"::. [i.-iyahle at slmrtev intervals than thirty d ,; I' I'll rill fit 1 1 I ii^iirtiiiff Cii. V. Willi'', A. I> ."i i . •N'. '., Miili iiiiiii /'irii'ilK'I'il liisiirniin- Ci), V. i''ir roil, :!i c. I". -,-i:\. The charter of a company. ,'}.") \'ic. e. Int. ( l>om. ), [irovideil that one mouth's notice of ciL- '•sli;dl he given." I'er <>'<'oniior, .1., seiidi;., such notice hy [lost was not a comi)liaiiie u K' this provisiuii. /,'<«.<•/ nl. v. Mnrhur, S ( '. I 417. (1.) mil, r f'ii.'. ., incuts as the directors should a[ipoint, suhje.t : a proviso that " no instalment sh.dl exceed !• ■. per cent., or he calhd for or hecoinc payahh . less than thirty days after puhlic notice sli i! have heen given in one or more ot the sew; ,! newspapers piihlishcd in every district w 1;> i stock inayhe held; Held, per S[iragge, ('. .1 . i ' . and llagarty, ('. .1.. tli.it the times lixed for v, liaynii'lit of instaliiieiits need not he thirty ila'. - apart : hut that instidmcnts might he made p..) aiile at any time, provided im call exceeiU'd t ;. per cent., and thirty days intervened het\M':. the date of iioti-'c of the call anil the d,i\ • which it Was jjayalilc. I'er Ihirton and I'atl' son, .1.1. .\., th;it no iiistalineiit could lawfn' he in.ide payable in less than tliirt}' ilays li' i the day for payment of the next prt^cediu.; ' stalniellt. I'mriiirinl Jii.iuritiirr Cu. v. Wm''.'- A. \'\. .")(! ; .V. ('. -^iil' iiiiiii /'rnrim-inl I H.-siirai"-. ' V. r„„,aiiy. sliewiii.' i making of cert.iin calls, was improperly reject' \. /,',).« , / ,// V. Miir/iiir, S ( ). 11. 417— (^ H. I'. See /■»'/(/ V. (liiHuiriiii, ,"• (). K. "lO'J, p. I -' A'o.« ■( III, V. Mitrhnr, .S (>. I!. 417, 1>. I'-'i. : ' />'../' innl I mil ( 'iiiiipiiin) ~//Kir''iiil'n''< ('nxi, |n I' u. 4:u. p. I'ic. .'!. TriDi''/' r. IJaiik of L. hnuglit an action against >., ap|iellant. (defendant.) as sharehohhir, to in a call ot 10 per cent, on twenty live shares hy him in th (li'feliceoil ei| ••that hefoK tlie ilefend;in ,iiiil for vali tr.insfer and ~tiick which 1 |i''rson ail till s.uiie, and th the said shall iii'cessary fm- the said shall without leg.il ti record siu III the hooks I transfer. .-Vn hank of I., s make and eon .ill things re.p tile said tr.iiis Kaiik of L. he "I this suit." to this ple.i. 1 tnuk jilaec hi f itti'inpted to ii'.insfer of tli< special genera, liaiik of I.. Ill h'solved •• tha tile Hank i.f I lii|iiiilation, h iihtain a lo.iii i I'll.iMe the hail that the shan without assii,' interest due n til execute, \(lii The defeiid.Mlt when this re.sid from the e\ idei lean of .NSO,()t)( .Sfciirity of one liiilids to lesser illchii|iiis.;tliedi liy H. when th( !ie did in I.S77 .-•taiiding, and ilefeiiflant and ■eiit to the iiiai ivoiir they we jilcte the tr.insi h. refused to ]M ilaiit was Hot I tlicy make any I'lllless on his p; 'il.SD from the e\ resolution of tl t" the .'''i)tia, that the 'Oiild not hind f iiK'eting, even i miller the facts 'l;mt could not I If, 109 CORPORATIONS. 110 '. >{-\'>:.. ■t wh. ; C.l.n I tnl- t'. rty aa> c.lr.l ! iK'tw. ■ ,1,,N ■ I l':ill' la«:.. ays iiv: 1 ,: I'cilll' ■U lll_ ' rrjr. I 15. I>. l'.'<; ; ,s, , III l.y liiiii ill tl'.it l)ank. By tlio Ttli plea, ami for .l.'i'ilircoii i'i|liit;ililf LJl'Kilinls, tlir (l> Ifinlailt saiil, ■tiiat iicloit! tin; sanl call oriiotif tllcrt'Dt' to till' ilrlVndaiit, till' ilrfi'iiilant iii.iilc, iiijjooil t'aitii aii'l tor valid iMnisidcr.itioii in that ln-liaU. a traiisi'er and at^MiLrniiR'nt ot all tin- .sliarrs and stock wliiidi li.' had held in tiiu liaiik of I,, to a person aiitiiorizud and i|ualilii'd to riTtivo the sunt', and tliL- dofondant and tliu transferees of the said siiare.s or stock diil all thinL(.s whii'ii were iHie.ssary for thu valid .and linal tiMnsferrin;,' of ;he said shares or stoek ; Imt the saiil |)laintiirs, without legal excuse an re|ilir,itioii '.. this plea, l.nt at the trial of the action, which tnnk jilacc licfoi'i; .lames, .1., without a jury, tlu'y ittciMpted to justify the relusal to ])erinit the transfer of the shares upon the L.'roiind tli.at at a ^pccial general meeting of the sharelndders of the Kaiik of I,, htdd osi the L'tith .Inne, IST.'l, it was I 'solveil "that, in the opinion of the nut ting, the |!ank of I,, should not he ;ilh>."ed to go into luiiiidation, liut that .steps slioiihl he taken to iiht.iin ii loan of such sum as may l)e necessary to iiwlile the hank to resume specie payments, and that the sharelndders agree to hold their shares without assigning them until the prim ipal and interest iliie on such lo.in shall he fully paid, .and toexecilte. whin rei|uired, a houd to that ellect." The defendant w.is not present at the meeting when this resolution was passeil, and it a|i[iear(-.l inmi the evidence that the IJaiik of L. eUccted a liiiiu of .NSO.dOO fioni the liank of .S. upon the Security of one 1!., who, to secure hinisilf, took honds to lesser .amounts fr(». U. •2fi\, p. 1 1.">; A'. <:i,l,'itii,l ThfCiiiiiuht Fir. mill Miiriw /ii.-iiiriiiii'i('i)in/iiiiii/—t'lii'fe'-< Cd.se, s (). K. ;•!.>, ji. i-Ji. 4. <'inirrlliii'j. 'I'lic ileiend.aut, an origin.il stockholder in :i joint stock coinp.iny, his stock being fully p.aid up. was elei'ted a director, after a statement [U' - pared by the coinp.iiiy's >> cretary had been pub- lished by them, setting butli that the conipaii\ was in a lloiirishing ciindition earning ,i ten jui cent, iliviilend. < »n the faith of such statemeii: defendant siibscrihed for new shares in the con, pany, but soon afterwards suspecting that tin statement was incol rect, lie threatened legal |iro ceedings to coiiijiel them to c.incel the stock. wherei!]iiin a resolution was passed directing tin bonks to be ex.imineil, and on such (.■xaniination the statement was found to be false, and the com- jiaiiy practic.illy insoheiit. .\ meeting .(f the shareholders w;is then called, .and a bydaw ])assi d cancelling the stock. After the defendant's sub- scription for the new stock, and before the can- cidlation, as also before the defendant becaiin aware of the falsity of the statement, the plain- tit':' became a creilitor of the comiiany. 'i'ln lilaintilV .after such cam.ellatiou, issued a writ and obtained a judgment against the i;om]iany, ;ind then sued defendant for the amount of tin iicwjitock unpaid by him : — Meld, th.it the plain- till' cnuld not recover: that there w.is power to cancel the stock : that the cancellation w;is iiily niade ; and that the defeinlant was not guiity of any laches. Win ih r miil \\'ilsi,ii Miiiinl'iir'nrin'i CiliiilHiini V. II ;/so», (i (). l;. 4'.'l— C. I'.'l). ."i. I iin'i'ii^iii'j, 'I'lie Ontario Wood I'avement Coinp.my, incor- poiated under 'J7 iV -S \'ic., c '_'."!, with jpower to increase by by-law the capital stock of tli ■ companv "after the whole capital stock of the company shall have been allotted and paid in. but not sooner, " .assumed to ]iass a bylaw in- crcising the capital stock from -SI.'iD.dOO'to SJ.'.O, 0(H> before the original e.apit.al stock had been paid in. 1'. et al., execution ereditor.-t of the com pany, wlmse writ had been returned i nsatislied, instituted proceedings by way of sci. fa against, .\. as holder of shares not fully paid up in said company. It ,i]ipeared from an extimin.ition of the books that the share alleged to be held by A. were sli.ires of the increased ca|iitai and nut of that oiigii.ally aiith, l;. 144, lliirton .1. A., dissentinu. that the duty of the I'rovincial Secretary of Ontario in issniny th.e notice of the increase of the eapit.il stock of an incorporated coinjiany rcipiired to lie given uniler 'J? and '_'S Viet. c. '_'.'{. s. .'i, .suli-s. IS, complied with he has not any discretion ni the matter, hut must issue the notice. //• 't'/n MussfH Mdiiiii'ncliirhiij VoiDjuiini, \',\ A. U. 44ti. Held, Ihirton, .1. A., doulitiMi; th.it the power confeireil ol iniieasiny the ca|iit.d stock liy suli .ss. !((, 17, and ISof s. ">, is a gener.d power not limited to a single occasion. Ih. Held, th.it there is notliinu in the Act which makes .i pri"- .suliscriptioii and payment of the new .stock, or a part of it, a pre reipiisite to the right of the company to have the notice ))uli- lished. I'er Hui'ton, J. A. The object with which the statute was pa.-^sed w;is to avoid the neces-iity and t \pensc of applying in each case t.>ignmeiit hy deli iKliiiit huiiig tor .such iiurpo.se, and iKiiig a voluntary act on defendant s part, aiid w ith notice of |ilain- tiH"s cliliui, did not ciiiistituto a defence tti tutcd a good defence . V. ir;/.M,//, (i (t. <-i I//.. I-.' A. i;. .s. c. i;. 1, •{■->, ).. <■.'/, !) A. K. 111. W'iUdii Mil iinl'iiiiiir'ni'i ( 'iiiii/iii.i; It. 4'JI. p. lib: /;W'v V. Mn„,-n 4."i:?, p. I'-'S ; /'":/• V. Aii-i:ii, III III. .See also I/nrr, ii v. Ih'r- See also siiMicad \'l 1 I'Jl. 1\'. I Mi:i;iroiis aM' t.inn i;i;s. I. M' ' I'llliJ Jill' h'lir/iiiil lif l)ii'i ciDl'.t. The iilaiiitill's were a c(ini]iaiiy incorpoiMtti under tlie The Canad.i .li.int Stock Companies •\.;t, 40 \'ict. c. 4:<. Ky sec. 'Jll, the direct. .i« Were to he elci'ted liy the shareholders ill gellriiil meeting asseiiiMcd, at such times as the liy lavv> of tlie e(inip;i:iy slioiilil prcscrilii' : and liy sec. ;i(i. ill default of other exiiress |irovisioiis therefor lu the letters patent or liy-laws, such election sliniiM take place yearly, uiioii notice ; that at all gciu ral meetings each sluireholder who had ]i.iid nil calls should lie elititli'd to vote on each sliiiiv lielil liy him ; and that all cpiestioiis should lie determined liy the majority of votes. My sec ;il, the f.iilure to elect directors at the iU'o|nr time should not dissolve the company ; hut sii, h election should take pl.iee at any geiu'ial meeting; of the ciiiiip.uiy duly called for the purpose, tin- reliring direct■ directors ;it the jiropir time, owing to tlu ^)l!:.< win i<' the nieeting was to have heeii lieM then for lieing locked up ain' the dcfeinl.iiit refu>:ii. to .•ittciid the meeting m give up the hooks. \i.: and in ( )ctolier a special general iincting oi tii' shall holders was held, called on notice, st.itni. tin oliject thereof, on a rei|Ui-itniii hy one toiuti in V aliie of the shareholder. s, and directors wiii , elected, wdio appointed a new secretary. At tin meeting tlicie were present three fourtlir ot tli'' ijlialilied voteand one third of the suhscriiii'l ca]' ital, hut considerahly less than that aiiiount : the nomin.d i.ipital. In .in action hy the inn- |ir Ml ■ tl' il.l -lie ]iiiiiy .against ih III inks, itc, tii Mt up as a dcfi .•,ii.->c, ;i.s lie all the new secret, tliiic was not :irt lillsiuess : tiicl'e was aiitl iiieeting for tin MMs duly calle li.iMcrs:-llel. liy l.iwiletermi •ccdings loi •tings of til le was a [ir •rtheliy-l ■ii one third it would have h ;i.>. I'er i;..sc. ^'tiioral meetiii: ti;" piirjiose," pi wiiidi may ho ci H M. .also, that ii;ii-t he deciueii Imiks &c.;that t'lis de facto, an ■■': 1 .'11 ollicer ot ,. f.tid to withle IM ly. Ill any > til ■ proper w.iy i'li's which slioi "!■ ■'•■t .isidc the I'uuii'tn'/ (Limit' v. II. Ill .'i 8hcritl"s IJuik claimed tin lity for aiiv.iuces Itiiiy incorporate til'' of warehouse .iiiil deposited wi .i.'i such security. " I'iic directors s t" .idiniiiister tli iiiMy make * wiiiili the conipa by suh-s. •_' of s. ; L'ivoii to the din liy 1 lU a)i[>roved i.i value of the si pkilge the real aji [luiiy to secure a M'.is no hy law i 'lirc'i'tors was wel i:l tile tran.saetioi tlifcatioii of the 'I'liie: Held, th I'ilssed til the ha jiuiy could not h; without .s.itisfyiiij till' execution crei I- t'l iiroperty sei IliM, also, that i -luakiug, reipiLsit • iiililaint h.iil In •my of its shareli '■"■ity or iuforinal till' case here, ai ''c allowed to iiil timi uf fraud or I'lijle sen.su : -He ii;; COUFUUATTONS. 114 |i:uiy against ik'feiiilaiit for tlio iioiidulivcrv of tlio li.iiks, itc, til the new secrtjtai'y, the ilolemlaiit M t uj) an ii (iL't'onoe that lie was still secretary, lie ,,i'is.', as he aileL;«il, the direetors vim apimiuteil the new seei'etary Were not duly eleeteil, aiwl tliat til. re was not a mninim at tlie meeting tu trans- I -t Imsiiicss : — IJeld, under tlie circuuistanees, t:iiii.' was autiuirity td eall the- sjieeial general minting lortiie cleetiDU of directors ; and that it MIS duly callcil l)y the proper nuuiher of share hiilders: — Held, also, tiiat tiiC dirctors could hy liy law cleturniiut: the iiuoriini an I all otlier form d jini eedings lor the control and conduct of the III tings of the hoard and shareholders; tiiat tlh'i-c was a [iropcr ipiornm present at tlie meeting umler the liy law ; and if the hydaw hid recpiired >ii.-li one third to b ■ ot the whole e'aiiitid stock '! w.iuld have been ultra vires as opposed to see. .1.'. Per ii'ose, .1., the wiu'ds of sec. .'{I, '"any .;i'iicral uuetiug of the coinpany didy eilled for li;" purpose," properly dcscrihe a speci.d meeting, wl:; 'li may lie callcil .as provided by liy scl. .'{'J : • H M. alsii, th it on the evidence th'' ilefcudant ii;ii-t lie deemed t. c. 1,'iU. s. 'JS, "Tiie directors shall have full power in all thiuLis t- iluiinister the iitlaiis of the comiiany, and :iii\ iiiakc * * any description of contract Hliirh the company may, by law, i-nter into ; and by siili-s. '1 of s. ."{() of that Act express jiowcr is i:ivoii to the directors under the sanction of ;i liy liw ap[iroved of by not less than two-thirds ill value of the shareholders to hypothecate and |ikilge the realiuid personal property of the com- Ym\ to secure any sum borrowed, itc. There was no by law iu this case, but the board of 'lire tors was well aware of the nature aiul cvtent 'I the transaction with the bank and the hypo- tiu'cation of the goods, and adopted what w.is ili'iiu: -Held, that the ]iroperty in the goods IMSsed to the bank, and inasmuch as the com- I'liiy '.'ould not have resumed iiosscssion thereof ivitliiiut satisfying the banks' hen, neither could till' ixecution ereditiu's. w ho had no hiL;lier rights I- tu property seized than the original debtor: Ihil, also, that even if a by-law were, strictly --|i'akiiig, reipnsite in such a case, yet, where no :n|,laint had been niaile by the company, or ■iiiv (if its shareholders, because . ."U ; C'liKiilii ('fill rid /,'. \V. Co. V, Miirruii, 6 s. C. K. ;h;{, p. 1! i. 21 %y\ fCK; 115 CORPOTJATfONH. lb; S. Pi'r^inifil l.iiiliilitii Iff. Tin; pliiiiititls welt; the owiici'.s r>f Lritiiill lioats, tlxiks, iVc, .mil liiMiig clr.-,ii(iii.-, i)f ;^i\ in;,' up tlioir liii.siiics.s |iici|(i(.-i..Ml to scil all their rii^lits in tlitiii cliaitiT, l)i)ats, &!■., to a (•'iiniialiy tn lie tiicn at- tur iiiii>r|iiirat(il as tlit.' " 'I'liaincs Itivir Navi;^a- tiiin ( iinipaiiy." 'J lie inupos il wa.s asscntcil to liy the iliffiidants ami others siiKsi riliiui; to tin; .stoek of the lieu eoiiiliaiiy. anil the pmehase nioney was to he paiil ont of the fnnds of the lattei- when foinieij. I'pon tliis iincler.>taMilinL,' the vessels were ihlivereil to the ilef'lidants on heliaif of all parties, alicl the sum of SH.ridO on aieomit of .-.iieh luinhasc was paid out of tin; nione\ paicl in liy persons snhseiiliii,:; for siians in the neu eonipany. jlefore the eoiuphtion of repairs necessary to render *he hoats servieeahle. on(^ of them was destroyeil hy an nne\|)eeteil (looil, in conseipienee of which, priM'eedings for th(! incorporation oi the new coni))any were alianiloneil : MeM. reversin;,' the judgment of the court helow. it O. It. 7.-)4, that the defen- dants «<'re not lialih- for the lialamc of the |)ur- chase money, as the circumstances shewed there had never heen a ■omplitcd sale and purchase. | The only contract provfij, was a provisional oni' to take ett'ect Upon the incorporation of the lU'W ; company, anil the dclixery which had taken place, was not in |iiiisuance of a contract of sale, liiit simply to enalile tin' repairs upon the ves- sels to lie ell'ccteil. '/'/i'///(.v .\'itriii,ii'ifiil ('iiiii/Klii >/ ( /.lmi'r,/J V. /.''/■'/. 7 III.. J:{ a. II'. .".(C!. When the sliaieholdcrs of a certain ciinii)iiny hroujiht an action airainst the ciimi>any and cur tain of its directors, allei;in^' that the latter, licinu' a majority of the directorate, had negotiated .1 transfer of a nuinlier of their own sh ii'es to one ('., who sulisci|Uentl\' liecanu! mana^'cr, know- ini4 him to he a njan of no suliicicnt mcins to paj' cdls thiieon. liut wishim,' to escape lialiility for certain impending calls ; and cl.iimed that the said dii-ectors sli.udd make irood to the' company or to them the amount of calls due upon the shares so transfi rred to ( '. and unpaid hy him ; and the s.iid directors alleged aci(uiescciKe and laches on the jilaintiirs part in res)iect of the matters i;om[il,iined of ; ;ind the pl.iintilfs proved the transfer as ;illeL'ed : Held, reversitii; the judgmi lit of I'.oyd. ('., (i (». 1;. •Jill, that tjie dc- lundaiit directors in allowing the transfers com- plained of, were upon the evidence guilty of no frauil towards the .-hareliolders, and that such act was w ithin the scope of the prescrilied powers and duties of directors, and as lU'ither fraud nor a lir.'aili of trust was jiroved, the eross-appcal was allowed, and the action dismissed with costs. 'J'liiiiii/i-'iiii 1/ III, V. Till i'liiiiiilii Firi' mill Miirhii lii.-'iiriii'ri' f'liiiijiiiiii/ 1 1 III., !( ( >. li. •_'S4— *'liy- !'• Lialiility on proinissorv note. See /Iruini v. lluwliii,il.'\) (). 1;. 48 p. 4S. ( hy tlie conijiany of the vpssel "The Unit. laiiiiirc" the lioard of directoi.s (including .). II l>.)i >'t their hoard meeting adopted a resohitji, approving of tin/ purehasi liy the comp;iiiv . such vessel ; and sulisei|Uei:lly at a general ui • ing of the shareholders, including.!. H. |{. .u,, thoso to whom he had transferred poitions of tii stock, ii like itsolution wa.i jiassed, the phiini,;' alone dissenting ; Held, reversing the judgiii'i.- of I'ioyd, ('., ti O. !!. .S0(), that although the [.ui chase on the resolution of the directors .d..!:. might li.ivc heen avoided, the resolution of tip shareholders validated the transactiiu, and tli, ■ thei-e is not any principle of eijuity to iireveiit ' II. 1>. in such a case from exercising his iI:jIi-. as .', .shai'eholilcr a.-; fully as oilier iiemliers ol t!: coni]i,iny. Per Uurton .and Osier. .M.,\. Ii dealings of this nature the rel.itivi; positions > • the shaieholders .and directors are those of )ii;;i cipals ami .igciits. not those of eestiiis ([ue trii- tent and ti'ustees. limHiiw \nrlli U'l-.y/irii '/Vi .0,()0() ; and w.is pos.sessed of the majority of the shares of the comiiany, some of which he h id as.signeil to others of the defendants in such miin- hers as (|ualitied them for the [lositmn of direc- tors of the company, the duties of which they (lischaryed. L'pon a proposed sale and purchase ^'. 1,1 Ar.ii.nv OF ('oi;|'oi;ai niN 10 .Mi;miu;:>. The plaintiir during his initiation as a m.iuii. of the defendants' lodge, in the presence or ['., principal otiicers and a nundier of mcndicrs, en stituting a full and ]icrfect meeting, was injuii- through tin; rough usage of siune of the meiiiliii-. It ap[ie.ired th.it this .■ind other ]iroccedings w. i. t.ikcu with the knowledge of all those who w.). presHut, and that sumewhat similar inoicciiiii. had hapjieucd on the occisi.iu of other initi;ili"i.-. and th.it they wcli- allowed r.nd not eheckeil : Held, th.'it tlu'y niiu;t lie taken to have liceii dm! with tlu' consent of the corporate lioily. and tli;' the defendants Were Ii.- lile in damages for tic ii: juries sustailU'd. Kiiinr v. '/Vc I'lnmi.i: l.n'li- . I. (). 0. /'., 7 (). 1;. :!77 (,). I!, n. The defendants' act of incorporation proviiji ' for the ap|i(^intment of a committee of nii'iia:;' meiit to manage theatl'.iirs, itc. .of thccorporatini!. and, under a liy-l.iw, the committee were to c 1 sidcrand report on all oll'ences under tlie liy-l;i«-. if suhmitted to them, and to call a special uint ing of the corporation to pass judgnieiit theiii'i:. I'ower was also given hy Mie .-Xct of incorpii ti"n to expel memliers as l>y the hy-laws sli i'.' tie deti'iinincd. IJy hy-law i;{ all i.ompliiint- 1 the coTumittec or corimration were to he in \\y.\ ing. P>y bylaw "21 any momher complaiia' against, might ha\e a hearing heforc the cor[ii'iv tion, and if the i'om|ilaint lie proved, a V"t' should lie taken hy liallot— hy a two thirds m jority of those jirescut and voting lieing 1 iiuired- lirst, for the forfeiture of the scat, im then if lost for sufipension. liy liy-law 'J! metuher lieconiing liankrupt or insolvent, sliii; 1 not lie entitletl to 'lake his seat as a inemhi ; - the corjiovation, or he |)rescnt at any liici t ' . ' thereof : and such seat should revert to the " ; poration to he .sold hy tiiem, if the memlic: i- not re-admitted within six months from the 'I <'• of insolvency, and the pi'oceedsa])iilied as dii' ' ed therein. In Noveniher, IS.S.'i, without ': eomiilaint in w riting or notice to the plaintill heai'ug lieforc the corporation, hut on the clu!' mall and secretary, whom the committee liinl n structed to make ciuiuiries, reporting that plai' 117 titf wasnfforin;. till' secretary, I t.j |il.iiiitiir, c'll iiid on the sal ilteivd hy str Nipiliing fiirthc ulu'ii in conseiji :lii' ]il.'iintitl's SI iiii'iiiliers who tilf's i.'ondition. misident coiupl insolvent ill < »cl iisi|iialilication 1,-idiig for an 1 which Was had. till' ..'implaint inin|ilainaMts ' steps were t.-ikci :or.-iis[iension : l.nv -4. did not 1 Iiiit to a dcliiiitr nii't or iiisohrji the issue of a w 1 plaintill' did not < rniiii this the dcN illugd and Void, oiiiiilaint tli.-it - to iiitci fere ; .-iih t" lie managed K -|iiiiisilile for till riiiiiplaint made •'lit', hut merely a "U.s illegal .act ; U'Uli hy hallot : 'Lints' pioceediiiij titf iif his seat, t act most detrimci vciiteil him from hniker ; .■iiid he \\ • iainages for the Iffiii.irks a.s to th plain.ints acting ai iinl if deemed ])i'( |uisito two-third il.'enied neither ) ■'. — Ill the .iliseiii '•I'ltainiijg the f.n tliu jury herein tl wa.s ciiiicliisive, Lirlidiiiji-, H (). 1;, \'l. Cosri:' To an .iction 01 bvT, and \V. M. iiiver nioney claiii line of {'. (■'. i-;iih iii'Ver indelited, a uiiiler which theft ■■.Mciiio. of fcnciiij tl Kciitrew. T. ii'.xt spring for (. ■mnh Ii inches il«i't. lor .SI. •_>.-, pc !"r liiiulier. I'', controlled n i'iililicly appeared '"■, and acted ,is 1 ' t the company, al tnictor for the" hui "Hi W. .\I. built t Hi; 117 CORPOHATIONS. 118 [)r()Vlllr lioruti"! . tci cv. liV-l'l" ■ al Hi,-' tlioi . ■ ' •s >liM-,;: l:iilit>t ill WW. nij)laiiH' I, a v"t' linls M. llfillL' ! scat. '''■■'■ aw •-•! it, siwiii:'! oiiiIrt "■ IIR'ctlli. tlu. r.<- l'IhIm': ■' thr.l.' as dii''' liout M': aiiitili "' ;lu' I'll I!'- ;o liail »■■ lat pliU'' till' was ofrorin^' to nonii>roiiiisc witli his iTOtlitors, till' si'i'iotary, liy oi'di'i' of tiic coiiwiiittci', wrotr t.i |ii,iiiitiir, cailinL; his attention to 1(\ law 1'4; ,iiiil I'M tile saini' day tlic list of nunilirrs was iltiriil liy strikini,' out the piaiiiti!! 's naiiif. Ndtlniii,' further was chiiic until Manh following', wlu'ii in oonse(|iU'nee of a eorres|>oiiileiic'(' lietwecii the lilaintitl's solicitors ami the ilefeiidants, those iiii'iiilii.MN who had jirevionsly reiiorteil on plain tilf's eoiiditioii, made a written eoni|ilaint to the mcsideiit eiiniplaiiiin!,' of the jilaintiir havint,' heeii iiisDJvent in t >etoi)er ami Noveniher, and of his iisi|iialitieation therehy under hy-law '24, and i.-kini; for an investigation hy tlu' eorjioration, wliirli was had, and Ky an ojien vote of I,") to (!, the ..iliqilaint w.as held to lie jiroved, the two ,inii|ilaiiiaMts votin;^ with the iiiajoiity. No »t(.'|'S were taken to declare the seat forfeited or jir .-iis[iciisi(jn : ilild, that insolvency under liy l,nv'J4, did not refer to a com lit ion of insidvency, iiiit til a delinitt.' act of insolvency umlt r a liank- niiit or insolvent Act, e. i,'. , hy an as>-i;,;iiinont or the issue of a writ of attachment ; and therefore ]i|;uiitill did not come within its terms ; iiut apart ;riiiii this the defendants pro(a'ediiiL;s were clearly illuL;al and void, for in No\einlicr there was no ,oiu[ilaiiit tlutt ;,'avi' the coiiiniittce jiu-isdiction to interfere ; and as the defendants' ati'airs were j In lie managed hy the committee, they were rc- -|pniisihle for the committee's acts ; while tlie I'liililaint made in Mareli wa.s not :i hona lidu jie, Imt merely an attempt tosiip[iort the previ- ous illci;al act ; and also the vote should have luT'ii hy hallot i-IIeld, also, that tlumj^di defen- daiith' luoceedings were ahortive to dc(irive ]ilain- titf iif his seat, the erasure of his name was an lit most detrimental to the plaintilV, as it [ire- wntcd him from carrying on his husiness as a linikcr ; and he was therefore entitled to recover .t:iliiai,'es for the loss he had sustained theivliy. Ic'inarks as to the impropriety of the two com- lilaiiiants acting as judges on their own eom)ilaint ; :inil if deemed present there would nut lie the re |iiisite two-thiids majority, Imt otherwise if u'Ciiu'd neither present nor votiuL;. I'er l!osc, .'. — In the alisonee of a hy law ])roviding for as- •i-itaiiiiMg tlii^ f.iet of insolvency, the tinding of ;hu jury herein that iilaiiititt' was not insolvent w;is conclusive. 'J'l m/ilr v. T/if Tdrmlii Slurl: Ef<-h„i,.jr^ S (». i;. 70.> -('. r. I). \'l. Cos n;.\crs w II i| Chim'oi; \tiiins. To an action on the common counts lirought bvT. and W. M. against the (' C. 1!. Co., to re- I'over money claimed to he due for fencing the line of ('. ('. railway, the (', ('. I!, Co. ]ileaded luvir indelitcd, and payment. The agreement iliiilcr which the fencing was made is as follows: — ■ .Memo, of fencing hetwecn .Muskrat river, east, tu Iteiifrcw. T. and W. M. to coiistruit same ili.'.Kt sjii'ing f(ir (,'. C. I;, ('ii., to he eipial to 5 boards Ii inches wide, and posts 7 and S feet apart, for -SI. -.5 per md, company to furnish ears I'lr liniiher. "(Signed) '1', & \V, .M. A, I J. F." K. controlled nine-tentli> of the stock, and imliliely appeared to he and w.as understood to W-. and acted as managing director or man.iger "f the com[iaiiy. although he was ,it one time con- tructor for the tniilding of tiie whole road. T. iikI \V. M. huilt the fence and the r.{'. K. Co., have had the henetit thereof ever since. 'I'hec.ise was tried heforc I'attersoii, .!., and a jury, and on the evidence, in answer to certain c|Ucstiiiiis slllimittecl hy the judge, the jury found th.lt T. and \V. M., when they cnntraeted, ciiii-r hy the compimy through the instrnnicntality of I'"., m wheilier they adopted and ratihed the eoiitrait, and that the verdict codd not lie set aside un the ground of heing against the weight of evidence; llitchle, ( '. .1., and 'raschereaii, •)., dissenting, on the ground th.lt there was no evidence that I', had any authority to hind the company, 'I", and W. M. lii;iiig only suli-cnntractors, imr evidcin f ratilicition. 'J. 'I'hat .altlioiigh the cuntract en- tered into hy !•', for the company was not under seal, the action was maiiitainalile. VV/c t'liimJii Ciiitf'il lldihniii ('ii. v. Miirriiii, S .■>. C. K. :',i'A. \'ll. W'lMUSil-l I' A( TS. 1. Aiijilh-iil'idn of. Held, that 4.") \'ict. c. 'IW, (Dmu.), is retroactive in the sense of a|i[ilyiog tu comp.iiiies which have become insolvent l)efore the d.ite of that .\it. Wijlil V. Ilamiltiiii Miiliiiil /ii. \'iet. c. •_'■'{, s. 7"), ( I )oni. I, it w as : Meld, that the plaintiU'eould not rei over, for the defeinhint had received no vain able ■■oiisideratioii from the hank which he shonld he ordered to I'l p.iy. The dcfemlant also owed .-\. 11. it ( 'o. a deht, and gave his i hei|Ue on the hank for S'^'l in jiart p.iymciit '.hereof, which the hank acce|itcil from A. 11. it ( 'o. on Octnl cr ■_'3rd, in retiring .in o\erdiie hill; -Meld, that the amount could imt he recovered hack. < m Xovemher lllth, defend.int .sold his elicnue tor 8r{'_'0 to his nnch,', C,, w iio was the local head of the hank, which cheipie was negotiated and ic cepted hy the hank on Novemlier '_';hd, (after winding-up inoceedings had conimcnc:edi :--|le' I, that, aitliough it jirohahly w.is an invalid tran- */t 11 'J COUI'OHATIONH. saL-tidii as far as tlic ]jirMii) wlm received tlie iiiDiiey wa.s coiicLriitil, tliiie was iici iiayiiutlit to the (lei'Llidalil i>\ aiiytliin;; witliiii tliu i^cmio ami iiiianiiif,' of bLitidii 7.'». J'/n h'jr/mii'ji Haul: uf I'liiiiidd V. Stiiistin, (S (). 11. (i(17. liiiyil. 'I'lie liiilik .siimiicikIimI ]iayinelit Septeiiilicr ITitli, liSS.'{. \N'ilicliiiL;ii|i |ii'ank on notes matnrin^ the f(illo\vinj.' I lecemher and Jannary. I). j,'ave mort- gage Meeiirity to deltndants for the che(|Ue on 0(t(d)er .'tlst. 'I'lie anaiiL;i liieiit Was ail made jdmiit < (etolicr 'itli, altlioiiuli the siiiirity \\as not giviu nntil the Hist, and the ehev|Ue was not Jireselited to the liailk until NoVcinlier •J.'hd, when it was aii(|ited as |paymeiit of the niatiu- ili;; notes. In an artiou liy the lii|iiidators of the liaiik against the defi iidants, to u iiirli I >, was not a [iirly, to re( over the aiiioiuit thus paid on the elieijiie as having heeli jiaid to defendants after the windingmi iiroeeedings were eoninieiKi'd, and he.Ug an liiijilst |jrefereliet, ite. : Held, that upon the farts there was no paynieiit liy the liank to the defendants, and that the traiisaetion therefore \< as not within the statute !."» \'ii t. e. 'l'.\, s. 7")., ( hoiii.j ( '. wild was lieiiig siiid liy the hank, ohcained defi^ndants' ehe(|Ue t'or ir^'i, lIS giving seeurity tiierefor on .Novemher 'Jlst, a'ld retired the notes in suit on Novenilier, 'l'M\\ : Meld, that tile defendants eoiild not lie ordered to repay the amount of tin cheipie, as lieiiig a wrongful payment under the Aet. 'Ilu h'Ar/iiiiii/c lliinh uf CiiiKulii V. Vunundl ft III., (S (). K. (i7.'i. - l{.)yd. 'I'lie Steel Company of Canada (Limited), iir eui|ior;ited in laigland under the Jmiitiial Joint Moek ( 'ompaiiie.s .\ets, KSO'J lJS(i7, and earrying on oiisintss in Nova .Scotia, and ha', ing its prin eipal place of liiisincss .nt Londondciry, Nova iSeotia, was, liy order of a judge, on the applica- tion of the respondents aiul with the tonseiit of the company, ordered to he wiiiiuil u|i under l.'! Viet. e.'J.S, (l»iiiii.) 1 he aiipellants, creditors of the Steel Company, iiititiveiied, and oiijeeti-d to the granting of the winding-up order on the ground that 4.") \'iet. e. 'S,\, was not aiijilicdile to the eoni[iany : -Held, reversing the juilgiiient of the Supreme Court of Nova .Scotia (P'ournier, .1., dis- .sentiiig), that 1.") \'ict. e. '_'■'<, was not applieahle to such eonipany. /'/c .1/' irluinls Hunk '^et oil tiie amount of such cheipie or dralt, and jiaid the dili'erence. On the trial he aihiiitted he had purchased it lor the puriiose of using it as an oil-set to the claim on his note, whiili he had made nou-negotialile, and he also adiiiittsd that if lie eouhl succeed in his set-oU and another party could succeed in a similar trans- action, the Union liank would get their claim against the J'l.ink of 1'. \\. 1., which had become insolvent, paid in full. The judge on the trial charged that if the draft was endorsed to the ililciidant to cnahle him to use it as a set-oil', he could not do ho, liecauHc lie was a contrihiiK.r, within the meaiiimiof the Tfitli see. of the ( .iiu.i, \\'indiiig-u|i .\rt, and that the Act, which i;iii;t into lorce on the I'Jth .May, |SM', w.is ritro>|i. tive as regards the endorsements ni.ide liefm. • was passed, hut within thirty days liefmu tii> commeiic cnieiit ol the lunceedings to wi,id r,|itl. all'airs of the hank. The jury, umler the din tioii of the judge, foUlid a g( lieial Verdict fnitl;. plaiiititl fcir the .imount of the note ami iiitc n-v u hieh the Supreme ( 'ourt refused todisturh. O;, appeal to the Supreme ( 'ourt " : eontrilmtory to set up hy way of eolii]ieiis.iti. ; or set (iir the claim so transferred, siicli duht . .u, not he set up hy way of compensation or •iit-'l: against the claim upon sucheontrihiitory :- Ihl that the sections in cpiestioii only ap|ily to act-.oi:- against a cold rihutory when the deht elaiiinil : due from the ]iei>on sued in his capacity as on. triliutory. /'<. Held, allirming the juilgmeiit of the ( 'ouit l"' low, too. I!. ISil, that 17 \'iet. c. ;«•, .s. '2, is ii ■ limiteil in its apjilication to companies hiiii. wtiunil U]) at the date of 4.") N'ict. e. '2'A, it appli • also to eoiiipanii's in lii|iiidation, i. e., insolviii!. though not tc'hnieally lieing wouiul up. al^ against which proceedings are lieing taken t re.di/e till i"a>sets and jiay their dehts. /.'• 6'.i ■ /■'('/•( I HSU ruiii'i' ('tiiiipiiiii/, \'.i A. li. "(is. -. LlijIliilll/iil'S. liy II \'iet. c. ."iS, (Doiu.), the thiie iilaiiitii:- were appointed "joint assignees"' of the Caiim. .Vgricultural Insurance ( 'oiupany for the ]iiiri"'> of winding up uiiihr 41 \ict. c. "-'I (Hoiii.) 'I'w of the iilaiutills, the third heing unahle to attii; through illness, met on the L'ud of .lanuary, \s?: and made the tth and ."ith calls of 10 per cent. i;i;^ on the stock of the company :— Held, that ti. assignees must all join in making calls, and tli.: these calls were therefore invalid : — Hehl, :il- that a meeting of the three joint assignees on ti.' 'J7tli of .January, after notice of the 4tli and .'l. calls had lieeii mailed on the l.Stli of Jaiiu.u} purjiorting to coiitirni the action of thet\vii;i> signeesof tlie'-'iid of Januarv, had nut that cllii! Hu.s tl al. V. Marlnu; S U. it. 417— <.». I!. I». An undertaking by a provisional liiiuiilatei " pos.session to pay a landlord's claim to be paid iiu- ferentially for over due rent after service ■: not- e unde- see. I "J of 4.") \'ict. e. 'JIJ, (l)om. ) is') sees. "JO and :.'l of that Act void, unless the I'lf- L'l iiiissioM of the llaniiltiiii Tri''ii Held, |>er ll.i uindiiig-iip ord ,.1 .1 liipiid.itor, t iield as coiitaiiil ,iiiiial Inpiiilito ilirccting .'i refer lii{uiilatiir, anil . to ili'ditors, \e It ises.sential to •111,' lii(iiidator si jiiiwer of a[ipoiii iiiii.st hee.xercise iiy that order. ('.ijCiitial to th tliiit the liipiidat ,1 reference to t |i"iliting one is I'nilljllllll/, \'A A. (..iirt. ('. |iiirrhased .-. 1\S. hut the p.l| tiu'isfer to him in Hut fuinished to t bSI. <»n Kehn iiitoreil on the list ii'i lurinal .-iiiproN" i.f ilireetors until liowever. on Nm !ii'il of a call on th ami def"lidi'd the '\:mi\\ not cxjilaii This was the first i I'lpeis furnished I iiiit lie .'ippeared ti till' ('(iiiipan^' suh IVSl. The coinp Mny l:ith, I8s:{. a 'mile cm ( /etober tiiut C. had taken liiiii as a shareho iii'iicrediiigs ; nor i ■;.lting to him frm ti imtify him tlia i'l'iii aeliially cons cumpaiiy ; — Held, -t.iiues ('. was rigli I'Uteriesin the win Case. L. II. :i Chy 'llid Tilr ('lUllll/il F l'imij—Clo!ii''s Cas( In the winding-1 ^'i'-, the master )' stuck hiKik iijion tl Oiiiitiiliiitories ap[ii tliuugh they were sf ok had been alhi hild. that the mai truc't signed wa.s ai and that the Aet tw'n iiKidesof aoipii i'V allotment. Inr i"'".'/ 'It' Toronto, 1 K. signed a sti ''We, the uiiilersij >iiares of the capiti auci; L'oiiipaiiy, am rji COUPOKATION'S. 122 '<)>irt !»■ •2, i^ 1. - L's I'll;,. it iij'iili" isiilvuiit. 11)1, nil' t.iiki'U I ilaiiitill ( aniiii 11.) Tw attfl: iry, \^'- .•cut.ca' that ti.'- iiiul th,.; L'M.al- L'l.'Sl'll ti. Ill ana .':.. aiiuiu}. |io tW.i X lat tllci.! r.. 1.'. lidat.u :i pai.li'i.; urviic ' nil.) isl')' the I'lf' Altliduu'liiv valiil !iiis.si(i)i of tlic court is lirst olit; llniiiilhui TfHiiiin Co., 10 I'. I;. llilil, pir Ila,i,'.iity, < '. •!. < >. -.Mtiiouu'ii iv vaini uiiiiliiii; ii|> oilier iiiiist ciiiitaiii tlii^ !i|i|ioiiitiiit'ut ..fa lii|iiiilatoi', tlii^ onlur in ijiicstidii could l>i' u|i' iii'M a> roiitaiiiiii^' tlii^ apiioiiitliiciit ot :i provi- jiolial lii|iiiclalo|- iiiirily, Init it w.i.s wniiij; in .liri^i'tiiiy a rrt'i'i'i'iice to tlic niastiT to appoint a liiiiiiiiator, anil alsn in not iiripviiliii;,' Ic r imticu ■1. ( '(iii/rlhii/nrii:-: ('. imivliascil sliavi'.'i in a c crt.iin conipany in l^T'^. liut tin' liapcrs ii.'()iiii'ccl to inaki; a loiinal tiii'isfcr to liini in the liooks uf tlni loiiipany wiiu ii.'t fiiinisiiL'cl to tliu coinipany till I )t'c'(Mnln r "-'Otli, hSl. On l'"i'l)niury lltli, LS.S'J, C.'.s name was iiitoii'il on tliL' list of sii.irLlinldcrs, Init tlicro was ii'i luniial apjn'oval of tlio transfer liy tla- lioanl ..f ilireetors until May lOtli, ISS.S. 'Uefore tiiis, iiuwoviT, on Novomlier l.'itli, I.SSi.',('. was iioti- lic'il of a eall on tile sliares for wliicli ho was sued, aiiil ilef'iided the aetioii, hut the action, for siiine 'Ills. Ill not oxplaiucd, was not ]U'oceoiled with. This was the liist llitiinatioli ('. received that the [lapcns furuislied hy liiin had lic'eii acted upon, liut iiu a]ipcai'cd to have made nocmpiiries fnnii till- ci)iii)iany suiise(|iiently to Dei'eiiiher L'Oth. I.VSI. riie company ceased to do liiisiness oil Miiy l.'itii. ISs;!, and the winding-up order was 'Miilu on ( /ctoher lltli, l.S,S;{. It did imt ap|)ear tiiut C. had taken any steps to re[tudiate ids posi- timi as a shareholder liefore these winding-up I'liiitcdiiigs ; niu' did lie shew any prejudice le- -ultiiii,' to him from the failure of the eoinpany t'l notify him that the transfer to his iianu; had i'l'uii actually oonsuinniated on the hooks of the "iiiipaiiy ; — Held, that under the ahove eircum- ■tiiii.'i's ( '. was rightly plac'cd on tin; list of contri- liutiiries in the winding-u]) pidceedings. Sichell's Liisc. L. K. :i (.,'hy. 119, distinguished. /,'- Cole 'iiid Till- Ciiiiitilii Fire iiml Marine I ii-iiirnnre Cuni- i''iiiil—('lo.seri|)tioii and iiy allotment, /n re 'I lie Queen ( 'i/i/ lii-jiininj (.'mil- hiiiil <>/ Toronto, lOO. W. "JtH.— JSoyd. K. signed a stock hook headed as follows : Wo, the undersigned, do herehy suliscrihe for iiiaies of the capital stock of the Alliance Insur- •lUiiu Coiiipauy, and agree to take the mimlier of shares and for tiie .imoiint .set opposite our re- spective signatures, and to pay on account tlieiii if to the secretary of the said company Ml peiecut. of the ainouilt of Ntiick sulisirihed hy us respec. lively within thirty 'lays from the day of mir several suliscriptions. " The .\ct incorpuiating the .Mliaiice ( 'oinpaiiy vesti'l the shares of the company in the pcrsnus who should suhsnihe for the same, liefore any stock was actually allot- ted to K. the .MliaiK'e ('oiiipan\ was anialgaiii.it- ed, l.y 4(i \ict. c. .-.S, (Out), with the .Standinl Insurance ( 'niiipany, which ciiiM[j,iny w ,is nrdi red to he wound up; Held, that K. was riglitly made a contrihutory. Nasmith r. .Manning, ■" .s. ('. I!. 417, distinguished. It was <'(iiitended that K. never agiped to liecoiiie a shareholder ill the Standiiid ( oinpany ; hut llild, thatthe statute answered this ohjeetion, and tiiat heiiig within the jurisdiction of the local legislatures, it cdiihl not l)e ohjeeted to as iiniust. //' Slitniliir'l /'ire /n-oiirniiei ('omjiiDiii - K'lhi'.i I'u.si , ~ t ». |;. •J()4. — l'\'rgusoii. lie versed on appeal : P_' .\. 1 1. ISIi. Appeal from master's rcpnrt. « liirh [ilaced c"i-- tain parties on the list of stockholders as ennui- hiitories to the I'xteiit of their unpaiil stm k. ('., having hecii commiuiioated with hy th<' pie- sideiit of the ciuniiaiiy, .igreed to .act as a dii ci - tor, and gave his note for .*:."i()0. in ordi;r to ohiaiii a ipialilication. The president siihscrihed tor ."lO shares stock for him, on which the .'«;,"i()() wmild pay ten [icr cent. ('. then acted as a director for some time without (as he alleged) kiinwing tiiat .any stock had hecii siihscrihed lor him. Sulisi'nuently he w.is iiotitied of a live per cent, call on ,">() shares, and he .at oiiec (;oninniiiic;iti d with till' president, who told him not to mind, and that the secretary would he instructed, and he w.is not ti oiililed again ahiiut it. Attiiis time his note had heen carried hy the ciimjiany, and he had paid nothing. The president then .ii»- scoiided, and he w.'is imtilieil uf a live percent, call, and gave a note for -S'J.'iO in payment of same, not (as he alleged) hecause he was liahlc, Imt he- (;ause he was told that would settle his total tialiility. and he did not wish to enter into a suit : — Held, that he was properly placed on tlic list of contriliut(U-ics. .V. ('. — ( /linholiii'.i Cnii', 7 O. i;. 4-lS. -Kerguson- I'roudfoot. T. signeil a ])ower of attorney to ( '. to suh- serihe lor '-'0 shares uf stock, and delivered it to him on the understanding that it was not to he useil except he hecanie a director of the c -(^ 7 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 f<^4p. ^cnn tH 123 CORPORATIONS. lli> liiinsclf to pay the tun per cent, call, and he ad- ded to the jiower a clauKe tliat "the ten per cent, was to lie piiyabhj in rcccdent to Ins liecoming a shareholder :— Held, that the entry ))y the ac- conntant of 1!. 's name as a stockliohler was equi- valent to an entry by t'., to wlioni the power was yiven, ;uid was no dclcfiation of any discreti(jn- ary power, hut a mere ministerial act : -Held, also, foUowing National Insurance Co. /•. lOgle son, -!• Cliy. 40(), that it was not material that the name was luit entered in the suhscrii)tion ))(i(il;, nor tliat there was no specitic aUotnient of stock ; and that !!. was projierly placed on the list. .V. <'.-- Jliirlirr'.s C'lisc, ' (). 11. 44S. — i'rond- foot. lieverscd on appeal, \2 A. U. 480. This case was somewhat similar to Barber's -05, p. I'-'O. case, but there was an understanding that the I calls were to lie paid in work, and ."^lOO wi.rth of , worlv was so don'; and credited in the bo^ks of tlie comii.iiy ; and C, ( '. &, Co. [irinted the pads, saw the advi rtisement in the paper, and received notices of th" calls :— Held, that they were con- tiilmtoi'i '.' (. — Co/v>, Chirk li- Co.\i Caxe. — 7 (). It. ■.;.— Pro '.d foot. Itcversetl on appeal, ]•_' A. it. 48(1. the understanding, (1st) that the company w,i- not to go into o]>eration before all the stoeU w;i- sabscril)ed for ; and ("iud) that only 50 per cent, of his subscription mduM have to be jiaid :— Held, that whether directors h.ave inherent pciwu to compromise with siiareholders or not, tlnMv was nothing to support the compromise here sot up. As to (1st,) C.'s actions as director wii, totally at variance with this contention ; and a> to (2nd.) the subscription was unconditional, and though exjiressly providing for payment of ,j() [n ; cent, it was not inconsistent with the liidaii'- being paid when recjuired. Moreovei- the by- laws, at the adoption of whicli C. was present, recognized the right to call up tliu whole stock. and {'. ap|)cared to have made no dissent. J-'iirhi • 'ti Ca'«', 10 O. It. 41}7.— l!oyd. See ///;/.< v. I'l-iiiw Eihcnrd /■■rnary 1st, KS8'_'." C, was at tlie liist shareholders' meeting elected a director, and remained so until the linal winding up ol the company. l)iie of the by-laws of the c0 jicr cent, of the stock sub- scribed ;it any time alter Movembcr l^t, I8S'_*, on thirty days' notice. In August, I88;5, the presi- dent of the conip:iny arranged with C. thit he should sign tor eighty shares on the terms ol a new stock bo(di ^^ hie h had been opened, and that i '.'s original stock was to be treated as c.uicelled. ('. aecori'iijgly signed the new ik. 'I his ar- I'.ingcnient with H. was ne\er communicated to the shareholders of the company. in .lamiary, 1884, a winding lip order vas made, and ( '. was subscipuiitly declared a conlribiitoiy to the .•imoiint of 1(>() sliaies. *'. now ,\]ipealed. claim- ing to be a contributory only to tin' amount of .^0 sli.-ires, on the ground that the arrangement ol August, ISS;!. was a valid compromise, entered into w ith him because he subscribed originally on 4. Pre el ice. (a) I'uwvm of till- CoHji ,JmIijc-s, and Mantir.s. The Doininion Insolvent Companies Act, 4"i Vict. c. 23, as amended by 47 Vict. c. .S'.t, aiitli orizes the Master in Chambers, the .Master-in- Ordinary, or anj' Local Master or Referee to cxei- cise the powers conferred u))on the couit in Ontario for the purpose of winding-up insolvent companies. The .Master in Chambers, as one n: the judicial olHcers named in the Act, made an order for the winding-up of an insolvent coiii- paiiy, and referred it to the .Master-in-Ordina,'. to settle the list of contributories, take all iieci> saiy accounts, make all neeess:ivy iiKjuiries avx. reports, and generally to do all necessary act-. matters, aii, save in oiiimi two exceptional eases, to have references onlciv'l by the .Ma-^t(M' in Chambers to the .Master in Oidiii- ary. The intention of the .\ct is that the .Mi- tcr ill Ciiamheis, or i^ocal .Master, or .Master-in Ordinary may gr.iiit a windiug-up order, and cdiidiict ;dl the ]iroceediii^s nei'essai'y thereloriii his own oliice and before himself as a judicial vt- . r. Ji'' Jo.ifplL I r II. 485.— Boy I'lie court will ■.ssfts to be inter iillecting the est: Liiiig their rigli iiliiue, which the ;it law. ( '/«/•/•(- \- Cil.^loli'fl ('(Itif, 'ii Oi; it nary. Ill iirocceding c iUL'-iip ot a com jurisdiction to ti ;igf.s :irising fiut o li;ivc in an adm III ])roceeding i tuiiipaiiy, the to liiiiught in ;i claii due him which tl t.i.xing olhcers to kiiil ;iuthority tc .\ winding-up o winding up a fon (iiitario, made by by .another. An iimst he made to tl >"/«•/•/'//• Xai'nx' I'liniuiur, !) 0. II. When proceed I liiiiii.,) ;is aniendi tliu court luis pou ;i li(|uidator to tl I'l'mii Fire liiKura ■.'m{. .\n order was r liiancery division tlic winding-up nir "fa fire insunincc It^'islature of Out iceiiiugs had previ ii.,c.ltiO,andthe" iiy-up Act, (Out. ) rtadver in the fori iiitor, &c., and fur t"ap[)oint a liipiid "I (-■uiitributories ; : tun iiccounts and i under the jircvious "latcd with and -•dings under the ■ they could pro; Hdd, (I) that this . ital would lie nn "' Union Firi In^n (c) Tlio (Uiancery pi I'.' .sales un ler tli lilies .-Vet: iuid 111 I'ttoreolleriiig propi *iii;tlier a sale hy ;i '■lit, Wfuild be th -tato. When a s,-i •'■•'■tod, an athdavil K'lperty should be '"'ly he compared 121 12;. CORPORATIONS. 126 xr. Hi' Jo.t('plL Hall Mdiiii/drtiir'ui;/ Coiiijiinii/, 10 Hall utid Iran Coiitpanij, 10 P. 1!. 437. — Hodgiiis, ]'. I!. 4S5. — ]5(iyil. Mitn/cr-hi-Ordiiiari/. I'iie court will nut allow its adniiiiistratiou of j it is pre fumble to luive the i>rocee(linj,'s iimler sstts to 1)0 interfered with hy otlier proceiMliiigs, '. an ordur for windinj; up a coni]iaiiy under 4") Viet. ,,llctting the estate: and creditors of such estate ' e. •_':{. (|ioni.,| eondueted \>y S'ilic.it(n's who are i.rin^ tiieir rights with tlu'ni into the master's totally uneonneeted witii the (.'oiiipany to i)e iillice, which the court snlistitutes for pi'ooeedings wound uji. /.V ./oxc//// Hull Munii/oiiiirdiii Com- it law. Clarb'V. T/if ('iiIdii Fin- /iisurmirr Co. — Ijiaiii/, 10 1'. 11. 48.">. ^Boyd. („.v/(-/)'.s Caul', 10 I', It. 33!t.— HodL'ins, MoMerl -.1 . ,, ,, , , ", • ,, ,. ,, • ,, ,■,„,., ' I nder the tacts stated in the reporc ot this ', Ui'diiiarij. Ill It'll I casi.', an on ler having liceii ohtanicd in I'hanilier.s In proceeding umler a judgiiieiit for the wiml- l>y on creditor for winding uj) a conii»aiiy, the iii_'-up of a coinpany, the inaster has the same \ conduc of the ])roceedings was given to three iirisiliction to ti-y claims for uiiliciuidated daiii- | creditin.i who had also apfilicd for such order. s Act, 4.". ;V.t, aiitli- daster-iir ic tocxei- COUJ't ill insolvent as one o: , mailu an k'eiit com- ■Ordiiiiivv I all iiccL- dries .11!'; sary act^. 11]) of thi (1) tlwT rs naiiK'i'. them ;b )t autii- ler ; \'l hy tin- Acts iui'! lorimr le jiin>- he oi'iUr isilictiiii laster ii; i■ ,n,„., ,".,, , f , , , .■,,,. , ,, .,,.. , was petitioning merelv in tee iiiteiest ot otlier o.,c.lOO,an. t.lie'-.louit.^tockt.mipanies\\ind-, ,^;,_^^^.,,,, Hved out of the iuris.liction, ami II, .-up Act Ui.t. ) I Ins order appomte, the , ;^.,^,, ,,.^^j i.ulemniHed him as to coses. /,'. linud'tj ...iver 111 the tormer pr.^ee.luigs Miterim h,|in- . ^^^^^ ^^^^^^^^^. c.^upam,,, 1 1 P. It. 314. ce also C/(o7.v' V. I'nidii Fire (b) AppcnU. An order was made by Proudfoot, .1,, in the C!i:iiu;erj iJivisioii of the lligli ("oiirt directing the wint olitiiined. Fur/it l/dinillon Triliiiiti' Cidii- 1 lie Olianeerv practice 111 sale cases applies to ,, ,, , 1,1 , 1 ■ ii 1. - - I 1 1 ,, j'liiii, . U. 4()t.-— loyd. Jniu sale.? unler the Domiiiton insolvcmt ( ipiii- ' ■" •' ivmvA Act ; and under such practice it is usual 'The liipiid.-itomf an insolvent company biought liictiireotreriiig property for sale to have an inipiiry in for .approval an agreement with certain parties l»iii!tlier a sale hy auction, or iiinler private con- f,ir tlie sale to tlieni of its assets at a jirice eipial |trti.'t, would he the most aih antagcoiis to the ti twenty-live cents on the dollar of the clunis of ■liito. When -i sale by [uiv.-itc iniitract is di- the creditors of tlieeoinpiny "as may be admitted I-' tuil, an adidavit of the actual value of the or adjiidie itel," in addition to the costs of the perty should he )irodiiced, so that siich value liipiidation proci'i'dings to he taxed hy the taxiiii^ I'M)' he compared with the price otl'cred. A', olliccr, and the r<,-iiiiineration of the liipiidatm- to tfK «/« a/5 127 CORPORATIONS. 12S be settled liy tlic Mnster. There was no mode of adiiiittiiiy or ad indicating on sucli claims pro- vided in the agreement. The agreement Mas opposed l)y certain creditors, and thereupon the proposed purchai-;erH witlidrew from it : — Held, 1. That if the creditor's claims were to lie ad- mitted liy and lietween the parties the agreement was conditional, and the purchasers liy with- drawing liefore ascertainment left the agreement imperfect. 2. That hy not providing a mode of admitting or adjudicating upon the creditors' claims, the agreement was andngucus, and parol evidence would have to he adduced to explain it. ,S. That for these reasons the agreement was iucapalile of being enforced, and could not bo ap- proved : — (^tua're, whether an agreement to pur- chase the assets of a company at a certain rate in the dollar of the unascertained claims of the creditors of such company would be valid. AV Jlolt (Dill I mil ('•nii]iiniij, 10 V. 1I.437. — llodgins, MaiiUr-in-OriUnnnj. C. F. S. apidieil for an order for the wimling-up of the B. company under 45 \'ict. c. "J.S, (l)(im.), and amending Acts, and as evidcin e of the in- solvency of the company shewed that, being en- titled tci the beneticial interest in a certain jiolicy on the life of hei' deceased husband, she had de- maixled payment thereof from the company, but it had been icfuseil ; that the suspension of the company had been announced in the ]iapers, and that till manager of the head otiiee in ( 'anada had stated that he was instructed from tiie head othce in iMigland not to make any payments on behalf of the company. It appeared, however, that the policy provided for jiayment in three months after jironf of the death of the insured had been received by the company, while the above demand for payment was made a fortnight after the death, and no other demand had ever /Gcn made : — Held, that the debt was not due when the demand was made, and therefore noii- ji.ayment was not evidence of insolvency within the meaning of 4.') Vict. c. 2;i,ss. 9, 10, ll,'(l)om.), nor would the fact that the company had not paid claims ainouut to an acknowledgment of insolvency within sec. !) (d) of that Act, nor otherwise was there sulHcient evidence hei'c of the insolvency of the company, and the pi^tition must be dismissed : — Held, also, that as a matter of pleading, if it had been intended to rely upon the acknowledgment of insolvency, it should have been stated in the petition In re liriton Medical ttiiil (irix rat Ll/'r An-iacialioH {Lhiiitol), no. K. 478.— Proiulfoot. Seinble, that even if a general manager of a company positivelj' agreed that any windiiig-uj) ]iroceeding that should be necessary should be taken in t)ntaiio rather than elsewhere, this would not bind the company, for the lnisiiR>s.s of the manager is to manage a going concern. It is no pan of his duty nor within his power to arrange .Jxiut putting an end to it. Jli. See III' Bri^m Miilical and Onii'ral J.if'i' A.i.io- rlalion (LInilffd), (2) I'J 0. P. 441, p. \'2S. .See also Iv re Lake Superior Xaliir L'ojipi r Co., 9 (). n. 277 VIll. Fori:k;\ C'ori'oration.s. ! C. & (), carrying on business in Chicago, in the state of Illinois, for the nuimifactnre of mill machinery, &c., had certain machinery manufac- tured for them in Stratford, Ont., which m;is warehoused with M. & T. , at Wooclstock, (int. ('. i*t Co. being pressed bj' jiiaintiflf's, their li;ii;k. ers in Chicigo, for collateral security for two (,t their notes of .'?r),000 each, discounted liy tin plaintitl's, endorsed over to the plaintifis tin warehouse receipts for these goods. At the in;itii : rity of the notes, C. & Co. , not being in a \u m I tion to retire them, in pursuance of an arran-,. ' ment to that eil'ect, the warehouse receipts mch cancelled and new ones dated 12th October, bSs.'i. were made out clirect to the jilaiutifl's. On .'!i.l .September, KSS3, C. & Co. had made an assiL;i|. ment to a trustee in Chicago for the lieneht ..t creditors. On 22iid NovemlKT the defendant placed writs (>f execution in the sheriff's hanil- against C. & Co., under which these goods viiv seized. No fraudulent preference or intent wi- proved : — H<'lil, that the plaintitl's, a foreign ci.r poration, could hold personal projierty in Ontarin; that C. & Co., being residents of the state of 11 linois, the transfer must be governed by the law iif that state, according to vvliich the transfer w,i- valid and effectual : tliat, even if dealt with : - subject to the law of (hitario, when (A & T. g;\\r the warehouse receipts direct to the bank, tUcv held the gooils for the plaintili's, and there wa.- therefore a transfer of both projicrty and possis- sinn in the goods to the plaintitl's, subject to tin trustee's rights, if any ; and the goods being iii the liands of third parties and not of C. & <'i>.. the Hills of Sale Act did not iipply ; an Ol IK it. veix'il \i\ iictce ii. )iitiU'iH, , U) I' (listri- iliany. i 'iot. c. :• :-HcM, veil, iii't- up Ih- ;h C(lUrt^ KKOCiilti' '■ (Dniii.. |er, tlicrc ce was 111 liet'U nil- pany aivi liitistii'ii ; pe. .1.. : iiinst til- L'turn nil upaiiv ;i 1!. VSX 129 COSTS. 130 Assessment of. See The PIkpv'ix Inst.rnnce Co. ' of Lonihm el al. v. 77ic Corporation of the City of Kin'jiiton, 7 0. R. 343, p. 17. See T/ic Merclunitu Beiiik of Ilalifiix v. Gillm- pie, 10 S. C. 1!. :i\'2, p. ll'J. ■ See also Prilehdvd \\S>i(itdiird Life A^iiiirunee Co., 7 O. K. ISS ; Jn jv Liiki' SKpiriar Xdtive Cupper CoMpunij (lAni- ,'.-/) R,' riinnmer, 9 O. R. 1277. CORROBORATRE EVIDENCE. See EviUF.NCE. (•ORRUI'T PUACTICES. See Pakliaaiknt. II, III. IV. V. VI. VII. VIII, 1\'. X, xr. COST.S. CiENKHALLV, l.'^O. SECURnv KOK Costs. 1. When Ordered. (a) Residents Abroad , 131. (b) Imolvenrij of Plai)dijT, 1.31. (c) Otlfr Cases, 132. 2. Practice. (a) Time for AppIi/t/Kj, 1.33. (b) Afidarifs, l.'W. (c) O/Aer C((«'m, 133. 3. Amount of, 133. 4. Cancellation of Bond, 133. 5. //( Appeal — See Court of Appeal. AlTI.K'ATIOX FOR Fl'LL CoST.S, 1,34. ^VH1•.UE I'ARTV HAS Sl'v. JEEDED ONLY IN Part, 137. Costs of Abortive Trial, 137. Cost.s Kefi'seu by Court or .Iuikie. 1. Cnnecessary or Vc.catious Prvceedim/s, 137. 2. Other Casex, 1.37. Appeal as to Costs. 1 . U'/ien in the Discretion of the Judge, 139. After Abanhonment or Uisclaimer, 1.39. .Skt-off of Costs, 140. Staying Proceedings until Costs of Former Proceedings are Paid— See Practice. Taxation. 1. Attendance at Taxation, 140. 2. Costs Allowid. (a) Tariff, 140. (b) C>i.ils in the Cause, 140. (c) Cirunnel Fee, 140. (il) Witniss Fies and Suhptenas, 141. (e) 0(h:r Cases, 142. 9 3. Certificate of Tamtion, 143. 4. AppeaUfrom Ta.cntion. (a) Time for Appealinij, 143. (b) Otlier Cases, 143. 5. Between Solicitor and Cliint—See Soli- ( rroii. XII. 1)V and A(;ArN>T Fap.tkular Persons. 1. K.reeii/ors and Adiiiini-stratur.i — Vi c Ex- ecu'kiks and Aiiministisators. 2. Shcriff'ii Fus and I'oHmlaije — See SllKItlFF. 3. SuUcitur anil Clinit — See Solicitor. XIII. In Particilar Phocfedings. 1. /// Arlillriitionx—See A iinn ration and Awakd. 2. ('./' Appnil—See Appeal— Court of Appeal — .Suprk.mk Court of Can- ada, 3. Winilin;/ up Companies — See Corpora- tions. 4. Co/Nv'-'^/o/f.s'—.S'.v' Intoxicating Lh^uors — J USTICFS OF Tin; I'FA( e. 0. Injunction — See Injunction. (i. Inti'rplriider — .SW' Interpleader. 7. Controrirti'd Election Cases — See Par- liament. 5. //( Pl'odiiiij — iSee Pi.FAiiiNG. 9. Spi^cifir Performance — See Sfkcific I'F.KFdiniANCE. XIV. In Pauticulau Actions. 1. Administration i-lr/w?Ks'--.S'('e Executors A N I) A I >M I N ISTRATORS. 2. v1/(//(('»,'/— aV((.' HusiiAND ANI> \\lEE. 3. Liljil and Slander — See Defamation. 4. Mortijaije Actions — See MoUTG.vgE. ."). Repkrin—See REPLEVIN. (i. Seduction — See Seduction. 7. I'indor-i' Actions — Sir Sale of Land, XV. LiFN OF Solicitor ior C(.ists— .Vcc Soli- tor, I I. (lENEIiALLV. In selecting the form (if action reganl niUHt bo had nut only to the interests ot the iilaintitr, but also to those of the defenilant, and when a simple inexiiensive mode of iiTucedure is (ipen,and a more expensive and liurdiiisnnie course is adopted, it i must be at tlio ]ieril of costs. Vandi initers v. ! Horton, 9 O. R. 54S.— Ilose. Priority of payment of costs in distribution of proceeds of sale nf goods attached under Abscond- ing Debtor's Act. See /huiinij et al. v. Smith, 10 P. R, 3()0. ' W. siild land to H,, and covenanted to indem- nify him against a mortgage thereon : — Held, that H. was not entitled to solicitur and client, but only to party and party, costs ot an action on the covenant. Hutton v. Wan-.er, 11 V. 11. 302. — Proudfoot. Right of surety on assignment of a judgment against the pi'incijxil debtor to the co.sts. See IK 2S 3r. II ■iiinmiyniiii 131 COSTS. 13:i //<(/•//> /• V. CiiJbi^H ft 'iL, ', O. ]!. 1.')'2 ; Vktorhi JIutiKilv. Fi-tvl, 10 I'. R. 4"). See also A'a (»■(./• \. Jl"i/i(>uii,~ (). 1!. 143. II. SKrriMi'V FoK Costs. I. Wliui Ordn-i'd. (a) Ji' .-ill/' ii/.-t Ahroad. An al}i his residunce in New \'(prk, one of tiie U. S. A. :" — SfUihle, that a statement of tlie )ilaintiH"s resi- deneeoutof the jurisdiction, on information and lieliff is not suliieient :- Held, tliat the foreign residenee of tlie jjlaintill' was here jpositively sworn to, and the alhdavit was .sullieieiit in suh- stanee for the eourt to aet upon in ordering seeu- lity for eosts. //i/lllu'/.-nroiili v, llnU'tiiii'iO'oiiU, 10 1'. I!. 5S. -Wilson.' A defendant is not necessarily entitled to secu- ty for 0(jsts hueause the iilaintill"s residence is out of the jurisdiction. If it lie made apjiarent liy evidence, which the court should look at, that the defciidant has no defence, security will not oe (u-dercd. Dorr v. Rnwl, 10 P. K. 1U± — l»alton, Ji((A7 (•/•—(; alt. Where a plaintitl' leaves the jurisdiction pcr- nianently while his action is pending, he will he ordered to give sceni'ity for costs past as well as future. /Inii/i/ v. '//,,■ Mrrclniid.-i /hs/ialr/i Trawjiortatiou ('(im/ntii;/ it a/., 10 1'. U._2u3. — Winchester, 7i'( /'« /< , . I'arties residing out of the jurisdiction who came into the master's otlice n an administra- tion action [lursaant to a notice to ereilitors, and elain.' to lie creditors of an estate administered there, will he re(|uiretl to give security f(U' eosts. AV /ui:i — Uriiuliiirt v. Turuntu TriL^ts ('(iiiipitri/, 10 1". R. 4l'r). — Hodgins, MaMiriii OrdiiMi-y. ' A defendant is entitled to security for costs Irom a plaintifT whose permanent residence is loreign, if at the time aii[ilication is made the plaintitl' is actually out of the jurisdiction. I'uliiii.tiHi V. t\,ir,tn 'it (it., 10 P. K. 508. -Dalton, Mo •if,:,. The plaintill's iiaving recovered judgment in the action, the defeni'iant appealed to the Court of Ai^ieal, and then moved to comiiel the plain- fill's to give security for costs, on the ground that they resideil out of the jurisdiction, and had since the recovery of judgment ceased to carry on business in this province, ami withdrawn tlieii- assets therefrom. The motiiui was refused. L'.ir/iiunji' Bail/: V. /l.inir.-:, U P. R. 11.— Osier. A defendant asking relief against his co-defen- dant will not be onlercd to give security for costs on the ground of residence out of the juris- • lietiou :— Scnd.le. such relief should not beaskcil liy way of counter-claim. Wiilm-i/i ii v, O'rillit/i /i"r'nf .. 10 P. R. -JO"). - n.iltcin, .l/i(../. /•. Where several jiarties sull'cr damage from tin- acts of the defendant, and they agree ainuii.- themselves to share the costs of a test action liy one of them to establish his rights, sc<;urity tni- coists will not be ordered even though such ,i plaintill' is insolvent, ('lark /•. St. Cathaiiins .-"//(/■((, di.stinguishc>, 11. 131. Held, that a ■"■its is a stay i 1 niiition for jii. 'Mc motion to s ' iii'itv for eosts I'. It" 1{)2.— Da I'lie statemen Niult coniplaine ill alternative •li'l not adnnt ''leiight into coi ",i^ sutiicient, A iiitd court uiid( r. lined there to ; li'' suoeeeded, u "idering securit I', i:. lis.— H(n "^ce ]Valia:i ^Va Srntil /'.. ilLlti'Mllll ( ini', 1.:;: lurili.'-'il lis artii'li; for cii-t-. si't :isi'l''. (i'l -1'" •2. Pniflln'. (il) Tiiii'/ur Applijlinj. Ill a penal action hroiiLjlit by a uoiuinnn info,- 111 I', an onlor for .security for costs, uiulcr sec. 71 it' I lie C. ]j. V. Act, was licM to have been pro lierly iiiailu after tlio stitement of defence iiail liueli (lelivereil, and after tlie parties had heeii ••x.iniined, as authorized liy itule 4'Jl), (). .1. .-Vet, liiit, Jleld, tliat the order should direct that SLiurity should he ,i;iveii " for the costs to lie in- curred in sucli suit or actio. i," following; the wnrds of sec. 71. JUnhmrlh v. liill, 10 l'. It. .•dl.— Ho.se. ^ee Erdiaiiiji: lidiik v. . I. SI. I'yinvi, 11 I', i;. 11, (1>) Aiii'/iir:/<. ^^e /fnl/;n;/-<,r,rfJi V. //o!ll,nj.i,r,rth, 10 1'. It. j->, p. i;>i. (c) Ofhr,' r„.,-,.v. Ilelil, tliat a iiiM'ci[ie order for security for •nsts is a stay of proceeding's while it exists, and 1 iinition for jiid^rincnt mide siinultaneonsly with "11-: motion to set aside tiie priecipe order for se- uiits- foi' costs w.is refused. Dj'-r v. Il7'/\— (ialt. Tiiu stitement n' defeiKic set uji that the as- -iiilt eoniplaineil of was in self-defence, and, as ill alternative defence, tliat, while the defe'iidanr 'liil not admit hfs liahility for ilamai,'es, he lirmi^ht into court Sl'iO, ami said that the same « IS sullicient, itc. : — Held, t' at tlie money paid iii'ii t'oiirt under this defence eoiilil not lie rc- r lined there to answer the defendant's costs, if ill' succeeded, unless a jiroper case was made for I'lilrriiii,' security for costs. 7'/^c;v; c. Aojs, II I', l;. ns.— Boyd. Sim. \V,iliii. J. Act has I'l'i'u taken out. XorHi v. Fii/i-r, 10 1'. I!. 5S2.— Hose. All order auiending a pra'cipc order for secn- 'ity for costs, issue l under rule 4;{1, (.). J. A'Jt, ''>• Inducing the security to ^lO'd, cash [laid into iiii't, was reversed, where no reason was shown ' If linking the re liiction :— Held, that rule -il'.i, ". 1. .Vet, does not aiith'iri/e the reduction of '.i-i >uiii nun; I in rule 4;il, (). J. Act. RldlJl -■■ M'-K"-:/, II 1'. \l. 4-)'.». -Fergus 111. 4. Cdiicclladoii of lioai. Tlij [ilaiutifF, who lived out of the jurisdiction, 'btiiiiij I a julgmjit at the trial which wis aliiriued by the Divisioinl Court, except as to one ilefendaut against whom tile action was dis- misseil, witiiout costs ;— Held, iieiidiiig an a))- peal to the Court of Ai)peal by tiic other defen- dants, that the plaintilf was entitled to have his bond f.r security for costs taken oil' the files iuid delivered up to be cancelled. //'/'■/// v. Tli'- Mi'frliiiiil< J)..iji,(l:'li 'I'ruii-ip irl'i'i'ii/ i'liiii/Ktiii/ .80, and the other for .sl()i;.40. .\t the time the ai/tion was brought the second bill had not matured, as w.is alleged by the de- fendants, and afterwards admitted by the piaiii- titl's. I'lion the iipplieatioii of the plaintill's the master m ,de an order, under llule W'l'l (>.•!. Act, I for liiial judgment against the defemlants for the first pircel of goods sold and delivered, that is, for 8 10.'). SO, with interest and costs of suit, iii- eliiding the costs of the application, "'to be taxed according to the course and pr.ictice of the court." Under this order the taxing oliicer allowed the plaintill's County ( 'ourt eo.-,ts on that part of tli"ir claim u[ioii which they obtained the order for pidgiueiit, .lud he ;illowed to tile dcfe'iidiiuts the full costs of the High ('mirt of .lusticc on that pu't of the plaintill's' el lim U[> m which the ile- fendants siiceeeded, that is, upon the claim for SIOii.40. the jirice of the second p'ii\iel of goods. I'pon an ;ip|)lieatioii by the defeudaiits to revise the taxation : — H'.'|il, tint it w.is the duty of the taxing olHcer to look at the iileadiugs, and if necessary receive alii lavits so as to ascertain the facts of the case ; that Hivision Court I'osts only should have lieen taxed to the plaintilis. as the amoiiiit for which they obt.liiied jiidgnient was ascertained by the siguatiirj of the defen- dants, and was therefore within the (,'oiniietence I of the Division (Joiirt; that tlie defendants should I have Superior Court costs down to and including ' the stitement of ''.efeiice, which would not h ive been reipiired but for the [ilaintill's claiinin,' iiu- pro|ierly the price of the scjoiid parcel of goo Is, which was not due, ami also tlii'ir costs of this a])pliiMtion. with a sot-ofl' pro tanto agiiiist the ]ilaintil1s' judgment an I costs. Wliilr ,V. ic'/;;/ M'l'-hiid' CoiUjniiii/ V. Il Ij'i-iJ il III., 10 I'. K. lil. - Wilson. After a inortgige sale the lirst lU'irt^igC'.; |)iid the sur[)lus [irocceds of s lie (-"sin'J) into court. The tliird mortgagee pctitionel for [iiynnmt oat I to him of the .SUi-', alleging tliit the second niort- gage was void for w.iiit of consideration, iti'. A reference was directeil, and the mister found tli it the second mortga'^'e was valid, and tli it a niu 'h larger am nint th in .8102 w.is due u[Mn it. Tiei claimuits of the fun 1 lived in three diU'erent counties. An order mide nirm further dire .'tioiis gave the sec old mortgagee the c ists of the pHi- tion aud reference: — Held, th it whit wis in c intcst was the whole anioiiut re[ircseiitjd l)y the second mortgage, and the subjeet niittcr thus involved exceeded tlic limits of the foriiiu' e pii- table jurisdiction of the (Auiiity < !iiui't, and tlieri'- fcu'c, and also because the dill'erent res[)ondeuts resided in cUll'erent counties and tiie nioney in ipiestiou .VMS in court in a third county, the tax- 2i «!•* ts^ mien 135 COSTS. uc> iiig nfliccr was rij,']it in tnxiiig cnsts ujkiii the higlier scale. /,V /.//oz-s 10 1'. I!. loO.-Buyil. In an aetinn in the Conniion T'lcis l)ivision, for trf.s|ias.s to huiils ainl I'lnmval of lixl'ires, the ; plaintill lecovei'ed a vi'i. The taxing,' olHc(.T taxeil division < 'lairt co^ta to tlie ]ilaintin', and full eoHts to the ilcfenilant. The iileaiiic- Hig lixtures. and theii' renmval and aiiiir(niriati(in, hnt i)ut in issue their \vi-on<.'fiii I'lindvai: — Jlelil, | that the taxinu,' oliieer v.is ri^ht, tlie title to eor- poival hereditaments not lieinu in i|Uestion : — Held, also, that th(puj.di the defendant iuul failed to prove his defence, he was entitled to set olV his .'osts. l!kl,iird.wii V. J, nLiu, 10 1'. I!. '2'J'2.— ('. P. I). An aetinn in the f'cinnion Pleas I'ivision for S'JSS.l'O, the lialance of a elaini of f'l .S'JS.'JO fur N.SIO Ills, of Imtter at L''.'c. peril.. .':^1,(;00 had liei'ii jiaid on ai.'ediintof the elaini. Tlie ]ilaiiitiir cihtiined a ver.—1 lose. Mortgagees after the exercise of po\Ter of ."sale in their mortgage claimed that .'rilS'J. til was still due to them, Imt on an account 1 icing taken ; ?!il0.07 was found due to the mortgagor :-- Held, that laying aside the question of the whole amount of the mortgage money (.?li.70.")) the amount in- ' volved was S^U'J.dS and therefore the easo was not within Itule .")!.") (•..). Act (C. S. U. C. c. 1") s. .'U. suli-s. S), and the eosts were properly taxed on the higher stale. M. In an action against justices of the peace for f.ilsi.' imi'iisonnieiit. \(.'.. the I'livisii^nal louif , (10 (). K. (i.'ilt or'iend judgment to he enterid for the ]>laintitt' for .«'.'."i. the dainan-s assessed hy I the juiy. leaxing the costs to Ijc taxeil aco>irding . i to such scale and with such rights a? to set-njl as the statute and rules of court might diri rt, Upon apjieal from taxation : — Held, that the :ic tion lieing within the jiroper com[ietence of the I'ivision Court, (unless the defendant ohjectt.l thereto) the iihiintiU' shoulil have costs only nn the scale a]iplicalile to that court, and the d.'- feiidants should have their projier costs hy way of l not come under Itule 51;"), (•. .1. Act, and the c st.< should be taxed on the scale of the High < 'ouit. Jlf/>vnt// y. 'Hit lUiililutii (Dill Lo'iii .4 .«0('/' ""!/'. 11 P. 1!. 413.— C.amoron.' AVherc in an action of libel a verdict for s'l damages was found, and the judge at the trial gave no eertilieate for costs: — Held, that ti..- plaintiff -vvas entitled to tax full costs. Cianair r. llnidlev, 3 App. Cas. iM4, considered ami :■ ! ic- lowed. \y,L■'' ic 111..' 1' iiis h;iiiil^< [igaiiiftt the same defemlant, anirmntiiii,' til liioi'i! than S'JOO: — Held, that if tlio iihiiiilitls li;iil l)UL'ii succussfiil all tlio exccuticiiiH iiiii»t have licfii satisliuil Dut of tlio iirojiorty cdvltuiI hy the iiii|i"achi_il uiiiiviiVitiiL'e, ami tin- iii'DviMioiia of the I'l'i.ilitoi'.s' Koliuf Aut woulil havi! apiiliiiil to tliu c;iM'. anil thin'L'liii'c thu aiiiouiit of the subject matter iiivolvoil cxeeoded 8-(.IO, ami thu costs> Ht'le taxal)le oil the High C-ourt seale. Do million Ihnikw JfiJ'cnianiful., II P. R.r)04.— Ferguson. It is proper praetiee to oljtaiu a direction of a iiul^^e as to the sealo of cores before they are tuxed. //,. I\ . \\ liKliK r.VllTVlIAsSlCCr.KDlCDoNI.Y IN I'aKT. An action on an unsettled accnuiit, to which tiicie was a eounterclaim also on an unsettled ac- jiiuic, was referred. The referee found that there was a sum of .S14S.81 tliie the ]ilaiutill' on his claim, and 5!lli4.,"iO due the defendant on his .iiiiuterelaini, leaving' a balauce due defendant of si,"), till, and he eertilied to entitle the defendant til full costs. The Statute of Liuiitations was pleaded res]iectively to the claim i'.nd eounter- i.laini, and the items barred by the statute w<;re ill Lonseijueuee disallowed; but apart from the .st.'.tute the balance would have been in the jilaiu- tills favour: — Held, that the plaintitFaud defen- ilaiit were entitled to recover the costs of and ivlatiu'^'to the claim and counterclaim, aiul proof :1 c-reof respectively, includint,' the reference and juiis jjUent proceedings ; the defendant being ;il.-n entitled to recover the sum of Sl.l.Ott. The taxing oliicer to divide items in common; and iud.'iiient entered for the party in wlmse favour the balance should be found. t'oH'jIiUn v. llol- Viivj^n'orth, 5 <). J!. 207. — Kose. ,^ee GoitijJi v. Hi'.nch, (i (.). 1!. (J'Jt), p. 11. V. CoSi'.S OF AlioHTIVE TlilAL. The costs of a trial which was abortive because the jury disagreed, no order to the contrary hav- ing been made by the judge at the trial, were held taxable against the defendants by the plain- till' who ultimately succeeded. Ci>pdan. In this case the motion to i|uash the by-law was refused, but without tMsts, as the applicant had been led into his position by tile iudi»cri:tion of certain meml)ers of the corporation, Jii i'> Workman and f/ir CuriniriiHiin of thi: Tmi-n (,/' Liiid.ia>/,7 (). R. 42."», — Rose. In this ease the defendant was refused his I costs, as the ground on win' :h he had succeeded I did not go to tlie merits, /'"lina v. S/Htr/iinn, S (). R. 570. — Rose. 1'he practice ot bringing an action for an amount due on a mortgage within the pi'ojicr competence of the l)ivisi(iu Court in tiic llii.'h Ccuirt by male- ing ;i cluni for possessinu of tlieland, is one that nui.st be carefully guarded ; and, exce[)t in casen clearly indicating the neci's.-ity for proceeding in tlio IIii,'h Court, no costs will lie given to the plaintitf. In ihis case where the .amount cl.aiined under a mortgage was witliin the proper com- petciiijo of the |)i\isi(iii Court, but tiie suit was liroiiglit in the High Court, and there were no circumstances showing the necessity for bring- ing it therein, no costs were allowed the plain- tilV. Vandewaff^r.i v. Hortnn, [) iK K. 548.— Rose. A banlc claimed tiie right to charge ag.ainst an accouiit in priority to the claims of the iilaintili' and S. chcipies or notes of .r. presented .ir ni.aturiiig after notice to the bank of J. 's death ;— Held, that they could not do so, and in consei|Uence of hav- ing imule such claim both in this court and the 1 court liclow, they were refused their costs, /lai- lleyy. Jelldt, A. R. 187. 1 An order was made dismissing an action for j penalties under the Dominion Election Act, ',\~ Met. c. 9. for wilful delay in pi-osecutiiui, with- out costs, for the reason that a prima facie case of bribery was estalilished against the defen- dant, which he had not atteiiijited to contradict. Miles V. Uoe, 10 P. R. 218.— Boyd. On a motion for a writ of prohibition to re- strain an action in a Uivision Court ; — Held, that as the learned judge who tried the case does not allow County Court costs in similar cases, and as the plaintitY was obliged to sue in the Division Court at the risk of prohibition, oi in the County l'ourt,andlose his costs, that thedefendantshould get no costs of this motion, unless he successfully resist the suit to be subsenuently ljr(Uight to re- cover the amount of the note, He Yoiin'j v. ^[or• den, 10 P. R. 2711.— Rose. In this case the action was ilisniissed without costs as the point decided was a new one, and the statute was not plainly expressed. Wallace el ah V. The Board uf Pahik: School Trunlee.i/or Union School Section Xo. of the Toicnuhlp of Loho, In the Counti/ of' Middlesex et al., 110. R. ; G48. 2. Other Cases. Held, in this case, that inasmuch as the plain- tiff succeeded iu the only branch of the case A conviction was ipuished without costs where it appeared that the defendant had attempted to tamper with the informant, lo'i/lna v. Ryan, 10 0. R. 254 — Rose. Official guardian's costs. Westgale et al., 11 P. R, 02. 8ee Wt.sttjate v i sut'li k'av(^ liad lifcii j^ivcii, ail ainiial fiuiii the (niUi- was iliMiilcsecl, with wists. 'I'hi' court (lircctctl tiiat sucii (lait nf the cubits iiicuiTctl liy tlic tliinl parties in cstahlish- iiig the (leleuce as iiiiuht jiniiieily have hceii in- eimcd liy the ileleiiilaiits, shouhl he allnwed hy the taxiiij:- ntticer. 1 Hiiitihsini (j-c. J'. i». ' ' I'd- dslel', •! .. the iiilc as tn an apjical nil the .|Uc>ti(iii "t (lists aii|iears to h(' this, that if, in making' the (.nler coiiiiilained of, there has lieeii any violation ot iirinciple or the court has jiro- cueded on a wrong general rule, or if the discre- tion of the court has been exercised uiion any niisaiiiirehension of fact, a Court of Aiijical will interfere, hut not otherwise. M «»-/'// v. Smiilt- ' I'-oni/, II A. 1!. r.V.K (»n an aii))licati(iii hy an iiiMirancc coiiiiiany to stay iirijccedings, in an action on a imlicy, pend- ing an arhitratioii as to tlie amount of loss under the statutory conditions, the court granted a stay on the coniiiaiiy admitting its liahility on the liolicy ; and lurther ordered, Imt without defen- dant's consent, that either jiarty might, after the award, apjjly to the court in respect of the cost.s of the arliitratiun. ( »n a suhsci|Uent application an order \\as made hy a judge in chamhcrs on defendant to pay a part of such costs :-lleld, that the court had jniisdiction to deal with the costs : and moreover, that defendants having suhmitted to tl'.e order of the court, and talun the hcnelit of it, could not ohject to the order of the judge made under it. //injlu-i v. T/n' Jiriti.-^li Ami rim liiyiiriinri ( 'oiiijutiii/, inn/ l/n'jln ■•< v. I'ln Liiuikiii As,siiriiiiri Ccmjiinii/, 7 O. K. 4()d— t^'. !>. D. See.Vma/'/v. /.//(-;-, 10 V. K. -J'J.S, p. U'J ; /\/ri< v. Uiirlpli l.iiiiiliir Cuiiiiniiiii it III., 10 I'. 11. (100, p. 14'2. See also U'oh/hilii/ y. Mitrhill, 5 (). Ji. 4'J7 ; Vi'c Oliii!'ti!0(l V. Jyrriiii/ion, 11 I', li. .Sliti. disclaimod all interest in the result of the sut, and .'illeged that no eti'ort had hceii inadehy inn: to li.ive the sale carried (ait, as he was awan that the same would have to ho tir.st conliiiii' il liy the memlicr.s of the s.aid church. At the ti : il judgment was ))ronounce(l setting aNid(' the s.'ilr and ordering th(^ defendants gener.illy to | ,i\ costs : — Held, \arying tlii' judgment of the (.■oiiit lielow, that under the eirciinistaiices a fornjiil disclaimer was not ro(|uired, and .1 . was ordernl to he paid his costs of the appeal, hut the ,acti"ii in the court helow was dismissed as against hiin without costs. Wunxlvy \. Siiialliriiwl, 11 .\, |; 4:v.». \\l\. AlTKi: Al'.AMiON.MI'.NT Ol! I)|s( I.AIMEE. ^\■hcre the iilaintills hrought action against the defendants to rc(.'over possession of certain lands, and the latter resisted the claim, and also served a third [larty iiotico njion II., claiming indemnity ; and, thereupon, hy order in cliani- licrs, on the apiilicatioii of the defendants, Ji. was made a party defendant to the action, and the plaintiff's aftciwai'd.s ahandoned tiicir claim to the lauds :— Held, that the plaintiH's must pay H.'s costs. Iliiiril it (il. V. Criilit Viillri/J,'. IT. Co.. !• ;>. it. ()l(). — Ferguson. .1.. one of the defemlants, had hid for and had become purchaser of a lot of land sold under the provisions of K. S. (>. c. 2I(!, hy curtain ]iar- ties claiming to he trustees of the Coloured \\''_s- leyan Methodist < hurch, whose pr'>ce''.ungs in respect of such attempted sale were impeached in the action to which .1. was made a jiarty de- feinlant, although he avowed hi.s willingness to withdraw from the purchase, and hy his cinswer IX. SK'r-iii'K (ir Costs. See l!ich(irilsi.ii v. Jmhliu 10 P. I!. L'O'J, p. i;;." . /nlinidv. /'ililiiril II/., 11 l\ I!. 40;{, p. i:;i; See also /Iroirii v. Nilsuii, 1 1 I'. 1!. I'.M. Xr. 'i'AX.VTIoN, I. Atli'iida ■■■I III Tii.iiiliiiii. The taxing oliicer has a discretion as to the ,it tcndaiKJe of parties claiming a right to attend . i taxation, and his discretion will not he ligiith interfered with. Chirh- v. Tin' I'nioti Fir, I,,- ."iiriiiirr Cn.— Cwtim't^ Ciisr, 10 I'. K. ;f;i9.— Ih.il gins, Ma.iter in Oriliiurri/. 'J. Ciists A l/oinil. (a) Tarif. The tariff of costs now in force does not pi. tend to ex!:anst all possible items or services i.i: which renuineration is to he made. TlioohJKt of a taritl' is to ^irovide a lixed or movable sral. for usual and ordinary services and as to all itc in- embraced therein it is gi'Uerally cunclusive, liur for other matters one has to go outside of tir taritl' to the practice and course of the court. I: is therefore for the taxing oliicer to deterniim accoiiling to a proper discretion, what allnwancc to make for procniing the attendance of witncs-i .■ who live out of the jurisdiction. I Jules 154 aini 1()8 of T. T., 1S.")(!, are still in force as to matt' r- not embraced in the tariff of 18S1. Biillii'i' V. frviiipton Cor.^ct Co., 11 1'. It. '2o(). — IJoyd (b) C'lifts in the Cnii.ti'. Costs of moving to ]iostponc a trial on account of the absence of a material witness will be co.-t- in the cause where the i)arty moving has m.uU diligent ell'orts, &.C., to secure the attcndam c. liriiini V. J'ortir—Kiio.r v. I'orln; 11 P. I!. --ViO. — Itose. (e) Counsel Fur. ^Vherc the defendant's solicitor was sorvnl with a short notice of motion, which was admit- ted to be defective : — Held, that the defendant was not entitled to the costs of counsel attciidiii. on the motion merely to show that the notice wa- irregular. II ((//<"/• v. Clari.-<, 11 P. K. 130.- Wilsoii. The Administration of Justice Act, 1SS5, li.i- not conferred upon local registrars of the llii;! m ( .1 irt the pow inter anioun aists ill force. ,ririi V. Till II ;iO.-15(iyd. '[ion an aji] till's party an ii'c for settlint.' iiiunter claim null r V. Sr/iiin .'iT. —Wilson. The discrctii A fee at the t .\ counsel fe [ir enlargeiiu Iiixcd. J/cCii i;..y(l. According b ilic bar is el -tipulatioii. t MM niit in resj liv him, and m; 111 reimiiK.'ratini fV ill violation iiHinber of the \v:is 1 eta i lied b\ I'lMiUsel before 111 Xova Scoti -tipnlatioii to t ii( iiiust be dee tlie usual terms ale rendered, a 'if right and rcil tile lex loci conti ih'ld, t'urther, t .Act bST'i, s. lit l':ir tln' remedy luimedy r. IJr Hunted upon. ;4.''i. See /'' //■/'( V. I m. p. 14-_'. S( I!, ")()!• ; Mnijiir V. Ilruillii/, Ih. \l 14,S. (.1) ir; A taxing oliic the expenses ol .-ubpieiiaed to a1 pRjvcd abortive ;uisc the defeiK jil'oduce. The ( tlio costs of till nugatory by tin. w itiief-scs were s iiliortive trial, iiiunied trial up I'liild not be i Held, that in re !-iib))n'nain<,' tlu ill'' otHce did n hi V. lYo.tci; ii'Ltioii L'iven hi in,,hlf l(ll_lt. The plaintiff iiii.ssioiis of the tor discovery, t 1 If of till' M|!t, iiaiU- liy liiiii was awim it i-'Diitiiirr .1 At tlic tiul idc tlii'>;ilr, ally til I ,i\ <>t' tile (.■(iiiit -'H a t'oiii.iii was (inliTni t tin: acti"|; igainst lull, •jil, 11 A. i; 202, ).. 1. as to till- .t tip attoiiil 1.1 )t lie li-iitl,\ liriii Firi li- ;i;{9.-ji..,i OUS lldt I'l' services im The iiliji I : nival lie ;-r,ili to all iti n;- lelusive, liut tside of th' le court. It (I (leteriiiiiii. it allowaiiet of witllCSM s 'es 104 aii,i s to matt' I- Hall, I ,ii. — ISoyd. (Ill account ivill he co.-t? has iiiailc ittciidaine. P. i;. •j:.o. waii seivvii was ailiiiit- lU'feiidaiit 1 attciidiir: notice wa- ii. i;it». - t, 1885. k\> f the llii:l 11 COSTS. M: (dirt the jiower of taxini,' counsel fees of any ^niter amount tli.in i.s allowed hy the tarill' of iii.-ts in force. '/'Ill liiiiikiif /!rilis/i Xnrlh Am- u'i'ii v. Till \l'i'.-/ O'loitce-itti; II I'. It. I."i7. -Wilson. The discretion of the t.'ixint; ollicer iis to conn- 'A fee at the trial should not he interfered with. A counsel lee of .•?.") for each necessary and pro- [ci' enlarjiiinent of a court motion should lie Cixed. MrCiilliiiii V. MrCilhini, 11 1'. It. IT'.I. - lieyd. Acconling to the law of Queliec, a iiiemher of the liar is entitled, in the alisence of special ■tiliulatioli. to .-iue for and recover on ai|uantuni mi luit in respect of prufessional services reiiilered liv him, and may lawfully contract for any rate ill remuneration w hich is not contra Imnos nuires, i.r in violation of the rules of the bar. When a !iicud)er of the liar of Lower Canada ((.Uieliec) was letained liy the <,'overnmcnt as one of their ciiunsel liefori.' the l'"islieries t'ommission ."^itliiiL,' iu Xovii Scotia: — Held, that in the alisence of -tipulation to the contrary, express or ini[ilieil, 111' must lie deemed to have lieeli employed upon the Usual teinis according to Mliicli such services iirc rendered, and that his status in respect Imth "f riuht and remedy was not atlectcd either by tlir lex loci contractus or the lex loci solutionis : — lit Id, further, that the Petition of l!i<,dit, Canada Act 187(1, s. lit sub-s. 3, does not in such case liar the remedy against the Ci'owu by petition, lunnedj' '•. I'rown, 13 C. 1>. N, .'"I. (177, com- iiKiited upon. I'lij'nui v. JJoitIn, !t App. Cas. See Pilrie v. (Iiiilph Luiuln'rCoiiipmiii 10 l*. II. i;i)0. p. 14'-. See also Inijfuiii v. Iiujraiii, 10 P. II. r)l)!t ; Mmiiini v. Mu'jiirn, I h. 570 ; Bntdli;/ V. J!riiil/i I/, 111. 571 ; LuUmilv v. Lnlomh', 11 P. U. 14.S. (d) WitiUds/i-i-'^ and Siihpiina.i. A taxing ollicer refu.sed to allow the plaintiffs the expenses of seventeen witnesses who were .-iibponaed to attend a trial at Hamilton which liroved abortive, the trial being postponed be- i;uise the defendants had not obeyed an order to [ii'oduce. The defendants were ordered to pay the costs of the hearing at iramilton rendered iitijiatory by the postponement. The seventeen witnesses were subpienaed to be examined at the iilioitivo trial, and were examineil at the ad- i"urned trial upon matters which the judge held '"iild not be interfered with by the court : — Held, that in refusing the plaintiff's the costs of Mibiiieiiaing these seventeen witnesses, the tax- ing iitlicer did not erroneously exercise the dis- rtvtiiiii given him by Pule 442. ( *. J. Act. Cliris- '"liliir V. A'cwu ct al., 10 P. J!. 149.— Proud- lout. The plaintiff not being bound to rely on the ad- missions of the defendants on their examination for discovery, the costs of procuring the attend- ance of a witness to prove what was then ad- mitted should have been taxed. Ali.i'onln' v. Sriiiiiit Trii/tli'i'n of Oloiirmli r, II P. It. 157. — Wilson. Where there i.s no daily percmjitiiry list of cases at the Assi/es, it is necessary to keep the witnesses in attendance from the llrst day, and the fees for such attendance should have been taxed. III. See IJiill 1 1 III. V. fniin/iliiii rorviV Co., 11 P. P. •_'5(i, |i. 140. See also //(;//■((/// v. Iii'jfuiii, 10 P. II. 5(i'.( ; Mmjiini v. Mii'jiirii, I li. 570 ; Jlrml/iij v. Ilriiillii/, III. 571. (e) Olliir Cii.if.'i. The defendant brought into court with his de- fence a sum which he iile.ideil was sullicient to ;inswei' the plaintill's claim, and the judge at the trial tiuding that it was sullicient, directed jildg- ment to lieentered for the defendant, with costs:- - Held, that the judge at the trial had a discretion to deal with the (|Uestion of costs, and having exercised it, the taxing otiicer hiul no alternative but to t:ix to the defendant his full costs incurred, as well before as after the p.aynient into court. Siiinll V. Lijiiii, 10 P. K. 'J'-'.'}. -Cameron. The defendants were the same in all three actions. The actions were brought against the defelidant.s other than the company as wrong- doers. They Were sued for an alleged conspiracy to defraud, which it w.'is alleged they carried into effect by defrauding the iilamtitl's respectively. The defendant .McLe:ui defended, meeting the' charge directly. The other defendants did tlie same, but they fui'ther said that tlu'y obtained their inl'ormation from McLean, and that they believed it to be true, and believed that tiie state- ment made by them and .McLean, which was the foundation of the actions, was true ;- -Held, th.it the taxing ollicer was right in allowing two bills of costs, one to the defendaut McLean ami one to the other defendants. When the actions were in the Court of Appeal, Purton, .1. A., made .in oriler that only one appeal book should be printed for the three eases, ami the three eases were argued together : — Held, that the taxing ollicer was right in allowing separate counsel fees in each case, (^^ua're, whether the appeal should not have been to a judge of the Court of Ap|ieal, instead of to one of the Chancery division. Petr'ic V. GhcIiiIi Luinlur CoiiiitiDii/ it al., Sliirurf V. (i'i(il/ili l.timlicr ('onqianii el al., Inijlix v. Uiii'lph Liniilifr Compnnii it al., 10 P. P. (!<•". — Ferguson. Upon an appeal from the taxation of the plain ' tiff's party and party costs :— Held, the costs o a sinr.liter with jury notice were properly dis" allowed, Alixamli r v. .Si-lmol Tni.itfri of' (Ihrn' center, 11 P. P. 157. — P'oyd. Instructions for the examination of the plain- tiff, and of the defendants, each 8'-'. 00, should have been taxed. / h. Attendances to bespeak copies of depositions of pirties on their examination for discovery in the action should have been taxed. / li. A fee for attending to hear judgment on a day fixed, when the jutlge deferred it till a subse- (luent day at Toronto should have been taxed. /h. Sbhs «/% fa lOis S!=» 143 COUNTY COURT. lU 145 A ffo for atteiuliiig to licar jinlgmuiit at Toronto hIiouM liavcr l)C!uii taxijil, altlioui,'li ii feo on a jire- vioiis attriiilance, when jiiil>,'iiiont was (Iffcrruil, liad liei'n alloweil, ainl a clrir^'i! for auniling a telci^raiii .dlvih V. Newell, 1!) (;. L. .i, 2."),'i, distinguished. .1/. Calliimv. McCallnm, 11 P. It. 17!).-I5(«yd. lOUXSEL FFK. Sen Cf)ST.s. COUNTEIl CLAIM. ■SVc I'l.lCADINii. COUNTY COURT, I. Jl'ixje. 1. Ah LiicalJti'.lijc of llic Hhjh Court — V" Pkactick. 2. Apitial to, from Court of RviHaion — V . AksKSjMKNT AM) TAXliS. 3. Mandamu* to — See Mandaml'.s. II. JURISDIITIOX. 1. Li'piiilati-d and Cnliquhlntid Clnlm^. 144. 2. Title to Land in (Jui_.i/ion, 145. 3. Ihplcriii, 145. 4. Othr Casei, 140. 5. AppHrationfor Full Costs — SVe Costs, in. Practice, 146. IV. Api'Jcal FiiOAr, 14". II. Jurisdiction. 1. Liquidatiil and Unliquidated Claims. The plaintiff purchased by sample from the de- fendant two lots of barley consisting of ten aiul five car loads respectively. On receipt of the 'lirst lot, the plaintiff, alleging that the bulk ditl not correspond with the samjjle, claimed 8-00 for inferiority in (piality. The defendant dis- puted any liability, and the plaintiff threatened to dishonor the draft which had been drawn on him for the price. In order to sustain his credit with the bank, the defendant telegraphed tiie l)laiutiff to accept, and that he would accept jilaintitf's draft Anit for the ju- .iware of it, li;i -l.diiction of 8 !ot of tive car h 11 the same gr ;iiy the dufeiul •I'lit a chei|ue fi ■j.illk to piy till •'.'(Id elaini'Ml in • ■iiilant tflt'gra] Irift. Will be flic ))laiiitilf li;i the dcfciidaiit ii k'M, reversing; iT liiirton aiii ;-■<•-.'( Id anil .810' d of the |i irti tlRM'i'fore witliii I'liiirt. and th.at IVr Hagarty. (' -itlicr demand ■;isi' iiad jurisdi •liilii|uiilated cti 'i;is jurisdiction t "iiises of ai.'tion I'lii!,' as each doe .'R^ijate does not ^Wl'". /•'/■. 13 A. The plaintitf liiiino for 8100, t two years, with i'iic piano was d ■^idciici;, who alt.; t" retain it, and the t^: ';i.ilateil pi .-lied the defenila ui;' the 8400 am was given t<< st UTest'' :— Held,t hy the act of tl having neglected :ho plaintitf was Hrgomlssold and KiA. R. 481. 2. Tith The defendant '.litii one .S. ac(pi Liiid for the pur flierc was no (leni :hiiig in the agrei tenants of S. T that S, M'ould n those of others to The <|uestion wli -Mioli an interest iiiiliiiund cattle w title iu the sense tion of the Count •'/,, 12 A. R. 2 In an action of Cijiirt of Haldiina ton J ants from the roinoved to the c tained until reph tould not be justi the arrest of the j 10 14.^ COUNTY COURT. UtJ [1 the lie- ten ami of the bulk .li.l led S-'OO ant (lis- reateiied rawn on is credit lied the accept |il:iiiititr'a draft for tiic S-Ol). Tiio defendant's limit for till! |iri(;i', thoUKli 11. c (Iffomluit was not iW'U'u of it, iia'l then l)een paid liy i>liiiitill. A .liiliiction of 8100 from the |iriec of tliu aeeond lut of live ear loads was sidnerjUi'iitly demanded 111 tile same j,'round, iiiid the jil lintill' refined to p:iy the defendant's draft fur that lot nnlesi he H-iit a eheijue for that an- mnt and instnu'ted the itiiik to ])iy tlie iiliintill's dislionoiireil draft for S'JdO elaim"d in re^jn'ct nf the tlr^t lot. Tim de- vii'lant telei^'rajilieil tlie jilaiiitiir, " Aeeept my Iritt. Will he down Wedn-s lay and pay you." I'he iilaintitl" liaviii;^' jjaid th' s •, nnd ilraft, sued the deiendant in the County < 'oiu't fur .S.'tDI) : - liel'l, reversing; the jud'^nient of tiie court lieliw, iri' Ihirton and I'atter.-si'n, .1,1. A., that flii' sums ■.i.*J(IOand.-?l(K) were l>'>th liquidated hy the iL't of the)iirties; that the vviiile dom in I ivas tliereforc witliin the jurisilietion of the C unity ('i)urt. and that plaintill' w.'is entitled to recover. IVr Ha^'arty, ('. .1. ().— Without deoi.lim,' tliat . itlier ilemand was linuidated, tlio court in tills ise h 1(1 jurisdiction. It cannot entertain any uiliiiuidatod cause of action over •'''•JO(h liut it ici.s iurisdiction to try anynumhcrof unlinuidated ■:uises of action in debt, covenant or contract so lull!,' as each docs not exccnl -SlIOO, and the aL,'- ,'ivu'atc does not (;\-cc(!d .'^lOl). }[•■!, itihih'i, i \. :\. 'I'lie pi lintill' a!,'reed to sell the defendant a liiiiiio I'lU' .'r^lOO, to be paitl by notes at one and TWO years, with interest, with a reliite for i:ash. Tiic piano was del.Vurud at the defendant's ro- -ideiiei,', who alter isiii;; it fm- some time object" I t ' ret;',iii it, and refused to ujive tlio notes or jiay the i^- jalated price. The jdaintill' thcreu|ioii -ueil the ilefeiiilHut in the Countv (-"oiirr., claim- aii; tlie .S400 and interest. At" the trial leave was eiveii ti> strike out the words " witli in- terest'' : — Held, that the amount was asi'ertaiiied liy tlio act of the parties, and that defeiulant haviiiL;- ne;;lectoil to ]iay either by notes or cash tlie plaiiitilt' was entitled to recover in an action fur yooils sold and delivered. (I'reeitiz'.'ii v, Jiarn.^, h'lA. n. 4S1. 2. Tilh'. to Lrni'l in (J tuition. The defendants by an agreement under seal with one S. acquired a right of user in certain land for the purpose of pasturin.; their cattle. There was no demise, or ri;,'ht of di-itres.i, or aiiy- tliiiii,' in the agreement to make the defendants tenants of >S. There was, however, a covenant that S. would not allow his own animals, or those (jf others to enter u|)ou the l.-iiid in (jiiestion. The <|Uestion whetlu.'r S. jjave the defendants ■iieh an interest in the land as entitled them to iiiilinuiid cattle was held not to be a ciuestion of title in tiie sense that it would oust the jurisdic- tiuii of the County Court. Gyahaia v. Sih 'lunic ' ''/., 1-2 A. K. 2(il. ■S. licplerin. In an action of replevin brought in the County Cuurt of Haldiinand for a mare taken by the de- i loudants from the plaintifi''s close in that county, removed to the county of lii-ant, and there de- tained until replevied :— Held, that the taking v)\\\{[ not be justified under a warrant issued for the arrest of the plaintiff on a charge of stealing 10 ' the mirc ; and although the original takiii;,' was jiistilied under a search w.iiraiit issued in llaldi- niaiid, to search the [ilaintilV's preinisos in Hal- dimaiid for the mare, and to briiiu' it liefore a jus- tice of that county, yet the sub-iei|iieiit removal to the C'Hiiity of Ih'.int and detention there were not. and constituted the defend iiit a trespasser ab initio, an ) N in Hraiit. Jloor.fv. C,;,i., ,t a'., \'l A. Pi. T'i. 4. Olhv)' ('u,}.<. (,> laT ', whether in a proeee liu^' bef.u'e him, ii County < 'oiirt judge can of his own motion ex.i- mine proceeliiigs pending in a division of the irigli C'ourt ; but— Held, that the defendant shoiM have beiui allowed to prolue(! such [>ro- cejdings in order to luett technieil objeetioiis as to the state of the cause not being shewn. If'i'- /!iriA,ror/hv. I[<,il!i,;tsir„rth, 10 P. I!. .^S.- -Wil- son. Wiiiu'c, aftir judu'nii.'nt in an action in the C cum i:i I'le is Kivision, an issue on a garnishee application was directed to be tried under Rule ?u'A, M. ,1. Act, by 11 e lunty judge and jury .— ll.!l, that such judge had no jurisdiction to nuke an order to produce before tri vl, and cui- se |ucutly no i ahoriry to make any order mi a failure to [>i ■ ■ iuce. <'(ji-h /• oivler references in op|)osed cvvjs. II7(/''.' v. /; ^ /(.■/•, 10 p. P. 5:^1. Poyd. A judge of a Ciuinty Court, act!: f under the anthiirity of 4S Vict. c. 2ti, s. U, (t)nt.), ri moved an assignee for creditors and substituted aiMther assii;iiee. The tirst assignee, as allegeil, refused to deliver over the keys of the place of bu-iness of the insolvent to the second tissignee, and the judijc made an order for the i:,.-,ue ut a writ of .at- tachment .against the first assignee for contempt ; — Held, that the judge, in acting nmler the sta- tute, was not exercising the powers ot the (..'.cinty Court, but an indeiiendeiit stitutory jurisdiction as iiorsoiia designata, and had therelorc no power to dir.tct the issue ot a writ of atttaeluuent ; and |irohiI)ition was ordered. Re Pn'-quttk, 11 P. P. 4ij;i.— Wilson. IPdd, reversing the judgment of Proudfoot, .1., O. 11. 274, that the status of C, as a person, or the assignee of a person, who registered a plan, was a ip.iestion of law and fact combined for the County Judge to determine u])on C. 's application to him, under P. S. (.). c. Ill, s. 84, to amend the \Am\, and that his decision was not extunin- able ill pr 14; COURT OF APPEAL. lt> judfjiuciit fortliedefcndiiiitx :— Hi'Id, tliat inidcr IJiilf 4!)U (). J. Aft, tlu' saiiio ]iii\vir is I'xtindiMl to the ('(iiiiity Cmii'tH as is pdssi'Si-i'd liy the Higii ('ee Ft r(jn. .1. Act, nioxe against it liefore the judge himself; and an appeal to this court may, under -45 \'ict. c. (i, s. 4, as properly he hrcught from the i\isiou v.VV..I/w.v/ ■-!)/;/, 11 P. 1!. •-'()(), ji. -V, See also M <_■ l\t ir.iv it nl. v. Ihiiini/, P_' A. 1.'. .'!IT Col'KTdl' APPKAL. I. Wiii'.N Aii'KAL Liiis, 148. II. TiMK Koi; Ari'K.vi.iNci anh Xotick, UH. III. Bonk AND Sr.crmTV, l.-)0. IV. Pi;A(Tn i;. 1. Arix'i' l!"o/.--; l.V_'. '2. Oili' r C-2. \'l. Ai'i'KALs iKdM CoiNiv Coriirs — .V ( iiiNi V Col i;r. Vll, Mi^cKi.i.ANr.ors Casi;s Kki.atinc to Ai I'KAi, (;r.M;i;.\i.i.v— .V(c Ari'KAi.. I. WllK.N Al'l'KAI. LiF.S. Upon an application liy the Churchwardciis ( • St. .lames's Church for leave to appeal fr, lint would himself, if the contention should pre vail, lie lienelicially entitled to the fruits of th^ litigation ; and that the apjilicalits had not .-ml, an interest as entitled them to he made jiaitii- to the action ; and the apidication was thenini, refused. The event rendered it unnecessary I consider whether or not the application was pin- ]ierly made to this court, /.cn'jlri/ v. JJniinmlii'. 11 A. 11. 544. The plaintitl's hy their agent, Patrick U.ii April, 1877. procurei' a judgment to be sigmi against Peter P., the def- 149 missed, withoi 11 A. 15. (;73. A motion t( ;!ic jlldginent ,;|ii'ii the trial .r.iiiud that th lint ajipealabl missed witiiout liiing divided ii ;iml i>sler, .1. an interlocutor riH. .). Act, a ii;ivc been no n .1. Act hy a dir ;!,■> precludes su though there is lii'iird by a Div ■iniu tlu: order ;iitt ilociitory th ;,n appeal lay ' IVr lUirtoii ani >a linal adjiidic aid is only inti •tip in the intei wlinle are intc I'i^inal actik U.. for jMii t til gli li,v I tluTl-'ill. wlio plli'l itiiiu, Ar- cution t' The t\- ImiH'iit ;i- nd to lie IK-ll (itllil lu'h a|i|'l:- 01' St'ttlll. iiys in til' ri'i'uy til' K-A llV tl-i lens Pivi- ion (if til'' I's' turth.r rs (it thi- ;iH(instli;it luit ;i;;iii' c indililH'' I v,-as iliv luis.^etl, without costs, ScliV'i'dvr cf al. v. lloom'tj, 11 A. U. ()73. A nidtioii to (juash an ai'l>eal to this coiiit from the judgment of I'Vi-gUMin, .1., (i» (). I!. ;ji4), npiin tile trial of an interjileader issue, upon the ;iiiiind that the decision was interlocutory, and iiiit apiiealalile under s. ■'{.") O. ,1. Act, was dis- missed witiiout costs, the mendiers of the court luin;,' divided in opinion. I'er Haj,'arty, ('. J. (>., :iinl(lsler, .1. A. — The decision in (piestion was ;i!i interlocutory order within the meaning of s. ;i."i ' •. •!. Act, anil one from which there would have lieen no relief liefore the passing of the (.). .1, Act liy a direct appeal to this court ; and see. ;i.'i piecludes such an appeal under the •), .1. Act, tiiiiiigh there is the right to have the order re- hf:ud hy a Divisional Court, and an appeal lii.'S nmii tilt: order on rehearing, which is not less interlocutory than the order at the trial, liecause 111! appeal lay in such case before the (). .1. Act. I'ei' llurtiin and ratterson, JJ.A. — The decision .-,1 linal adjudication on the i]Uestion of projierty, iinl is only interloeutory in the sense of lieing a -tep in the interpleader proci'cdings which, as a whole are interlocutory with rel;ition to the iii;inal action. IJut an appeal lay lieforc the Judicature Act from the decision of an inter- I'leader issue notwithstanding its interlocutory iharacter. Therefore, this decisio'i lieing the decision of a judge in court is appe.dahle under ■I'c. 'M and is not within the restriction of sec. :i.'), I'er (,'uriam. — l!ule ."ilO does not give a liulit of a])peal fi'om the decision in iiucstion, for it is in terms limited to the tiial of .u tions, and 'aiuiot lie extended to the trial of interiileader issues, <,tu;ere, per Patterson, .1. A. , v.hethei' the term "interlocutory'' in section ',\'> is not Used in the same sense as in -1,") \'ict. c. (i, s. 4, Out. ), as denoting the character of the decision, mill not the stage at which it is ]ironounceil. Mc- Audrew /•. liai-Uer, 7 Chy. 1). 701, discussed. W'hU'ni'jy. Ihirrii, VI A. l;. ll'.l. See 4;» X'iet. '. U), .s. 8!) (t)nt.) The ohjection that th.o judge at the tri.il should liiiihiclf have decided the issue as to failure of u'lisideration instead of dirt'cting an ini|uiry lie- 'iic the master is not one that tlie eonrt « ill en- tertain. Ftdl/iir.-'foii' V. Villi Alhii, i'JA. 11. \Xi. Appeal from an onh'r of a judge of the High fiurt for the winding up of a com]iany under 4.") Viet. c. '_'.■>, (Doni.) See A'r I'liioii /■'iir /iixiinmri' mijiiiiiii, l;j A. It. '2()S. .■\ppeal for costs. See Wan^hij \. SiiiiiUii-iiikI, 11 A. i;. 4.S!), p. i:v.). See Hull III \. The Mcrcliiint" f)i ^/m/rli Cum- 'Diiiiliil., VI X. l;. ()40, p. l.'il. See also ''oiiiiuv ^.ViiHiiiUdii I'dii/ic Ji. ir, Co., mil/ f/ii ('iniiiiliiiii I'ont'r /;. ir. ('(). V. Ciiiimr, V2 A. U. 744 ; J,'i ■ •I'iMv. Kii. i:? A. K. r)i.'(i. 11. TiMi; run Aiu'i:.' i.iMi .vnd NutioI';. A plaintilf was advised hy his solicitor on the li'lof .h'.ly of the judgment of the cou.t given on lie llUth of ,]uiu'. lie did not see his solicitor i-'aiii until the "JOtli of August, when he, for the list time, learned that he should have caused notice of appeal to ho served within a month fron' e rendering of the judgment. (Sec. 8S, (). J. ii^t) ;— Held, not a sullicient ground for giving nvc to appeal, and thus denying to the party Would havt' the from a judLinient who had ohtained the judgment of the court the right to have it enforced as promptly as the rules and practice of the court will permit :- llild, also, that the fact that the iilaintill might lie pre- juiliced in another action against another party in another division of the Migli ( 'ourt of .lustice, hy this judgment, was not a ground lor gr.inting the indulgence sought. 11'///.// v. Stmnhn-'l i'lV /ii-:itr(iiii-i:(.'itiiijj(iiii/, 10 I*. K.o4, 40.— Cameron. — (,>. 1!. I). A notice served on Monday, (V'toher (ith, of an appeal to the Court of Apiieal from .'i judg- ment given on the Ith of Septemher, \\as iield too late. W'liiilit V. /.,//s, 10 I'. 11. ;r)4. -Daltoii, .l/«(.s/r/-. Semhlc, i;. S. O. c. :IS. s. 4(1 elTect of iireventing an appi'al more than a year old, unless have were olitained from the Court of Appeal ; hut if new evidence were admitted, and the case heard anew, the time forappcaling would run from the date of ' he later judgment :— Semhlc, also, U.S. O. c. oS, s. '22, was not intended to a|iply to new ly discovered evidence. Synod c. I)el51ai|uiere, 10 T. K. II, followed. /inn/.- n/ J!ri/i-^h Xm-lli ^liU'ii" v. W'rsf'l-ll -l-s.s'd ;•(()((■( ('oiill''iiii/, 11 I'. It. lo'.— I'roudfoot. A notice of iijipeal to the Court of Apiieal is not an initiation of the appeal. Where notice was served, hut the security rciiuired hy sec. US, (). .1. Act. was not given : -Held, that there w.-i.s no appeal pending, and a motion to set aside tin; notice of apjical, or to dismiss the appeal, was dismissed. Smil/i v. Sin'ii/i ./ "/., 11 I'. U. t'l. — I >;dton, Mii-itir. — Rose. Cross aiiplications in respect of the same >uli- ject m.itter were argued together, and both w no dismissed liy a jiidgnieut proiiounced on the •Jlith April, KSS."). The i|Uestion argued was an im- \)ortant one, vi/., the ultra vires of an Act. Sepa- rate orders were taUeii out dismissing the two ap- plications, and the time for appealing from both orders was extended till the (ith of .luiic. on which day one of the ]iarties gave notice of ajipciil from the order adverse to him. The other party, who was not desirous of ajipealing unless his op- ponent appeali'd, was aiUised too late to serve notice witliin tiie time limited, and therefore a|i- lilied after the exiiiration of the time to have it extended: — Held, that it was a proper case for exercising a discretion in favour of the applicant, and leave to apjieal was accordingly granted, /V. I.iihi Siijii rinr Xoiiri Co/'/ti r Coiiiprnii/, II I'. I!. ;i(j. --I'roudfoot. Ill, IJiiNii .\Mi Si;i ^l;l^^". The condition i^i an a]ipeal bond in \\ Inch the defendant was a surety was that the appellant would etl'ectually prosecute his appeal and pay such costs and damages as might lie awarded iiv case the judgment ajipcaled from was allirined. The appi'llant discontinued the ajipeal pursn.int to It. .S. (), c. I!."), s. 41, which enacts that " there- upon the respondent shall be at once entitled to the costs of and occasioned by the proceedings in appeal, and may either sign judgment for such costs or obtain an order for their payment in the court below, and may take all further proeeed- ings ill that court as if no appeal had been iirought. ' The registrar, to whom the matter was referred, assessed the danuiges at the respoii- «/« t8S 151 COURT OF APPEAL. lo: dent's costs of opposing the appeal : — Helfl, atiirniing his finding, that tlie judgment had been affirmed by the diMcontinuance, and that these costs had l)een awarded to the respondent by virtue of section 41 : — Qu;urc, as to tlie meaning of the expression "efl'ectuallyj)ro8ecute." IluivisK'nal Court, before the time for appealing to tliis court had elapsed, and while an appeal was actually pending. The order of tlie court below, even if interlocutory, was appealable nixler tlie language of the ( 'ourt of Appeal Act, and as the penalty of the Ijond was !?1,000, and tlic defendants' costs exceeded that amount, the sum in controversy was sutiicieiit to warrant an appeal, and it could not be said that it was a matter ,«o entirely iu the discretion of the court lielow that this court would not interfere. The right of appe.^.l conferred liy the Judicature Act considered :— Qua-re, (per Burton and Patterson, J.I. A.) whether the ortier iu appeal was interlo- cutory :—(,)ua'rc, (per Osier, J. A., and (jialt, J.) V hether sees. 33 and 34 O. J. Act, apply to ap- peals from interlocutory orders. Jlatelf/ v. Tht J/trc/iaiit,^ JJesijaU-k Vovipami et al., \'l A. K. As to appeals from taxation of costs in Coiit ot Appeal. See Petrie\, (judph Liunhtr Co. da. 10 I'. B. (iOO. — Ferguson. The plaintifTs had succeeded in respect of thi ' title made under the judgment in partition, ao'. . not for the estate of the grantor in the meuiori.il ' and the etl'ect of that ju juvisdiction, a |""1 i-'i iiuinal, have '^•■^ ft cimsuetudo 15: .);3 COVENANT. 154 Where an appellant omitted to take an objec- ; imi in the court Ijelow, the court on allowing an iipeal on that ground, refused him his costs of ppeal. (rarrett v. lioherts, 10 A. li. 050. Seo Wamkyv.SmaUwood, 11 A. R. 430, p. 139. OUKT OF ASSTZL OF OYER AND TER- MINER, AND (iKNEltAL GAOL DELIVERY. Held, Wilson, C. J. dissenting, that the Court : Assize of (tj'cr and 'J'erniiiier, and (iencral i.aul Delivery is now by virtue of the .ludicature Ad the High Court of .Justice. Ji'^'ihid v. /liint- luptaL, 7 O. R. 118-Q. B. I). There is nothing to prevent .i judge sitting at tiiu Assizes iieariiig a chamber motion, if he is liisposed for the purpose to treat tlie court room as his chambers. TIk' Sar)>iit Aijrlciilliirid Im- ikritdit Manvl'adurhiii Conipam/ v. I'rrdiic, II ■p. K.— C. P. b. COURT OF ItEVLSlON. Se-i ASSE.S.'' Com/iaiiy itml The Teh- phoit" Maniijiielurinij L'iiiii/)ani/ (Uid Tin. Minitifr,- of Aijneulture, 7 <>. Jt. liOo. Semble, the court has no power to turn a peti- tion from an award of arbitrators un> 1 1 ah v. lironb', 10 P. R. 2.57.— Gait. Reversed, .S'. C, II P. it. 296— Q. B. D. See Reijina v. Banliug el uL, 7 0. R. US, pp. 105, 1(57.' II. Conflict of Cases. OxnEPv Courts Titles. Lamjtrn ' Its in Com: IV Co. >.(«■ l)ect of tb Ttitiou, .IE 1 meniiiri.v |med iiott and w:i Icoud argii lappeal ^va \r it al I. Powers of 1. Generally. Ikld, (O'Connor, .1., ("■ rsenting,) that the juris j When a decision of the Court of Appeal in I England isatvariancewithadecisionof the ( 'ourt Sec Assessment ' of Aiipealof tins province, the lattershould befol- i lowed here, as the former court is not the court of ultimate ap[jcal for the province : Sutton /•. Sut- ton, 22 Chy. D. 511, not foUowed. Mac Donald v. McDonald, 11 O. R. 187.— Proudfoot.— Chy. D. See also Gndd v. IJeallie, IIP. A. .329 ; Grand Jiinetinn Railway Co. v. Counti/ of Peterboroin/fi, 13 A. R. 420. Sec Their Several lii.'titpu given to the legislature by R. S. ( >. c. 12, Si. 4,") to 43, to punish for a contempt does not list the jurisdietiou of the courts where the of- j dice is ol a criminal character, but that the same let may bi! in one .aspect a contempt of the legis- lature and in .another aspect a misdemeanour. ' Per O'Connor, J., that in all matters and olVences '"lie in contravention of the l.iw and constitution t'li.irliament, with the exception of treason, fel- uay, and lucaehcsof the pe;tee, jjarliament alone | as juris diction, and the ordinary courts, civil Mi'lciiudnHl, have no jurisdiction. 2, 'I'hat the rt c't consuetudo parliameuti reserves to the i III. Other Contracts, 159. COVENANT. I. Generally, 155. II. In Contracts Relating to Land. 1. Generally, 1.55, 2. I'lirfelturc, 157. 3. Covenants Jor Title — Sec Covenants FOR Title. 4. fn Leix.Ks—See Landlord and Tenant. I0C S> 155 COVENANT. \r,i] v J. (;kni:i;ai.lv. The genonil rule i^, that wliorc ynii cannot sever the illegal troiii the legal part of a cove- nant, the contract is altogether voi(l, Imt where you can sever them, whether the illegality lie creiited hy the statute or by the connnon law, yon may" ivject the bail part, and retain the g 1. ^K;/r/,;,>,j V. y/;i7>-s ii ni., o o. i;. 7;w— (hy. I).— Osier. Senible, the ruh; stated in Itawle on Cove- nants, 4th ed.. p. "ilJlj, that when two ]iersons jointly covenant with another, a joint action lies for the covenantee on a breach of covenant by one of tiie coven;intecs only, because they are .'-ureties for each other for the due perfor:;;ance of the covenant, should be limited to the case of antecedent breaches, ami not be extended to ]>ro- luissoi'y engagements in the absence of language imputing such suretyship in regard to future acts or breaches. EUhAl v. .Sdiiitu/, 7 O. I!. ',]oO. — lioy.l. Jl. In CoNrKAiTs IIklatinu to Land. 1. Giiiirallij. M. gave a inortirage to T. on certain lands. The mortgage was in the statutory short form, oxce[it that immediately after the printed cove- nant for iKiyment the following wonls were in serted in writing : "It t)eiug understooil, how- ever, tiiat the said lands only shall in any event be liable for the payment of the mortgage." The distress clause remained unerased iu its usual place, vi/ ; after the covenants. T. assigned the mortgage to H., who, on an instalment of interest falling due, distrained for it. .M. now brought this action for a wrongful distress : —Held, that ,M. wasentitleil to recnver the amount distrained for witii interest and costs, for the earlier pro- vision controlled the subseiiueut one, both be- cause it was lirst iu the deed and because it was in wi'itiug, and the words supera. 15. 1). •27."), billowed, as to the right to recover moneys paiil under protest. McKa;/ ;• denei' with the necessary outbuildings inclucliii. porter's lodge." The land having been sold uii'le a mortgage, a portion came again to the hauil^n; I)., who [troeceded to convey parts of it for IjuiM- ing purposes : — Held, that I). 's liability uiiil.-i- the restrictive agrei:nient not to i)nild ou \\v\\<:- vue sijuare, revived on his again accjuiriug tli'.- pro[iert3'. Von KoU'ilmd v. Daufun, 11 A. K. (J'JD. On the 1st December, 1S70, A. M., by d. 1, conveyed certain lands to his grandsr>ns \V. M. and l>. -M., as tenants in common; and on tii' same day an agreement in writing was ina, \\ agreed to pay the following sums of money, ai:. fidtil tlie .•igreement, namely, that W. .M. and l', ■M. should thenceforward support their ninth-!'. the plaintill", and furnish her with rcasonaipli. suitable, ami comfortable board, lodging, aiil elotliing. and medical attendance during herli;'- time, ami maintain her in a proper manner; aiii in tiie event of any disagreement hetw ecu W. M,. I). M., and tiie plaintilf, whereby she wouM i-^ obliged to leave the said premises, they weivi' pay iier So") a jear in lieu of such board, ^V ., and, if not paid, to lie recoverable by suit at law, The covenants, payments and annuities to !■ chargeable against the said land. Tiie plauit;:' was no party to the agreement. On the 4t:! October, IS7'J, the defendant W. M., for a imui;- nal consideration of .SI, 000, conveyed his uii'l- videil half interest to the |)laiutilf', but of ulii :i she said she was not aware ; and on 1st .Maivii. 1M77, she reconveyed tiie same to W. .M. " ; re from incumbrances." On I'Jth .lanuary. ISS'j. h. M. sold his undivided half interest to C. , m\A i conveyance was executed, l)ut the sale was iiei carried through. (Jn '27tli .Seiiteniber, ISS;!, 1 .M. sold his said interest to (i. A. 15., and, tos;i« registration ch irges, the conveyance was iiul^ hy C. to U. A. 15. Ou -JOth March, 1SS4, <.. A 15. conveyed to 10. and S. , who in May, i^'^J. ejected the plaintitl' from the laud. The a,'ivO' ment was not registered until '27tli January, I.SS'2 : -Held, reversing the judgment of •■.ill. .1 ., at the trial, that the agreement did not creaU'l a rent charge, as no power of distress was oou ferred ; that if eitiier ,i rent service or rent sivk there would i)e a right of distress and a|)[iin'ti'iii' mcnt, but if neither, liiit a covenant chai\i;'''t land, performance of it would be ducroeil ; tliii uiioM the conv tiic V. hole ehai ifiportioi uieiit Iffiiidan ^ wa.s a:,aiiist I). M."; hail' Is of 1']. an wciv purchaser Cfi-i::/l(/ uL, The defendai tttitor of ,1. I). :liu agent of .M lateral security a;,'ei.t, in all ah executed an asH '.'. a legatee uii piisi; of securiiii -aiiie time givii 5anie object. I >ueli mortgage, .'jiiity of redeii iiwrtgage ; that iirjre than their .dniuld convey tl for .s.'iO, by eo-n -iihseipiently H. c'l from S. C. ai the H. mortgage, ■'ivenant of .\1. tor an alleged eoi a I'liiiveyauce of afteruards sold aMKunit of H.'scl (-'., did not excee -tituted by H. a<, ivvcrsed the jm' i'ivision, !0O. Jt. hi;,' H.'s dealings r I enforce pavme McLutii, i;'} A. The defemlant j III v,liii-h hi' cove iii"'iey in nine eipr 1 1 elear up and fei li»e years from tli i'uild a log house ;iiiil there was a -hoiild immediatel ti-i' default being n 'leariiig the lai'id iii'-'iitioned." Xo, the iniirtgagc mom I'liilt until about a lirsl year, nor Were tiiaii ten were clea was entitled to ins t'-ililed terms of ]);i lireaeh of covenant and to judgment 1 I'lit should have no i'li'feitiircs fornonp iMses for neglectiii" ■""•liielHlofanltlik a-'iinst: Senihle, ''•■■''ii the not ]mtti fiMtin-e would have cle.iring of the lan(' •lilt covenant :— Si ^■'iiee eipiitv \\\\\ \u """I'tgage'thaton COVENANT. 158 oiiuv, aiH M. and I' llMtil-!'. j:lSnll:|ii;' . linji. :U;. hLTli> lllirr; :il, .n\V.M,.| •y wi'iv t • (KU'll, iV.M ,nit at l:i«. :io.s t.i !i; |il:\lllt;" tlK' V.:. Ill' a limn;- his iiU'li- t (if whi'i it Maivii, M. ■•;iv ,-. ISS'J. II C. . aii'l .i| was iioi iss:!. 1). Ill, tdsaH was iiiaH iS4, ll.A, lay, h^l lio a,'ivi;-i Jaiiuiity. It (if li.ilt.j not, >:\v.\'.<' was c'liii IX'Ut SO'.' |il)liiifti'« liai-i,v,l tuu.l ; till ;i|iiiii the convej'anoi! by W. M, to the iilaiiititl', till! v.liolo charge was not extinj,'iiislaMl, Init an i|i|)irtioi uient took jilaue ; aii'l that tlieroforc afiiiilaiij was untitluil to eiiforci; perfoi-iiiaiice i.,iiiist 1>. M.'.s umliviileil half iiitcrcHt, in the l.iii'U of J'j. and S., wiioni the (iviilenn! .shewcil wti'- purchasoi-.s with notice. Mrdi.-^kill v. .!/.•- '„..;;//(/ «/., \-i o. n. 7>s;!-c. i'. d. 'I'lie defendant M. had in his i)033ess'Kin as (!x- rtiitiir of J. 1). ('. a niortf,'a;.'e of one I!., wliich '.he aj,'ent of 'SI. had deposited with II. as col- lateral security for moneys advani^ed to .su^'ii atjLM.t, in all aliout SlOl). .*iemble, that if the only defiinlt had liieu the not ])utting U]) of the feiiee. the for- fihtiire would have lieen relieved .against, for the ck'iriiig of the land was the snbstintial part of ithat covenant :—Senible, also, that in this pro- Iviiiee eipiity will not relieve ag.iinst a proviso in Uiiurtgage that on default of payment of a jiart of the debt the whole shall become due. (I riiliaiil V. Iloss (i (). K. l.")4.— llagarty. fl. S, by deed dated Xoveinber4, ISli.'i, granted his farm aiul some chattels to his s m T. S. in consideration of .''^"?00, "subject to bo defeated and rendereil null and void upon the non-pert'or- mance liy tile said party of tiie second p irt of the following condition, or any part thereof, viz., tile Slid party of the second jiart covenants to feed, clothe, su|i[Mirt and maintain the said party of tile lirst [lart ' * duriuL; the term of his natural life. ' ." T. S. having fullilled tile condition durin.; Iiis lifetime, died on ( tcto- iier ."), bSi!."), leaving a widow and one child. Tlio widow removed from tlie farm, but oll'ered to take l[. .S. witli her to her father's house, and have him [irovided for there, or to allow him to go to her brotiier's house in tiie same way. both of wliich oilers were declined, and as no niiin- ten nice was provided for him by lier at tlie farm he treated the condition as broken, and brought an .action of ejectment, and recovered judgment, and conveyed the farm away by deeil, and the ilefeiidaiit became the owner by subseipieiit con- veyance. II. S. w.is subseipieiitly supported, part of the tinu^ on the farm, by the di't'end iiit, ;uid died in ISSO. In an action of cjeetm"ut by the infant daugliter of T. ,S., claiming under the deed to ln'r fatlier against tlie defendant, it was: — Held, .ilKrmiiig tlie judgiiijiit of Arm inr, J., I'roudfoiit, .1., dissenting, tliat the grantor was not bound to acce|it the oll'ers niide, ;ind tli.it tlie conditions of tlie deed were broken and tlie l.ind foi'fcited. I'cr Armour, J., (at the tri.d), the deed must be' construed as iieing ni ide n|)nii condition and as Iieing defeated and rendered void by the iion-perforniance of the covenant. The I'f- fect of tlie covenant is, that II. S. w.is to li ■ in liii- tained wherever he inigiit choose to live, but he was not bound to tro to any [ilace tlic covenantor or his representatives might reipiire him to go, and he was justilied in refusing t. , ncitwitlistanding that the consideraticjn for it might liave been in.ukMpiate : — Held, also, that the above covenant was not invalid on grounds of public ])oliey. A covenant in re- .straint of trade is not invalid unless the restraint is larger and wider than the protection of the covenantee can possibly recpiire. Ulc/iar v. iJar- Ihuj, ilO. 11. 311.— Kose. Covenant to warrant and defend assignee in possession of a patent within the territory there- l)y granted. JSee (I'lxcn tt al. v. Wutnuii, 10 A. 1!. 113. By a ecvenaut for p.ayment contained in a mort- gage deeu, given by the defendant to the plaintilF as collateral security for a note for !:3,()00, pay- able with interest at the rate of 2 per cent, a ' month until paid, the defendant covenanted to ' pay "the saiii sum of 83,000, on the 1 1th day of j July, iSO'i, witli interest thereon at the rate of ' 24 per cent, per annum until paid:"— lleM, that the proper construction of the terms of Ijoth the note and the covenant as to payment i/f interest was, that interest at tlie rate of '24 per cent, should be p;iid up to the 11th July, lSi!2, and not that interest should be paid at that rate after: such day if tlie princi]ial should then remain ua- paid. St. John v. /I'ljkert, 10 8. C. 1!. 27S. ; Where there was a covenant by defendant that i one-half of the surjilus proceeds of goods, trans- ' ferred by the plaintitl" to the defendant after de- | duetion of liabilities, should be paid to the jilain- titf by the defendant by his promissory note at ■ two years, with a proviso that should the defen- dant, or the tirm of T. k !S., of which the defen- dant was a mem1)er, dispose of their business, or make an assignment for the benefit of creditors, the note should become due, and S. subsequently retired from the business and transferred to the defendant all his interest therein : — Held, that the transfer by S. to T. was not a breach of the (.(jvenant, and that the time of payment of the note was not ther'-!;v accelerated. Masters v. Thrdhkl, 12 U. 1!. 0'45-(^ B. D. I thereof when erected, and for the rear portii n j thereof whenever defendant should require to n-;..- it. Subseijuently ( '. sold and conveyed his lot t'l j the plaintill's in fee by deed containing the UMial statutory covenants, and the plaintill's entiinj into possession. Some j'cars later defendait erected a building on his lot, making use of tlit rear part of such party-wall, by reason of whii h ; he became liable to pay .Sil.H.dr) and interest tluiv ' for, and did accordingly p.ay the same to C. i;i ' an action by the plaintill's, as assignees of ( .'> interest in said land, against the defendant ti> j recover the sum so due in respect of such wall; , — Held, that the jilaintill's were not entitleil ii? vendees of (.'. to recover, the right to payment of the sum stiiiulated to be paid fm- the wall nuiler the covenant with C. not having jiassed under the eonvey.anee by C to the plaintitTs. Ktiimi v I Macbfiizie, 12 A. II. 340. I Ilehl. that a married woman, though marrin; : before -May 4tli, IS.T.t, was not bound bj' a covl'- . n;int of her husband, entered into by him im himself, his heirs and assigns, as lessor of eertnii! lands, to pay at the ex])iration of the lease fdi's certain malthouse which the lessee was to haw liberty to erect on the demised premises, thmij: the reversion had been .assigned to her luishnnd and another as trustees for her, in such a way that she had the entire beneficial interest, aii^i though the covenant ran with the land : — Hulii, also, that a claim on behalf of the said trustees I'oi rent in arrearand for damages for non-repair was not matter of set-otF against damages reeoveiv-d agiiinst the husband for Ijreach of his covenain to purchase the malth.iu ), though he was one o. the trustees, they nf)t jing matters arising in the same right. Antliruftc v. Francv ft al., 12 0. 11. 450. — I'Y'rguson. See Piatt v. Th,' Grand Triinl; li. ]\\ Co. r.f Canada, 10 O. it. 24(1, infra; VanKom/hn' t '\: Jhia'son, 11 A. n. cm, p. 15(). See also Crav- ford v. Bni/ij, 12 (). 1!. 8. COVENANTS FOR TITLE. I. COVKNANTSlIrNXING wini TnF,LAN11,ir)9. II. Other Coven.vxts. 1. Damaiief, IfiO. 2. Other C'<(s«, 101. I. COVEN'.VNTS Rr.N.\IN(i WITH TIIE L.VXD. C. and the defendant were owners of adjacent lots, and C. being about to build on his lot agreed liy writing under seal to erect a party- wall on the dividing line, anil equally on both lots, defendant agreeing to p.ny for the half of the front forty feet II. Other Covkn-axts. I. Damaijrs, S. P. brought an action for damages sustaiiieu | and to be sustained by reason of breaches of cin> nants for title in a conveyance of certain laniU to him, and before the trial died intestate, wliere- upon his administratrix took out an (n'der of ri' vivor, which order it was now sought to set a?iili on the ground that the right of action did imt survive to her: — Ihdd, t.-iac as to d-ViKiites wliich accrued during the lifetime " tratrix was entitled to =.'iv i . , this was not so as to dam ■,■ -^ accrued since his death, fo^ wi. heir, or devisee, might hrij .; case of such covenants ruiiinng with the lani whei'e only a formal breach takes place in th.e life of the .ancestor, the remedy for damages aceruii:^ after his death passes to the heir or devisee ; Imt where not only the breach took place, but ilim- ages accrued in the lifetime of the ancestor, the remedy for these dam.ages jiasses to the per>"ii.il representative. IVatt v. The Crand Trunk Ihi't'- iraij Company of Canada, 11 O. K. 240.— I'roml- foot. See Plait v. Tin' Grand Trwd- Ba.ihmy Cm] pany of Canada, 12 0. R. lit), p. 102. .'. , .'".is adi'.iinis- ■'liii'; biit that I ■ ■•h might have I ; — Senible, the I cti.in. In the It is a firmi Ontario that c «iirk an estopj J Kngland. ('.i.<. |4ll-Proudfo( On Febi'uai'v m A. T. P., (tl [JaintifT in thi,- the river Maitl (li which was tl: liver iiigh enouj iftlicriver, the Iiv the deed, an liL'lit to convey loiapany had '| .-ivingany of tl ■::.\ island in the iU'cels of land, uposite each ot ■■: the plaintili; Miadow, " and ivt-re above the subsequently lie in an action b\ hrnught, .M. A.' <■: revivor.) a,i;aii i::'l )iroved tlnit 1 ross the river h ■; the fall of the 1 ■.rt of, if not tin linu' hack water a !i.l"Hh,ck F,"a • H. ^■. A. as iiiils. It was (■( 'lulants that th i'uld he made ] 17, siihs. 5, enal ■ssession of l;ind veil no notice of sue to prevent .my trespass or ~ f'Hii name on iiitof parties oil: !..it in an action , ;-nt a plaintiff i ''^tniction of tin 111 to recover, n "ipteil to enjoy 1 'the place aiid'm wn interrupted, 'veuant for quiet It' covenant for tit rV.iiada had dec ■ If- 42.'l, that the eeasement to A. -'here, although tlie suit; and'th.i was it was made siicli damages as : «nd. foHowing ' ■hiiios, l!» r. P. '. the dilf'erence in *Mtate that had *1 purported to c ■■"ited thev had tl ared that during,* '"t hail construct tl'e river, and t uteres "on nceouii 'f tlie waters bv t ■-1'. and foreiii.j IGfi ,r portion lire tn iiHi- his lot t') the HMuil s eutAivij lefeniliuit ISO (if till- L of Wllirli rest tlu i( to C, In es of ( . > emlant t^ meb %v;ill ■. BUtitlfil 11- i;iyiutut (ii ivall uiuUi 1 umler the Ktiiiiij V. ;h mavrii..! by a Cdw- )y him f"! I' f)f ofrtai:; lease fnrii i-as to hiiVf jes, thou-h er husbaiiil inch a way tevest, aii'l ul :— Hfl.i, trustees foi -repair was s reeovti'oil is covenaiii ! -was one 0, i arisiiiL' in ■tal, l'J*V 1]'. ro. f.f OtKlhll' ' V. also (.'rn'i'- 101 CREDITOR AND DEBTOR. 162 2. Other CVm^.«. ts sustniiiti Ihes of i''ivf lan.U ti' late, wliL-re- ler of Tf Ito set H-^iilf ^ui lin loll < liai'cs vii: Till ii'it ich r.is ai lir.iins- bi.t that ligbt liavc juiblo, the 1. In the Ih the laiil lem lite les aeeruiiii: levisee ; Init but (lam- eestor, the Iho 1. oiial If),— rroini It is a finnly established rule of property in ' (iiitario that eovenants for title are sntheient to udiiv ail estop])el, thongli it is otherwise lield in Knilianil. < ''i.<--iiliiiiiii it nl. v. i'n.^-icliniiii, !t (», i{. 4lu'.— I'i'oiiilfoot. On I'Vbriuii-y .'inl, ISTI!, the eoni]);iny granted til A. T. r., (tlii'ough whom S, I',, the original i.L'iintifT in tliis action, elainied,) a mill site nn ihu river Maithind witli eertain easements, one ,,i which was the right to erect a dam aci-uss the !ivi.T high enough to take ii]! eight feet of the fall i:! the river, the locatimi of tlie dam being cldined hv the deed, and covenanted that tiiey had the li/jit to eonvey and for (piiet enjoyment. 'I'lie timpaiiy had previously granted, (witlinut re- .i iving any of the easements granted to A. T. \'.,) ;,a island in the rivei' called " Island C," ami two jiircels of land, one on each bank, immediately hii]io3ite eacli other, and adjoining tlie ])ro]ierty I.; the plaintiiy, called respectively "'I'lie (ireat ' \kailow,'' and '" lilock !•'," all three of which j «iie above the land granted to A. T. P., and »'ib.sei]Uently became tile pro[ierty of if. Y. A. In an action by .S. P., (who died after action liiiiiight, M. A. P. being made plaintitf by order : revivor.) against tiie. company, it was alleueil :iil ))r(ived th:it a dam cciuld not be maintained '■niss the river hiL'h eiiougli to t:ike uji eight feet ; tlie fall of the river witlmut sulnnerginga gi-eat ,rt of, if not the wlioh' of "'Island f'."and pen- iiiu'haek water and ici' i.n "Tlio ( Jreat Meadow,"' nil "lilock I'"'," and encroaching upon the rights ; H. ^'. A. as riparian ]iro]irietiir of the said iiiils. ft was contended on the jiart of the de- 'iiilants that tlie mortgagees of the property' ii'iiild he made ]iarties :— Held, that (>. .1. Act, . 17, snlis. "), enables a mortgagor, entitled to the "issession of land, as to which the mortgagee has .ivcn no notice of his intention to take possession. sue to prevent ov recover damages in resjiect ■ any tres[)ass or other wrong relative thereto in i- iiwii name only, and thnit thi! objection for v-ntiif parties ought not to prevail : — lleM, also, It ill an action on a cuveiKint for (juiet enjoy- nt a |il;untiff must shew an iiiterrujition oi' I'lstnietion of the easement in oi'iler to entitle 111 to rcicover, ami that S. P. not having at- iiiptcd to enjoy his easement by building a dam the place and manner spei,'ilied, and not having ■fii interrupted, he could not succeed on the iveuant for(|uiet eujoymeiit: — Held, also, as to 8ii' covenant for title, that as the .Sn))reine Court I- Caiiada had ilecidcd in T'latt r. Attrill, 10 S. i!. 4'2,", that the com])any hail no right to grant e easement to A. T. P. , that decision was liind- .' here, although tlu^ eom]iany were not parties the suit; and that the covenant was broken as on as it was made, and the plaintitF waseiititled such damages as accrued during thi' life of S. ; and. following The lunpire (iold Mining C'n. ■Iiiiies, l!» C. P. '245, that the order there must he a reference to the master to ascertain if any other creditnrs desire to f.slc a share of the fiiiid. Jhiir.i.in v. Jlniliilt, 11(). H. 4S4— Chy. 1). Held, ;illlrining the judgment of the County Court of I'erth, that the creditor under whose execution an amount in the liamhs of a sherill' for (listi'il)utioii under the Creditors' Itelief Act, 1880, was levied, and which was iusuliicieut to jiny all cl.iims in full, was not entitled to priority of payment of the cost.-- of olitaining a jiidgnieiit aiiii executiiiii. Por/c'in.i V. A/ i/ir.-', I'J A. li. Si") See 49 Viet. e. 1(1 s. .'{,"). (Out).' The plaintin's olitained exeeutinii .igainst one ^ I), under which a seizure was made, when the i ilefeiidant and ;ui(ither jtarty made claim to the ! g Is under .a chattel niortgaiie. in coiisiMiucnce of which the usual interpleaderorder was issued, and default having lieen made in payment into court or giving security for the a)»piaistMl value of the goods, the sanie were Mild and the (ini- ceeds jiaid into court. The tii.d oi thi' issue re- sulted in favour of the claimants, hut mi .iiifieal the claim of the defriid.ints was disallowed, and the ilemand of the other claimant w.is jiaid. lie- fore the tri.il took [ilace the deti iid.ints jilaeed an execution for the amount of their dem.ind in the sheritt's li;iiiils ;ig.iiiist the ^oods n| i >. When iinally dispiising of the m.itter the jiid-e nf the County Court dii'eetcMl tli.it tin- iiiiint> in court should, afterpayment ot rii i i >is, lie paid nut to the plaintili's and delelii nts i.il:i 'ly .'IC- eordiiii,' to tlii'ir respi-rlive il i did not eoniu within the provisions of the .\it //<-((/ V. aoirtni.-<, l.S A. J{. 501. See i1A,)<7/i' v. J'riirMiii, S (). K. 745, p. ;i ; Diiiiiiiiinn llaiik V. Ill [I'l naui il ai, 11 P. li. 504, p. l.'iT. Cni.MI.NAL LAW. l>i;iiii;KV, 1(14. CoNSl'IH.M V. I (14. 1 \l liII.KSI'l.^ 1 )KCI;| VINd orrllK UsKit! I'ltol'KliTV, Itij. I'oUCDHV, l().">. I'k.mim i,i;ni' 1!i:.mov.m. (jk (.iootis, 10(1. (iA.MlNC — .SVc (iA.MINt.'. l..vii(j!;NV, !(!(>. I'.lil-lSI.Nll Tu I'liOVlDK I'oll F.\,MILV, KW \a(:i;ancy— iS'iv- Vacua. NT. (Illli'.l: Ol'l'KNrts, KiO. l'l:ii( K.nrni;. 1. Ini/ii'luii'ii!, KJG. ■J. <'(int lii.il- rved, 107. Xll. llvlliKNCK. 1. .{I'l'iiiii/iHi'i , 107. •_'. OiIk r C((M-.<, I(i7. XI 11. Co.Mi'iaiMisisij l'i;osi;cLTioNs— .S'(t' CuM riaiMisii. Xl\'. Mxri; viiiTio.N oi' Cki.minals — SVt^ ExiK.i 111 rni.N. XV. SlM.MAUV CoNVICTIoN.-i Sre JUSTJCE.S I. ■nil-; I'i:aci:. II. 111. W \1. Vli. Nlll. iX. X. XI. I. IJUIIiERY. ,See Ueijiuii v. Bitiilimj i-t al., 7 0. R. 524, p. llij .iiiil has not ht That in all mat vi-iitiiin of the 1; with tlio exei lucaclies of the ilictiiiii, and the mil, have no j ciiiL-iuetudo I'ai t'ciirt of I'arli; ilu.'il with all ma or concerning i liiisiiiess, with t ■I'liiii V, liaiiliiii/ 111. Fkaikile: The defendant ,1 lii'i'se-power ai trade of a hutcl interest to C. 'I iriiiu one M., ai tcnii of hiring h .\l. deiuamied it imrchased it fn then emjiloyed a iiiiscs where it w whii-h he did. tiifil hefore a po] iiiHitrence .against Held, th.at the iiuiiU'ence against il. 'he police mag it was had also in "I the eoininissi(jii thi- iinpreijer use 'ivil rights. JU,/i ilitiii-s"4!iliei' Act. 4.'< tills lln'reiipiin .-ippc i court heiiiL: cipi.ilK . missed, u nil co«ts. J.I. A. Tile IIIOlii",- lilnli'l- Ihr -it.itntr. Ilurtnii, .1. .\. 111. s. " made or levied iiiid let ht. ]-■ iiii ■ liil. thi' Ip' pl.'llll- I III- lie I 'it I '.It ,\ . ■ I e pill, I'll' lli-t 111 ilie\ - \ '!■ iXi Clil 1. ' |,j„. w .1 ■ dis , O.hr. . ly ill -I I iliiilalih' i\. I ' I) . and ii-n- n 'I iiiiiiir\s a," .Ji I t lierelore II. Conspiracy. On demurrer to an indietiueut (set out in tii' report of the case) for eonspir.icy to bring ahoi a change in the govcrnnieiit of the province Ontario, by luiliing ineinlienn of the legislatm to vott' ag.uiist the government : —Held, O'Cii nor, .1., dissfiitiug. 1. That an indictable oll'uiio wa.s disclosed ; th.it a conspiracy tu bribe iiiiiii beis o! parliament is a misdemeanour at coiiiu huv, and as such indictahle. '2. That the jmi diction given to tlu; legislature by R. 8. O. c. I ss. 4."), 4ii, 47, 48, to |iunish a.s for a eontcia|' docs not oust the jiirisdiction of the courts wht: the oll'eiice is oi a criminal character, hut tit the same act may be in one aspect a contuin! oi the legislature. ;ind in another as]ieet a iii. lb nieauiiiir ;!. That the Legislative A>!itliii Il IS no criiMii d junsdictiiin, and hence no junj 111' I lull ii\ :' Liie iiialter considered as a eriiiiil iili'i'inc. 1. I liat the indictment, considcifi ,1 piciiiiii-. >,illii'iciitly .--tated the oli'ence iiiti!i| I'l to lie c.arjed. I'lr OConnor, J. — 1. I'tl I III' liiilii'iy ... .1 iiii'iiibi'i' III p.'irliameut, in a iiil 111' I'l.iir.'i ii.iig [1 irlianii'iit or parli.'unentary I'tl iii'-.s, IS nm .111 indictable oli'ence at coinnuia hi Held, th.at the f one of the den timi consisting in tliu ligure L', wher iiKirgin of the no i.iriiiiner was rigln ii'til, 7 O. K. •_' Tlie prisoner w ; first count cliargii note of the JS'atioi smind with utten I he prisoner w;is the fact. Kvideiii t«o persons naiiiei CMiivieted in .Mont circular notes prii tho.se uttered by VMoutieal with F. , listcred their nam tiiiil occupied adjoi |ll. liiul lieeii convi iiitted their guilt Iliiiiilier of these ei "':'■ H., which wi' "i-'iiiner. liefore "'■s proved that t «itli W., who w.'is 'ii'iiol'js. I'lvidcii 'iwt a hirgenumlii '••lied at il place |''-Oii seen, and w e 'yliiin, after W. h; Ilia CRIMINAL LAW. 166 aiiil has not been maile so by any statute. 'J. Tliat in all niatter.-i and ott'ence.s done in contra- vi'iitiiin of the law and constitution of i)arlianient, witli tlio exception of treason, felony, and liirachesof the peace, parliament aloue has juris- liiclion, and the ordinary courts, civil and crimi- nal, have no jurisdiction. 3. That the lex et iiiisuetudo I'.'irliaiiienti reserves to the High l\iiirt of I'arliaMK.'Ut exclusive jurisdiction to ileal with all matters relating,' to its own dignity, 1 nr coucei'niiiy its powers, its members, and its Imsine.ss, with the above three exceiitions. /I'c- -;„//( V. Haidiiiij li al.,1 (>. K. 5li4— 1,>. li. 1). the evidence was prop(rly received in proof of the guilty knowledge of tiic prisoner, h'niiiia v. Brut, lOO. J{. r)o9-t'. r. 1>. II. Fl'.Ariifl.KNTI.V Dr.l'lilVING riiol'KUTV. OK Tirr: L'si; of The defendant .sold to t'., amongst other things, ,1 hi'rse-power and belt, part of liis stock in the Itraile of a butcher, in which he also sold ;i half interest to C. The horsc-puwer ha)., . I». ' \'lll. liKITSINO T\ the deleiidaiits to set asiile tlic proceedings of tiie I 'rowii oil tin; ground that they slmuld have lieen !• died U[)on to a[ipear and plead de novo in this division: —Held, (Wilson, C. ,)., dissi;iitiiig, > that the Court of Assize of Oyer and Tenaine ••"■S l»l»*« ^ 167 CROSS ACTION. i*;? iinil (ifMcral (i.'inl Dclivtry if* now, liy virtue of tin; .liiilir.iturL' Ai;t, tliu lli,i;li ( '(iiiit of .lustice ; tliiit tliu iii(li(tiiiciit \\;is fomiil, Mini the ikfcii- (lantM ;iiHMar(vo to the inilictnR'nt. 'I'lit! rt'co;,'- nizancc cntcnil into liy tin' ili'ftnilants, i i\v cretion to the contrary is open to n^view :-— Hi] .also, th.at the annnded section of the Act i> i tended U> enlai'vc the powei-s and duties of ina.: I tr;ites in cises of this njiture, and that the \m " ]irosecution'' therein imduihi tin; proceiilu,. Iiefore nia^istrati'.s as well as licfore a lii-L, court. n^'jUi'i y. M'ljir, II !'. H. 477. — Wil..,; The pii^onc r w.as indicted foi- unlaw fully u-:: an instrument on .1. [,. .with intent to prociiu niisi'arriicc. ,1, L. was called for the proseeiitii:i ■ to |irove the char;.'!', ;ind in cruss-examinati'.i I denied that she had told J1.A.,]I. !!., ami V j T. that lieforc the ]irisoner had o]ierated on hr I she had Keen opci'ated on hy Hr. li. ittv the pir ] lose of ]irocurin,L' a misc.arriau'c. H. A., 11, 1:, and M. 'I'. Were called for the defence, and swi"? th.it. I. L. had so told them. Dr, H. Wiisih.:, called lij- the Crown, and he swore that lie \\:-a . not o|)crated on A. L.; -Held, that the eviiKiii- of hr. I'l. was properly admitti'd ; lint in .iiiy j event the jirisoner's case was not so afreetcl ly '. tin' evidence as to warrant .'i reversal of tla^ coi: I victioii. even if the evidence were not strictly a' niissihle. JIki'iiik y. Am/i-tir.-:, I'JO. K. l,M-( P. 1). See J.'u/ma v. /,<((•//>, 7 <>. I!. 431, [i. KiH ; /, yiiin V. JJuit, 10 ' ». R. cnH, \\ llifi. IW t.viiii'Nci:. I'i'fiiu i>ht:i. Tlio question whether or not a .judye, in chargiiii^- a .jury, should or not eatition them that the evidenei.' of an accomplice should lie cor- rohoiated, is not a matter for a court to review on a e.ise reserved, for it is not .a iiiiestion of law Imt of pr.ictice, thou^di a iiractice whicli .should not lie omitted. IJegina ''. Sttililis, 7 Cox. ('. C. 4S, and l!eL;ina r. IJcckwith, 8 C. P. 277, follow- ed. R,,jli,)f V. Ainlnii:-^, \'l (). K. KS4— C. P. D. o Olhi r Cis Two indictments were preferred against the defendants for feloniously destroyiiii,' the fiaiit trees respectively ' as to make C. himself a tres]iasser from tli;it date, could not avail the ))laintiirs. llauiili'/i /')•(, riilriit and Loan ^iocidi) v. CamjiM/, \'i X \\. 2.'i0. CROSS ACTION. &€ AcTTdN. CRO I. I'lOTITUiN Kji:iir. II. Ckow\ I,.\ 111. Ciciiws Tii |\. PHi:sci;ii"n Ll. MIT. VII lie hank of Pi i ilviiit and a wiin ith .lime, ISS2. <: hank was imh 111 of !?!).•{, 4!I4.2( iiiijy.s of Canai vtiid departnien t of the liccci hy the iiiinist in i(;s[)ondeiits (lii Lially notify tin WHiild insist upi 1 full. Tw o div lie afterwiiids [la >'>4, there was ii li, tliat (lay the n I'T .Majesty iiiteii '.ative right to In r lii|uidators had ml to j)ay in full 'll'iwiiig ohjection 11- Su))r(;nie Court 1/.: "That Wvv iitcd hy the mini ■iviT general litis ii iL'ceive from the 111 the w hole amsiic w ij it (if ti;r tliat tilt 1 .Inly, I'V il. to sfi« ;uiil sal* it in fjir'- (•(1 lia.'kt iK-tioii. ■'■ roii; thiit lldll'il'"! Inil. I 'J A. CROSS .lUDcMKNT. ,Sii' JriMlMKNT. tlie owiiiT.s tliert-fiir : Hild, tliiit Mltlioiigli or!- giimlly tilt; soil alicl fiiTlidlil iif tlii' loails or .strt'f'ts limy liavu ri'iiiiiiiicil in tlio inivati' owiiiT, Mulljcit to till-' |Mllllio I'ilMCllUMlt (tile light uf list Tl, Miiiui; tilt; yciir IS.IH, at nil fVfiit.s, tlity lifCiiiiif Vf.stcil ill tlu'( 'ni\\ 11 iis rtiircsfiitiiig tlif I'luviiici' iif Ontario, Ky virtiif ot '_'•_' \"itt. f. !t!t, s, HOI, iiiiil that till' >(iiii]icii,-iiitiiiii tin rffcii- was p.iyMlpli' tip tlif Attdi'liiyt It iii'ial of Ontario, u iio was ordi It'll to 111' niailf a |iarty in omIi r to givu jiro- tfition to tlif I >iiiiiiiilon ( iovfinnifiit in expro- |iriiiting tilt! laiiil. A'' 'J'n n' I'n//' i/ I'mifi/ " L'f \V,ii, r Stfii" int4, there was a lii.laiut' due of .St'i."i,4'2(i. !)."). Ih that day the respondenl.s were notilied that I Majesty iiitended to insist njioii her pre- .iitive right to he paid in full. At thi.s time liiliiidators had in their hands a sum .snlli- iil til ])ay in full Her Majesty's claims. 'I'lie '.'iwiiig olijeetioii to the claim was allowed hy II .'iTi:ii IN ■iin; Cii^.w N, 17.'!. \. ImiIAN I.\Mi> Vi..|mi|AS Lasiis. \'l. .\ssi;ssMi:sT 111-' — .VfC Ass|-., \'ll. l'i;i,>i'i;ii'iiiiN .\i;AiN-~'r thiiCkoWN — tin: 1,1 MllA'l Ion III' .\tllONs. 1. DiiMIMiiN I. AMIS .\t r. I'hc plaintitl in hi: liill of coiiiplaiiit, alleged in the sixth paragraph as follows: •• rrior to the 1st of .May, iS7"), the plaintitl' maile application to homestead the said lands in (|ue>tion herein, and procurt'd proper atiidavits, according to the statute, whcreliy he proved to the satisfaction of the Dominion lands agent in that liehalf, (and the plaintitl charges the same to lie ti'iK!,) that the said defendant l'"aniicr had never settled on or inipi'iivt'd the .-aid lands assumed to he honie- stcadcd liy him or tin; lands lierciii in t)Uestion, hut had hecii aliseiit therefrom continuously since his jireteiided homesteading and iireem|ition en- tries, and thereupon the claim of the defi'iidaiit l''ai'mer under the said entries hecaine and \mis forthwith forfeited, and any pretended rights of the defendant Fanner thereunder i:i;ased, and the plaintilf thereunder, on or ahout the Sth .May, 187.'), and then and there with the assent and hy he direction of the Dominion lands agent, who caused the same to he ]irfiiai'eil for the plaintitl', signed an application for a homestead right to the lands in i|Ucstiiin in this suit,accoi'iling to form A, mentioned in '.\'\ \'ict. c. 2.'{, s. '.V.\. and did make and swear to an altidavit according to foriii 15, mentioned in sec. .'{.'}, snli-s. 7, of the same .Act, and dill jiay to the same agent the homesteail fee of SKI, who acce]ited and received the same as the homestead fee, and thereupon the plaintitl' was informed that hi; had done all that was ne- cessary or rci|uired for him to do under the sta- tute and the regulations of the department, and that the statute said: U])on making this attidavit and tiling it, and on payment of an ollice fee of ••510, (for which he shall receive a receipt from the agent,) iie should lie iiermitteil to enter the lands sjiecitied in the application ; and thereupon and in pursuance thereof, and in good faith, the plaintitl' tlid foitlnvith enter upon said laiitl and »5i—"" i,.tmm* lt'uA.i xiKSi* 171 CROWN LANDS. i: tako actual posKOHMinn tlicfcof, ami lias cvci' Mine*' ri'iiiaiiicd ill iirtual ipi'iii|)ntiiiii llicri'ipf, ami lias fi'i'i't(Ml a liiiiisc mill iitliir lpiiililiii;,'M tliiTcdii, rU^aiTi! a larj,'!' |i'irtii)ii of said lamls and fciiccd Mild I'liitiv ati'd till' .sanic, and liiadr liialiy ntll) r \aliliili|i' iiii|irii\iliirlits tlii'i'ciiii, riistliij,' in tlif H^grt'gatc sj, (1(1(1. (Ill dtiinn'rcf fur want of <'i|Uity : llilil. ri'Vi'isiii;; flic jiiil;,'iiiilit of tilt «'i|Uity : mill. ii'MTMii;; iiic |iiii).;iiiriii oi im I'liiirt liidipw and iillnw iiii,r tin. di'iiiiirrrr, tliat tin lilaintilf had no Incus ^t mid i toattark t In' vididity of till' |)ati'nt issued liy tlio t'lnwii to tlic difrii- dalit. as lie had not alh';,'('d a sulliciciit iiitcicst or light to till' lands therein mentioned, within the liieaiiilit,' of sec. lilt, or of sillisecs, 7 and M of sec. ,'{.'{ of .'{.") \'ict. c. 'in, there lii'iiij,' no allej,'iition that an entry i . honiestead right in the lands in i|iiestion had been niiide, and that jilaintill had liet'll illllhori/ed to take possession of tin land l>y tlu! agent, or liy some om- having authority to do so on lit'lialf of the Crown, or a siiHicieiit allega- tion that the Crown was ignorant of the facts of (ilaintiH "s possession and impiov tniei'.ts, ('I'as- cliereau and (iwyiine, .1.1., dissenting. ) I'drnirr \-.[Liriiiiis/niir, s's. C. H. 14(1. On tlio '21st Xoveinlier, Issj, .sinmitt et al. olitained a pei'iiiit from t he Crow n Tinilier Agent, .Manitolia, "to cut, take and have for their own tise from that (lart of range 10 K that extends , five miles north and live miles south of the Cmiii- dian I'acilic llailway track,'" the follow ing ipiaii- titles of limlier; -2, (KM) cords of wciod and '2."),()()0 ' ties; permit to expire 1st May, ISS'2. They oli- taiiieil another permit on the lOtli l''eliriiary, 1882, to cut •2."),(M)(l ties. Ill I'Vlauary, ISS'2. iili- iler leave granted hy an order in council of '27tli Octnher, lss|, Scolde ct al. cut tinilier for the l)iin)ose of the I'onstruct ion of the Canadian Paci- fic Railway from the lands covered liy the |ieriiiit of the '21st N'livcmlier, ISSl. Siniiott et al., liy their hill of complaint, claimed to he eiititk'd liy their permit to the sole right of cutting timlier on tlio said lands until the 1st May, rsS'2, ami prayed that the defendants Scolile et al. might 1)0 restrained hy injunction from cutting timber on said lands, and might lie ordered to acuouiit 1 for the value of the tiniltei' cut. An interim in- ; junction was granted on S. etal., who justilied is conclusive, and a party cantiot set up e(|iiiti.< liehind the iiiitcnt. I'll r 1)11 1 \. LiciiKjstoiu , ^ •• C. I{. 110. i'er I'attcr.ion, .1. A. The rule that acceptiuh. is essential to the operation of an instriniii i ; cannot lie applied to letters patent from ti.. Crown. Mn/iilf v.Srriiii'h, 1'2 A. \{. \'u. See AV/K/cf/// (7 t/. V. Tin ('(ir/oiriilioii iif ii,. fill/ of' '/'iivii'iitii ct III., I'2 (>. H. '211, p! si;; Mn/.i'/t V. Srniir/,, |'2 A. H. I.">7. p. ll». v also Clt'ialiiinliiij v. Turin r, \) (>, l{. H4. their acts umler the order in council of the '27th Octolier, I SSI, and denied theexchisive possession or title to the lands or standing timber. The in- junction was made pi'ipctual liy the jinlgc who heard the cause, lint, on re-hearing, the jmlgiiient was revorseil, and it was ordered that an im|uiry should lie made as to damages sullercd hy defen- dants liy I'cason of the issue of the iutcrim injunc- tion at the instance of the plaintitls : Held, that the decrees made on re-hearing liy the Court of Queen's licncli of Manitoba should be altirmed, and that the inrniit in (|ucstion did not come within the provisions of the Dominion Lands Act of 1S70, and did not vest in Sinnott et al., (the plaintill's,) any estate, right or title in the tract of land upon which they were permitted to cut, nor did it de|)rivc the government from giving like licenses or others of eijual authoi'ity to other persons, as long as there was si'.1iii.ient timber to satisfy the requiremeuts of the ijlaintitl's' licen.ses. Sinnott v. Scohle, 11 S. C. R. 071. II. Crown Patknts. Per Strong, J. , that when the Crown has issued the letters patent in view of all the facts, the grant III. TlMlUK Lk'KNSKS. Me.\. tiled an application with the pi'i.|i,. government oUii'ial for a lii'cnse to cut tiinii.i upon twii berths, and coiii|ilied with the iimi.iI regulations, one of w liicli was the )iaynient ni i certain sum for ground rent, and his a|iplii'utii.ii was duly forwarded to the coinmissionei : Crown lands; but owing to a defective survi \ i' was ini]iossible then to convey the berths, .^l;l,. sciiueiitly the survey ditlicnlty was removed, inil his ap]ilicatioii as to one of the berths was,, ccptcd ill the yi'ar ISCil, but he having reiiinv. i to the United States, never received any iinlin/ of such Uwceptrnce. In ISSl he lirst lii;iri • if the acceptance, and in ISS4 sold all liis ji terest therein for !:*4,0()(). 15. afterwiirds hecame entitled by subseijuent assignments for vahii t. all .Mc.A.'s interest, the assignnieiits being iliily tiled in the Clown lands department. McA. mil 15., in 1SS4 joined in a petition of right fur tl,. issue of the license, and the attorney-geiicnil .ii niurred to the .same: - Held, that there w,i^ ij laches on the ]iart of .McA. in not enforcing' right which he did not know existed, and tin!: w as no intention on his part to abamhin the i i^l;: when he did beconie aware of it, as he treatuli: iis a valuable asset. As between subjects n ile lay of four years would jirobably be under miii iiary circumstmici's, a defence to a claim :■■'. specitii: lierforiuance ; but under the facts in tliii ease a vendor would not he allowed to set i;p such a defence : — Held, also, that as the assiLii nu'iits were duly tiled, and the Crown had the ])ower of forfeiting the claim for noniiayment, a did not do so, even were the rule between m; jects to ajiply, it would n., obtained an ex jiarte iiijiiii tion, restraining (1. I'. H. et al. from finti prosecuting lumbering operations which tl: had begun on these lots. (i. 15. H. etal. wt cutting ill virtue of a license from thegovnii meiit, "dated .'{rd May, ISSl , which was a iuium of a former licen.se. l)y a report of the exccuti' council of the ])rovince of (,>uebec, (hiteil I April, ISSl, and approved of by the lieuteiiaiii governor in council on the 7th of the same iiKHiti! the coinniissioncr of Crown lands was authorize to sell to the company the lands in question, : the company deposited 812,000 to the credit o 173 till' department, iiit 'llded piii'i'lia [laliy gave out a |,.ii'tiiin of the III thi'coimnissioiie if the company timis, "to the c thi'lotH." Upo iiijiuii'tioii was s Wired the pctiti . Ivcd the iiiiiin i.l IJlleen's ISclii iiid the injni 'ti Mil appeal to 1 1 mis Meld, (lien tllilt the |>. of (■ aiiv valid title ti ihr I'tth .Inly, I iif that date thei iiii'rciit licenses i-tablished theii till' purpose of liiiMs under a lie .\liiv, IHSl, the i the' I), of C. !,. uiiilur the provi hail been prope (Juirt. J/fi// V. I'um/iinii/, 8 S. ( See Si mil lit v. IV. HiojiWA See/i".' Tri'iit V (wil " T/if Road 11. 170. St< C'USTC CU.ST Held, that the Heoksold, follow lie running at Ian louiitry, which oi thus to follow the of the coninion iisi tnwiishiiis, and til iiiiluceinents to er rejected, as shewi 111 ilaiigerous or a Tniiik Ihiiliray Ci. At the trial of i whom the draft w ilo you understani iliint?" To this qu the judge ruled tl (which it was adn hy the usage of ba had a meaning oti in their natural ct not be put :— Hel 173 DAMAOES. 174 till' ili'pMrtiriciit, til lie ii|pplie(l on iic'cimnt of the iiit iiili'il puiclmsi', On the '.itli M.iy tl oin- ]i,iiiy gave out a I'onti'iut for tln' clciuinj,' of a l„,iti"n of the laml, ami on tlic IKtli .Inly. IHSl, thi'idinniissjoni'rt'M'cntfcl a cli'cil of snli' in favoni' ,,| tlio company, Huliji'ct, anionj^'^t otlicr I'ondi- timis, " to till' riirii'nt liicnscs to cut tinilicr on ihi'lnts." L'pon till' writ liciii^' ictiirni'il, the iiijuiii'tion was siispi'nili'il. (1. I>. II. rt al. ann- mrril till' pi'titioji, ami tlii' Siipi'iior Cour* ilis- . ivnl till' injunction. On appeal to the Court it i.iiK'cn'.s licni'h, tiii.s iinlu'uii'nt was rcN'cr.scil iii'l the injui 'tioii applicil for niailc pci'pctiuil. iiii iippcal to the .Supri'Uic Court of Canaila it h;i>i Ik'hl. (Ifcnry auil • luyniic, .1.)., ilisscntin;:), that the |). of C. I,. \- C. Co. jiail not aci|niicil my valiil title to the lanils in i|Ui'.-ue.), hull hceil properly ilissolveil liy the .sinperior C'imrt. Ilnll \. ('niiin/ti Lmiil n ml I'uliiiiivilion iniii/Kiin/, K S. C. H. m\. Sfu ShuiiUt V. SctM; 1 1 .S. C. R. "iTl, p. 171 • conlil not in iiiiy way he the rule hy whieh tlni meaning' of nucIi woiils couhl he hehl to hu >,'o\erueil, hut (following,' haines i\ Hartley, !< I'lx. 'JO(i) that nevertheless a proper fonmlatioii hail not lieen laiil for the (pie:'tion ; thiit the wit- ness slioiilil lirst ha\e hcen askcil if there wero any cinumstances whicii wimM hail him to umlerstanil thi' woiiis in othci' tli.in their natural sense, anil that upon )iroof of -ucii ciri unistances the i[Ui'stion woiilil ha\i' hi .i aUowahle. .As, iiow I \ I r, the juilu'c's I'ulin;; hail prccluileil the plaintitV's counsel from layini,' siu'h a fouuilation, a new trial was orilereil. lining v. CrvknU, 10 O. H. 47.-. (,». li. I». Custom of hrokcrs in ilcalin^ with i ustonu'rs' stock. .See Mum v. Ciu' rl iil., (1 O. |{. .S.V.) ; Siit/irrliiiiil V. Ci>r, VA A. K. ."•_>.-.. See /(■. .Vr/h,>n,f,n, I'.' A. I!, '2t. also l',iiii v. I'rnrtnr, .'} O. \[. '.'SS I'titti, 10 .s. c. It. -J.-.. 4'.t. See [th-;ii V. IV. Ilnaiw.ws Vkstkh in thi; Ciiowv. Sfc/i*!' Tr>i(t ]'itl/i'i/('iiiiiil—"/,'r Wiifi r Sfrrii" uiiil '' Tlic Ji'oad to'tfir Il7/rt/'/;" HO. R. (iS7, \K 170. CROWX 'I'lMUKR. Su! C'kown Lands. CUSTODY OF INFANTS. Sef Iniant. CU.STOM AND U,SA(iF. Hehl, that the eolt in ipu'stion in this case, live weeks old, following its dam, could not he said to lie running at large, the universal custom of the country, which ought to govern, heing for colts thus to follow the dam: — Held, also, thatevideiice 'if the common use of harhed wire fences in other tii\vnshi]is, and that other munici])alities held out iiidueeinents to ereet them, should not have heen it'jecteil, as shewing that they were not consider- t'l ilangerous or a miisance. Hilhim-d v. (Iraml Tniiih Hailiray Coiiipaiti/,fi 0. R. 5S,'5— Q. B. D. At the trial of this case the hank manager to wlioni the draft wa.s rernrued was asked, "What iln you unilerstand hy the words added hy dcfen- iliint?" To this question ohjection was taken, and tlie judge ruled that in the ahsencu of evidence (which it was admitted could not he given), that i'y the usage of hankers the words comjjlained of had a meaning other than that conveyed hy them in their natural construction, the question could not be put : — Held, that the usage of bankers DA.MAOKS. I. <;KNt:nAi,r.v, 174. II, RRFKlfKNiK 'm -MasTI-.K .V'cTlilAr,, III. Actions iiN ('oNruACTs. 1. For Xmi-ili liri ri/ a/ ., of certain land on which i was erected a two story hri^k house, the wes- terly wall of which formed the houndary of oneL.'sland immediately adjoining the plain- tiff's on the west. L. leased to F. , who erected thereon a large hrick huilding, using the plaiii- tilf's westerly wall as a party wall, inserting joists therein and huilding thereon so as to raise it two stories higher, thereby weakening the ! plaintiff's wall. F. mortgaged to a building ' society who, in default, sold to the defendant: — Held, that the jilaintitf was entitled to recover ' as damages the expense of removing such wall 1 so erected on his wall, and the damages occasion- I ed by his wall being weakened, but not damages "25 iiQEl M\y% liiiAi' 176 DEBENTURES. 17G 177 for tlie loss of a sale of the property by reason of the erection. Brooke v. McLian, 5 O. K. 209.-- C. 1'. IJ. Daiiiiiges for sale of stock given in ])le(lge be- fore default of |>kilgor. See t'arni-ijit v. The l-'iiUnd liai,k\ 5 0, K. 41 S. Kefeiidant agieeil to furnisli plaintitl' with money to c(jnstiiiet a drain in the town.shij) of I>un\\ieh, known as the Mennie drain the amount to he furnished "not to exceed the sum of .Si,.j(>0 at any time," and to |)ay the same to jilaintill'as often ami in sueh sums as might he re(|uireil, the j)iaintitr to give the defendant his note for eaeh .sum rei)uireii, and to ))ay defendant interest at r«' |)er eeiit. pel' annum for the use of said moneys. I'laintilf alleged lliat uj)on the strength of this .cgi'eeuient he contracted with the township to construct thedi'ain. Defendant furnislied moneys from time to time to the plaintitl', exceeding in all !*l,r)0(), Init not sullicient to complete the drain, and defendant refused to furnish more. The ]il;iiutitl' borrowed moneys from others at less than \'l per cent, interest, ))ut claimed damages for allegcji' In'each of his agreement contending that lie was thereby delayed in com])leting the drain, and that owing to such delay and to the w inter setting in he lost lai-gely, instead of mak- ing a ])rotit, whicli he would otherwise have made' — Hi'ld, that whetlier the agreement was to funush money to the extent of 81, ")!)() only, or to sucli extent as ndght be necessary for the con- sti".;ction of the drain, not exceeding .81, 5<)(t at any one time, the only damages for which defen- (Lmt M'as lialile would 'k' the diirel'en(,'e l)etween the r itc of interest payable to defend-.nt under the agreeUR'nt and tlie market rate of interest at tlie time of the breach. I'er Armour, J. — Under the true oonstrnction of the agreement the defendant was bound to su])ply .81,500 only. ^r,nnk V. Ij'itrh, 8 (). !!. ;i!)7— (,t. 'H. 1). Remarks upon the elenu'nts to be considered by the master in assessing (himages to a nninici])al corporation ujion failure of defendant in ))er- foi-uiauce of contract to carry on manufactures according to the terms of a by-law granting him aid. See ('or/iDrd/ioii ■'/' tin Vil/iii/t of /ir».W(-/.< V. J,'im,d,/, 1 1 A. R. 005. Measure of damages in an action of deceit on the part of the defendants, owners of a line of steamci's, as to certain contracts alleged by them to be held in connection with their line of steam- ers, whereliy the jilaintitls, owners r)f another line of steamers, alleged tliat they wei'c induced to enter into an ;igreement witli the defendants for the amalgainati(ni of tlu' two lines, and the formation in connection witii the defendants of a joint stock com])any to own and run the same. See Urtit/,/ ct ill. V. Xciiloii i't al., 12 A. R. 50. The plaintill' agreed to complete ami set uj) by a certain day a steam engine aiul maclM'nery in (letendant's mill in whicli lie had previously been using water |)ower, but failed to complete it for some time afterwards. The master at Owen .'■vnind, in estimating defendant's damages, al- owed him, for loss of |)rotits, in addition to ren- tal of the mill and interest on the value of tile macliiiieiv ;ind of logs waiting to be sawed, ,8! bS, On appeal from his re])oit, I'roudfoot, .1,, made an order declaring "that the true measure of damages the defendant is entitled to claim is the amount which would have been earned iiy the mill in the ordinary course of employment," aiiil referred it back to the master to review his ic jiort. On appeal therefrom to this court tin judgment was reversed ; the court being of ojiii,. ion that the master had been sulticiently lilicinl in his allowance of damages to the defendant tni liieach of the coiitrait ; and that had any great) i amount of damages been given it could have Ix i ii allow ed as s))eculative damages only. The right to recover for loss of jirotits discussed. Ct;,/,./ V. Ju/in.-'uii, 10 O. R. 504. I'etition of right for damages for failure on x\\<- jiiirt of the Crown to jicrform jigreemcnt. .Si. W'lnilKiir and AinKipdli.s R. W. Cu. v. J'/ic (Jn'tn tt at., 1 1 App. Cas, ;W5. The measure of damages recoverable by tenant for life of insured jireinises is the full value of siirji ])remises to the extent of the sum insured. ( 'nid- ii\ll V. Slaihiruiia Firr ami Li/'' In.'iarancti o, 'i'he C, P. & M. Railway Company owes tin bank of Toronto, or (n'der, the sum of 81, OHO liayable in ten years "^ * with interest at ^ {)cr cent, per annum, payabh; half-yearb, , on piv scntation of the projier c'f Seu al:;'! ). V. ll'l-tlJIi. ,1) M'Krn. ■mg aiith- ri't'orfiitidl was 111- obtain a ly suit ill uv enacti)i_' uiulor til' icgotiati.1'1 riiof siiall iiiipauy liy \VI.T(.' ill ,■(1 to tilv till! rail- tli'livfi-i'' V for silri' followiii-' oWi'S tile of 8 1,0(10 tiTust at ■< I'l',', on [in oattaclii'il. ot lillfil in ]>laintiti-, account I'' and ) 'V lurt of till lat tiic ill' mist go a> Kill law i>- 17* DEED. 178 lilting to deeds are not apjiliealde to such deben- tures, but rather the rules of the law merchant relating to negotiable securities. But if tliis Wire uut so, tlie fact tliat tiio name, bank of Tdidiito, was not tilled in until delivery to the plaintiHs did not make the debentures void ; it uiiiild come within that class of cases wliere .jeeds have been held gor)d, notwithstanding an ilteration or subsequent addition, iiecaiise, at •he time of execution, there was something which oalil not lie ascertained, and was thercfon^ to V' tilled up afterwards. Here, however, there WIS no execution, which im|iorts delivery, jirior :ii tile time when the name was tilled in : — Held, ,i\io. that, though the debentures were under -.-;d, tiiis ('■■' 'lot detract from their character, which was rather that of promissory notes than nf mortgages ; and tliougli the Act made them a charge on all the jiro[ierty of the company, with ;i riglit of foreclosure and sale, this was some- ihiiig su]ieriiiduced u|ion the security by virtue .f the statute: — Held, further, that the eoin- |]iny having issued the debentures in blank and handed them to the managing director, who was alsii secretary ami treasurer, to be dealt with by !;iiii at his discretion, he was emjiowered to com- pirte them by the insertion of the obligee's name, U'l the company would be esto])pcd from rely- ing on such defences as the above : — Held, lastly, liiiit inasiiiucli as it a|i|)eared that these delieii- •,;res were delivereil with a view to facilitate the ,iiiiliany"s ojieratioiis in getting out and dispos- ing' of ore, tlie main liranch of its business, this was a "negotiation" of them ''fortiie purposes of aiTying on the company's business, "and sowitli- i:i the meaning of the afor -laid Act and by-law. :rin/: of'Toroiito V. Ciihotini I'l'tcvhoromjli ,uiid Mar- ..'jra Jini/iaiy Coiiipaiuj d al., 7 O. R. 1. — Uoyd. ^ec nlao Cnrporatinii of the ('i>t/ af' (Jurhcc v. \Htbec Central R. 11'. Co., Md^. 'J. 11. .-i(j;i. i"). Di-ed-t iiiithr the >)hort Forma Acts, 182. (). CoriiKint.'i III S'te (.'oVENANT — CoVK NANTS KOK 'I'lTLK. 7. Kmh'iiee to E.ejilain — See Evint'scK, II. Ki:cTiFViN<: AND Vakvinii. I. deilrrilllll, IS'J. •1. I'liml tJfiiliiii-e.t'i Viinj — Vo l-]\ iDENCb:. III. .Skttim; Asiiii-;. 1. (iiiieniiiii, is:i. '1. FrilHil -See 1'kAI H ANli M |s]i::i'Rl-;sKN- TATIuN-FKArUfLKNT('oSVi;VANri:S. ;>. ('Iiiihl 1)11 Tttli — SVc Sale ok I^a.vus. Kiiiiisruv di'— .SVf^ RE(i(sTKV Laws. Hsroi'i'i--,!. i!V Dki'.ii— .SVc I'lsi'di'iM-:!.. . Tin: IV \ y\. I'articclah Dkkds Titl;:-;. ^EVI-.KAI, I. CoNSTRfl'TKiN AMI Ol'KllATIoN. 1. iJi ■■<('ripti()ii oj' Ltiiiil. In IS.-)],. I. I)]-:CKIT. See FuAri) AMI MiSRKI'KESENTATIDN. I )HCLARArOR Y J UDGMEy"' See Jl'1)(;:mknt. DEDICATIOX. Of RiiAiis — See Way. ."^ee VaiiKoiii/hii't v. DeuUon, 1 1 (). R. (i!)!), l.-iti ; KeiiiKiiy (t III. V. T/ie Cor/tora'ioii of' tin 'tyof Toronto tt al., 12 (). R. 211, p. 1S2. l)KKi>. I. (.Ji.vsTUfCTKiN AMI Operation'. 1. DcM'r'iiitioii of Land, 17S, 2. Coiiditionx and lie.-u rrnt!on.'<, 180. ;{. IMienditin, 182. 4. Estate Cri^ated—See Estate. 12 .nircliased the whole of hil 20 from the Crown, the lot nominally containing 2i)(> I acres, and describeil in the Crown Lands Depart- ; ment books as containing IT.") acres, more or less. On .SOtli October, ls.")2, before taking out his jia- tvut. .1. sold and assigned, by a writtc'ii assign- mi'iit to R., the east lialf or part of tlie lot des- ci'ilicd as scvtMity-live acres, "neither more or less," 111 |S(i:{, R. s be run under instructions to lay olF the seventy-live acres, which was done, and the [ilaintill "s father and .T. jointly erected a fence on such line. In lH8.'i, the [ilaiiititr iliscovered that the actual acreage exceeded I7."iaeies by some I'leven acres. The actual . s [lateiit wasKintined I to the seventy-live acres; — Held, that IJ.'s [latiiit would of itself incliule the eleven acres; ami there was iHitliing to slu'W that the [latent \\as issued by fraud or mistake so as to eiit'itle defeii- dants to have it reformed ; ami tliat defendants on the evidence, exce[)t as to a small [lortioii thereof, failed to shew any [lossessory titK' to the land in (pustion. Ciiln v. Jniilcln el al., (i O. R, .WJ- ('. I*. I). Atiirnied in aii|)eal, bf A. R. TrJ,-). Per Strong, .1., where lands are described by reference to a plan, the plan is considered as in- 4M^ «•» "5 179 DEED. 180 181 corporatdd with the deed, and the boundaries of i the lands uonveyeil as defined hy the ])lan are to he tai■!■, 10 S. f. I!. 105. Wlien a close or parcel of land is granted by a s|)ecitic name, and it can bi' shewn what are tlu' boundaries of sucii close or ))arcel, the governing |iart of the descrijition is the sjieeitic name, ami the whole parcel will pass, even though to tiie general ilesciiption thei'e is superaddeil a \iarti- cular description by metes and bounds, or by a ))lan which docs not shew the whole contents of the land as intduded in tiie designation by which it is known. .If/ rill v. /'/((//, 10 S. ('. It. ^'Jo. In IS,'!), the then ownei-s of ]iart of the lands in fpicstion had a plan jirepared and registered, and ill ISTl, tiny conveyed a parcel wliicii they des- cribed as liloch !•" : — Held, that it must be ])re- sumed they intended to convey the same parcel of land shewn on said plan as block V with the same natural boumlaries as those indicated there- on. //>. Held, that though a jilan not certified as re- (piired by the registry law, R. S. (.). c. Ill, s. 82, .subs. '_', had, although deposited in the i-egis- try ofiice, no effect under the I'cgistry law, yet in a deed reference might be made to it. as it might to any otliei' document in the registry ofiice or elsewhere, for the description or designation of a lot. Firiinsoii v. Wiidur, 10 O. R. 13. — O'Connor. A patent from the Crown ))urported to grant the W. h of a cei'tain lot of land, through which tlowe minutes K. 21 ciiains, more oi- less, to the place of i)eginning : c((utaining ~(\ aci'es, more or less, together witli the waters tlici'eon lying and being." l'"i'oni the ]ioiiit thus indicated on the margin of tlieC. lake, which was about the place of issuance of the I'', river frmn it. a shoal, a good jiart of whicii was exposed, extenf "land." A londitiou no ii rtijuire words a to be found in verier was a eo the testator \\\ Hilisequent brei hy entry by wh he converted ini also, that a " c( ti'in strictly so "conditional lii estate or interei ami determined its room ; and t therefore ^lerfec the heirs of.). ] titled to the Ian /" /■'- MclrUli; I Certain ordni «-as, in 1858, pa •^^ity of T., -^vi| patent: " Rroi ■^uliject to the 'the land) * * wirporation, ;ind l""^e of a luiblic lec'-eation of tin I'-, for all time I lation of '!'., j,, '•egislature an A ^••11, or otherwisi "lie of their com 181 DEED. 182 luiil toiik a proviso ), witliiiut II. ini.l piiynuiits auil Hill' lirotliii'^ ■n'iii iii'ii- I wi'itiiiL', rint. \V. iiistnuiix R. H. o'li- iKiy iii"i'c 1--H.M. I ctlui't x« U'follZlllK'l.' t interest. Kirticiilars ist rejiiinl liiiiiiltliat . district. Halienduni, for the purpose aforesaid, unto the iiuinicipal council forever. The deed was sub- ject to a proviso that the said council sliouhl witliin one year from its date erect a school-iiouse ini' the use of the said district, (jr if the said coun- (il siiouhl at any time erect any other huilding save said school-house and necessary ollices, or should sell, lease, alien, transfer, or convey the said land, it should he lawful for the said J. Le li. and his heirs to re-enter and avoid the estate iif the said municipal council. J. Le B. by his will, tlated July I'lh-d, 1847, devised all his real estate to certain nieces, and died in tlie year 1 848, without having revoked or altered .said will. The municipal council complied with the condi- tiiiii by building a school-house, and at the time lit tlie making of the will, the condition had not liecii broken, Init the successors of 1). district dealt with the land otherwise than was author- ized by the deed, and broke the condition. The land having been sold, a iietition was tiled to iiave it declared whether the devisees under the 1 will of J. Le ]5. or his heirs-at-law were entitled ti> the proceeds thereof : — -Meld, that the word '•possibility" in R. 8. 0. ch. lOli, sec. "J, includes a " right of entry for condition l)roken," men- tinned in sec. 10, and is more extensive than the hitter phrase ; and might therefore be a subject of a devise, and is covered by the general name of "land." And that upon the breach of the LOiiilition no new estate was acipiired, so as to I'eiiuire words applicable to after acquired estates to he found in the will. The possibility of re- verter was a contingent interest that existed in the testator when the will was inailo, and the subsequent breach of the cmidition gave a right liy entry by which the contingent interest might lie converted into an estate in possession ; — Held, also, that a "condition of re-entry," (U' eondi- tiou strictly so called, as distinguished from a "conditional limitation,'" is a means by which an estate or interest is to be jircmatiirely defeated ami determined, and no other estate created in its room ; and that the condition in this case was therefore perfectly valid. The devisees and not the heirs of .). Le B. were eonse(|uently held en- titled to the land or the nioucv rciu'csenting it. /)( /v Mt'lrillr, 11 (». 1!. ()•_>().— Troudfoot. Certain ordnance laud vested in the Crown Was, in IS.-tS, patented to the corjioi'ation of the lity . — Boyd. See also MiiiiijIkiu v. Co- '"ST. deed did not exj)ress the true agreement of the parties, and could not be allowed to stand ; but 183 DEFAMATION. 184 185 D. liaviiif^ iiutuecemher, shortly before the municipal and selutol trustee elections, the de- fendant and H., another school ti'iistee, win- discussing the taxes, when defendant sfiid that the trut-tees had paid too much for the wood ; that plaintill' had culled it, and sold the best of it, and had drawn the culled woo 1 to the scIhkiI h(nise:and, on H. I'cmonstrating with him, said: "Oh, but he dill, and 1 can prove it :"' that he couhl prove it by a person luimed N. Sabsc- (juently in the same month, a discussion tonk [)hice lietween defcn. ' The defendant pnhlished of and roneerning the plaintitl', a liusine^s man, in a written circular, ..ailed " Legal I'eeord Co., Itelifrew ," a state- iiielit meaning that jilaiiitili' had given a chattel iiiiiitgage on his property, ^^ liereas he had only ' a->igned one held liy him against another: — Held, lilielloiis, and not privileged. Liimn/ v. Vltain- \ h.rlaui, lOO. R. G3S— Q. 15. D. | I In an action of lihcl the liliel eiin>i~reii of let- ; ters of a very gross character puhlished in the i Ji'fendants' news])ai)er rellecting on the ))laintitr^ .IS warden of the Centi'al I'risou. 'j'he defeli- .lints refused to give the name of the writer of till' letters, and assumed resjionsihility therefor. The learned judge told the jury that "'every one lias a right to I'omnient on matters of )nil)lic in- ttrest and general concern, ])rovided he ihjes .so fairly and with an honest purjxise such c..ii:iiients are not liliellous however severe in their terms unless they are written inteni])erate- 1\ and maliciously." The jury found for the liliiintili' with ."SS.OUO damages :'-lield, that the liliL'l was not privileged or ])ulilished on a privil- 'lieil occasion ; that no exception could Ik; taken t'l the judge's charge : nor could it he said that "ill' lihcd was a fair coiiinieiil u]ioii a ])ulilic iiuit- tii' in whii'li the puhlie had an interest. M(is.-. \V. i.^ Co., the pro|)]-ietors of a inor- ■iiitile agency, ^\ rote to the defendant C. re- luesting him to advise them conlidi'iitially of liie plaintitr's standing and n spon.siliility for 'Ti'ilit, stating that phiintitl' "'claimed that his in'riiiises had lieeii luiiglarized ;'" that he had lost :iiiiii !?1. '_'()(( to Sl,(iO(). asking if this were' so. for iiill particulars, and whether there was not some- tiiiiig wrong. The defendant C. rejilied • "I have 'iUile enijuiry and tind that the generui opinion i" that he was not rolihed at all. and what has li.eii done he has done himself ; at all events, if !'f was rf)l)l)ed, it is of not more than .^^KM) or ^-'00; circumstances are against him; still I can- ii'itsay.'" The defendants 1». W. c*e Co., suhse- 'lUently issued a printed circular or iiotitication "lieet, on A\hicli, after the ]laintit1 "s name, were i the worils : "If interc'sted, eiii|nire at ollice."' Ihis was puhlished and circulated amongst the '!'-fiiiilants' customers, some SUO, in (.'anada and 'ill' I'liited .States, not more than three or four ;■; " hiiiii had any inten-st in the ])laintitl"s atl'airs. I'll' lircular also cont.-iined the following: ""The I'lir.ls'lf interested emiuire at the ollice," do not i'Hply that the information we h.ive is unfavoiir- ''le. On the coiitr;iry. it may not tiufrci(Uently hai)])en that our last report is of a favourahle ehariietei" ; hut .siihscrihers are referred to our olHce hecause in justice to them, the parties re- ))oited, and to ourselves, the information can only he jirojierly conv'eyed to those entitled to receive it liy the full report, as we have it on our records." It was proved that the words: ''If interested," ite., hail the cH'eet of injuring the jilaintiir. No attem])t was made hy C. to prove that the statements made in his letter were true, or that he had made eiiipiiry ami found the gen- eral opinion to he as stated. The jury found for the |)laintiti: -Held, that the words charged wei'c clearly lihellons, and there was no ])rivilege; for as to I>. \V. it Co., the coni't was governed hy hemay c. Cliamherlain, 10 (J. 1!. tl.'JS, it heing proved that tlie notilleatioii sheet was sent to all siihscrihers whether interested in the plaintitV's athiirs or not ;and the explanatory statement did not atl'ect the matter : and as to C. his failiiri' to prove the truth of his statements, or his helief in their truth, deiirived him of .lus- )irivilege. To:/'/ V. Dim, W'hiiiiii ,(.■ Co., if III.. \-l (). It. '7d9 — C. I''. I). See ^frC'iiitii V. Pri Di'irau, lOO. 1 DO. II. AlIlXTINi: PkKSuNS IN OiriCK, Tk.adk, or IhsiNKss. .S. et al., (respondents) partni'rs in ti'ade, sued the I). T. Co. (ai)iicllants) for defamation of the respondents in their trade. In the declaration i it was alleged ; -1. That they were wholesah! and retail nierchiints at Halifax. That a|ipellaiits I \\ roiigfully. falsely and maliciously, hy means of their telegraph lines, ti'ansmitted. sent and ]iiih- lishcd from their oHice at Halifax to their ollice in St. ,lohn. and there caused to he ])rinted, co))ieil, circulated and ))uhlished the false .iiid defamatory message following: — "dolin .Silver it I'o., wholesale clothiers, of (irenville street, have failed; liahilities heavy."' 'J. That same message was caused also to hi' ))ulilisheil in other jiarts of the Dominion, o. That the a])pellants jiromised and agi'ccd with the ])roprictor or piih- lisher of the St. John 1 >aily Telegraph newspaper, and entered iiitoan arrangement with him.w lure- hy the a|i)iellants agreed to collect and tivinsniit, hy means of their telegrajih lines, news des- ] latches to said newsjiaper from time to time, and that such )iuhlisher should jiay for all such messages and should pnhlish them in his new<- pa)ier, and tli.'it ill jinrsuanee of said agreement the a|)]iellaiits wrongfully, malii'iously and hy means of said telegraph, transmitted, sent and jiuhlislied from their otiiee in Halifax to their otiiee in .St. John, and there falsely and maliei- oiisly caused to hi? written, printed, co])ied, cir- Milated and ])uhlislied theahove message, \\ liere- hy many customers who had heretofore dealt with plaintill's ceased to do so, and their credit and iiusiness standing and reputation were therehy greatly damaged. Tlie 1). T. Co. denied the several juihlications ehaigcd, ami also the enter- ing into this agreement mcntioneil in the third i:onnt and the foi'wanliiig of the messages :is ,'il- legeil. .At the tri.'il it was iiroved that the tele- gram which was puhlished in tlu' morning |ia]ier wa.s corrected in the evening edition, and that the jiuhlisher's agreement was \\itli one .Snyder, an otllcer of the eom))any, to furnish him news :it so much for every hundred w rirds, hut that he ""•kali .HE <«iimm* finagfl' t.-iaM« •"fin itimaft 187 DEFAMATION. 188 only paid for such as he used. The original i despatch was not jjroduced. The oidy evidence as to damages was the evidence of two witnesses, ■ who proved that hy reason of the jjuhlication they ceased to do Imsiness with the lesjxindents as they had ])ievionsly heen accustomed to do. This evidence was olijected to as inailmissihle, but was I'cccived. Tiie dealings of these wit- nesses witii tiie jilaiutitl's con.--isted in selling their exchange and .sometimes discounting their notes. Tlie counsel for the defendants moved for a non-suit which was refused and the case ^vas suhmitted to the jury who, upon the evi- dence, rendered a \erdict for the plaintili's with i;7,IIO() ilaniages. On ap[)eal to tiie Supreme Court of Canada, it was: - Held, (Taschereau and (iwynne .).!., dissenting,) tliat the ap])el- lants, the l>. T. Co., were i'es])onsililc for tlic puli- lication of the liliel in question. I'cr Tasciie- reau ami ( iwyiine, .h)., dissenting, assuming the ugreement in ipiestion to lie one w ithin the sco])e of the ]jurposes for wliich the defendants were incor])i)rated, and that iSnydei' had suliicient authority to enter into it on hehalf of the defen- dant com|)any, the evidence estidilishcd that the defendants collected, compiled and transmitted the news for the juninictor of the new spapei-, as his conlidential agents and at liis re(|uest, and that they were not lesponsilile for the ]iulilica- tion liy the said jiropiietoi- and pulilisher fif said news, for which the damages ucic awarded. 2. Sir \N'. Kitchie, C.J., douliting, and lieiiry, J., dissenting, that the damages were excessive, and th'jicfore a new trial ouglit to he granted ; — Held, also, (ler Strong, 'Taschereau and (iwynne, JJ. Xo s])ccial ;,ii unfair ami false repoi't of the tiial. The dch ii dant by his statement of defence admitted tin. ))ul)lication of the article, but denied the inniii i; do, and also any malice, itc. ; and alleged tli.i- there was an inaccuracy in the article as t(j tlu: (luestioii which might have been asked jjlaiiitii! by which a wrong impression might have lucii conveyed which was coiri'cted at the eai'licst uii p t'lii, Mti.si, r. 'Hie plaint ill' 1 laiit. and on I DEFAMATION 190 unit ot til'.- the vallie IIL' ilS illl'cL't' tlicr A\i:\\\ •ill i'e])iitii- iuis a liii'll let wliiilil ijiliiiuLil I). it to ]ilc;iii| dcfciii'i' Ui ar;icter in I mills, '.Ml,f pre-si'iiti'i liy a cUi'kl tUI'lU'il tlutl II hdiiii'. iii| iHitud til! ilctVii(laiit.| (I ill 111! ad writtcii tho HiK-ky| ■rcuiiDii t lia.l lii'inl •h after il-f ici-s lit tlifl laiit iiiraiit| 1]' parts iiii.irio. iiiii| „•.; II ic lilii'lliiU!! liLTcfurc wtl aside and a new trial diructed, in order to sul>- iiiit to the jury the (luustioii whether the words ilid 111 fact hear that rieaiiiiig: — Meld, also, on the tact.sset out in tile rejiort, that tiiire was evidence to go to tlie jury in su]))iort of tiie iiiimeiido. At tile trial tlieiiaiiiv niaiiaj,'er to wiioiii the draft was returned was asiied, " W'iiat do you under- stand iiy tlie words ailded liy defeiidaiit V" To this nuestion oliji'clioii was taki'ii, and the judge ' ruled that in tlie aiisenee of evidence' (wliicii it w.is adniitted could not lie j,'iven), tliat iiy the usage of iiaiikers tiie words coni|)laiiied of liad a iiicaaing other tiiaii that conveyed Iiy tiicni in , tliuii' natural construction, the (lucstioii could not lie l)Ut:^lleld, that the usagit of liankers could not in any way lie the rule Iiy wliicli the nieaii- iiii,' of such words could he held to he governed, luit (following Dailies r. Hartley, :i Kx. L'OO) that nevertheless a [iropcr foiiiidation had not hecii laid for the ijuestion ; that the witness should lirst have lieeii asked if there were any eircuiii- staiiees which would lead him to understand the , wiiiils in other than their natural sense, and that npiili jiroof of such eirciiuistances the (luestion would have heen allowalile. As, however, the judge's ruling had iirecluded the ])laiiititi"s coun- sel from laying such a, foundation, a new trial was unlcred. hiiUr v.Cniokall, U) (). R.47 J -^i- B. D . Counter claim for lihel excluded in an action fur negligence. See McLkih v. Iluinilton Strtcl H.iilir,,,/ Co., 11 1'. R. liW. Aineiidinent of ])leailings. See McCaiin v. I'nii.noit, 10 0. P.. riT.S, p. lOO. See llld'jil'il V. Jlnilift/, •) O.K. .-)li:j, p. 184. 2. l^articiihi )•■■>. Particulars in an action for libel cannot he struck out as insutiicieiit : if those delivered are too general, the judge at the trial will exercise his discretion as to the admission of evidence thereunder. Citivns Iii.. R. :{:!4-c. I'. D. (c) (Hill r C'lines. In an action for malicious jirosecution and slander: — Held, that evidence of the motives which induced the defeiidaiit to lay the charge before the magistrate was jiroperly receivable, and should not have been rejected as was done here. There was no evidence to sustain the slander laid; but an aiiieii.liiicnt was allowed, to comply, as was allegcil, with the eviilciice. The only objection made at the trial by the defen- dant was that he should be allowed to examine witnesses on the new count, which was iloiie. An objection to the anieiidmeiit in term was therefore not allowed. The evidence in siipjiort of the amended count consisted not of statements made voluntarily by the defendant, but of ans- wers to (juestions ])ut to him, after he had laid a charge against tlie jdaintitF, as to the nature of it: — Held, that this was not sutlicieiit to sustain ■ 11 action of slander ; and that w oids so spoken were jirivileged. McCann v. I'reni mnt, A) (). It. 57:i-C. R. D. Action for libel contained in anonymous cir- culars written on a type writer imputing unpro- fessional conduct to the ]ilaintiH'iii sending "biini- mers" round "touting" for business, and in induc- ing other solicitors' clients to leave them and employ plaiiitill's tirin. Tlie evidence, which was circumstantial, was that on the \'M\\ Oc- tober, I'., M. and .M(d\., nienibets of the legal profession in llamiltoii. received through the post the above i-irculars all of the same import thoiigii not cojiies, marked with the 'J p. m. post mark, and iiiust have been posted between '2 and ;{ ]) III., as the jiracticc was to change the post mark as the hour struck. The defendant and a linn of C. iV \V. had their ollicc in the same biiilil- iiig. the latter having a caligraph wliicli the de- fendant, w ho was ail expert writer thereiin. was ill t'le habit of using. Almut l'2.:!l) on the dav ill i|Uestiiiii tlu^ defendant borniu ed the cah^rapli and had it away long enough to write the cir- culars. .About '2. 'iO after the defendant had re- I turned the machine, he came back with a piece ■•'Wall mats i«Mtj|l] Id iiiSk iiiaUII '"=11 "I— ■■ umbRi* 191 DESCRIPTION OF LAND. of ])apt'r ill liis liaiul which looked like foolscap M'itli the edge toi'ii oHhikI Hiiiiilar in iippeuriiiiee to one of the circulars, which he pnt into tiie machine and wrote .sonietliing on. He then went out, and returned in aliout three minutes and got an envt'jo])!', wliich rcscnililcil an envelojie enclos- ing one of the circulars, which he ])ut into the machine. It api)eareil, however, that the envelope was one of a joli lot which a cliM'k in.M.'sollice had disposed of amongst the profession. In the type- ■writer there weie iieculiaritics, namely, in cer- tain of the letters heing Idurred, whiidi were fiuud in the circulars. The circular also con- tained cx|iressions similar to those used by de- f(Midant in speaking aliout iilaintill'. After ('. liad been suiionaed to ])roiluce the machine, the defendant advised him not to do so ; and a liro- ther of C. 's, of whom the defenilant was legal adviser, wrote to C. also advising him not to pro- duce it, hut he said he did udt write at defen- daut'.s recjuest. The plaintitf also tendered evi- dence as to the defendant's style of coni))osition, which was i-ejected : -Meld, Kose, ■!., ilissniting, (I) that the evidence was not sntiicient to l)c suli- iriitted to the jury and it was therefore jiroperly withdraw n from them : and ('2) that the evidi'uce of style of eiim])osition was projK.'rly rejected. Scott V. Cnrar, II O. J!. 041 -C. P". 1). He- j versed in appeal, 14 A. l\. \')2. \ See Wilrork.i y. Hoir"//, .") ( ). It. .'{«(), p. ISo;; liradhn v. Mrlnto^li, .') (>. U. 'IT,, p. 'I'lW ; Linixj- j Man V. Tntut, () (). It. 4SS, p. I8;S; lliilxr v. Cronl-all, 10 (). j;.47r), ]). US'.t; .lA-orc v. Mitrln-U, I 11 ( >. K. '21, J). ISiS; Doiitlii'ioi) Tekiji-tiiih, Cnin- pdiii/ V. ,S/7(v,-, lOS. C. n. 2-M, p. l's7; Milhitr V. Lltk, U) 1'. R. '20.-), p. 2'A-l. 4. Da iitaijai, ' H(!ld, iier (,'anieron, C.J., and Halt, J., that in thiscas'.' the damages were excessive, and they ' were directed to he reduced to .SKKKt, provided such sum \\ as ])aid hy a iKuned date and plain- till' elected to take such sum, otherwise a new- trial was directi'd. I'ei- Rose. J., that under the I circumstances the damages were uot excessive ; | but as plaintill's counsel had intiiuatecl that a smaller amount would be iicccjjted if j)aid within a reasonable time, he Wduld accede to the reduc- tion, on plaintilV accepting such amount, other- wise the motion for a new trial should be dis- missed. .l/('.«/'' V. The Toronto Priiitin(; Co., \\ O. J!. 3G'2 -C. I'. I). See Wilaichs v. IIuhyV, 5 (). I,', -.m), j). ISo; L'niniixt(j]i v. Trout, !) (). J!. 4SS, p. bsM; Duni'miov Telvi'inijih Co. v. Sihrr, 10 S. C. 1!. '2;« p. KS7; Moore V. Milclitll, H (_). It. '21, p. 188. all cost.s without juilgnient being entered, is a bai- to an aetirui against others for the same lilicj Wiltrodn V. how. H. b See also ■StiliviKv. J'tiiiiicit al., 7 0. R. .'5,"),"), UK LAV. See Laciiks. DELK(iATlO\. A judicial (illicer cannot delegate the dischur;,'i of his judicial functifins to another unless i.v pressly eiri]>owered sn to do. /// ri' tjnan Cili, J\\/iiiiii'j Co., 10 r. R. 41.').— Ilodgins, .Voattr /'■ OrdiiHirij. Of payment. See //" *•(.•.• v. I'irrouU, 10 S. ( R. GIG. DELIVKliV. I. Of Cut — Vc (irrr. II. Of Gootis — Si'i' Sale of (Joons. III. Of ros.sEssiuN— .S'ce S.vleof Lands. DEMUR RACE. Held, reversing the judgment of Armour, .1 . at the trial (Armour, .1., dis>enting), that in ncm. puting denuirrage Sunday is to be reckoned ,.> one of the ilays to be allowed for. " |)ay> mean the same as running days, or consecutive days, unless there be some particular custom. 1: the parties wish to exclude any days from Xh comj)utation they nuist be exjiresse(l. Cililmn '. Mirlnol',) Bill/ I.Hinlii r Coriqiaiui [Limitul], ~ i' R. 740- Q. li. I). DEMURRER. Stv Jit«;mi;nt — Rlkaiiino, DEPOSITS. See Ranks. AVhcre in an action of I)',"j' a verdict for .*1 damages was found, ami the judge at the trial gave no I'crtilicate for costs: — Held, that the ])laintili' was entitled to tax full costs. (Jainett ?•. Rradlev, ■'? App. ('as. !)44, considered and fol- lowed. I'l'i/.so/^ V. liolertx, 1 1 1'. R. 4l'2-0. R. D. DERUTV RETURXR\(; OFFICER. .SVi' Parijamkntaiiv Ei.k< tiuns. IT. Mi.sf'Fu.i.ANF.ors Ca.sfs. A recovery of a verdict in an action for libel i against some of several |)arties concerned in the | libel, and ])aymcnt of the amount of verdict and • DESCRIPTION OF (iOODS. See Rills of Salk and Ciiattkl Moktoaok- DES( RIPTIOX OF LAND. I.. In Dkkds — See Dkkd. II. In Patfnts — SVc Di:i:d. III. In Wn.i.s~,sv, Will. iV. Boir.vD Wati y. Of Ro. ALuroxv F See ExKcu DEVOLUTIC See lie Iht S, Of Moil I In A("i It is not essei Jilaimer of a gr: likwl or by record. I L Of Doci .mi R. Of Nkw ]•: DISMI: DISQI !■ Of Maoist SON OF Jn I'KACK. II. Of Voikks 'nox.s. 13 distress: 194 irnioiir, .1 . hut ill (V'li. 3t;k()iifil .1- lOllSCl'Utiv. ustoiii. I' from th' (lilihon V. /I. Tii iV. BorNDARiKs— St'c Bor.NDARY — Deed — Watkk ani> Watkr (Joukses. V. Of Roaus ok RuiiiT of Way— 5VcWay. DESERTION. Alimony fok— .SVc HrsnANi) and Wifk, DETENTION. iSVc C(INVKKS[ON. DEVASTAVIT. •S't'c Executors and Administrators. DHVISE. See Wu.h. DEVOLUTION OF ES'I'A'I'ES ACT, 1886. See lie. liiihlini, \-2 O. 1!. 781, p. 207. DIRECTORS. See CORl'ORATIONS. DISCHARGE. Of MoRTliAliK — See MoRTCiAdE. DISCLAIMER. Ik Actions — See Practice. It is not essential to the validity of a dis- ijiiner of a grant of land tliat it sliould he l)y cil or hy record. Muffutt v. Sera/eh, VIA. It. 1,")7. DISCOVERY. I. Of Doclments— .Sec Evidence. II. Of New Evidence— .SVt New Trial. DISMISSING ACTIONS. See rRAt'TicE. DISQUALIFICATION. I. Of Mauisthates to 'Try Cases nv re.'.- son of Jntehest — .See Jlstices of the Peace. II. Of Voters — See Pari.iaiMentary Elec- tions. 13 DI.sTRESS. I. Foit l^ENT. 1. For irlutt 11, nl, 1!»4. 2. What diKiils 111(11/ III' hUlriiiiiiil, 10,">. II. For MoRidAOE .Money, 10"). III. FoK MiNicri'AL Tanks, 1!17. IV. Damaoe Feasant, ]!I7. \. Unuki! MAiasTu atks Wahi; ant — s,, .Ir<- ticks ok imk I'kack. \. I'ol; It INT. 1. /•'.,/• //•/,-(/ /.'.;,/. The defendant made a lease under seal to It., dated the Stii Noveiiilier, iSS4. for live years from the I2lh .Voveiiiher, at tlie rent of .s-l()(l. pav- alile half yearly in advaliee on tlu' I2tli Novem- ber, and May in each year, 'i'he lease eontained a covenant that, "if tlu^ lessee sh,ill make any assignment for the henelit of creditors, * * the said term shall immediately lieeome foifeiteil and void, and the full amount of tlio eiiirent yeai'ly rent shall he at onei^ clue and jiayalile. " It. paid the first half year's rent. On the otli May, IHS,"), It, made an assignment for tlie henelit of ereclitors ; and on tla^ Stli .May, the defemlant, claiming to do so, niidei' tlu' ahove eo\ enant, dis- trained for tlie half year's reiit,\vhit'h, in the regu- lar course of time, would havi' heeii (lavalile in advance on the I2tli .May : Held, that'the di>- trcss was valid ; for that under the ahove covenant it might he held that the money reserved as rent accrne. , though not admitting defendants' right to it. The slieritr afterwards .'-^old for less than the ex- ecutifins. and re])iiil the solicitirs : — Held, that the distress was illegal, for the statute 8 Anne c. 14, sec. G, applies only to cases where the ;;;^i it)*"* I* UIMgl* 19/ DISTRESS. 10^ teimiicy 1ms liueii ilctormined l>y lapse of time, and not !)>' foifi'itiiro ; and that the plaintitl' H. was entitled to iceovei' the ainonnt feeeived liy defendants, (liahani r. iMu^, ill ( >. I!. 'iiS, n()t followed. I'er Armour, .1. — 'i'lie year's rent i)e- came due - -(..). H. I), 1. U'lidt (liHiil-^ iiKui hi- /)i.s/riiiiiiif, ('. having paid rent due liy J!. to H. in order to secure tin: sum so ))aid and othei' advanees, took an assignment of the residue of the term from It. wild forthwitii took a lease fi'()m C. foi' a term i>f tiuee months, the rental lieing the amoimt of ('.'s advanees to U. : - Held, that sneh a leasi', however liinding lietween the )>arties, eonld not ereate the relation of landlord and ten int so as to enalile ('. to distrain tiie goods of tiiird p.irties on the ])runiisi's, the intention, as disi'los.'il liy tlie evidence set out in the report, huingmaiiifestly not to ei't.-ate sneh riilation except as a selienie to eiiahle C. to sei/e such goods. TIkmiih.^ v. (\tiivroii (ft v". .See (Irniit V. (IrnnI, 10 I'. It. 40. The juilgmeiit of tlu! court lielow (4() Q. H. 7) reversed, as the plaiiititV had not shown tliat In; was siilely entitled to possession of tlie logs, the Hulijeet of distress and tlie seizure as regarded his co-owner being lawful the pi lintitl' ec^uld not maintain rej)levin, ,S))ragge, C; J. ()., dissenting, who thouglit that even if tlie logs Wi^rti the joint jn'operty of the jilaiiititi' and one of the tenants, and had been delivered to the millers for the ])urpose of being miiiufactiircd into lumber, they could not be distrained on, for their being on the premises for that purpose had the etl'ect of ex- empting them from ilistress ; and that under the uireumstiiices there should be a reference back to the judge who had already tried the case to iind tile f.icts more distinctly, in the event of that being impraetic able that there should be a new trial. I'dlitr-vin v. Tliomp.ion, 9 A. II. 3'2(). 11. l'\iU MoUl(;A(iK MONKV. Tlie ])laiiitill" company having brought an ac- tion against 1., on a mol'tgage, and eliiniing dam iges for having made a distress on F. ,tlie tenant of the premises at the reipiest of I., on tlie rt'ference to ascertain whit dam ige the com- pany had properly sustaineil by reason of such distress, tile master held that the amount of a judgment recovered by F. against the company was the proper measure, and was conclusive i vi deuce of the amount, although it was proved li. fore him that an oiler liad lieen made by I. ; the company to furnish witnesses and assist i: the deleiice, and h.id been declined, and the u;- nesses when examined showed tliat theirevidi n might m:iteri.illy h ive all'ectecl the vercliit : Held, that the ruling of the master was en>>ii oils, and that the c;is(^ must go back to him • revise his re[)ort. I'lJii-liurniiijh It' id K.^l.ih / n. -it nil' id Co. v. Ircliiii, ."> ( •. K. 47.--l'roudti« : The plaintiil "s father I'xecuted a mortgage, .; clared to lie in )mrsiianee of the short foiin Mortg.ige Act, of certain land, dated 17tli .Ni ember, I.SSl, to the defelld.ints, but which w not exeeute{. at the same time, and also a distri'ss el.iuse, Ti mortgagor was to remain in possession until n-: fault, lie remained in ))ossessioii and [laid t inst.ilnients due on the 1st Xovi'inber, I.SS'J ii 1SS;{. He died intestate ill Decemlier, I.SSl.wli till' ])laintilt, a son, by ariMiigement witli ! other lieirs at law and tlie widow, occupiil : land. At the father's de.itli there was diir ; prineipa,! 5t, the defendants, being entitled tn 'i train for prinei])al, could justify therefor. .U Doiirll V. 'J'/ii' Jiiiili/iiii/ nil'/ Loan As.incliii'"] Toronto, 10 U. I!. .■)8()— C. P. D. A mortgage made in pursuance of the Act speeting Short Forms of .Mortgages, R. S. d 104, in addition to all the clauses mention the statute, contained the following ))rii\ and vari.ition : " And the mo-tgagor (loth il to the company all his claims uiion the said l.iii and doth .attorn to and liecoine tenant at wi the company, suliject to the said proviso." mortgage, among other statutory clauses, vided tliat the iiKU'tg.igees on default of payiii for two months, might on one month's m't enter on and lease or sell the lands ; that t might distrain for arrears of interest, ami t i until def.iiilt of payment, the mortgagors s I have (piiet possession : — HeM, allirming tlio jiii I inent of the ( 'oart of Appeal(() A. B. L'Siil, Kit C. .1. ami Tasehereau and (iwyiine, J.I.. I'unt that upon tile |)ro[)er' eoiistruetion of the 'i there was no reservation of rent entitliiiL' mortgagees to claim a landlord's right as ai:.i an execution creditm' of a year's arrears hI terest on their mortg.igi^ before removal of _'< on mortgaged [iremiscs by the slierill. Tri(<' j Lodii Co. V. Laivrii.'f the Act 1 R. S. 0.1 meiitiiiiu'i| ing ]iriivi-' doth ivli the said lai lant at wi u'oviso. I'lansi'S. y\ lit of payi ronth's n"f.( Is ; that till rest, and tlj tgagors ?ili" ■niingtlu' i" .-JSil), r.ifi e, J.I.. i'i"i1 n of till' t entitli'.i-' I ■ight as au.il arrears "i I iiioval "i - itr Ti-a<' . U. K. «' DISTRICT COURT. Held, that the jurisdiction conferred on the District Court of the ProvisionalJudicial District of Thunder Bay by 47 Vict. c. 14, ss. 4, 5, (Out.) ia not subject to the exceptions to the general jurisdiction of the County Courts mentioned in H, S. O. c. 43, s. 18, and that, therefore, the Dis- trict Court has power to try actions in which the title to land conies in (juestion. McQauid v. Cuoperetnl., 11 O. R.213— Q. B. D. 2. Titl>' to Ldiiil, 198. ,1. ArUiiiis on Xot..<, 199. 4. Otli-i- Cii.si.i, 199. .'i. Aji/i/iri(tioii for full Co-'iln — Sir Co.STS. II. xVitacument, "JOl. III. I'KiM'KlCIHNdS ri'liN JriHiMENT Si MMONS, •Jdl. IV. lMi:iiii.E\iii:K, '.'III. \'. I'RAtrU'K, -JOI. VI. KXIXTTKIN, '20:). VII. Al-I'KAL, '.'o:?. VIII. Actions AiiAiNsr Uaii.ii i s, •JO.'l. I. .ll RISlilCTION. I. 117/' (V Ar/ioii'i iiiii.. Alliiiiad in Appeal, Suu J{r Hush, II v. Mi,ss, II I'. I!. ■_'.■)'.', p. '.'(K). vas yraiiiiii : mi:\ lacKiii /'. v lu.sw ilk, o i . li. .'01, anil \\ idniiyir r. .McMalion ct al., \V1 ('. 1'. iST, rcl't'iri(i to anil ilintinyui-^liLil. It(. Yohihj V. Monkii, li> !'. i;. •-•7(i.- i;«)Sf. 4. (HIk r C(us'.<. "Ml'. 1'luiinas i'"iirl'ar. — i'ka.se ship lis your olil Itoilor anil unginc, to lie in goml slia))L', to our uildres.s, not later tiian .June Ttli, KSS.'^, for the •snin (it ir^l I.") ami shatting. — (i. Cliniie iV Sou :" — Held, tiiat the loregoiiig oriler did not aseertuiu the aiiuiunt thw, m) aw to liring the case witliiu the iiicii'ased juiisilietinn of the l)ivi.sion Court.s under -I.'! \'ict. e. ti, (Out.) /'o/v'"/' v. Cli/nir, 10 I'. K. W). The plaiiitili' brought his action in a Uivision Court tor ;<74,;il, his claim licing.'^l.')! !.:•!(>, an un- ascertained amount, as against \\ liich he admitted a set-oil ot .•;:>;■.'.()."). At the trial in tlit^ Division Court the iilaintiir allinncd, and the delendant denied, that there had lieen an agrceineut l)e- tw eon them to set-otl' agaiiif-t the [ilaiiitill "s claim the vahie of certain [ uichascs made hy the plain- till' from the dcfiiidant, and the judge at the trial found, as a matter of fact, that tlieie had been such an agiicmeiit : — Held, following Flem- ing r. JJving.stone, (i I'. U. (i'A, and Uixon r. Snarr, G 1'. ll. .'!.■!(), that it was a (picstion of fact for the judge of the Ilivision Court to determine whether oi' in it there was an agreement between the ]ilailiti(l and detendant ; and the judge Ir dictinn, and a proliHiitioii wan rtfiiRed. In k Jiidin.-< V. .»////<(•, 10 r, 1!. 03.— Cameron. Applii'.'itioii for a |>i-ohi))ition to the judge et the lirst division ( 'oiirt of the eoiinty of Kent, and to the plaintills, to piohiliit them from pio seeiiting this action, which is bionght upon a I'onnty Court iinlgment for 8-1 1. sT, the plain tills abandoning the exeesH of their claim o\ii •-<1(M), and claiming ."^KIO : Held, that an iiifeiiui court has no juiisdiction to entertain an actinr rouglit upon the jiidgment of a snpirior coiiit. /,'- Hhirls ,1 ill. V.' /.'/y-o/v , 10 P. \\. '_V.7- Ciih Keversed II 1'. K. 'I'MS (,». I'.. 1). I'lion ])roceeilings being taken in the |)i\iM(.i Court, in an action in vhieh that court has ikii jurisdiction, the defendant is entitli.d to pmlnh! tion imniediately ujion the action being broii-ln. and the fact of no notice of statutory defeiii. being given niider sec. !CJ K. S. < I. c. 47. il'ii. not atli'ct the defendant's right to piohibitioi //( ,;• Siniiiiii-rfilill v. iro//.s, |'_>(). |;.4.S- (^». 1',. li The plaintitl sued in a l>ivision Coiiit for tli' conversion of a mirror, w!:ich the lU findant cuii temhd Mas annexed to the freehold anl lia.l I'lissi to him tluicwith. The judge of the llivi sioii Court found that the mirror was a chatte! and gave judgment for thi' plaintill ;- Held, n- \ersing the decision of (('Connor, .)., who hail directed a writ of prohibition to issue, that, tin. judge of tlie hivision Court having found as a fact that tin; mirror was a chattel, his tlecisim. should not lie inlcrfel'cd with liy way of ))idhiM tion. n, liiishrll V. J/o.vs 1 1 1'. J!. -Jivi-C. 1'. b The defemhiiit rented certain iireinises fren the |)laintitr for a year, agi'ccing in writing tu pay monthly i^Vl't thertfoi', but no formal Kiim' was executed. When the rent had become four inou'lis in arrear the plaintitl' entered tlirn plaiii'^s in a Hivision Court against the defeii- daut, cacli for a month's rent, .SI-.") ;- Held, that the SUMS claimed in tlu^ thi'ee pl.iints were pay- aiilc nniler the one contract, and would liavu j l)cen inclui'icd in one count under the old systeii: ' of jilead'iig: and, thcicforc, that the division iiiti- three plaints was inijudper undci K. S, ( >. e. ",. .s .")!): Held, .'ilso that the defendant's signatlMV to the meinorandnm of lease could not be con- strued as ascertaining the amounts claimed in tin? ]ilaints ; and prohibition was ordered. Iti d'cr dun V. O Jiiiiii, II I*. \{. i!S7. —O'Connor. A Division Court has jurisdiction to entertain a claim for less than .'5100 made by a moitgaL;i'r upon the sui])lns proceeds of a niortg.ige sale which realized less than Si'\{). Such a c'laiiu i- an e(|uitable cause of action for money had aii'l received. 7i''' Liiiiirh' "/ al. v. 77/(' ('(tiidda J.inH' '■ ,111(1 /lankiiiti Co.,' 11 r. R. 5 1--'. -Boyd. A claim aggregating ino.'e than §100 and less than .''^'2(10, w liich is made u|) of two ainoiiiits. one li(|inilateil and one unliiiuidatcd and both kss then ."Si 00, cannot be sued in a Division Court. I'er Armour, .1. — 'i'he claims could not have hitii sued together before 4!) Vict. c. h"), s. (i ((int.,),aii(l that Act docs not expressly or implii'dly atleit the (juestioii. I'er O'Connor, J.- Hut for 4',t \'ict. e. IT), s. (j (Out. ), the ease would be goveiiicil by Vogt r. lioyle, cS 1'. It. '24(1. Jt must be as- sumed that the legislature iiitciide. ■.'(I'J //( /'I The Mirr/iiiiil.i Hunk v. Vna Alliii, ill r. It. .'US, |.. 'JO'J. n. ArT.VCII.MKNT. ( )!' gooils of uli'^.'oiiiliiiK .' 111. I'lloOEKDI.NHS I I'dS .hlHlMKNr '^l VIMO.VS. Tho order of ,i hivi.sion ( 'onrt judgo iiiioii jiid},'- iitiit .suniinonsdirected that tluMlefeiidaiit shoiild |.:iy the jndniiieiit dcht within a lixed jieriod, lUil in deliUilt that he .should lie eoninrtted to :,iiil : — Held, that the put of tlii' order as to ini- |iris(iilinent was not .siistainulile ; the defendant, it lie did not pay within the time liiiilte(l, was iiititlud to a day to show eaiiso why lie did not )iiiy ; and pidhilii.loii was orderid : SeniMe, the ikluiidant shoiild liavt' called upon the eleiU of tho (;()urt to .show eaiise aj^aiiist the issuiii;,' ol ;(iiy order for iinprisoiiiiieiit, a.s such order is iiiiiely ii ministerial act. Vo' \Voll\ v. lilokibj, II 1'. It. WO.- -Wilson. IV. InTKHI'LK.WiKI!. (Ml ail interpleader proceodiiij,' in the Division iniirt under 48 \ict. c. 14, s. (i, suli-s. :{ (Out.), in respect of a claim to goods taken in execution, iiiy claims lietween the parties themselves for iliiiiages arising out of the execution of the |)rii- '■■■s, must also lie liroilght lieforc and ad indicated ii|i(iii hy the judge who hears the interpleader ^ullllllons. Whether such claims arc then lirought f'lrward or not tho adjudication upon the siuii- Uidiis is final and eonelusive hetwecii the |iartics, anil no action can afterwards be maintained in ivspiict of them. In such an action the fact of the previous adjudication may ho properly jilcad- 'A as a defence. Hesersing Wilson, ('. -J., !l (.). K. TUT :■ ~ (^luere, whether the proceedings there- in can he summarily stayed on motion ;— (itiia'iv, _«liether ail apjieal lies under c 14, s. 7, suhs. '2, iroiii the adjudication of the judge of the Divi- -■ioii Court on a claim for damages. Fox v. mhujtun tt aL, 13 A. 1!. '2'JU. .•^elA ice upon a defendant resident out of the JnriMdietioii is not a principle of pr.ictice within the meaning of sei'. '241 of the hi\isioii ('mirt Act, liut a liraiich or system of inaitiee, or a means of relief uhieli the priicediire in hixisioii Courts does not admit of lieing applied. Neither J!. S. (). c. 47, s. '2»4, nor liiiles ,s and 4.") ( ». .1. Act, inak(; apiilieahle to hivisioii Courts tins statutory rules and practice governing serviei^ on (lefeiiilantH out of the jinisilietion in actions in the iSiipciior Courts. /// /•• (I'lii/ y. ilriiml Trunk n. w. Co., 10 1'. II. Osier. V. ru.vcTici-;. .v., entered a notice disputing plaintitr'a claim lu a Division (.Nnirt suit, and olijeeting to the risdiction of *lie court, hut did not appear at ihc trial when the junior judge of tho county of Vui'k, upon proof of the plaintiff's claim, and iicli facts as in tho ahsonoo of proof to the coii- tniiy established a jirima facie case of jurisdic- '.iiiii entered a judginont in favour of the plain- till for §44.75. On motion for prohibition on thf ground of want of jurisdiction: — Mold, fol- I'lwiug Archibald r. Buslioy, 7 1*. 11. 304, that tlio granting of I'rohibitiou under tho circum- s*;mce3 was discretionary : that it would be un- iaii' to place upon the judge trying the case, the wirden of cross-exaniiuiiig tlie witnesses to ascer- 'I'he (Jraiid 'rriiiik Kailway lia\iiig their head otllce ill .Moutreil, I'. <,>., are not defeiidauls residing or ca iryiiig on business in this province, «ithin the nieaiiiiig of I!. S, ( ). (•. 47, s. .")'2. /'». Held, tli.it till! ser\iee of the writ in this action on the station inaster of the defeiidant.s at I'lowmaiiN ill ', was void, but the defend.iiits having appeared at the trial, and aflei' their olijeetioM to the juiiNdiction had been overruled, lia\iiig proecjiled with the defence and cross- examined \\itliesses, i^:i'. ; -Held, that they h'.d I thereby ]ireelu(led th(!iiisclvos from olijeeting to the jiirisdietion. Il>. Til an action on a promissory note, brouglit in a Division Court, .M., the indorser, was made a ilefendant by the onh'r of the judge, and u .i.s si'i'ved by the original defendant, the maker of til" note, with a notice elaiming relief over and iudeiiiiiity, but was not served with tlii! siuii- mons or a eo|)y of the plaintill's deinaiid. M. tiled a iiotiei! disputing the defeiid.'int's claim against him and the iiiris(li(!tioii of the court to try it, and also ajipeari'd at the trial, and gave e\i(lelice and objected to the jurisdiction. Judg- ment was given for the plaintill's against both the original deleiidant and M. : -Held, that jndg- iiieiit could not have been given against Al. in his absence, because the writ of siiinnions and statement of claim had not been served upon him ; but that by apjiearing in the suit and tak- ing jiart in the pi'oceedings both bet'ore and at the trial .M. had wai\cil service of the sumiiions and dotnand. J ii rf The Mii'diniil-i Hunk \. Viui Allin, 10 1'. 1{. .'US.— Osier. Qua're, whether the third party clauses of the 0. J. Actapiily to Division Courts. /// The judge of a Division Court has no jurisdic- tion to set aside a judgment after the expiry of fourteen days from the trial. I'l Foli ij v. Moran, II P. i;. 310.— Wilson. Although the defendant has fourteen days to move against a jiidgmeiit in the Division Court, it is proper for the plaintilf to enter judgment and issue execution forthwith, unless restrained liy the judge to a future named day. lU. Tl'.e practice under Kulo '270, (.). J. Act, is not applicable to Division Courts. Ih. See Wolt: v. Wakdij, 11 V. R. 430, p. '201. See also In re KnUiht v. The Un'dul Tuwnnhips of Medora and Wood, 11 0. K. 138. i«iB«>' \p .;■»•■ tiiJl-il ""■-I m^BT DOWER. <>Ai I 00.1 VI. EXECfTfOV. Quii^ro, under R. S. (). c. 47, «. KiO, whether ii person wliose i^ooil.s Iiave hecn seized under Division Court iiroeess can liave any further re- lief than the restoration of his goods. Tacbtt v. lMtu)i, 6 O. i;. 4Sl)— ('. !'. 0. YII. ACI'KAL. An appeal does not lie under the Division C'ourts' Act 1880 on a, iiuestion arising between a primary" (■re ditor or plnintill' miuI :i irnvnisliof. Section 17 of the Act gives the riglit of aj)peal to "any party to a cause," Imt a garnishee is not a " |)arty to a cause ;'" he is merely a party to the j)roceedings. Heswick v. Bajipy, it V.\. ."51.") followeil, hut not a])])roved of. Vouirron v. Allen, 10 1'. Pv. l!l'2. -Cameron. See Fox v. Si/niiii'ifnu >2 ; Mdi/int) v. Mtvjuru, 11 A. K. 178. DO .MINION PARLIAMENT. I. PuWF.US OF— .S'(f CoN'STITlTKINAI, LaW. II. Ei.KrnoN.s TO— .SVe I'aklia.mkntaky Elei •■ TIONS. DCnvER. I. Ri(;nT OF. 1. In Partnership Lands, 204. 2. Jn M<^rtnriin.ttiii ('/ (I,/., !) O. K. 040. — Ferguson. Where one died entitled to an e(|uity fif re- ■ ;riii|)tion in certain real estate, which he had iiiginally pnrcliased subject to the mortgage still .\istiiig thereon, and the same having been sold ; i'.i (citaiii administration jiroccedings, his widow !.i)w elaimeil arrears of dower in res])ect thereof ! MU'ing tile period betwec ' the dciitli and sale, i vlicii she was in jiossession by herself or her ttiiaiits : — Held, that there being no assignment if (lower, and the husband not liaving died seised ill fee so as to give his widow legal dower, she «",i.s not entitled to arrears of dower as of right, iiit (inly u])on the ciiuitalilc consideration of the ; fiiirt, and the jirojier mode of exercising the i ■:inie M as to deduct from the rents received by tin; iiiilow ])lus an occu]iation rent charged against liir, so much as she had properly ajiplicd in meet- ing necessary outlay and expenditure in respect "f the laud and buildings, and allow her one- third of the residue as her arrears of dower. /I'c Pory, Stewart v. V'or//, 1 1 0. K. 374.— Boyd. D. lieing owner in fee of certain lands, on March 4tli, 1884, mortgaged the same, to secure ])ay- nitiit five year.s after date, of certain moneys, i^n March l.")th, 1884, he married the ))laintiff, ■ml died intestate on August Kith, 1SS4. He ivft no other estate: — Held, that the plaintitl' .'iiiid only claim dower in thee(|uity of redeni])- timi, unless she I'ontributed ratably to the amount ot the mortgage iiiciimbrance, Method of ar- riving at the amount of dower in such eases puiiited out. Ueid i: Keid, 2!) Chy. ;J7'2, nn'iitcd on. B((y,l. JJohhiii V. JJuhhIii, 11 O. R. .184. II. RuiiiT (IK Dowiti'.ss TO Partition. l>(.e Dirvreiu: v. Kenrmt, 1 1 1'. R. 452. III. WiDo.v.s' Elkction. j hi the case of separate devises though the wife iiiy be barred of her dower in one she is not ! iKiefore bari'ed of I r dower in the others. | wan V. Boxuvri'r, 5 O. U. ii24. — I'roudfoot. .\ testator, by his will and codicils, devising | tis real estate, kc, to (i. H. M. and H. M., trus- 1 tecs, and the survivor of them, and the heir.i of i such survivor, gave hi.s widow an annuity and provided that when lii.s son should attain the age of twcnty-rmc Ins trustees should convey to him fine-half of tiut estate and the residue when he should attain thirty, subject however to tiie annuity. He also provided that if his son should die before attaining tlicagcof thirty, the said trustees or trustee should liold " the said real and ))ersonal estate, moneys, and securities, or so much thereof as shall remain in their hands, in trust to distrilaitc tlie same aicordiiig to the statute of distributions." The last codicil ap- pointed (!. ]■;. T. k (i. R. and the siirvixor of them, and the heirs, executors, administrators and assigns of sue'- survivf^ir new trustees and executors in place of (J. H. M. and 15. .M., with the same [lowers. The son attained the age of twenty-one, received half of the estate, and died before attaining the age of thirty uiimarrie(l and without issue : — Hchl, that tiie widow was en- titled to her annuity as well as her share under tlie statute of distributions ; but that the testa- tor, having treated tiie real and personal istate as a lilended fund to be distributed, she was not also entitled to dower, and tiiat she must elect between tiie distributive share and the dower. Ill' (Juim/ii), (Jiiiiiil/i/ V. (Jiiiiiilii/, .") (). R. 7''i8. — Boyd. J. C, by his will devised as follows : Fir^t, I will and be(|Ueatli unto my beloved wife, I*;. ' '., on(!-lialf uiKlividedof the ])lace where I now live being * * so long as she shall live and no loiiLCer. 1 also will and bi(|U('ath unto my said wife one-lialf of all the goods and diattels I may own at the time of my leiiiist> * * Third, I will and be(|ueatli unto my grandson, D. (_'.,aii(l to his licirs and assigns forever, the place or Iioniestcad wlierc 1 now live, it being • * * with all that ajiiicrtains thereto : subject, never- theless, to the following conditions, that is to say ; my wife !■;. C., shall have (luiet and jieace- able jiosscssion of all said [iremiscs with all that appertains to said half of said homestead for her own use and belielit as long as she shall livt; * * I also will and IxMpieath unto my said grandson, I). C, one-half of all the goods and chattels I may own at the time of my demise." In an action by the wife, E. C , claiming both the legacy and her dower, it was ; — He'd, that she must elect. The testator having treated the homestead as one whole tiling, the half of which he specifically bc([ueatlied to his wife. Card v. Cootfi/, (i U. k. 22'.t. — ISoyd. A will be(iueatliiiig to a wife the dwelling- house for her natural life, the household goods and an annuity of f<'M) secured to her out of the estate was — Held not to ])ut the widow to her election. /// /)/(/(/«/', li'tijijiw ct til. v. St'iusvii it al., 8 O. R. 372. — Ferguson. A testator, after beciueathing certain legacies, devised his lands to his sons, charging them, however, with the legacies and also w itli an an- nuity of .SIOO to his widow, to whom he also be- (|ueatlicd his furnitur", a]iaitmeiits in his dwel- ling house, and sundry other things. The estate was sutiicieut to answer all legacies, and alsotho widow's dower ;- Held, that the widow was not put to her election as between the will and her dower 'i./.tvii If, I", 7 (). I!. 177. -Osier. Where a will in exjircss terms makes jirovisioii for the testator's wife in lieu of dower, thus bring- liidiS (ti: ••'•9*" it im»» .19** fill 207 EASEMENT. 208 ing directly to licr mind tliat she cannot have dower and the licnctit.s of tlic will as well, inueh less dealing with the |)rf)i)erty left to her, will evidence an election on her ])art to take under the will, than wonld he suthcient in the ahseiice of sueli expiess ]irovision ; - Held, in tliis case, that, tlu'i-c l)eiiig such ])rovision, the evidence set out in the' re|)iirt of the case was sutfieient to estahlish an election to take under the will, tliough otlierwise it would not liave heeu. \lxX'ii V. Asliriihiirsi , 7 <). it. (i(i4. — Cameron. A t'fstator, hy his will, left all his real and personal property to .J. K., " suhject to tlu^ fol- lowing hc(piest, viz : to my wife ]•]. K. a one- thii-d interest in all my I'eal and personal estate, so long as slie shall remain unmarried ;'' — Held, tluit K. K. was hound to elect lictween the will and her dower, foi' the former imported that there was to he the same manner of division of the Ian. R. T.SS', followed. Aiii. .1. Act, he com- pelled to take any steps under the Dower .Act. Moure V. (•'. Mnuiv—Mouir v. /'. Jfo'in-, 11 1'. H. 324.- i'nuidfoot. 2. Di'/ciK'i-s. (a) /}(tfn"l hi/ Ldjixr of Timi'. The owner of land diiid intestate in lSr)8, leav- ing his widow and two infant (laughters in pos- ! session, all of whom continued to occupy ami cultivate the farm until 1883, when the daiiu'li. ters left the premises. In b'ehruary, 1884, tliL' widow intermarried with .1. M. Xo proceeding' had meanwhile heen taken or claim made hy tln^ widow to have dower assigned to her. In :ui action hrought hy the daughters against .1. .\1. anil his wife, to recover possession thereof, tlii- mother claimed she was entitled to retain pos- session of the ])reniises in respect of her douci-, l)Ut : — Held, that the liglit to dower was liairf.j liy ,38 Vict. c. I(j, s. 14, ((Int.) which rc(|uires pid. ceedings to he tidieli to enforce a widow's dou',|' within ten years from tlu' death of her hushainl Mr Donald y. McUar, WW. R. 121. (h) Strdc'iiKj Old. In an action for damages fordetentionof dowei, defendants ]ileaded (I) that the lands in (|uestioii were wild, and plaintill' was not entitled to thr sum claimed for damages, if any ; (2) that ])lain- tiff had assigned her claim for damages ; (.3) set oil' for moneys c:.\])eiided in resj)ect of said land.-. ; (4) that they did not detain, hut were alwajs willing, &e. On a motion in Chamhers, after issue joined, for an oi'der y»;/A^s v. Hidrhisoii, 12 A. R. 110. [See.'iO Vict. c. S.] DRAINS AND DUAINA(iK OF L.\NDS, See Mu.N'icii'.vi. ('oki'ok.v'I'ions — W.VTEit .\nd \V.\TKIt COUKSKS. EASEMENT. I. Pahtv Walls — .SVr Ik'iLiUNcs. II. W.vfER —Sc' Watkr AM) \V A ri:i; C'oL'HsK- 1*., the owner of lots 8 ami 0, hy his will lie-i vised the same to trustees in trust to sell, hi 18()!) the plaintiff purchased from the tnistuos lot 8, (Ul wliich there was a house with windows overlooking lot ((, immediately adjoining it, the said lot Tieing then open, and not huilt upon. | In 1873 the trustees sold lot!) to Mrs. Priestiiian, who sold toT., who erected a house thereon. T. sold to (i., under whom defendant cluimed. At| •209 the rime !'. ac iiiimrtgage the I'l'ii'stinan suh ^lIllse(p^ently the usual Stat p .'i>tered hy he was entitlei i"itli light and tlie s.mie had tloii of T.'s h iury found tlia: !iut injuriously ri'tistees, at tin ii;tviiig merely ivhich in them le;Ml estate, tl thriiiigh wliiim J'Mird with an iiinl that no inii ilise. By the 'M;, acipiireil tl iiiil the i'i[uity 'liei'eiii, lot !) m ! ! S in respe'et •le plaintill'. ( I. 1'. D. line piece of lied hy an eas aiiell l)i)th heloi 'ihii has, in the i.'lit of enjoynr !'■ thinks tit am >uliservient to tl :"!o,— and if tl ; he vesteil in f :iiigiiisliment of viiiiisly haveexis «iiat may have I «ire in sepai'att '■ he so, and hei ';Uiisi easements, iisiihseijuently li pnividing {„y tlu ■liere is no imjilii tlie land retaineil :"'iits of nece.ssil -lie for this pui lie ajuiarent and li the •. sion :— Held, ii ».is untitled to re- Jsnt having thu.s lliiiiitiff's tenant ; ilie ilef'endant froi aiil shewing title "'iglit hring to rei ^■llariiian, 6 0, I 14 208 ■209 ENDORSEMENT. 210 _ (IL'Ksr..- lis will ik'- I) si'll. In I It; trustees li wiiiilows I ling it, the milt upon. I'riestniiui. i)on'(>n. T. imed. At | the time P. acquired lot 9 he did so su1)ject to iiiiini'tgagu tliercon, and the trustees sold to Mrs. I'l'iistiiwui suhji'ct to such mortgage, which was vuli>c(|uciitly discharged liy (!., who nhtained tlif usual statutoi'v discharge, whicli was duly Ri.'istered hy hiui. 'Die ])laintiir claiuicil that \w was entitled hy ini|)licd grant to the light of liutli light and air to the saiil windows, and that tlif >iainc had hccii infringed ii|)oii hy the cree- tinii of T.'s iious(\ In an action therefor the iiiiy founil that the liu'lit had hcen infringi'it, hut nut injuriously : -Held, that hy reason of P.'s tiu^tees, at the time they sold to the |ilaintitr, •laving ini'rcdy an ecjuity of redein|>tion in lot !), wliich ill them lUiVer heeanie converted into a liij'al estate, their ecjuity, transmitted to (J., •hiniigh whom defendant claimed, was not hur- vned with an easement aiii)urteiiant to lot S. ,ii.l that no implied grant to light and air could iiise. By the discharge of the mortgage on lot 'Ki. acfjuired the legal estate of the mortgagee. iiiil the cmiity of redemption hecoming mei'L'ed 'lu'r(^iii, lot !) never was a servient tenement to l.-t S in respect of the right to light claimed hy tlie plaintiff. Carfi r v. 'drnsrii, II (). K. -.VM '— r, 1". I). 47.^1V(mdfoot— C'hy. 1)'. An action by a inortgagtje for foreclosure, pay- ment, and possession of the niortgag('il premises is not ail action of eiei'tmcnt within the meaning of the exceiition in Itule ■2."i4, O. •\. Act, aii■- sion :— Held, in ejectment, that the iilaintill' 'lis entitled to recover hy leasou of the defeii- I'lant having thus obtained ])ossession from the ■'iiiiititl's tenant ; but that this was not to estop liiii' defendant from ilisputiiig the plaintitl's title »ik1 shewing title in himself in any action he ffiiglit bring to recover possession. MnllwUand |v. Ilavmin, G 0. R. .■)4(;— C. P. I). 14 ELECTION. I. Or DiRKcnDits — .Vcc C'dki'oratiovs. 11. Willow's Er.KCTION' — S'lC DoWKl!. III. }illXI(;ri'.\L S'fV MiNICII'AL CoKI'oR.V- TloNS, IV. PauI.IA.MRNTARV — .SrC Paui.iamkntary Elkctions. V. SriiMissioN OK Canada Tkmi'Kkanck Act TuVoTlUiS — Sec 1nT(iX!0.\TINU LHiLUK«. Election by assignee to allow creditor to retain, at a valuatiiin, propertv held by him as security. See B(ll V. /.'-wn c/! ((/.,"i1 A. R. 4.")8. IClection to waive ])crsoiial liability on a note and acce()t the liability of the company by prov- ing against the company on the note, and accept- ing a dividend thereon. See liroinn v. Ilowland, !) P. R. 4S. ELECTRIC LIOHT. See Bell Telephone Comiinni/ v. Jhll< rille Elec- tric L'njhl Coiiipany, 12 0. R. .■)71. EMINENT DO.MAIN. ■SVe Mc.N'icii'Ai. Coui'oiiATroNs — Railways and Railway Com i>aniks. idSM'; ifiBMli •ct; 4C^ ttiS_- - ft.—" '^r'miio'* ENDORSEMENT. Of Writs— .b'ee Practice. 211 ESTATE. 212 213 ENTAIL. Set EsTAiK. HQUITAliLK ASSETS. Sec Ikuik i)j Toronto v. Hall, (J O. R. 653. EQUITABLE ASSIGNiMENT. i>(x Anitxiroixj \. Ftirr, 11 A. R. 18ti ; Uroirii el at. V. JohiifiOH i-t al., 12 A. K. 100. EQUITABLE LIEN. See LiKN. Escin':AT. Sec Simpm)! ct al. v. Corhitt, 10 A. R. 32. ESC1!(J\V. Sec Coiif'edemliuii /.i/'e A.i.^ociationy. O'Donnell, 10 S. C. R. 92. I. II. in. IV. V. VI. VII. VIII. IX. X. XI. xn. XIII. XIV. ESTATE. EoK Ykars — Sic Landloki) and Tkna^'T. FOK LiFK. 1. Generalbj, 212. 2. Jill the Cnrte>nj, 21'-'. 3. Doii-cr — See Dowek. EsTATK Tail, 212. ESTATK IN FkK, 213. RuLK. IN Siikli.ky'.s Cask, 213. Tenant.s in Common, 214. Convkyance of — Sec Deed. Tkt'st Estates— (See I'ki'sts and Trus- tees. Administration of — See Executors and Ad.ministkators. Conversion OF Realty into Personalty. — See Conversion. Devolution of— .SVf Devolution of Es- tates Act. Partition of — See Partition. By Devise— iSfc Will. Ok Particular Persons. 1. Marriid ]Vu7)ia)i — S<-e Dower — Hus- iiANi) and Wife. 2. Infants — See Infant. 3. Lunatics — Sec Lunatic. 4. Tenant — See Landlord and Tenant. II. For Life. 1. Ueneralhi. Hold, following Drake v. Wigle, 22 C. V. 4(1.'), that a tenant fof life in thi.s eountry may nit down timber in tlie pioper conise of good hiis- lian., thi' expressed eoiisideration of natural lovt.' I and atleition sutlieing to carry the use to 1).. in I whom the deed, viewed as a covenant to stand seised, would vest the entire estate. Rut ([uaic, ' whether the express limitation of the use in the ! hahendum after 'I'.'s death would not rebut the I implication of an ininiediate vesting of the use at the date of the deed in J). , so that the use of ao nuicli of the estate as was not expressly limited, viz., for the life of 'V., resulted to and vested in T. Dniila)) v. Dinihtp, (i (). R. 141 - Boyd. The decree which directed the deed td be reformed was reversed. See S. (\ sii/i. num.. iJiinlo/) V. /)iinlop el iil., 10 A. R. 070. See also Ronn v. Kronslxin, 12 0. R. l'.)7. 2. Bi/ the Curtesy. In ISO!) L. married C., his deceased wife's sister. ( !., having had a son by L., died, in 1.S71, seised of certain lands of which L. reiiiiuned in eontinuous possession until 18S3, the time (if action brought : Held, that L.'s occupation was to be attributed to his rightful character, wliiih was that of tenant by the curtesy, so as not to work tortioiisly against the heir-at-law of tlie wife. He Murraii Canal— Lairson v. Power", ti O. R. ()S,'). — Boyd. It is not necessary to entitle to tenancy by tiie eui'tesy that the marriage should have lnea canonical, lb. K. I A. by deed s his heirs, ex -i|,nis, "to lui\ his heirs, execu M trust, for tilt ite, and after lii-r life : and al eirsof A., and then ill trust to I iis ill A., his iiid assigns, for lit for ever, Bi :;, that event, ai liooease of C, niises to such ])i s!i;ill iiy his last rate, and a))p()ii intestate, then lid premises fo: tiiitors, and ass t-tiite ill fee sini estate of C'. civiited as took tl BuKihutii atH Fti'giison. /: III. KsTATF, Tail. Held, reversing the judgment of the Court of Apjieal, () A. li. 312, Henry, .1., diss., that tiie execution and registration in accordance w itii the revised statutes of Ontario, e. HI, s. t)7, »f a discharge of a mortgage in feu simple made hy a tenant in tail rcconveys the land to the nioit gagor barred of the entail. Lawlor v. Lmrlui; 10 S. C. R. 194. Certain owner, lands by deedgn i!i(l assigns, to h lis lieirs and assi r.is heirs ,iid a.' Ijh, 187.'), and Hdd, that whet! Matute of Uses •-iietieial interes dirt as if it A\-eri "'the benefit of Jldcalfe, 11 O. V. Rii. Hy ante-nuptia tended to make F, agreed with ht rev to K. certain p hold unto K. f( 11, F., and Iiis ii ives, and after tli ho use of the sur JV, and after the '•eof the heirs of H'l it was furtlier .ent siiould bi; c I'lument. After !if said ante-nup >i9, certain lane rust, witli the eoi tic survivoi-, to se •>Siiiiie, and to h ii upon tlie trust outlined in the a ife having died '^le children of tli « entitled to a ci [■ to hiiiLself in fei the ante-nuptial t executory, ,niii,'ns, "to have and to liold tlic same unto B. liis heirs, executors, achninistrators, and assigns ill trust, for the sole and sc))arate use of A. for life, and after A. 's decease, in trust for C'. for iiii' life ; and after C.'s decease, in trust fur tlie iieirsof A., and in the event of A. survivint: C, liieli in trust to convey and reve.-.t the said prenii- sis in A., his heirs, executors, administrators, iii.l assigns, for their own ])ro))er use and liene- f,t for ever. But should C. survive A., tlien and :i, that event, and in the further event of the i liecease of C, in trust to convey the said jire- ; iniises to such ])ersons and in such manner as A. : h;ill liy liis last will and testament order, desig- | ute, and aj)])oint. lUit in the event of A. dying i intestate, tlu'ii in trust to sell and convey the liil premises for A.'s heirs, executors, adminis- trators, and assigns": — Meld that A. took an tstiite in fee simj)ie, sul)ject to the intervening lite estate of (.'. ; for no such special trust was riiited as took tlie case out of theStatute of Uses. /,'• Biuiihitui and ]\'i(jij/e.iiruit/i, i> 0. K. 611. — Fd-guson. I Certain owners of tlieecpiity of redemption in liiiils by deed granted tlie same to " A., his heii's assigns, to have and to hold the same to A., Lis lieirs and assigns, unto and to the use of B., heirs ,ud assigns." I'his was dated .hdy i;th, IST.'i, and registered .Jidy 21st, IST."):-— il, that whether this deed oi)erated under tlie Miitute of Uses or not, B, took inuler it tlie iieficial interest in fee, and it had the same efot as if it were a conveyance to A. u])ori trust in- the benefit of B. hnpursiuvnce of this iiinent. After the marriage, F., pursiuuit to he said ante-nuptial settlement, conveyed, in ^TO, certain land to K. and his heirs, ujion rust, with the consent of F. and his wife, or iif survivor, to sell, lease, or otherwise convey anie, and to hold the moni'ys thereon aris- is'ujiontlie trusts and subject to the powei-s Mituined in the ante-nu])tial settlement. F. "s ife having died ; — Meld, that, though there tie children of the marriage still surviving, F. ■IS entitled to a conveyance of the lands from i to liimself in fee sim])l'', for that the trusts the ante-nuptial settlement were executed and rt executory, ."vl under them F. had an etjuit- le estate in fee simple by virtue of the rule in illey's Case. Fcrrix v. Ferriti, < t al. , 9 O. R. il— Ferguson. KSTOI'I'FL. I. By Deed, 214. 11. Is I'AIS. 1. Title to Piojii'i-ln, 21;'). 2. Acrrptiihj Dividend, 215. .'?. Iiill.1 of Exrhani/e, 215. 4. In Rclution t<> Eh'ction.t, 215. 5. I'dlcnts, 21(5. (5. Aijdinsl (leiii/inij Lialilliti/, 21 (J. 7. Othiir Casc/i, 217. III. JrnrjMENT — See .Iitkjment. IV. Esrori'EL ANi> Waiver in m.vtteus or I'liAC'TU'E Vcc PUACTICK. V. As liKTWKKN LVNDLOUI) AND TENANT — -Vie Landlord and Tenant. I. By Deed. M. C. made a voluntary deed of certain land to L. C. At that time M. V. had no title to the land, it having been j)reviously sold for taxes and conveyed by sheritl's deed to B. There were no recitals or covenants for title in the deed to L. C., and by it M. C. did "assign, transfer, demise, release, convey, and forever ((uit claim" to L. C, his heirs and assigns, ;dl his est.ate in the land. 8ubsc(|uently l'>. sold and conveyed the land to M. C. : -Held, that the deed from .M. C. to L. C. did not operate liy estoppel to vest the estate in tiie land subse- (piently acipiircd from B. in L. ('., for (I) tliere was no recital or covenjints for title ; (2) it did not purport togrant any estate in the land, but nurely to assign or release and(juit claim to L. , M. C.'s interest therein; (.3) it never had any opciration, for L. (.\ never i)aid anything for the land, never went into possession, never claimed to be owner of it, or paid the taxes, and from the first repu- diated the gift. It is a firmly established rule of property in Ontario that covenants foi- title are sulHcient to work an estojipel, though it is other- wise held in England, ('(ixsi-lmitn et id, v. Vai^el- maii, 9 0. R.412. — I'roiidfoot. T. to whom the patent of the land in question subseipiently issued, by deed iioU made prior thereto, bargaiiu'd, sold, aliened, and confirmed the land in (|uestion to L. habendum to L. and his heirs ; with a covenant of warranty : — -Held, that on obtaining the patent T. was estojipetl by the deed from setting up title in himself uniler the patent ' " "~ C. I'. D. -h'ohrrt.foii \: Dali.,, 11(J. R. .T)2- See jvlso In n Lajilaide and the Corfiornlinn of the Town «/" PettrhoruKi/li, 5 O. R., (534; Pratt V. The Grand Trunk Ji. W. Co., 8 O. R. »|^^^ "iMBk l.,».i U'mtf'* ((!■!«« tummmn '"man {i;-i«« «.IIM»<* ;:;»•" tiiiamk 215 ESTOPPEL. 216 4()!( ; Mojjatt v. 2farlianl.^' Ihnik of Ctufnla, 11 S. C. It. 4t) ; T/w (Inp J'riii'iiii/ mid PiililUh'iiiij (,'iiiiijiiini/ iif Tona/'ii v. Jii(/rir/ii/il, 11 .\. I!. U."). 11. In I '.us. I. 7V//i /(I J'fojicrti/. L., ii inanii'il wdinaii, almut the year ISoO as.sunied to dovi.sc (.■tTtaiii laii. retained tlit interest so assigneil and upon a dissolution ii- assigned simjily what he had receive : — Held, that I!, was not estojipi'd from dis|)m. ing the validity of the jiateiit. Tin Crip I'l'nj- 'ni'i (iiul I'lihlinhiiKi ('oii/jKtiii/ of' Turiinto v. y,'"'. tn-ji,l,l, 11 A. H. Uo. tinguisl.ed A mortgnj , ,^ commenced procieedings under a nnirtgage. one Jf. C. S. profes.sed to have a claim to >,on\.- of the propc rty as an alleged jiart- lierof theni< .-rgag..' 11. K '■ It ajipeared, how- ex ei', that 11. i'..S. \, „ _ireb.ii .viien the mortgage was given, and knew all al.'.nt ho transaction : that the money which the mort'^age w.is given to secure was partly for the jnirposes of ii printing office, in which only he claimed to be interested as such partner ; and that he had, at the time of the transaction, made no objection and asserttil no claim :—lleM, that, under these circnmstan- oes, H. C. S. was estopped from .setting up any right or title as against the mortgagees, whose title was the .same a.s if he hail joined in the mort- gage. Ji'oliiiison ef al. v. Cnok, (i (). H. otH).— Ferguson. See MidhoUand v. Harmon I't (d., (i O. R. .")4G, p. 'iOi); Carter v. Oniticll, 10 S. C. K. 105, p. 05. 2. Accepting Dividend. Heelfer/ina v. Bank of Nova Scotia, 11 S. C. 1!. 1 p. 169 ; Beemer v. OVaxr, 10 A. R. 656, p. 218. .3. BilU of Exc/iaiKje. Held, in this case, that although plaintiff, by acceptance and payment, was estopped from disputing the signature of the company, the drawers, yet he was not estopped from denying their signature as endorsers, even though it was on the bill at the time of accejitance and pay- ment. Bijan v. T/it Bank of Mimtrcal, 12 O. R. 3!).— Q. B. U. 4. In Relation to Electionn. A trustee of a public school board is not pre- cluded from becoming a relator in a quo warranto (). Aiiaiwl iJaujini) Liididiltj. Uiuler the authority of the Act, 38 V. c. tT. theC. 1'. & M. R. Co. issued debentures in blank, \vhich were handed to the managing diicctii who subseciuently handed them to the plaiii:irt~ as security for a debt of the railway. In an a. tion for an account of what was due nnder tht- debentures and payment, or in default a salt. it was : — Held, that the company having issnoil the debentures in blank and handed them to tlif managing ilirector, who was also secretary aii'l treasurer, to be dealt with by him at his disi if. tif certilicates of stock from (piestioniii: the legality of the issue of such stock. Per Strong anil Henry, .1.1., ((Iwynne, J., contra that although A., a mortgagee of the shares aii'I not an alisolute owner, had taken a tiausfi absolute in form and caused it to be entered in the books of the com])any as an absolute transfer, he was not estopped from proving that the trans fer of the shares was by way of mortgage. 27-'2S Viet. c. 23 (sub-s. 19 of s. 5). Paije v. Austin, 10 S. C. R. 132. See also Reifinn v. Tlw Corporation of tl County of Pert/i, 6 0. R. 195. 217 On a nu(tion luyer, against tiieni from payi HIS shewn tha Im'OH taken as t( hy the town am !»■ i:hoseii. that ^U||port of the jinl the majori the other. It lipped by hi.s eel iiid that' Me.A. ;!R' (;oi'))oration "A", having dcni >ite chosen W;ls 1 ii'>'^nliici<'nt j)rc)< -Held, that he pHI'poses of the till' members o willed, have be( -till they were n yuKjtion was gri ■iliiiii if //ii: To Ferguson. After the exec III' creditors the iieditors, at wh itteiided and ass iiiii one of the iviiiiHiig up the e |i.i-scd to pay eel tviiiiiiied and rc| iitiiiu of the str,( i-i'iiiglit an actio: '."K, recovered ji cveeution, conteu ihvalid :— Held, t I'tlie assignment ia,' its validitv. W.— Osier. In an action 1 .liiist the assign iriicHt of creditoi liividend declared 'leaded as a defei iie validity of sail limi creditor of tl if^igiled to be .sci bterpleader issue impeach the said ;.us repudiated tl iiini the belletit :-senting), iigood H-e not entitled t n the plaintilis tl -11 tried upon ( 111 that the plai ■tlie assignment \ Mpeaehing it, thi.- 'iiiiitiirs right to tigiinieut ill' creditors the assignee called a meeting of the trt'ilitors, at which the defendant, a ci editor, ittcnded and assented to a resolution a])])ointing ■iiii one of the trustees to aid the assignee in iviuding ujitlie estate; and a resolution was also scd to pay certain arrears of wages ; and he rfunined and reported (m the amount and con- ition of the stock, A few days afterwards he niught an action on his claim against the deb- "|-s, recovered judgment by default, and issued r\L'cution, contending that the assignment was '.valid : — Ifeld, that the defendant had assented [ithe assigiiinent and was estopped from ileiiy- 1114 its validity. (Inrd.m r v. Kli'iijij'ir, 7 < ). K, JllH.— Osier. Ill an action liy a creditor of an insolvent aiiist the assignee under an assignment for the irncKt of creditors to recover the amount of the liiividciid declared njioii his claim, tlie defendant llilvadcd as a defence that the iilaintill' disputing Ithi.' validity of said assignment had, as an execii- liuu creditor of the insdlvent, caused the goods isMgned to be seized, and on the trial of an Ititi'i'plcadcr issue directed had endeavoured to ipcacli the said assignment, and that having lis repudiated the assignment he could not now liiii tlu' bciielit of it : — Held, (O't'oimor, .1., v>L'iitiiig), a good defence and that the |)laiiititl's ic not entitled to ri'covcr. It was contended i the plaiiitill's that the said action not having L'li tried upon the merits, the court having 111 that the plaintiU's being assenting ])arties the assignineiit were estopped from afterwards ipcaching it, this defence formed no liar to the diitill's right to rank as a creditor u])on the late of the insolvent ; — Held, that the mere 'ringing of the action was a sutlicient repudi- lioii to disentitle the jilainlifi's from recoviM'ing. ''•r ()'( '. 1!. 41.")— (,». B. 1). Reverseil on appeal, ' yet ri'ported. It was proved that the owner was himself pre- at at the sale in (jucstion, and purchased (nic lot which was ten or eleven ahead of tlu^ lot in (luestion, and also another lot three below it oil the list ; but it was not shewn that he was pre- sent when the actual lot in ipiestion was sold; — Hehl, that he was not estopped by conduct from eoiiiplainiug of the .sale: — Held, also, that the fact that the owner was informed within three months after the sale of the lot having been sold, w hen he might have redeemed it, would not de- jirive him of his right of action. ( /n.rtvii v. Sluli/'!/ tt «/.., !» (). K. 4.')l. - I'roudfoot. The persons apjilying to c|uasli a by-law in- eor|)orating a portion of a tn a cainliil ite for the otHce of reeve, and another hail Immmi elected ' to the school board, but none of them had in any way promoted the passing of the liy-law, or had any ]iart in the taking of the census olijected ! to : — Held, that tin.' apiilicants were not estopped from moving to ipiasli the by-law. A'l [■'• iilmi 1 I't ill. V. Till' Ciirjiiiriilinii of' till CdiiiiIi/ u'' Sliiivni', 100. R. -27— Q. 15, I). Of insurance conijiaii}' from setting up condi- tions in policy. Caliln; II v. Stadacoiia Fin- ami Life Jn.s. Co., 11 S. C, li. -Jl-'. The chamberlain of the city of Saint .lolin is authori/ed, without anj' previous ])roceediiigs, to issue execution for taxes if not jiaid within a certain time after notice. In order to avoid such execution the bank of New IJrnnswiek [laid their taxes under protest : — Held, that .such pay- ment ilid not preclude them from aftcrwanls tak- ing proceedings to have the assessment ipiaslicd. I Kr piirle Jaiiiea JJ. Leirin, 11 S. C. U. 484. I*\ being about to indorso notes for the accom- iiKHlation of II., conveyed his ri'al estate to O, , who then conveyed to the wife of F. After- w.irds I'', became an insolvent under the Insolv cut Act of 187;"). and the assignee took procei'di ig.s to impeach the transaction, the result of wliich was, that it was ileclared fraudulent ami voi.MMISS10N. 1. Apiilicatitin fur Jssnt of L'umini. 2. /.'< 3. /n 4. Ot 5. ,SV XX. Core XXI. Co NT XXII. Rkjii XXIII. In p. IN 1. A 'J 2. At 3. lia 4. Br 1 5. Co) 0. Fr< 7. Sal 8. Li' 9. LI) A 10. Xe 11. Sed 12. Of 13. Of a: XXIV . E VIDI On XXV . A I'PLI Ne 1. Lctt,-rs \Vhere negoti are carried on 1 iiii'iit of a suit iiiu-ked " witho ,i,':\en in evident iiotwithstandiiii V. Vardon, tj (). '221 EVIDENCE. 222 rejtidii:' ,'2'1, ONS. OH the '/)•(/"■ 0. is, 22-^. T OF CuniT, IMISSIUX. ProdllCtiun 225. lilAL OV I'aH iU. tnliaU: Jlu^' •2'2ii. IM. So, O. J. A ,ts. the [irouial " , 231, p. 224. iiox OK \\r 12. DTIIEK Pl'BL Document*. ')eeds. ml, 2;!4 nher irW'i' ; L. •IDKNl'K. be J'rudm 2. Proof of Dci'dhii Memorial, 2i2, \ 3. LoM hoCKinriit.f, 242. XIV. PiidoK i)Y Entkiks, 243, | XV. Kfkixt ok .Tidomkst ix Imiumkr 1'ko- t'KKDINdS^.SVc- JrOllMKNT. XVI. Hkaksay Evidknok. 1. Ill (Jiii'.^tioiis di' /'I'l/'ii/ree, 243. 2. J'Jridcitcc of lieputatioii, 243. XVII. Evn)i:x(!K ok Ci'sto.m and Usaiik— ■S'lv ( 'USTOM AND U.SAGK. XVIII. Expert Evidkxoe, 244. XIX. Pkodi'ctiox and Admission ok Evi- dence. 1. Onus I'roljinid;, 244. 2. Ridi nuicii, 24(). 3. //( /iV/>///, 24(i. 4. Other Cate.-<, 247. 5. Secundary Eeidi'iice, see p. 241. X.X. ('oRKolioKATIVE I'^NIDENCE, 247. XXI. CoNTKADKToRV EVIDENCE, 248. ' XXII. rvKMiT TO IJeijin — SVeTiiiAL. j X.XIIl. In I'aktk lEAi! AcrioNs or. Proceed- ' in OS, I 1. Afjenaj—Svo Pkincii'ai. and Agext. i 2. Arliitni/iiiu — Vrc Aruiihation and Amard. 'A. /ii(ii/:nipfc!/--See Baxkucptcv and Insolvency. 4, Bnnrh of ['rom'nte if Murrlwje—Sti. HisiiAND AND Wife. 5. Confrorerlid I'JIirfioliii—Si'e Parlia- ' mentarv Elections, (J, Fritiid-~S. -.liSiS I" ■ >■ 338 EVIDENCE. 2L't A protest ih only presumptive evidence of the posting of notices of disiionoiir of 'i theii' lands which were used .is |)ulplic I'oads for upwards of cighly years, the oriLrinul load allowances l)eing idl that time in the occupation of the owners of the hauls, and used and treated as their own projieity, and no evidiiice was adduced to raise a, prcsunijition that coni|iensation ha, explained. Jtnniirv. 'I'hiCur- poratioii of (irliiinlii/, !.'{ A. I{. 'J'J."). III. I'ltlVILKGKI) ColMMlNK ATIO.NS. 1. (Iiiicritllij. In an action foi' lilud and slander the plain- till's eouns(d insisted on the iii'oductiiiii of a cer- tain anouyiMous letter w ritteu liy thc(lcfcndant to the Ontario ( iovci'uiiient. relating to tlic licens- ing of the pl.iintill's hottd. TIk,' head of the de- partment attended and ilcclincd to produce the letter on the gi'nund that its production would 1)e injurious to the pnlilic service, and it was therefore ])rivileged. The juilge ordered the letter to he ])roduced, liut stated that if the court shoulci hold that the production wa.s not eoni])ellal)le, any verdict recovered would go tor nothing. The letter was then ]iroducedand read. 'I'lic jndge told the jury that the h.tter was not evidence of liliel as it was privileged, liut that it could lie looked at as evidence of malice uu the slander count. The jury found foi' the iilaintitl': — Held, thatthe (|Uestion whether tliepi'ixluction of such a docununt was injurious to the jiuliliu service, nuist lie determined, not liy the judge, but by the head of the department having the custody of till' ]ia])er, and the production of the document (Might not to have been compelled. Under the circunistanccs a new trial without eost.s was granted. Jiradlnj v. Jlc/ittofli, i) U, R. 227— C. P. I). the action as against the defendant 1'., his ri, defendant M. ciiteied Upon his case and (.allni 1'. as a w itness. I'. Iird remained in court aiMi lie.ird the wlioh' of the evidence adduced liy tin. Iilaintitl', and his evidence was rejected on thi- ground : lltlil, that tin; evidence of I". w,(, improperly rejccti'd, and a new trial was ordei, ,] Main, my v. 'Mwilmirll !) O. It. i:{7.- (.'. I'. |i At the trial "f an action the witnesses wi i, ordered out of t'ouit. IJifore the case was cImm.! the defendant's ((iiiiimI tenilered a witness whu li;id remained in court, but the |)residiiig j:; 1-e refused ti) allow liilii tii be cxaiiilned. Held, tlilit ther<> must be .a new trial. Per I'roudfoot, .1. - 'I'he practice is to receive Sllclie\ idelU'C, but M itli great care, Lllurk v. AV.«.', 12(». K. ■■)22— Cliy. |i \'l, I'liMn.ll.M \ UK W'lTNKSSKs. IKld, foHowiiig Megina r. Iloildy, 41 (^». j; 2!M, that the deieliiLint was prnjierly rejectdi as a witness in his own li(dialf. I'lijiim. v. Sjhi,- hiiiii, H (). I!. ,')7<). Hose. .Since the [Kissing of A7) Vict. e. 10, s. .'!, (Oni the |iarties t(j .an action for breach of proiuisc '■ marriage are both e(iin])etcnt and coiiipelhilil witnesses, and may thcrcfoi'c be examined umli theC. L. I'. Act.' Mi-I.diiqhihi V. .l/oi//'., 10 I' It. :!•_'().— Osier. Mental capacitv. See I'llii v. Sliirarl, 10 ii R. :m. See Urani, ,1 iii. v. \V,il. ,v III A. K. S.'i.p. iM! See also /,'-;//;-/ v. MrS„„l. II O, K, (m!I, IV. ATTK.NllANt'i: OF WiTNKSSKS. See Georffe T. Smith Compantj v. Orevij et al. 1 1 P. K. 345, p. 2:{2. V. ORBKHiNf! WiTNKssKs OCT OK Court. A special examiner has authority to exclude ■ one defendant from his otiieo during the exanii- 1 nation of the co-defendant, at the reipiest of the '< plaintilF. Ctilnrwi'll v. Ijiniii/, 10 P. R. 575.- — ■. Rose. At the beginning of a trial all witnesses were ordered out of court, exce]it the jiarties to the | action. Judgment having lieen given dismissing j VII. llXA.MINATloN TN IlKU CuM M ISsli iN . I. Api'l'icutiii)! for I.s.stif (if Cuinntissiijii. A comuiission will issue to examine a witiie.--. notw ithstanding that his character for veracitv is iiii))eaclicd. 'J'he proper course in such a cie^ is to call witnesses at the tiial for that ])iii]iosi. Nordliiiiiufx. MrKil/u/>, 10 I*. I!. 24(i.— Oalt. In an action to restrain an alleged nuisaiuv, caused by the defendants" cattle byres in the city of Toronto, an ajiiilication was made by tlicdcfiii dant.s for the issue of a commission to certai cities in the V. S. , to take evidence in their beliri concerning the cattle byres in those cities. It was admitted that the only point . None of the persons sought to be examined wiit named in the a]i]ilication, noi' was it swuru thai such iiersons could not lie ready to attend jm sonally at the trial : — Held, uiion this state "1 facts, that the order for the coniinis.sion must It refn.sed. 'J'/ir Altimwii (liturnl v. Gamh rli"'- at ((/., 10 P. R. 2r)().-^]!oyd. A commission to take evidence out of tlit jurisdiction will not be (M'dered till after is.'-iu' joined, iiiir then unless the applicant shews In atlidavit what evidence he expects to (iht:iiii. SmUh V. G,;:,,, 10 P. R. r.;?l.— Cliy. D. Upon an ajiplication for a foreign eoiuuiissioii it IS not necessary to shew that the action i 22'' ti.i hnically iit •lieun that son nliicli nnist be V, ^'/•c^// it III., i. TdL-iiiij Kriil, liiioks and df may, when t\ pi- nt the jurisdicti iiiition of witiies Hilt documents ) ii,t nl., 11 I'. K. ;1S.— IJoyel. lml^:llu■'^ in till' fity tin-Mlcfcn to ec'i-tiiiii lu'ivlK'lKi'l! ■itics. It which wit- cxaniiiii'l ln'in takiii ijirtioiial'l' liiisint->. niint'il wii'.' sworn tiiat itteiiil ]Hi-, lis state "I' on iniist I'l' out of the after is.-iu' shews liyl to ohtaiii.] 1). conunissiiiu| e aetiou i- ■j. Titkiiiij ICr'iifi'iiri and /'rin/iir/ldii of' Ddrinnrnfx. I'xioks ami ilocunicnts jiroiluei'il in an action may, M'lu'n a ]iropcr case is niaih; out, l)e sent out lit the jniisilic'tioii for the i)ur|)ose of the evaiui- iiiitioii fif witnesses liefore a foreijLdi eoinniission. Hut ihicuuieiits proilueed in aiiotlieraetion, whicii i- siili jmlice, will not lie taken fi-(nn the ollice fi)r sneh ;i pui'pose. Clurhr v. Vii'iui'. Firr //.<. i;,,^<'h>,i,nr.-< r,/.v/', 10 1'. I!, 4i;{.— Jfoil'.'ins, Walter III (Iriliiiiii'ii. ; Tlie rules of evidence as to leadiiu^ (piestious ;it a trial rannot he strietly a))plieil to interro- .•ateries administered under a foreiffu eonimissioii ill tli(! Master's ottiee. A party to the suit w ho, ::il)iin;;inLC in liis aeeount into the Master's olliee, •;li'> an allidavit verifyiii;.' it may lie askc d : " Is ; till' aeeount in the scliedule to your allidavit iipfreet?" thus leavin;,' it to tlie otiier siile to iTiiss-cxamine, iiisteail of lieatius,' alxiut thr Imsh as to eaeli )) irtieiilar item in order to avoid lead in.' (|Uestious, l.nrkifnod \. liiii', 10 1*. 1!. (i.")."). -liod,:^ins, MiiKtir In Onliimr;/ -l'ri>udfoot. i I All ap])lieatioii to strike out ohjeetioiialile in- | :.iroj,'atories may he made liefore the issue of tiif eiimniission to take eviileiiee. — /'*. le M,:lh,iinhl v. Murrnij, .T ( ). ]\. ."m!!, p. '23;j. n. /'i/iirii (jf Co linn i'!''!' III. Held, tliat where a foridliu oomiiiissioii had , ■111 opened liefore trial for the eoiiveiiieiiee of I iities, it was too late at the trial to ohjeet to | till' mode of its execution. WiiUim V. A/ijiilin,\ U. R. (),-).-(,>. H. I). ' ' .\ uonimission w.as issued out of the Supreme Imii't of Now IJruiiswic'k directed to two com- iiiissioiiers— one namod hy each of the parties to till' suit — to take evidence at St. Thomas, \\". 1., ivitii liliertyto plaiiitilV's commissioner to iiro- cci'il ex parte if the other neglected or refused to uttencl. liotli conimissioners attended the tjwiiiination, and defendant's noniineo cross- j (xaiiiined the witness hut refused to certify to • tile return, which was sent hack to the court lied by one commissioner only. Some of the ^ inti'irogatoriesand cross-interroi^atories were ]iiit tile witnesses hy the commissioners : -Ifcid, :!iat the failure to administer the interroijato- ', i according,' to the terni.s of the eonimis- j 11 was a suhstaiitial ohjection, ami rendered! ? evidence ineapahle of being received. I'er Jitiliie, ('. •]., ;ind Strong, l''ournier. and Henry, , that the refusal of one commissioner to sign return was merely dircctoi'V, and did not tiatu it. I'cr r irlmxr InnnidSulr liimjlt ArUon /■■< /'ro!. .1. Act as "a]ier- siiii for whose immediate benetit " the suits were prosecuted. Miirdnnnld v. Xin'ir'n'li L'liinii //i.v. Cii. ; ('/iir/.:iiin v. Fin' /n.i. Assoi'liilinii, 10 I'. I!. •K;--'. -Ro.>e. .\n action against tin endorser of a jiromissory note, brought by a member of the tirm of bankers who discounted it. The linn was composed of two members only, 15. and M., who had dissolved 1 artnership, and the action was brought after the dissolution in the name of .M. tinly. The Master in Chambers made tin order under Rule '2'2i(>. J. Act for the examination of, and the ])roductioii of documents by 1!., as a pel'soii for wdiose immediate benetit the order was being prosecuted. On appeal, Rose, d., thought the eviileiice as to the interest of I'., unsatisfactory, but refused to set asidt! the order of the master, varyiiiL; it, h. and his allidavit on ]ir«■* '.tiatfS niXaii US' . iMiaik •n iCx'* Ij 227 EVIDENCE. 228 wlietlu r a iK'iaon may ln' an riflliiT oxaiiiiiialile fur till' i)Ui|MPMS (il ilisciivcry, liut nut mic nvIiosu eviilfiiL'c cull liiiiil tlic loiiipauy. (t'oriny v. '/'In LoihIoh MntiuU fin ///.s. Co.] 10 1'. I!. (J4-'.— Rose. 4. 1 1 '('/«' n«hr llnlr ..'S:,, (). ,/. Aii. All (PidiT tnr tlic txiiiiiiiiiitioii nf a \vitiu'.sa before trial uiiik'i' (). .1. Ai't, will not ))0 niaile wIr'I'u no j^ii'ati'i' iHiLX'ssity for it is .iliiw n than tlio oonvc'iiiciicc of the party who ajiiiliuH for it in )nt pariiij,', ami ]irt>.sfntiii^' his case for trial. Caniujk V. Fnlmtl liunL; 10 I'. 1!. (If). --Fer- guson. Tpon il motion peiidint;. M'itiiesses may still Ipy (1. ( >. Cliy. LMK; lie examined under a Hnl)po>na anil appointment. That order has not lieeii su- perseded iiy Rule lis") (). il. .Act. ToXMlship of iMonau'liaii i\ l)nliliiii, 'IV. 1.. T. L'tiO, o\ 1 1 riikil. Mi'Milhni V. Wdiixlioroiiijli, 10 1'. It. .'iTT. — Fer- guson. A clerk in a Toronto warehouse accepted a hill of exchange on hehalf of his eni)iloyer, who re- sid(.cl in I'hiladelphia, U. S. Jn an action on the itill the emiiloyer denied the authority of his clerk to accept :- Held, re\eisinj; the decision of the master, that the clerk eoiild not lie exam- ined under l-tiile L\S5, (>. .1. Act. Scnilile, neither could the Toronto maiia;,'er of the liusincss he examined umler the llule. llusi iilulni v. .V(7//- tiMH, 1 1 1'. 1!. 7. — Jtose. The powers of the special examinei under (i. (). Chy. 1-47, as to directing,' the production of documents, extend to examinaliuus under Rule 28"), (). .1. Act. Upon an examination of a jiarty under Kule '2S,"), at a staye of the action earlier than an examination will lie ordered as of course, • only material documents should he produced sueli as would lie ])r(iduced in the ordinary course at a later stage. Orinu v. Ktrr, II 1'. It, 1'28. — Boyd. The right of extraordinary discovery must lie jeahmsly guarded, lest it be abused, and it should under Fviile 28"), (). ,1. .\et, be conceded only when it is clearly proved to be necessary for the furtherance of justice. An ap]ilication to ex- amine under Rule '-'So is in the discretion of the court, and that discretion cannot be said to have Jieen wiMiigly exerciseti <■ for the beiielit of iriditors of A. S. .M., elaiiiiii,,' a deelai'ation of right to rank on ihe estate fm ,i j large sum. The as-signei^ was instrncte■ Mtlid to such discovery nnih'r Rule 28."i. (>. , luul that an order for such examination .,_, a lucil judge of the High Court had been proi)erlv liiailc llonloii V. J-/nlli/>.'<, 11 I'. R. 040— (^ 15. "U. "i. I)e /hill />'.sv . Hehl, following the former Chancery I'raitici, that a local judge may make an ex parte omIh for the examination of a \\ itness de bene i -». , on the ground that he is ilangerr M>irf„tii/-^ ISnnL ,1 .(/., 11 !'. U. IS. - r.ny.l. Tiiu pliiiiitiir, ill lii.s alliilitvit oi iliniinuiits, iiiiiitioiii;il "otluT li'ttci's iiml |ia|)iirt liliil licrcin, tlir puiticular.s'of wliicli I caiiiiot now lUposf to," ami Htatt'il " tliut .such (h)cimifiit.-< wcio liluil in this uourt on tin.' motion made l»y ilcfuiKhint for liis ilis(;harge from custoily, as 1 am iiifonncil ami Ih'Ucvu"; -Hold, that the plaintilt'.sallidavil uas sulliciunt ; and that thi' (Iffundaiit iiiilHt in-.pL'ct tlu' doi'iimt'iit.s at tlii' nllico wliure they HiiX' til'jd, or taUi' the ueeussary steps to have tlaiii transinittt'd to the ollice of the eoiirt at his lUii jilaee of ahode. Hehl, also, that an atli- da\ it to shew the iiKoneitnesu of the attida,vit iif doeuments eoiiM not he reeeived, following,' Jones c. Monte X'iiieo (!as Co., ."> t,>.J!. |). ."i.'id. /,//'//( V. McKiii/, 10 1', It. ."),")7. — Hose. The usual alHihivit on jirodnctionof doeniiieiits, made hy an olll''er of the defendants, contiiiieil ;i statement that the defendants olijtM.ted to prn ■luce their repairs Ixiok ami train re^d.->ter, hiit that they would prtMluee such portions (it the I ks "as are relevant for iiispeetioii at the otiices of theeom|)aiiy" ; ami a further statement that the eoiupaliy " had sealed u]i sueli parts of the said liooks as clo not relate to the matters in .|iiestion in this action." At the trial the plain- tiff called, as witnesses, the train ilespateher, locomotive eii^'inecr, and an eni,'ine driver of the ilcfendants. The presiding judge refused, on the evidence then given, to direct the hooks to lie unsealed : — Held, reversing the order of Rose, d. . 10 v. ]{. oo.'i, that the facts of the case shewed a right in the plaiiititl' to lia\e these lidiiks of the com])any produced. Mdx'.cij v. Tin- raiKulii Atlantic Ji. I'l'. Co., 11 I'. U. S'J.— Q.B.T). Hven against a party's own affidavit, if the court is reasonably certain that he has erroiie- iiusly rej)resented or misrejjresented the nature (if documents, a further affidavit on production will lie ordered. The rule laid down in Jones r. The Monte Video Gaa Co., a (,>. B. ]). aoli, may be aeeei)ted as the general rule on the suhject of the production of doeuments, hut it sliouhl he read in conjunction with The Attorney (ieneral '■. Emerson, 10 Q. B. D. 191. Jl,. Semhlc, a second application for a better affi- iliivit of documents is improper, where no ohjec- tiiiu is made on the first application to the uon- liidiluction of the documents in (piestioii, the .-econd motion not being made upon a!' v materials which did not exist at the time o; the first motion. Browilitijn v. The Citi:iiis //, <. Cu. et (iL, 11 P. 1!. lio.— Daltdu, Jla.tter. The object of the production of documents in actions, is to entible either party to discover the existence and aecpiire a knowledge of the con- tents of the deeds and writings relevant to the ease: and when that object is accomplished the tluiuments will go back to the custody of the Jiarty producing them. Dar/imi v. iJarUiiij, 10 I'. R. 1. — Hodgins, MaMer in Ordinary. The master has a discretion to direct parties t(.i leave documents in his office so long as any useful purpose may be answered by their re- maining there, and then to allow the party pro- 'hieing them to take them back. JO. In an action to establish a will, which tho de- fendiints inipcuhed for want of testamentary c.ipai'ity, aii(l set up a piii'i will, the defendant iiii'luilcd ill his aflidavit on productinii, • opit s nf letters I rum liiniself to the testatlix, but objected to piiiilnce them for iiispeetioii on the ground thill tiny were nexfr mailed or sent to their des- tination. Their materiality and relevancy to the issues was Out (lis]iiiled : Held, that all iiienui- raiida and writings, or piecis (if pa|ii i with writ- ing on which may tlirou light on the case, whether they would or uoidd nut lie evidence per se, are subject to proilnctioii, unless they can be pro- tected ; and the mere fact in the case of a letter that it was not forwarded to its destination is no ground of exemption. These letters were therefore ordered to he produced. Camurun V, fnni'ron, 10 1*. I!. y2-2. lioyd. (Ii) WUhlidldiiiij ijii Ihi- iirtiKiiil of rrlrHiije. Letters, written to the defeiid.int com]iany by a clerk, who w,is specially instructed to investi- gate the |ilaintill"s accounts and take the ad\ico if tin; ccnipaiiy's solicitors, and wliii h contained references to their advice, were held privileged fro' 1 production. /Jraini/i/ii/i v. 'J'/f Clti.iim .Insnnntri'. Cunqiuin/ 't uL, 11 1'. 11. 110. -Wal- ton, Ma.ilir. Among the grounds of defence set up in an action to recover tin; amount of a policy of insur- ance Were, that the plaint ill's liooks had been falsitled; and that the fire had occurred through tlu^ wilful negligence of the plaintilV. 'I'lie de- fendants' einployed two experts to investigate the iilaintiti"' '"inks and his conduct with respect to the lire, aid these experts made reports. Tho defendants aflidavit on prii(biction set out as documents which they objected to produce : " Iteport of adjuster for ^sdrwich Cnion Fire Insurance .^society for counsirs opinion thereon," j " X'.irious memoranda taken by adjuster for pre- paration of report, and for information of eoun- , sel. ' It was fill ther stated in the aflidavit that ' these doeuments were "privileged, being part of the defemlants' ease and ]u'eparcd for the in- struction of counsel, and prepared specially for this litigation and in contemplation thereof :" — ^ Held, on appeal, reversing the decision of the j master in chambers, th;it these documents were jnivileged from iirodiiction. MtytluiuiJd v. Xnr- tclr/i Union Fire In'. Xo order to iniidiicL- had at tliu time of the application been taken out as against F. Mel)., nor had she l>een served with i\f>tice of the application :— Held, that 1). M. -Mel), shouhl not have l)een ordered to produce these documents without F. Mc|). licing called upon to sliew cause why they shiiuhl not lie [U'oduced. Mrd'ri'i/dr v. Mclhni- oh! it ill., 11 1'. R. ;«()— C. 1'. iV. In an action to recover hack ])aynicuts niaile liy the idaintill's to the tion lias been substantially answered, a fuilher answer oii^^ht not to lie coili])(dled, and w hen discovery would lie ojijiics- Bive, it is tin.' duty of the court to exercise its discretion by refusing . R. 11. Held, that upon the discovery of material ev i dence puVilication may booiiened even after judi: ment atlirmed by the two courts above, 'I'ln learned judge here considered that what w i- proposed to be introduced as new evidence w i- not material, and dismissed the petition, witl I costs. //'. 10. Co.sVs. The president of the plaintitl's lived in the 1 , S., but lieing in Toronto, he was there sul- pieiiaed on the '2'2nd A))ril to attend on the 'Jsth April, for examination for discovery before .i special examiner at Toronto. He was ]iaid .'^K and made no objection as to the amount, nor diii he object that he was prevented by engagement^ ! from attending, but he failed to attend : — Held. that he should have attended on the day a|i- pointed, and that the fact that there were then pending against him, at the instance of a stranger to the action, proceedings for perjui y. which might atl'cet some point in coiitidvcr.-\, though it might be a reason for his refusing ti answer any ipiestion on this point, was not ;i reason for I'efusing to attend at all ; and he w,- ordered to attend at his own expense. I'>iilck"\. V. Foster, 7 1*. R. .'{SS. distinguished, f/io,-/. T. Siiiiil: Company v. Umy it al., II l\ R. 3-l."i. i -Boyd. IX. I'.VITiF.NCK .\ND EXAAli.vATION (IF WlTM.SsI -, 1 . lii^flLt'oiiJ to A )l.' writer of libellous articles, and as editor oi i newspaper in w liich they were piinted, and lii- wife as owner and publisher of the newsiiajiii. on eNaiiiination after issue joined in the actiiii. the husband refused to answer ((uestions as t n the ownership of the newsjiaper on the gioninl that his answers might tend to expose his wiii to a eriniiii.al prosecution for ])nblicatton of tin libels, and the wife refused to answer (piestimi- as to the authorship of the news)iai)er article in Ipiestion. and as to the editing of the ne\v> pa|ier, on the like Lironndsas to her husband : Held, on apjieal, tliat defendants were justitiil in tiieir refusals, Miihltc v. Lith', 10 I'. K. 2tM.- Calt. Ill Id. that the piiud iirovisions of the statiiti R{ !'.li/.. ch. Ti, all'ord no excuse for a refusal '■} a defendant i: fraudulent co to him regal Diiii.'G4, X. Judicial, Oikkial, and Otiiku I'imlic DuCU.MKNTS. In an action on an agre(!nient for the sale of land in Winnipeg, Manitolia, the agreement, which was registereil hy j' means of the co|iy. Mr/Ji,ii(ihl V. Man-ai/ el al., 5 O. K. ')50— C. 1". 1). I']videucegiven by one F. , a witness, was taken betore an examiner in shorthand, by (juestion ami answer. The evidence was duly certiticd bv the examiner and an office eo])y put in at the trial :— Held under K. S. 0. c. oO, ss. IG,'), KiC, as amended bj' 41 \'ict. c. S, s. S, (Out.), and (). J. Act, Rules 2S'J, 28."), the evidence was ])ro- perly received : but that this was iinmateriul, lor apart from F.'s evidence, there \\as suliicieiit tvidciice to su])port the lindiiig of the jury, and under Rule .SI), wiiere no .sulistaiitial wrong or miscarriage is occasioned, the Court will not iu- turfcre. / h. Tlie shorthand notes of the shorthand writer employed liy the court to take down the evidence Wile not extended in his handwiiting, luit vvcre sillied by him : — Held, that the notes of evi- Itiice could not be objected to. MiijinitU: EUc- •jo,i—Volc V. doalrt ft nl., 9 S. C. R.' l!7!>. Certain alleged copies of .lournals of I'arlia- iiiLUt were tendered in evidence. It was not proved that originals of which tho copies ten- ilfied were said to be copies ever existed, nor «iis it shewn that the copies tendered were ODjiics of any original. They were, however, shewn to have come from tlie i'arliamentary library at Ottawa, and most of them purported til iiave been printed by the CiUieen's printer : — Held, that, in the absence of a statute making tlu'iu admissible, tliey could \nit be received. L'uiijfri/ ef nl. v. DiuimuUn if uL, 7 '). R. 4!(!(. —Ferguson. Action for malicious pro.sceution and slander. The malicious pi'osecution arose out of a charge bifiire a magistrate and a subseijtient indictment preferred at the (i>uarter Sessions, In proof of tlk' termination of the criminal proceedings, the plaiutitl' ni-()ilnced in evidence, which was given by liini. '{"he parol evideii 'c shewing that liiit a poi'tinii of tile land claimed by the plain- till' to lie the sijuare was undoubtedly within the limits of tile sipiare, the a])peal was allowed as to all but that portion. I'lniKdini/u/i t v. Ihiil-ioii, II A. R. (iity. Remarks on the serious coiisei|aeiices likely to arirsefrom the constant changes in tiic names of streets in the city of Torniito, /'/. See Til) \'ict. c. '-'9, s. -JO. Held, in this case, that iiiasmucli as tlie con- were made according to I could not lie in- voKcii lo am 111 asceriamuig tile limits conveyed. Ont-'ic/l w Ciirhr, 10 S. C. 2. Cliihrli CiiiKDis. Certain evidence oll'ered of the contents of a canon of the Ciiurch .Society or Synod dis- cussed. IjHiiijI ri/ v. Puiiiitxl'iit, 7 O. K. 499. — Foi'Kuson. V' .eyancis to the parties ,.^.^ ... the tirst plan, the second plan , ..^ ... voked to aid in ascertainuiL,' the limits of the lots XII. I'AltOI, Kxi'l.ANATIOS- 01-' DoCfMENTS. 1. To I'liri/ or L'x'jilain J)(al.i. \ (a) Dc'^rrijidon of Lnnil. ] I''xtrinsic evidence of monuments and actual ' boundary marks is admissililc to control the ' (led, but if reference is made by the deed to such : moiiumeiitsand lioundaries, they control, though ' they may call for courses, ilistances, oreoniputeJ I contents which do not agree with those in the ideed. dritsrff v. Curf-r, 10 S, C. I!. I0.">. I 1). sohl to the predeeessor in title of the idain- 1 till' ci'rtain lands, and tiie deed contained the fol- lowing (wiiich was held to aiiiount to a covenant, j tiie beiielit of whicli ])assed to the plaintitl'l : — " Uellevue square is private property, but it is always to remain unliuilt u])iin except one resi- dence with the necessary outlmildings including porter's lodge." The land having been sold iiinler le au'iiin to the hands of I. «>" ii: ttm""* ,:■■ «-a ■■'*'""2I s ad- I a mortgage, a portion cann mittcd subject to objection, tiie original indict-' !>., who jiroceedeil to convey ]> irtsof it for build- nieut endorsed " no Ijill ":— Held, that this was , iiig piir[ioses ;— Held, that parol (evidence was 235 EVIDENCE. 236 a(liiii.si5il)le tosliow\\liat Miismoaiit b}' "Bellcvuc S(iuare," no plan ordcsf riptioii Ijuing iiicoi-i)onit- ed in tlie deed. I'-jiiKon'i/uii't v. J)i iiUon, 11 A. K. CiMt. See McGregof v. Kri/ler O. 11. 077, p. 243. (b) Otiii r ('((scs. 1 The ])I,iiiitin' smiglit to ru.straiii the clefondaiit from cutting tiinbiT on laiuls dt'inisfd to him. contrary to tiic covenants in the indentnre of lease. At the trial the defendant temlered parol evidence of an agreement bet\\e<'ii himself and tiie ])!aintilf', distinct from and ])rior to tiie lease, whii h, he contended, modilied the restrictions in the lease, and gave him the right to cnt the timber : — Held, athrming th(^ decision of Fergn- son, .1., that the evidence of the p;uol agreement conhl not lie admitted. (•'Umi/ v. J/rMillmi, G O. H. 120-Cliy. 1). Where the ])laintitt' biougiit an action to re- deem a certain jnoperty conveyed by him in a deed absolute in form, and it a])])eared that the deed ill (^uestifin which he now sought to cut down to a mortgage, had indeed been executed by him for tiie piirjose of securing a delit due to the grantee, but that the main object of the trans- action was to protect the iiro])erty from the results of an antici|)ated action forbreaeli of contract : — Held, that under these eirctimstances, eviilence was not admissible to rectify the form of the in- strument, for this Court never assists a jierson who has [ilaccd his prijin'ity in the luime of an- other to defraud his creditor ; nor docs it signify whether any creditor has been actually defeated or delayeil. The decided weigiit of authority is that after tlie proiierty passes, whether by the execution of a written insti'umeiit or by other means sutlicieiit in law, it is not open for the fraudulei'.t grantor to undo the matter either (jut of court 01' by the aid of the court. Synies v. Hughes, L. H. 9 J'^j. 407, commented u[)on. MnmMl v. 7V»/.;.s' d uL, (J 0. K. (i^.").— l%d. The plaintitl', liy a lease under seal, leased to the defendant a shop, save and except the bot- tom portion of the east window, and save and except a jiortion of the sho]) described liy metes and bounds. The defendant alleged that prior to his accepting the lease, and entering into the consideration for such acceptance, an indepen- dent and collateral parol ageeement, separate and distinct from and not ma- j signed it to M. No money was actually advanccil ! on the mortgage by \V.. but before the said as- I .signmeiit to M., a parol agreement was come tn between M. and T. that M. slionld hold tliu mortgage as security for a debt which T. f)wi'i! to M. on a ]>roniissorv note : — Held, thatM. w;i> entitled to hold the mortgage as security for tin amount iluc him frfim T. Mr/ii/i/re v, 'J'liuiiij, ■■iim i:f a/., tiO. R. 710. — I'roudfoo't. The rule that a mortgage for a specific sijn may be shewn to be for other purposes by \iiun[ evidence, is not contined to cases where the I't i- son having the legal estate is the original iiiiat- gagee whose claim lias been paid olf, and with whom the new agreeme' t for security has been made. The same principle must apply wlieiiev • i the legal estate becomes vested in the crcdiT'.i by the agreement of the mortgagor as here. /'.. A conveyance was made by the plaintill' to th ■ ! defendant iov the expressed consideration '' i . -'.■'), 000. It was shewn by the evidence of tl'.i j plaintitl' and her two daughters, that the defeii- I dant in bargaining for the purchase of a lot nt 1 land, had agreed to give .S7,.')00 therefor, tli': defendant ])aying .*.">, 000 down and rctainin;; in ' his hands. S'i.oOO to meet certain claims which h.- alleged were likely to be made against the pin- ; ]ierty This the defendant denied, but Troul foot, •).; oefore wliom the evidence was taken, was of (j])inion that the liargain was as sworn ti. by the plaintitl', and jironounced judgment givinu her a lien for the .S'2,.'")00 and in'^erest. ()u:i[i- |)e;il this juilgmeiit was atlirmed, Burton, .1. A., I dissenting, and Patterson, .1. A., duliitaiitt-. Fiemarks as to the admissibility of parol evideiico 1 ill such a case. Miirx/i v. Jlunt, A. R. oO."). Held, that the rule that the court will not in terfere to rectify an instrument upon jiarol evi- ! deuce, on the ground of mutual mistake, wliei ! the defendant denies that there was such mutual mistake, only ajiplies where the defendant -n denying was a j)arty to the instruinent in ques- tion. Firjiisun V. Wiiixor, 10 (>. R. l.i.- ( n ■oiinor. See S. C. in ajipeal, 1 1 (). R. .SS. Ill an action of foreclosure of a certain iiioi t gage of lands, the defence set up that the mint ' gage was given to secure a balance of purciiast I money for the hind due from the defendant : that ' tile (ilaintiir at the time of the purchase fabely represented tiiat no one was in possession of the land, and that she could cleliver immediate jms- session, which she agreed to do by a certain datv, and the defendant was thereby induced toarcept : a conveyance (which was in the statutory slimt I form) and give the mortgage : that as a iiiattt-r of fact the land was at the time of such reiae- seiitations and for along time after in posses>i"H I of one L., and the [ilaintitl" was unable todelivtr I up possession on the said date : tluit after tiic expiry of the saiil date the defendant threatened! proceedings for breach of the plaintiff's agrw nient. ami for the said niisrejiresentations aiil the jilaintirt' ill consideration that he wouhl fi'i bear the same, agreed with him that the time* j of payment under the mortgage should be pn;t- polled for a length of time eipiivaleut to that (hi 'iiig which \iould pay hill iiiil tliat he di j.iciiiiscs no ] iiiortgage ; wi |.roved :— Hel i.'reenient to ( oiuld not lie or added to th iif possession i at'C(junt of till -r,lisei|uent must lie dism iiunter-elaiiiu same, and to a ■f. K'-aijH V. Ferguson. The plaintifl iiL'ciip.ition of : lT) years. In i I'lt liax'ing bei i.'s^ee he notil .'ive n[) the j) Thei'eiijion it ' |i'at up a new ;iece|)t a new 1 (.•lease in his i\ .igreed to perl'< the building in the term, and tuning a covei lioiise ''during -i^ted that he I til put up the iiielit of the C'o iittendiiig the i lorroboration i laiitcd tile coui shew tliat the 1 in whicli the 1 ulso, that even iW to the year uould be iiiteii |ilaintill' being imildiiig during the increased r term then erei! sidered reasona |{. 411. 2. To Vary The plaintiff ISSO. had pure trual, a ipiantit mure, iiegotiatii tlie plaintitT's a which resulted .luiiiiary, by C. utlvisinghim th tlie defendant's to the yard) ati he made in Lom to be there op ill von r of defeii «as then in Me lar terms to tin ly coininuiiieati I'imlirinatory n make slioulil bi iiiul wrote aero; ho o() Iba. " ord 23G le alleged t estopjKi'i lau'jhin. S ,, who as- ■ advimccd e said :is- IS come tn holil ihr 1 T. owi'.l lilt M. \\:i> ity for the V. 'I'llOlin. ccUu' sr.iu S liy ]>iUn[ ro tliu i>ui- pna! inort- , iuiil witli l' llllS lni.:n ,• wlieiie\ '. 1 le I'l-uditor hero. /'.. intitl'to th luratidu ■' ince of tl'.t: the (k'feii- of !l lot (it erelor, th'; I'otainiii;; in i.s v.hioh hv St tho prii- liut I'roiil was taken. IS .swfirii ti: nent i,dviii!; St. On ^qr ton, .1. A., (luliitaiitc. (il eviilencc R. aO,-). will not in ])ui'ol evi- ak<.', whfii noh mutual •feiiilant -i> ;nt in ijUi'S- K. i;;.- U. SS. tain niiiit- t the melt- f imroliasi- lant: tliat lase fal>t-'ly ssion of the ey a fixed date eiiuhl not l)e enforced, because it contradictetl iiv added to the short form covenant for /.i V. Eiiiard ct al., 10 (». R. ,S14.— IVrguson. The plaiiitiiriiad under several leases heeii in .ijcupation of a farm of the defendant's for about i') year.s. In consecpicnee of tlie dwelliiigou the lilt liaving become unlit for occiiiiation by the liissee he notitied tile lessor of his iatentiou to .'ive n[) the premises at tlie end of his term, riiereuiiou it was agreed that the lessor would put lip a new iir)use, the plaintitl' agreeing to .iccept ,1 new lease for six years andi«'« irsc:» !'"!»"'• ■i «••'■ ,;' «p;;; ■ir^"!* :!:»«; Irnfiai'l '.»•'• r SMU«'4 ■•• «?! ,.,jj.sii 239 EVIDENCE. 2-10 time to I'eiiuife plaintiir to take in payment of the moneys so lent tlie oil which defendant had in plaintilf's tanks at the market price at the time wlieu defendant so re(juired plaintifl'to take tlie oil ; — Held, that sneli a panil agreement could not he set np to alter the terms of tlie re- ceipts whicli shewed such loans were to he re- paid in money ; and although the jury found the parol agreement t(j have heen made, the court having all tlie facts hefore them set aside tiie Verdict and judgment f(ir defendant and directed judgment to he entered fur the amount (jf the p'aintiti's claim. Lano '/ v. Brakr, 10 (J. K. 4'28— (,». 15. D. Parol evidence is always admissihle to shew tiij situation of the ])arties at the time the writ- ing was made, the circumstances tinder which it was made, the time when it was mahcletters of tlie defendant, set out in tlie report and "ead together in the light of the parol evidence, constituted a sulHcieiit note or niemorandum ii writing witiiin the 17th sec. of , the .Statute of ."'rands, and that iiarol evidence i was also adm'ssihle to show what the words ; "work"' and "rig" used therein referred to. Christie V. Biirnttt, 10 O. K. (JOH— Q. J}. D. The plaintiffs agreed to sell to the defendants a waterwlieel, " and place the same in jiosition " for SI ")0, hut the defendants refused payment U))- on the ground that the wlieel had not liecn pro- perly jilaced, and did not in fact, perform the Mdi'k stipulated for. Tlie jury f(uind for the ' defendants, and the judge of the County Court granted a new trial— costs to ahide the event, j On appeal this couit refused to interfere with ; the discretion of the judge of the court helow, considering tliat the term " placed in position "" '- was so indelinite that the defendant was at lih- erty to shew wliat was meant there) ly ; the writ- ing, hy such parol evidence not heii'ig added to or varied, liut onl^' rendered intelligilile. Jfur- ri.i V. Muorr, a (d., 10 A. K. 10. On motion to a Divisional Court (1) for a new trial on the ground that the findings were against evidence and for exees'sive damages, or {-} to enter judgment for defendant on the ground tliat the contract was in writing and therefore parol evidence of warranty was inad- missible. Tiie Common Pleas hivision refused a rule ; and the defendant ajiiiealed as to the jirincipal (piestion, viz. : tiie admissibility of parol evidence :— Held, by Hagarty, C. .1. O. , and Rose. .1., that parol evidence was jiroperly admitted— that (as held in heniiet r. 'J'regent, '2-i C. P. aOt"). a))provedof in McMulleii r. \\illiams, 5 A. I{. olS), it was a ijuestion of fact for tlie jury whether the written order embodied the whole contract, and therefore their finding on this point was conclusive. Held, liy Burton, J. A., and Cameron, C. J., C. P., tliat parol evi- dence of a warranty was ini))ropcrly admitted. Per Jiurton, .1. A. (1) Wlienaproiiosal is made ill writing by one party and aecejitod ad idun by the other, either verbally or liy acting upon it, the contract is a written one. (2) If the writing embodies the contract, the judge is bound to exclude all evidence to shew that tlie real in- tention of the parties was dillerent from tliat wliich appears in tlie writing. (H) A warranty, though a collateral undertaking, is part of the contract of sale, and, if the contract is in writ- ing, antecedent representations, not embodied in the written contract, are not warranties, ai.il cannot lie proved unless it is shewn that tlity Were fraudulently made and the contract was x, induced. (4) If the contract is not reduced tj writing, or if, though there is a written doiu- iiieiit, tlie evidence loads the court to infer tliat the writing does not coniain the whole agin - meiit, it is for the jury to say whether autecL'- dent representations did or did not amount t^i warranties. In this case there was no admis. sible evidence of a warranty, and the judgiiiLiit should lie for the defendant. EHi.-i v. Ahdl, lo A. K. 2l>(j. The plaintiffs agent at Chavenhurst .'^liippnl two ear l()ai)iiit)il v. 'J'/ic Xoiilara and Surtli- ]V<. piii'i'liase iiion liiiithcrs," the iif his brothers .'iiurse ran thro iie expressly sti jowever, was yiT'i'ipt was sile atiised to exec :v-'rve the use F. S. swearing tioiied any sale :i"ii, and that dieoted by .). ijeeii so rcserv loiiiianee as c :'ot, .1., at till the brothel |nited to them liitilied), and j pliiiiitirt':-!!... iriid, that the e ami there being antecedent or si tile plaintid's e; missed, with co! iit,'otiatioiis wit "tlier persons 1 i-liase the lot bu "Wiiers iiisistei ■iiliiiiisun V. i'l Ihiisdlet uL, 12 XIII. Proo 1. )(7»JH JJi Under the eirt stt out ill the re .-tilting, that sec "1 the niinutc be uakiiig of eert.-ii i!"S!< ct id V. J/(i Per Fournier ; n;is evidence tl 'well given by tli lifiice of the eon 'iis inadniissibl "i'iwhvc V. Th W S. C. R. 563. ■See McDonald 10 as ill MO •241 EVIDENCE. 242 .(tiired for the Omemee bridge as fast as you Ri]uire them, for the nxun of seveuty-tive cents jiL'i' cubic yard," wliich tue ))laiutitl's iu writing ,iirepte(l "at the ijriceau<, ir? A. 1{. ;i24. .1. iS. F. and his two brothers were joint iHiiers of a lot of land which the former, with- (jut any authority from his brothei'S, agreed to idll to the ])laintitl', and for a portion of the jiiii'i'liase money, signed a rccei)it " Kowlds Kinthers," the name in which .J. S. F. and one nf his brothers carried on business. A water- 'luise ran through the lot which .f. S. F. swore \k lllV't. m^i-ll ILi'lv^ ».'' wii'ii.i.i.',^'..^ JJmUy V. I/al'laii, 10 O. K. '278.— Ferguson. XIV. I'uoor liY flNTRIES. To determine a disputed boundary line 1 letween two lots, the lield notes of S., a lancotive Churches, and as to tiieirolhcia- ting according to the rules of the Church as per- sons having the cure of souls, and of their recog- nition by the Church Society or Synod, was ad- missible as some evidence of their status as such XIX. PiHiui-iTiox AND Admission of Evidence. 1. Onus Proband!. Action to set aside a conveyance obtained froii! an old woman who was deaf and unable to write, and who had no relatives or friends, liy the reevi- of the township in which she lived, and who wa- well kiuiwn as a justice of the peace, ami ai, active, shrewd business man engaged in many enter])risi-s. The plaintiff was examined, aiii after giving evidence of the above facts, jiart "i the defendant's de})ositions in the suit were jiut in, in which he admitted that she placed a gimi deal of conlidence in him ; she however haviU;; s\\ orn in her evidence that she never placed any dependence on him. The plaintiff's case wa- closed, and it was contended that the onus wa- now on the defendant to show that the traiisae- tion was a righteous one. The defendant dcclintii to call any witnesses, and plaintiff's action Wii< dismissed : — Held, on motion for a new trial. sustaining the judgment of I'roudfoot, .1., tlw" the onus was not on the ilefendant, and that thi plaiiitiUniust prove her case. Senil)le, the nun existence of conlidence is not enough ; inllutiKt must lie ])roved, and is not to be presumed fimii the existence of confidence. Willis r. Andreus, 1 1> Chy . (J.S7, f< illowed. McKican v. Milne, 5 0. K 100.— Chy. D. It is not sufficient for a party to any litigr.tina on whom the onus is to say that he could furnish ;i5 tie necessary pn ihi.s duty to ha iduced, the mi kiug what the jjjiih of Canad(, hnies, 7 O. R. Where one br ^version of the ~m\ the channel ;au 20 years, a « IS an artificial ; natural ontlei ;: the instance ai ivner of the crC' [wed partly foi i,il iiowever on ;t, and soturne kt:— Held, that :xe a statutoi-y e onus was on r.'ht and shew the mode of u ission. Maicol -Boyd. In an election eury and (iwyi was on the ap]: iijections had ; lie petitioner. ;ul Tnschereau, 'Mtte V. Go II let, i In June, 1874, ritiug, entered igetlier the iron ay, andprovidi or profits. Nod Hid the defeiidai roni that enterp ilaintiff claimed which the defem that the onus o: plaintiff rested ( iiiled to negativ wurt declareil hi a reference to t iSi'ties. Camcrin ersed Ijy the I'r In an interplea the proceeds of tl ('! the plaintifl's v He put in and pr gave no evidence Un this the judg nas no evidence refused to allow t after the plaintifi 'irought in a vei motion to enter i a new trial, it wf trial. I'er Boyd proved enough tc the defendant. ] cated sliewed tli? goods passed froi mortgagee befort creditor should d iiig want of consi iciou would not mortgage was a to its purport. ' life knew of the IH HD EVIDENCE. 246 iSe necessary proof if he had certain papers. It lii.s iluty ti) have tlie.so papers, or to have tliciii oiUiceil, tlie means of causing their production viug wiuit the law deems ample. Exrhaniji^ imk of Canmhi v. Sprhmer — V((/((e Plaintiffs v. i'lrncs, 7 U. R. 309.— Ferguson. Where one brought an action to restrain the ;\ersion of the wati'r which sujjplied his mill iriiii the channel in which it had (lowed for more ;:iau 20 years, and it appeared that the channel MS an artificial cut, diverting the Mater from ;:s natural (uitlct, and had liecn made originally ;; the instance and hy the ]ieriuission of the then niier of the creek in which the water naturally : wed partly for the henetit of the owner who >,(1 however on many occasions lilockcd up the :t, ami so turned tlie water to its iiat\iral out- l:: — Held, that sncli an occu))ation would not j j-re a .statutory right to thu licensee, and that ' .e onus was on the plaintitl' to make out his :ht and shew that there had liecii a change the mode of user after the origination hy ])ur- ission. Maicolxi ft al. v. Hunter, (5 (). It. 102. -Boyd. In an election petition :— Held liy Founder, eury an; V. Goiih't, 8 S. C. K.'kJO. In dune, 1874, the plaintiCf and defendant, hy riling, entered into an agreement for supplying ligfther the iron for the (irand Junction Rail- way, and providing for the division of the surplus (r profits. Xo division f)f tlie profits was made iml the defendant went on investing the receijits ironi that enterprise in other contracts, and the plaintiff claimeil a like interest in them also, wliicli the defendant denied liis right to : — Held, iliat the onus of negativing such right of the iiintiflf rested on the defendant : and having liled to negative his right to such share, the lurt declared him entitled thereto and directed a reference to take the accounts between the arties. Cameron v. Bickford, 11 A. K. .52. Re- ersed by the Privy Council. In an interpleader action to try the right to the proceeds of the goods sold by the sheriff oiu; ! the plaintiffs was a mortgagee of the goods. He put in and proved the chattel mortgage, but gave no evidence of a debt or of ])ressure used, lln this the judge charged the jury that there »as no evidence of a debt or of pressure, and ho refused to allow the consideration to be proved iter the plaintiffs closed their case. The jury ifoiight in a verdict for the defeiulant. On a motion to enter a judgment for plaintiffs or for anew trial, it was held that there must be a new trial. Per Boyd, (,'. — The mortgagee plaintiff proved enough to cast the burthen of attack on the defendant. Proof of the mortgage duly exe- cuted sliewed that the jjroperty and title to the goods passed from tlic judgment debtor to the mortgagee before the seizure. The execution creditor should displace this ownership by show- ing want of consideration or other reason. Sus- icion would not justify the conclusion that the Mortgage was a voluntary instrument contiary toils purport. There was no evidence that the «ife knew of the husband's insolvency, and con- curred with him in an nttompt to gain a prefer- ence at the expense of the otiier cieditors. Per Proudfoot, .1. — The mortg^'ge miglit be valid if given for a [iresent ailvanct' of money for carrying on tlie business or other iirojier purpose, and insolvency would not be a circumstance sliit'tiiig the onus of proof, and the production of the mortgage would be prima facie evidence ; as the plaintiff, the mortgagee, appeared to have been misled, and was n fused leave to supl)lement his evidence ; a new trial sin mid be irrantcd to him. Fnrbjn>i\. l!('i. R. S(I4. See also /I'or/n v. Kniii.ili(ln, 12 O. R. 107; Cinniii'c. ft al. v. Caiiai/ian Fnciiir I'. IF. Cij. — Canadian Parifie I!. IF. Co. v. Cumni'i' ./ at,, 11 P. R. 140 ; M'cKru'.io >.l al. v. Danroiit <(!., VI A. K. 317. 2. Hi/i-raiiri/. The plaintiff rented to the C. I'. 1). 4. Other Caxcf. At till' close of the defence, the 2'l'ii"tifl''s eoiuiscl, \\itlioiit ohjection, ])ut in the defendant's (■x.iiniiiation liefore trial. The plaintitl "s counsel, in iiildre.-.sing the jury, reatl a portion thereof; and the leurnclftoii, \-2 U. K. -JOO— C. ]'. J). Held, that a document which has not been ))roved noi' ]ii'o. bulk of his to make any disj)o^iti i, g the judgment of I'riiihi '//. V. See Chirh'W riiiaii Fire In I'linbiil's ('line, Cdinulii Atlautl 10 1' • I!. . H. 41.*^, p. •- ir. vu., II r, "■(' Coiiipan;/ — -T) ; Mij.rliii V. R. m, p. '-i-nx hulli Ot Ins property or to i of it : — Hehl, leversing the foot, .J., that the second will could not be ist;iii lished on the uncorrol)orate. of the practice in criminal cases regardiiiL' tl corroboration of accomplices. Ji'r M. Corroborating evidence of accomplice, .^h nei/tm V. An(lnv:s, 12 t). P.. !S4. In action for l)reach of promise of niarria, See CoMi:llo v. Jlimta; 12 (). R. 333. See Jn n 11. L. La; .j O. R. 583, p. 204. 249 EXAMINA \X. ColiKOIiOUATIVE KviDKNCK. \V. I), i:. alleged that in 1872, D. 15. trans- feired to him as a gift l')0 shares of a certain stock, pai't of the assets of the firm, and as cor- roborative evidence thereof proved the transfer of tlie stock to him, and a re-transfer afterwards on January 30tli, 1873; which re-transfer, he said, \\as to prevent the surplus (jf the savings bank apjiearing to be less, and also produced the printed statement of the savings bank of Decem- ber 31st, 1872, shewing this stock : — Held, that this Was not such corroljf)rative evidence of the gift as satisfied the statute R. S. O. c. (j2, s. 10. JJnrn v. JUirn, 8 O. R. 237. — Ferguson. Plaintitl', after her husband's death, and about tweiitj'-fivc years befr)re action brought, went to live with testator, her son-in-law, anil resided with him up to the time of Ids wife's death, about twelve years before action. She alleged that aftei- her daughter's death, testator agreed to pay her wages if she would continue to live with him and take care of his family. She ac- cordingly did so till his death in 18.">r), up to which date she had received nothiuLC from him. I In fe - - I XXI. CoNTUADICTOKY EviDENCK. Held, that, on the evidence as to the amoni!; of wages, each i)arty swearing to a dillem agreement, and the other evidence being coiiti: dictory, the fair inference was that the partii minds were never ad idem, and the recovnv could only be on the (quantum meruit. 7/(i V. Merm-r vt al., 7 O. R. G2!)— C. P. 1). Where the evidence is contradictory the con: Avill not interfere with the fiiulings of the ]\v\:k who tried the case, t'ouk (-1 al. v. Patt^.0.c. Ot), by.n le is entitled to i lie Interpleader . tRe claim to tin *''e i.'stiilj. lice of the(l(;. jcliirucl t tlie reeovt.y ruit. Hw..: '. J). tory the vvr. i of the jmb I'aWrsnii, ID of testimony, al nnist he it he overtuviK-^ adtlieadvau iserving tluir ion. (.ini case, in wliit'li rreooneiliililc, the defendai!; tlie prohahili- irt, while U"'. credibility "! ing e(rUie tna evidence, al- lie decision'! ihrd, 1 1 A. R. :il. _ best rule, in hie, to rej to adopt the rather to '« lie followol ;\veen thetx 110. K. J-« T DEUTOl! iTS. EXAMIXATIOX OF PARTIES AND 3 O. S. 95, and Ontario P.ank c. Kirhy. IC ( WlTNlvSSKS. See Evidence. EXECUTION. I, rir.ui Facias (donus). 1. H7ir(< Amoinifs to a Sehurc, 249. 2. Projiertij Liuhlc to S<-him; 249. 111. IV. V. VI. VII. VIII. II, FiKui Facias (Lands). 1. U-, an irregularity only, and not a void proceeding, the provision of both statutes luing in eHVot the same. J!om v. Mulone ft al., 7 O. U. 397— Chy. D. 2. Profirtij /.mil/' In Si'r.iive. See IftiDiiHiiH Prorhleiit (onl fAKin Soc'titi/ v. Gilhn-t, 6 (». R. 434. IX. X. XI. XIL in. IV. PkIoIUTV of ICxECITroNS. R. & E. were ])artiici's in business, and lifiMiiie financially iin'olved. L. , !!. & ( 'o. filitaincil a judgment against the firm for a linn debt, and placed the exeeution in the slu'rit! "s hain's. with (i direction to levy of the goods of I!. Siibsc- f(Ui'ntlytlieplaintill'solptaineil a jndirmcnt ag.iinst it. and E. individually and .ns members of the firm, and plu'cd their execution in the sherilV's hands. The sheriti' m.iile the greater imrt of the ; aniountof tlie])laintilT'sexei'utionoutof theassets i of the firm, and returned it "nulla bona ''as to the residue, although, while the plaintill's oxeeutiim was in his lian!, 5 O. R. G85, p. 58. n. Fieri Facias (Lands.) I. IdSUf! of. Held, faflirming the judgment of Ferguson, .J. •■•iSSIa It «£•<• ll:|t'iatfai<* ■■■•■Ik The plaintiff was tenant in common with the defendants, and was iiroved to have I'cceived [O. K. 215) following Doe d. Spafford c. Brown, more than his proper share of the rent. The 251 EXECUTORS AND ADMINISTRATORS. 0: defendants ciMiniod aj^'aiiist tlie plaintitr's share of tlie land, for the exeess of the rent received In tlie phiintill'. There were executions in the shcrill's hands, and the execution creditors liad coiue in under tlie decree in the cause :— Held, that the defendant's claim heing sinij)ly for a delit fi, JO 1'. l;. 140. — I'roudfoot. See iJiirliiiij ct ul. v. Smith, 10 P. R. 300, p. 3; Jx'olnii.soa V. Btr'jlii, 10 1". R. I'J?, p. 2. V. A.MENDMKNT oK EXhXUTIoX.S. An order was made hy the Master in Cham- bers amending a judgment entered against C as executrix, so as to make it a judgment against her personally ; and also amending the writs of ti. fa. in the sheritt "s hands so as to be conform- able with the judgment as amended. The order was made nunc i)ro tunc upon the allegation that all parties interested had consented, and that an execution at the suit of the ^I. Co. against C. personally had expired. On an application made by the -M. Co. to set aside the order, on the ground that tlieir writ had not expired, but was 111 full force ; and that the etl'ect of the auiend- meiit was to give plaiiititl's writ (iriority, the Master made an order setting aside his previous lU'der, and directing the amendments made there- under to be struck out. On motion by way of appeal to the J)ivisiomd Court to rescind the last named order : — Held, Cameron, C..J., dissenting, that the motion must be refused ; for that though the M. ( 'o., were strangers to the action in which the amendments were made, they had a, locus standi to apply to have the same set aside. Glass V. Camtron, 'J O. 1!. 71'2— C. T. D. YI. StAYIMI KxKtTTIONS. The plaintiff' on the sale of certain lands to the defendant R., left in her hands a sum of $'200 of the purchase money as security against an exe- cution in another action then in the hands of the sheritt' against the plaintitt's lands. Subse(]uently the plaintifl' appealed in that action, and on doing so gave a bond with sureties conditioned to pay the debt and costs : — Held, reversing the judg- ment of the court below, that the perfecting and allowance of such security operated as a super- sedeas of the writ of execution, not as a stay thereof merely, and that the plaiiititi' was there- fore entitled to recover the balance of the pur- chase money from R. O'JJoiiohve v. Itobinsoii i-t al., 10 A. R. (J'2-2. VII. Al'l'LICATION OV StATUTK OF LIMITATIONS. Qua'i'c per Rose, J., whether there is any period tixed by the statute beyond which the court may not have the ))o\verto allow execution to be issued. McCttUomjh v. Siikes, 11 1'. R. 3;?7. EXECUTORS AND ADMINISTRATORS AND LeTTKKS of Au.Ml.MsTh II. 15:5 III I'U(J1IATE TKiN. 1. To Infant, '27^2. KlcllTS, AlTIlOKITV, AM) DfTV. 1. JUinancration, 25*2. 2. MortijaijuKj Pro^m-tij, 253. 3. Jicpiiirs, '2'>5. 4. Vdluinij Pru/icrli/, 2.5.'), f). Paijimid of Monty Into Court, '. (i. Otlicr Cufits, 25"). LlAIiU.lTIKS. ■•See Tki' IV. V VI. VII. 1. For Act.'< of Each Olhtr ANIJ TurSTKKS. 2. Dcvastacit, 25(5. .3. For Int(^reeit, 256. 4. For Costs. (a) CkiteraUi/, 257. (b) InAihnbmtration Suits— Sec p. 5. Other Cases, 258. Dkkicikncv uf Asskt.s, 258. Actions and J.'rockkdincs by, 25f). Actions and I'kockkdings Acain>t. 1. PlvaduKj, 200. (a) Parties— See Pleading. 2. Othir Cases, 200. EXECUTOK DE WON ToKT, 260. Ad.mini.'H'uation SriTs;. '.U, and as tlii IV li case is to be 1.: to the (liscr( nc laid down i aA the adoiitioi "11 (such as tivi iition of the t «:is no duty easi ,'iircd him to a i-ixecutor, nor iitioiial risk or i I'c not entitled :^ii awarded. /A IX. When UranteU, 201. Parties, 2()2. Practice, 202. Fifect of Decree, 263. 5. Costs, 203. As Trustees— 6Ve Trusts and Truste . Probate and Letters of Administkati 1. To In/ant. The 6tli see. of 38 Oeo. III. c. 87 (Imperii i:. W. by will iiii for their ov ::'tl() each, in liei . |icrforining tin iitors of this III iviimstaiices cc |ited probate iiotint spccilied "lts. Ocnison i — Senible, tin vise to act, and i ' with those e d have juris sitKiu given by tl londition of hi him by the wil 534. — IJoyd. The taking of .i ,"t deprive execr ispend them, ain ' luade for moiu :l'iiinl/cr(/i-r, /ton.' Doyd. •Accutors clain tcc'ipts aniouutii .lilts amounting Iccting and pa ill' for administi iiie under the ; ii'e import-aut : fc .Master. An iie account was liutitf, amount iiried out in pui H' the solicitors t also appeared fctud and liandef -iiie oi,u see. oi .to v/eo. ill. c. o/ (imperii : ' '""' i...inii,. prohibiting the grant of probate to infants uik '!'! •^'■'^'* made a i the age of 21 is in force in Ontario, eitliera. ™"^''' ^"^ ^^•'is pei rule of decision in matters relating to exeout and administrators ( R. S. 0. e. 40, ss. 34 and or as a rule of practice in the Probate ('(jurt England (R. S. O. c. 40, s. .32). An infant o; not lawfully be appointed administrator of estate, and therefore a grant of probate or letters of administration to aii infant is void, ; confers uo oflice on, and vests no estate in si infant. Merchants Bank v. Monteith, 10 P, 334. — Hodgins, Master in Ordinary. II. Rkuits, Authority, and Ditv. 1. Remuneration. The order of P'erguson, J. , 11 P. R. 27'J versed, and the Master's report restorec. —^ ... Held, that the right of an executor to comp ""^ "' '"^ debts sation depends entirely upon R. S. 0. c 107, '-'""'t as soon ; ■^ ' ' ''' "13 executors a ""iigli the admin ml to the funct LTOitly diniinislR 1 so in tills case 4 the comjiensa S440, iiothin ii'iii of .S4,(iS4.47, IS of ,SJ,400 an i'lit. on tlie balai •■r cent, on the d fcr. ThoinjisoH v ^fc also Burn 2. Mo X testator char; 'iiiit of his debts. rilATolLN Au.MIMSTk )L'TY. 'ourt, '2.M, '— .S'ee '\'ni< 13Y, io'J. AUAINST, NG. BO. !5;5 KXECUTOR.S AND ADMINISTKATOIIS. '2[A 41, and as that statuto lias fixed im standard, (ulicase is to l)u dealt with on its merits, aocoid- iiy to the discretion of tlie judge. Tiie emirt, kne laid down no inllixihle nde in tlii.s rei^ards 111 the adoption of any hard ;iiid last cuniniis- nii (sueh as live jier cent.) woidd dctVat tiic in- iition of the statute :-llol.ii awarded. Jla l-'hrninij, 11 1'. K. 4l'(>— Chy. D. C, \V. hy will directed his executors "to rc- jii for their own ust; and heueht the sum of ;(l() each, in lien of all (diargcs for theii' services , [lerforming the duties inip'2\. -Knyd.' Kxecutors claimed compensation in respect of ireipts amounting to !?'2!),000, and of dishurse- t.iiits amounting to .S.j,00O. All the work of ilkcting and paying over was done after an or- iir for administration had been made, and was i'liic under the advice of solicitins, and in the :inre important matters under the direction of iiu .Master. An item introduced on each side of II' account was a transfer of mortgage to the liiutitF, iimounting to .'E!4,()S4.47, which was mied out in puisuance of an agreement made y tiie solicitors and sanctioned hy the Master, t also appeared that the plaintitl's scdicitor eol- idtitl and handed over to the executors .S'2,400, also made a payment to them of .'?10,(IOO for ilmh he was personally liable : — HcM, that al- imugli the administration order did not put an inl to the functions of the executors, yet it [itutly diminished their responsibility, and it li'l so in this case to an almost vanishing ]ioiut ; isil the compensation was reduced fromSl,19;{ "8440, nothing being allowed in respect of the lint is vniifi'"' "^ 84,()84.47, one per cent in respect of the ■^ '' tins of .S.',4()0 and S10,000, two and a half per Mit. on the balance of the collections, and live I'loent. on the disbursements except the trans- r. Thoiitjiwn v. Fairhnint, 1 1 1'. K. .'ioS. — l5oyd. Sue also Burn v. Burn, 8 O. It. 237.] VND Tristei iMINI.sTKATIi 87 (Imperi; ■) infants nii< io, either u: ig to execut I, ss. .34 and abate fourt An infant Cc listrator of probate or estate in st tdlh, 10 P. •I/- ,-D DlTY. P. R. ^Tl •t resttirt'i tor to ciini|) 0. c. 107 2. Mor/ij(i(/!ii(j Propcrlii. A testator charged his real estate with pay- Hiiiit of his debts, which he directed to be paid '•leout as soon as possible, and then devised it 1 bis executors and trustees on trust to sell as soon as they should think prudent, and invest tile proceeds and [tay an annuity to his widow until sale, and after the sale, invest a sum named from which to give her a siiecitic annuity, and distributt' the proceeds among his family ; ami ploceeiled ; " I'litil sold as aforesaid, I direi't tli.it my trustees ki;ei) my scliooners eniploved for freight and hire as far as possible, and for such purpose to engage all necessary assistants, and keep the said vessels in rejiair ; and may store grain and (itlier goods and niereha.idisc in my warehouse for hire or storage ; and may take such action as they think advi.Mible to work and deve- lope my interest in the M. gold mine, but the outlay by them shall not at any time exceed •SIOOO. " The trustees became indclitcd to a bank for certain expenses incurred in connection with the schooners and rejiairs to them ; ami in con- nection with tile warehouse, and to meet this indebtedness, executed a mortgage of the real estate to the jilaintitl's who now broiiglit this action for foreclosure. The testat(n'"s delits had all been paid before the execution of the mort- gage, but there was no evidence that the ]ilain- tills knew more as to the purpose for x\liieii the money was re(|uired, than that it was to pay a debt due at tiie bank by the estate :-- Held, reversing the judgment of l''ergiisoii, .1., tliatthe ItlaintilTs were entitled to the usual mortgage judgment, for there was no sullieient eviilcneeof notice to them that the money was not to be ex- pended in conformity with the will, /.muloii ^ and Canada Loan, and Aiicii Coiii/iini'i v. ll'<(//«tT etal., 8 0. R. 58!).— C'li'y. D. The testatrix, by her will, devised and be- (pieathed all the rest and residue of her real and person:il estate unto l\. (;., "upon trust to si)l my real estate anul to call in and convert into money the remainder of my pers mal estate, w ith power to demise or lease * * any por- tion thmeof for any term or terms of years. * * And 1 declare that the saiil trustees shall, out of the moneys arising from such sale, calling in, and eimversion * * pay oil' the ineiim- braiice, if any, existing on the !•'. property, aiul shall divide the balance of tlu^ said moneys among my four children." The remaining pro- perty, not included in the residuary estate, «as siiecitically devised by the will among the child] ren of the testator in certain shares. K. ( 1. mort- gaged a certain portion of the residuary real estate to r)ne T., and ai)plied the proceeds of the loan in part in licpiidation of the outstanding mortgage on the F. property, and in ))art other- wise for the benefit of the estate. The property comprised in this mortgage was sold by the court on proceedings by T., but*'< Z S«"' •1!' ,#«■■. ,1'. !^"'l IP ^^ n «-•'« .11 ^-i| it n«'; ■o. 5,*i» ioo EXECUTORS AXD AD.MlNiSTKATOllS. 2.J6 257 per cent., nltliougli it iimviilcil for inttTost at twelve iKT ci'iit. Kdiiiliiii iiiid Ciiiada LdiinCo. )•. \N'iillii(.i', HO. I!, i":!!!, iliHtil)j;tiiMlir(l, ilnrilun it (il. V. llunloii it at., I Mt. U. till. — I'rouilfoot. 3. Itvpuiri. M. II. (tlie executrix under a will which was Kul).se(|Ueutly wet aside), having expcndid >'.'i"i().;{"> in rejiaiis to the real estate, and the tcst.itdi's will having given her a life estate in all the real estate, and having also given her '"the ineonie ot' all investments of which I may lie jiosscsscd for her o\\ n use, and also the jirmciiial of such investments as she may re()uire to use for her own heni'tit : " — Held, that the .SiJ.St). .'<.") was pro- j.frly aHowcd to her. IIIU v. 7/(7/, (i (). It. U44. — Ferguson. 4. ValniiK,/ ProiK-rtij. A testator ]irovideil in his will that on the death of his widow, his executors should have his farm valuecl, and gave ijermission to his son !•;. to take it at their valuation, after which tlie proceeds were to he divided anningst all his children, of whom the executors were two. K. having made up his mind to take the farm, the executors calleil in his aid in nominating three valuers, and ])roceeded to value the farm, he l)eing ]iresent, Mithout notifying the other child- ren. There was no evidence that he had at tempted to inlluence the valuers, or that they had I'oaehed their conclusion in other than a legi- timate and njjright waj , but certain of the child- ren had impeaclied the valuation as lieing too low and asked for administration : — Hehl, that the executors who were I'xercising, in some sense, judicial functions, shoidd either have excluded all interested, or should have invited all inter- ested to take part in appointing valuers ; that there should therefore lie another valuation of the farm, and if the ]iarties desired, it might be referred to tiie Master, or the executors might, on notice to all interested, proceed to do what was needful in that behalf, lie Kerr, Kerr et (d. V. Kerr el uL, 8 O. R. 4S4.— Boyd. 5. Pai/moit of Money into Court. Payment of legacies to infants into Court. See I'e Parr, 11 O. K, .SOI. 6. Other Cases. p.y the third clause of her will, H. M. the tes- tatrix, disposed of all her property, movables, anil immovables, in favour of her children as uni versal legatees. The legacy was subject to the extended ]iowers of administration conferred by the iifth clause of the will (referred to in the statement of the case), and also to the power to alter the disposition in favour of tl j testatrix's children given by the same clause to her husband 11. L. , the executor, and also by tin; will the executor was exonerated from the obligation of j making an inventory and rendering an account. H. L., in his ([uality of testamentary executor and administrator to the estate of the said H. M.. endorsed accommodation pi'omissory notes sigiieil by C. 1-., one of his children, and "The M. l>k." (re.'^pondeut), as holder thereof for value, obtained judgment against both the maker and endeis.r I An execution was subse(|uently issued against ' II. I.., es (pialite, and certain real estate o!' tlic late H. M., which he detained in his said c;i|,a- I city was seized and advertised foi' sale. .1, h. I \j. etal. (the iipiielhillts), who ale the only clijlil. ' ren (if the defendant H. L., and his wife, opp^sdl the sale of the property seized on the ground liiat the said piuperty was insaisissalile : — Held. le. versing th(! judgment of tin; court belo«, Tas- chereaii and ( 1 Wynne, ,1,1., dissenting, that tlu' endorsements were not aiithori/ed by the «ill, and that the cl.'inse in the Mill, exempting tin- propel ly of the testatrix from execution, is \aliil. and must be given elleet to. Art. !)7'2, ('. (., Lioii'iin V. Molsiiu's lidiik, 10 .S. t'. 1!. .V2tj. A testator by his will directed his executms to cancel and entirely relc.'isc the indebtcdiK -« of his son \\ . .S. upon and by virtue of a nuat gage to tlu! testator, sucli release to operate ainl take ell'ect immediately (ui and from tlie saiil testatoi' s death. In an action for the adniinis. tration of the testator's estate, \V. .S. claiimil tile discharge of the mortgage, but the executiTs contended that tlii'V were not bound to givi' it until W. S. paid the amount of his otlier imlclpt- ediiess to the estate. The master found in t'aviair of the executors. On appeal from the mastci' it was — Held, that the executors were not entillnl to insist on payment of the other indebtediu.-s before dischaiging the moltgage; — Held, idsd, following Northey v. Northey, '1 Atk. 77, tliiit althougii at law the assent of the executor is iiu- ccss.-iry to the vesting of a speeilic legacy, in ei|uity he is considered as a bare trustee, ;ui(l ii he refuse his ■assent without cause he may W compelled to give it, and that here the executnis refusal was without cause. Areluret al. v. .Vl ('(•/( et al., VI O. It. 015. — Proud foot. .See also lie MeDninjall TruMs, 11 P. P. 40-1: Mirrliitut.-< Uiuik v. Montelth — K.iparte Stnmlitr'l Life Assurance Coinponi/, 10 P. U. 588. III. Liahilitiks. 2. Devdstarif. An infant, whether executor or executor do son tort is not liable for a devastavit. Legacies directed to be paiil out of a mixed residue are a charge on land. Yoiniij v. I'nrves, 110. P. ,")',)7. — Proudfoot. .S. For Interest. It is not usual to allow interest on claims whcic there is no fraud, or wilful withhold i ■■•' ac- counts, only a loose mode f de: igbetwuii the p.arties. The discretimi ieh a jury in y allow interest ajijdics .sters office. Kirl'peitriek — Kirkpo^ .Stevenson, 10 I 4 — Hodgins, blaster ilinary. The I'jiglish rules regul.it ing tl award of in- terest against executors and t: stees may 1"; approximated in this Province (I) l>.y cliMigiiiL' an executor who negligently retains funds whiili he should have paid over or made productive ii>t the estate, .at the statutory rate of (I per cent.: (2) By charging him who has broken his trii^t by Using the money for his own purposes (tlieii.L'h not in trade or s[ieculation) at such a rate of in- terest as is the then current value of money ; aiiil ;.) r.y chargin tin^t by embai twilnig advent {lalllld interest tiir.i in this casi iin'i'casing balii jiar, and ;iIlo\ iiioiicy as he | any prolit was iviilciice was rati' of interest iiiitcs and mort interest for tin iii.i.stiM' chargeil ir cent, per iiiniieys in thei nil! allowed till (In an aiipcal fi \\:\>: -Hel.l, tl at I! per cent., li iiiti'rest was op ill lii^L/Iis ('. Mea In ii])|ield as bi iin]iiised on tli UiMu'lii r//er v. I The executor Si.lOO to meet uui'c not called that die anioun ami tiiat the ex intorest 111 respt 11 1*. 1!. .S3,S.— See also t'co, R. l.-.!». .M. II. provci a.'iiiliseipient wi wiiuii the testat l"'tli piiysical ai I'vS. II., the ex ii. II t.) set; ai !"''i'nil will, wl -M. II. was ordci ■M. H., in an ae ing-s witli the es litigation in em nill. was entitle (Statu. J/i/l V. Held, that an suits in his own the estate he ass 'ostsof such suit op.it. ,'m.-i Tlieplaintitr w of liis brother ii Mil in-oviiice of ; to give the nec■e^ tliu makes gain out of IiIm kin of tin; iluct'asi'il, and tla I'lsiicctivc amounts tiiiit l>y L'nil)ai'kini,' tlic monuy in .s|it'c'nlativi: or ^ ihn; the Hinrial cl.iimant.s were ncttkil l>y tlii' trailing advonturrs witli tin' prolitH or with com- , court. Owing to tiic [ilaintitl 's nfusiil to join in iLiuiid interest, as the (mhc may lie. 'I'lic cxccu- , realizing the stoik, how e\ cr, the ilelendants were tiis in thi.s i;ase kept considerahle and constantly unahle to pay Hume of these parties their respee- iiuiiasing halances in their hauils from year to tive shares, and linally the )ilaintilt' tiled a liill to viur. and allowed the acting e.xecutor to use tin,' eonipel the defendants to pa\ him his portion nf iiioiny as he pleased. It was not proved that the estate, with Si ■••()(• xvhiih he claimed a.s eoni- ;iny jirolit was made out of it, and noJspeei.il mission, and also to iiand ovei' to him the siinrcs of the next of kin. At the hearing, a decree was made directing the estate to he disposed of hy the defendants, and that they were entitled to their costs, as lictween solicitor and client, which could lie retained out of tiie plaintill's share ot the estate. (In ajipi'al, I'roudfnot, .1., reversed that |iortion of the decree which made the )ilain- titl's sh.ire of the I'st.'ite lialile for the tviiieiiee was givi'ii to shew what the curi'ent wtc of interest during that period was ; hut the iidti's and mortgages held hy the executors lioi'e iiittiest for the most part at tl jier cent. 'I'he iii.ister charged the executors with interest at (1 ]ir cent, per annum, with animal rests upon iiiniii'ys in their hands liidonging to the I'state, ;i:iilallowed them thi' usu.d commissinn and costs ( Icfi'hdants' ;inil aiio\> eii Liiem iMi" usu.ii coniims.snui .iiiii cusLs. iiii m ."sii.iii.: i»i iiic i-mjuc iiiinie iiu Liie iicu'iiiiiLiii.s (111 an appeal from tlu^ re[iort of the m.ister, it costs; Init the Court of .Appeal (10 .\. K. 7f> was : -Held, that the interest should he charged restored the original judgment. On appeal ti iittl per cent., l)Ut that the awarding of compound "■ ^' '' ■ ' ' ' ' ■ ' " ' ' "' '•■ th interest was op))iiseil to the s]iirit of the decision the , ill Inglis c. lieaty, "J A. U. 4."iM, and could oidy misco In upheld a.s lieing in the natu '' " '' " '''^' ' iniliiised on the I'xecutors, In lloiislnn/rr V. Krai'., 10 U. 11. .Vil. — i'.oyd. The executor.^) retained in their hands a sum of Si.lOO to meet claims against the estate, and \nre not called u))on to jiay it into court : -Held, tlwt the amount retaiiu'd was not nnreasonahle, .■iiiil that the executors were not chargeahle with iiitorest 111 respect of it. 'i'/ioiiipson v. Fidrhalrn, 11 1". K. 33.3.— Jiovd. Supi'eine t 'iiurt r)f ( 'auaila : Held, attirming iidgmeiit of the ciiiirt lidow, that as the nduct of the plamtill' h.id ciuseil all the •e ot a penalty litigation, the t'oiirt of .\p]ieal had acted rightly ;v //nii.iliiriirr, \ in refusing to compel any of the other next of kin to hear the hui'den of (ho costs. O'SnUiniit V. Jfarli/, li S. C. K. .S:2-2. 5. Oilier Cit.ii's. See also C'rowhr R. i:.9. -Crawler v, 4. /■'))• Ciifii.^, (a) Geni riillii. M. II. proved a will as exccutri.x, aftcrwatds may Ik y cliargui;; mills wliii'h ductive fnr per cent.: 1 his trust Bsesltheii,!:!' rate of in- oney ; ami a •■■uhseiiueiit will was found d.ited ahout a time whiu the testator was in a weak state of health, lintli iihysieal and mental. A suit was l)roui,'ht liy S. M., the executor in the later will against M. II to set aside the tiist and estahlisli the siiciiil will, which was successful, a?id in which M. II. was ordered to pay the costs : — Held, that Where a will creates a life estate in chattels, the executor is discharged when he hands over : such chattels to the tenant for lifi'. The tenant liiuiintH, 10 O. j for life, and iioC the executor then hecomes liahle for them to the person entitled in remaiiuler. In rv. Munsle, 10 I'. 1!, '.t8.— Hodgins, Maxhr in Vrdindri/. The .')7th and 'iSlh sections of the Surrogate ActlPv. S. O. eh. 4()), ])roteet parties hniia tide making payments to an executor or administra- tor notwithstaniling any iiivaliiiity in the prohate or letters of administration, hut they do not jjro- tect payments made to third parties hy an infant assuming to act as administrator of tiie estate. Mirehants linnh v. Mniilrilh, 10 I'. K. 334.— Hodgins, Maxler in Onlinnri/. gave hern.'aland personal One L., hy her wil -M. H., in an action for an account of her deal- i ]iroperty to her hrothers and sisters, share and iiigs with the estate, having a fair (|Uestion fi litigation in endeavouring to uphold the lirst will, was entitled to the costs thereof out of the estate. 7/(7/ V. //(//, (i (). U. -244. — Ferguson. Held, that an infant is iiicapahle of bringing Euits in his own name, or of making himself or the estate he assumed to represent liahle for the •ristsiif such suits. Mrrclidiitu /idii/.'v. Monliith, lO P. 11. 334. — Hrnlgins, Mus'irin Ordiniiri/, The plaintitr wished to administer to the estate "f liis hrother in tiic county of Westmoreland anil iirovinec of \ew IJruiiswick, hut was unahle to give the neces.>ary administration hond until tliu defendant W. and one .1., agreed to hecoine liis iKjiidsinen, se(^uring them.selvi's hy having the t-t ite placeil in the hands of the defendants. A lli'iition of he estate consisted of some I'higlisli I railway ^ , k which the defendants wi.slicd to IcoMvert iiiLo money, hut plaintill's would not as- isttl lot tl I'm in doing so. In ))issiiig the accounts 1' estate ill the Probate Court of Westmore- llaiiil Countv, it was found that there were sev- Icrat entitled t o [);irticipate as iiex t of share aUke, and appointed L. and 11. executors. L. and K. converted the estate into money, and invested the proceeds on mortgage security, and afterwards as certain of the legatees came of age jiaid them over their shares, but paid the plain- titls' shares, they being infants, to one F. who, with the concurrence of their parents, had been appointed their guardian hy the Surrogate ( 'ourt. F. ahscoiided with the money. The infants now suing L. and H. by their next friend for the amount of their shares :— Hehl, that by the ac- tions of the (■xecutors the moneys in their hands had become trust funds of which they were trus- tees, and that the plaintills were entitled to jiidgiiient. I/iiiiijinsii al. v. Lawet al, 11 O. K. 5!)5. — Ferguson. See //»//'•/,■ V. />n,rtor, 10 V. H. 'J.'), p. 2()(j. so Hum V Bi SO. 11. -237 IV. Dei-tcikncv or Assn's. The ell'i'ct of s, 30 of U. S. ( ). c. 1 07 is to disable an executor from giving preference to one credi- ■cl 1 •^1 mzw I'X'OW*'' 'liK.aiB|ipll llll^S!* xiii'l^aia "» await «•» 1«M • • " I* .-Ml 0'* •'* »!-;« »i.>awi«| •J59 EXhX'UTORS AND ADMIXISTKATORS. L'flii tor over aiKitlier, so that where he jays one creditor in full the iirusiiiiiiitioii is that he has assets .siilhcieiit tn [my all ; Mid if, upon a liniil ailjiistinent of tin.' ai.eounls of tlie estate, it is made to appear that one ci'editor has received [layinent in full, eitlier voluntarily or hy i)roeess of law, and tiiat there is a delicieiiey (jf assets, sueh creditor will he ordered to refund at the instance of the otiier creiiitors, the statute thus placin;^ crt'ditors and legatees in this respect U])on the same footing. ( 'handierlen i'. Clark, 1 (>. I!. l.T), allirmcd. Clittiiil,,:r/>H v. C/ar/:, 'J A. R. '27:». V. Actions and I'ltot kki>in<;s Hv. In an action of tres]xiss for entering the ware- house of a deceased person (of whom the i)laiii- till' was the administrator) after his deatii and taking and converting tile goo, is therein, the de- fendant set oil a debt clue Ity deeeaseil to him. All administration order had heen made of which the defendant had notice hefore defence. 'I'he set oil' was held had under liT N'ict. cii. 2S, see. '2H, and als') hecause of the administration order. Miiiitiithw WitMi, 10 1'. K. Itii'.— Dalton, .!/((.uehec, and had no right or title to sue for the moneys : — Meld, on ileiiiurrer, a gooil defence. J'ril'/utr'l V. Sttititltifil Life A!INi;s Ac.MNsT. 1. I'h'tnliuij. To an action on two promissory notes against the executors of the maker they pleaded, 1. rii;i- they never were executors. •_'. I'lene adiiiiiiis travit. 'I'he pl.iiutitl' obtained a verdict, lui'l judi:iiient wa , entered for the ilelit and c(i.,t.-i u lie levied of tile goods oi' the testator in the liainls iif the defendants, liis exec'itors, if they had s.i iiiiich thereof, and if not, tiieii to he levied (jf the [iroper g Is and chattels . •'., hy reason of the user hy him nf ;i certain niachiiie made hy him in allegeil infriiiin- liient of the plaintiti "s patent, which tirotit oiii- sisted in the saving of expense to I». I). ('. :- ileld, on ileinurrer to the statement of chiiin. that the pl.-iintitf had no remedy against tlie ex- eeutors of l>. |). ('. in respect of such protit ,k enied to him prior to liis death. I'hilli[)s r. Ilnin fray, '24 ( h. D. 4.S1I, discussed, and regarded iia decisive in the [ireseut case. Seinhle.that if tlit statement of claim could here.id to mean tliiitKy reason of the wrongful act complained of. pm perty of a tangible eliaracter, passed from tlk plaintiff's estate to that of 1). I). C, as distiii'f from the saviiig of expen.se, ^'\ti eouclusicju iiii:4lit !).■ ditlerent. 'L'-'' ('/( (Jrilhuti'i/. \'II. KXKCllol! DK SON TOKT. The party w'.io sells or gives the gooils "' i deceasecl person to another, lint not th'' pilivlii >Nithin tin; limit of his intended fraud, and the ser or receivtu'. is subject to the lialjilit jrdgineiit should be ;il!owed to stand. I'er I'at- executor de .son tort. The rule that who t> rscui, .1. A. — The judgment should ot bj set executor take.s the testator's goods on ii eki it ,1 property in t appears he 1 prcssive of adiiiinistratif thu case of a j pi-rson under tlimigh he mi oi title coinpi t'l he charged i7ii(/i/'.s' Banlc Miiilcf ii) Ori VII] ('. M. died soiial estate, bt(|iieathed t' r^, .11 the cv( til the survii ,1111 1 guardian I'li'tliwith too .lA'd the sail li^itii \). & K. afterwards, a mitstanding u aiico of the la ill '' e. On .1 '.luvd a grant tiiis province, !>. died elititl I'li'th, and as i^SK, procure! tstate : — Heli isti'.itors were iiiiilaut's deal cHtiite of C". M 'ni.'iiial inortij i-'t's, have beci lands freed fr that the defeii ti"M to the lai: the title acipii tuthe plaintiti lilamtill's : — Ii tiiniey-( Jeneni lilaiiititl's' rig! "f D.'s estate invalidity of tl fstate, and iiei ill tile grant fr lieiieral for t fe:-Meld, a was no bar t( .'iO. 11. ,S77. >■ r.. 10 A. I! Tiie jiirisdie istration order aa'iiiints, and ii.iy take the lifi's withcuit re lint to all sucl afipiies. \V| it appears that miliary (juestii ^hiiiiM hedecid :iii'l llie Court [Mrties may tr ""t tried, Of witliiMit first d ^^M to have w and cannot r.ii:, -2 Go 1 liould bt ifi' 1 .It I'atnck'j I s not t'litit' 1 '!« IK'llt W;h I iiiil sulKivt;il'; hy iiini nf ll L';;eil intViiiri.- :li T)r(illt i.'iiu- , 1/. 1). C. :- lit of eli'.iiii, liiist the I'X- ell protit at- ni|)s c. Hdiii regardeil as c.tliat if the mean that liv lined of. piM- .sed from tlk- , as distillrc hisioii niii^lit kin, fi..' Ill"' ire, surii I'M- (J vehitioiishiii cell swell t'^ read witi. (.1 the en:;a: ■/,■, A' //•/■/'"' Ij-ius, Mil''' luRT. m floods of J t th" l)llivli:l iabilitv I't -1 hat wlieiv a "'l>--^=' 'tis clearly shewn that there aiHJ th.mt;h he may not be al)le to establish his claim !'" l«;'f "•'' ^i^-'f ^ ''^''^ '" respect ot which auci - „, title completely in every respect, is not liable I'llW. letters probate could be obtained. An ad- t„ he charged as an executor de son tort. M",-- l'""'«tration of the rea estate onl ily may be had utf.-lication. in Aniioiir , — MiKirc V. Ai'iiioiir, .'iliiilcr ill Ordinarii. VIII. Au.MIKISTRATIOX SuiTS. 1. Whin (IrantiiK ('. ^J. died in 18G() entitled to real and per- , soiial estate, which by will lie devised and be(|Meathed to his two illegitimate children I), it L.. .n the event of either dying, his share to go to the survivor, and he appointed C executor ;iiiil guardian of D. & E. who were infants. ('. loithwith took possession of the estate and nian- a^'cd the same for the bcnetit of the infants. \ IVitii \). & K. died in 1S71, l>. surviving H. ('. afterwards, also in 1871, paid oil' a mortgage iiutstanding upon the realty, and took a eoiivey- aiice of the laiiil Tiom the mortgagee *^ii himself ill '■ e. On .luly '24tli, ISSO, the plaintili's pro- tilled a grant from the Crown under the seal of thi-^ province, of real and personal estati^ of whicli i». died entitled, upon certain trusts tiiereiu set Invth, and as such grantee, on Oetobe. "JOtii. l^SO, procured letters of administration to l).'s ustate : — Held, tliat the plaintitl's as suehadmin- isii'ators were entitled to an account of the de- icudaiits dealings with the real and peis(Mial estate of C. M. • — Held, also, that altliough the iiiiL'iual mortgagee niiglit, un S. V. \i. ■'i.SH, the lilaiiititls" right to an account as administrator lit l)."s estate was not aU'ected l)y the alleged invalidity of the grant to them of the escheated tstate, and neither the eestuis (pie trustent named in the grant from the ("rown, nor the Attorney- (ii'iieial for the Dominion wire necessary Jiar- ties : — Held, also, tha ^ the Statute of Limitations was no bar to the action. ^-Hiiijmhi v. ( 'luint/, a 0. I!. 'A~~, — Ferguson. Atlirmed on appeal, >. C. 10 A. K. :V2. The jurisdiction in Chambers to grant admin- i^t^ation orders, applies only to simple e'ases of aii.( milts, and the .hidge' or Master in ( 'hambers, 11. ay take the administr.ition aeeounts in ( 'ham- ht IS witiiout referring them to the Master's othee. lint to all sucli references Clianeery Order "i'-'O apiilies. Where on an aiiplicatiou for suidi order. It apiiears that there is a substantial and preli- laiiiary cpiestion to be decided, such iiuestioii -iiMiild be decided befor" the reference isorilered ; aii'l the Court may limit a time within wliieh the IMi'ties may try the issii-. But if the issue is lint tried, or the lU'der i.> made in Clianibeis wiihiiiit tirst directing such issue, the jiarties :irj ill-Id to have waived such pr 'limiiiary ipiestion. See h'c P. n. :v2\, n. 2:m. 10 1'. R. 448. — Moyd. Mori'liii — Moriiliii w Nir. I'riuiki'. The jurisdiction of the master's otlice is not co-extensive with that of the Court in eiujuiring into anil adjudicating upon the validity of docu- ments ; and there is no aiitluuity to siipi>ort any implied or assumed dele/ 'i)ii of the funetions of the court to the mas;"". Nor i.s there any practice in the master's oiiiec which allows par- ties to obtain a referts jissigned to the plaintili's liy the testator in his lifetime, and on which he had received ad- vances. On appeal from the master's ruliii';, it was held \)y Royd, <_"., that as the court takes possession of the estate for the pnriioses of ad- niinistiation. the master's otlice jiossesses all the powers reiiiiisite for the administration of the as- sets, and had therefore jiirisdiction to try the Ipiestion. Aiii'i that mi the ease of a creditor's .idministratioii reference, any creilitiU' had a right to resist or attack the claims of any otlur credi- tor sought to be proved in the masters ollice. Mirrliiiiifi lluik v. Mon/iilli, 10 P. R. l,-.S. .\n appeal from the order of the .Master in CJhamliers ehangiug tli ; [ilace of reference in an administration suit from Itrantford to \\ aiker- toii, and giving the condiiet of refeieiiie to the "efelidants, the exeelliors, ii, stead of tli>' |ilain- iiSi'Bir! '1.' mi\\ i|i»S!l 1' <»■•'• '• Ml>'l 4 ail! '! Z^'^ *if ^-11 itCi^^ 1M'S'<" i!;ii:.jl-l» ^^ -:!> f; »•'• Ti' ,.*•'■ 1! ««»'• ''"^-'J iir%t\ li« WB-'I :;;, »•;• (V.. „w"'» :;; sis: ,.s::» :iiid eannut raise it ill taking ti>e accounts under till', was disniissed wilii costs ;-- Held, that the 2C3 EXECUTORS AND ADMINISTRATORS. 264 •265 referpi!ce in adniinistration actions should iirima facie 1)0 to tlu5 iilaco wlicio the person whoso estate is to he ailininistered resides. (J. O. Ciiy. ()3S, governs the ease, and tlie iiractico laid down in Macara t\ dwynne, 3 (-'hy. 310. is inapitli- cahlf. '/'/itiin/ixiui V. Fairliiurn, 10 P. U. Ti'X\. — IJoyd. l)urini,'the ar!,'iinient liefnre the master, and on the a)i|ieai tiie >^olicitor for certain of the defemh'ints other than tiie executors a^hed fur the conduct of the reference in the event of its beini;' taken from the ]>iaintitl'.s : — Held, that the solicitor could not obtain tlii conduct of the re- ference tndess by a substantive ajiplication. The appeal was dismissed, without |n-cjudiee to ii substantive application. II'. A summary order was nia\\ assigiui' ot the legatee, but only of a chargee or liciiiioldt r upon the fund or jirmall balance of 810 was lound in his favour. I'laintitl lia\ing made cer- tain charges which he failed to substantiate, anl not having proved that an account was dcmaudci! ! and withhehl from liim ; and certain s])c. iai matter ]ileade< costs. /jii'lfi/Y. O'Cimnor, ,") (). it. 7-17. — be\,l. Parties residing out of the jurisdiction wh come into the master's oflieo in an adniinistrat:. ; action imisuant to a notice to creditors, and r!;;i;.. to be creditors of an estate administered i\\i:<, will be rccpiired to give security for costs. /, III IS — rn/ii/iiir/ V. Toronto Tni-i/.t ('oinptoiii, ]<> 1'. 11. 4'J"). — Ho'-'ins, Miifilcr iti Vrdmunj. Held, that the executors were entitled to tl.i costs, liecause the action was not oceasioned l- their niiseonduet ; but they were disallowcil ti costs of sneli part of the en(|uiry as was cau.M': by the misa)i|ilication of the funds or their faili!. to make reasonably accurate entries of tlni: dealings with the estate. In n- J/iDiiliinji ,■ IluiiMnji r V. A'/((/:, 10 (). K. .V21.— ]5oy(l.' The administrator is a necessary ]iarty to administr.ition suit, and as such should get i i- general bill of costs incurred in the ordinary ]i, ueediiigs in w hicli he took ]iart ; but when: i: estate is insolvi'iit. the creditors are the pers( • really interested in the litigation, and it is ;. : them, and not for the administrator, to ta!.' active ste]is by way of ap))eal to reduce the cl.iiii- of secured creditors. 'J he administrator is ei: titled to attend ujion such appeals, and to tax i watching bi-ief, but not such costs as if ho wee the jirincipal litigant. Hi' Monti ith — Mmrli'i,- Jiunk V. Moiitiit/i, 11 r. i:. ;i(;i.--Boyd. In an administration suit in which the estiit was insoh-eiit, the total assets being !*7-,000, tl.' liabilities .■'i, and the cre(litors ISO in imii:- ber, and in which the commission of tint solicitor who acted for all jiarties was allowed by tir master, under (i. (). Chy. (i4;?, at .'lied for an order for the delivery ani taxation oi the solicitor's bill instead of the ;i'- lowance of the eoiuniission, on the ground tin' the eoinmission was excessive : — Held, that tli' commissimi was not so exorbitant as to wanni.: the substitution of a t.ixed bill, and a proiiali' rediK'tion iiy that mode of payment. es]iccialiv as the benetit to the creilitors would be trilhn. /)/ ri' iStnfliimi — Antlii.i\. Diirar, 10 I*. K. -.'iii — Boyd. 'I'lio scope of the (J. (t. Chy. (14.3, is merely t aid in lixiiig a solicitfir's remuneration. It i- not intended to do strict justice, but is only sort of convenient expedient for fixing costs with out taxation. II). A very liberal compeiis.ation in such cases ;• not per se a riiason for reducing the conimissimi, or directing tiie taxation of a bill in its stead, ii") per contra is a low and inade(iuate compensatii : ' a reason for iiiereasiiig the commission, or diirc' ilig payment by a taxed bill. ///. .•^embh;, that, in eases atl'ectod by this onU'r, an ■ )iarty interested in the estate, who m,iy dcsi' that a solicitor should be paid in chc particiil:' matter or suit on the scale of a taxeil bill iusfi i of by commission, should give notice to the i^'l citor to that effect, and have the master neti ' in his book, at the earliest stage possible in ti. proceedings ; the siibstituti at the option EXE e: E e: llight to tin :liL' conduct ol Exjirifs C'oni/H ':u., 'J O. R. 1> EX PR I. BvMu-N II. Bv R.\ii WAY < Cmnponsatio propriation of meat. See Jie Street," and " 6S7. ill extraditi dwrged that tl .suspect and bel that II. L. he the crime of b _H. b. bee," &( "S orders for tl iharge was, tin Slid several ti knowing the sa ''I'llers, .':o. :— 1 Illation chargee iiiiisly forge," i iuftiruiant belie til, " &c , migh even if objectio; iiiiders. 11 oi'.i'. 3.'!\'iut.c.'jy,s.'. >^^harge was free 264 tantiatc, riii,l asdcmainliii rtain si)(vi;i! being fdiui.; y entitled ti 747.— liey.l. ■idictidn •.^1:- Iniinistrat:. : irs, andrlni:., stored till :i. ir eo.sts. /,. I'oiiipatni, In 'liiiarji. ritledtotl..: euasioneil 1. isallmveil t!,- i was eiuiM ■; r their failui' ries of tli'i' //dIIsIiii-'I' I- -Boy.l' party tn . , H III Id get i ',■ oi'dinary (i. lilt wlieie ,.:. e the ))er.-^i ,- and it is f-; itor, to tak. lee the eliiiii,- strator i> ei; and to tux ■. 'Mi if ho \vi e //— .l^■f■(7..o-• ^oyd. .■h the estii; 4>57--',00(i, tl,. ■s ISO in luiiii- f tll(! Sllliciti'l iwed liy tliv S!)II."), eJL'l- and witliiiii; 1 (lays lirfoi. delivery aii'i il (if the 111- gi'dUnd til. I' ■1(1, that tl. s to van III.: I a priiliali. t. e.s)ieciallv 1 he trilliii. 1'. i;. -Jiii' IS merely ; itidii. It i- lilt is only \i' I'dsts with such eai-i>s ;■ (•(iinmis.'^iiiii. its stiail. II"; (•(innieii^ati'.;. (Ill, (ir diiiL' lis onler. any (I may dc^i' ho iiavticiil:' dliilliii-ti.i (■(. to tllc ^"l luster note :' issihlo ill ti. •265 FELONY. 266 p.dCeedings ; Ijut there is no in'actice authorizing the substitution of a bill of costs for coih;uis.si()ii at the option of any party. Ih. EXECUTOR DE SON TORT. See ExEOUTOKs and Ad.ministkatoks. EXECUTORY DEVISE. See Will, EXPERT EVIDENCE. See EviDENcK. EXl .-I SS COMPANY. Kight to the i • i'ltics afforded by railways in :lie eomluct of their business. See '/'/(( I'irbr.i Exjircys Com/tiiiiij v. The ('dintdian Paeirir J'. IT. Cv., 9 O. K. l-T)!', i;{ A. K. 210. EXPLOSION. See In.si-kanci:. EXPROPRIATION OF LAND. I. PiY MU.VICII'.VLITIE.S — Sie ^lUNICIl'AL CoR- rOKATlON.S. II. Rv Railways— .SVr Railways and Rail- way Com PANICS. in these proceedings, a ))lea to the information is not re(juired. In re II. L. Lie, 'i (.». R. 5S3 — C. P. D. I (.'ortaiu foreign depositions used were sworn to I before E. (1.. a justice of the peace for ( 'iiiciu- nati township, Hamilton county, Ohio. A cer- tilicate was att.iclied, coiniiieiiciiig, "I, haniel J. Dalton, clerk ol the Court of Common I'leaa ' for said Hamilton county," certifying as to the i signature of \\. ('•., and that hi; wasa dnly(|uali- I tied justice of the iieacc for said county, and en- [ titled to take dep(i;i.oioiis of witnesses, i\:c. ; and I concluded, '" In testiinoiiy whereof I have here- unto set my hand and allixed the seal of the said Court at i.'inciiinati," itc. 1>. J. Dalton, l)y '. Hichard C. IJohner, Deputy. To this was at- tached the certilicate of the* lovenioiirof theState of Ohio, under the great seal of the State, certi- fying that \). J. Dalton, " whose genuine sigiia- j ture and seal are atlixed to the annexed attesta- I tion, was at the date thereof clerk of the .iaid I r'oiirt," itc. ; that "he is the proper person to I make such attestation, which is in due form, and that his olHcial acts are entitled to full faith and credit." The court, without s[)ecially pronoun- cing on the (picstion, refused to alhjw an objec- I tion. which as a matter of fact was not taken, to j the sutiicieiicy of the depositions under 4.") \'ict. c. '2,'), s. i), subs. "il^HDoni.), fortheolhcialsealof D. .1. Dalton is attached, and the (ic^vernor cer- tified that he was the proper person to make such attestation ; and also there was viva voce evi- dence given in proof thereof, so that the ' ' paj)ers Were authenticated by the oath of some witness " under sub-s. (h). Per Wilson, ( '. ,1. In these proceedings the evidence of interested [larties need not be corroborated. Ih. PACTUM. 'J'he plaiutill's factum, containing reflections I on the.ludge ill ei|uity . and the full court of New Hrunswick, was ordi'icd to be taken otl' the tiles Compensation eliiimed by municipality for ex- ! "*' tl>c court as scandalous and impertinent. Ver- pi'opriation of roads by the Dominion (ioV(;rn. meat. Hen lie Trent Val/ii/ Cannl, '^ Jii' \\'ttli-r Stmt," and •' The Road to the Whurj," II O. li. (iiJ7. E.XTRADri :()N. Ill extradition ])roceedings the iiil'oi -i ition Lhiu'ged that the informant " hath just cause to .ni,>;pect and believe, ami doth suspect and believe that 11. L. Lee,' the prisoner, "is accused of the crime of forgery," etc., "for that the said H. L. Lee," dte., "did feloniously forge" some "8 (irders for the payment of money. The ~'M\\ t-liarge was, that the said H. L. Lee, ,it the afore- -aid several times, <.tc. , did feloniously utter, kiKiwiiig the .same to be forged, the said .several I'ldeis, fic. : — Held, sutlieient, for that the infor- mation charged that the jirisoner " did feloii- loiisly forge," (fcc. ; and the allegation that the iiiidiiiiant believed that the prisoner " is aecus- cil," &c , might be treated as siir])lusage ; but even if objectionable at common law, it was good under s. 1 1 of \V1 k X>> \\>i. e. HO, (Doiii.)aii(l ;f.> it 3D\'iot. c. '-*y, s. '27. ( I 'oin. ) ; and moreo\er the 7!)th cli.irge was free from objection . — Held, also, that lion V. Oiirer, II S. C. R. I."')() FALSE IMPUISOXMENT. .Vtt'MALICIOlS A'MIKSI', PlidSIXriliiN andOtiikr Pk(|(Kkdin(Js. FALSE l!Kl'i;i:sKNT.\TI(»N. Sei' I"i;ai IP and .Misi;i:i'i;i.si:NrAri(iN. FATIlKi; .\ND SON. .S'-c Paimint and ClIII.li. FELONY. I. OlAKItALLV — .V"' ClJIMINAL LaW. IL St si'i'.N.sidN c'K .\cridNs IN Casks of Fklony— .S'' tmM" J'' "^ '"" "•HI 267 FISHERY. 268 269 FEME COVERT. See Hl■^sBA^■l) and WtFE. FENCES. liAII.W.W FkNCES— ,S'(-(' It.MI.WAV.S AND KaILWAV ('(•MI'AMKS. FEIillV. The crown granted a license to tlie town of Ik'lleville, gi\in;i tlic light to ferry '• hetwcen the town of Jjcllevillo to Anieh'aslmr^' ": — Hehl, a sufiieient ^'rant of a light of ferriage to iukI from tiie two phiees named. Andosua v. Jellct, {»S. V. H. I. L'nder the authority of this license tlie town of IJcllcville executed a lease to tlie ])Laintirt" granting tiie franchise " to ferry to and from the town of Ik'lleville to Amelias))urg, " a townshii) having a water frontage of aliout ten or tweh'e miles, directly o|)iiosite to Belleville, such lease providing foroidy one landing place on each side, and a ferry was estahlished within the limits of the town of P>olleville on the one side, to a |)oint across the hay of (^luinte, in the to\\nshi[) of Anielia.sburg, within an extension of the east and west limits of Hellcviile. The defendants estab- lished another ferry across another [lart of the bay of Quinte, between the township of Amelias- burg and a place in tlu' townshij) of Sidney, which adjoins the city of lielleviile, tile termini being on the one side two miles fioiii tiie western limits of Belleville, and on the Ameliasliurg shore, about two miles west from the landing place of the plaintiff's ferry : — Hcdd (reversing the judgment ap[)ealecl from, 7 A. 1!. .'Ul), that the establish- ment and use of the plaintitfs ferry within the limits aforesaid for many years had fixed tlic termini of the said ferry, and that the defend- ants' ferry was no infringement of the plaintiff's rights, lb. perty, and to prevent it spreading thereto the defendant burnt up the stubble etc. around tht- plaintiff's property. The tire was set out on -Monday, the wind continuing in the same diic,.. tion (HI Tuesday and Wednesday, and in the interval there were falls of rain, in consei|Utii. .. of which the ilefendant did not keep watcii over the fire. ( »n Thursday morning there Mere ii|. dicationa of a change of wind, and the defemlaiit sent his sou to watch the tire, but when the Im ter arrived on the ground tiie wind was blowin- j a heavy gale, at the rate of from thirty-tivc to I forty miles an hour, and tlie tire commuiiicatL.l ; to the jilaintitr's projierty, which was destroycil, and it appeared that even if the defendant "luui I been watching he could not have prevented tli.. I tire spreading :— Hehl, that the defendant ua-: , not liaiile for the damage sustained by the plain. till'. Miti-nlni V. Daltuii, 5 O. K. 541.-1 P. D. II. Cakkiack ok Goods. .See /}ro(H< V. Thv Xortherii U. IT. Co., (j U 11. ISO. FIRE IX.SURAXCE. See Inslrance. FIE It I FACIAS. Sw ISXF.CITION. I'lllE. I. Clearing Lanp, L'liT. II. t'ARRIAfii; Ol' (iooiis, 2(iS. HI. V\ws\ S'rKAMiiuATS— 5('e Siiii'. W. 1'rom IvAii.wav Engines— .S'ee Railways AM) Bailwav Co.mpaxie.s. V. 1nsikan< i: AfiAiNsT— .SVf Insikance. I. Clearing La.nh. | The defendant, for the purpose of clearing his land, set out fire on the same, but before doing BO consulted with the plaintitl', who had some huiiber piled on an adjoining lot, and «ho agreed j that the weather was favourable, the wind blow- 1 inj; in a direction away from the plaintift"s pro- 1 FISHERY. Three several actions for trespass and assault were brought by A. 15. and C, respectively, rip- arian proprietors of land fronting on rivers above the el)b and tlow of the tide, against V., for for- cibly seizing anil taking away their tishing rods and lines, while they were engageil in fly-tishiiii; for salmon in front of their respective lots. 'I'iio defendant was a fishery otHcer, appointed uikUt the Fishery Act (31 Vict. c. (50), and justitita the seizure on the ground that the plaintifls were tishing without license in violation of an orilci- in-council of June Uth, 1879,pasaed in pursuance of section 19 of the Act, wliich order was in these words : — " Fishing for salmon in the Domiiiii ;i of Canada, except under the authority of leases or licenses from the Department of Marine and Fisheries, is hereby prohibited." The defeinhuit was armed and was in company with several others, a sufficient number to have enforced tlie seizure if resistance had been made. There was no actual injury. A. recovered 83,000, atter wards reduced to .?1,.')00 damages; B. .si.'JOO: and C. 1?1,000 :— Held, that sections 2 and If) nf the Fisheries .A.ct, and the order-in-couneilof the 1 1th of June, 1879, did not authorize the dofeii daut in his capacity of Inspector of Fisheries, to interfere with A. B., and C.'s exclusive right as riparian proprietors of tishing at the locus in i|Im; but that the damages in all the cases were excev sive, and therefore new trials should be graiiteil. — Held, also (Cwynnc, J., dissenting), tliat when tiie defendant committed the trespasses coin plained of, he was acting as a Dominion otiicer. under the instructions of the Department »i Marino and Fisheries, and was not entitled t" notice of action under C. S., N. B., c. 89, s, 1, or c. 90, s. 8. Venninn v. Sleadman, 9 S. C. K. 200. Liability ol i.uilt.— I'isin; hoiii.) See ■m. H. H. R. g jiast debt an recited that lands herein; niacliinery h jii'oceedcd to with the iiia( in use and 1 l.rick and frai used as a iii stairs, and us cliiiiery Iteiuj &c., (descri )i together witli may hcreaftei the proviso i described as gage was regii mortgage, uoi Held, that th of the maehi printing otlicc as such and c force and elTe uaniiiig then articles in (pii the time of tli premises, and concerns, pas also, fidlowin that the inort registration p was a niortga, premises aftei 6 0. K. 590. - T, and in the conserjutn' . ) watuli over ere were in- liedefeuilaut .•hen thf ha- was blowiiii: hirty-tivf t'> iiiiinunicate'l IS (le.stroyeil, fendiuit hw\ ■evented the fendaut was by the plain- [J. 541.-1 Co., (j U. and assault etively, rip- rivers aliiive t v., for f(ir- lishing roils n tly-tishiiii; e lots. 'I'lie lintcd under ,nd justitieil aintiffs were of an oriler- m pur.suanee was in these e Doniinii a ity of leases Marine and ic defendant itii several inforced the There was },000. after R Sl/.'OO; 2 and If) of luneil of the e the defen- Fisheries, t" jive right as loensin i|Uo; were exees- be granteil. ), that "lien lasses coin- nion oHieer. lartnient I't entitled ti> . 80, s, 1, or 9 S. a K. 2G9 FIXTURES. 270 Liability of inspeetors siireties for deputy's dc- I'anlt. — I'isDutcs within s. 11 of 37 Vict. c. 4r), liiiiii.) See Verralfv. MrAuhiij, ct al., 5 U. 1!. :{i;t. FIXTURES. H. H. S. gave a mortgage to R. to seeure a iiast debt and future advances, in which it was recited that security was to be given " i)y the lands hereinafter mentioned, and also by the machinery hereinafter mentioned," and which proceeded to mortgage the ".id lands, "tiigether with the machinery v id foand.'y apparatus now in use and that nuij in future be used in the hrick and frame buildings situate on the said lots, used as a machine shop and a foundry down- stairs, and as a printing office upstairs, the ma- ciiiiiery being composed of one printing press, ic, (descri ling various articles of machinery,) together with all the machinery now in or that may hereafter be put in the said premises." In the proviso in the mortgage the jiroperty wa.s described as "lands and chattels." The mort- gage was registered, but was not tiled as a chattel mortgage, nor was there change of possession : — • Held, that the above was, in etl'ect, a mortgage of tiie machine shop and foundry, and of tlie printing otlice, as going concerns, not of the land as such and chattels as sucli, and had the same force and etTect as if these had been mortgaged, naming them : — Held, therefore, that certain articles in question in this action, which were at the time of the exe(;ution of the mortg.age on the premises, and were essential parts ot the going concerns, passed under the mortgage : — Held, also, f(dlowing Kitching v. Hicks, (). li. 73'.), that the mortgage was in any event good without registration as a chattel mortgage, so far as it wag a mortgage upon property brought upon the premises after its date. /I'dbhh^oii ct al. v. Coo/c, 6 0. K. 590. — Ferguson. T.^bcing liquidator of a company which was lieiug wound up sold the manufactory to H. for 811,000, part in cash and the balance secured by a luiirtgage on the premises. At the time of the sale there was an engine, l)oiler, pulleys, &c., among the machinery on the ]iremises, but no mention of them was made in the mortgage. H. afterwards undertook to sell the engine, boiler, and pulleys, l)ut T. objected until assured that they would be replaeeil by better machinery. H. purchased from 1. and H., the defendants, another engine, b< iler, shafting, hangers, and pulleys to replace the old ones, paying part in cash, and securing the balance by notes, un- der a written agreement, which stipulated that the property should not pass to H., but was to ■.enuiin in J. and H. until the full payment of the price, and of any obligations given there- for, but H. was to have possession at once, and to use the same until default in payment * * when I. and H. ndght resume possession. The engine and boiler were placed upon a stone foundation and bricked over in a building on tiie premises other than that from which the old lines had been removed. They could be re- moved by taking down a part of the wall of the huilding in whicli they were placed, and without iiijiny to the old building ; but were so atiixcd to the realty as under ordinary circumstances to heeome a part of it. H. failed, assigned his estate for the benefit of his creditors, ami made ilefault in payment, and I. and H. began to remove the machinery. In an action lirought by T. for an injunction restraining the defendants I. and H. from such removal : — Held, that the express agreement between H. and the defendants tliit the property in tln^ machinery should not pass from the defendants to H. until paid for. and the intention with which the articles were aliixed, nmst govern : ami that the machinery tlierefore did not become jiart of the realtv or pass to the plaintitTs. TlimiM.-^ v. /iifjH-:,z., that they shall not be such as to diminish the value of the demised premises, nor to increase the Imrden upon them as against the landlord, nor to impair the ('vidence of title. The idaintill's reversion not being injured l)y tlie acts eom])lained of, there was no waste and no forfeit- ure. Jlol'In-w.itv. Laii.j, 11 (). 1{. 1— Q. \i. D. 0. & K. under a verbal agicement with au agent of the Canada Company (which that com- ])any refused to ailopt) (.•ntered into possession of land ))elonging to the latter, and ereeteil a steam mill thereon. They }irocureil from the plaintiU's an engine, boiler, \'e. , under an agreement that the property therein should not pass to the ven- dees till ])aid for. They exchanged the ]daintiir9 Ijoiler for another made l)y one 1).. wliich they put up witii the: ^)laintiH'"s engine. This coming to the knowledge of the iilaintill's tiiey seized their own boiler, in conseiiuence of which (). & K. on the 27111 N'o\cniber, 1S8.3, executed to the plaintitl's a chattel mortgage on the '' l>. " liciili:r. i'lior to this date, however, and on th-.' 12th of the same month (). it K. executed a mortgage ou the said lands and })reniises to the didendant, to whom they weie indebteil, and three ,;:a«!! ■' tm*" • » !«•*!•. ;;; »*• tiis »»-;; '"«»■'■ ii:!' '••"'■ il.i turn'''* 'Mini/ 'J ■<< wuiBI* IK t*"'. .... «..«; '•''■ '*'3il 271 FRAUD AND MISREPRESENTATION. 272 veyance from tho ('juiada Company. Stevens v. Barfuot, \•^ A. li. :{(iG. Tradu tixtiiri'H. Sec '/'//« Ju.seph Hall Manu- fiictitriiiij (Joiiijianij v. Ha-Jdl vl al., 8 O. K. 4G5. I'LOATINd TIMBKR. Sid Wateu and W'aikk Courses. FOIU:CLOSUliE. .S'ee MoHTcAUK. FOREI(;X CONTRACT. Sen I.NTERXATIONA!. LaW. FOREIGN CUJ{ PORATIONS. Sec (JUHI'DHATION.S. FOREKIX DIVORCE. See HrsiiANi) anu Wikk. FOREION.IUIXi.MENT. See J I" DO mi; NT. FORHRIN LAW. See Intkuxai'ional Law. forki(;xi:r. Secl'iuty Foil Cos'i's Bv— .SVc Costs. Trustee for infants. Sue Hi' Aivbrw.-i, 11 I*. R. 199. FORFEFTURF. I. Foii BUKA( H OK CoVlCNANT.— .SV'C CoVK- NANT. II. Of Lkask — Sie Lwui.uud and 'J'i;nant. (If eonditiiin in IxmkI. Sec ('(irpurnlioii nf tin VUlaije of /;;-,(.s.«/y V, Riiin'ht, 11 A. R. (i05. for(;erv. Sei. CiM.MiNAi. Law. Of bills of exchange ami proniiswory notes. See Rij'in V. 7'/(/' liinikiif Montnnl, Vl (). R. W.) ; The Mireliantu' linnk nj Caitada v. MeKaij et ill., 12 0. R. 498. FORMER RECOVERY See JuiXiMENT. FOR. MS. Remarks on forms ju'escribcd in various cases by Aut.s of I'arliament. (leiuiiiill \. (Inrluad, 12 0. R. 139.— lloyd. FRAUD AND MISREPRESENT ATIOX. I. In Sai.k (ir Convkvance ok Lanh. 1. lvip)vri(l( lice, 27-. 2. Undue Jiijliieiice, 273. .'{. Fraud or Misrepretentalion an a Oround of Action or Di-Jencr, 274. 4. Specifr Pcr/'ormance ff Contract — SVe Specific I'erfokmanck. II. Other Contracts. 1. (;, must be set aside on grounds of imiirovideiKe, and want of proper ])rofessional ailvice : — Helii- hmvever, th femlants iiai the lease of -iiilty of vi( jiLriiititr, yt griuited upo repaid all su repairs of a liV wliieh tl iiiiiu'cd, witi wen; actual liy tliein to 1( aMirtgage, w ■•inee it.s orig my prineipn lUii of the dt t" tiie [)laint iialli-'e as he iin tlieotiier I t'l with re.sent(ttijn. ■-, — .S'tt C'lK- KIIATION IN LI.S OF Kx- ( iTKS. -See ]i.\SK- RAUDULKNT '6 FuAriic- r.PiNTLY Ob- Land. f, an Hlite- tiiril}' ciiu- sons. Oil tlic fiirin to Mil lifi', I'u- IS7.'>, tlie idiiiits, liut )!• tho tl'llll a M'lit (if 1, clotliiiig, ; as lie re- -aiiie ilt'cil liattfls i.ii Wfiitinto laintill'al^o on hriniL'ht siiiiilry iiii- I' ovidc'llfi; gust MOth, iher, IsT'i, iroviik'in'i.', uo:-HiKl. 273 FRAUD AND MISRE PRESENTATION. 274 however, that tliongli it ajipearud tliat tliu cle- feiiilaiits had made serious d(tfaidt in regard to the lease of 2.'{rd Septeiniier, IS7"), and had Iteen ;;iiilty f>f violence and ill-lreatnient towards the jiLiiiitifF, yet tl:e ahf)ve relief could only lie granted upon the terms of the defendants hcing ivpaid all sums expencled in improvements, and repiiirs of a permanent aud sulistantial nature IpV which tho present value of tiie farm was en- hiiucL'd, with interest from t.ie time tiiese sums wen; actually disbursed ; also the moneys paid liv them to keep down the interest of a certain mortgage, which hud existed on the farm ever ^iln,••; its original purciiase )iy the plaintili', and luy princijial moneys thereof |)aid liv them ; ilsii of the dcfcmlant D. l)eing repaid rents jiaid ro tiie plaintitt, and tiu; value of such mainte- iiiin'c as he had given to the plaintitt', hut tliat .111 the other iiand, tlie defciidauts nuist lie charg- fil with deterioration, to ho set oil' against im [inivements, ami with rents and prolits of all kinds received liy them, and witii an oceu])ation nut, and also with the value of the chattels nien- :ioiR'd in the lease, and given u)) to them by the iplaiiitilF. ShdHii'/iin v. S/titiin;/ini,~ i). K. '20!) - IVrguson. Where a railway com|)any contracted for the |i!uvliase of certain land with 15. , a manied woiiiun, in the alisence of her husliaud ; —Held, that the company wer'o under no obligation to set! that B. had iiidejiendent advice in the mat- ti.1' ; and inasmuch as the price seeuied not to !»■ grossly inadeipiate, and B. ajjpeared to be hilly compos mentis, ami no unfair advantage iiaving been taken of her, the agreement could not lie set aside. Jin/ifoii el id. v. The i hthirin and, 'i't"'H-c n. W. Co. ef'a/.,HO. K. 3S0.— Fei-guson. If two persons, no matter whetiier a confidcn- ;ial rt'lationshipexists between them or not, stand ill such a relation to each otiier that one can take an undue advantage of the other, whether liy reason of distress, or recklessness, or wihlness, cr want of care, and when the facts shew that one party has taken undue advantage of the {■tlier liy reason of the circumstances mentioned, a tiiuisaction resting ii|)on such unconscionable lialing, will not be allowed to stand : —Held, therefore, in the ]iresent case, atlirming the deci- -i 111 of Osier, .1. A., it ajipearing upon the e\i- itiice in the report, that the ]»laintiir lieing ovcr- iiiatclied aii. 2. Undue Iiifluenee, 111 an action to restrain waste it was shown tiiat the plaintiir obtained from his father a deed 'if tlie premises in ipiestioii, the fatlier swearing tliat he supposed when executing the document 18 that it was his will he was making, and the con- veyancer who ])repan;d the deed admitted in hiu evidence that he might have suggested to the sub- scribing witness to the deed not to talk too muidi to the old man about tiie writing, as (lerhaps ho would not sign it ; and the deed as prepared was silent altogether as to certain provisions and pay- ments that were to lie made as alleged liy the jilaintiir. The court reversed the decree ]iro- iioiinccd by the court below iti (). \i. 141 I, ilirect- ing the deed to be reformed ; and ordered tho bill to be dismissed, w itli costs, and the ilced to be delivered il|i to be cancelled. J)i(n/i)i) v. JJitnlu/,H III., 10 A. K.()70. Semble, the mere existence of contidence is not enough ; inllucnee must be proved aii'l is not to be ]iresumed as from the existence of conlidenco. Wallis /•. Andrews, lli t'hy. (i.'{7, followed. See AfvL'inni V. .1/(7;// , ;") (). \{. 100. See also Burn v. Uiini, S (). R. 'J;{7. H. Fraii'l (If }fisrei)i-e.-i('n(iilloti as d (! round oj Artion or Defeww. -Vction on a promissory note for .SI, 000 mado by the defendant to one M. 'i'lie note was given in payment of the first instalment if the pur- clia.se money of a share in a syndicate formed under an agreement which stated that " \N e tho undersigned hereby covenant, |iromise, and ag- ree with each other to form ourselves into a syndicate," to ])inchase a lot of 'MM acres of laud in Manitoba from M., for .-;.')0,llll(), divided into fifteen shares of .■«!.■{,.■{:{.■<.■!.■■{ each, to be paid to the trustee of the syndicate ; the ex|)enses of purchasing, ail vertising, selling, &c., to be borne pro|)ortionately by eai^li niembor according to his share, apppeared that M. by fraudulently re- presenting to defendant that the jirice he M. paid for the laud was .■*.")(), 000, whereas it waa only .S'U ,000, that it was well worth .•?.")0,000, was suitable for being laid out for town lots, aud that it could be leadily sold at largely remunerative prices, induced the defendant, who resided in Toronto, and had no knowleilgi . or means of ac- {(uiring knowledge, but relied iijion the truth of these statements, to enter into the agreement. The defendant in eonseipieiice asked to have tho agreement rescinded and the note delivered up to be cancelled: — Held, that by reason Inis^^ory note, tlic ilcfcii- dii t (jniiiitcr-rlainiLMl, sotting i\\> tlmt tlio note W. ^iven in pjirt piiyiiient of the piircli.ise money of eertiiin land in Munitoiia, wliicli the defen- dant alleged tjiat lie was indiu'ed to purehase hy 1)laintitl"s false re|)i'eseMtation as to its value and ocalion. The jufy found the amount due on the nf)te was 81,. ')!•(), lint that the defendant was induced to enter into the contraet to |ini'ehasu the land l>y the ])laintitl"s fraudulent niisre|)re- sentations ; and they assessed iiis damages at the nliove amount; and judgment was entered in ilefendant's favour :— I feld, on tlu' evidenre, as 8<.t I ,it in the report, ther(t would he no reseis- siou of th(^ (-'ontraet, hut defenages for deeeit ; that tlii' evi- dence failed to disclose actual fraud, at all events the only evicjenci.' which could he suhmitted to the jury was as to location, hut while this was too sliglit to allow the verdict to stand, the court did not feel justilied in disposing of the (;ase themselves, tiiough (lerhaps they might do so under (). J. Act, Rule :{'_'I. They therefore directed a new trial f)n the counter-claim, hut HO that jdaintill'V legitimate t^laim on the note should not lie delayed in the meantime, judgment was directed to he entei'ed in his favour thereon. Omiand v. Thoiiipsu)/, () (_). K. 87(i -C. 1'. 1). (i. olitained a loan of 8''^70" through R., from the plaintitl's, u]ion the security of "i'JO acres of lanil, hy falsely re])resenting that H. had ])ur- chased the 'J'2() acres from W. for S7, .")()<', and had jiaid !?4,(MM) cash, and wanted the loan to fmy the lialauce with, and on the recei])t of the oa'n ])aid W. the .S.'idOO, which was the total purchase money for the '220 acres; and another parcel of aliout "lO acres, and was the full value of lioth )>arcels. (i. got the lonveyance from W. of hoth ])ai'cels, and conveyed tlie '2'2(t acres to R. to carry out the scheme, and retained the ;")(> acres himself. In an action hy the ])laintitVs it was : —Held, that on the cfniveyance f)f the ;")() acres heiiig executed to ( i., the land immediately became the j)roperty in e(iuity of the ])laintitrs. That the land was not suhject to the claims of certain execution creditors of (i., whose ti. fas. were in the sheriti's hands. I>ut that a mortgage on the no acres, made hy S., who had no title, could not he ordered to he removed hy the mort- gagee (although the mortgage money was jiaid,) as the mortgagee was no party to the action. Ihtiidhon Prot'iilent (iml Loan Socidi/ v. Gilhivt, 6 0. R. 434. — Fergusfin. Misrepresentations to purchaser as to the land being free from ineumhi'ances. See Cameron et ul. v. Carter vt al., 9 0. R. 4'2(). The plaintifV sued upon a foreign judgment, which he had obtained against the defendant upon a covenant by the defendant to indemnify hini against a mortgage nuide by the ])laintitl' to one (i., who had foreclosed the mortgage and afterwards obtained jmlgnient against the ])lain- tiff on the covenant :~Held, that the ett'ect of G. suing on the covenant in the mortgage after forechjsure was to open the foreclosure, and an allegation that the plaintitl' had improperly con- cealed the fact of the foreclosure from the foreign court was no defence to this action : -Held, also, that an allegation that ( J. had agreed to take the land in full satisfaction of his debt showed no defence, but a mere verbal agreement without consideration : — Held, also, that an allegation that the plaintitThad sustained no damage by tla- juilgiuent and execution against liim, and tliiit the writs of ti. fa. against him wei-e I'etained in the siierill's hands under a fraudulent agreeim nt between (!. and the ))laintili', in order to sustiiin the proceedings against tile defendant, shouiil no fraud, and was no answei' to tiie action. I'lr Wilson, ('. .1. -'{'he ilefciidant was not at liberty to set up in answer to this action matters wlii. h could iiave been |ileaded in the original caii^e. /'ai.y/e,) V. Jsrn,/,/,/, II I'. R. I'Ol'. Wilson t J'. I).' fn an action of foreclosure of a certain mnii gage of lands, the defence set up that the iiinit gage was given to secure a balance of purciiaM- money for the land due from the defendant : tint the ])Iaintitl' at the time of the jmrchase fabcly represented that no f)ne was in |)ossession of tlii' land, and that she could deliver immediate pus- session, which which she agreed to do by a cer- tain date, and the defendant was thereby indun il to accept a conveyance (which was in the stiitii tory short form I, and give the mortgage : that ,i- ;i matter of fact the land uas at the time of m;. Ii rejpresentations and for a long time after in p'ls session of one F..., and the plaintiU'was unable te deliveiMi]) possession on the said date : that attii the exjiiry of the said date the defendant thre.il ened proceedings for breach of the ])laintitr> agreement, and for the said misn piesentatii.n^, and the ))laiiitilt' in consideration that he woiilil forbear the same, agreed with him that the tiiiie> of ])ayment under tlu' mortgage should lie pu^x- ))oneossessioii by a lixed iliiii could not be enforced, because it coutradicteii nr added to the short form covenant ft be dismissed, anil the defendant, having coutiter- claimed for damages, was entitled to the same, and tfi a reference to fix the amount thereat. Keai/.^ v. h'mard ft at., 10 O. R. H14. — Fergusnii. Fraud by mortgagee purchasing through an other at mortgage sale. See Fait/ds it iil. v. f/nrper rt a/., it A. R. oST. The iilaintitV negotiated with the defendaiitj ( Jriflith for the i)iir(hase of the lands in cpiestimi, and at ditlerent times olitained fi'oni them wiit- ings giving him the i)|)tion to ]iurchase for.S'2ll.n(lil. l)cfcudants( iritlith set u]) that these negotiatimis were lia, liigher price for tlu d feiidants (iritlith. Alter these options had 1 i, given to the jilaintitl' lit". on the forenoon of the ITtli I'"ebruary, IS"^'-. agreed to .sell to the O.ld Fellows for ,St2,"),. JJii/ri'sne Ferguson. The plaintit dant that a 1 Xorth-Wcst ^ the holder to ffliioh warran the jiarty was such warrant jiiiisequenoe of Older.? in conn tory, which at "(•re held for s acre, so that o to the proper i Li'i'dited with ! established pri of this change. till', the (jueei 111- .vas not cut money as havi: tation. On aj viiled, the apj Dwhjht, 1 1 A. The defenda in Manitoba f purposes, payii KHge for the 1 nefore the con\ iliuit, ill answe sons on t he spo of thy property iiway by the aj liant resisted p; this action was a return of tin representations 27fi iige I>y till- , iilid tliat ctailnil ill Igl-L'L'lllilIt to siiNtaiii t, sllllUnl tinii. I'll- ut liliiTly tfl'S W llirli iiial ciiiiM, ^'ilson I :iiin mill! the iiii'it f ])Urrlr|„ limit : tint :ise fiilM ly isioll of till' I'lliHtt' |i, t ln' WliuM at till' tiiih- ihl )it' |M.~t lent to tliiit sfssioii. iiii'l uil liy hiiii. irtuc I'lf till' iniikT till' 'icing iliily ci-al |iiii'"l tixfil il.it.- ailii-tcii "I- clivfi'V "f •c, yet Hi! IS ami till.' I'tion iiiii>t g countfr- the saiiu'. t thcri"t. ■Ffrglls"!:. hrougli an- y the plaintitl' in re- 1,'aril to the sale to the Odd I''ellows, was such as iliseiititled him to a decree for s])ecitic |)crform- iince. ( Burton, . I. A., dissentientc. ) WuhiiMvii V. Uriffith et al., IDA. K. 3'27. L. F. I), heing the owner of certain valuahle property, mortgaged it for .S700, heeaine of nn- soiiiid mind and was contiiu'd in an asylum. During hi.'< contiiienient M. A. I)., ids second wife, jirooured >>., the holder of the mortgage, to sell under the ])owerof sale, and the projierty was sold for 8!)00 to K. R., sister of M. A. I). Two years aftei- K. H. sold the ]>ro])erty to M. E. I), for 85,000, and a mortgage for 8-l,. In an potion l>y L. F. 1)., hy L. I), his next fi-ieud, to Bi'' aside the sale or for an jicuoiint, it was: — Held, on the evidence, that the )iroperty was sold at a great undervalue iiiidei' the ])ower of sale, and that K. H. was the agent of .M. A. I)., hut that as M. H. li. was a purchaser for value witlumt notice, the sale must stand, hut an ac- count of the proceeds was ordered against .M. A. 1». Diifreme v. Ihifresne et al., 10 0. K. 773.— Ferguson. The ])laiiiti{y, upon the assurance of tlu^ di'fcn- daiit that a land warrant issued to oni' of the N'ortli-West Mounted I'olice Force would entitle the holder to HiO acres of Dominion lands, and which warrant on its face exjiressly stated that the )jarty was entitled to KiU acres, purchased sui.'li warrant from the defendant for 8312. In joiisequeuoe of various Acts of the legislature and orders in council, lands in the North-^Vest terri- tory, which at the time this warrant was issued were held for sale at 81, were increased to 82 jier acre, so that on the presentation of the warrant to the proper oliicer, the ))laintitF would only he tri'ilited with SHiO on the ])urchase of land at the i-stnhlislied price. The defendant was not aware uf this change. In an action hrought liy the plain- tiff, the ivisioiial Court, and as the merits of the case did not call for interference, the judgment of the Divisional ( 'oiiit slimild be atlirmed. /.(< v. M(k-MiiIhi}i, II A. P.. ;"),■)."). See also I'l'tTlcin v. .VrF>trl per cent, of the value of the grain would be ad- vanced : that warehouse receipts would be taken, and that he (F.) would from time to time see that the grain was in store, and would hold it in security for the money advanced, crediting the prooeeils of any sales upon the note in ijiiestion. The defenilant was subseiiuently iiuluced, by the representation of F., as the jury found, that it would not alter his position, to sign a giniranty under seal, which, though not intended, as F. sta- ted, to vary the defendants' original liability, as a matter of fact did so, by permitting the plaiii- tifl's to release or abandon their security upon the grain, upon the faith of which defendant be- came liable as endorser : — Held, that the guar- anty was void as .against the defendant ; and that it was not necessary to prove that the bank manager knew, wdieu he made it, that his repre- sentation was false ; nor was it an answer that the defeudant could have examined the deed for himself, as he was entitled to rely upon the re- presentation of the bank's agent. Mol.tons Bank V. Turleij, 8 O. R. 293— Q. B. D. ■if<^^«ii> ••' i^jii ii»5»j! ||H «'■-»**. I, ii7y FRAUD AND MISKEPRESENTATION. 2S0 AlilDiigst other (li'fi.'iKcM, ill ail actidU dii a cove- liaiit t(i pay coiitaiiii'il in a I'liatlul iiioitgagc, tlm (Ifffiiilaiit si't U|) tliat tlic iiiDitgagL' in (|iu;sti<)ii wasgiviii for tlif jiiiriHi.su Dl'dffeatiiigaiul delay- ing cruditors of tlu' iiiortga .'(ir, and tliat tlic plain- titi (lliu inortgagci.') wuh au aiu of that at tlic- time, uinl uidid and alitttud tlu' di't'Liidant, and tliat by reason thereof the nicpitgage was void and tin; coNfiiant eoiild not lie eiitoieed against defen- dant: - Held, that even if thedefenee Was proved, the defendant, lieing a party to the fraud, should not lie allowed to set it up as an answer to his lialiility on the covenant. Mil/imii < I . 15. D. See IhauKiikU v. Xuriiiaiid, (I S. C. 1!. 711, p. 38; .ya;' Kiilmij I'ail ('um/ifuiij il cJ. v. dririi- icouil, ;■)(). H. L'S, p. r>0; Mnjlull v. Tin' Mtn-hiints Haiti: of Caiimla, 11 S. ('. 'l{. 40, p. 97. 'i. Acliou fur Jjrr< it or Ftil.if Itipri .mutation, (a) Er'nkncv. h\ this action the jilaintill', in her stateinent of I'laini, charged her hrother the defendant 1). M. MeL)., with inducing her father to make a will in her mother's favour, with the fraudulent de- bign on the part of !>. .M. -Mel), of ohtaining the whole estate for himself, and charged that her father was induced to make the will l>y frau- dulent misrepi'esentations, and that after her father's death, l>. M. Mel), ohtained from her mother a power of attorney to manage the estate, und invested large sums in the purchase of pro- perty in his own name and that of his wife, and prayed to have the will set aside. 1). .M. Mel)., in his examination for discovt^y hefore the trial, admitted receiving the ])f itself was within the trtle amount ; and also tln' plaintill's were estopped from setting it up, as tlif evidence shewed that they did not rely 11)1011 it, but on the know ledge acijuired and independciit information obtained by the ]ilaintiH's' agent in the course of his investigation : Senible, that mi the evidence there was no misrepresentation at all. Till- Jtoi/dl lufiuruHce Coiiijiany v. Bi/ir.<, 'J (). H. f.'O -C. I'. I). To sustain an action for deceit actual frainl must be proved, which is to be judged of by tiie nature and characterof the representations niadu. considered with reference to the object for which they were made, the knowledge or means of knowledge of the person making t icm, ainl the intention w hich the law fully imputes to produce those conseipieiices which are the natural result of his acts ; and it must also be established that such fraud wjis the inducing cause to the con- tract, and must have produced in the mind of the liersonalleged to be defrauded an erroneous belief inlliieiicing his conduct. Giirlitiid v. I'liutnjisoit, 90. K. 37ti-C. P. I). The defendant delivered a jiiano to the jilain- till' on a "hire contract,'' the jirice being stated ' to be .S'lOd, jiayable by crediting .'^100 on an .jM piano taken in exchange, and the balance of S-iW by monthly instalments, the jilaintitl' giving a I note for the S400, ;>ayable by like instalments. The contract stated that the de'feiidatit did "iiei 1 tlier jiart with said jiiano,"' nor diil the jilaintiff I "acijuire any title" to it until the note was fully paid. Certain instalments fell ilue and jiaymcnt j was enforced, and there were instalments in ar- ! rear when action was brought. The jilaiiitilf I sued for fraudulent misrejiresentations, ami fur general damages for breach of imjilied warran- ties ; the alleged niisrejiresentations or w ananties bi;iiig that the jiiano was worth .S'lOO; that it was a tirst class instrument, and as good as any .Stein- ■ way orC'hickering jiiano. The jury fouiul for the : i)laintitt', with damages:— Held, that the jilaiiitiif could not succeed as to the false rejireseiitation, for the evidence shewed that after she discovered the piano was not as rejiresented, she did not dis- aflirm the contract, or oiler to return the jiiaiKi, ! but treated the contract as subsisting; nor coulJ I she recover in an action for deceit, for she failed ; to shew that the defendant did not lielieve the 281 stiiteini'iits I iiiiiile reck It shewn ; and ,is are projie Hold, also, t an action foi lie. /•'/•//«' V. See Hi'ftttii u. IflO ; Moj II S. C. R.'. II Ffiiudillen ivoid liabilii Ciiunil" Firf ■.N4. .■\u e\-('(;iiti the framl or •on lie repre- ciirities taiiii wliii'h such eivditors diir V, Mn;l<;Ul. (h-'li/iiiri/. Iiiipeai'hin ;:roiiiiil of fr tised on the A. H. !f2. Ilii|ieacliin; the ground >liiraey enter coiu't by tlu with otlic'i's t tills See Oi V. Till- Mililirt Following 1 Jai'k V. JacI,-, Of two inn ^iili'er on act it third, the n Mi'niig to be e Til,' Mirchiint II I). H. 4!tS. h'-d'cct of fr .-/-.//v. Thi'fi. 1-2 0. R. 70(). Costs of olH fraud bv the II 1'. k! (i'2. A. who hail of Dr. 1)., jiui 1!. had at the of laud ; and i dents, Dr. |}.' Vent, should a e.uised to be j: ncifary of his who, a few da had been indii exercise this 1 who jirejiared of I'., et al. ret did not like ti heved that in j heirs of Dr. H 1>. et al. knew f'pted the siu iTsjMinsiblc fo 280 •itiiitftl fiir (Hint (if tilt If (ilaiiitills UllllUlUt (if (1 llilll luill Vdlllll lie IKj ■ iiliiiiitilij (ilicy -tlicy I IKit, pllliC t iKiaiiK'iiil' II HOtidll llf rcsfiitutiiiii, L' jilaiiititls, hat tlic ^t,l■ iikfd, t(ii' no ;, even it' in- ns llii'l'i; wiis it (if Idss:- oil, even ili to the vulim ! fact (if \U II which tile 1(1 make no lat the 1(1.-5 mil also till' it ilj), as tile ■ely ll|i(in it, iiKlepciiilcnt tl's" agent in ilile, that i>n sentatidH at I V. H'jn-.', y letiial fraud eil of liy tilt itions iiiadf. et for which ir means (if i;ni, ami the s to jirddiK-'o iiral result lislied tlmt () the ciiU- nind of the )liedus liflitf 'J'hoiiijisun, 1 the jdain- leing stated )0 on an ulil nee of ^^4(X) If giving u nstidmciits. t did "iiei- he jilaintilT te was ftilly j)aynicnt lents in ar- he jilaiiitilT lis, and for ill! warran- warrantita that it wuj sany Stein- and for the theplaiiitiif reseiitation, i diseovereil did not ilia- 1 the iiiaiKi, r ; nor couUl ir sliu faiKd helieve tht •281 FRAUDULENT CONVF.YANCES. 983 statementH mailo to lie true, or tiiat tlioy wens made rceklessly ; and also no damages were shewn ; and Semlile, tln^ stateincntH wire siieli ,is arc ])ro|)crly styled siniiilc cdnnncndatidii : — Held, also, that a-s the pnipcrty had not passed, sii iiction for the lireach of warraiitv would not He. /V.'/c V. Milli'jni,, 1(» (). H. 'm C. I'. I ». See limttii I'l III. V. Xi;U,ii eiai, VI .\. \\. ".(I : |i, 100; MiiiVdlt V. Mii-rfoiiif.< linnl: a' t'aiiu'ld, li ,><. V. U. '40, p. !>7. III. MrscKi.i.ANKors C*.vsk.-<. r'Miidiilent transfer of shares liy direetor.s to ivdid lialiility for ealls. Seo TlKunjison il nl, v. Citniiil'i Fiir itiiil //(.<((»•«»(•(' Co. if III., it (). R. •2S4. All evecntor or administrator is cstopiicd hy the fraud or criiniiial acts of the deceased jier- ■^nii he represents from seeking to invalidate se- curities taintc(l liy sneli fraud or criminal act.'? which such deceased person had given to his iieilitors during his lifetime. Mi n-hniits lUinli V. Mn;h}f/,, 10 1". U. 407.— Hodgiiis. M,i.. liiipcachiiig deeisioii of a Court of I'.evisioii on the ground of im))ro|)er arrangement or con- >liiiacy entered into liefore the liolding (if tho foiirt l>y the meinher.s thereof in (■onjnnction with others to increase the assessment of plain- j tilt's, Se(! (.^iiiiiidiitii Liutil mill h'liiii/riiHiin Co. V. 77i«' Miiiiiri/ialify of l)ij.iece of land ; and in order that 15. (,'t al. (the re-^pon- ileuts. Dr. |{. 's ehildreii) who were ])erfectly sol- vent, should accept the succession of Dr. li., A. caused to lie ])repare(l a deed of assignment liy a ndtary of his right of redemption to !>. et al., who, a few days after the death of their father, had heen induced for a sum of .'^.")() to consent to txereis(! this right of redemption. The notary who prc|)ared the deed without the knowledgo of l>. et al. returned it to A., telling him that he iliil not like to receive the deed liecausc he lie- Heved that in signing it !>. etal. made tlicins(dves heirs of Dr. li., ami besides he helieved that if li. et al. knew that in signing the deed they ae- te]iteil the succession of their father, and were iTsponsililc for his debts, they would not sign. .Another notary residing at a distaiu'e was sent for by .-\., to whom he gave the deed as )irel)are(l, and the notary then went to the re.sideiiee of I>. et al., read the deed to tilt! parties, and without any e\|)lanation whatever pa>ised and exeiute(l the deed of cession whefidiy l*>. et al. becanio re- sponsilile for the delits of their father. On be- ing inforiiied (if the legal etl'ect of their signature, IJ. et al. foriiially ren(iniice(l to the succession of their father. 'I'liert,' was also evidence that H. et al. had done souk- conservatory acts and acts of administration for their mother, but it was not proved that in any of these transactions they h.ad taken the (|uality of heirs. The amount in dis|)iite wasniade U)i by inelinling interest which on th(! fa(.'e of the declaration w.is prescribed. The .rspiiiideiits did not demur to this part of the demand, nor was any separate judgment rendered as to it : Held, (1| that the Case wa.-J appealable ; (2) that the acc(!)itanee of an insol- vent succession is null and of no etl'ect when it is the result of deceit and corrupt practices, ar- tilices and fraud ; (.S) that as A. in this case ob- tained the sJLriiatures of I'l. et al. to the deed in iplestion by fraud, the latter should nut be bnr- thelled with the di lits of their insolvent father. Ajiiitti'. V. I{i,iii-hi r, '.) S. C. 11. 40(1. ] FKAl'DS, ST.\Tl'TK OF. I. RKsnccTiNii Ai;rf.k.mknts -.V''- ( 'on riucr II. I'.-\Kot. KviDi-.NrE To Vamv Wkiti kn Con- rH.VUT.S — .SV-' KVIUKNCK. FRAUDULENT C( »N'VKVAXCKS. I. As Ar; AiNsT (J{r.i>iT(iR>^. 1. Uiiilir I.', Eli:, c. ,7; n. S. 0. c. 1}.^, iniif .'tS' Vict, i: SH. (a) O'lnimll;/, 2S2. (b) liiltx o/.Siilr anil (Vintfrl .Viirfiiiv/i:-!, 2S,S. (c) r//,/)/;/e o//'o«M.s('«,», 201. 2. Unih'v In.. c. 7/.V ami ',.'^ Virt. r. y,. (a) Oineriilli/. Where it was sought to set aside an assign- ment of real and ])ersonal pmiierty made by an insolvent debtor to a trustee for creditors, on the ground that the assignee had, before the ex- ecution of it satislied some if his ereditiirs in full by transferring goods of his to them in a manner alleged to be ))referential, but the instrument impea(diei| did not rei|iiire the creditors to sub- mit to any conditions, and did not 2>rovide for i\ ,rii;OS;l Ml •»•<• )H.3i|: '^bss!) '^^SKS IIH S<*' :!||ia»S:* iii;'SSi> "i< j)^«'« ' il, ,y him were preferred, the transfers were not made " voluntarily, " and " with intent" to give such creilitors a pieferenee over the other creditors within the meaning of the statute, and could not lie set aside. Wli'tliieijx. Toby et ill., (j (). K. r)4. -Fergusfui. The H. company heing indelited to the ])hiin- tifl's in about !?4,7")0, application was made hy letter and verhally liy the latter, insisting upon payment or security. The company, which to the knowledge of the iilaintill's, was hopelessly insolvi'iit, thereupon gave a chattel mortgage to the plaiiitiii's, covering all their availalile assets. The mortgage recited that the plaintitVs had ag- reed to loan the company .':'"), OOU on the said se- curity, liut the arrangement was that the jilain- tifis should ileduct the amount of the delit duo them out of the [ireti'uded loan : -Field, that the above was a fraudulent preference, and there was no such liouA tide jiressure as exempted the case from the provisions of R. S. O. c. 118. LoiKj t't . IJ. I). In a deed of assigmneut for the lielietit of crnl itors, the following clause was inserted : " ,.\|||| it is hereby declared and agreed that the parrv of the third part, the assignee, shall, as sooi] a'. conveniently may lie, collect and get in all iph standing credits, itc, and .sell the Haid real ;i!i<| personal property hereby assigned, by auction r,; private contract, as a whole or in portions, ti,r cash oi' on credit, and generally on such tcnni and in such inanner as he shall det'in best or suit able, having regard to the objei't of these piv sents." No fi'audulent intention of defeatiM" '.r delaying creditors was shown : -Held, alHriuliii; the judgment of the court below, M A. H. 4()'.' that the fact of the deed aiithori/ing a sale ii|ii,ii credit did not, per se, invalidate it, and the rlcd could not on that account be imiieached ,is ,i fraudulent preference of creditors within tlic .\,t H. .^. (). c. lis, s. '2. S/ali'i- V. Ihubmioh, li,S The jilaintill's sought to set aside a certain inn veyance dated l''eliruary '27th, JSSO, and made l.y M. to (I., as execilteil in fraud of themscK i~ m creilitors. it apjieared that the plaintill's imi not recovered judgment for the debt in rcspiit of w liicli they claimed to be creditors until .lulv 'i.'h'd, ISSH, and that this was a judgment rno vered in an action on a covenant as to the validity of certain mortgages iiurchasi'il by them from M. contained in a deed of March lst,'lH,S(), by wliirli the said mortgages were conveyed by M. to tin in. The plaintill's, however, sought at the trial of thi.i action to give evidence that this deed of .Marcii 1st, 18S(>, was made in pursuance of an agri'eiiunt for the purchase of the said mortgages entered into by tlieniselvea with M. before ilanuary 1st. 1880, and that this agreement was induced hy certain misrciirescntations nuide by M. as to tlin validity of tiie said mortgages. It appearcil, however, that the consideration of the purchase- was to be the transfer of certain shares in the capital stock of the [ilaintiffs' company to .M . and that these shares were not actually so trans ferred until after '27th I'Y'bruary, 1880, and tk- evidence so sought to be given was excluded :— Held, (jier Ferguson, ,1.,) that the liability of M. only began at the time of the execution of the covenant in the deed of March Ist, 1880, and inasmuch as the impeached conveyance was ante cedent to this, and it was not shewn that there were at the date of it any existing debts, nor tliat it was intended to defeat any future debt, the plaiiititl's must be nonsuited :— Held, on ap|R;il. (per l5oy wrong: 111! the i'\iil jieai'hed ap| Th" iti'iii /■;-■ \Uil) V. '/'//. juDlil I'l III. , .V trader, stances, iiiai ticditors of till' plaiiitlD' the realty a> the assignor jiiiiu'd ill tl nl'kllowlcd .illli'iiiiiig till till' propci'ty timi, fill' Ui'i I, ri'i'ilitor ; 1 thiit had th ■ ill the procct I'iivc rclidcl'i Kc-//. 10 A The Weigh ill favour of tVciiidiilciit p 0. c. lis, th sn to do on tl and the rule suspicion in ' ijf fraud, or o K'.'ding to th, ■hiiiits' IJaiik eiicc to I vcy V, .Mill/:, 11/ rt A deed of tnrs gave )i( deem il advif til carry on t persons as hi if he deemeii leasonalile al ii|iiiii, and to: such goods o t'lr siu'li pur he(;iime liable 'iiisiiicss in a iif the money.' riierc was \v li'iiiesty on tl; vi'l'silig the ji this provision K. S. ( ». c. II .il''.):iirli'r v. For t'l:' exp |'||ilit;riile dist ■I'l|tll|^r,t :ill 1 ■ii'eiuu >t nice.- ill Ins propj] 2^J ••s:. FRAUDULENT CONVEYANCKS. 988 itcirs til '.ir Ill's l(f 'I'. . II .'lllll Vniil I till' (itllll et III., H(i. etit (if civl fil: "Aii,| t tlu^ jMirty , ilS miDII ,1.; / in all nut iiiil real iiini y HlU'tinil .,;■ )iirtiiiiis, ti^r HlK.'ll tiTliis Iti'st or suit- if tiiesf pr.'. ilcfuiitin^' '.r 111, iUKi'iiiIul; A. K. 4i)'J ; H sail' iiiiuii Llld till' ilccl ii'uclii'il as 4 itilill I 111' Art li liOf/i, III S, . ci'rtaiii rmi anil niailr l^y ht'insclvc^ m ilaintill's ii;i.l lit in i'i-^]ici'! rs until . I Illy Ignii'Mt nrip I till' valiility lii'in fi'iiiii M. MO, hy uliirh M. totlu'lll. trial iif thi-t I if Mai'L'li III ilgl'Cflllfllt xgtiH cntfrcJ 'anuary 1st, iniluceil liy M. as til tlif It appfai't'il, the pUl'l-'llUSl; ires in the )any to M , lly so trims SSO, ami tlu' xehiiloii :— iliility of M. iition of the 1880, anil ice was ante n that there lits, nor that ru del it, the , on apiiL'ul. tills iliil iii't 1 they reoii y positiiiii I'l lit cruiiitni'ii, e iiniH'aflii'il o defeat suh- 111 no Incus , even if the )i' of a viiliiii- It was altii- I'e liai'k the alli'i;i'il mi*' I upon until nfti r the iiiipeai'lieil ronveyaliee, ami iiiiircnvei', \fiMteM'l' eaiiie of ai'tion the plailitill's then had, tlii'V did not pro-^ei'lltc it, or liernliie ri'editiil'S ill ri'Sjicet of it. The ii|ilL;iiielit Kelnw w as iherefun' I'ijilit. I'er I'lolldfiiiit, .1., thoii;;li an artioii foi iiiii'ia;,;es I'oiild not he lii'iiiinlit until the d.iiiia^^i iin lined, yet if the original aL;rei'iMiiit fur tin hiu'ihase of the iiiiil't^,'a;,'es «iis liased mi iliisrep Hell the same, and out of the pi'oeeeds : ( 1 ) to pay in full the several delits due or to lieeoine due liy the assij^'iior to the assi^'iiee, and the several other pi'i'siins and linns ilesi;,'iiateil in a srlieiliili' iin- iie\ I'd thereto, and if iiisiillii'ieiit for that purpose, to ilistrilillte the proieeds lalalilv IIIIIOII),'-! tllO several piisuiis and liriiis named in the said selied- iile ; and CJi to return any surplus to the assi^'imr. lisi iitations of M., the plailitill's" right dated l A elailii for S'JIi.Stl, wliieli the eourt lielow held fniiii the agreeineiit. It was not neeessary for to lie estalilislnd, was iii ignoiame or liy iiiadver- the plaintills to he ereiUtors, it Was sullieient for ! teliee omitted from sueh si'lii'dllli', and the defeii- lliiiii to have a right of ai'tioii ; therefuri' Ihedant, a seheduled ereditor, olitained jiidguieiit I'Xi'lilsion of the evidenee ollend liy the plain! ill's for .'^il .TSO.T'i ; and uiiiler his exeeiition the sherill' ;isafii!'e>"iid, and the jiidgineiit of the eourt lielow sei/ed the g Is. The ( 'oinnioll I'leas jtivisioii Wii-- wrong: Keld, idso, (per rroiidfoot, .1.,) that held the deed to lie invalid in eonseiiueiice of the (III the e\ ideiice addlleed, the euiiveyanee ini- | filiiiHsion of sueh elaiiu for .■^'Jti.SII. ( )ii appeal, piai'lied appeared to have lieeli a \i limitary one. yVi'' //('(// h'-f'i/i' /.iiiiii ( 'tiiil/itiin/ of ('iiiiiiilii (Ijiiii ■ iliih v. Til' Ynrhi'illi' iiii'l I'liini/iiiii HhikI Cnni- l„iii;/i'/ III., !M). H. 4ti4 C'hy, D. .\ trader, who was in eiiiliarrassed eiri'iim- >t;iliies, made an assi^^iimelit for the lieiielit of iii'ilitors of all his estate, real and personal, to on a this eourt heiiig ei|ually dividi'd, the appeal was dismissed, with eosts. Ilagarty, ('. .1. ()., and hiirtoii, .1. A., alliniiing the judgment of tlio Coinmon I'leas I )ivisiiiu. It'.' ( '. I'. .VJI. ratter- son, .1. A., and Cameioii, ('. .!., held, that tlio alleged ilelit of .<■_'((. S(i, upon the evidenee let out ill the report, was not proved ; and that even if I, its omission from the sehedule did not, under the eiriumstaiiiis, shew the intent neees- sary to invalidate the deed iiiulei' It. .S. ( ). c. | IS, ». 'J. I';.,:,II, 10 A. l\. OO. , ,. , , , ,, ,, , . 1 tra, iier I'attersiui, .). A., and l ameroii, i. .1. ■\\'!''"f^\.'.!.?.''!.V^'T'T.'.'-^'.r?.''r'';;:u ''.':'' H^'>'1'1'-Us perCaineron, C. .!., as to the eireiim- stanees under wliiili a provision for the payment of rent and taxes as a lirst I'liarge would or would not hi' an ohjeetion. Remarks per liiirton, .1. A., and Cameron, C. .!., as to the olijeet and ell'eet of the |iroviso to K. .'^. O. i'. ll.S, s. 2. (.liuere, (per Cameron, C. .!.,) whether, the oinitti'd ereditor not having ohtained judgment and exeeiition. the I defendant eiiuld take advantage of sueh elaiiii to rhaiits- IJaiik, KM). K. Kilt n, tollowed m prefer- ,i^,f,,,^^ f,,,, pi;ii„tiii ".^ right. MrLmii v. (l„rh,n,l, eiiee to Ivey e Knox, SO R ti.U iiiini-i . / 1,/., i,, j^ |^ 4^,- ,5 j. ^eu (.'aasels' Diguat p. ITS. V. Miirhiijital., 100. R. lOT.^iioyd. ill tavour of the view that in order to work a fi'iiuiluleiit preferenee of a ereditor, under R. S. 1). r. I IS, there must lie a eoneurrenee of intent sii to do on the part of hotli delitor and creditor ; ami the rule of the court is not to act upon mere suspicion in the ahsenee of allirinative evidence uf fraud, or of controlling circumstantial e\ ideiice li'.'iling to that conclusion. Laiieev '". The Mer- A deed of assigiimeiit for the lieiielit of credi- tiirs gave power " until the said trustee shall ihi'iii it advisalilo to dispose of the said husiiiess, tn carry on the same, employing any per.son or IKi'soiis as his agent or agents for such ])iirpose it lie deemed it hest, paying hiin or them such I'l'iiHoii'.ilile allowance therefor as may he agreed uiiiiii, and to supply the said agent or agents with sui'li goods or merchandise as may lie reiiuisito fur such ]Mirpi)sc," and the trustee was not to hi'eome lialile for the delits or losses of the said husiiiess in any way except for the distriluition 'if the moneys come to his hands under the deed. There was no evidence of any intentional dis- liniiesty on the part of the assignor: -Held, re- virsing the judgment of the County Court, that this provision did not invalid.ite the dei'd under K. S. (). e. IIS. (Ilagartv, C. .1. O., dissenting.) Ahj-nihr V. irii(v7/,IO A. K. I.T). Fur t'le expressed purpose of making a fair and I'liiitaiile distriliution of his iirojierty and eU'ects ■|||l•lll,'^t al ii'i'iiui it uiccs ex'icu ill his iguat p. On the'JSth March, 1882, a writ was issued liy (-". et ill., respondents, against one M., for the recovery of the sum of .■?.'V2, lo.'i.IiH, and said writ was duly indorsed, in accordance with the pro- visions of the dudieature Act, with particulars of the claim of the respondents for the s lid sum of 8IV2, 1 ."i."i. !{.'{ on an account previously stated and settled lictween ('. et al. and M., such amount heiiig arrived at liy allowing to .M. a discount of 5 per cent, for the unexpired lialanetMif the term of credit to which M. was entitled on the |iur- cliase of the goods. \o appearance was entered by M. to the writ, and on the Stli .\pril jud'iiiieiit was recovered for the aiiiount, and on the same day writs of execution were issued. M. et al., appellants, creditors of M., instituted an ai'tion against him on the Sth .\]iril, ISS2, and ohtained judgment 011 the I4tli .Vpril, and on the same day writs of exeiution were issued. The stock-in- trade was sold liy the sherill' at jiulilie ain'tion, under all the executions in his hands, to the re- spondents, who Were the highest hidders. On a trial in an inter|)leailer issue, to try whether ap- of assigniiii'iit of I pellants' execution against .M. was entitled to litors, a tr.idcr in insolvent ted III Jt*'* II'U*'' >• •I* •I* ir ,jKf. I «"' alt propjrty, real and pL-rsonal, in trust to priority over tli:it of respondents, and whether 287 FRAUDULENT CONVEYANCES. 288 t!ic juilgnieiit of tliu liittir was voiil for fnuid, iin!', ;i-^ hcMMg u pn^ffn-iuc ; and wlictlie:' rtspoii- (Iciits' o.\-.;oiitioiis were void as against a])i)fllants' exi'ciition, on iM'i'oiinl of tlirii' liaving l.-~>iitd them Jn'forf the expiration of eight days from tlie hist (hiy for a|i|iearance, Ml'. .Instiee Armour diieeted a verdirt oi- judgnieiit to lie eiiteri'd in favoui' of the a|i)ieihints. That judgment w-ss reversed Ky thc<,»ueen's iieneh I )i\ isiiin of the High ( Viurt of Justice of Ontario ('iO, I!. 'JUJ), wlinse judgment Wrtsaliirmed Ijy the Court of Ap]ieai for ( )litario. On apjieal to the Supreme Court of Canachi:-- Hehl, iifiirming the judL'mint of the Ciuirt of A]ii)eal, 10 A. R. il'J.'tiiat wiiat the ihd.tor did ill this case clid not constitute a fraudulent jire- fercnei! prohiliited liy H. S. (». c. lis. and that the ]iremature issne of theexcention of the respon- dents was oidv an irregularity, and not a in\llity. MarDnnalil \. C,-,,/,//,/,-, II s! C. It. j(l7. In n action liy a creditor for an accoi.iit due on a ninrtgage, ,ind tn s(t aside a con\eyane'e iif personal propei'ty in which the judge \\ ho tried the case foumi that tlie rransaetifm eomphdnehip |)ro]ierty and as.sels only, iipmi trust to |(ay tin jiiint creditors only. The deed aiithori/ed tin plaintill' to pay criditors' claims either with or without interest. On the day licfoie the a.^.-ign- luelit the sherilf had sei/ed the |)artner.~hi)i |iro- ))erty under two w fits of execution (one of v liiili lie swiire at tlie ti'al he thought was against one of the partiiers only, hut there was no further jiroof of this), and put the jilaintitr in possession MS his liaililV. Mel'. Urns, then determined to assign to the ]ilaintiir, and i* was arranged he- tween the sherill' and the plaintill that n\\ the t'.xei ution of the assigmiwiit the plaintill' should f'tain ]iossessioii siilije.t only to these execu- tions: -Held, that till' died was not void under H. .S. ( ). c. IIS, for intent to jirefer the pai-tner- alii|K'reditors; nor for intent to iirefcr ])articiilar creditors, even if such intent \ ere sl.nw n, Ky the arranu'cnient liet\. eer the plain ■'! au.i ilie Nherill, ina-miich in the assi'iiors were not partiis U< Huch arrangement ; no''liy reason of tiic prnv i.-imi io'' pavmcut of crediti is' ehiiins with m- w ithoni interest. Kwnrt v. Sii.nft ft ul., \'l .\. W !)!>. In an action impcai hing the transfer of certain notes hy an insolvent tiader to hi> u ife, the hi;s- hand swfire such transfer was made to secure h, r the ]iayineiit of moneys loaned hy her. Iiiiiin. diately after such transfer he aliseonded from tli.- jirovince. At the trial the jury I'ouiid, in ww- wer to iiue-tions |iut liy thi' presiding judge, '|> that the hu-hand at the time he aiisconded w i. not solvent and aide to pay his delits in full; cj that he knew himself at the time to lie on ih, eve of in.-olvency : \'M that the transfei- of the notes to his w ife w as not voluntary ; (4| that tlio scheme of .-uch transfer originated with hi'ii .nni not with his wile. The jury, howt^ver, faileii t^ tind w ith w hat intent the transfer was made, luil gave a \erdict in favour of the defendant (tin- wifei, which, on motion in terin, the judge n fused to di~turli. ( )ii a])peal this court, lieiiig nf opinion that the answers gi\en hy the jury ili,, not atloril suHicieiit ground for a decision uiicli!- R. .'«l. (). c. lis ordereu a new trial, lint iiinl." the I'ircumstances ('iri etcd each party to hiai their own costs, lioth of the ap])eal and of ii,. new tri.il. Frinliulinrijh v. Ilushins, VI .\. \\. i",; See Mill-till V. EraiK, (i O, U. 'I'.iS, y.. X). ih) Iji!/.i iif Siih iiii'l ('/,i,tl,/ Mnr/'j'i'j, ~. In order to create a fraudulent ]irefcrcii.' under the statute of l^lizalietli as iiiler|)ntei| Kv R. .^. (). c. !•.">, s. l."i, not only must there exist"; fraudulent intiiit in the mind of the mortuagur, liiit also ill that of the niortgiigee. In this c;i>., , w liii-li was thiit of a moitgagc of goods : HiM, that no siieh intent was shown on the part of tli. mortgagee ; nor' Semlile. on the Jiart of the iiii.'t L'ii.'iir. H'j-liitni V. I'lnJ: it ii/..() (). \l. 4'2. ( V. I>. When- it was sought to set asiile a ' 'II of s,',. of personal property as framinlent and Miid. ,l^ against the cieilitors of the grantoi, and tlio evi dence showed that it was reluctantly given In the delitiir. who only yielded after some delay. and to a continuous insistance on the part of his creditors, his iateiit heing to escajie his crcditei ^ importunity. ,iiid that the demaml of the eiedilor Was mate h.iiia liile, with no intent hut to oht.iiii the secuiity, which she was advised she ought tn ha\-e: U,ld. atlirining the decision of I'riiiiil ' foot. .1.. that the hill of sale Was not Void uiiil.v R. S. O. c. lis. see. •_'. rnderthat section the ii tent with which tlu' conveyance, or gift in i|iii- tioii was made, must he looked at, ami if it ua- 1 ohtained as the result of honest pressure on tli' part of the creditor, that reluits tlii' presiim|iii"i of an intent on the delitor's jiart to act in liaii'; of the law. S/,if,r v. O/iiT it ill., ' ( ). I! I.'iS ■ Chy. II. ! In March. |S7«I, the defMidant K., a milliini I removed liir h-isincs.s to the village of Tara, aiii ; in the Noven.oer following changed her then r. sideiicf ;iiid place of liii.sim -s to a slioj) o\\ ned hy her co-ilift ndaiit. ailjoiiiiag to and under tin same roof as his own. In the spring of iSSd ih. I deielidallts coiiimellced other liusiliess tlalls;ie tions. when her co-defendant lent K. .fsl'JO to in ' aide her to purchase stock for Inr Imsiness, sli I promising to give him .security for its repayiiun! I liy executing in his favour a mortgagi' on eveiv- J thing she had The parties continued their liii.«i ness relations. T. ,id\;inciiii; iv moneys from tiiiii I to time, till in .\o\emlier. jsSd, she was iiidclitni I to him in the sum of .^KWi.T.'i, including oni' year's ; rent of her shop, a hill of F.'s foi' medical aitrliil 289 aiice, and a ai MJiicli she e.X( all her .stock Hotli defeiidai the .seuurity, i -c), until after T.'a solic^iors ill action won I)., and Burto PVrguson, J., tnui.'iaction w; .siuiit; having iiL'iinl the evi there was sutli the iiiortg.ige uuiu no .sutlic iiiterferenee 1); tliu learned jm .1.1. .v., dissei f.stahlished tliii tfiit to [irefer t .if tlie mortgajj «'i|iiciice of pi i.Mi;ee, w in fii ami even if sii f,u'ti:"ily heen i iii.'verthele.ss Ik the statute, ai Hnvjii'ii \. Elli S. k \\. , a Ii ..lining emharr aginyiiiau of .1. tii^ive sc'urity ofH. t\, )ii()tesl iii.ituriiig at sill ]i.iyalile to I'., a "ill! was a hrotl uitli him in am ..ige was given ii.iiliii their hits wa.-, paid him h ii'ites. A few d, (.'. jiuised the inner an e.xecii ■fijia'iit to the I interpleader act "lie i-liattel nii/il i.veeittion ;— He tiated as if gi iiaile to I', or.ly ii.Miii.st fraiiduli !iie evidence se igaiiist creditor.- iiil'aiit \V. did ir ii'T hy the i'.s.sigi whieh was afte «/., SO. R. -) II.. a creditor «hieli he held s- li;i\e a chattt 'Iwlared Void asi lliat ill the ah.se l^dilhy him wasi '■'"'•^•v. rill' III t"'.'/i!t(). R. 17- <'..a retail trai "iiuli'sale inerclK f'ge to secure sii lli'-i'.suni of ahou "lilhy H. vt Co. "i"l'tgi;,'e. which ".Vnir i„ full .^\ 19 288 secure Iwr r. InniM' (1 friiiii tli. id, ill :i'is. jud-r. '!■ (iiiiliil « I. ill full; ■■! t 111' nil ill. ~h-v ..f tl.e 4) that tlK :ii liini ,iii'l 1-, fiiiltil t.. IMillli', \[\A •iidiint It!;. ■ jibl;.'!' ii rt, lirini.' '•: If jury iii.> >i(in uinl. 1 Imt iiii.i.- ■ty to liiiit iiiiil of ti,. > A. i:.^;:: ]ll'lfl'f('IK'>' crprt'tfil l.y lliTC (•xi>t :; lllorti.'il;;iir, In tlii> I'li-i . ids: H.il, • pillt of till llf tllc llll''t I!. 47-'. ( . , ' -11 of -,,1. Uid void. ,i> ii i: one yi'ai' ical aiti'iul 289 FRAUDULENT CONVEYANCES. 290 Mice, and a sum for interest eiccrued due, and for whit'li slie executed a chattel mortgage, covering all iier stock in trade and liouseiiold effects. Until defendants swore that E. refused to execute ;lu' .security, notwithstanding iier promise to do Ml, until after tlie receijit hy her of a letter from r.'.s solicitors demanding payment, or in default .inaction would be hrought. I'er Spragge, C. .1. ()., iUid jjurton, J. A., attirming the judgment of iVrgiison, iJ., 1 (). R. 11!), tliat although tlie tiaiisaction was open to grave douhts, yet tlie siiiiie having oeeli sustained liy the judge who iitaid the evidence, and who considered that there was sutlicieiit pressure proved to show tiiat the mortgage was not given voluntarily, there were no suilicient grounds shown to justify an interference liy this court with the decision ms to sell out his stock ami etl'ects for a sum iianied and agreed ;f> he paid hy one of the cnditors, and which would pay all his creditors ,")0 cents in the dollar on certain terms, and those who signed agreed to accept ."lO cents in full of their claims. The delitor afterwards accordingly, liy liill of .sale dated the Otli of April following, sold and conveyed his as.sets to one of the said creili- tors, who had signed the memorandum, for the sum and on the terms named therein, which were that tile money was to lie jiaid in f. I 15. 1). ' A chattel nio'-tgage given as security for a lionft fide debt '•■! i m ',ie avoided un (er R. S. O. c. 118, by siiiiph ■ i" (. ing that the debtor was insolvent, and inteudcil to give the mortgagee a preference, hut there must be kliowli'dge on the piirt of the creditor taking the mortgage so as to constitute j a concurrence of intent on the ]iart of the debtor and creditor ; and not the aineiidmeiit made by 47 ; Vict. c. 10, 'i. 'A, (Out.) does not atl'ect the matter. Il'.uriis r. .McKay, 10 O. R. I(i7, followed, lu I this case there was no know ledge on tiie part of the mortgagee of the debtor's insolveiuy ; and it also a)i|ieared that tlu' mortgage \\as given in ]iursiianee of a jirevious promise to give security for the debt. The mortgage was therefore u|i held : (itiuere, whether, where the statute may be lU'feated by shewing an antecedent promise to give security , it must be sucli as the promise indicated. Mr/.'ohnt-: \. S>i imql', ii O. K. ;i(l!) - (,». i;. 1). A formal defect in a chattel mortgage may be cured by a conveyance at any time before an exc- I! 2s5 fi'il^ MX »• 291 FRAUDULENT CONVEVAXCES. cution reat'lii's the sliorifF's IihikIh; but siiclicoii- veyaiici', wlietlier L'tl'ui'tcMl liy a ilced or l»y deli- very iiiily, lias iio retniaetivt! ojieratioii, ami if void tor intent to prefer \iiidei' K. S. (). c. IIH, would not, sutHeu to cure the defects. 'I'lie intent to prefer is a ([ue.stion of faet for the jury ; and therefore where the jury found that there was sueh intent, .uid w heie there was evidence to support the litidin;,', the judgment of the County tludge setting aside tlie jury's verdict in favour t»f the execution eieclitor was rc.'Versed, hut a lU'W ti'ial was directed !n order th: t evidence might lie given to shew ^hut tiie liil. of sale was Tuuih; in order to carry out honestly the original mort- gage contiact. K )sler, .). A., I issenting,) Sini/h V. /•'-(;,-, 1 1 A. I!. 7.-.-.. The |)l,iiiititl's having a claim against the Ham- ilton Knitting ( 'oii[|)auy, pressed the company foi' payment of their demand oi- secuiity therefor. All parties were conscious that the company was insolvent and could not carry on tiicir iiusinc-;s, liut Would have to make an assignment unless they olitained an ixtension of creilit from the plaiutill's, on getting which their manager stated that " he could carry tiie concern along." ( In the suggestion of one of the pl.iintills, the com|)any agreed to give a niortgagc on their works, cVc., hut as it was the opinion of all that the company could not give a mortgage to secure a pre-exist- ing d( lit, it was arraiigeil that a simulated loin should l)e eti'ected l>y the plaiutill's to the com- pauy, ni'arly the whole of w hich shouhl oc applied to the paynu'Ut of the plaiutill's' claim : and siu'h anarrangenu'Ut wasearntd out accordingly. On a proceeding iustit\ited to impeach this mortgage, Hoyd, ('. : Held the transaction a framluleut and ineference umler R. S. O. c. I IH, (TO. K. 154) an ajipcal from that judgment, ow ing to an eipuil division of the juoua title helief that such ailvance would eiuil)le the dehtors to eontimu' husine.ss and p.iy tlieil' di'lits in full. I'iri r St, ire ( ''Hii/nliii/ v, >' //, \'2 o, It. ."i.'iT i,>. i;. i». •See M:i,;l.,.„ilil rt ,il. v. MrCill , t ,.' pi lintiti'ltlie chiiniaut I had pui' hascd a liorsc ironi S. 15. 8., a married wonr.n carrjiny on business in her own name, the jirice of w'uith was said to have heen ]>aid partly in a nott of hand of S. \'>, ,S. and her husliand, for nujuey l,.||t to them, and partly by a set-otl' of wages coiiiiu; to plaintitl' from S. 15. .S. On the com))letiiiii .j the purchase the [ilaintilf took the horse, i. . gether with a cutter and harness belonging to S, li. ."^., and was absent for two or three days, (hi his return Ik; put the horse in tlie stable i.i s li. S. as before, and fed it w ith her fodilei-, i^c. - no other act was shown to indicate a cliau;,'u i,i ownership before the animal was sei/.eil by jh- sheritl' under- a li. fa. gooils issued against S. jl. s. I'er Ihiiton and Patterson, dJ. .\., atHriniiig ti.t judgment of the County Court, that there Wi. not such a continued (.'langc of possession as t'. .satisfy the rcipurements of the statute, K. S, ii c. 1 Is, and that the judge had rightly withdrauri the case from the jiiiy. I'er Hagarty, C. .1. (i and Osier, .). A. -There being a iury the i.vi deuce was such as to re(juire the case to be l.p t ilucctii.u with the intent of ., to convey to H. I>. two parcls of vm. which H. I), was to hold until T. |). came of a; H. C. held t!>e laud until IKS'J, when he convi; it to his father, who immeiliatcly reconveyed ':< parc»d to H. I), and the other "to T. IX ' It « foinid that the 'oiivey mces of iHS'i were mil'' to ( arry out the trust .ipou which the cr)nveyaii of IH7S was maite; tlial when it was made •! I was in a positior. to pay all his debts in fidl. ■ after dedu. and T. I », wcrevali'i.: that undir the lircunistances thty could nut deenud to be made with intent to hinder, il'!i or defraud crediTors, I'h, li:\iih i,f Mmiio ' J)iiri.<,t III., '.) (t. K. .Mti C. I'. I)'. .\ trailer who Was in insolvent ein-uiiistiiuo anil for whom the jihiinliU' I), wus liable i rbraer on not turreut, wa.s saurity, whit ullered to sell iiDiisehold fur It. (uying the III the goods ( !t tired the .sa ■ouiiled, but oiurt that K. the arrangenu tlii; judgment E. was aware tiiiharra.ssnier .ji proof of 111 |n.'iiuhed as a IJlVICII ct It/. — One (i., in artain lands. nitlit for a del i'liiuglit this a itclared volui u,is pleaded li :Au:i asked li ■ statute of ls7.'t, under :i,i>ilile by ci' «,i.s entitled I ■lied remains iiuy not he e ]iiu'eiiasers for '' '!''d. or beca I nip 'leen 1 y.iis. /Jiii/i-r ■I. .M., who Willi thecoiici ''I'ther, who nsolvent' '., ellected .... '.e, book d' ittiUc. in the ( paiil to S. iV thereof (,n the Held, that thi i.-ia, frauduleii V. Ml\\'llUll/lfo X trader, v •I.Uices, iiltuie aiilitors of al uii' plaintitl', \ till' ri;alty as se till' assignor of I'lllied in the ci uikiiow leilgeo allirming the ji till' property w ti'iii, tor under > I'leditor ; but tiiat had the li III tile pioceeib ii'ivc r-iMidcrel """". 10 A. I See ■/'/,, /lii'ii, 'I'll •il , 12 ( ■•. Ml- full it III. 'Jl'f'i; 10 A. K II. \;\ hi an aciioii '1 tliemselvcs I 252 ice of wiiitli in a luitf (ij 11' inoiR'y hi,; iVilJ^US (.■nlllili,' COlliplotinli ,,;' liu liorsi', t' ■l()nj,'iiig t(i ■^. •euiUiy.s. (h : still lie of > fodder, &f, u ii ehuii;;i; d seized Us th 1,'aiiiat S. I'l. > attinuiiij,' ti. llilt tlldt.- W;< Dssessioii ii* ti .lute, K. S, n tly witlidi-iiw;, ir'ty, ('. .1. ti, inry llie iv; .•ase to !"■ l.r > A. R. 577. ;yaiue " 'ouml til 11(111 K. .H illi-eetli.ii, liilidei-iii^- V.A , and no friir,' lid conviyiui it the jilaiir I to the tiKitt. ;» of K.'s liiuil val of what « lat the j)laint . at the till only lieea inaily |iay.... tintr a lea 293 FRAUDULENT CONVEYANCES. J'J4 lialiiH' ciied c'oliv.;. II of l'Vr;.'ll- ' s the iilaiii!. s a fraud ii|" •) (>. H. i\^- ness as ;•, w sons, H. 1*. ill! laro'ds of Ijii ). t'anie of *■:■ II he eouvi'V' t'l Diivevi'il '•' V. I). ■ It« S'J were iiiiV' the eoiiveyaii uas made .1 us in full. " i|liestioii ; . • .■..nveyaii.' , . xeejit a - III, wiiirli « i.ed she j>'il:i ire it \- 1- Ihe l)Ui|ii- lleld, tii,il Ufi'e vali'i y could II' I, iiindrr, il ■.,/• Mo','r^ I)'. t eil'ellliislaii'l Mas lial'le ibrser on notes discounted at a bank and tlien LiiiTeiit, was urged by liiin for a settlement and Mcurity, wiiicli, however, lie refused to give, but iill'eied to sell K. the whole of his stoek ni trade, iidusehold furniture, v\.c. K. aecordingly bought 1!. paying the vendor 551,400, the excess in value ,! tlie goods over and above the notes, whieli he iitiied the same day. Ne.xt day the vendor ali- .Liiiided, but the evidence failed to satisfy the iiiurt tiiat K. intended to coinmit any fraud in the arrangement so carrieil out. Held, atliiiiiing ;lie jiiiigment of the court below, th.i' although K. was aware that the debtor was in |iecuniary ..uiharrassmeiits, the transaction, in the absence i proof of mala lide.s, was not liable to be im- |n,iiched as a fraudulent preference. Liivis v. /,>/»•« c> al. -ElUott V. liruini ital., lOA. K.OIi'.t. One (i., in 1S7.'{, made a conveyance in fee of attain lands. The holder of an un.satisticd judg- iiniit for a debt incurred prior to the conveyance irmight tliis action to have the said conveyance iiclared voluntary and void as against him. It was pleaded in defence that the right to have the ivlicf asked had become extiiiguisiied, for that statute of l^imttations had rendered the deed ; |s7.'t, under which possession was taken, iiide- liasihle by creditors; - Held, that the [ilaintitr was entitled to tlie relief askeil. A friiiidiileiit ik-iil remains so to the end of time, though it iiwy not be ellectively imjieticlniide liecause of ]iurchaser.s for value \\ itliout notice having inter- •lafil, or because of the claims of all creilitors i..i iiip, iieen barred or e.xtingiiisluMl liy lapse of u.rs. t>"i/ir V. dajlirld, |1 t). j;. .")71. - l»oyd. .1. .M., who was ill insolvent eii'eiimstanees, with the conciirreiice if not at the instance of his 'I'lithei', who was liable as indorser on some of nsolvent's paper lield by the defendants S. !., etl'ected a sale of all his (>). .\I."s) stock-in- ,;„ le, book debts, itc. , to ii bona tide purchaser it tiOe. in the dollar ; the jiroceeds if tlie sale he li.iid to S. it M., anil they credited a portion tlitrcof (.11 the notes eiKhpised by the brother : lUld, that this was not liable to be impeached ds a fraudulent preference of .S, it .M. JItdni/ V. MrXiitiii/iluii, 10 A. I{. tilb. .\ trader, who was in embarrassed ci'"cuin- jtaiiias, made tin assignment fur the bene'it of diililors of all his estate, retil and personi 1, to ilii' plaintitr, who held a moitgiige on a part of tliu really as security again. 't his iiidor.semeiit fiu' till' assignor of notes then current. No cre(litor i'liiicil in the conveyance, nor «as the consent to ui knowledge of it by any ifeditorshewn ; Hidd, atliiining the judgiK'Ht of the County Idiii t, that tile pnipci'ty Was liable to seizure under execu- tiiiii, for iindei the mortgage the trustee was not iileditor; but ."^emble. iper I'atterson, .1. A.,) timl h.el the Ini'lee been hclielicially interested 111 the pHieeeiU oi the pro|ierty, hi> a,^.sent would liave rendei'c't the dee(| inevocable. Coojiir \ . /'m./(, 10 A. K. .')(>. See 'I'/ii /tiiili/iiiij ami Lunii .[■•'■t'li-iitlitiii v. /Vi'- r,t„i , \'>0. \\. 1, i>. -287; Mii''>iKihl 'I III ■.. .l/.( ■iiHit (il., I '2 A. K. .">il'.', p. 'J'.U : /k. „„ ,■ v. iJlinr, 10 A. H. Orxi, p. J I S. against .1. (J., his wife, and the trustee, to set aside a marriage settlement by which. I. (i., a day or two licfore his marriage liad settled the greater jiortion of his property on his wife in uliieh it was shown that he and his wife In tme the marriage were living on the most iniiiuate terms short of the intiniacy of husband and wife, and that she would have accepted a propus.il of marriage without hesitation without any condi- tion as to a marriage settlement, and that he was in insolvent circumstances, of which fact she must have been aware, and tiiat the settle- ment was purely voluntary on his part, and that she knew nothing of it until she was asked to sign the deed : -Held, that the settlement was not the consideration, or part of the eonsidera- ti(jn of the marriage, and that it must be set aside as fraudulent and void against creditors : Commercial ISank c. Cooke, !» Chy. ,"i'J4 and Columliiiie ('. I'cnhall, I .'. j{. is."), that the moitgage was void under the said statute; that the plaintiffs could maintain the action, .and that it was no objection that tiny did m t include the mortga- gees among the creditors, on whose Ik half they piofosed to .sia'. Loilgeway ''. .Mitchell, 17 Chy. M)(», followed. MiinloiKtld it m tiie relief claimed. Meriden Sil- ver Co. /■. Lee, 2 (). R. 451, followed. .V. C, 9 O. H. 185. — Ferguson. FRAUDULENT J Ul )< i M KXT. In an action hy a creditor against a share- holder for unpaid stock, in a company incor- porated unet up as a ilefeiice tliat the company had not in the original suit been served witii [jroccss, under section 5(», the ])er- .son served as secretar> not bving such otticcr. I'er Burton, .1. A. Sucli an omission was an ir- regularity only which must he moved agi'inst promptl}'. ami could not lie the subject of a plea ; but that fi'aud or collu.-i)'i between the ])laintitf and the company or its oHicers would avoid the judgment, and could be set up by ])lea, but wa.s not shown liv tlie evidence here. Ihtrnii v. yya»vf//, 9 A.'R. !)1. The jdaintifFs by their agent, Patrick R., in April, 1S77, ])r(icureil a juilgment to lie signed against IVter R., the defenilant, m ho, for ])ur- poses of l\is own, sutl'cred the jiuL'tuent to go by default. No execution was ever issued thereon. After tlie death of I'eter, the j)laintirt's assigned tlie judgment to the wite of Patrick, who paid them !?;"!!« therefor ; and, on her ap])licatioii, Armour, .L, i ade an order allowing execution to issue against the executors of !'etei\ The ex- ecutors then ajii)lied to set aside tin judgment, as having been fraud ulcitly obtained, and to be allowed to defend tlie ction, or for such other order as siiould seem ju.->c ; and upon such fippli- catioii, Wilson, C. J., made an order yetting aside the judgment and all |)roceeding.') in the action, and dii-ecting the plaintiH's to r^'pay the $.50. 'J'his order was atlirmed on appeal bj' the Common P'eas Oivision, I'ei- Hagarty, C. .1. ()., and Oslei', .1. A. : -'['lu^ judgment should merely l)e set asiile and tile executors alloueil in to de- fend. I'er liiirton, .1. A. : — The executors can- not be heard to allege their testatoiV fraudulent ])ur|)ose ; they are estop])ed fri)ni < onlining the operation of the judgment within the limit of his intended fi'aud ; ami the judgment should lie allowed to stand. I'er Patterson. .1. A. : — The judgment shouhl not lie set aside, but thi order of Armour, .1. , siuuild be re. cinded, and it should lie declared that Patrick's wife as assignee of the judgment, was not intitled to issue execution, liecause the judgment was procured by Patrick, her husband, and suli'ered liy Peter, for a fraudu- lent purpose, of which she had notice when she took the assignment. Schruii/ir li (tl. v. J'lKini'i/, 1 1 A. R. ()7.i See M was an illegal one under 13 (ieo. II. c. 19, mu of the participants not being the owner of tht horse he bet upon, and therefore D. could iin; recover back from H. the deposit money, bein; himself in pari delicto : — Held, however, tha; iiiasniuch as P. should have handed back 1>.- deposit on demand made before disjiosal, I), coiili now recover the amount of the same from 1'. J)avis V. J{,'iritt Hal., 9 O. R. 435.— Boyd. The Act 40 \ict. (C.) c. 31, intituled an Actf:: the repression of betting and pool selling, din- iiot forbid betting, and does not apply to stak' holders in any of the three cases mentionedin st\ tion 2. Ih'ijina v. Dil(o)i, 10 P. R. 352.— (». Railway Cdimi'anii:- 2% riNG OF THF ITY. iVW. t a named poii;: 1 change of rtestii. 8ee Symmen \ a shop window lied, containing .; sizes. He oAVt..; uess the niinilM: tons in the jar :; ted in his window one shouki 1)U\ ■ -Held, that as tli- buttons depumli ■ , observation, an, ' mode of chanei thin the nieaiiin. defendant should onviction made t^ 'ei/iiia V. Jamieno:. a colt owned liy Under the agree ted with P., who handed over tlit , althongh I), ha. D. is now brin; P. to recover tlit Id, that the raw ieo. II. C. 19, III!: the owner of tht fore D. could in-; osit money, buin: Id, however, that lianded back b. • disposal, J>. ciiiir; he same from 1'. 35.— liiiyd. tituled an Act fi-: pool selling, ilm- ot apply to stai< nientionedin so^ R. 35'.'.— (»skr lent of losses ar and given in mir thin s. 53, sub ■ si'curity is vni-. hands of a buns Debts. V COMI'ANIES. 297 GUARANTEE AND INDEMNITY, 298 GENERAL SESSIONS. See Sessions. (illT. The evidence shewed that the husband had piirchused a piano, and had made a present of it til lii'i ^vift^ '•>' putting it in the house where they lived, and sub.seiiuently recognizing lu'r right til it .—Held, that the piano did not form part III the wife's separate estate, as the husband could uot at connnon law make a gift inter vivos of tlii.s ilescription of property, so as to prevent its pass- ;u^ to his personal representatives ; and that th';i'e wxs no evidence of intention on his part to con- •titutc himself a trustee of the piano for his vife. .5 0. It. 51tJ. — Cameron. W. G. gave to his wife, M. ('>., a bond condi- tinned as follows : "That my executors shall pay \\. (;. 8200 in one year, and S'-'OO in two years alter my decease, and these payments to be iii;ide aliiive stated to .M. (>. 1 biml myself to make iiill provision for in my will to be hereafter made. Anil ■should J not make a will, this shall lie full athiintytomy executors to make siicli payments. When my executors fultil the above' named iibli- :atiiiu by making saiil payments tin,' above obli- gatiiiii to be null and void, otherwise to remain iatu'.i force and virtue." \V. (i. died leaving a uill, which, however, did not specially mention llie;.hove oldigation. M. (J. alleged that she had It It tile home of the testator for good cause, and that tills bond was given to induce her to return iuil live with him, wliich she did ; but the learned uilu'c found otherwise, and that the biind was holly witlnmt consideration in fact. M. ( i. now iifil the executors of \\ . (J. for the S4(l(» men- iuiieil in the bond : — Held, tiiat -M, (r. could not C"Ver for that, if the action were considered as 1 action at law on the bond, the bond was void, ufceat law husband and wife could not contract : riiile if considered as a suit in eipiity it was luivaleiit to a suit for specilic performance, or hefiiforcement of an imperfect gift, and iiU'itiier a-e cnuity would not aid a volunteer, neither •A tile presence of a seal make any diirei'cuce. iihl, also, that the bond could not be regarded .• a ilcclaration of trust, (iliiss v. Hurt d a!., S I K. 3!)1. — Ferguson. The widow of a testator claimeil as a gift from ler husband a promissory note- payalile to his rltr, but not endorsed by liini. Tiie c\iil( iin-. the master's otlice, on taking the accouut.< of he estate, slieweil that the wife had taken pos- ts>iiiii of this and other notes lieionging to her ii>hanil during his lifetime. The master at Loii- 'n tiiuud that under the circumstances appear- I.' ill the report of the case, «'J C.iiy. 443, the istit'ir had intended the iiotii to belom,' to tile I'l'nv, and that it did not form jiart of tiie assets :tih' estate, which tinding w.is reverseel liy the iiit(lilake, \'.('.):— Hehl, jierSpragge, C.I.O., I'l Morrison, .I.A., (reversing tiie order then rmiiiunced) that the evidence establisiicd a \ ;ilid : It inter vivos. Per Piurton and I'attcrson, .U. ^ i'liat even if the facts shewn in the <'videnco I to estaliliah a good gift inter vivos, tiie stator under the circumstances had constituted iiiiself a trustee for his wife of the note. Per liiton, ,J. A. — The men' delivery of such a note, it eniiorsed, could not take etlect as a gift inter vivos. Per Spragge, C J.O. — There is no dis- tinction in tliis respect between a i,'ift inter vivos and a ibmatio mortis causa. TitVany r. Clarke, (i Chy. 474, remarked upon by Spragge, ('..J.O., Ji'r Mitrnn,^r,ir,llni,ii v. Mu,-i;ii,, <."l A. R. 3()9. .\ verbal gift of personal eiiattels does not con- fer any property mi the donee, if there be no actual delivery to iiim. 'I'iierefore, \v liere tiie inotiicr of the (Icfeiidaiit, wiiile on hei ibath-bed, gave to aiiotiier son, .)., tile key of a drawer con- taining a mortgage in her favour executed by tlio dcleii'lant, directing .1. to give the iustniment to the defendant in the event of her not again seeing him, and the defendant wa.-. subseijuently suniinoned by telegrapii to see his mother, anil he f hereupon aiiaiii visited her, when she told him that his mortgage was in the, drawer, ;uid tliat when he went home he slioiild take it with him ; Imt he did not on this oeiMsion taki' pos- session of or see it, and after the mother's death (intestate) .1.. as directed by her, lianded the mortgage to the defendant: Held, atiiniiinj; the jiulgiiient of Hoyd, (,'., S O. K. .')!(), tli.it there had not lieeii such a coiiijilete delivery of the security as to constitute a gift inter vivos or a donatio mortis causa, and therefore that the money due on the mortgage formed part of the personal assets of the deceased. Watson /•. I'.iad- sliaw, () A. I\. (),")(), ol)served upon. '/'nni-i v. Tmr;.-<, 12 A. It. 438. 'I'lie mother had signed and gi\en to defendant a year before her death a receipt for interest on tlie niortg.ige, ami had endorsed a similar reeeipt on the mortgage, Imt no nioiiey was puid : Ibhi, a valid gift of'tlie interest. S. ''., .S (). R. ,')l(). (iooDS. 1. AssiuNMiAr UK MoiMi.Aiii: oi— .S'>v lln.i.s UK S\i,i: ANi> <'ii.Mri;i. MouruAiacs. 1 1. tiiKt or —Sri' Cut. III. Li.rriMi ('iiAiiELs loll lIiiiE- Vm Hike III- (.IlIATrKI.S. 1\'. Caki;iai:i; hv — Sri' Cakkiek.s. v. S.M.K or Srr SaI.E OK (ioOliS. VI. \Vaki:a.n"tv ov—Sn. Wakkantv. (UJAltAXTKK AM» l\l)K.\i.\ITV. 1. ()l'Ki;.\TIUN OK THE SrATITE OK FlCAlDS, II. CuNsTKri'riON OK CoNTKAlT, -!)!). III. DKTKKMINArioN OK CoNTKACT, 300. IV. .M[scKi,i..\NK.ois Casks .300. \'. .\s IJkTV, KKN l'i;iS( ll'AI, AND SlIlKTY — Sii- pKlNfll'AI, AMI Si KKTV. \'l. Wakkantv—.*?" Wakkantv. I. Ol'KKA THIS UK TllK. Sr.VTITK oi KAfDS. A. M. was carrying on busine-s as a brewer when, owing to tiiiaiieial diilieulties, he left, and S. M., his brother, a large eie'lit..!, took charge thereof, 'i'he plaintitl' claimed that at tJiis time « :":: III 290 HABEAS CORPUS. 300 there was a large sum due him for wages umler j be satisfied with the culling at R.'s yard ic asjieciai agrociiioiit made witli A. M. ; and that j Ottawa, and that no objection haying been niiul- S. M. agreed, it lie would remain, to pay him ! there the L'uaranty was satisfied. But held a!-,' tlif i>ast wages then liue liini, and like wagts for ; that the bank was not bound by tlie agreeuur the lutiire : Held, that the agreement by S. M. , mude at Montreal by C. & 11., and even if tl- to pay .sueh past wages being merely a collateral , culling were to have been at Montreal the ^hh. promise A. M. remaining liable, and not being ! ment of the (iO standards having rendered it in,. in writnig, couM not be enforced ; Held, also, possible to settle the (juestion indifference intl. that, on the evidence as to the ., ..mint of wages, ^ manner agreed upon, the bank would have Ik.'. each ])arty swearing to a dilVerent agreement, and discharged. JJolnl/ il al. v. OiUurio Bank- ,t „•' the other evideu.'c being eontradietory, tile fair i i) A. U. 4S4. inference was that tlu parties' minds were never | a,ons ;;iiaiaiiteed. Hiflaird 1 1 a/, v. >S/iUir./l, SO. i;. ."ill. - Koyi 11. C'o.NSl'l;! Clld.N III- ('. NTK.ACT. 'I'he deteiidaiit I!, eoiiti.uted with the jila'n- tiffs to di liver on their vessels ;it .Montreal a large iniaiitity of deals, and hedelivereil in 1 877, all but KiS st.andard hundreds. 'I'liese could not be sliip|ied till the spring of 1 ''"'-' ^nd li. leiinired ill the meantime to receive p.ayniei.t for them. Me had in his yard at Ottawa more than the re- (|uired ipiantity of deals ; and in ]ilacc of then separ.-iting and deli\ering to the plaintiffs tl'" IGfl stand irds, ho procured his son to give ;i .storage receipt under 'M \ iet. c. 5 (Doin.) acknowledging the receipt from the Ontario llanl. of 108 stand aid hu'idreds of (u'al« s]iecifying the (pialities re- <|uired by the contract. The bank thereupon gave a guarantj' to the ]ilaintifl's that those deals should " be satisfav torily culled next spring pre- vious to shipiiH'Ut, ;ind that .any »ttled in the :iianner usual in Quelle*.', viz. ; Messrs. 1*. & C"o. for pur- chasers, and Messrs. ('. &. R., for Mr. I!., to agree upon a sworn ■ idler to .act in the interests of both parties." Tlieieiipon the ].lair.titTs jiaid for tin deals, and tlu- bank received tl c money. In the ..-priog of 1S7.S, 11. forwarded I'^sstandards to .Montreal by fvo barges, being urged to expe- dition 111 so doing liy the plaintills : and (iO staii dards were loaded on vessels of the plainilSs, wliicli s.iiled with them to I'Inglam'. 'I'll. .lUality of the remaining 48 standaids was objected to and they were landed at Montreal, and there culled .aid found deficient in (pialitv. M«, si.s. ( '. & K , agents at Moiitri'.al for the defendant R . vrbally jgreed with th<- plaintitl's, after the the Tith of April, 1 882, the ilefendant being dh. satisfied with the manner in which Q. was ci. ducting his business; wrote to the firm forbidilm. them to supply any more goods to Q. under mi ■ guarantee :— Held, (I), afiiriuing the judgiini.! of Ro.se, J., 5 O. R. 18'), that such notice put .-ii end to defendant's liability for any goods siil-. (piently supplied to Q. ; but— Hehl, (2), lev... ing the judgment of Rose. J., that the de.itli (', had not that effect, Rurton, .J. A., dissentih. T/ir CoKijrarr Hnnntiij niul Mdlthnj Co. of To)' '■ v. Stmrs, 11 A. R. 150. IV. MiscELL.\Ni.;or.s C.a.ses. See Moh< tre plaintiff from custody on habeas corpus was n ; a ([U.ashing of the conviction. Unnttr v, Vrh •: ajipeal to the sessions. The apf m ,d was .:• 00 M iiidar.l.s had been slii)ip<.'d, tluiit the nuulity j missed and jilaiutifl subsecjuently arreste.l ii| : of the -tS .standards slmuhl betaken to be the ' a warrant issued by the defendant L. under a. avei ii^e of the whole KXf : Held, (.^pragge, C. j vi •• of di feiiilant H. the County Crown Att- J. < lissentiiig. ) that tbt guaranty given by iie\ Upon retu.n to haiieas corpus she was ili- the liaiiiv only reijuired that the plaintiti.'s should | charged from custody under the latter wari;ii.' 3111 i;|..m the gr nUlitthetwoc .■iiir tolierai !ii„lira third ,„l.-liewasag i,.uc.l by lief ii,.ii. in an a the penalty of •iif habeas co: nv.rsing the ti;,il. that till ,\,t, .•!! Car. ill which the 1 ill execution exi'cutiou, iss tlif ilischargi ilufects in 1 1 .iilrr and pn tiuu ill the ca -ucil after tli H'ssions, am ti..ii ill direct vdiiioiit niaki |.risiiiinient al jix'tioii. Ar (1. r.. i>. The course 01 a habeas uiiili r a delec viction of a See //( re Si See Dnnhip HA Tiie plaintil ]ini-cliase the . a half breed, signed to plai a iliild of a hi neons, and th liiiii was wort n.t-'iit of the C entitled to r :im(iiint jiaid 1 the so-called l il.?feiiilant, i|V lia.l received. .SV»' i HI HKil I. CON.STI li. POWEK 300 R.'s yard it iiig been nj,i,l. Hut huM ;,!>,; tlie a^rLciiku; nd even if tL- treal tile sLii- endered it im- ifleienee in tl;. )uld have la-..:. i-io Bank >l ir;. ONTR.iCT. lade in A\m\. 3 V. & Sdns.i.t ; forming suijs )l)lied liv (' 4 of 85,000, aiu ntinnin^' gii.ir- SI, after wlii^:. ceeutors in u[- i under the likt ivhen tile assi'. xl t(i the jihiii). '. eontinued t' 1 the iilaiiiti''i toek eoinpaiiv iwhile, anil .b hint ))einj,' div eh (). was o>h firm forhiddiii. ) (.}. under Mi.i the judfinii!.; li notiee imt n ly giifxls siil'M. -hi, (2), rev,!v at the death : A., dissentiii.. I Co. of' Tl,)-' ■■ A8ES. IS (). I!. 293.11, 10 A. R. (i'i.) ). H. 589, 11. lit.. 301 HIGH COURT OF JUSTICE. 302 schargc of t: corpus was ii iiaittv V. (r(/»-i , had coiivi'ltii of a ha«i;y months' iinjiii' jing two li }• lil, pendiii- .>: ifx .d was '';• arrested i:]' - t I.,, under a '. Crown Alt' us she was ill- utter warin!.". ,l„,ii the ground that it did not take into ae- jHiiiit thetwodays'iniprisonnient siie had sufl'ered p.jiir to lierai)i)eal. 'riierenjion .she wa.s detained uiiiUr a tidrd warrant, on whieii nothing turned, ,,nil >hi' "US again arrested under a fourtli warrant i-.iRil l>y defendant L. ui)on tiie original eonvie- ij.iu. In an action Itrmiglit liy the plaintitl' for the penalty of i;500 awarded hy the (itli section of •iit habeas e(iri)us Aet, 81 (,'ar. II. e. 2 : — Held, r.vir.'^ing the jndgnient of ( 'aineron, ('..I., at the , tr;al. that the tith section of the haljcas corpus ' .\, t, "fl far. II. e. 2, has no application to a (;ase i ji, which tiie prisoner is ciinlined upon a warrant j lu uxecution : — Held, also, tiiat tlie warrant in I cxccutiiin, issued liy tiie convicting justice ujion | the discharge of the jirisoiier from custody for ! ilefects in tile former warrant, was the legal i.riliT and process of tlie court having jurisdic- timi in tlie cause : — Seiiilde, tliat the warrant is- .lud after the dismissal of the appeal by the ■I'ssions, and which followed the original cnnvic- timi ill directing imiirisonnient for six niontlis, witiiout making allo\\ance fur the two days' im- [liMininent already snti'ered, was not open to oh- iiction. Ar.tcvfl v. l/illeif tl ft/., II (>. it. I,");?— (1. 15. D. The eour.se to he taken liy tiie court on return 01 a liaheii-< co.'pus, shewing prisoner detained iiiidi r a delcetive warrant in exi'eiition of a con- viction of a ju.stice of the peace discu.ssed.^ ,>^ee In re Smart Infants, 11 P. I!. 482, p. 321. HABENDUM. See Dvnhip v. Diiuliip. (). K. 141, p. 212. HALF-HREKD'S RKIHT.S. The plaintitl' had agreed with the defendant to iircliase th(^ claim to land scrip in Manitoba, of a half breed, and defendant procured to be as- signed to plaintitl' the claim of one alleged to be a iliild of a half-l)reed. Tiiis proved to be erro- neous, and the scrip which had been issueil to him was worthless : — Held, aftirming the judg- 11,1 lit of the County Court that the plaintitl' was piititlcd to recover from the defendant the ammiiit jiaid by the idaintilT for the jiurchase of the so-called right ; the plaintitl" to assign to the ilofeiidunt, ijuanttim valeat, the land scrip he !:id received. Jluniifv. Youmj, 10 A. II. 215. HAWKERS. See MrMcu'Ai. ('ouroiiATiox.s. HEARSAY EVIDENX'K. See KviDENUK. HIGH COURT OF JUSTICE. 1. CoNSTirrTioN' of Court, .'102. n. Powers of Single Juuoe, 303. III. DiVISIOVAL CoritT. 1. Afnilicdtinv^ II ml Appeal-^ to. (a) (linirallii, .m"?. (b) I'riniki', 304. IV. Powers OK Local .1 run E—.SVc Phactk k. \. Transfekrimi Cacses from one iMvi- .SION To A SO I II KR, .'{(14. VI. K.\('1.I".->IVE Jl IMSjiIcrioN (iK CoriM of CiiAscKRV — *<" Trial. Vll. Trial -.SVc Trial. I. CiiNslITI riON OF CorRT. An indictment was found ;igaiiist the del'in- dants in the Hii;h(',purt of .lustier at its .sittings of Oyer and Terminer and iueii's lleiicii |)ivi sion. Upon tiie return tli.' Ciouii took mil a side-bar rule for a eoiicilium, and the diniiirrer was set down for argument. A motion was made by the defendants to set aside lln' proceediiigs of tlie Crown on the groniid that tluy should have been called upon to appear and jjlead de novo in til- division: — Held, Wilson. (' .1., dissenting, that the Court of Assize of ( »yer and Teriniiier and (Jeiieral (Jaid Oelivery is now, by virtue of the .ludieatiire Aet, tlie High ('oiirt of .Justice : that the indictment was found, and the defen- dants appeared and demurred thereto in the High Court of .liistiee : and that it was not lecissary to plead de novo to the indictment. /,'•;///(« v. Ihtnt'iiiij el a/., 7 < >. R. lit;;. Per Armour, and 0'( 'onnor, .I..1 : The Siijireme Court of .hidicature is not properly a Court, and ought more jiroperly to have been called the Su- jireme Council of .liidiratiire. The l)i\ isions of the HigliCourtare n"t tlieiiiselvescourts,liutto;.fther laii.stitute the High Court, whirli is thus divided for the convenience of transacting busini.~s ; and the .Judges sit as .liidges of the High Cant, and exerci.se tlie jurisdiction and admiiiister the juris- diction of the High Court. /'<. The reeogni/ancc entered into liy tln' defend- ants, on the removal of tiie ])roeeeiliiigs to this Division, jirovided that they should "appear in this Court and answer and coni|ply withany judg ment which may be given upon or in refi'reiue to aeertain indictment, &c., or upon or in reference to the demurrer to siudi indietineiit. .'11111 plead to .said indictment if so reijuired." iVr Wilson. ('.,). Sciniile, that the practice and procedure before tlie .hidicature .Act slmuld be niaintaiiuil in its entirety ; though ])ossibly it might be varied by agreeiiieiit. Hy the recogni/ance the defendant'? had not agreed to vaiy it, Imt tliey might there- under elect to ajipear and answer to the iiidiet- ment or to appear and argue tln' deiiiiirrer ; and they, being ready to appear and answer tlie ili- ilictnie';'_, would fully perform the condition of the recognizance by so . I ling. JO. The election petition against the election .aiul return of the respondent was entitled in tiie High Court of Justice, Queen's Bench Division, and was presented to the ottieial iii charge of the . jjj^ «i> .aa ai( IK := ;ii 'j viak ■i« SI* '■^ Ji ."ai ti I!..* ■il ■''S» HI* 1 i^^M 9 '"mm- si: 303 HIRING. SOJ il !i !i M office iif tlic Queen's liuncli f>ivision, and tileil ami fiiteriMl in tlio ImokH of tluit ollice. A pre- liminary ol)jt't:tion \v!iH taken that tlie Hi^li l.'ourt I »)f .liistiee liad no juiisilietion. Held, (Henry and Taseheicau, .).)., dissentinj.'), reversing,' the judg- | ment of Cameron, d., that tlieOntai'io .Indieature Aet. I SSI, makes the Hij,di Court of dustiee and | its divisions a eoutiiniation of the foinier eom'ts ' merged in it, aiiiv SiNoi.i; .h i)(ii:. Held, that a single judge, sitting aa theeourt, i has jHiwer to review the findings of an ollicial referee upon a referenee uniler see. 4S (). d. Aet. JJil/ V. 'J'/if yurthirii /'iirifir Jiuirtitin Ji. IT. Cn., 11 I', i;. lO.S. — Ferguson. " The jiiilge who presides at the trial and ]iro- liounees judgment l>y default for the <]efeiulant in tlu^ alisenee of the iilaintitV, has ]io\ver under Itule'iTOO. .1. Aet. when afterwards .-ittiug as the eouit at Toronto, to set aside sueh judgment. J'vK>iY. Corscallnn, 11 1'. I!. 104. — Ferguson. See Sijuod v. DeBlniiiiini, 10 i'. 1!. 11, p. 2'.V2. 111. l)|VlSInN.M, CoriiT. 1. AjllilicillillllK (lilt/ AjljiKlt.'l In. j (a) {li'iu'riillji. i In moving to (jujish a hy law, the practice having been ado]ited of applying to a judge sitting alone, an objection tli.-it tae application should have been to the Divisional Court was not enter- tained ; but siuh an ajiplieation if rei|uired to be made to the Divisional ('ourt, must be t() the common lav Divisional Courts, and not to the Chancery Divisioiuil Court. In n- Finixlmt (ind thi' ('tirjiiinition vf Tithnrn ISdsl, 11 U. I!. ~'), — O'Connoi'. The Divisional Court ought not to entertain applications to ()uash by-laws, which sliould be , made to a single judge. Lini'hi/v. '/'/n- ('(irjiorn- ' tioii of till' Ciii/ ii'fo/fdini, 11 I'.l!. 442— C. P. D. This action was not tried, but was refei'red to the master, fuither direetions and costs being reserved. After rep(Jit made the case was hi'ard on further directions lieforc I'roudfoot, .). : — Hehl, that the case could not be reheard before the Divisional Court, as the proceedings taken could not be regarded as the trial of an action ■. within tlic meaning of Hules .'^IT and olO • >. .1. Act. \Va„.sliy v. Smulhruvd, 10 1'. K. 'I'M— Chy. I). When a case is improperly set dovii to lie re- heard, a sub.'tantivc nuition should be nuide to strike it out. //». Held, notwithstanding s. '2'f>,, subss. '2 .and 3, O. .J. Act, that tlie l)i\isi()nal Court had jurisdic- tion to hear an appeal from the order of Armour, J., in this case having regard to the lang\uige of Rule 2.")4, O. .1. Act, and of the order itself, lidll V. '/'//( Xortli British Coiiadian I.iuui ami /iirist- mmt Co. (lAiiiifed) e/ a/., 11 1'. 11. 8.V ('. 1'. D. •An order of a judge sitting at the assizes changing the place of trial on leave given by the Master in Chand)ers, who refused the applica- tion, to so ajipeal from his ilecision was held ti be an order of the judge and iu)t of the lliuh Court, and could therefore be reviewed by th.. Division;d Court. T/w Suniiii Aijrli-itUoral In. jili-iiii III Miiiiiij'iirliir'iini Cii. V. I'l nhir, 1 1 V. \\ l.'U4-C. 1'. D. See Clo.li v. h'.iTfii(iiiii' llniib, II I'. U. I8t'p. i, 147. (b) I'nu-tU-i-. An objection that a notice of motion given f.ir a sittiiigs of the Divisional Court, and served ii; time to lie Set down during tliat ittings, coidil not be set dov.n in the bdlowing sittings, wav overruled, linis.iirf v. MvEinni it al., IOC I'. 179.— C. P. D. The decision appealed from was given on llii- 14th and the notice of appeal on the 'Jtith Xovciii- ber, tlu! lirst day of Miehiulmas .Sittings beiii.' tile 17th Xovendier : — Sumble, that this -^vas an appeal from a judge, and not a xubstantive motion to rescind his order, .and if so, and Kule 414 \\m to govern, theajipial w.is too late ; but ; -lleM, even so, that the court would extend the tiiin. as the merits wei-e with tln' appellant. McLunn ('till. V. d/,/,7,.s 10 I', i;. 4."il. -<.,». B. D. The judgment at the trial was pi'onounced on the I!)th .luui', ISS.'i, but was no^ ilrawn up iiinl settled till the llth Septiniber. 'l lie sitting- ni the Chancery i)ivisional Court (to u hieh tile di fendant wished to appeal) began on the .'Ird Sep. teniber :- Held that the time for appealing tin li r liuic .VJ:{ began to run from the I'.ltli .Ittiie, ami that it was not extended by the neglect to draw u|i the judgment, although, as tiie judgment was not drawn up, the cause eotiM not lie set ilowi; under Ktili; ■V_"2. But, as there was a bona lidr intention to apjie.d. iiistruetions had been gixrii, the defendant lived ;diroad, in Texas, the judg- ment was eoiiiiilex, and there were ve been settled, leave to set the cause down was granted on payment of costs. J/ickni v. Sturer, 11 P. R. 88.— Chy. D. V. TK.VNSFKIlIilNd C.\ISi:s KltOM (»NK DlVlsIoN 111 AsiiTiiKi:. .Since i'ule .")4."), (). J. Act, an aitioii is not hi be transferred from one Division of the HIliIi Court of .lustiee toatiother, except on very strong grounds. J/((.nld txttnd the tiiin', h tile a])|)ellant. Mrl.itnn it. 451. -Q. B. I). le trial was ])i(pnonnceil mi lint was no*^ drawn np uinl epteinher. 'i lie sittings lit lal ( 'onit (to whieh tlie ili leall liegan on tlie Ihd Sip. le time for appialing uinUr I from the jiltii .hme, ami h'd liy tlie neglect to draw ougli. as the iudgnient «as t a/, v. Tln' Corpora- •«Moflhi;ami's LiAiui.rrv luR Wikks Neces- SAKIKS, 311. VII. AcriiiNS l>Y AND .ACAIVST. 1. Parties —See Pi.EADINci. 2. 11 (/■'• Siiin;/ III/ X'-.d I'rii-nd, 312. 3. Ill/ Wife ai/itinsi /Iitshand, 312. VIII. FouKioN l)i\ui;cE, 313. IX. Al.lMuNV. 1. Wliin Uranled, 31.3. 2. Intirini Alinloiui, WW. 3. (;.»y.s, 314. 4. Oilier Casi.1, 315. X. MI^^l■E^r,ANE(H■s Cases, 315. XL Custody ok LsKANT.s—.S't't Infant. XII. Hisiiand's Insurance kor Benefit or Wife and (!iiildren — See Insurance. XIII. HkKUSINO to I'liOVlDE FOR WiFE AND ('lIll.DREN Ser CUIMINAI. La>V. I. AtTIoN FOR BCEACII oK PROMISE OF Marriaoe. Since the p.issing of 45 Vict. c. 10, s. 3, (Ont.) the parties to an action for breach of ]ironiise of inarriagi; are lioth competent and compellable witnesses, ami may therefore l)eexandned under C. L. P. Act. MeLaniihlin v. Moore, 10 P. R. 320.— Osier. In an aetion for breach of promise of marriage, the plaintitl' stated that the defendant proniisfid to marry her in the fall of 1873. but when that time h.id arrived he excused his doing so, because he said he had not his house l)uilt. and he .agreed not to marry until he had a suitable house. I'he plaintitl' told him she was willing to live in a shanty, and he said he would not marry until he could keep pl.iintitl'. The house was built in the summerof IS78. Nodetinite p'-oniise was proved after the fall of 1873, but the plaintitl' and defen- dant kept up friendly relations until Is84, when the defendant married another woman, ;• id thi.s action was brought. The ihifendant denied tin promise. In his examination before the trial, he admitted visiting the plaintitl and of talking to li-jr of marriage, but he said it was not of tlieir marriage, but that of other persons : that when he visited her she was ahuie, and that he kissed her. In corroboration of the plaintitl 'a evidence, •mm .1 '!•« iS ,»-» III (!? -II §!; iS m i 8!: ■tin 0ll '■H \m ■m ■il* !'•■* ■1* inmii ti .11 s» •I* ai« 'tmi ■*■ M Si* Htm 307 HUSBAND AND WIFE. 308 I I •! i 'I ■I , i» a witness stiitfd that in the fall of 188i, he had | a coiiveisiitioii with tlie plaiiitiir, wIki. iffeninj.' til Miliu' jiiils wiiii visiteil iiis house, Nuiil he was liot ;,'i>ili^; to marry tiio.se wlio wanted liis house, liut tile ^'irl wild wanted liim ; and un witness sayihfi he .-ii]i]iosed this was tlie jilaintitl', tlie dufeiiiliint answered " yvn." Tlie witness stated tliat in the next spi'in^', oi' the follnwin;.' one, he had a tnrther eonveisation with defendant, when (lefendanl said he was either j^'oint; to rent or sell his house or j,'et married, when witness said he au|i|iosed Jilaintitl' and defendant would soon make a niatih, to wliieli tlu^ defendant inaite no rejily. At tile trial it wasolijeeted tliat thei'e was Ijo eeidenee to eorroliorate the ])laintill s evideme as to tlie allcfied |ii'omise, and that the action was liarred liy the Statute of Limitations. 'I'lie learned .ludire overruled the olijeetioii, and left the ease to the jury. Held, tliat the artion was not maintainalile. I'er Cameron, ('..). There was evidence to j;o to the jury eorroliorative of ttie promise stated liy ))laintiir ; lint, pir C'lmeron, ('. .)., and liose, .1., tlie action was liarrtd liy the .Statute of Limitations, the latter exprcssin;^' no o]iinion as to the eorroliorative evidence'. I'er(ialt, d., witliout dissentine as to the Statute ot Limitations, the plaintifl's evidence was not sullieiently eoi rol'oratcd. t'oKli/lo v. J/untn; I '-Ml. K. :d'!. - ('. 1'. 1>. 11. M.M(i:i.\(:i-.. I!y Knj.disli law as adopted in tliis I'rovince in 17!'-, niarriage with a deceased wife's sister was not i])so facto void. Imt wa.s esteemed valid for all civil purposes, unless anindlcil ilurini; the lifetime of the parties. ,Sucl^ remained tlio law here until Ait Vic. c. 4'2, (Dom.), which removed all disabilities. Jif Miirraii Camil — Litvi'im v. J'oinrn, (i (). !!. (iS.").- IJoyd- I'liy. I). IIL M.\HUl.\(iK Skttm'.mknt.s. In a marriage settlement it was provided that " from and after the decease of the survivor of them, " tlie said luishand and wife, the lands settled should lie held "upon trust for all or any one or more of the children of the said in- tended marriaj^e * * hut if there shall lie no child l\ insolvent. M. T. jilcaded. inter ali;i, deiiyiiii; averments of in.solviiu y, fraiul. or wrong-doii i; The (!,0(l() in Ni' veniber, ISSl, addint; that he eonsi. ! 1. Si'pamlP Entatp. 'i'he defeiulant's first husband died in IS70. ' and she contracted a secoiul marriage in IsTl. This action was before the Marricil Women s I'roiierty Act, ISS4, was jiasscd -.—field, revcr sing the judgment of Osier, .1. A., (i O. It. ">SI. that the defemlant's right to unassigned dower in the lands of her first husband was not sepa rate estate, liut was projierty falling within II- S. O. c. 125, s. .3. and she not having the ]\w disponendi without her husband's concurreiui'. her inteiest was not liable to be sold under ex eeution against her. Domilax v. Hutchison, Vl , A. 1!. no. Quiere, per l\itterson, .LA., whether a writ ef j fieri facias is the appropriate remedy for reach 309 iiig the separ See however iiir Osier, .1.. See Sdii/liiiii 17 ; Jl<' l>i(i '1. Ciilii'i'l/i Where a ra jiiirchase of woman, in tli tliat the eoni| hc that I'l. Iiai ,iii(l inasmucl ly inadeipiate j»/.< nil iiUs, an taken of her. iside. H.'s liud was held that th(^ eonei tract was unii him to join in 'I'll'' Otilitri" II mo. — J""ergusi 'I'he real es .ifter March -J the time of he iicr during h her without tl iier contracts binding U[)oli iL-ind. Ih. .1. H., by h vised certain r'or life, with S(i')ii after ma I8S0, leaving oame of age ii one of the chi and C in IS7C lieard of after ciiiney her in oincurrence o 5 0. i:.r.3(j.- In 18.'{4. C. to convey to ( if land grantt onveyanee w the usual cert the deed. T, .'(inveyed to laimed. In ^(lns of (". A. if the land U] incnt with th tlie whole lot t(i them until ever, the .sons [lerty, and cut Held, (revers 2 0. \\.Ji5?\ liossessiou or lilt to prevent s. O. ch. 127 which such v Osier, J. A., li 11 A. R. 228. 3. Beilei See Casm 306 II iif it to liis ur (if licixll SllilllfO (if tin- i'\iic;iti(iii, III I that ii ]iur III tlic jiiiwir til IK'CI pt till ii-tcr. .Siiii'l. Ill til M. T. u N'.l wurt- i.mil , iluii^litci- if r ciiiitriut I'l his ilaii>,'litii. ITIlllIf viilu. . I'tv than tli;it SSI, L. vt 1,1, t ill (|iu'stiiiii, iviliy llft'l'llil: lisulllcielit ti^ .'iiiaiiiiii^ iliH |iiii|i(rty -I itraut hail n icy, ami li.i.i (1 that at till B niitiii'i(Mi-l\ :iiia, (Ifnviii:; vrniiu-ihiii : tlic |irii|nity the iluiiatii 11. 'f iif an aiir vahie of tilt that of a I'l ill hat coiiilitiiiii I', llllt MtllI'M «(;,0()() in Ni. 'Il'll |)|(>[ICIt\ yiars liflini', irii'o :--llrlil iiurt lioliiui, II of tlio ,i.'ift the jilaintills itiirt- of thi" III that tlicri' to sliow that r at the ilati- pay the liy kas oliurgi-il. 309 HUSBAND AND WIFE. 310 p. '.M.S. .Sl-C LiAHii.rni:>. :c(l in INTO, age in IsTh ;il W'onu'ii s Ik'lil, rt'Mi' ()(). 1!. ."iSl. igiii'd (lower as not sc|i,'i g witliiii Ii ing the JUS L'oncurreiuf. 1(1 under ox fiifrhi'iOH, 1- ler a writ vi ly for reach iiig the separate property of a married woman. Sue however I'.eenier r. Oliver, 10 A. H. ()")(), (Uil, ptrOnler, J.A. /'>. ScvSiiii/liiiDi V. h'liiitiiii ft III., !) A. !'. 5.'{0, p. t;; /{<■ J>iiii,hi-ni, 10 I'. 11. -iiti, p. :. had independent advice in the matter : ind ina.siniich ii.s the ))ricf seemed imt to lie gross !y iiiailei|iiate, and 11. a|i])eareil to lie fnl'y ''•"»■ ,«/,s nil nfis, and no unfair advantage h.iviiig lieeli tiken of her, the agreement could imt he set iside. 15. 'm marriage took jilare in IS7(!. ,ind the liiid was held liy her to lur si paiate use : - llild, that the concurrence of her hiisli.ind in the cim- tract was unnecessary, nor was it necessary for liim to jniii in the conveyance. /Iri/^Dii •< nl. v. Thr (hitiirh, mill (jiul,,,- /,'. ir. d,. ,} nl., S (). \[. :iSO. — J"'ergusi)n. The real estate of a married woman, married .ifter March "Jnil, IST-, whether owned liy her at the timeiif her marriage, or aci|iiiied in any man- ner during her coverture, may Ik; conveyed tiy her without the concurrence iif herhusliaiid ; and iier eontraet.s resiieeting such real estate an; iiiiiding upon her without the joindei of herhus- hand. Jli. .1. H., by his will dated Aiiril Utli, 1874, dc lised certain property to hi.s daughter, M. A. .1., tor life, with remainder to her children, and died sii'in after making tlu; will. M. A. .). died almiit ISSO, leaving live children, the youngest of w hniii came of age in 1884. Before the death of ,1. U., line of the children, M. J. .!., m.irried one C, and i'. in IS70 deserted hi.s wife and had not lieen beard of afterwards :— Held, that .M. .1. C. could oimvey her interest in the jiroperty without the Liincurrenee of her luusband. lie Cuiiltir it at., s O. J!. iJ3tj. — Ferguson. In 1834, C. A., a married woman, ]iurporteil til convey to one '!'. , in fee, the east h.alf of a lot if land granted to lier liy the Crow n, but the iiiiveyance was invalid by reason of the want of the usual certificate by justices of the ]ieace on the deed. 'J', never took possession, but in IS.")'-' iiiiiveyed to H., through whom the plaintitV laimed. In or about the year IStJii, the tun sdu.s of (A A. went and resided on the west half of the land upon the understanding and agree- ment with their mother that they were to have the whole lot, but no conveyance was executed til them until 1875. During the interval, how- tver, the sons paid the taxes on the whole pro- [lerty, and cut timber at times on the east half : — Held, (reversing the judgment of the Q. \i. I)., 2 0. H. 35'?> that this wa.s a sutlicient "actual luissession or enjoyment"' of the east half of the ' lilt to i)revcut the operation of section 13 of K. ' •<. O. ch. r27 (3G Vic. ch. 18, s. 1-2), by means of which such void deed would be rendered valid. Osier, J. A., dissenting. EUiutt v. liroivit ef al., 11 A. R. "J'-'S. 3. Hedewption of Hunhauir.-^ Mortijaijf. .See Casner v. llaight el al, 0. R. 451. 4. Sfparatf Trmlin;/. In an interpleader issue to try the right tn certain gmids seized under an exccutinu again^'t .\. and il;iimed by 1!.. his wife, it ■•ippeared that since their marriage a store business had been carried mi in the name of the wife, and that fi'e- i|uciit trades and transactions in real est.iti had aisii taken ]ilace in her name, but th;it in nmst of them the husband was the b.-irgaiimr, and it was iiiily when the bargains had tn be carried nut that the wife apjieared in them ; that the husband kept the stnrc bmiks, which she said she did not kiinw much about, as she was no selmlar ; that the liusb.md made nearly all the pni'chases nf stuck, ;i.iid snld gnods, and spoki; and acted as if he were the owner ; that he was not in ree(;ipt of wages, but took what nimiey he wanted out of the store when he ]ilea>iil. and in the transaction out of which the judgment and execntinn arnse under which tlir stock w.is sii/ed, he oiieiicd the negotiation by a letter signeil by himself, referring to the prnpeity he otleied in tr.'ule ,is his [iroperty, and when the b.irg.iin was closed tniik a deed nf the .stole in his iiw ii name, and gave back ;i iiinrtgagc and his nwn note for the b;ilauce due. 'I'he jury, in the face of the judge's charge in favour of the execution crcdi- tnr. fnund that the stuck w.is the |irn|ierty n! the wife, that she did not ai;t fraudulent ly, .iiid that she c;irrieil on business septir.iti; frmii her hus- band, rpon a motion to the Chancery hivisional Court to set aside the verdict, and to enter a verdict for the defi ndant, or for a nonsuit, or for a new trial, on the ground that the verdict was contrary to the evidence and to the direction <'i the judge, and perverse, and that it was against the weight of the eviilence, it was :- Held, tliat the business was not one [irotected by I!. .'^. O. e. \'2't. s. 7 ; that the verdict could not be sus- tained ; and under Itule 3'JI, O. .1. Act and It. S. (). c. fiO, s. 383, it was set aside and judgment entered for the defendant. .Murray r, .NleCdlnni, 8 A. H. '277, referred to ami distinguished. Cinniilii-ll v. Col', 70. \i. I'-'T Chy. D. The plaintiCF, a married woman, carried nil business as an hotel kee]ier, and owned the chat- tels in the hotel. The defendant, her husband, interfered with the plaintitl' in her business by taking the receipts, giving orders to servants, tiiid maltreating the plaintilF. An injunction was granted restraining the ilefemlant from in- terfering in the business, or with the servants, or agents, or removing any of the plaintitl s chat- tels ; — Send)le, that, if asked for, an injunction might also have been granted excluding the de- fendant from the hotel under the eireuinstances. Donnelly v. Donnelly, '.I O. U. (;7.3. - -Ito-se. 5. Joint Liahility 0/ Wife for llushiind'i Contract.^. Where the plaintitT proved a joint wrongful occupation and conversion of the rents and pro- fits of his land by a husband and wife :— Held, that the husband ami wife were jointly liable to the plaintiff, and the iilaintiti' was entitled to recover against the sejiarate property of the wife, for it eouhl not be inferred that the latter waa acting under the direction or coercion of her hus- band 80 as to exempt her from liability. Barker V. We8toveret al., 5 0. R. 116.— IJoyd. ,1 ■■ 4 • « SSI :1k M0 *'* »•• ^iV *S Bi« ■I'* *«•' ail* v> *> i>«> t> ^%. IMAGE EVALUATION TEST TARGET (MT-3) h A :-25 lllllu - 6" 1.6 V e /y. m Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14SB0 (716) 872-4503 4^ iV iV \\ ^ ^> • * i! 11 i! 4 " 311 HUSBAND AND WIFE. 312 I'laintiH'airreLd with J. H. to IniiM a linnsu on ' coitaiii huiil tor .'^SoO. After hiiiltling tliu liou.so liu iliscovLTL-d that the himl belonged not to ,1. II. hut to il. It.'s wife, who. at the time of tlie agreement, was an infant, ami was in no way a party to it. Afterwards J. It. and his wife soM and eonvejed the hind and house to M., an in- nocent purcliaser. 'I'lie iihiintitl' was only paid a poition of the .>'.S.")0, and now liroughtthis action to recover the Itahuice from the wile of .1. !!., or the amount hy whii.'h the lituhling h.ad en- hanced the vahio of the hmd :~- ilehl, that inas- much as there was no property or fund trans- feii'ed or settled u]ion tiie wife that would have heen lialile to .sei/ure hy a ci'eilitor, the plaintill' cinild not recover against her. KincaUl v. Iti'ml it ul.,~i '<■). It, VI. — I'Vrguson. Held, that a married woinan, though married liefore May 4th, IS.'i'l, was not bound by a cove- nant of her husband, entered intij by liini for himself, his heirs and assigns, as lessor of oe'-tain lands, to pay at the expiration of the lease for a i certain maltiiouse which the lessee was to have liberty to erect on the demised premises, though the reversion had l)een assigned to her husband and another as trustees lor her, in such a waj that she had the entire beiieticial interest, and tliough the covenant ran with the land :^Held, also, tiiat aclair) oe belialf of the said trustees for rent in .iri'ear -i ■ t • .lamages for non-repair was not matter of .■ .".-otl' av^inst . '-W; DnKjlu.-, V. J/itlrlii.iijii, I'i A. R. 11(1, p. 'M'J. turned to her husband's liome, but was turned out of the house by him, whereupon the plaintiff again took charge of and supporteil her : — Helil, that the defendant, by turning his wife out of his house, sent her forth as his delegated agent to pledge his credit for the necessaries of lifi; suitable to her position, and that the plaintitf was tlierel'ore eiititle Ai:ainst, 2. M'(/'( .Sithiij III/ Xixt Fi-ieiiil. In an jiction by a married woman commence 1 before the ( >. .1. Act, it was held on demurrer that tlie plaintill' must sue by next friend, and an order was made accordingly. Subse(iuently, and after the [lassing ni the (J. J. Act, the next friend became inscdveiit. (In an application to the .Master in Chambers for the aiiiiointment of a new next friend, he made an order for such ap- pointment, which was atlirmed on appeal by I'roudfoot, J., he holding tint he was bound by the previous order ; that even althougli under the (). .J. Act, Rule ^7, a married woman may sue in respect of her separate estate without a next friend, by liulc 4S4 this was not to aiiply to pend- ing business. ( >n appeal to the Divisio al Court the judgment of IVoudfoot, .J., 10 1'. R. S(>, was alhrnied. I'er Itoae, .1., that there was no evi- dence !o show that the woman had separate estate when the order appealed from was made. Uchsti-ril III. v. A-v/s 5(). U. ■)«!)— C. l*. D. Hisn.vND's 1,1 MilllTY tOK .s AH IKS. Wll Nkcks- The delemlaiifs wife, who had been supported by the plaintill with the defendant's consent, re- H. Bi/ ll'/'/i' ii'jnbusl Hnsliiinil. Hehl, (atiirming the decision of Wilson, C. J., C. I'.), a married woman can iK^t only bring an action against her husband in her own name, but she can also compromise it, or deal with it as she pleases, just as any other suitor can ; and if the pl.tintitV and defendant have agreed to certaiu terms in settlement of such a suit, such contract can be enforced against the defendant, by the plaintill' suing in licr own name without a next friend. And so in the present case where, by way of compromise of such a suit, the parties to it iigreeil that tlie plaiutitl' should execute a pro- perdeed oi separation containing certain cove- nants by her, in return for which the defendant should convey to the plaintitf certain lands and pay certain moneys :-- Held, that the plaintitf was entitled to specific iierformance of this agree- ment : that it was not the sep.iration which was being enforced, but the performance by the dc- I femlant of his contract. Vunlnii v. \'(trilon,Ci !(). R. 7l!l-Chy. U. A woman, married to her husband in 1880 I without marriage settlement, afterwards advan- I cutl certain moneys to him, which she now sought to recover as money lent. She failed, however, 313 to prove she could 0. R. 2'2J During amend, ai ,500, whic hand, tilt employed liuilding t repaymen ,111(1 no a'' amount, transactio his wife auiiiunt 10 0. R. In an upon a div 312 t w as tiinii il '1 the plaintiff lier : — Hul.l, s wife (lilt III liigated agent i.saries of lifi; tliu plaintiff claim against so supporting,' claim can Iv Iginent allow- ;. Iltiijhi .1 V, • In Ordinanj. ■ alimony, put tlic liusbanil'i nance sulisu- imoiiy was tu . 'JO. It. IDS, U^^^T. ieiul. 11 commenccil on demurrer t frieiul, ami ■iulisei|Uently, Act, tlie next i[i[ilicatiiin to [ipiiintmcut . H. 178, and following Harvey !•. Farnic, T) P. I). 153 ; (i V. I). 3') ; 8 App. Cas. 4?i, that the jurisdiction to divorce ilepeiuls uiion the (lomicileof the jiarties. that is of the husband —and that this being Canadian, the Missouri Court had no jurisdiction. / h. I'er Hagarty, C. J. O. — There is no safe ground for distinction between domicile for succession, and for i....'^rimoiiial purposes, or a domicile by residence. //>. IX. Al.l.MONY. 1. W/nii (I'ritiili'il. In an alimony a.tion the defendant in his defence alleged that he had refused, and still refused, to sii])])ort tile ))laiiititr liy reason of her having committed adultery with M. .\ttlie trial it appeared tiiat the plaintill', on being charged liy the defendant with adultery, and ordered to go away, hft his house, thoiigii, before she actu- ally de])arted. he forbail her to go. The defen- dant |iersisted in the charge of adultery, Imtdid Hot attiuqit to [irove it. The ])laiiitill' proved none of tiie acts of violence .■ilh'L.'cd in her state- lileiit of claim :— Held, that tile statements in tile defence, taken in coniie.'tion with the above faits, must be treated as sudicieiit pronf nf deser- timi on his part, and he must be taken to have ilispcnsed with the necessity for the plaintitT otloring to return. Firrii v. J-'erris, 7 0. R. 4'J(). — Osier. The defendant having, at the trial, after the plaintitr.-i i;vidence had been given, for tlie tirst time ofTered to take her back to his house : -Held, that the judgment for alimony should stand over for six weeks to see if tliis offer was carried out, and that the plaintiff was, in any event, entitleil to her full costs of suit. /Ii. 2. Iiifiyiii) Aliiiwin/. Held, tli.it the principle which underlies all the tleeisions is, that the allotment of alimonv pendeiiti^ lite depends upon the marital ri latioii- shii! of the parties existing de facto. The ( ourt exercises a discreti >n in t;ranting or witlilioMing aiimony pendente lite which is regulated by the circumstances of each (?ase. Ami the defendant in this action by his own a 't and conduet having clothed the plaintiff with the re|iutation of being his wife, altiiougli he denied the mariiago, the, decision of the Master awarding interim alimonv was not interfered with. Wn/hr v. H',i/br K) P. K. ()33.— lloyd. ' Held, that a wife was not entitled to interim alimony and disbursements where she sued on the ground of desertion, not alleging cruelty, and where the husband offered l>y his defence ami by affidavit to resume cohabitation with her. Suii/i-r V. Sii'td'r^^Snhlrr V. On; 11 P. R. 140. — Boyd. An order of a Local Master directing the de- fendant in an alimony action based upon deser tion to ])ay interim alimony was a tlii'iiied, tlioimh the wife was in occuiiatioii of the defendant's homestead ; she having established that she was : in need of interim alimony, and the defendant not shewing that she was in receii)t of any ineome i from the farm. An order directing the d(;fen- dant to jiay forthwith inter' n disbursements was affirmed, except as to the counsel fee to be jiaid to the plaintiff's solicitor, who intended to act as counsel at the trial. Ldlnndi v. Lalund'' I 1 1' R. 143.— Proudfoot. i 3. CiMtit. An application to compel the defendant to pay the costs of the plaintiff's soliititors of an ai'tion for alimony. The action was settled before trial, the plaintiff returning to live with the defendant, an. 570; Bradley v. liradlei/, See FcrrU v. l'< rrix, 7 (J. R. 49f), p. 314 : La- londe. V. La/oiuk, 11 1'. H. 143, p. 314. 4. 0/lur Canes. See VardoHv. Vardon, fi O. H. 719, p. 312; llviihex V. AVv.v H ai, 9 O. 11. 198, p. 31'J ; M'l- f uhe live persons rei|uircd for the fornuition of a road company under I!. ."^. O. c. 102. See Hamiltouaud FltiiidionnKih h'oadt'o. v. Tuwuaend, 13 A. K. 534. Danuages recoverable by husband for death o' his wife through negligence of railway company under Lord Cauipbell's Act. See l.vlt v, St. Lawrnirc and Ottawa, li. 11'. Tr-., 1 1 A. I,'. I ; .V. V. sub-noni St. Lainrnre and (Htava A'. IT. Co. v. Lett, 1 1 S. C. 1{. 4'22. Appointment of husbaiuls as trustees for their wives. See McLa'hlln it al. v. i'sbonit et al.; Maijei V. Uxbovne it al., 7 O. K. 297. Upon a petition under the Settled Instates Act, Boyd, C, disiiensed with the examination re- (juired by the Act of a married w (iman interested who lived out of the jurisdietion, but not (Uie »vho lived within the jurisdiction. The Married Women's Pioperty .Vet. 18S4, (Ont. ), does not apply to eases inider the SettUd I'states Act, where the woman had ae(|uired the property betbre the passing of the formei- Act. /A Fii /- /(V(, 11 P. li. 198. -lioyd. day Mrs. C. sold him the north half of the same lot. (.)n the 17th Oc. jber, 1874, Q. soldtoi;. and to L and 11. three undivided fourths of tlie two properties en bloc for a sum of .'$49,(;i2.,"p(i, in deduction of which purchasers paid cash S22,. 24().87'., and covenanted to pay the balance fur (}. to Mrs. P. Mrs. U. was not a party to tliis last deed, and ilid not then accept the delegatcii debtors. In June, 1870, Mrs. U. sued «. et al, hypotheearily for sums due to her on the l from personal liability unde.- the delegation oi payment, but only to the extent of his interest in the south half of said lot No. 4079, and re mained lialile f(U' his interest in the remainder of tiic proi)erty, the amount to be estimated liy n valuation ^ventilation) of tlie south half ol th',- lot projiortionately to the price of the whoi-.- property. Vi'd ce.s v. Perraitlt, 10 S. C Pi. 617. IDENTITY. Identiticatiou of pledged stock. See Caraeyit v. Federal Bank of Cainida, 8 (.*. II. 75. Proof of identity of chattel. See The Slevins. Turner A Burns Fotindri/ and General Manufac- turinij Co. {Limited) v. Bar/uot, 9 O. K. G92. ILLEOAL DETENTION. See CoNVKK.sioN. ILLEcaTIMATE CHILD. See Bastard. HVPO'l'lllX'ATlON. On the 14th Octolu'r, Is74, Mrs. K. s ild |(. one i). the soutii lialf nf the cadastral hu .No. 4079, iu the city of Montreal, and on the same IMPOUNDING ANIMALS. Replevin will not lie against a pouiul-keeper. In this case tiic sliecp winch were im]imnnli'l j were grazing upon an open conunon with the consent of the owner thereof, and were lieiii;: herded liy a boy iu charge of them w ith a vieu to driving them home, when they ^^■ere taken possession of by two constables, against t\\v boy's remonstrance : -Held, that the slice]) wen' not " lunning at large,"" iu contravention of ;i , by-law of the munici[iality on the subject, ami 1 1 it the constables wei'c liabie in reiileviu for i.i|>t)untL'd the dilu- favour l)y (.)., in IiS74, and afttr- a against (J. for ;'27,.Si')().(i8, with id delegatiou df le accoptauLC (if ,' sulisecjuent t.i •laissenient, w.ij irc he could iii money ; — Hel(i. , and ru :he remainder of estimated l>y a uth half ol th..' u of the who] JS. C. It. U17. .See Carneijii Iv. 75. ■jee The Stev' iis. nertil Manufac- 9 U. R. () O. U. 017. - -Ferguson. lm))rovcments made under a mistake of title are not, since It. S, O. c. ',(."), s. 4, to he allowed for as lil)erally as improvements ni.ide l)y a mort- gagee in possession. The enhanced value of a larm, improveil under a mistake of title, is found i)y lie ducting fi'oni the present value of the land, witii tlr' improvements, tiic estimated present value of the l.m 1 without the improvements, plus any incri'ase in v.due from other causes than sucli inipiii\ements. The! occupvtion rent ch irgeable to a p I'son improving land under a mistake of title H the rental value of the land without the improvements. Miinn'w v. LhiiUan, Id I*, it. \1'.\. Hodgins, Mn'itiT in Oriliiiari/. lint see S. C. infra. In lixing an occupation rent to he cliarged again.'t one who had heen occupying land under mistake of title, and at the same time an allow- ance to he ma le to him for improvements, if such occui)ation rent is charged on tlie lull increased value {as it should he in such case), then interest should heallowedon theactualcosts of [)ropcr out- lay for lasting inii)rovements as an olfset. Man- ner of taking the account and contra account in such easi's pointed out. .i'. (.'., 1 1 O. It. .")20. -Boyd. In this action it was referred to tiie master to take an account of the rents and prolits received by one who liul occupied land under mistake of title, viz. : as assignee of a devisee the devise to whom was void, and to lix an occupation rent to be paid hy jiim, and also to fix the sum to be al- lowed to him in respect to imiirovements, and to certain legacies cli:irged by the will on the said land and which he liad dischargeil, and also of payments made liy liini on account of taxes, and it apiiearing that m discharge of S'uie of the said legacies less than the f.icc value thereof had been ])aid : — llidd, that in computing interest on the sums so [laid in res|)ect of the Icgicies, it should only be coiu|)Uted on the amounts actu- ally paid, and not on the face value of the lega- cies, and further tiiat the account should be taken together so that on one side would ajipcar the dislturseinents forimi)rovenients, legacies, and taxes, and on the other the occupation rent. /'». See ■Shaiiitjiiu v. S/iaiiaijitii, 7 O. It. 2UJ, p. 2i;?. IMPROVIDEXCE. See FUAID and MiSREPRESENTAriON. INCOME. ASSE-SSMENT OF. — Ste AsSESS.MKNT AND TaXES. INCIIEASINO STOCK. See CoRi'oiiATioNs. IXDEMXirV. See (iuARANiEi: and Indemnitv. IXDIA.V LAXDS, Application to i^u ish Ijyiaw regid.iting aiii- niils laiumug at 1 ii'gc in mu lieipalitics in wnieli are situate I ndi in lauds. See /ii I'Milliii/ ami /'he Miiiiii'i/i i/ ('iiKii-il iif the Tnwii.-ihtii 'if itiinii- dil'j'!, I) O. It. .')7.'i. -lto.se. Held, that the ilefcndaiit, who was a \'i.sit- iiig Superintendent .iiiil ( 'ommissioner of Indian .uiiirs fiM' the IJrint .ind Hifiiminl lt„'S!rve, hid jurisiliction under the statutes relating to Indian all'.iirs to act .IS a justice of the pe.icc in thcmitteroi a c. large agiinst tiie pliintilf for unlawfully treiptssiug up iii .uid removing jor I- »^ • J! SKSS mm "'' S!. *" nh. »,, ■ Ml* tmv turn • la "'I ITI*. «!■ Mil 319 INFANT. 320 I I I i , I I • I • il < I 4 I 1 1 I < I I I « I < I a i 1 I I II ij it wood from the Indian Reserve in the county of Brant. IJunfer v. Gi/kison, 7 0. R. 735— Q. B. D. The prisoner w.as indicted for Larceny under tlie Indian Act of 1880, 4.3 Vict. c. 28, s. ()6 ( \)nm. ) .111(1 was conv icterl :— Held, (Wilson, C. J. , dissenting), that he ouj^ht not to have been con- victed, liecause, i)er Armour. J., the wood, the subject 01 the .alleged larceny, was not in the absence of satisfactory information, supported by affidavit, " seized and detained as subject to for- feiture " under the Act ; .and because, per O'Con- nor, .1., the aifidavit reijuircd by sec. C4, had not been made, and was a condition precedent to a seizure. Per Wilson, CI .—Sec. (i4 cannot apply to trees found by the oHieer of the department in the act of Ix'int; removed from the lot on which they liave been wrongfully cut, or where there can he no (lo\d)t they have been unlawfully cut, for such an application would make it im- possible to eU'ect a seizure in such case. lit'(jlna v. Juarman, 10 0. H. WK).— Q. B. D. Held, affirming the judgment of Boyd, C, 10 O. R. 190, that lands ungranted upon which In- diana have been accustomeil)lic hands, and are under the B. N. A. Act now held in the same manner by that Province in which such lauds are situate as before the cf)nfederation of the several Trovinces. Jic(jin(\ v. The St. Cath- arines ilil'iiKj and Lttvihcr Co., 1.3 A. R. 148. INFANT. I. Powers of. 1. To Devise, 320. 2. To Act as E.ceculor, .320. II. Cl'stody of, .321. III. Glardians and Trustees, 321. IV. Infant's Estate. 1. Maindnance, 321. 2. Sale of, 322. 3. Othn- Ca-tes, 322. V. Actions and Froceedinos By and AfiAINST. 1. Sidiiij as ExKCiifor, 322. 2. ^Wt Friend, 322. 3. Costs of Official Guardian, .323. VI. MiscFM.ANEors Cases, 323. VII. iLLKcilTI.MATE CHII.D— .See BasTARD. VIIi. iSEDvrnoN of — See Seduction. INDIANS. I. Half Breed's RKans — .SVeHAi.F Brkkd's llKillTS. II. Indian Lands — See Indian Lands. III. Sai.k of" Liquor to— .See Invoxicatino Liquors. As to right of electoi's on Indian lands to vote upon petition for Canada Temperance Act, 1878. See J^eijina v. Sharelear, 110. R. 727. On (R. 8. O. c. 1()(), s. {>), o ..y removes tlie disability of covur- ture in respect to wills, not of infancy. I'e Mm-- ray Canal — Lau:son v. Poivers, G O. R. G85.— Boyd. 2. 2'o Act as Executor. The 6th sec of 38 Geo. III. c. 87 (Imperial), prohibiting tlie grant of probate to infants unckr the age of 21 is in force in Ontario, either as .a rule of decision in matters relating to executors and administrators (R. S. O. e. 40, ss. 34 ami 35) or as a rule of practice in the Probate Court in England (K. S. O. c 4(), s. 32). Merchiuiia Hank V. Monl'ith, 10 P. R. 334.— Hodgins, Mas- ter in Ordinary. An infant cannot lawfully be appointed admiii- istr.ator of an estate ; and therefore a grant of pro- bate or of letters of administration to an infant is void, and confers no office on, and vests no es- tate in such infant. ///. An inf.ant had been .appointed administratm' of an estate, and various suits liad been brougiit in his name on behalf of such estate: — Held, that being an infant he was incaimble of bringing suits in his own name, or of making himself or the es- tate he assumed to represent liable for the costs of such suits. //'. The 57th and o8th sections of the Surrogatf Act (R. iS. O. ch. 4()), protects ijartie bona liilc making p.aymeuts co an cxec.cor o.- administratdr notwithstanding any iiiv-ilidity in the proliateor letters of adiuiiiistratiou, I)ut tiu'V do not protect payniL'iits made to tiiird parties l)y an infant as suiiiiiig to act as admiiiistratoi- tif tlie estate. /'<• 321 An infant ti.rt is iifit /V/TM, 11 ( A return faiits, in wh li;ilic,as eorji (ilijurt of con t^p liim. Til r.iidir twelv Hill, sec. 1 ; null must b( iin- common HitJ! regard tiio return w :i !'. R. 132, l.'fiiiii-f, 1 1 1 III. \ii order li s. l;' (Oiii recL vc il nire entitlci n-iiou as trii luity ill doll sii I'x parte ; t lit security Held, tjiat jiactice of tl ht(i. i;. 685.- (Iinperiall, infants under io, either as a to executors [0, ss. 34 and robate Court Merclnuit.i lodgins, i/f(.-- nted admiii- ^'rant of pro- to an infant is vests no es- administrator )een broujrlit — Held, that )ringing suits iself or the is- for the costs he Surrogate tie l)ona tide administrator he proliate oi' lo not protect iiu infant as 10 estate. /'<• 321 INFANT. 322 An infant wlietlier ecutor or executor de son tnrt is not lialdc for a devastavit. Yokk'J v. I'ln-ri", 11 (). ];. r)!l7. — I'roudfoot. 11. CfSTOPY OF. A return was made \>y the niotlier of tlie in- liUits. in whose custody tlu'y were, to a writ of liulieas corpus ol^taineil by the father witli the (il.jrrt of couipelling tiie delivery of their custody to liiiu. The return stated that they were all i;iiiKr twelve, the age mentioned in !!. S. (>. ch. Kill, sec. 1 : — Hehl, upon demurrer, that the re- tuiu must be considered in the light, not only of III!' eonnnon law. but of the statutory jirovisions witli regard to the custody of infants, and that tiie return was sutlicieut in law. lie.Murdock, |i I". R. l.T_', explained and followed. J'r Siniir/ Mill", II 1". I!. 4f<-2. — Ferguson. rule that tlce principal is not to be encroacliid upon, unless for un;'.voidable I'easons falling little short of nel•e^sity ; and the court will not sano tiou a higher allowance for ]iast expenditure than would have ))een awarded for maintenance if a pi-ioiajiplication had been made therefor. Cnnic V. Criiiij, 11 I', l;. •_'.•{(;. — I !oyd. U'here the aggregate amount of piiucipal of the estate of live infants was S| I.'J.IO, thi' master allowed their mother S!l,.')(!4 for live years' past maintenanie, but l?oyd, ('. , on appeal, re>iueed the amount to !?ti,<)00. //'. 2. Sah'or. Certain infants' lands were sidd undei- an order which apjieareil uptju its face to lia\e been pre- sented under the statutable jurisdiction oi the Court of Clumcery relating to the sale of infants' I estates : 12 Vict. e. 72, III. (llAl;l)I.\NS AM> 'I'UISTKKS. An order having been made under 47 Viet. c. '2n. s. V? ((Jnt.), for the appointment of a trustee ti rect ve insurance moneys to which infants Hire entitled, the Master in Ordinary named a I'll: on as trustee, and re(|uired him to give se- rin ity in double the anu)unt to be received. On ail ex parte appeal the direction (tf the master ...t security should be given was iillirmcd, and - Held, that it would be contrary to the uniform nietice of the court to api)oirit any (Uie as the i>todian of infants' money, whether as trustee i guardian, without re(iuiring security for the liiper dischaige of his duties. Jt'c Tli'iii, 10 I'. K. 400. — Hoilgins, Maxli r hi Onliiuir;/. — lioyil. A foreigner was appointeil trustee <'nr infants v.iiilcr 47 N'ic. e. 20, (Out.) to receivo insurance luiiiieys, without being rei|uired to give security in this province, on its being shewn that he had ;i\en security upon his appointnu'ut as guardian, i'the satisfaction of a court in tlie state where ■ :um1 the infants resided. 1'he insu.an 'o com- ny were discharged ujion iiayment to the trus- i' of the moneys in their hands. J,'i- A iiilnir.i, ['. K. 1 !)!).— i-'erguson. An application for an order sanctioning the ynient of a bequest in favour of infants to their iither, who with the infants resided in a foieign •tite. and had thci'e l)efeii appointed guardian by Surrogate Court, was refused, and the execu- t IS were ordoied to pay the amount of the be- iwst ii.to court. He Andi'ew.s, II 1'. It. 1!I0, i;>tinguished. L'l' Pan; II I'. R. 301. — Iloyd. I'avment of infants legacy to guardian. See Ihi'j'jiiii (■( ill. V. Law (I (t/., 11 O. R. ■")().'). S. O. e. 40, s. 7t). The petitiiui and order were entitled in the nuit- ter of the infants, and tht^ subse(|uent proceed- ings were taken as provided by the general orders of the court, the order setting out that what was being done was because it was bencticial to the infants, and the conveyaiu'C was executed by the referee for the mfants. -\ subsequent purchaser objected that the order for sale did not ," II I'. K. 4!I4 — Fergo.SGii. See also I'oirrll y. <_'al,l,i- it al., 8 O. R. 50."), p. 2S!». See also Subhead III., p. 321. V. Actions and ritoci-KinNus 15v aM' Ai^ainst. 1. Siiiii'j IIS E.ri'riifiir. .Sec .ViirJiniils UiDil-v. Mimtiilh, 10 P. R. 3;U, p. 320. 2. yo.rt Frii'uil. Where one commenced an action as next friend to an infant to restrain waste on the infant's pro- •:i* z\ ■a ;a ii»- «<■ IMHI ;a -twm (nut i»» •«K4 N" lit ■<• iiS lll> :i» I '"' Hit i • a I « i I ti II ii •i> ii iij IS '« :j 'U '1 ;f ■a • « t u In 1 r« >« is n 1* ( ; 323 INJU.NXTIOX. 3L'{ party without iiiiy iKitice to tlie ilefondant, iiiul i without luiy iiivt;stii,',itiou :in to thu good nnisous ' which the liui'fuil.iiit iiml tor iictinj,' in thr uiiiii- iieicoiiiplainucl ot : — lii'M, tliat tliu next triciid .shuuhi [pay thu coats. Mill v. .1/,//, S (.). it. .'{TO. — Doyd. All order was niaih; iiiiK'iunit'ying tlic noxt friend ol' tiiu iiil'aut iilaiutill's out of liieir iiioiity | for the eosts of an aiipeal to tlie Su[ueiue Court ] of Canada, where the apiieal was advised liy more tiian one ecjuiisei, and one of the jiidges ot the Court of Appeal liad dissented from tli.; rest, i (\)tfiii',i/i(tin it III. V. CvHiii'jIiinn, II I'. !!. Ill — I'Vrjnison. See Uni-i-.tt v. I!nl„ rU, 10 A. K. I'lod, (/(/■/•((. 3. fusts ii/'Otllciid (•'uiinHiin. The ollieial guardian's costs of defending this action on liehalf of an infant defendant were , which enacts that an informer sliall sue either in ]ieisonor hy attorney, is in fiuce in this iirovinco ; and, therefore, the ]il:iintitl', an infant suing hy his next friend, could nut maintain an action for a penalty under the Flection Act. The aiipellant having omitted to take this objection in the court Ijelov, this court nil allowing the ajipeal on that ground refused liiin his Costs of appeal. O'arntl v. liuhert/i, 10 A. li. tioU. A [lerson who sues U>r a jicualty given by the Kluctiuii Act is a common informer, lb. INJUNCTION. I. To RixniAiN Lkcai, riiocEKOixcs, 324. II. 'i"o l;i:sTHAlN NlISANCKS. .3'J.">. III. Til IIKSTKAIN ThESI'ASS, 3'_'."). I\'. Til KivsriiAiN Inikimi.ukmi-; with Kam .MKsrs, '.vm. V, T(l liKSTKAIN IJUKACll S. .Mil. Ukkach oe Lnminiiion, 328. I. Ti Iestmain Leual FKo('Ef;riiNtis. The trustees of .M., deceased, who held th' legal estate in land in trust for sale for the [Jii: pose of a reservoir, sold to one Z. , in lSt"i4, liortioii of lot ten, Niagara Falls .Survey, for tlit purpose of a reservoir, the intention being tonia a line of pipes over the residue of said lot t Viagara Falls, where a pump house was to li constructed for the par[i(ise of forcing the wati to the reservoir, and thence it was to be distri bated by (lipes over the town of Niagara Fall;. T. B., as well as I'l. li. M., the acting trustc agreed to extend this lease for ever at a rent to be fixed every twenty-one years. The tni- tees subseipiently sold the land in ijuestioii t' S. li., son of T. B., whose place, it was umltr stood, S. B. was to take. T. B. having the rii;ii of purchase under his lease, and having expeiii large sums iu improving the property. S. B ttnised. in 1. K to z. !iH farther 1 i ir w.is, b ,11 IS. li., n |.:,iiiitiir, wh ,:/L' (left'iid, . liiist then ;, K. 15. M ■i^tces iiiil i.ivcd to it. iiiisc from T. willed asag: >i;4. .3. th ■ 'Viiiauts I if ;>iii and con ■ liiianent a iilic beiieli IK' of tlie ) '.'^ having 1 tiicy were ei, i.tiiiii, and t : 'Waljle at a iV the regist ■'., 8 o. j;. After a v.'ii ' -hlcllt of ( )| ■Mijiany in t 'i iiltaching I as tlie prop! lilt represei I tly solvelK uy and mat; iii.it but for i tikoii procee iiavo enabled «iii.ling-up o iiijiiiietion to ;iis action in ".Kit other cr ivsideiits of t tiiu jurisdicti iiig against tl iise could no Kx parte Ra "aylor, 8 Cliy iijuiictiou, wi subsequently nmrtgaged to a certain company who sold under foreclosure proceedings to ti- plaintitl'. The land through which such pipt were to run had been deviseil by one M . to ]•'. 1 M., his wife and three others as trustees. 1 1854 li. H. M. alone leased it to T. B. for four teen years. In 1854 T. B. leased a strij) 8 k< wide by GoO feet long to Z., for the purpose > laying his pijies therein, for ten years, atannii ual rent, and both T. B. and E. B. M., in tli year, by separate instruments, covenanted wii S. B. that she or T. B., if he should purclw* the land under a provision in his lease for tki purpose, would continue the lease to Z. I twenty-one years, perpetually renewable, at rent to be fixed by aibitration. Z. construct the reservoir, &c., and laid down the pipes 1S54, and the town had been supplied by tli: ever since. In IStit I']. B. M. gave a fiirth lease to 'J'. B. for seven j'cars, and iu IStiS ? conveyed to .S. B. t!ie aj)pointee of T. B., L father. S. I>. mortgaged to a loan conipin; who sold under a decree for sale to the plaiiitiJ stating in the advertiscineiit that it was suliji to the right of the defendants, who rejiresciit' Z., to lay tlieir water pipes under the lease h\ I"!/ (Limileo II. : C, the owi one ]ilace by lined by the wshed the I'lKStruct a br o.uss betwee I' clfect of c mill of making. i.'s laiul stajj i-iicofi. was ■' compel hini I'lve that pa • Clutjimaii, See a 111. In 1883 .M. iiveyed half uu same by u \-2' 3LM S'.n. •). ■ii Willi h.\st;- (il'VKICIIT— ,S'. I'ati-.sts— ,S. ■:,ib INJUNCTION. 326 IiK Mailks— iS'.. Waste. IONS, 326. W8. lOCEEDlNGS. 1, who luKl the iule for the {iw: o Z., ill isr)4, i Sui'voy, for tlit tioii huiii^ to I'll: lo of sail! lot t louse was to l oi'ciiig tho Wiitv vas to bu disli; f Niagara Fall: acting trustic ever at a I'eiit.i! irs. The tni- T. 15. to Z. After the expinitiou of that lease ,,1, further lease hail been exeeiiteil, but SI- a \ ir was, by agreement, paiil as rent to '!". 15. ,1! 1 S. 15., until the title beeanie vested in tliu |.l.iiiitiir, who refu.seil to accept rent or to reoog- ,.:,e ilefemlaiits' riglits, ami brought ti'espa.ss .iiii?,t them :— Held, 1. 'I'll it the lease of IS.'iO iy K. 15. M. alone was not Idnding on her ci.- ;;ii-tces unless they could be shewn to have i.iLcd to it. '2. 'rii:it till' right of Z. to get a iiiscfroni T. 11., niiiK-r therovenaut of iS."i4, cmi- :. lined as against T. l<. under the second lease of i^:i4. ,'5. tliat the defeiidauts having, under the , viiiants of T. 15. and l^. 15. M., taken posses- ..;,iii ;iiid eon.itructed the works, which were of a |.iiiianeiit and expensive character, and for the |iiil)lic Ijeiiefit, and having [laid rent up to the ;iiiic of the plaintitl's aeipiiiing title, and all par- ;iis having had notice, and made no objection, tiicy were entitled to an injunction staying the :i.tiiiii, anil to a lease for twenty-one years, re- !.. wable at a rent to be fixed by arbiliation or ' . the registrar of the court. J)ar'ts v. Li iris i( \, s O. 1!. 1 -t,). J{. I). Alter a winding-up order had been made 1'., a ;r>iilcnt of Ontario, brought an action against the I'.viiy in the State of ,Micliig:m died having devi. W. 1^0. Fer- guson. See /;-// T< '■ /./fill.' Co. V. Il,ll,ril/r E'tclrir l.'i'jh' Co., 1'.' (). I;. ,"i7l, ;»/',y(. e, it was uuiUr lavin-^therinii: iiiiiaiiy in the State of ,Michig:m, with a view I attaching a steamer wintering there, which «:is the property of the company. It was shewn tiiiit representations that the company was per- tly solvent ll:iil been m:ide by both the seure- :,iiy and managing director to I'., and I', swore tiKit but for these reiireseiitatioiis he would have [ikoii iiroceediiigs before he did, which might iiivc enabled him to obtain a judgnieiit before the 11 liiigup order was made. In an action for an iiiietion to restrain P. from proceeding with i.is action in Michigan, in which it was shewn i.i:it other oretlitors of the company, who were Rsidents of the United .States ana so not within tiio jurisdiotion of the court, were also ])roceed ; against the .steamer, it was : — Held, that this 1 ill (luestiou t< ii.'je ooukl not be distinguished in jjrinciple from x parte Railway Steel and Plant Co. — in re Liylor, 8 Chy. 1). 183, and the continuance of the aving expeiult iiijiiiiction, which had been granted ex parte, was jroperty. S. B Mused, lam Lake SuiJerkir Satire Coiqmr diiit' ertain compiuiyHi («// (Limited), K O. K. '277. — Proudfoot. jceedings to tb ■liich .such pipi one M . to F. 1 as trustees. 1 o T. B. for four ed a strip 8 fd the purpose years, at a in ii 15. M., in till covenanted wiii should purclw! lis lease for tlu lease to Z. f renewable, iii Z. construct wn the pipe-i upplied by tli' gave a furth mil ill IStiS ^ ee of T. 15., 1 I loan coiuiriii;^ e to the plaint- it it was .sulf who represent er the lease fw l\'. To i;i>ri! \iN lsrKitn;iiKNci: wirii Ivvsr.- MKNTS. An interlocutory inj unction having been grant" ed to restrain defendants, who were carrying on liusinessin partneiship as an ['Electric Light Com- pany under license from a municipal corporation, from running their lines iii such a way as to in- terfere with the safe and ellicieiit working of the business of the idaintitrs, an incorpoiated Tele- phone Company, also licensees of the eoi'iioration, under authority granted two years previously to the defendants' license: — Held, that, althoiiLth the circumstance that the plaintill's were in pos- session of the grouiii!, and had their jioles erected about two years before the defeinlaiits juio \\\) their poles, did not give tlieiii the exclusive pos- session or right to use the sides of the road on which they had phiced their poles, yet, their possession being earlier than that of the defeu- dants, the defendants had not the right to do any act interiering with or to the injury of tlia plaintill's' rights. Held, also, that iinlependeiitly of the provisions of K. S. I), cli. I.")7,sees. ottaiid 70, as exteiiiled to Klectric Light Coiii])aiiies, 45 Met. eh. 19, sec. 3 (Out.), the plaintitls were entitled to relief on the general ground upon which [irotection and relief in eases of this kind are granted. Qiuere, whether defendants were liable to indictment. Bill Telip/iomi Cu. v. Belle- I'ille Elect rir Li;ilil Co., 12 0. 11. 571.— Wilson. See (•'(inliiiir v. Chapman, d (.). K. 272, p. 32.''i. II. To Restrain Ntisaxces. I'., the owner of two lots of land divided in '/lie place by G.'s land, and in another by a bay lined by the waters of the Rideaii Canal, which Mslied the shores of all these lots, began to instruct a bridge between his two lots for easier icess between them, which bridge would have he elFect of cutting olf (J.'s land from tlie canal, uiilof making the water between the bridge and 's land stagnant : — Held, that upon the evi- iiiicufJ. was entitled to an injunction against C. I eiiiupel him to desist from the work, and re- ove that part already constructed, ilanliner Chajiman, 6 0. li. 272. — Ferguson. See also Sub-lK:ad IX.., p. 326, III. To Restrain Trksi-a.ss. Ill 1883 M. W. being seised of certain hinds ■u\cyed half tliererf to(l. \V. in fee, describiiit I I.K. Ti> .MuMcir.vi. Corporations. I The defendants constructed a number of drains ill their town, discharging into a creek riinning through the lands of tlie idaintitF, which drains conducted a ijiiantity of luiiie or salt and refuse i from salt manufactories in the neighbourhood , hito the creek, and rendered the water liltliy and j uuHt for drinking, and also corroded the machin- i ery in the plaiiititi's woollen factory. And the defendants, having passed a by-law, to deepen the said creek, threw down the plaiiitifl "s fences, entered upon his land, and threw up earth from |tliebediif the creek and left it there :llelii, 1 (alli.-niing the decision of Proudfoot, .L,)that the drains not being constructed under a by-law, the ))laiiitiir w.i.s entitled to maintain an action for : Ins injury sustained, and for an injunction, and was not compelled to sue those who had charged the otleiisive matter into the drains, imr UB same by metes and bounds, aud afterwards j to seek his remedy under the arbitration clauses '« SI 31 •K'k a i|Mk • '% wm a *m imt .at. am W" w. M<> ■>'• «i! |»l| il«R' nui m »'« «>• m.^ «<■ U* Ml •*■ 327 INJUNCTION. 1 t 1 • .'1 li i! 1 • 1 il !« 1! II 'It 1 * i« II HJ M IS M i« M ifi 1 < 14 1 t '« i « 'A i t <« < a '* 1 1 i3 II U M i: 1 » i * 1 h at 1 1 a < 1 fa H IS M lit 1 » I* 1 1 •» • 1 :« 1 i nil • 1 1« t * 1 1 IK of the Miiniciiiiil Act, nor to icsort to niiuulfiinns to coiiipfl ln'tti'i ilraiiiMyc. WiuLJijukukI y . Tlif Cnr/i ii-iitiiiit I'/ llii Town of Si ((futih, (j ( >. It. ilDt). — Cliy. \). W'lioii M. In'ou^'lit action for an injmiutiou against ii niiiiiici|i;il coi[)(irati()n for that hy rea- son of certain ilraiiiagc work constructed Ijy * thcni tiifj (lefcnihints liad caused an increased •liKintity of water to llow into a creei< running tiirougli hia lands wiiich were situate in an ad- joining to\vnslii|), and wiiich had conHcijucntly iieeu llooded and damaged, partly from the access of water sent into the creek, and partly from the increased velocity imparted to the llow of water into the creek : -Held, that M. was entitled to an injunction lestraining the increaseil lliiw of water into the creek, and also the increased velo- city, and to a reference as to damages, and that he was not hnund to proceed liy way of arliitra- tion under -l(i \'ict. e. 18, (()nt.)ss. OlKt, ,V.)i, Init was at liherty to seek relief in the nrdiiiary way hy action :— Held, also, that the fact that the liy-law umler which the said drainage work was done liad not lieen ipiashed, diil not prevent the plaintiir from hringing this action. Malntw The. C'lirjKjrd/ioii of the Towimlup of Merita, 9 0, R. > Gil— Chy. D, In jiursuanee of the powers coiifcr?'ed hy ss. 5")! and 553 of the Municipal Institutions Act, R. S. (). e. 174, the council of the defendant nnuiicipality passed a l>y-law authorizing tlic [laving of 1'. street with cedar hlocks, which : work was proceeded with, l)ut executeil in such j a niaiuier as to cause water to Mow over and rest u])on the lamls of the i)l:iintitl' ; — Held, allirm- , ing the judgment of I'roudfoot, d., who found that the work had heen negligentlj' performed, that the plaintilf was entitled to recover the amount of ilamages sustained hy her, and to en- join the defendants from further t)vertlowing her land ; and that in cniiscijuence of such negli- gence her proper remedy was hy action ; not hy a proceeding under the statute for compensation. Mrdarviij V. Till' Cdriinratkin of t/ie Tuirii of \ Slrothroij, It) A. 1{. G;{1. ()n a motion for injunction hy W. a rateiiayer, against a town corporation, to restrain them from paying for a site for a ])ost-oHice, it was shewn that a vote of the ratepayers had heen taken as to which of two sites (one owned hy the town and the othir hy one McA.) should he! chosen, that \V. laid taken an active pait in sup- port of the one owned hy the corporation, and I the majority of ratepa^'crs had \oted for the: other. It was contended that W. was estop])ed \ hy his conduct from maintaining the suit, and that McA. and the individual memhers of the corporation should have lieen made parties. \\ . \ having denied that he was aware that the site chosen was to be paid for hy defendants, and no sufficient proof of that fact having heen given : — Held, that he was not estopped, and for the ]>urpose of the motion, that altliouyh McA. and : the members of the corporation might not, if joined, have been considered improper paities, still they were not necessary parties, and the in- ; junction was granted, W'lill.nri'. \, The ('-./Mir-. filiiDi of the Toirn of Ormii/cville, 5 (J. K. 37. — i Ferguson. j Held, that under 45 Viot. o. 20, s. 1'2 {t)nt.). the corporation of one municipality cannot erect , or establish a small-jiox hospital within the limits I of another, either of a temporary or a perniann: character, without the sanction of the corpi.i,, tion of the latter, and an injunction was grants ; to restrain the same. 'J'/ir ('orjiiiriifioii m' •', 'J'oiriishi/i of L'/'r.illii/liliiini V. Thr Corfioni/'i',,, ,i Ihi) Town of IlrockrUk el id., 10 (). It. ,S7J IJoyd. Ivxempting nianufacturing ostahlishnients n taxation. See .Vcn// v. The Coriiontlioii oj 'J'i\ b,trf--lioyd. Tlie defeiu I" iiijiinctioi itiiiu explai riiipt. It aj -ts. and the dr imposed 'iiilition of y, 9 O. R. "^te McGur I Siruthroy, The plainti hi' defendant :n, after paj Hix L'ontainiii •i value ti (111 used for s tiiided to t; «iiig to illni uks afterw : box was 1 :iny neglig. 111.' the judi^ Ltiatiff couli , R. 63. ■■^ee yenxoi (Jl. See liA See Verratt •V'^ y (ir a pennaiu i: 1 of the c(pr|inii, 'tidii was griiiit' ; >ri)i)riifiiiii I'i f!., 'ic Curjllll'ltlillll :! 10 (». It. Trl . al)lisliiiU!iitstY unitioii of TV- 'iiihiru/ioii Cu. i. SO, p. 21. I Mi. )iii;ui, cnrritil ■ il owiu'il till' cli.r lilt, her hushaii. . her business ii rs to servants, :iii n injunction \> ;iiit from intti'li ervants or a;,'iii; 's cliattels:-' Sii, iietion might iil> Hi ilefeiidaiit fi'i ices. Douitdbj: reil at the heaiiii, lined give tlic st ;W, s. L'G. peiidii:, 1,1, all prooeediii: y virtue of soi'. '. 1 ; and a writ ' )e obtained, in n of non-compiiai; /'. Hamilton aii followed, anilii! bU, 29 Ciiy. i:; ( (;/ ilie Tufi' .Ifoot. red in an acti' iself and the otii ery by the Cdip' railway eoiiiiwn lamination of t ly ineonipeteiit : vas only intercstr I where he sw^: tns named to lould the c:ise . ant to speiiil s: is own right iui ow w\io instniot ': v. St. Catlniiii' 0. K. 673, 11. ": UNCTION. lefendant for ii ich contained tl INSURANCE. 330 liine : "And this court doth further order and uice that an iMJunetion bo auanled to the liiiititl' iierpetually restraining the ileiundant, | , sirvants, workmen, and agents from tres- 1 ii--iiig uiioii the lands of the plaintilV in tiiCj leadings mentioned," the trespass eomplaiiu'd i : Kiing two walls built by the defend'int on' ;r iiieliea of the plaintill's land, it was ob t, tid : I. That the suit was revived wliih' iiiidiiig ill tile Court of Appeal iiy an order ,.;iidfroin the jiivision of the lligli ( 'ourt of ;.ti"e appealed from. 2. That no eertitieate of l.f Supreme Court (which had in substance | iiriiied the decree) had been served ; ami .S. j hat the notice of motion 4— Moyd. Tlie defendant was committed for breach of I ■ iiijuiicti. Slittii/ori/ Couililhins, (a) V: iiiiil Stippris- sioii of Fuel -I III/ /iixiirnl, 344. 3. For lii'in'jil if W'ifi' iiml Chi'dn ii, 345. V. Administhatiiin or Insihanci; Cum- I'ANIKS' Dki'osit, 34(). VI. WlNDINi; 11' CclMI'ANIF.S S'cC CiiliroKA- TIONS. 1. (li.NI-.KALI.V. A company incorporated by a I'roviiicial Legis- lature bathe business of insurance, possesses the same capacity and franchises within the juris- diction creating it as a company in'.'orporated liy the Imperial or Doininioii Parliaments ; and may enter into contracts outside the province wher- ever such contracts are recognized by comity or otherwise. Clurb v. I'lilmi. Fin /lis, Co., 10 F. It. 313. — llodifins, Mitsti r in Onlinani. See 6\ ('., (JO. U. 223. Taxation by municipality of premiums of for- eign Insurance Company. See Thi /'lioiii.i: Ins. Co. of Loiiilnii if III. V. yVc (.'or/iondion of Ilie Citi) of Kiinjsloii I't III., 7 O. It. 343. as:! » -'■ f 3li Hi. ail, :i£ s; twi * •;• '■I Mia 'ay 5<» Ml ^IP 931 INSURANCE. • » II 1 1 IS IS Ml If :i{ ,( ..: 1 1 .• II M ii (i m "t i\ 1* !' 1 1 ,4 1 J i« • n i« 1 3 3,", Appointment of tnistcc tf) n'ceivc insnrnnco ' nioni'VH for iiifiiiit — SLiiiritv. St.'u /.'-' '/'//(';', 10 I'. II.' nm. Kxiiininatirn of Inual iij,'oiit for purpo.so f)f (lis- (•ovc'i'v. ^I'L' f'liriiii/ V. T/ii' l.oiiiliiii MatiKil fin' Inn. (';,., 10 I'. K. (U'.'. J I. I'liii: Insihanci:. i I. Ginerdllii. \ 'I'iin Fire Insiiranco Poiiiy Ait, I!. S. ( ). r. !()•_', (loi's not apply to propi'ity outsido of On- tiiriii. L'aiiK run it al. v. 7'/ic ('aninlii Fire diid' Mariif Ins. Cv., (J (). U. .SltL'.—Oskr. Hold, tliiit tiiu nicMsnru of diiinagcs iLcovcialilu liy tenant for life di' tlio iiLsurud pioiuisus is tlio lull Viduu of siuii ].i'(;niist'H to the extent of the sum insured. Cn/i/irc/l v. Staddnmn Firv and Life Ins. Co., 11 S. ('. l;. 'l\'l. Seo (,'ori)i(/ v. 'I'lu l.i>n,lun Mnltial Fin- Inn. To., 11 (>. 11. s-J, p. .'i.'iT. 2. Inxiirahk Inlcrott. J., the manager of appellant's lirni, insured the »touk of one S.,a dehtor to the linn, in the name and for tlie beiietit of tlie ajipellant. At tlie time of cH'eeting sucli insuranee .1. rej)rc3ente, one year after its issue. ( )n I'ith .January, 1877, the bill of sale to .]. was dischar^-jil and a new Iiill of sale given l>y S. to the appellant, wiio claimed that the formerhad been taken by ,J. as his agent, and the execution of the latter was merely carrying out the original intention of the parties. The stock was deiitroycd liy tire on Sth March, 1877. An action having been" brought on the policy it wa.s tried before Smith, J., without a jury, and averdietwasgiveufortheplaiiititr. The Supreme Court of Nova .Scotia set aside this verdict and ordered a new trial on the ground that phuntiti' had no insurable inter-j^t in the property when insurance was eflectjd, and that no interest sub- sequently acquired wnuld entitle him to maintain the action. One of tlie conditions of the policy was, " that all insurances, whether original or renewed, shall be considered as made under the original representation, in so far as it may not be varied by a new representation in writing, which in all cases it shall be incumbent on the party in- sured to make when the risk has been changed, either within itself or by the surrounding or ad- jacent buildings." On appeal to the .Supreme Court of Canada: — Held, 1. That the appeal should be heard. I'Jureka \^"oflllen .Mills Co. r. Moss, 11 S. C. It. ill, distinguished. '1. That the appellant having had no insurable interest when the insurance was etl'ected, tlie subseipiently ac- (juired interest gave him no claim to the benefit of the policy, the renewal of the existing policy being merely a contiimaiice of the original con- tract, lloivard \. Lnnrac^hirv Ins. Co., 11 S. C. K. 92. Held, (reversing the judgment of the court I' low) iMiiirnier, .1., iliss., that f". had an insnrnli!. interest in the property in (|Uestiiiii in this c.^. at the time of tin: loss as husband of the owim ill fee and tenant by tlu^ curtesy initiate, iii having hai'i also an insurable interest wlieii ;i,. insurance was ell'ected, the [lolicy was not avci(L ' by a deed given by C. to !>., who had recoiiMVi ; to C.'s wife. (Jidd-: I'll V. Stadacvna Fin and I. / /;w. Co., II S. C, It. 2 1'.'. 3. /I'/v/w In.-tarid. (a) E.riilmiiin, WhvYv the damage coin|ilaine(l of in acti. i u|ion tile policies, which were subject to the >t tutory eonditiims, w;is caused liy an exjilosiipii gunpowder accidentally set tire to, and by the i : subsequently resulting fromthecxphision; -lb ! (.illirniing the decisinn if the C. 1'. Div., 7 ( (. I (;;U, and of the (). U. ')iv., 8 O. I!. ?,V.\) tlii! u[)oii tlu! constructiiMi of the 1 1th statutoiy • -i dition, the defendants were not liable excc]it !i the damages caused by th(^ after tire, llnbli- (d. V. (!nardi //(.s. Co., 11 A. II. 741. See Mitcldll v. Citi/ of London Fire Ins. ' (LiniiUdJ, \'2(). 1! 7'Oti" p. lUl. (b) I)a)na'j('lii/I!emora/of(,'ooi/>. See McLaren V. The Commercial Union A- Co., 12 A. U. 279, p. 330. 4. Condi(i(m.t y an uxiilosiiin ■ (), .-ind liy tlic I I xiild.sion; -Hi! ■ I'. I)iv.,7(i. I; ». i;. S4:{) that ;h statutory <■■■]. liiililo cxc(j]it iiir I- tiru. y/(/6A- rt (il. V. Xortli' m OH Fire Ins. ' ' of GoQcnt- ,,1 friim liy tlie iijaintill', cunstitutcd an agree iiiflit between the ]iarties, and that it was u :iiis(iiiabl(M;onditiiin ; Imttliat it was luireason- Me fur tile company td insis' uiion it, as they never intended to pay tii(^ less, I'er Armour, .1, — Folliiwing I'aisiiiis /', (^hieen's ins. <'o., '1 (). 11, 4.'), any variation of tlu^ statiitdry cmiditidn j. prima facie, unjust aiul nnreasonalile. SiiiUh V Ci'!/ "/ L"i,i/nii /n.< Co.. 11 (>. 1!. ;!,S. -Q. H. |i. Atlirmed by Cdurt of Appeal, '-'.'!('. L.,1. 12:)."). (b) 'J'il/i' dill! InnuiiiivnnccA. The plaintitl'etrectedan insurance on buildings ;iiiil the chattels tlierein, sjiecilic amounts being |iliiced on each, liy tho application in answer tMpiestions to that etl'eet, tiie plaintitl' stated that the premises were held in fee simiilo and were uneiKnimbered ; and at the end thereof there was a provision tiiat wliere |)r(iperty was iiijivily encmiiliercd, (ir tlie value of buildings as .iiiiipared witii the amount insureil on drdinary ..intents was small, the manager, iVe, was autiio- n/i'd to insert the two-third's clause. The appli- 'iitiiiu was made part of the jiolicy, whicii con- i li'iied the statement that tlu; iii'emises were ri'invsente^d in tiie ap|ilication as being lield in A'u simple and unencumbered. It was also so ■lated in the prdo*' ■'*' 'oss. Hy tiie lirst statu- 1 ii y condition, if tiie insured misreiireseiited or niiiitted to eonimuuicate any circuiustance mate- ' liid to 1)0 Juade known to the company toenalile them to judge of tlic risk, the insurance slioiild !i" of no force as respects tlie property misrepre- Miited, i!to. Tlie pro]ierty iierein Iiad been con- veyed to the jilaintill'by his fatlier in eonsidera- t;iiii of natural love and aflection, but suliject to acharge to supiiort tlie fatluu' and a brotlier and tH other charges, and on default the plaiutill'was t'l stand seised to the use of tlic father of tiie luiul, whicii shoidd immediately revest in him as li'foro : — Held, that umler tlie first statutory I' iiidition, in order to cause tlie misrepresentation ,v to the property to avoid the policy, it must be iiiaterial, whieli was a fjuestion for the jury to (heide ; and that the misrepresentation only ap- I'lied to tlie buildings, and not to the chattels :— Held, also, that the tiftecnth statutory condition wiiich provides that "all fraud or false swearing i:i relation to any of the above particulars, shall vitiate the elaini," did not apply to the state- ments as to title or incumln-ances, for it referred t'l the particulars contained in tlie thirteenth statutory condition, items (n) to ('') wliicii had 111) relation whatever to sucli statements. The I'.'iu'iied judge at the trial having entered a ver- ilii't for the defendants, on the ground tiiat the misrepresentation itself avoided the policy, a new trial was directed. O'orimj v. Tlie London MntaalFire Ih'^. Co., 10 O. K.'2.36.— C. P. I). See.S'. ('., 11 (». R. S2, p. ,3.37. (c) Xot'iK and rroof of Lo.-fn. By the policy it was provided that the loss or (laiuago should be "estimated according to the actual value of the property insured, that is, what it could liavo boon actually Hold for in c:ish at t\\v time of loss;'' and the eonditioii on the jiolicy re(|uired that tilt,' allidavit of loss sliould state the actual casii value of tiie property. In the piintcd proofs of loss, which were used, the words, "actual cash value" were struck out, and a statement sulistituteil giving the cost of the property in |SM», a year previous to the iiisiir aile(! being ell'eeted : -Held, that this was Hot a compliiiuce \vitli tlie ))(iiicy and condition : Held, therefore, th'/re could lie no rcoVeiy oil tlie |iii]icj'. ('nil. iron i/ ill. v. '/'/n' Lniiiidn J'irr and Marliir Ini. Cn., (i ( ). I!. HH-'. -Osier. One of tile coiiiiitious of a policy of insiiraie'c against tire on ice ami packiii„, contained in m ice lious(^ situated in tlie state of Wiscoiisin. lirovidi'il that tho proofs of loss sliould he de- liver(!d "as soon after tlie loss as possible." 'I'lic tire occurred on the I7tli Septemiier, l.ssl,and the proofs of loss were not delivered until the middle of -May, ISSi'J, wlien tiley were objected to and returned to tlie insured, wlio redelivered them in the same state in tlie moiitii of .lulyfol lowing. 'I'lie only reason given for i.ot deliver iiig tliein sooner was, tliat it was not coiiveiiieiir to do so : — Helil, tli.it tlie condition was not com- plied witli. III. i'.y the 13tli statutory > oudition, "Any jier- son entitled to make n elaini under a policy is ' * toileliver * * as ]iarticular account of the loss as the nat ,, ; of tl..' case penults," and is also to furnish tle^rcwith a stiituiory declara- tion deidaring . (1) tliiit tl'i- said account is just and true : and lij' the l.jtli •■(. ..lition ; "Any fraud or false st.'iteiiieiit ill ;i st.'itiitory declaration in relation to any of the above jiarticulars shall vitiate tlie claim." Tlie plaintitl' by a policy of insurance against tire eti'ecled an insurance on buildings and contents, liy separate an. 'iits be- ing placed on eacli, the amount on contents be- ing f^-H)(). In the proofs of loss, to induce tlie de- fendants to pay tin; loss, the plaiutilf falsely and fraudulently stated in the statutory declaration furnished by her, that siie had siill'ered loss on the contents to the amount of .t-l.tili.").;")!), where- as tlie contents were proved to be worth only §l")(l : — Held, that the misstatement vitiated tlie wliole claim, and not merely the claim in res[ieet to tiie particular pmiierty as to wliicli it was made. llarrU v. Tin Wnhrlno .Miilunl Fin' Inmrance Co., lOO, R. 7IS-t'. I'. I). A.efTected in.surance on C.'s propertj', on which he lield a mortgage, under autliority from and in the name of ('., with loss payable to himself. During tlie eoutimiaiice of tlie policy the com- pany notified A. that the insurance would be terminated, and advised him to insure elsewhere. Such notice also stateil that unearn(.d premiums Would be returned, liut no jiaymeiit or tender of same was made according to conditions fif policy. A took policy to agent of insurers, wlio was .dso agent of the W. Ins. Co., and left it witli him, directing liini to ])ut risk in latter company. No receipt was given, and jiroperty was destroyed by fire immediately after. ( 'onipany resisted ])aymeiit on the ground that policy was surren- dered, and contended on the trial, in addition, that C had jiarted witli his interest in the jiro- perty by giving a deed to one IJ. who had re-con- veyed to C.'s wife, and the proper jiroofs of loss had not been given, claiming in reply to a plea of waiver iu regard to sucli proofs, that such CIS ^1 -H 3I| Si Bit Sift "'I • ■ JH Si I) a « i < I ' |i roofs of loss. I'er Vournier, .1., dissenting, that the sending (jf the cireulur liy the coni)iany tliat insurance would he terminated, and comiiliance with its terms hy tlie assured in giving up the ])olicy to the c(."::i])any"s agent, was a surrender (if sueli policy, and ))laintiM therefore could not recover. Valiliucll v. Studai'una Fire mid Lifi- lii--<. r.,., II S. C. U. 21 L'. See Mi/clicll V, C'ltji ill' Lmu/oii Fire Jii.-t. Co., [lAiiiUtd), 1-2 O. Jt. TOO, p. ;i41. 5. Sttilntnnj ( 'o/iiri/iij/h<. (a) ]'(iriit'ioH.i Fruiii. A tire insurance policy contained a comlition that any action upon it sliould he harreil " unless commenced witiiin tlie term of six months next after the loss or damage shall have occuriei' : — Held, atlirniing the decision of l)oyaiiy sl;ouId have sixty days for payment after completion of proofs of loss. Pciiria Snijar J'ciiiiiini Co. v. CiiKiidx. Fin- and Mitrim; /ii.s. Co., 12 A. U. 41S. See Sii)'//// V. ( "ihi of l^nnd'Ui /ns. ( :>., IK). \\. :!S, ]). Xi.i ; (ioriiK/ V. '/'//'■ Liiiid'iii Mntind Fi.rr /m. Co., 11 O. U. H2, p. .m. Co., 10 P. 11. "iSS ; Pidi-ia Siiuin' Ri fiinmj Co. v. Cdiiada Fif': and Marim- In.^nrancc Co., 12 A. 11. 418. (b) Ollii'i- Ca-^rs. A tug is not a biiililing witiiin the meaning of clause ./'of tlie IDth statutory condition. .Milrld II V. Till' Cilij of Lnniloii Fire In-f. Co. (Liin'Uid). 12 O. U. 7(Hi.— O'Connor. Sue /fohh.t,/ al. V. Ciiordian /ns. Co., 11 A. W. 741, ]>. .'{H2 ,• McLoriii y. Coinmiivial Unhin Ass. C'K, 12 A K. 27!», p. ;{;{(). (). H'liircr of Cond'iilon^, See ^iidlh v. C'dii of l.ondioi Ins. Co., II (). H. 3S, p. -.V.V.i: .Mdlrdir .Valnal .Uorine ami Fir,' /n^. Co. V. J)ri^ndi, 1 1 s. c. u. is:?, p. .S4;i. S. ( 'o-its of Ji'i/i rvnci'. After an action liad been commenced on polit:_y of insurance tlic defendants gave notice i ; ariiitration under tlie statutory condition, whiii tlie court made an order that, on the ilefenda!ir- abandoning all defences anil adnii;ting their lia liility under tlie policy sued on, all iirocecdiiiiis in the action sliould be stayed, tlie plaintill' tn sign linal judgment and [irocecd in the action for the anioiint wliicli might be awarded him, t.i getlier with the costs of the action, kc. And it was further ordered, without the consent of tlii defendants, that either party, after the uiakii:_ of said award, might a)ii)ly to a .juilge in Cliaiii- Iters in respect of tlic payment of the costs of tli'' reference and award. The arbitrators awardci to tlie )ilaintiti' tiio full amount of liis claim. On a|)]ilieaLion to Itose, ■)., (7 < ). It. 4()."), |aii (U'der wa> made directing the defendants to pay the costs oi the reference and award. On ap[ical to the Divi sional Court, ( 'anieroii, ( '. .!., was of opinion tiiat the appeal should be allowed, there lieiii,' no jurisdiction over tlie costs on such a referenc . aiui (ialt, J., that it should lie dismissed. Tli" court being ecpially dividcil, the judgment wa- altirnied. J/h'iIk s v. J/ond in JJand Intntraif' Co., !) O. K. 01.")— C. 1'. I). 7. P,v. Where no jilace of paynieiit of a policy of in- surance is mentioned in the policy it must be as- Biinied tliat the ]ilacc of |)ayinent is wlure the head otlice of the insurance coiii[iany is situated, and this fact may detei'iiiine the (piestion of the lex loci contractus. Ciarb- v. Union Firi' I iixur- aiur. Co., 10 P. II. SKi — Hodgiiis, Masirr in Ordinari/. See S. C. O. I!. 22.'J. Payment of money into court b; insurance com^Jany. See Kr /xtrlc Standard Lif. /n.-oiranijc ',). Sa/noje. Held. aHiiniing the . It. (14. that the plaintitT was entitled to ii cover under a iiolicy of insurance against hie. damages resulting from bona lide ctl'orts to save tlieiiisuredpro[icrty by removal : <^•ua■re, whetli' r tile tifth statutory condition, which declares that in case of removal of property to escajie coiill i gratioii the company will ratably contribute t" the loss and expi^nses attendiii;,' such act of s il- vage, creates an independent obligation upon tlir company to contribute ratably over i''id abov. the amount insured as for direct loss. I'oi liurton, J. A. — Tlu^ tifth statutory eonditi'ia does create such obligatiim. MrLan n v. Com III' rrial Fi'lon -l.s.v. Co., 12 A. It. 27!K 10. Siiliroija/ioii, There can be no such thing as subrogation to the right of a party whose claim is not wholly satislied. '/Vc Nalioiad Fin Ins. Co. el al. v. MrLaren, 12 O. R. (iS2. — P.oyd. In a case of partial insurance \\ here a tliiiil [larty is liable to make good the loss, the a> sured is not clothcil with tlie full character nI trustee ipioad the insurance coiii[ianies until hi' has recovered si'tiicient from the wrongdoers t" fully satisfy all his loss as well as expenses ia curred in such recovery. In other words, \\ lion the assured is put in as good a [losition by tiio recovery from the wrongdoer, as if the daiii.i,:,'f insured against had not ha()pened, then for any surplus of money or other advantage reeovcroil over and above that, the insurer is entitled to lit subrogated into the right to receive that nioiiiy or advantage to the extent of the amount paiil under the insurance policies. Vi. 33G Hi fill! Ill/ Co. \. ccCo., i'2AA\. miiiencL'd on s gave notico 1 1 1)111 litioii, wlaii tin; (lt-'feiiil;i!it- i';tinj,' their li:i all jii'Dcet'iliii.'^ tile plaiiitilf t- II the aetiiiii fur aided him, tu 111, iVo. Ami i: 1 eonsuut (if tlh ter the iiiakii:. judge ill ( 'liaiu- the e'osts of tli- ratorri awardr.'i ' his elaiiu. ( iii ."), I all order \v:u pay the costs oi lual to the Divi was of opiiiidii eil, there lieiiij iieh a r(!fereiicr. lisiiiissed. 'I'll" jildgiuent \va- '/itll(( /ll-Slll'd.lC'' the (^». H. 1)..: entitled to it CO against lire. li cll'orts to saw- ^>iiari;, wlietliii uh declares that eseajie eoiill i y eontrilnite l^ such act of sal- tation upon till' iver ;'"id ahnvr ect loss. I'cr itory eonditiiiii /-'(/•( (( V. Com- •270. I sulirogatioii tu u is not wlicillv ■. ( 'o. (J nl. V. where a tliii'l le loss, the a*- ill character nt ipanies until lie ; wrongdoers tu IS expenses in er words, whuii [lositioii liy tlio i if the .laina:,'i' id, then for any iitage recovereil is entitled tu I". ive that iiioiay le amount paid INSURANCE. 3SR MC Chirb V. Tlic f'nioii Fire Ins. Co. — Clitiiu y flu- Aijriritliiir'il I'lri' Ins. Co. of Waiertoivii, Xni- Yn'i-L; (J (). K. lUO, p. 347. >.e r 'I III III II. /t'l -Iii.'iiiraiiri.. V. 'I'lf L'liinn Firi' a (). It. (i;{,-), p. ;U7. //(f. Co. — Mc- . I'olh-ji. Fin: niul Lij'i In. I.'!. Mutual I iimi-nnrj Cuiiipaiiii .t. Kcid, that an assessment for the |Mtr))ose of iiiyiiig promissory notes given liy a .Nlulual In- -uiiince Company must lie coulined tu the iii'emi- aii notes or umlertakings t urreiit at the time tiif loss occurred in res]iect of or to meet which III' company's notes were given. New ineiuliers ■aimot be assessed to ])ay notes given previously :p their joining the coiu[iany. 'I /i' Virhn-iii }l III nil/ Fire In.i. Co. of Ciuim/ii v. 7'hoiiii'•• hut only liy lieing used as reipiired oi' nioilitied "V said Ontario Act, namely in the manmi' pro- ^I'li'd for vai'iations to the cunditiniis therein mraiiied. Citizens Ins. Co. /■. I'.irsoiK and '.iiiren's Ins. Co. '■. I'arsons, 7 App. Cas. !lli, coni- iiiciited upon, (t'oniii/ V. T/ir Luii/iiii Mniniil I'll-' ///.v. Co.. 1I(». K'. ,S2.— O'Connor. riie 2Stli section of the Mutual l''ire Insurance • 'inipaiiies' Act, ISSI, makes the Fire In>urance I'lilicy Act applicalile thereto, "except where tlif provisions • • • 1 1 ■m HE il 'I •I :: — Helil, also, tliat there was surticifiit evidence i ti) shew that the iilaiiititl's liail an insmalile in- terest in all the j^immIs ohtained anil liiaded on the vessel. Ml i-i-liaiil-t Mur'uir Insuraiici; Co. v. i 4. Ciiiiilitiijii-<. \Vh luTe, hy a eei-titieate (if iiiiiiine in^iiiaiiee, ell'ectid in this I'rovinee on cattle, |-e|)iesenting and taking the place of a jiolicy, it was |)rovi(led, as thiHondition of ])ayiiient, that all claims shouhl lie n|ioited to the M. Insniance C'onii)any of [jverfjool, as soon as the goods were landed or the loss known, to he adjusted according to usages there, and the special condition of the contract of insurance : — Held, thiit the adjust- ment liy the M. InsiU'ance ruo;':iot. W. et al. eti'eeted in A. M. Ins. Co. a pfilicy of insurance on a shi]). The jiolicy, among other (dauses, contained the following : " In case the preniium, or the note or other oliligation given for the jiiemium, or any jiart thereof, shouhl he not jiaid when due, this insurance shall he void at and from sui'h default ; Imt the full amount of prennum shall lie considered as eai'ucd, and shall he jiayalile, and the insurer shall he entitled to recover for loss or damage which may have occurred liefore such default. Should tlie jierson or any of the ])ers(ins liahle to the eomiiany for the ])renuuni, or on any note or ohiigation given tliei'cfor, or any part thereof, fail in liusiness or liecome hankrupt or insolvent Lefore the tiua; for payment hasai'rived, this insurance shall at once lieconm and lie void, unless and until heforc loss tlie pi'eniium he i)aid or satisfactorily secured to the company." Tliere was also in the policy an arliitration clause, by whieh arhitiators were to deciile any ditierence which might arise between the company ami the insured "as to the loss or daniagt' or any other matter I'elating to the in- surance." in accordance with the terms and con- d'tioMs of the policy and the laws of ( 'anada ; and the obtaining of tin; tlecision of the ai-bitratois \\as to he a condition ]>recedent to the nuiintain- ing of an ai'tion !)<■ the insured against the eimi- pany. W. et al. gave; a jiromissory note for the priniium w hicli was not yet due w hen they be- came insolvent ; and ('., tln^ respondent, was appointeil assignee. A guarantee was thi'n gi\t'n and accepted by the comiiany as a satisfactory security foi' the ])i'i-miuni. The note became due on the .'iOth Sc|itendier, 1S7S, and was not paid but icmaincd overdue and unpaid at the date of the loss, on the I'Jtli of October, ISJS. After tlu' loss, the matters in dis|iute arising out of the policy Were suiimittcd to thri'c arbitrators, w ho awarded .•>;.■), 7(i!l. -It. .Anaetion was then brought on the policy, the ileelaration containing a count on the award : Ifeld. (atlirniing the judgnuiit of the court below) 1. That thi' inemiuni having, on thi' insolveiu'V of the insured, been satisfac torily guaranteed to the eomiiany, the policy was thereby kejit in full force and efl'ect, and did not become void on noii-j)ayment of the premium note iit maturity, {.strong, J., di.ssenting.) '2. That the award was binding fin the company, the (pit- tion as to the payment oi' ilefault in payment r • the preuunm being a ditierence " relating to tli. insmance" w ithin the meaning of the j.'dicy, aii^ the award not ap])earing on its face to be l.,i. from any mistake of law or otherwise. Ain'ln Muniir'liis. (•„. V. Corhrli, <) S. C. H. 'X In an action on a voyage policy containing tip clause, " warranted not to enter or attempt t enti'r or to use the ( iiilf ■ October (a line di'awn from Cajie North to Cwy 1-iayand across the Strait of* 'anso to the noi'tlni i entrance thereof shall be considered the bouiiii of the (iulf of St. Lawiencci," the evidence w.i- as follows : — The captain says : " The voyage \i;,. from Liverpool to (,lueliec, and shi]i sailed on 'Jii A|)ril. Nothing haiipened until we met with ii ■ to the sonthwaid of New foundland. Shortem sail, and dodged about foi' a few days trying t work our May arouml it. One night sliiji w, - hove to under lowei' main toji-saii, and about nii.i night she drifted into a large Held of ice. Thci • was a heavy sea on at the time, and the shi]) su- tained danuigc. We Mere in this ice three or for' hours. Laid to all the next ilay. Could not gi • further along on account of the ice. In ahm;- tMcnty-four hours Me started toMork tip towa.r- (,>uebec. " The log-book shewed that the shipi:' into this ice on tlie 7th of May, and an expi i' examined at the trial swoi'c that from the entii' - in the log-book of tbe (ith, 7th, Sth, and iltli ■• May, till.' c;i])tain Mas attempting to enter tli tiulfof St. Lawrence. A \erdict was taken foi the plaintitls by consent, with leave for the li- fendauts to move to enter a nonsuit, or for a urv, trial, the court to have power to mouM the vii diet, and also to draM' inferences of fact the saii. as a jury. The Supreme Court of New IJruii- M'ick sustained the verdict, (hi appeal to tlr SuprenieCourt of Canada : — Ifeld, (reversing tl. judgment o* the court below, Henry, J., disseiii ing) that the above clause Mas apiilicable to Vfiyage policy, and that there Mas evidence to l to the jury that the captain Mas attempting t. enter tlie gulf contrary to such clause. 7'(('/'' V. Momn, 11 S. C. R. 347. (J. insured a tug when navigating the river- Sydenham, St, Clair, Detroit, and Thames a'lc Lake St. Clair, loss, if any, )iayable to M., as lii- interest might aiipe.ar. M. at the tini? of insii: aiuc and dow n to the haiiiieiiing of the loss w;i- niortgag<'e. The tug M-as libelliMl in the AmericiCi Admir.alty Court, and to avoid the claim then <;. used tlie )iroceediiigs therein Ulioli a claim (■! wages to have a fraudulent sale thereof maiiv t' .1. .\ftcrwards (i. jirocureil a renewal of tii' policy withfiut dis(dosing the sale, of which Imw ever defemhints were subsci|Uently notitied, < ',. with defendants' assent, assigned the ]i(dicy I" M.,liut before that assent was put in M-ritiii. the tug was burned in the Chenail I'.carti, ou« of the channels of the St. Clair. At the time "\ the tire crude petroleum and earth oil were kc pt on the tug for liibriiating imrjioses. M. and .1 delivered proof papers of (hum, which Men objected to. (!. did not deliver any. At tlu' trial leave was given to add (i. and J. as i" ]ilaiiitili's, and judgment was directed to be i " tcred f(ir the iilaintill's for th(> full amount of the insurance : -Held (1). that the action Mas pnr pcrly constituted in the plaintitl's name alouu, 340 )any, tlu' ([uc- iii piiyiiu'ut I ■ ruliitiiiy til tlh ;Im! j/'lii'V, ill;. ICO to lie 1m «isu. Ai'fli. K. ::i. ■oiitiiiiiin.i: th' (11- attc-iiipt I I rt'iirc ])ricii- '■ (■ .•{Otli iliiy "■ N'ortli to 61). :() tlic iioi'tliii I L'(l tliu hoiiiiM "llL' voyaj^i' w;,- |i !H7!>, tlie master in tered into a charter |iartyfora voyage toColombu. and thence to New York by way of Alip]M r. The vessel sailed on the '2'2iiil April, I87'.l. ami arrived at < 'oloiiibO| which jilace she left on I ."! Ii -May, and while on her way to Alippeeslie strm k hard oil a reef and was damaged and ])iit liack in Colombo. The vessel was so daiii'ignl that tlir master cabled to tlie slii])'s husband at New Vi iik on the '2'Ari\ May, and in reply received orders in exhaust all available means and do the best in- could for all concerned. The repairs needed were extensive and it was impossible to get theiii done there, and Honibay, 1,(100 miles distant, was the nearest ]iiirt. After jimper surveys and cargo discharged, on the lOtli . I line the vessel was stripped and the master sold the materials in lots at auction. On the 'Jlst Mav' the respnu- deiit, a mortgagee of |t^ in the vessel, w liiidi he had assigned to the bank of Xova .Scotia by en- dorsement on the mortgage, as a collateral si eii rity for a jire-existing debt to the bank of Nnva Scotia, bi;iiig aware of the charter from Coidiiii to New York, iiisiirid his interest with the ap- pellant eoni]iany, tin nature of the risk bijiig thus described in the jiolicy : " I'pou the body, &e. , of the good ship or vessel called tlie bannie Charley beginning the adventure (the said ve»el being warranted by the insured to be then in safety), at and from Cochin via Colombo and Alijipce to New^'ork." To an action on the policy for a total loss — the defendants pleaded inter alia ; 1st— tliatthe plaintifl' was not intei- ested ; 'Jiid, that the ship was not lost by ihe perils insured against ; 'M\\. coiicealnient. A consent verdict fiirs;i/jllti fur jilaiiitilf'was taken, subject to the oiiinioii of the court upon points reserved to be stated in a rule nisi, and upon the understanding and agreement that everything which could be settled by a jury should, upon the evidence given, be presumed to be found for the plaintiff: — Held, 1st. That this was a \ oy age jiolicy, and that the warranty of safety re- ferred entirely to the commenceinent of the \ oy- age and not to the time of the iiisuiance. 2iid. That the fact of the )ilaintilf having assigned his interest as a collateral security to a creditor did not divest him of all interest so as to disentitle him to recover. Hrd. That the vessel in this case being so injured that she could not be taken to a port at which the necessary repairs (•oiild be executed, the mortgagee was entitled to ; ecover for an actual total loss, and no notice of aban- donment was necessary. I'er Strong, J., tliat a liioitgagee, U|)oli g;\ ing due notii'' of abaiiiion- iiieiit is not precliulcd from reciAcriiig for a imi- structi' e total lo.ss. .■inrlnir Mardic Insurmii'i <:>,. ■ . K,i\th, !»S. (.'. It. 4s;i, On a voyage from I'orto \\\r<> to New Ha respondents' vessel sustained damage and into .St. 'I honias. A survey was held by 1 jieteiit persons naiued by the Uritish consul, according to their rejiort the cost of putting in good condition would exceed her value, cajitain, iindi'r instructions from owners to ceed under best advice, advertised and sold sel, and ])iircliaser had her ri'paired at a much less than the report, and sent her to se Held, that there was no evidence to jtistifj \ell put oni- and her The |n'o- ves- i.'ost ■ the f|H «)| Xl *\ K >i n «'■ .. «iS ::» i\ *•!» .«! su ft" ••1 • •"' % ■■:■ -i| f-i], -•I «<• * • 343 INSURANCE. 344 I • I • li ii t I i ii ii (I ii I • n 41 Ii ii I > C t » ii < > jury in timlini,' that the vessel was a totul loss. MtUcilli Mit/iKtl MariiK and Fin Inn, Co. v. DriMoU, 11 S. C. K. l.s:{. (Jvvners of tlio vcshoI ^'avc notice to a;,'ciit of uii- (lerwritei-.s that they would aliamlou, which agent refused to acce))t. Ownei's telcf,'ra])iied to cap- tain tiiat tliey had abandoned and foriiini to j)ro- ceed under tile he.st advice :- -Held, that tliis act iif telegraiiliing tlie captain tumiii'( niul Cvnlrlhitlion.. Defendants insured for the consignor cattle fioni Boston to Londr)n, I'lngland, against all risks, except to be free of particular average, unless tile vessel be strainled, sunk, or burned, or in collision. The cattle \\m\: consigned to F., ;ind tile C(jnsignor drew for £1,740 ujion F., who accepted the l»ill and insured tiic cattle in lOng- laud for tT), ()'•((, To ])er cent., against all risks, and "2.") per cent mortality was not insured against. It was swoi'n that l"\ had been told by the consignoi' to insure in all cases where they hail made ay a hereof a cer- that he had swei's to the liner, and ag lis inentionrd ;o a (inestiiiii ess, local dis what iiatnir. irokeii leg in to a nuestinii .isual niedieal ler (|nestioii, tiler niedieal 1, insured re- reil had been lis exaniiim- the iminieiii;i- ks in hed siif- at time unlit 1 attended by -de of this ae- to a (luestioii irothi'fs, &i'. , itutional dis so stated, ill ■ie his brothel lover-groutli. her had been e, for imlinii saiil that tlu> lings and had lied. Iiisiu- whether anv 345 INSURANCE. 34G iiiateriiil fact bearing on his ))hy.sieal eondition nr family history had bt.'eii omitted, reiilied "Xo." jiefeiidaiits admitted jioliey, proofs of death, probate, kr., and iiece]ited burden of jiroof at the trial, ami elaiineil the right to begin, which was refused. On motion in term, co))ies of let- tors and doeiiments, signed by the insured, sent tn the government for leave to remain oft" a home- stead in the Northwest, and shewing that lie hail been snU'ering from congestion of the lungs ;iiid illness, from the s]iriiigof KSS.S to the siiring nf 1884, were [U'oduced. It was shewn that the I'xisteiice of some such doeuinent; had been sus- pected and that they had been searched for in nil tiie govcM'iiment otiiees but could not be found, niid that defendants received them the day after the trial :— Held, that the iilaintitl's had the riiilit to begin, notwithstanding such admissions. Wilson, (,'. .)., reserved the eonsideration of the iidniission of the nowevidence. J'er Armour, .1. -it could not be received, as it was merely corroborative, and its suspected existence would iiive lieeii ground for asking to have the trial |icistponed. I'er Wilson, C. J. — There sluuild lie a new trial. There was evidence to go to tlii' jury as to the triitli of answc'r given respecting the health c)f the deceased brotlu'r. Thi^ jury >hiiuld have lieen asked to say whether tile ans- uir as to impiiries was a misrepresentation in fact ; that the eertitii'ate meant the answers were i.'i\cn ii|)oii a knowledge of the facts and ui)on iii.-.ured's belief in the trutli of those facts ; and a statement imule without knowledge would not \u' protected by the formula, " best of kiiow- Ii'dge and belief," if insured had no knowledge ; nor woulil such statements be protected if made rcLcardless of the insurod"s belief in the truth of siirji knowledge as he had. The proposal was a warranty that the answers were true acein-ding t'l the best of his knowledge. I'er Armour. .1,, the direction to the jury, whether insured had stated to the best of his knowledge and belief the truth ill regard to deceased's brother was suliieient. As to the accident, it was one which i.'ight to have lieen mentioned, but it was pro- lial)ly considered of too little importance by iii- ■•-■iired, or else had esea])ed his inemory at the time of the a))plication, and it was suliieient for the jury to have found insured did not wil- fidly withhold the facts, Imt answered to the best of his knowledge and belief; and the proposals were not warranties. The court being ei|iially divided the motion for a new trial was dismissed, uitli costs. Mllltf V. Cuii/'ii/i r(t/i(>ii Lil'i A-^-^in'- (i)i,r Viini/Kunj, 110. R. 120— Q. B. D. 'Atlirmed 14 A. R. -.MS. ',]. For hi'ttiftt uf Wifi' and CliUilivn. In ISCiS M. efTec^^ed a ])oliey on his life for the hiiietit of his daughter, who intermarried with the jilaintiir, and ])ivdeceaseil her father, having liei|ueatlied her interest in such jiulicy to the plaintitr (her executor) in trust for her only child. M.'s wife died, and in 1S77, (irior to the niari'iage of his daughter, he married the defend- ant, in ISS4 M. died intestate, leaving the de- fiiidant, his widow and one child surviving, without making any other disposition of his life liolicy. In an .iction instituted by the jilaintiir .'igainst the defendant, the widow and adininis- tiatrix of M., it was — Held, (allirining the judg- ment of Ferguson J., 10 0. R. -S.'5,) that the insurance money formed jiart of the pcrs iial estate of M., and as such waspayal>le to tlie de- fendant. \Virl;si,,d V. Muuro, i'A A. 15. 4S(j. The .statute 47 Viet. c. 20 (Out.), does not ap- ])ly to lienevoleiit societies iiu!ori)orated under H. .S. (). e. 107. /!' O'JIrmi,, 11 I'. I!. 422.— i'roudfoot. A testator iiisureil his life for the lieiietit of his wife and (diildreii. The policy ]irovided tliat the money sjuuild be ])ayable as might lie direct- ed by will. The testator by will ajipointed 'X- eeutors, and gave his wife the income of his estate for life and after her death the corpus to his son. The executors renounced probate, ami after revocation of a jirior grant to tin! son, v ho was then a minor, administration was granted to the defendant I'. 4'he policy iiro\idcd tliat the money might be payable to the executors or administrators. The Act, 47 \'ict. e. 20 (Out I, provides tiiat such policy moneys to wiiieli in- fants are entitled shall be ])ayable to a '• trustee, executor, or guardian." I', claimed the moneys as administrator, whereujion the insuraiu'e coii- pany under section l."i of the Act, and (i. O. I!>7, and Kule r)4l ("I O.J. Act, ap[ilied to the Master in Ordinary in (hanibers for leave to jiay the money into court. The master held (il that voluntary ap[dications to jiay in money may be made inChaniliers. (2) Tliat under liiile .")4I i") O. J. Act. he had jurisdiction, liy virtue of tlie administration proceedings before him, to make the order. {',i) 'J'liat liy the renunciation of the executors there was no "trustee, executor, or guardian competent to receive the share of the infant." (4) That the Act excluded tlu' admin- istrator from any claim lo the fund, and his re- ceipt wmild not be within the protection of the statute. (")) That the administrator w,is not a trustei' by tiie will, excejit as holding surplus as- sets, afte;' administration with notice of trust. (()) That the money was no part of the estate subject to the control of creditors, and wiieii jiaid in should be " ear marked." and not niixt'(l with tlie other funds of the estate. On apjieal liy the administrator. P., I'roudfoot, .1., made an order directing that the money in court lie jiaiil out to the insurance company. Mi rclidiifs Ihmk V. Mniifi'illi ; />'i' /mrd' ■Siin}ilitrd l.'ij'e A-i- »Hi-(uic.,i Co., 10 r. R. r>8S. V. AdmINISTK.VTIOV or lNSti;A.VrF. CoMr-ANVs' 1 Dki'usit. ! 1 .T. M. and V. M., his wife, weri' ;ointly insured I in the defendant's comjiany, who. t' dejiosit was i being administered under It. S. ( ), u. |()(), sees. '21,22. On Feliruary 4th, .1. M., witliout tiie assent of V. M., signed ami sent to the receiver a claim for rebate as empowered under that .\ct. Xo acknowledgment of the receipt of this claim was given by the receiver, who, on l''ebrii,iiy 27th, sent.!. .M. and the other policy holder a circular notifying them of an agreement tor re- insurance, and that if they objecteil thereto, and desired to claim for reliate. tliey were to do so before Marcli loth. On February 24tli the pro- jierty was burnt, and d. .M. forthwith claimed for the whole loss: — Held, that neither ,1. M. nor F. M. were Ijound by the former's claim lor rebate. That it was not a release, but an invalid attempt by one to exercise! a joint statutory I power ; or else an attempt to make a new eon- ♦ - • t, ai: * 2 • .. "'I * *;• *i "I I •1< .. -'I - SI* 347 INTEREST ON MONEY. 34S I • ll I < J 1 1 I « li i] <] tt I • • « I * I • I • i> II 4i i > !i H n > M tract, wliich wiis not authorized Ity one of the i parties, ami was not accepted liy tlie receiver belore tile lo.ss occurred. ( Jranting that a release hy one joint tenant would extiiiguisli the I'iglit of lioth, it does not follow tiiat entering into a new agreement hy one will prejudice tlie right of the otiier. (.'/(trh y. Tie- i'liiiiii Fin /lis. t'u. — J/r/'/in-.fC/'iiiii, (iO. 1{. (),■},■). — I'roudfoot. Pending adnunislration of the dejiosit of the U. Ilisuranee Company under 1!. S. (). e. KiO, sees. "Jl, '2'2, and after the completion of tlie receiver's schedule prescrilied liy the Act, a reinsurance was ellecti^d with tlie A. Insurance company of all the U. company's risks, in coii- siderati(jii of which the L'. company gave the A. ooiiiiiany its note. This note not lieiiig jiaid at inaturity, the A. c()m|iaiiy sought to he placed on the dividend sheet of the (j. company for dividends accrued or to accrue ; — Held, that it was entitled to the relief asked, for properly viewed the suhjeet of the claim existed liefore the schedule, though in a diil'erent shape, since by the arraugemeiit with the A. coiii))aiiy, made with the assent of persons entitled to rehates, the liahility of the U. company in resjieet to re- bates was greatly reduced, and to that extent the A. company should be taken to be subrogateil to the position of the ])(diey holders of the U. I company. Clarke v. The Uiihni Fire Iii.s. (,'o.-- L'Uiiiniif the AiirkiJ/und Fin Ins. Co. of Wafer- ; town, Ac/'' Yur/i, (iO. It. ()4(). — I'roudfoot. | Canadian policy holders petitioned for distri- bution of the (le])Osit made by the above com- pany, a foreign corporation, with the ^linisteiMjf linance under .'U N'ict. c. 4S (l)om. ) and .'M Vict, c. !t (IJom.), the company being insolvent : — Held, tliat tliey were entitled to tlie relief .isked, iiotwithstaiuliiig that proceedings to wind uj) the : company were pending before the Knglish Courts. The above Acts are not ultra vires of the Do- minion Parliament. For any balance of their claims not covered by the deposit, Canadian policy holders would be entitleil to rank upon the general assets of the company. Jfe Briton \ Meiltcal and General Life Ahs. {Limited) [2]. — 12 0. R. 441.— Froudfoot. The definition of "Canadian policy" and i " policies in Canada" in 34 Vict. c. 9, s. 1 (Dom.) is not to be interpreted to mean that the deposit is only for the security of policy holders whose policies were issued after the deposit was made and license to transact business in Canada ob- tained, lb. INTEREST OX MONEY. , When Allowed. 1. General/!/, .348. 2. From vfiat Time, ,348. 3. At what Hate, 349. 4. Liahilitji of Exeridorn and Administra- torn — .Ve ExEccToRS and Adminis- THATOHS. 6. On Jiill.'i or Xofe.f — See Bills of Ex- (■UAN'(iE AM) 1'komissohy Notes. 6. On J(id(/nieuld — Sec .Iudoment. 7. On Mortjaijcs.—Hec MourciAUE. I. When Allowed. 1. Generalbj, III a foreclosure suit a decree was made in November, 1S77, and a final order of foreclosuri' obtained in .June, 1878. In October, 1882, :. petition was presented by the defendants too]i(ii the foreclosure, which was dismissed, 2 O. P. '148. The Court of Ajipeal reversed this decision making an order to o[jen the foreclosure on thi- usual terms of paying principal, interest aii'l c(jsts, iiichiiling the |)laintitl's' costs of opposin- the petition, li) A. W. !)f» :— Held, atl'rming th,- decision of the Master in Ordinary, that tin- lilaintifl's were entitled to interest on the wIkjIl- amount of )iriuci[ial, interest, and costs as fouiul by the decree of November, 1877 : -Held, also, I'eversiiig the decision of the Master in Ordinary, that the plaintifl's were not entitled to interest on the taxed costs of o]jposing the petition tu open the foreclosure, tor these costs were not recoverable by force of the order made on the petition, which was reversed, but simply owing to the direction of the Courtof .Appeal. 'J'ri/ti'if Cull'je V. J/lll(t nl., 8 0. R. 28().— Boyd. Interest as damages. See Minnie, v. Ltitih, 8 0. R. 3'J7. Interest on arrears of annuity. See Snarr /' al., V. Badenueh, 10 0. R. 113. It is not usual to allow interest on claims where there is no fraud, or wilful withholding of ac- counts, only a loose mode of dealing between the parties. The discretion under which a jury may allow interest apjilies to the m ster's office. ]{<• Kirkjiatriek — Kirk/iatrirk v. S niison, 10 P. K. 4. — llodgins. Muster in Urdln .rij. Ill fixing ail occupation rent to be charged against one who had been occujiying land under mistake of title, an' ' ■ ,■ : t!; j s;iiil legacies less th.an the face value ' i iid been paid : — Held, that in compuiiig ' »ti ■ c on the sums so paid in respect of the srjd ^ii.cies, it should only be computed on the aiiioi..ii.3 .iciually paid, and not on the face value of the legacies, and further that the account should be taken to- gether so that oil (uie side would appear the dis- liursemcnts foriiupi ovemeuts, legacies, and taxes, ivud on the other the occupation rent. Jb. 2. From tvhat Time. A p'T.rchaser becomes liable to pay interest, when 110 time is lixed by the contract, from the 34,S :U'J INTERNATIONAL LAW. 350 WiU llKulc ill of f()roc'l(p>;uri- olier, ISS'2, ;, iidiint.s toojxii ssid, 2 U. H. (I tliis (leci.sidii •lo^iirc (111 till- iiitcivst iuiil ifi of oiiposiii- , atrriiiiu;,' till- ;iry, tliat tin- on tllti Wlldll; costs as foiiinl : -JIuld, als.,, •r in Onlinarv, fil to iiit(;i'(.->t lu petition tu )sts woro ni't inuile on tlic simply owiiiL' ijifal. Trlit'i''! ,-Boy.l. nic, V. Ltttcli, See Siiarr ii 1 L-lainis while lioliliiig of ac- ig butwoeii tiie ell a jury may ir's office, ih' ison, 10 P. K. 1)0 cliargid iig land uiidtT iiiie an allov- niK'iits, if SlK-ll full increaSL-d ) then interest ost of propel as an offset, )20.— Boyd. the master to rotits receiveil ler mistake "t the devise to ipation rent to sum to he al- nients, and to 1 (jn the said .and 'iiio (if * aXi.:. a^id .■ • t!;d said . •id been ■ G 0;1 the ,d jiLcias, it ,11. ....s aei-ually the legacies, d he taken tn- ppear the dis- les, and taxes, tt. 76. liay interest, ;act, from the tiiiii' wlien he couM [inidciitly take jiossession, :iiid ill tile ease of the |(iirchiise of several pro- |n iti -s under an indivisililc cuntrai't he cannot iiiiid ■iitiy take possession until the title to the u!i"li' IS mule. Ln'inl v. I'lU'iii, ~ i) \{. l."7. — I'l'illilfoot. Wlii'iT noclaiiii for arrears of interest i.i speci- illy uiaile liy the )ileadings, and wiiere there is iHi ciiveiiant to pay interest, only six years' ar- ', ii's can he recovered. Wilcij v. Liiliiitnl, 10 r II. IS'i — Hodgi lis, ,l/((.v/''y ;«'>;•(/;■/((/ r//. The " taking"' of land under the P.ailway .Vets ;- |.ro))erly lixed as at the date of the coiiiiiany | .i\inL; niitice to the landowner of their intention if taking tile land ; and it is not correct to say i that the value of the lands should he taken as of | V (late prior to knowledge of intention to con- [ -truct, or in anticipation of tlic construction of till' railway, interest is properly allowed to tiu^ Liiidowner on the ainount of his coni|ieiisatioii !]Miii tiie time of the taking as above detine'. A note dated lltli .laiiuary, ISO'2, payable to iiid endorsed \>y one .S. H,, was for .■!:.'{, OOO witii iaterest at the rate of two per cent, ])er month till )iaid. By a covenant for payment contained ill a mortgage deed of the same date, given by tile (hUeiidant to the ]ilaiiititl' as a collateral -iciirity for the ]),ayiiieiit of this note, the defeii- Jaiit covenanted to pay "the said sum of .•?;{, 000 (111 the lltli day of July, ISli'^, with interest tlieieon at the rate of t\veiity-f(nir per cent, per aiiiuiin until jiaid." A judgnient was recovered upon the note, but not uiion the covenant. The master allowed for interest in respect of this ileht six per cent, only from the date of the re- covery of the judgment : — Held, that the proper ooiistructiou of the terms of both the note and covenant as to payment of interest was that in- tbi'est at the rate of twenty-four percent, should be paid ui) to the llth Julj', 18t)2, and not that interest should be paid at that rate after such lay if the principal should then remain unpaid. St. John v. Rijkert, 10 8. C. 11. 278. Money was paid into a bank under Consolidated Railway Act, 1879 (Doni, ), s. 9, subs. 2S, and an order for immediate possession of lands expro- priated by the company was made by a judge under the subsection, and an award of compen- sation was made subsei^uently : — Held, that the laiidov.'iier was entitled to interest on the amount ii'.varded him only at the rate allowed by the bank on the money paid in and not at the legal rate. A''- G'tiinie Tai/lor and t/ii> Ontario and (Jueljec It. II' Co.,' 11 P.R. 371.— O'Connor. An order was obtained for immediate posses- sion of laud under the Consolidated Railway Act, 1S7!) (l)oni.), and money was; paid into the Can- adian Bank of Commerce under the same Act by the company: — Held, that the landowner was intitled to interest upon the amount siibseipicnt- ly awarded him from the date of the award, only at the rate allowed by the bank upon a deposit and not at the legal rate of six per cent. Re hea, 21 (!. L. J. l.-)4, fidhiwed. /i'" Hiilhyirl,- and. •iiii.n-io and (Jufbcc It !>'. Co., 11 P. U. 373.— Boyd. A., being dnuiiciied and carrying on Inisiness in .Montreal, in 1S7.">, executed at I'oronto, where he was teiiipnrarily resident, a deed entered into between 11,, his wife, of the tirst [lart, and him- self and ('. of the seciind [lart, whereby A., 15. and C covenanted that certain Ontario Hank stociv, which had been lioiight withcertain moneys receiveil by ]',. after iier marriage, i.nd which were then held in the name of A. in trust for B. , should be duly transferred into the names of C. and A., and that this stock, as well as a sum of .'>4,0IH), which 1> had received from her mother at the time of the marriage, and which had been ]»ut into the commercial business of .\. in .Mon- treal, should, with .■?2,0l)0, the value of some furniture received by 15., be held by C, and A. ill trust to invest as therein mentioned, and to permit 15., during her life, to receive the income to her own use, and after her death in crust for til hildreii of the marriage, and in default of sill ling issue over. In 1877 the bank stock was transferred in Montreal in trust pursuant to the deed. The head otiice of the Ontario Bank is in Toronto, but they have a stock registry in Montreal for convenience : — Held that inasmuch as all the property settled appeared (ui the evi- dence to have become, and to have been " com- munity property," and inasmuch a.s, although the bank stock must be held to have been at the time of the execution of the deed and of the transfer situate in Ontario, yet the deed not purporting to be a complete transfer of the property in the stock, but containing only a covenant to transfer, which was consummated afterwards, not in On- tario, but in Montreal, the case fell under the law of the owner's domicil, and applying that law, there was not a good transfer by the hus- band of the right of property in the stock : — Held, also, as to the money, that being at the time of the deed in Quebec, the validity of the transfer of it must depend on the law of that province, under which the transfer both as to the wife and the children was void ; for even if the wife's signing the deed amounted, as con- tended, to an acceptance by the children, it was lUily the acce[itance of a promise and not of a gift : — Held, on the whole case, that no property passed into tin; hands of the trustees by the transactions set forth. J/ioj/itd v. //( c.i, o O. R. G5-1. — Ferguson. When the husband's domicil is in the province of (i)uebec, and there is no a'.'te-iiuptial settle- ment, the law there upon marriage makes a set- tlement ot the (iroperty of tlii; [larties, wherever I situate, including that acquired subsetiueutly. * «'. «■ 'I «' "i» ». -"» IK ->i 1 «t *■■ :::> «^ '•li « Si ■l> f. s: V -'< * •i* Vs (•It « ■■!• «' :ii i|r *. W'l* II «•'• w. **> * 1l 11 «: K .ii M *'• 2!« S! •n Sll 1 1 I t I I i3 i< <) H I • I I I ' 1 1 I 9 I 9 It 11 n I! r, ! •• 351 INTEKPLEADEK. tlmii^'li tliu ct'ifiiKiiiy of iiianiaHO may take place out of the province. Tlii.s is oitlleil " eoiiiniiiiiity jiropcrty," and it is not in tiie powei- of the hn.s- lianil, ilminj; tiie eoverture, to make a gilt of it, y the adniinistratf)r iti Ontario of \V. M., dccease(l, on a policy on the life of W. M., whicli, hy the terms thereof, was payahle in Montreal, in the I'rovince of (,)uel)ec, the ilefen- ilants i)leailed that the policy was issued from their ofiice in Montreal ; that hy its terms the moneys were payahle there ; that the defendants had no oHiec in Ontario for the j)ayment of n'oneys liy them, and that the plaintiff hail not J obtained letters of administration in (Quebec, and I had no right or title to sue for the money : — llehl, on demurrei', a good defence. Prilr/niri! \ \: Slundard/Jfr As.'i. Co., 7 0. H. 188.— Rose. The defendants signed and scaled a number f)f policies ill blank, and sent them to an agent in New York to be tilled up and issued as insurances •Here effected. A., their agent, there filled uj) one for a risk of 8'2,r)00 on a lumber yard, a risk greater than extra hazardous, although he had been instructed not to take any extra hazardous risk for more than ?l,r)00. He issued the policy without receiving the payment of the ])reniiuni, although a condition was indorsed on it that no in.suranee propo.sed to the company was to be considered in force until the premium should bo ])aid in cash. The policy was issued on the 8th August. The tiro occurred on the 10th August. A chcijue for th. prenuum was sent to the com- pany on the 1 1 th August, which was innncdiately returned and the risk repudiated. Under the winding-up proceedings of the company it was attempted to prove a claim f' ;• the loss in the Master's office, when it was contended that the law of the state of New York, where the policy was issued, governed the contract, and under that law the agent had })ower to waive the pay- ment of the premium. The nuister disallowed the claim, 1(( r. B. 313, holding that the law of On- tario governed the contnict. On an appeal from the master's certificate, it was : — Held, that the master was right. That the law of Ontario gov- erned, as the place w here the policy was signed and sealed was the place where the contract was made. Clarkt v. Union Fire hm. Co.— Re Ex- j)ort Lumber Co., (i O. 1\. 223. — Ferguson. A company, incorporated in the State of Michigan, while in insolvent circumstances, had given a mortgage ii])on chattels in Ontario to defendant, a Michigan creditor, to secure pre- : vious cash advances made to the company under verbal ])romises by two dii'cctors that .security would be given, 'J"he effect of the mortgage was to delay and prejudice other creditors ami give defendant a preference over tlicni : — Held, that, the property moi'tgagcd being in Ontario, the transaction was governed by the laws of Ontai'io without regard to the laws of Michigan. Jx'itrr .Slare Co. v. Sill, 12 O. K. Gf)?— Q. B. 1>- See 7'he Cojuinercial Xafional Bonk of Chicago ' V. Coixorcu), 6 O. 11. r)27, p. 53. INTKRl'LKADKR. I. Whin Rklikk tiuvNTKi). 1. Tn Shirif, 352. 2. /// (ttlii r ('(I.-KS, 3r)4. II. I'liAi'Ticr.. 1. jyiiniiiiij tlif iMiif, 355. 2. ()thi .■ Cl 4 M I . N T , 357 . \'l. Li. Mill. II . KV SiiKiiiiF, 357. \'II. In Division C'iukis — Sic Divi-i..'. ColRTS. I. When Rklikf ( ;i;anti;i). 1 . To Shrnif. The sheritf seized the goods in (|Ui'stion on tin 31st day of .(ainiaiy, 18S3, and on the 1st of |"tli ruary was notitied of a claim by an assigiu'c i,: the juilgnu^iit debtor (the assignees being an ottircr em])loyed by the sheriff), and on the same diiy the plaintiff's solicitors directed him to sell. Th' sale took place on the 12th of Febrnai'y, and nn the 13th of February the sheriff received tli' money arising therefrom. On the 2()th of I'd.. ruary, the sheriff informed the iilaintiff's soliii tors that the solicitors for the assignee foi'bad liiii; to pay over the proceeds, and on the 2npli- cation, referred to a conversation which he hml had with the claimant's solicitoi-, in which tin latter told him that the elainumt did not jJiojMi^^t to claim the goods, or interfei'i; with their salr, but would contest the right of the jjlamtiff to tli.' nioney arising froni the sale, which w as to n- main in the sheriff's hands. The sheriH' -aUo swore that he related what the claimant's sf)lii.i tors had said to the plaintiff's solicitor Tin sheriff's excuse for his delay from the 13th "t February to the 5th of March v\as, that he di.l not understand that it was his duty to take tin- initiative : — Held, that the sheriff sold with tin- consent of both parties and did not, therefoic improperly exercise his own discietion, so tlmt the contest ))roperly arose as to the ])roceeds n, the sale. Held, that the delay from the l.'itli Februarj- to the 5th !Marcli, no ojijiortunity ci trial being lost, was not unreasonable. Helil. that the fact of the claimant Ijeing an officer in the eni))loyment of the sheriff' made no difference. Per Boyd, C, The disposition of the court is tn be more liberal in relieving the sheriff now than formerly. JMrllni/ v. Collatton, 10 1'. R. 110.- Mr. Winchester, sitting for i\m MoMir in Chcm- hers — I'roudfoot — Chy. D. The sheriff having .seized good.sof much greater value than the amount of plaintiffs' execution, which Were claimed by a third party, receive! from the chiimant the amount due on the execu- tion in cash, and withdrew from the seizure :- - Held, that the sheriff had not thereby disentitlcil 3.1^ 353 INTERPLEADER. 354 Si'fl DiviM n;i>. |Ut'stion oil till tlu' l.st of l-M, 111 iissiMjiici' I,; lifiiig lui otiic tT till' siiiiic (lay rii to si-ll. T!i' riiiiry, iiinl n;, r ri'Cfivi'il til' ' L'(>tii of Vr\.. iiiiititl"s Soliri IH'l' fol'llild hill: o'Jnil (if Miiirli I the assij.'iiii - .'(1 to anv liiiii. iveii of the n|i 'J'lu' slicii;! Is of thu Mill', '])l('ii(lei' ajipli- wliit'li lie liail in wliicli till ill not ]ii'oiiii af ter wa nU issued, a ml t he sherilF endeavoured hut was nnalile to seize the goods. It was alleged, ami not eontiadieted, that the exeeiition i red i tor iiljil defendaii' were colliiding to defeat the mort- gagee's claim : — Held, that the sheritl' was not iiititled to an interpleader. < hjili'ii v. Crniij, 10 P. 11. ;i78.— I'alton, .)/.(.s/-'/'— Itose. Where a sheritl" intends to take goods under an t'Xd'ution the eoiirt has jurisdietio i to grant him an interpleader, lint this jiirisdietinn will lie rare- ly exercised, and never unless it is shewn that till' projierty or jiossession in the goods is in the ili'ti'iid.int. ///. Shares of the stock of an iiieoriiorated eomiiany may he seized and sold under the Kxecution Act, K. S. (). c. ti(), hy a sheritl' under a li. fa. goods, and he is entitled to an interjileader under see. 10 iif the Interjileader Act, I!. S. (). c. .")4, where an iiih'erse claim to the stock is advanced. The trial iif the issue was, however, stiyed until after the tiial of an aetiini lietweeii the sjinie parties at- tiii king thecouvevance from the judumentdelitor. Bi-'iini v. \H.iwi', 10 1'. R. 4'2I.- Dalton, .l/a.v/cr —Cameron. Interpleader orders should he granted with ex- treme caution ami only after strong iiresnmptive evidence of the goods heing the delitor's, which slimild ordinarily appear hy his being in jiosses- sioii, liy an atlidavit of the lielicf of the sheritF, if lie has such belief, and by a similar atlidavit of the execution creditor. JJiinain if a/, v. 7'(e.f, 11 1'. 1{. GtJ.-Rose. A sheriff, instructed by the execution creditor Went to the store which had been the defendant's, fiiiind the claimants in jiossession and tlieir name over tilt! door, and notwithstanding this, and without further imjniry made a seizure. Ujion ii claim to the goods being made, the sheritl' aji- plied for an iuterjileader order, swearing j)osi- tively that the seizure was of goods and ehattels lii'liinging to the defendant. It was admitted that tlie defendant had made an assignment of all his jirojierty before the seizure : — Held, that an interjileader order should not have been grant- I'd, and au order was made barring the execution creditor. Jb. ; S. C. ^'Jli. Semblc, that if the claimant be in jiossession :it the time of the seizure, the execution creditor should be jdaintitt' in the interpleader issue, lb. 23 The order in this case was varied on ajijieal by the Divisional Court, by directing the jiarties to jiroceed to the trial of an issue at the next as- sizes, the execution creditors to be the jilaintitl's and the claimants to be defendants, and the (inestion to be tried to be, whether at the time of the seizure the goods in i|Ucstioii were exi- gible under the creditors' execution, or the exe- cution of either of them, as again. . the claim- ants. .V. C, II r. R. '1\W> (,>. 15. D. See Piinlii; v. C'/rti.v, U (). {{. TJt, ji. 101. 2. Ill Other Ciisr>i. The Master in Chambers made an order direc- ting an interjileader issue tube tried between the jilaintitf and certain attaching creditors as to the validity of tl..- jilaintiir's judgment and execu tion : — Held, that the issue directed was war- ranted by s. 10 of R. S. (>. c. .-)4 (the Inte: jilead- er Act). Li'i'i'h v. lyUliniii.soii, 10 l'. R. 220. — Rose. The order proviiled for the trial of the ques- tion of the validity of the jilaintiff's jiidgment as against creili^ors generallj', and also jirovided that on the trial of tlit; issue it should be ojien to the attaching creditors to shew that the plain- till "s judgment was void as against the attaching creditors for fraud or as being a jireference : — Held, that these |irovisiiiiis were warranted bv s. .S, K. ?S. < >. c. .')4. /'-. Held, following Leech v. Williamson, 10 P. R. 22li, that attaching creditors may be "claini- auts " within the meaning of the Interjileader Act. Although Maclie r. Pearson, 8 O. R. 745, in eU'ect decides that the execution creditor, who has seized before jirocess against the defendant as an absconding debtor has issued, is to be jiaid in priority, yet that decision having been ren- dered by consent in a summary way, is not bind- ing ujion the claimants in this case, who may choose to litigate ujion issues which can be car- ried to ajijieal. Sfinii/iii-il Ills. Co. V. Hiii/lics,\\ P. It. 220. -Boyd. The jilaintill', .1. P., and one I'". T., severally claimed from the defendants jiayment of the moneys due under a certain certiticate of meni- bershiji issued by the defendants to 'J'. 1'., de- ceased, the Jilaintill' claiming as administrator pendente lite of T. P., .1. P. claiming that the certiticate had b(;en indorsed to her liy the de- ceased, and Iv T. as administrator. Itajipeared that a dujilicate certiticate had issued to T. ]'. ujioii his alleging that he had lost the one origin- ally issued. The defendants were always willing to jiayany one who might be entitled, and ujion this action being brnught ajijilied for an inter- jileader order in rcsjiect of tlic adverse claims. J. P. did not ajijKar in answer to the ajiplication, and her claim was barred, and the money or- ilered to be jiaid to E. T. njion certain terms. Ujion an ajiJieal by K. T. fi'oin this order it was ; — Held, that there was a right to interpleader upon a summary ajijilication, either under s. 17,sulj-s. t), 0. J. Act, or under the former practice of the Court of Chancery. Rule 2, (.). -J. Act, does not extinguish any right to interjilead that formerly existed ; it regulates the practice only, and ena- bles a defendant to obtain relief iijion a summary ajiplication, where formerly it would have been I necessary to tile a bill : — Held, also, that the 5 J ..iS 355 INTERPLEADER. 350 ;s \^ l!B tl "C m ;s ii*" ,'0> m i \j i«" li u II li {.' I ■ 1 1 1 1 defL'ii(liiiits WLTi' ciititli'il to tlieir costs of tliu I action :iiicl .a|)i)li, p. ,3.')4 ; ' Stiuidanl Jii.f. Co. v. Jlin/h.-.., 11 1>. R. '220, p. 3J4. ; 2. Other Cases. All interpleader issue ari.siiig out of an action in the High Court of .lustice was directed to be tried in a County Court i)ursuant to 44 Vict. c. 7, s. l,(((nt.); — Helil, that a motion to postpone the trial of the issue should have been made in the County Court. l.oitd1 I), mi'ii the trial of an intcr[ileader issue, upon the grouuil that the decision was interlocutory, and not ap pealable under sec. .'{.">, (.). .1. Act, was dismissiil without costs, the members of the ciniit beiii„' divided in opinion. Per Hagarty, C. .1. O. , aini O.slci', .1. A. — The decision in (|Ucstiou was an interlocutory order within the meaning of sec .So, (). .1. Act, and tme from which there won!. I have been no relief before the passing of the (i. .f. Act by a direct a[ii)eal to this court ; and sec. H.") precludes such an ajipcal under theO. ,). Act, though thcj'e is the riglit to have the order ri heard bj' a divisional ( 'ourt, ami an apiical lic^ from the order on i-eheariug, which is not le,-s interlocutory than the order at the trial, because an apjieal lay in such case before the (). .1. Act. I'er Hiirtnii and Patterson, .M.A. — The decision is a tiual adjudiiation on the ipiestion of pro ])crty, and is only interlocutory in the sense of being a ste)) in the inti'rpleader proceedings which, as a whole, are interlocutory with rela tioii to the original action. Hut an ajiiieal lay before the .ludicature Act from the decision ol an intcr[)leader issue notwithstanding its inter locutory character. 'I'hcrefore, this decision being the decision of a .judge in court is aiipcal- able under sec. .■)7 and is not w ithiii the rcstric tioii of sec. 3."). I'er Ciiriaiii. — Mule ."ilO does nut give a right of ajijical from the decision in (juc> tioii, for it is in tcr'-'s limited tua•re, per I'attersou, J. A., whetlier the term "interlocutory" in sec. 3o is not used in the same sense as in 4o Vict. c. (i, s. 4 (Out.), as denoting the character of the decision, and not the stage at which it is pin- noiinced. ^IcAndrew r. Harker, 7 Chy. 701, discussed. l\'/iitiiiij v. I/orey, 12 A. R. 111). IV. Costs. Held, on the facts stated in the special case, that the plaintill' and defendants should each pay their own costs of the interpleader, and ciilIi one moiety of the costs of the railway company and of the sherilf. MrLitren v. Canada Cetitni' I,'. W. Co., 10 p. R. .328. -Dalton, Master. On ajtpeal by a sheriff from the order of the .Master in Chambers striking out so much of a former order as awarded the sherill' his costs nl appearing on a motion made by the claim;iiit, in an intcriileadcr for a final order barring the exi - cntion creditor for default in giving securitj" icr costs, as directed by the order granting the inter- pleader : — Held, that the sheriti' was propeily served with notice of such motion, and was cii titled to Ilia costs thereof. Cray v. Alexund, r, 10 I'. R. 3,58.— Osier. When a writ of ti. fa. goods is j)laced iu .i ] shevitl's hands, and special liirections are givt ii i to him to seize jiarticular goods, though not in 1 eontcmplation of an adverse claim, if the execr.- : tiou civditor abandons alter interpleader pre 1 ceedings have been t;dvt;n, he must pay the slii' 1 rilis and claimant's costs. I'austadtn [Ex. Cri - 35G ;157 INTUXICATINU LI(,»L:oHS. 358 should havu :r i;. S. ( ». r. !//>•, 11 1'. H. is court from <. .SI 4), iipmi 111 tlic ^rouuil , illld not !l|l' liis (lisiiiissiil I'liurt lifiiij,' C, .1. ()., aii.l ■itioU Wil.S III! MllillJ,' of SCL'. tlicn; would ;iiii,' of thu (I. lilt ; iiud suL. lii'O. J. Aft, tliu ordi'i' n- 111 iii)|if;il lii ^ :li is not l^'^s trial, lii'uausf licO. J. Act. -Tlnj (k'ciaioii stiou of pro I the .sense of proceedings ly with rela II aj)peal lay le decision oi ling its inter ;liis decision lilt is a])iieal- n the restrii • 510 does iKil isioii in (jues- tlie trial of I) tile trial <>i terson, J. A., ill see. 35 is •15 Vict. e. (i, acter of tlu- jcli it is ])io- 7 Chv. 701, . R. 119. .special case, sliould each It^r, and eai'li rt'ay cfpiniwny iiri'lii Ceiitnt' Ma.stcr. order of the so much of a f his costs of ; claimant, in ring the ex. - :,' security lul- ling theiiitci- was properly and was eii V. Akxamli r, ! ))laced in a )ns are giva hough not iii if the execr,- rpleadcr \ivo t pay the she lii'jr) V. Vaiixlatli'ii (Kr. Dihior). likhanUon '■laiimiiit), 10 P. K. 4'2S.— ((sler. Where the special directions wert^ sworn to on lie .side and denied on the other, it was:— Held, •ji it the siierill' niiist l)<^ assmned to liave acted i ..lily under the writ, without such directions, j iiid an appeal from tlie master's order refii.siiig ii>ts to the sheritr was dismissed, hut witlioiit lists, as the allida\ it in denial contained imper- tinent and scandalous matter. Jh, See. 10 of the interpleader Act, U. S. (». , c. ' ,'il, does not place a slieiiH' in a more advantaye- •iis position than an or., l)efoie the Keeorder's Court of tile city of (.)., alleging that "on Sunday, the l.stii day of .Ian iiaiy, ISSO, till! said defendant has not closed, dining tlie wIkjIc of the day, the house or liuiM- iiig in whicii he, the said defendant, sells, causes to he sold, or allows to lie sold, spirituous liijuois hy retail, in i)uantity less than three half pints at a time, tiie said house or huilding situate, tVc. ' 1'. was convicted. --V writ of proiiihition, to have the conviction revised hy tiie .Superior Court, '.as suhseiiueiitly issued, and u|ion the merits .va '■ set aside and tjuaslied ; — Held (jier Ritchie, ■ . .!., and Strong and I''oiiiiiier, .J.I.) tiiat til', jirovisions of tlii' I'rovincial Statute 42 and 43 \'ict. e. 4. ordering houses in whieli .spirituous linuors, ite., are soM, to he closed mi .Sundays, and every day hetwecii eleven o'clock of the night until live of the clock of the inorii- ing, are pidice regulations, within the power of the Legislature of the I'rovince (ueen, 9 App. ('as. 117 followed. Siil/c v. The Coriioratiou of the City uj Thne Rinrs, 11 S. C. R. 25. 2. 3. 4. II. Sale to Indians. A conviction under the Indian Act, 1880, for giving iiitdxieatiiig liquor to an Indian imposed a line and costs, and in default of iimiicdiate pay- ment, im[)risoiinient : — Held, that the conviction was invalid and must lie (plashed, for while s. 90 provides as punishment for the oU'ence, impris- onment or fine, or tine and imprisonment, it does not authorize a tine, and in default ol payment iinjirisoiiment ; and tiiat the defect was not re- medied by a. 98, whicli enacts, that no ])roseeii- tion, conviction, &,c. , under the ."^ct shall be in- valid on account of want of form, so long as the same is according to the true meaning of the Act: — Held, also, that the conviction was in- valid because it did not negative tliat the liijuor was made use of under the sanction of a medical man or minister of religion, linjina v. Miu-Krii- zie, 6 0. It. 16,5. — l-tose. The olTence was selling lii[Uor to an Indian : — Held, no objection to a conviction mider R. S. O. 0. 181, for if so the defendant was guilty of .: —3 1. -'■ II *'i < "I I : =i» : •"• Ml ■•' • ; ■'. » 21" ■*!■ ;i5D INT()XI('ATIN(; IJ(^UOi:S. 'MO I > • ■ II H li a c c a •4 e two iitl'fii(f'>, niie iiiider tliu latter Ait, iiiid one uiiilir tlif liuliiiii Ai:t. /'"jinn v }'(/»»;/, 7 O. H. HI. LiriAsivs Asn Lk i;ssi I'l k. 'I'lic cl( fnnlaiit, a liii'NM r liciiisdl to iiiaiiiifac tiii'i: all', 1^1'., at I'aliiicr >t(iii, iitiili r a iliiiiiiiiii>ii ijifiiMr, \\n'\ a I'fllar or vault at lliaiitfoiil, \\ lirri' 111' stol'ril Miii'li i\\t'., tVi'., anil Milil it in i|iiaiititirs not li'NW tlian .'illowiil to lir solil liy w liolrsali' : — lltlil, that till' sail' was aiitliori/iil umlrr tln^ iloniinion liiinsf, ami that ii piovincial lii't'iiHc was not ri'i|niri'il. J'njiiKi v. Yitiiini, S (). R. »7(i. Kiwi'. .\.s till' (,>uili('C l.iri'M \rt (loi's not intirfi'ii' \\\t\\ till' cxiHtin;,' ii;,,'lit.s ami |io«ri'.'^ of inioi|io- lati'il I'itii-s, ii liylaw passi'ii liy tlir ioi|ioiation of till' I'ity of 'i'liii'i' llivi'is, on tlu' .'{nl April, lfs77, in virtiii' of its I'liartii- {•!<) \'irt. i'. I'Jlt. ami ,'!.S \'ii't. c. 7() mi tin: .sale of into.\ii'atinj,' lii|U(irs, i.t within the jiowcrM of till,' .sriil cor|ioraliiiii. Siilti- v. Cni/io- riilinii o/l/ii- Citi/ (;/■ T/n->r /.'-cy's 1 1 S. ('. K. '25. Sui' /\'> ('rooiiii' mill Tin M iiniiijiil/ ('niiiu'il of till' rill/ iif lininlj'oid, (). K, Kss, p. ;i(iO. \'. SiiiniissioN OK Canaha Tioii-kkamk Act, JS7S To I'll.ECToKS. 1. UiiiintUji. 'I'lie ilift'iiilant wa.s convii'teil of havinj.; .hoM intoxicatiii;,' liijuor.s on ItJth Dei'onihcr, I.SfS4, at the town.ship of ( )aklaml, in tlio I'onnty of Mrant, heiiig the ilay on wliieli the vote for the iiassai,'e of the (,'anaila 'reniperanee Ai't for the eouiity of iJnmt was taken. 'I'lie t.owiiship.s of Oaklaml anil Murfoi'il, in the eounty of liiunt, hail been fur the purposes of iloniinion eleetioiib se])arateil from the eounty of liraiit anil aiiiiexeil to the ail- joining eounty : — Held, that the wmil "county," as used in the t'anada 'I'l'iiipt raiK-e Aet, 1878, nieaiis eounty for niuuiiipal and not for eleetoi'al j)urpo.ses. Ji'n/iiia v. ,S/iiiri'li(ir, 11 (J. R. 7'27 — i-i. 15. D. Certain ixirtions of the county of ]>raut i.'on- sist of Indian lands, and the sale of liijuor in these lauds is regulated by the Indian Act of IMSOandaniendnients thereto :--Helil, that under the eighth ol)jection to the conviction — that it did not apjiear that the votes of the electors on the Indian land.s in the county were taken upon the j)etition for the Act, or that jiroper means were taken to enable them to exercise their fran- chise, or that they were permitted to exercise it — the present proceedings did not properly bring the matter before the court. //*. On an application to (piash a conviction under the 'renii)erance Act, 1S78: — Held, that theadop tion of the Act is on the day of polling. J!ii/iiin V. ILili>in—J,'iiihia\. I)(i/;j,'l2 (». It. ;«0.— (!alt. 2. Scvnl'iiiii of Voles. A juilge of the County Court, in holding a scrutiny of the votes polled at an election under the provisions of the Canada Temperance Act, has only to determine the majority of votes cast, on one side or the other, by inspection of the ballots used in the election, and has no power to ini|uire into oflt-nccs against the Act, and al|n\^ or reject ballots us a result of such impiiiy. (Heiirv, J., ilnbitalite.) ('/iii]iiiiiiii v. Hiiinl. II N. C. Ii. WVl. Held, nllirniing the juilgniint of Rose, ,1,, !l ( I. I I!. I.')4, that a county court judge will not Ipi compelled by mandamus to cnnuire, on a sciiitiin of ballot palters, nndir sections (H, (i'J, (i;< of tin' Canada 'reiniierauce .Act, 1S7'S, (I) as to person atioii, (•_') bribery, \',\) the .status on the vot('i>i' list of persons voting. Iti' Ciiiini/a Ti iii}ii'i'ifiiri> A''l, !•_' A. R. <;77. V. Rv-I.AWS I''lXIN(i Nr.MIIKH (IK RliKSSKs. Meld, that a by-law passed )iy a citj' i'ts])e. t ing saloon and shop licenses did not reipiiic ti state the numlier of inhabitants of the city so ,i> to shew on its face that the number of Iicciim > lixid was within the statutory limit. AV Cruoni' 'Hill l/ii' MiDiiri/iiil I oiliiril (if'llif I 'ill/ iij /iyiiii'l'iiiil. tlO. R. ISH. — Ro.-ie. A provision in the bylaw limited the niinilMi of licenses " for the ensuing year, beginning ch May 1st, 1SS4, or fur any further license ycai until this by-law is altered or repealed :"- Held, valid. Ih. A further provision \.as, being merely u re enactment of the statue, that the by-law should remain in force until altered or repealed : — Held, unobjectionable. Jl>. All objection that the by-law provided for a duty in excess of ij^dd, whii'li, it was urged, should have been submitted to the electors by separate by-law, was overruled, because in fact the by-law contained no such provisiini. III. (j)uare, whethei' several niattei's, each of wliiiL rei|uiri's the assent of the electors, can be enacted in one by law, or whether there must be separate by-laws separately submitted to the electors. //». The by 'law did not state whetlier it was passed under the Dominion or Local legislation :— Held, that as it stated no particular jxiwcr as its basis it must lie judicially regarded as emanating from that power which Mould authorize its passage. /'-. Senible, if the Dominion legislation was in force, then, even if passed nnder the Ontario Act, umler sec. 140 of the Dominion Act, which provided that all local laws passed for regulating or restraining the tratiic in liipiors were to be in force until 1st May, 1H84, it was in force when passed and until rejiealed by tliat section, and if so repealed was no longer in force and could not be (plashed : if however the Ontario Act was in force then it was valid under that Act ; and tin- sending a certitieil copy of the by law to the in- s])ejtor under sec. 44, sub-s. '2 of the Uominioii Act did not disentitle the ap])licant to invoke the aid of the Ontario Act in its support, lli. Another provision was, that " I'] very person receiving a shop license shall confine the busi- ness of his shop solely and exclusively to the keeping and. selling of liipior :"— Held, that this was not ultra vires and in restraint of trade. Jh. It was also objected that sec. 35 of the License Act of 1SS4, 47 Vict. c. 3.") (Ont), in ett'ect re- l)ealed the by-law, as it made the duty iiiorc than !^'2W), and the council had not subinitteil the quebtion to the electors : — Held, that if re- :{t;o r INTOXfCATiXd I.IQlJOliS. .'?62 t, and all<n a,scruliii\ '.•-', fi.Sof th'r IH to |ll'lNliM the Voters' 7V iiijiiriinri' Li< r.NSKs. Aty rcM])(., t it rt'(|iiiic ti lie (Mty MO ;i- 1' of lii'i'iix- J\'r CriHD/li f Hnniifiiitl . tliu iiuinl» r u'yiniiiiij,' ON licunsi' yiiii J.l:"-Hel.l, iierely a le -law .slioulil led ;— Ji(,'M. )vided for ;i was urgiil, electors Ky anse in fact on. Ih. v\i of wliiiK 1 he enacted 1)e separate lectors. /''. : wasjiasscd on:- Held, as its l)a;-is nating from [jassage. /'-. don wa8 in. :he Ontario Act, wliicli r regulating ere to be in force when jtioii, and if (1 could not Act was in jt ; and the IV to the ill- 'i Dominion ) invoke the , II). rery person e the husi- i-ely to the <1, that this trade. Ih. the License n ett'ect re- duty more sulunitted , that if re fiealed it I'ould not lie i|uaslied ; liut Scndile, thill iireviously conviitecl of an olVcuee again*; the the ettcrt of tile Mcctinn was to add the increased siiid .\et. " .\ certilicatc liy the convicting iM,ii;i«- ihity to the .•uiioiint already |iriivided for liy the tiare of a, prior conviction was put in at the tiial liylaws previously passed unless the council sa\» under sec. pJ-J, sidisec. '2, of the .Act, to;' the lit prior to tlu^ l.")tli .April, |NS4, to amend the purpose of proving smdi previous convictiMn : liy -law as to the licens.' duty payahle there- Held, that proof of the fact set out in the report luider. ///. constitutc-d no e\ iilence of any otrcnce, anS. Ri-iiimi v. Ilmliiuii, \'l (). R. ,'W7.— Wilson. VIL ('(iNvrcTroNs. 1 . Kridi iii-r. (a) Of Prior Conrj'lion. Held, that see. I2'2, auli-s. '2, of the ('. 'I'. Act, ,!S7!», does not dispense with strict proof hy ])r<)- ductioii of the original record or otherwise of previous convictions where it is sought to ini])ose the increased penalty uiuler sec. 100, and tiiat the eertiticate mentioned in the section can only he admitted as ])roof of the nuinher of such con- victions. ReijiiKi V. Kc.iini'i/if, 10 O. K. 306. — O'Connor. The defendant was charged with selling lic^uor contrary to the provisions of the second p'lrt of tile " Canada Temperance Act, 187H.'" 'I'lie in- formation charged a, previous conviction for an ott'ence under the said Act, as follows : " The iufornuuit says that the said James Kennedy was (111 (fUlrr CC(.S,'.<. i 111 pioeuee. liy It. S. (»., c. hSI, H. Hil, wiiere the act or ' omission coniiilaiiied of is one for wliicii, if tlie ; defendant Were not duly liceiiiej, he would he liahle to a peiialtj' under tiie .Am, tile hiirdeii of proving tliat he is licensed is on tie; defendant : — I jeid, no ohjectioii to a. conviction that it did not show defeudant wah not licensed. ItujiiKi v. )''/"//;/, 7 <•. K. HS, Osier. Held, tiiatuiidcrsec l'2:{oftlieC T. A.'t, ls7S, hy \\ iiicii tile accused is made ■■. competent :ind coiiipeliaiile witness, lie is not hound tociimiiiate himself. /'niiiKi V. /lii//)iii ; It'ii'mii v. l)ahi, VI (>. It. ;i.'{l), -( Ialt. Not followed in Itiiiimi v.' /•'/-, i;{ (). K. "lOO. The defendant was convicted liefore the police magistrate of the town if S., for unlaw fully keep- I iiig for sale intoxicating liipior, iVc, at tiu' said 1 town contrary to tiie Canada Teiiipcrance .\ct, ; 1S7S. The depositions were to tiiat etl'ci't. and ] the evidence shewed that the liipior was found upon tiie premises of the defendant in the said town:- Held, that the local jiii isdii;tion of tiie police magistrate siitlicieiitly ap|ieared. A'. 7///" V. /hiiili', l'2(). K. 347.— Wilson. r>efoie any complaint or charge was made against the defendant, a searcli warrant was issu- ed and executed, and evidence oht:iined upon ids premises, under which he wasconvicteil : — Held, tiiat a searc'h warrant under tiie C. T. Act, 1^78, is a proceeding to sustain a cliargt! made for an ott'ence committed against tlie .Act, and not a pro- ceeding taken upon which to fouml a charge to he made in ease liquor is found on the premises : — Held, however, that altiioiigh tiie search war- , rant wms illegally issued the evidence ohtained i under it was admissible against the defendant. Tile defendant was charged witii the offence of I keeping liipior for sale contrary to the provisions of tiie second part of the (,'aiiada Teiiiperanee Act. Kvideiice was given of the tiiiding of cer- tain of tiie a])[ilianees nieiitioiied in s. 119: — Held, that ;ipait from the presumiitioii created liy tiiat section 141011 the tiuding of such appli- ances, such linding was evidence of a keeping for sale, of the weight of wliicii the magistrate was the jiroper judge. Ilcijiim v. lirai/i/, 12 O. K. 3r)8.— Wilson. •t> I II •* '1, w W>l H •an . «1< I ""' m .-1: B!i* «'• -.•ti' 9 363 INTOXIOATING LIQUORS. 304 1 1 »l II ■fl < I m i! c !l dB M ia '! :» ll 1MB i 1 "Ml 4i ^ II a {] i: «M ■1 fi The fact that the Ciiiiada Teinpcraiice Act, S78, (seooiul jiart) is in lorci; in any uoiinty, &c., niiiHt he pnivud like any nther fact nuccsHary to j,'ive jurisdictiuii. Itiijiint v. EUtittt, 12 O. K. ^I'lA. — Uose. 2. Pennllij nml PkiiIsIuiioiI. The (Icfenilant was c()iivictf(l under section 4) (if the I,i(inor I^icenso Act, I-t. S. ( ). c. 181, foi- selling h'(iuor \\itiiout a license, :rud nn.'.il hyliiiu to he con- sumed on the premises ; and one penalty was in- Hicted "for Jiis said otlence :" — Held, had, in not showing for which oll'ence the penalty was ini- |)osed. Jtcijiiia V. Yohikj, o (). !>'. 1S4((. — Itose. Convictions imposinj,' the increased j)uiialties foi second and tliird oll'ences, undei' the Li((uor License Act, s. H'i, are l>ad unless proceedings have heen taken foi- the first otlence. Itaiina v. J!o(liKll, i) O. n. 180. — Hose. Held, also, that the ptmishnient for oU'eiiee.s against sec. 4,*? niiist he either iniiii'isoiiment with hard hiljour or a line ; and that such imprison- ment in the event of non-jjayment of the tine couhl not he awarded, hut only imprisonment without hard labour. J li. A ])enalty of thirty days imprisdiiment in de- fault of sutllcient di>tress for the line was im- posed : -Held, good under R. S. (). e. IS], sec. 51 and 50 of the Act. Ji'ci/hirt v. Yoiui'j, 7 O. R. 89.— Osier. Sendile, that notwithstanding Fitzger;dd >'. .McKinlay, '21 ( '. !.. .1. 'JOit, the informer, under ('. T. Act, 1S78, may he entitled to half of the line, /'('ii'ii'i V. Kli'iiip, 10(». It. 143.— Wilson. Held, that when a distress warrant has heen issued and returned, the truth of the return can- not lie tried u|)on atlidavits. Ji'rijhnt v. .Stoider- •,(»/, l'2(). I!. 1 7S.— Osier. It was alleged hut denied, that the hailitl' had refused to receive the ])enalty and costs : — Held, however, that his duty was to execiit(! the war- rant of commitment, and that he had no authority to receive such payment, lli. The warrant of commitment which was not issued until after the return of the distress war- ] rant, ^^as dated the 14th .luue, and the distress warrant was not returned heforethe I7th.lune: — Held, that the warrant of i;ommitmeiit need not • he dated at all if not issued too soon. ///. The conviction in this case was for a second oti'ence and ini]iosed imprisonment in default of payment of the fine and no distress : — Heh'., that sees. 57 and (1'2 of the.Sunnnary f'onvictions Act, which form a jiart of the Canada 'J'emperancc Act, aiuhori/ed imprisonment notexceedingthree months in default of sullicient distress. J{((/iiio,y/(', \'2 0. K. :M7. -Wilson. <,hiaM-e, whether fer a third otlence under the Canada Temperance Act a tine of 8100 cannot also be imposed in addition to imprisonment. Ih, The magistrate ordered the defendant to pay §1 for the use of ttie hall for trying the case, aiul coadenmed the defendant, in default of distress, to imprisonment : — Held, tiiat in ordering p;,v meiit of this sum there was a clear excess m- jurisdiction, and that ordering distress, &c., m;i- a further excess, and that the matter was one .:'. principle and not of form, ami the convict ji) was (plashed, liegina r. Wallace, 4 O. R. 127. and liegina r. Walsh, 2 O. R. 2(l(>, coninieni .; on. lieijimi v. Elliott, 12 O. Ji. 524.— Rose. See Beijiita v. MacKenzie, 6 O. R. 165, p. ,3,■^ ; Poiiliu v. T/ic Corporal ion of' Qiu'lirc, !) S. C. I; 185, p. 35S -.Jii'ijina v. Jiradi}, 12 O. R.358, p. •Sic,. .3. Amendinent of. Held, that an amended conviction cainiot i put in after the return of a writ of eertior.ii h'(:. J, comnieniv V24.— Rose. R. 1 fi5, p. .^■|^ <-Ur, s. c. i; ). R. ar)8, p. 3ii:;. ii'tioii caunor i.. it of certioniii !')-C. i'. JJ. Ill its face siluu force, the ('(hh't 1 to be aineiiili .i for this ]iur)j..-. (iazette"' pr., ileil. Hcijivd y to Qtutih, i.sh a convicri.)] vate jii'oseciitui without ha\iim that the ohai,'. 'lice. Reijhm v lor. 2r)4, p. 36y. ran. lot. having In i. ato, &c., umir;- t, 1878, was :\|i 'ari. Rtijinii v. "einperance Art, I'i.sdictioii, cevti )iit an appeal to owever, is itsi Ir' le Canada IV'iii viutiou is hefdiv I'lna V. B(iin. al to this court ; 7. Of/i< r Caw.^. Conviction held bad for not shewing the jilace u iiere the otl'elice wa.s committed, liiii'ma V. YuKiiij, 5 O. R. 184 (t. A conviction under R.S. O. cli. 181, for selling lii(Uor without a license, jiurporting to be iiiadt; liy three niagistratus, but sigueil by two oiily, Uiis returned with a certiorari : — Held, if an nbjeution at all, a ground for sending back the \\rit, that the third magistrate might sign the conviction, ..... not a ground for ([uashiiig it. Itci/liia v. Vdiniij, 7 0. K. 88. — 0.sler. Held, that the conviction in this case could not stand, iuasiiiucli as it did not ap])"ar by the iii- forin.ation oil which it \\;is founded what the iia- titro of the jirevious oU'ence was, or \\ here it was (Diuniittt'd or that it was of a similar nature to the fresh otrence charged by the infoniiation. I!i(jlna V. Kenniilii, 10 O. It. HflO. — O'Connor. I'or the oli'eiice of selling li(|Uor contrary to the pro\isions of the "Canada '['einperance Act of 1S78, " a summoi's was issued under 'A'l it 'X\ \'ict. r. 31 (Doin.), made ap])licable to prosecutions fur .such an otl'cnce, but which was not personally .iiiived on the defendant, being merely left at his jilace of abode. The defendant did not a])])ear licfore the magistrate at tli(^ time and ])lace men- tioned in the su'.mions, whereupon the niagia- trate jjroceeded ex ])arte and convicted him ; — Held, tlia ., the conviction iM'.st be (|iiaslied ; ami, :'.s it ,i|i)ieared that the de.endant had attempted tu tamper with the informant, without costs. il'il'ma V. Jt'i/aii, 10 (). K. '2.'i4. — Rose. It was alleged that the jirosecutions for offences against the .\ct ^\ ere taken Ivefore the magistrates ill this case because it " was notorious they were tlioroiigh-going Scott Act men," and that they had said that in no case of conviction would they iiiilict 11 less tine than .S.'iO. It was also alleged tiiat one of the justices was a member of a local c'liimiittee for prosecuting ofl'ences against the Act, bnt it appeared he had resigned from the L'oMimittee befor" rlio Act came into force in the ciMinty : — Held, that there was no di ilifyiiig inrerest in the '.nagistrates, nor any real or sub- slLiitial bias attributable to liiem, nor any reason V hy they should not lawfully adjudicate in the case. The cases relating to dis(|iialilicatioii by rc;ison of favour or interest in a judge or magis- tiite discussed. Hi'ijhiiix. K/i nij.', \() O. R. 143. — Wilson. Followcil in R((fina v. KVi, 10 O. R. T'J". — O'Connor. The magistrate at the close of the case made a minute of adjudication, in which he stated that lie found the defendant guilty and iinjiosed a tine of fifty dollars and costs, to be paid by a date named, and awarded iiii])r;sonment for thirty ilaya in default of ])aynient. Afterwards when drawing up the formal conviction, the magis- trate adopted the form II, in the schedule to the Summary Convictions Act, directing that in de- fault of payment by the day named, the ])ciialty should be levied by distress and sale, and award- ing imprisonment for thirty days in default of sutficieut distress. Held (1) that the conviction in the form Ii, was the proper conviction to be inaile, nnder the combined provisions of section 107 of the Canada Temperance .Vet, and sections 4"2 and 57 of the Summary ( 'oiivictioii.s Act, and not the form I'.>, to which form the minute oi adjudication apparently iiointed. ("_') That the conviction wa ■ ..pen to the objection that it did not correspond to the minute of the actual adju- dication, and, therefore, could not be sup])orted for want of jurisdiction in the magistrate to ir.aUc it. (.3) That nnder sections 1 17 and 118(';uiada Temjierance Act the ('(uirt. mion the motion to quash, might oii the merits upon the material returned with the certiorari, and that ill this ease the conviction, being war- rantiMl by the evidi'iice, ought to be atlirmedand the minute of adjudication aineii< i "»l u |S> t» » '"ml m H<) m ••1 m ■ 0I\ 1 :.(iSl ■ •1 •i.»H ' m> • ' ml * < «»< • ' nK • < Ml*' ft JOINDER OF CAUSES OF ACTION. See Pleading. » B « e & •►* K-l » I* •b ■^ m> •■■ s i ttB M* II IS i {' •" 1 1 *" •! S ' 'Ml S'^T JOINDER OF rARTIES. See Pleading. JOINDER OF ISSUE. See PLKAUlN(i. JOINT CONTRACT. See Clarke v. The Union Fire lus. Co., 6 0. R. fi.So; .VcMillanv. The CI rand Trunk R. W. Co. Hal., 12 0. R. 103. JUDGMENT. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. JOINT STOCK COMPANY. See CuuPoKATioNS. JOINT TFNANT, (iranting th.at a release l)y one joint tenant would extinguish the right of both, it does not follow that entering into a new agreement by one will prejudice tlie riglit of the otlier. Clarke V. The Unhin Fire Ins. Co. — Mei'hee'a Claim, G O. R. 635.— Proudfoot. XXI. XXII. XXIII. XXIV. 3C8 Imi'Eaching Judgments, 374. Setting Aside Judgments, 375. EsroPI'EL BY F0R.MER JUDG.MENT, 37li. FoKEKiN Judgments, .377. IiMK OK Takin(j Ekkect, 378. INTEKKST ON JliKlMENTS, 379. Assignment of Judgments, 370. Effect OK JuD(iMENT in Fokmek Pi;i.- CEEDINGS, 379. Appeals to Supreme Court — See Si . I'REME Court ok Canada. Fraudulent Judgment dulent Judgment. See FuAi. Against Absconding Debtor — See Ai. suonding Debtor. Reviving Jud(;ments — See Sciiu; Facias and Kevivor. JUDfiE. I. Of County Court— 6Ve County Court. II. Of High Court— .SVe Hi(iH Court ok Justice— 1'ractice. Cases relating to dis../// V. 1 1'// 111. For Default of Defence. See Fal v. Whit,; 11 P. R. 177. IV. Under Rule No. SO. Judgment may be olitaiiied against a nianied w. ,1. Act, in an action on a pioniissoiy note against 3C8 , 374. srs, 375. 'UDGMENT, 370. 7. ', 378. s, 379. NTS, 379. FOKMEK l'l:i.. "OURT— .S'ee Si . A. ' — See Fkai- ;btor— .Vee Ai,- — See SciUK mites of whiiii strur, does imt )f siicli settling s tlie minutis ■lis obtaining :i ut. The court ents for soiiu- iucli as are net office, because y in use by tlic to frame the /( V. Smith, 10 i the plaintiff's, K'd interest ;it t shewing any 'i'he state- bad on de- laying been ered judgment unount of the Held, that it k at the oliiee permit jndg- plaintitfs were no objection lini to six pel' (■ of liaiiiilh.ii FKNCR. 177. SO. iiist a niai'i'ied but oxeciiti' n iejiarate estate •l. J. Act, "'{"he plaintiffs' claim is .SI,70J.7'- for money lent liy the plaintitfs to the defendants, the same being the amount ii under Kule SO, O. .1. Act, for judgment, the deteiidants, the endorsers of the note, who it was said were accommodation eiidm-sers, swore that they had received no notice of dishonour. The protest of the note was not [irodueed by the plaintitl's on tlu! tirst return of the motion :~ Hehl, (on appeal from the Master in Chambers who ordered judg- ment) that as there was no evi. resided at Rowmaii- ville :— Held, that the snthcieiicy of a notiec ad- dressed to C. C. !'«• at Port .Vrthnr, was oiieii to ' argument, upon which the defendant was entitled to have a trial, and on tliis ground judgment should not have been ordered. Onlnriu Bunk v. , Bnrkr 't 01.— Rose. On amotion for judgment under Rule 80, O. •!. Act, in an action on a jiromissm'V note the de- fenilaiit tiled an atlidavit shewing that he was an accommodation maker and stating his information and belief to be, that the ])laiiititt's were aware of the fact tli.it they held the note as collateral .se- curity, and that they never gave any value for it, j and further that since the linking of the note M., I the payee, had become insolvent and made an assignment, and that there was litigation pend- ing between the ])laiiititt's and his assignee in respect of certain securities alleged to be held by the plaintitl's on account of his indelitediiess. .An atlidavit if the pl.untitl's' manager in rejily was tiled denying knowledge of the note being an a'commodation one. and stating that it was dis- counted by the plaintitl's and the proceeds iilaeeil to -M.'s credit :— Meld, not a case in which jiulg- .■«• ' ri!'. £i| :;8 HI ■ Ml k t0l * ^H Sin B, . ••< t »■< • W>l • ml a u*l • :i> ii*> « ■»>< <« <-'. ■ <-\% Si' • •M> * *1 ■ •>»< • ■"M \t .91 ll ■ft 1 H »t ll »» w- t c ■*•■ 1 ) ff i3 :S (1 4i ■w0 it 1 1 a 3 11 '«B 41 'tB> «• II 1 1 'ft ll • I •n *> 371 JUDGMENT. ineiit einilil lieoivlcrcil. Jfiifi/ixDn of al. v. Gordo)!, 10 I', l;. ,".()."). — Rose. Tilt' liiactiu'i' of iiiuving uikIci- Ruli; S(l, (). .1. Act, for luiivu to cuter final jiidgiiiunt after de- livery of a .stateiiiiiit of claim is not one to l)o (Micoura^'cd, altlioii{,di in ca.es of necessity it may lie allriwalile. UndiT the ciicunistauees of this ease, motion for judgment was refused. IVuud- ruffy. McLnimtii, II I*. 11.22.— Rose. On an np)ili('atioii, which \\as griuited nn- />'/'/'<'. McMurviili <(• Cn. v. Suit, 11 V. R. 112.- Dalton, MaM,,: this motion by an adverse affidavit without cio>. examination. ('oakital. v. Leinuux, 10 1'. |; 577.— iJalton, Mnder. — Ro.sc. V. Unkkk lU'i.K No. .321. Held, that the liusiness in this case was jint one protected hy R. S. ()., c. 12"), s. 7 : that the \erdict could not he sustained ; and under Rule 321, (). d. Act, and R. S. ()., c. 50. s. .SS.3, it was set aside and judgment entered for the defendant. Murray >: MrCallum. 8 A. 1!. 277, referred to and ilistinguishcd. Ciniipln II v. Co/c, 7 <>. R. 127.-Chy. 1). At the trial the jury answered all the cjue.s- tion.s left to them in favour of the |ilaintiir ami judgment was entcicd for him, w Inch the County Court iludge sul)Se(|uently set aside, and entered judgment for the defendants : — Held, that under rule 4t)(>, (). .1. Act, the same jiower is extend(;d to the County Coii'ts as is ])ossessed hy the High Court under Rule .321, and that the judge of the County C(]urt was right in giving judgment in favour of the defendants instead of suhndttiug the <|uestion to another jury. See, also, on the .same point, Stewart /'. Rounds, 7 A. R. 'uo, and Williams r. Crow, 10 A. R. 301. McCoiim-ll v, li;//;//.S 12 A. R. 4.3S. Sendtle, if the evidence given will not warrant the court in granting a mandamus upon motion to the court, and the court has heforc it .'dl the materials necessaiy foi' finally determining the (juesti(jn in disjmtc. judgnunt may he given for the defendants under Rule ,'i2l of the .ludicature Act. llixliijiy. 'I'lif 'J'viriiK/iii) iif JlrO'ii/lrrdi/, 12 O. R. 740— U. L. D. ! i VII. Under Rulk ^'o. 324. Held, that where an order for the signing of judgment under Rule 324, (). .1. Act, was nia/ in chandlers instead of court, it must Ije tak. advantage of hy a sunnnary api)licatiou, and tli ■ its invalidity could not he set up in an actiii founded on it. Mui-tin v. Ei'uns, G 0. R. '!> -Royd. G. 0. Chy. 41S is controlled hj' the contlictii:. ])rovisions of Rule 407, O. .1. Act, hence tw clear days notice of motion for judgment uuij. Rule 324, (). .1. Act, is sutlicient. J\Iartni.< \ Birwij, 10 P. R. 308. — Uoyd. I Leave vas given to the plaintiff under Hi;': .324, 0. J. Act, to sign final judgment, whe: j the claim was u])on a covenant l)y the far as lay in his jiouer, by leaving the said not. and liability of the nudier and giving his note i: I'enewal as agreed as collateral to the said nott wduch ten in an a^■ti^ 'iii.-i, 6 0. R. !!> )y the contlictii:. Act, hence tw judgment umh ent. Marteiir: \ ntifif under \\\{i judgment, \vhi_^ by the defendaii: 1 mortgages mail d by him to tli' , and where tl.i ,-ment of four .; lally paid tlien jnt to be entei'i i four mortgagt- >y the registrar to thcdefeniLii, ; Judgment \\\>ii\ ilder of the mui'; 10 V. R. uDH. omissory note i; see and indorsi' . at maturity, an jf a named s\ui: nued in the sam-: Before the matr After its mat!.' linst tlie endorst: neut asadefenot', 1 to perform it > ing the said not. jiving his note i: :o the said uctt, ed to accept, iiii.; times ready aii' n for immediati s dismis.sed, tli le legality of tlh Federal Bank v RKF.R. I ten days af^: laragraph of tiii )r argument ar.! ler for leave t" 9."), O.J. Act: • the plaintiff tm tliat the ))ropi: ly to a judge ii ite i)arty, for :ii. ; or part of tin I direction as t" •eturn of the nio ve no right to k 373 JUDGIMENT. 374 heard as to tlie validity of the pleading. Urbuj- 4on V. Tyont, 10 I'. KI 4i>3.— Rose. When a final judgment for tlie i)iirpose of a\)- [leal to the Supreme Court of Canada. See .Shields V. /VcZ', 8 S. C. R. o7'J; RuhUn v. Rankin, 11 S. C. R. 137. IX. CUOSS JfrxiMKNT.S. ^Vhere judgments were recovered in the .same action l)y the ])laintitl'on his claim with general iHist.s of action, and the defendant r)n his counter- ' ^'laim witli costs thereof, sucii claim andcounter- ilaini arising out of the same suliject matter, tlic judgment for counter-claim lai'gcly exceed- ing the former in amount, a .sct-otl' was allowed ! (if so nnicii of the money recovered ijy the de- fendant agi'inst tiie])laintilV on defendant's coun- ! t(.'r-claini as wonld cover the costs adjudged to \ the plaintiU'on his recovery of judgment against the defendant notivitlistanding the claim of tlio , plaintiff'.s solicitors to a iicn on the costs ad- < judged to tlio plaintit!': — Qua/re, wlicn a judg- ment, as in this case, lias been framed without directing a setofl', whether a Judge in Chandjcrs has power to direct it to the preji(dice of the solicitor, so as to vary the decree of the court. Bvixniv. Xi-Uon, 11 P. R. 1'21. — Dalton, J/((s- ^ (('/■— Osier. I The ])laintitrs sued for freight for the (.'arriago of tind)(!r, and the defendant jileaded a counter- tlaini for neglect and delay in the cai'riage of the tinJjcr. 'I'he judgment at the trial was as fel- lows : "The verdict will be for the plaintitts tor S2,12'2, and for the defendants upon their coun- ter-claim for .•?1,4l'0, and each party will lie en- titled to costs against tlie other, as if the state- ment of claim and connter-claiiu were sejiarate actions, and I direct that judgment be entered accordingly ;"'— Held, reversing the decision of the Master in Chamlicr.s, that the judgments re- covered l)y the plaintitl's and defendants must be treated as judgments in sc]iarate actions, and, therefore, tiiat in setting off the judgments the Claim for cost-' of the defendants' .sf>licitors upon the judgment against tlu,' ])li;iiititl's should be protected. ('itiKiiliiui Pariiir R. II'. Co. v. Grant, U !'. R. 20S— t;. p. D. erection by C. ; and the jilaintiflf alleged tli.it shortly afterwards C. erected his building as agreed upon, and the [ilaintitT claimed to have the agreement ]iut into writing, and executed by ('., so as to enable him to register it ; and he asked a judgment declaring hini: entitled to all the riglit.s and privileges contained in the verbal agreement. ('. in his pleadings conceded tlie rights and privileges demanded liy the plaintili under the ;igreeinent:-- Field, nevertheless, .iliiini- iiig the deeisidii of Ferguson, .1., that the action must be dismissed, fic Llicrc is no jurisdiction to ascertain and declare rights l/cfore a party in- terested has actually ."'istained damage, lirfohs V. Cimh'ii ft al., 8 (). 1!. ;)49— Chv. D. Hut see 48 Vict. c. 13, s. '). X. iNTI'.IJI.OCt'lORY JriKM.MENTS. 'i'he endorsement on the writ of summons claimed, in addition to ]iecnniary damages, an injunction restruiniiig the defendants from dis- posing of certain goods ; — Held, that int( 'ocu- tnry judgment signed liy tlie plaintitl' for default of appearance was irregular, and should be set aside. McValluni v. McCaUinn, 11 P. R. 16.— Daiton, Master. ^iee also Sham v. .S'i'. Louh, 8 S. C. R. 38,"). XI. Declaratory Ji'dgmknt.s. The plaintifiF set up a verbal agreement made in 1873, between himself and the defendant ('., they being atljoiniiig proprietors of land, to the effect that C. sliouhl build a house with its southern wall encroaching nine inches upon the plaintiflf's land, and the plaintitl' should be allow- ed at any time to use that wall as a party wall upon payment of half the expenses of its original XII. Amendment or JtncMENTs. At any time before formal judgment issueil by the court the judgment or jiart of it may be re- , called and a term imposed or a change iiiadt'. ('iniadiaii Land aial h'liiKjrotton Cn. v. 'I'liv M inn ci/ia/ifi/ iif Dij.-tart it al., ',) (). R, 405. — Fergus. m. An order was made bj- the blaster in Chun- bcrs amending a judgment entered against ('. as I executrix, so as to make it a judgment against , her ])ersoiially ; and also amending the writs of ti. fa. in the slu'rirt's hands so as to be conform able with the judgment as amended. The urder was made nunc pro tunc ujion the allegation that all ])arties interested had consented, and that an execution at the suit of the M. Co. against C. personally had expired. On an ajiplication made by the M. (.'o. to set aside the order, on tin- ground that their writ had iK>t expired, but was ; in full force ; and that the etTcct of the ameiid- ' meiit was to give ])laintift"s writ ]iriority, the in.'ister made an order setting aside his jn'cvioiis order, and directing the amendment.-; made there- : under to be struck out. On motion by way of appeal to the Divisional Court to rescind tiie last named order: -Held, Cameron, C. J., dissent- ing, that the motion must l)e refused ; foi- that : tlif)Ugh the M. Co. were strangers to the action in which the amendments were made, they iiad I a locus standi to apply to have same set aside. Olasn V. Cameron, 9 O. R. 712 -('. 1'. 1). See /Sninilai/': v. fFon-aril 1 1 id., 13 A. 1!. .'i.'ST. p. 94. XIll. iMrKACHiNii JrnmiKNTS. Ill an action on a mortgage from defendant S., the defendant H. liciiig in possession, the latter claimed that jilaintitl' was bringing the action for the benetit of .S. , who was therefore, as well as the plaintitl'. bound by a judgment in a fdrmer action, in which H., claiming title by possession, had succeeded against .S. in having a lease from the latter to him set aside, the pluintifl', how- ever, not being a party to the action, and having acquired his title prior thereto. S. pleaded that the judgment in question was obtained by the perjury of H., stating the jicrjury : — Held, on demurrer, good. 'Stiirart v. Sutton et al., 8 O. R. 341.— Rose. Ill an action by a creditor against a shareholder for unpaid stock, in a compaiiv incorporated under 32-33 \ict. o. 13 (Dom.) :—" Held, (Burton, J., dissenting), that the shareholder under a ])lea .^'> '. ai : Si! : (Ml r («>• I ""I k Its' • . ml , !«" • • IB' u IM| Z 11*1 • I ■■•■ ■ isi ! : W • i (till ■ 375 JUDGMENT. .■57' • Si ! s: ! ^' ! c: ti 'is an that the judgment was oLtaiiied by friiud wiis entitled to set up us ;i defence that tlie conipany liad not in the original suit ijeen served with process, under section "tO, the person served as •secretary not being such oliicer. lY'r Burton, .J. A. Such an omission was an irregularity only which must be moved against ])romptly, and could not be tlie siil)ject of a i)lea ; but that fraud or collusion between the plaintiH' anil the company or its oIKcers, would avoid tlie judg- ment, and could be set up by plea, liut was not shewn by the evidence here. I/arrci/ v. //amy, y A. K. 91. Where proceedings for a ))artition in a County Court iiave l)een terminated by an order con- rirming such partition ami notliing remains to be done by way of enforcing tlie judgment, such judgment cannot afterwards be impeached on the ground of fraud or dece])tiou ])ractised on tlie court otherwise than in resisting an action ni whicli it is relied on, or by bringing an action for the express ]iurpose of setting it asiile. Jink-inij v. JijiLliiii it ii/., 11 A. li. !)•_'. Held, that the non feasance of the wife in failing to appear or defend an action for divorce in a foreign court did not amount to collusion on her part so ;is to estop her from impeaching the vali. B. Div. //*. A'Hi. The juilge who presides at the trial, and pro- nounces judgment by default for the defendant in the absence of the ])laintifl', has power, under Itule 'JTO (). J. Act, wlieiL afteiwards sitting as the coui-t at Toi-onto, to set aside such judgment. Milliard v. Arthur, 10 1'. R. '.'HI, distinguished. /loss V. Varsrallrti, 11 I'. |;, 104.— Ferguson. \yhere judgment for defeiulaut was given at a t"'' 1 io c(Mise(pience of the plaintift"s absence, and " application was afterwards made to the judge ■L t!i ,■ .sittings to reiu.state the case, which he re- .«• 1 toentertain:— Hehl, that theplaintifl'might .. -rtneless apply, under Rule 270 (). .1. Act, Vo ;',e Divisional C'omt at its next sittings to set aside the judgment, and for a new trial. Wilson V. /nriii, 10 R. R. ,V.)8.- Chy. D. iSettingaside judgment in Division Court. See yi'c /■),/>>!/ V. A/(,nin, 1 1 1'. H. .Sl(>.— Wilson. An order of the 4th October, 18S6, cxtemli the time for the delivery of statement of ilaj till the 12th October, but provided if it was in So delivered, the action should stand dismis.st-. with costs. Upon failure to deliver in time, ti defendant signed judgment dismissing theactin: — Helil, that notwithstanding the dismissal • ' the action, an order coulil properly be made u der Rule 42t) vacating tlie judgment, and funli extending the time for delivering the stateineii and the master in el: ambers had jurisdiction ■ make such an onler. Xi'iixomhi. v. McLa/iitii, i R. R. 4G I. —Wilson. ' See Mr/.iuii v. Shiflds tt nl. , it O. R. Cm, ],. ;i7 W. KsToI'PEL BV FoKMEK JfDOMKVr. The plaintitl" in this action having a coiitiK;; with a township cor|)oration for constructing' drains, the defendant occasionally cashed clic k- or orders on tloj eor])oration for him, an7S-Chy. I). The letters of administration to an infant as administrator, were revoked after judgiiaiit against him in an action brought by him to iv- cover certain assets of the estate, and new letti r? were granted to one 1'.. who thereupon obtaiii«l an order of revivor in such action, directing tik further pr(.cee • or conistructii],' ly cashed uhi-i-k. )!• liiin, and \\,i< liini with goiiil.*, tV gave him tun lied tlie j)hiiiitin till' jjleaded pay ,t action the ii'i« and money knt. f 8S00, roceixci le liad a verdut urwards brought iv bacli a sum uf I receiveil liy x\v it had not hi 11 -HeUl, that th.- rmer judgment, ishohn I'. MiiiM', ft'ii.iiin V. SiiKir'. n to an infant after judgnunt it liy him to w- and new lettris n'Ui)on obtaiiu'il n, direeting the t;d on by 1'. :is tefore R coiii4 u'cler of revivor listration aetimi rities which tlif ed in the action intitl's (who liad a])i)lied to have eh other aotio'i s adniinistratiiiii liseharge ol the whicli the i)hiiii- itre droit, siuh f, and tile juil.'- le circunistiiiK'i.s ^•f Jidll/i V. M'lii- trriii Onltihtry. action for Hinl oncerned in the t of verdict aii'l g entered, is i r tliesaine Hliel. .r)7G.— (-'. r. ii. 'lit was to talio stnuptial settle I tiie defenihuit 3" JUDGMENT. 378 II. ,]. U. were trustees, but after tlie hearing and i, fore decree, a (]ue.stion was I'aised liy amend - liieiit as to the liability of the defendant I). J. P.., to pay certain moneys alleged to have been ilvaiiced Ijy the jilaintitf foi' the maintenance of \{ii wife and children, and on the argument of this ([uestion judgment was given directing a n ferencu as to such claim, liefore the argument milgment had lieen rendered in the Superior i uurt of (Juebec, on the same (jviesticm in D. J. II 's favour, and on the reference 1>. J. R. proved :':m judgment, contending that it concluded tlie :..:itter, as being res judicata, though not ]ileaded; Held, reversing the jiil I tf'l s Ml ».>l ft ■...| ft ivl\ u«l 1 n»| t K^l .1*1 « lUl !»' u .Ml IMI » l.«l i "•1 » Irf! s H Mil i «• m .„. CK H 'Z • :i|> 379 JUDICIAL DOCUMENTS. 380 it *• li Q1 i « «t ir C) 1 Bi 1 1 ■■• ii Si ii c: (1 ^i it *■■• Ii a! i; 1 < ii iS Ii >i» il '■■» «BR 1 1 > 1 »» ■ i^U u ,0* II ai «a) 1 1 ai m* 1 ■ • I •U1 meiit, tho rule that tlie judgment related back to tlif day of the coiniiiencemeut of the action, so an to make C himself a trespasser from that date, could not avail the plaintill's. JIdiiillton J'riiciili'iit and Lvan Socicli/ v. t'diiijibeU, 12 A. 1{. 250. See MrLari'ii v. Caimdd t'lntml R. W. Co., 10 1'. {{. 3'.'8, /■/(/'/•-( ; McEiran v. McLiod, 10 A. K. 90, hifnt. XVI II. InTEUKST on JuDGjMENTS. Where an appeal is hroutrlit against a judg- ment in any personal action wliich isatfirmed on appeal, interest on the judgment is liy force of the statute allowed for such time as execution has been .stayed liy the appeal : iiut \vh(!re the plaintitl refrained from enteiing up his judgment until after the decision in ap[ieal, this court re- fused to order interest to be allowed on the amount of the verdict ; leaving the [ilaintitl' to apply to the court below for relief by entering the judgment nunc pro tune. McEican v. AIc- Lcud, Hi- A. It. 1)0. In endorsing a writ of execution to levy in- terest upon tlie amount of the judgment, the in- terest is to l)e computed from the day of pro- nouncing tho judgment, not from the day of tl>e forniid entry thereof. Rules ',i'2(> & Hoi (). J. Act, are not inconsistent. Kilehi r v. McGUihuti, 10 1'. K. 8i).— Dalton, Master. On the '2.3id of January, 1SSl>, the following judgment was pronoimced in court iiy Osier, J. A., : — " 1 direct ju fore him that an otl'er had been made by 1, tu the company to furnish witnesses and assist in the defence, and had been declined, and tlie wit nesses when examined shewed that their evi- dence might materially have affected the voi-- diet : — Held, that the ruling of the master wa> erroneous, and that the ease must go back tu him to revise his report. Pcterhoraugk Ri'id Kstatz /nreMmant Co. v. Irelon, 5 0. R. 47-- Chy. D. .See also VanVe.Uor et al. v. Hiajhson, 9 A. It. 390. See also Subhead XV. p. 37G. JUDGMENT DEBTOR. .See Attachment of Debts. JUDGMENT SUMMONS. See Division Courts. JUDICATURE ACT. See High Court of Justice — Pleading- TICE — ItULKS AND OKBEKS. -Prac Held, Henry and Tascherean, JJ., dissenting, reversing the judgment of Cameron, J., 1 O. K. 4.33, that the O. J. Act, 1881, makes the High Court of Justice and its Divisions a continuation of the former courts merged in it, and that these courts still exist under new names. Mitchell v. Cameron, 8 S. C. R. 120. Per Proudfoot, J. — By the eifect of the Juili- cature Act all distinction between legal and ecjui- t.ible debts, and leg.il and eijuitable remedies is 1 abolished. Debts of every kind are now recovei- I able in one forum, and the same forum enables 1 creilitors to reach every kind of assets, whether j formerly legal or equitable, and the necessary result is, that the distinction between legal a)i(l \ e(juitable assets is at an end, and upon this sub- i ject the rules of law and equity being at variance, tlie latter are to prevail. Bank of Toronto v. Hall, O. R. 653. Qiuvre, whether the third party clauses of the O. J. Act apply to Division Courts. In re. the Murhantx Bank v. VanAllen, 10 P. R. 348. - Osier. XX. Effect of Judgment in Former Pro- ceedings. Tho jdaintitT company having brought an action against I. on a mortgage, and claiming References under. Award. See Arbitration and JUDICIAL DOCUMENTS. See Evidence. 380 ess on F., the jucst of 1., oil mage the com- 'easoii of siicli L" amount of u ; tlio comiiaiiy ,'onclusiv(; 'jvi- vas proved hc- niade by 1. tu i and assist in ,1, and the wit lint their evi- icted the ver- lie master wa.i 3t go back ti) vhurmtgh Jfctil 5 0. R. 47- ghson, 9 A, It. 376. til. UTS. INS. r. ;ading — Prac iKRS. J., dissenting, ui, J., 1 O. R. ikes the High a continnatioii and that thu se s. M'Uchdl V. ct of the Judi- legal and eijiii- )le remedies is •e now recover- forum enables ssets, whether tlie necessary ween legal and upon this sub- ng at variance, of Toronto V. 7 clauses of the rts. In re the ) P. R. 348. - ITRATION AND >JTS. 381 JUSTICES OF THE PEACE. 382 J UULS DICTION. Of Corsrv C^nmr—See. County Court. Of Division Courts Col' UTS. .Vea Division IV, VI. Of Ji'U(;ks of Hicui Court— .S'w Practice — Mmii Court of Justice. Of MAfiisTiiATKS— .SVv' Justicf.s of the I'eace— Police Mauistuates. Of Masters — .SV« 1'ractr'E. Exclusive Jurisdiction of Court of Chancery — Sw Trial. JURY. Sec New Trial— Trial. JUS TERTII. See Hall v. Griffith et al. , 5 0. R. 478. JUSTICES OF THE PEACE. I, Jurisdiction and DuiiT. 1. DUqwillfication hi/ Jieason of Interest, 382. 2. Onsfiiii/ Jurisdiction by Claim of Title, 382'. 3. OtlKr Cases, 3S2. II, Procedure, 384. HI. Informations, 384. IV, Convictions. 1. Form and Requisites of. (a) Olfences against Municipal By-laws, 384. (b) Intliction of Fines and Penalties, m. (o) Othrr Cases, 387. (d) Under Vagrant Act—See Vagrant Act. 2. A inendment of , '^S8. 3. Beturn of, ,388. 4. Appnd from— See Sessions. 5. (Quashing. (a) Oenerallu, 388. (b) Costs, 388. 6. Warrant of Distress, 389. 7. Certiorari to bring up Convictions — See Certiorari. 8. Under Canada Temperance Act, 187S, and Liquor License Act, 1SS3 — See Intoxicating Liquors. V, Actions Against Magistrates, 389. VI, Police Magistrates — .SVe Police Magis- trates. Vll. Sessions — See Sessions. I. Jurisdiction and Dutv. 1. J)if'qii(ilifc ,1 et '■■ < m» ll a> •1 c: ll "^* il e: ll at II •a^^ II • ■ 1^ II '«|i ll |,M)« Mil* II Ij mh hM« a I (•(iiiiispI, (•liaiiufil till! il.'iy, anil ),',ave juilj,'im'iit on tin; Istli :— Kfld, tliiit tlie consiition nnist ))o (jiiaslifil. liiijiita V. //((//, 8 O. I!. 407. -Itono. Ht'M, that cvL'n liail the conviction in this taso liccii niovi'd to 111' inia.slit'd, .'niil an oidrr nisi aii- jiiicd for iijuin tlir nia^'i.stratu anil inosccutor for a iiiandaniiiH to tlic former to hear further evi- (lenei!, A\ hich he had lefu.sed, Imth motions would have hcen di.sehai';,'eil, tliu niaj,'i.strati.' apiieurinj,' to have acted to the hest of his judf^nieiit and not wrongfully, and his deeision as to the further evidenci! involvinj,' a matter of discretion with whiili the court would riot iutcrfire. Ittijhut v. JlUhnrilsiw, 8 O. 1!. 051— Q. !!. 1). l)efenihuit was steward of a "social cluh" in Walkiutoii. The niendier.s were elected hy liallot, and u))on jwiyinj,' an entrance fee of •'*1 and sul)seri])tion of !*-"> jier month, were entitled to use the elu') room and l)uy from the steward s))irituiius liiiuors. The menilurs were not re- s))onsililc for goods ordered or for any general expenses. An information was 1 n'd against de- fendant on 10th Sejttendier, ISfS"), for an oH'cnce i against the second j)art of tin; Canada Tcnijier- ance Act, 1878, and on the 21st Sejjtemher, IMS."), he was, about 4 ]).ni., served with a summons to ap|)ear at 8.30 a.m., next day, heforc two magis- trates. On the '2'2iul day of Scptendier informa- tions M'ere, in two other cases, laid against him for similar oflences, and he vas in each, at 8.1.') a.m., served with a sunnnons to appear hefore tlic magistrates at i) a.m., that day. \Vhen the magistrates' court met the first case was ])artially gone into, and before it was closed the prosecu- tion asked the magistrates to take up the second and third cases. The defendant stated that he had not undei'stood what the summonses meant, and by advice of counsel he refused to {)lead. The magistrates entered a plea in each case of not guilty, and went on with both cases. The evidence in both shewed that the ofTences charged in each case occurred on datesdiffci'ent from those laid in the informations. The magistrates amend- ed the dates in the information. The defendant and his counsel were in court all the time await- ing completion of the evidence in the first, but refused in any way to plead or take jKirt in the second and third ca.ses, or to ask adjournment thereof. The nuigistrates, after taking all the evidence therein, at reipiest of defendant, ad- journed the first case, and in the second and third cases convicted the defendant of the of- fences as charged in the amended informations. It was shewn by affidavits that the magistrates were willing in these cases, had defendant pleaded, to adjourn after taking the evidence of the witnesses ])resent. There were also atlidavits shewing that the magistrates had been before the ".Scott Act" interested in promoting pro- hibition : — Held, that the ])roceedings were con- trary to natural justice, as the summonses were served almost immediately before the sittings of the court which defendant was called to attend. 1 he convictions were therefore quashed, with costs against the complainant. liegina r. Klcmj), 10 0. R. 14,"?, followed as to the charge of interest or bias on the pai't of the magistrates. J\'i'i/hi(i V. Eli, 10 O. E. 727.— O'Connor. Under 32-33 Vict. c. 20, s. 25 (Dom. ) as amend- ed by 411 Vict. c. 51, s. 1 (Dom.), defendant was ciiai'ged by his wife, before a magistrate, with refusing to provide necessary clothing and lodg- ing for hersi'lf ami rhildreii, At the closi; of (1,,. case for the prosecution, defendant was tendeii.l as a witness on his own behalf. The magistrati I'cfused to hear his evidence, not liecause he Ma- the defendant, Imt because he did not wish t' hear evi lence for the defence ; and subsei|UiMith without fni'ther evidence committed him fur tiial : Melit, that the defendant's evideiin; should have been taken for the defence; that ii magistrate is bound to aece]it smh evidence in cases of this kind, and give it such weight as ln' thinks ])ro))(M', and that the exercise of his ili> cretion to the contrary is open to review : — Kelil, also, that the amemled section of the Act i- intenib'd to cidai'ge tlu^ powers and duties i,f magistrates in cases of this nature, ami that tlu' word "prosecution" therein includes the pro ccedings before magistrates as well as ))efnn- n higher court. h'niiiKi v. Mii/ir, 11 ]'. ]!. 477.— Wilson. See Ilinitrr v. <;ill,-i-!<»i, 7 O. M. 735, p. .">!»(!. TI. I'KOCEDrKK. Where a defendant submits to examiiiatinn before a magistrate it is too late afterwards ti object to its propriety. Ri'ij'iiiii O. R. 210.— Gait. Com])elling accused to testifv. McXh'ol, 11 O. 1!. 05!), f). 3H5."' See Rfijina v. M< ijer, 11 V. R, Itdliisiiij^ 11 See /'ri/ih'i v. 477, --iijiru. I III. Inkohmations. Held, that the information in this case wa.s not objectionable for not setting out the falsi' j pietences of which the defendant was convietuil. I as it was in the form in which an indictnieiii . might have been framed : and moi'cover, tln' objection was met l)y the 32-33 Vict. c. 32, a. 11 ;(T)om.), .and by .32-33 Vict. c. 31, s. 07 (Dinii.i I lienina v. liicharthot), S 0. R. 051.— Q. B. D. ' Under Canada Temperance Act, 1S78, ami ' Licjuor License Act, 18S3. See7iV(//»rt v. KInii)'. ': 10 0. R. 143, )). 301 ; Itc/iim v. hmimii/. 11 0. I R. 210, p. 301 ; lii-ijiiiay. Jloifi/hix, 12 O'. R. :5ii: ! p. 301. IV. Convictions. ! 1. Form ami ftiqiiisifes of. ! (.a) Ojf tllO ('loSO of till it was teiidciiil Thu ningiHtiiitf liucausu he \v,i- 1(1 not wixli ti. (I Slll)SC(|U(Mltlv litti'il liiiii fi,r ant's <;vi(U'iiri/ L'fuiiuo ; tliat ,\ ii.'li evidence in :h \VL'i>.'lit as he 'ciso of liis (li- eviuw :--Utlil, of tlu^ Act i« and duties i,| (', anil tliat tlic hides the jiro ell as liefore a 11 IM!. 477. 73"), II. :VM). to exaiiiinatinii i afterwards ti V. J'dnisin/, 11 Se(! Ifpi/iii'i V. 477, "iijira. 1 this case was 'i out the fiilsc wasconviett'il. an indietniciit niofeover, tln' 'ict. c. .S'J, s. 1 1 1, s. 07 (l)tiiii.i il.-Q. 15. D. Act, 1878, ami 'i-ilbui V. Kli'iiiji. Jtainmn/. 11 0. ».s', 12 O'. R. -Mu.. '■^ of. al J3i/-l(nrn. &c., sold at the (•n of ( 'ornwall. I l)y the veiiddf ;h jmlilic weigh tliisl)y-law\\is of said liy-law lad same weij;h- [iseales : — Hihl. not stating that or elsewliere in ; and with costs sighniaster, who his own lienefit. ing an action in {olli^t, )\ S 0. i;, 'daw was(|uasli sed on the '.'7tli Miiih, to go into force the .'Ird .Apiil following, ill aiiticiiiiitinn of an Aet, 4.") \'ict. e. 'J4 (Out.), ]ias-cd the lOtli .March, to go into o[)eration the Jiitl April then next ensuing. Suh s. '2 of s. 8 III tlie Actsuliiects " such vendors of articles in lespeet of whicli a market fee may he now im- |iiisrd as sh.ill Voluntarily ns(^ the nuiiUit ]ilace im- the liiir|ioseof selling such articles," wlu'reas the I'.'th si'ctioii of the liydaw in i|uestioii was, "any person or persons who shall voluntarily niiiic upon the said niiuket jilaee, ite., for the ]iiii piise of selling," it(t. : — Held, that " \'endors, wliii shall \dluiitarily use the' market )ilace for till- pui pose o|' stlliiig" was not identical with or ,i|iiivalent to '' tmy |iersnn or jiersons who shall Miliiutarily come upon the said market |)lacc fur the iiiir|)ose of selling ;" nor was tlie e\)iression ■• use the nuirket ]ihu'e for the ])iir|iose:il Aet, ISS'i, s. 4!).'>. suli-s. 3, nor within 4S Vict. c. 40 (tjiit). 2. That the eoiivietion was defective in not stating that I'. \V., was non-resident within the county, and that the exprission " of the city fif Loudon" was not sullieieiit. .S. That defeii- ihiut had been inipro]ierly eoin])elledto give evi- dence against himself. 4. Tliat the having a license is a matter of defence, and not of proof hy the prosecution. T). That the intention to evade the by-hiw was immaterial so long as the aiieiiey did not in fact exist. Hnjuta v. McNicul, II O.'H. (i.-iU.— Wihioii. 47 Viet. (Out.) c. 32, s. l.'l, sub-s. 12 enacts that liy-laws m;iy lie passed "for regulating or |ireveiitiiig the ringing of hells, blowing of horns, ■•'liiiiiting and other unusual iioi.ses, or noises c.al- I'lilated to disturb the inhabitants," kc. Section -el' liy-law 2vo. 17!( of the City of London, passed under that Act, is as follows : " Xo jierson shtill, ill any of the streets, or iu the market place of th' City of London, blow any horn, ring any liill, heat iiny drum, iday any flute, jiipe, or ether imisieal instrument, or shout or make, or i'siist ill making, any unusual noise, or noise calculated to disturb the iuhabittints of tlie stud 25 city.'' " I'roviiled .always, th.it nothing herein (•ontainiMl shall prev( nt the playing of mu>ii'al instruments by any military band ot Jlcr .Majes- ty's regular army, or any br.in< h thereof, or of any militia corps lawfully oi'uaiiized under tlie laws of Canada. " The iirisoiier was eonvieted nniler tlu! by-l.iw of betiting a drum on a ]iublic street iu thi^ City of London : llidd, that the by-law so far as it sought tojirohibit the beating of drums simply, without e\ ideiice of tlu^ noise being unusual, or calculated to disturb wjis ultra vires, and invalid, and that the refusal to receive evidi'iice on the ]iris(iner's bi ludf was a valid ground for her discharge. Ibdd, Jilso, that the .above proviso w.is not an exception that must be neH.itived in eithei' tile commitment or con \ ict iou. /.'/.'/''»(( V. Xiiini, 10 !'. 1!. ;!!ri.- Itose. A conviction was, that the defendant did, on the Idlli .May, ISSCi, create a distiirb.uKat on the |iublie streets of the village of I.,., by betitiiii; .a drum, lite., contrary to a certain by-law of the villagi\ The information was in like terms ex- cept that the act M'as laid ;is ihu n .'^umlay. 'I'he bylaw was jiassed under 47 \'ict. c. .'>2, s. II?( lit' lUl lai K ' 1 " 1*1 _ '»' i (b) fnlVict'ion of Fin cK and Pcnnllies. A conviction under 32-3,'? Vict., c. 2S, for keeping a house of ill-faniC', ordered fiaynient of a fine and costs, to be cfdlec'ted by distress, and in default of distress ordered imprisonment : — ■ Held, gooil. l!iayiiiriit iit' tilt! lint); ami lli'lij, also, that this Wat iir>t a iiiori! foriiiiil dufect within neution 311 nf ;t'j ;;;< \ict. c. ;vj, i i»oiii.) J,'"jiiia v. /{ir/,- ardMini, 11 I'. H. iCi. -OMur. A uiiiiviotion Uiulcr tlio "Ontaiio Mrilical Act" (i;. S. (). i;li. 14'2, Nuo. 4i»), fi PC iiractisiiig witlioiit ludliy I'l'^isttTcd, was ((iiaslicd, lii-caliso ill difaiilt lit |iiiyii.»,it of tilt.' tiiiu iiiipostil, dis- tress was also awarded. Jt'"iuni v. .S/nr/duii, 8 O. H. JTO. -Hosu. The ciiiivi<'tioii aiul w.irraiit of coiniidtinciit ordui'L'd tlu' ilefciidaiit to he; iiiiiirisont'd fur six iiioiitlis, and to ii.iy within the said jiii-iod to said iniigistr.it(! tin' sum of SlOO without costs tu \iv aii|)liiil according' to law, and in default of jiayiiH'iit luforo the tcrniiiKitioii of said juriod, lurthi'r iiniirisonmuiit for six months ; — Hold, had, for itncurtainty in rt'i|uiiini,' tlu' lino to he piid to tho magistrate in'isoiially insti'id of to the gaoler. Jt-yiiia v. X, iil,„i,'[\ I'. H. 'JS. — O'Connor. Jleld, that the conviction was had, hecanse, while covering two several ami distinct otreiices under the same hydaw. it imposed only (me jienalty. Iti'ijiiia v. (Irunlk, 10 0. U. 73;"). — O'Connor. The inagistr.ato ordered the defendant to pay i\ for the use of the hall for trying the e;ise, and oondenmcil the defend, iiit, in default of distress, ' to impri^-iiiiment t-Ffeld, tliit in ordering pay- ment of this siiiii there was a (dear excess of jurisdiction, and th:it ordering distress, &c. , was a further ex(;ess, and that the matter was one of ])rineiple and not of form, and the conviction wa.s (plashed. Hegiiia c. \\'allacf, 4 0. K. I'JT, and Kegina v. Walsh, 2 (). K. '-'Oil, commented on. kr;iina v. Elliott, VI (). ]{. 524.— Rose. i Held following Regina v. Br.idy, 12 O. I{. .3.-)8. I that where imprisonment is directed on non- payment of !i penalty, the award of distress of the good) to levy it, and then imprisonment iu case the distress prove insutiicient, is invalid in law, and nn excess of jurisdiction, lieiiina v. 1.11,0-h, 12(,». R. ;{72. -Wilson. ' | I Held, also, that the punishment being iu excess of that wdiich might have been lawfully imposed, the defect was not cured by sees. 2 and 3 of 4!> Vic. c. 4'J, (Dom.) Ih. \ 2. Ameniliiteiil uf, HeM, that an amended conviction cannot In: put in .after the return of a certiorari, lifijbm v. MiirKiirJ'', (JO. K. 1 (;.').— I !ose. A magistrate may amend his conviction at anv time before the return of the certior.iri. /Aj/// i V, MrCdilliy, 11 O. K. (inT.-Oait. ,1. Jidiirn nf. In an action against two justices of the pe.ii i; to recover a penalty lor not making an imiiii- diatb return of a conviction under K. .S. ( ». c. "(i : — Held, that it is a (piestion for the juiy whether, under the circumstamtes of any parti- cular case, the return made is ininiedi:ite, aiil that in a (pii tam action tln^ jury's limling for delendant should not he disturhed. In this ease the conviition was made on the .'ilst August, and the magistrates withheld the return until the l.">th September, expecting to receive tho linn every day, and intundiiig to return it with tin conviction. The jurj- having lieeii directed in lind wdiether this was not " reasonably immedi- ate '' retui jd a verdict for defendants, w hith was upheld. /.omiiirdi/ qui taut v. Ari^aii if a/., 8 0. K. •A'u.—ii. B. l>. Amendment of return. See Ui'tjina v. Elhult, 12 O. K. 524. (c) Other Casea. The conviction in this case was b.ad, as there , had lieen no ofTence committed against tho Act •A2-X] Vict. c. 21, s. 110 (Dom.), under which the dofendanh had been convicted, and also in not ! shewing the time and place of the commission (if the oirence. See Jim/iiia v. Yaawi, 5 0. I{. 400. —Boyd. Tho defendant w.is convicted under the ))ro- ocedings taken under H2 k',V,\ Vict. e. 32 (Dom.), not 32 it ',V,\ Met. o. 28 (Dom.), for keeping a lioLise of ill-fame. The conviction merely "or- dered" but (lid not "adjudge" any imprison- ment or any fori'eicura of the line imposed : — Hold, bad, as substituting the jiersonal order of the magistrate for a condemnation or adjiidica- ti(m. lieijinav. Xewlun, 11 F. R. 98. — O'Counor. 5. (piaKhiuij. (a) GvneraUij. The fraudulent removal of goods, under2. Qua>re, whether defendant should not get the costs of ([uasliing a conviction made to test tho law. See Rtgitia v. Jamiemn, 7 0. R. 149.— Hose. Where a weighinaster instituted a prosecutioa for his own benefit, after warning, instead of 388 DH cannot In: ri. lieijinu v. victi<)ii at any raii. Hiyii i ( (if thc! pi'.l 1 n^' an iniiiii ■ .•!• K. S. ( ». e, for tliu jury of ;iny parti- nit'iliatu, ail I 'ti linilin^' fur In this caiM) it Aiij^iiat.aiiil urn until tin .'L'ive the Hih' n it with till n (lireuteil to iiaMy iniiiKMli- idauts, wliii-li I V. Afiiiiin i> ijina V. EUhiIi, ■.Wi LACHES. 31)0 H, under 2 (Sen. iviotiou there- li costs against ant had lieeii e prosecutiuii, ioae. viction at any orari, and the the previous ,lly where tliis 1 that tlie dt- efective infor- , 8. i), (Dolll.l, Hhij, 11 0. K. iviction under on the grouiiil .rates had not on, the defeii- ;istrate's being le exception r'r 1. Ri'ijina v. :i. 735, p. 3!)a, ,07 ; Rfijinu V. !H,llP.R.41i:. Id not get tiie ,de to test tlio O. R. 149.- tl a prosecutimi ug, instead of bringing an action in the Diviition Court and the ' .;i)nvi('tion wiiM ipianhed, lie was ordered to pay tim eost.i. HnjiiM V. JJdlttiUr, 8 (). I!. 7")0. - - I'iOBU. I A conviction was (pia-Mhed witlioiit costM where it ajipt arcil that tlie ilefcndaiit huil attcliiptoil to taiiiiier witii the iiiforniaiit. Ji'jinit v, Itij'in, ID II. K. '2ri4. — Rose. C'o.stu of tlie application to (piatih a conviction will lie iidjndgcd against a jirivate prosecutor wlicie he iay.i an iiiforniation without; hiving ir isoiialile groiiinl for believing that the charge, »ill III! sustained i)y proper I'vidiiice, L'njiini v. K'-iniohj, lOO. R. ";i. ; Inla'ifl v. /'ilchtr, J I:, (Wl. Meld, that the 4tli .section of K. ■>. (». eh. 7.'<. a» anieiided by 41 \'i(t, c. S((»nt.), prevtuts an action being brought for anything done under a Conviction, vvlulher there was juri.xliction to make the conviction or not, so long as the con- viction remains umpiaslied and in force. Ar urntt v. lAllnl (t Hi., 11 (). R. 2S.-|-t'. I'. I>. Atlirnied by ('. of A., 23 (.'. L .1. 23.-.. Held, .ilso, though doubling, that tlii! 17tli Hi'ction of said Act, wiiich entitles the magistr.ite to full costs ,'i.s between solicitor and client where in such action he olitains a verdict in his favour, has been repealed by tin,' ( ). .1. .\ct, s. 110, subs, ind Rule 42s ; and that such costs are now Re- V. Actions Aii.viNsr Maui.stuatk.s. In an action against a justice of the peace and constable for having issued a search warr.mt :;gaiiist the plaintitl', for having and concealing a enlt belonging to another : — Held, that the notice . In an action ag.iinst justices of the peace for false imprisoniueiit, iti;. , the l>ivision.il i'oiirt (10 (). R. ti.'il ) ordered judgment to be entereil lor the idaintill for ^2'>, the damages assessed by the jury, leaving the costs to lie taxed according to such scale and with such rights as to set-oti' as the statute and rules of court might direct. Upon appeal from taxation ;--Held, that the action being within the proper c(pmpeteiice of the bivision Coii.t (unless the defendant objected theretoi, the plaintill' should have costs only ou the scale applicable to that court, and the defen- dants should have their proper costs by way of deduction or set-otF. H Ad, also, Cameron, C J., dubitante, that the effct of R. ,S. (>. c. 73, s. ll», read in connection with sec. 12 of that Act, and with R. S. (). o. 43, s. IS, subs, o, K. S. O. c. 47, s. 53, sub-s. 7, and R. .S. (). c. 50, s. 347, is not to provide that the pl.iintitf should have costs on the .Su[ierior (Joiirt scale when his recovery is within the jurisdiction of an inferior court. I'er Cameron, C. J. —The case came under sec. 18 rather than aec. 19 of R. .S. O. c. 73. Ireland v. PitchtrdaL, 11 I'. R. 403.— C. 1'. U. LACHE.S. I. DlSMI.SSlNU FOR W.VNT OP Pro.SECUTION. Sie Ru.-lCriCK — l'AliLI.\MENT.\UY ELEC- TIONS. II. ESTlTLINfi SlTIiETY TO UlSCHABOE. Sec, I I'KINCIPAL ANL) SPKETY. i III. In C.uiRYiNi; Oct Contract. .SVe Si-e- cuic I'erfor.mance. The fact that an applicant for a mandamus .against a municiiial corjjoration to levy sinking fund has been a r.itepayer for years does not bar him because he did not apply earlier, as the '1 i' Ml •* II J»l ■ 01 111 "I :i «i i«i n" ol 11 (il ml Ml *"! .-. u _ M » 391 LAND. 392 II »' ll fi» II mi ll ti .1 ll Ma ° II Ml* iS ai ll c: (). it. 7i)i!— c. r. 1). Sendile, tliat altll(■^l^ll n niotion to (|ii.ish aliy- law eainiot he entertained unless mule within a ye.ir from the jiassing of tlie hy law. it does not follow that an apiilication made within the year may not lie sueecssfidly answered liy shewing laehes of the apjilieant, though in this ease no sueh laches existed. l\r t'l utaii v. 'J'hrCor/inya- tiiiii (flh( CoKiitijvfSiDicoc, loo. i;. 27. -Wilson. Held, that the delay (without any exeuse) of a patentee foi a period of a little nuire than a ye:ir and nine months, after full knowli'ilge of an inadverteiK'e and mistake in his original patent, and after professional .adviee . K. :.— I'roudfoot. I'er Spragge, ('. J. ()., the sale to the mort- gagee in this ease was a fraud on the plaintilfs, and they h;iil not disentitled themselves to relief liy delay as for all that a])|iearcd the real facts as to the ])urchase \\ ere uukno^^ ii to tht m until just licfoi'c the liling of the hill. Fauldx et oL, V. Jl. See Thomp.ion ft al, v. Caiiado I'ire and Mnr'ii I)iK. Co. et al. , fi O. R. 291 ; 9 (). R. 284, ]>. 1 iTi ,Vr Arthur v. Thf Qvan, 10 O. R. 191, ].. 17i' Whaler and ll'/A'-o?? Miinufactnrinii Ca. v. ICZ/V-/, 6().R.421.p. llO-.ir. V. McMahu'n, 11 A. H. .".".", \).278;Bfntlijet (ll. \.^,'eelon et nl., 12 A. H. oH.]. IOC) ; Dainty v. Vidal. 13 A. li. 47, p. 399. >.. also Carwetlv. Scla.Jickl, OS. C. R. 370. LADING (BILLS OF.) See Bills or Lading and WAHEiiorsE Reci:i it- LAND. I. AssKs.sMENT OF — See Assessment .an; T.^XES. II. Desciui'tion of — See Deed. III. Ci.EAKiNfJ Land— .SVc Fiue. IV. C'kown Lands— .Sec Cdown Lands. V. Iniuan Lani'S— ,SVc Iniie\n Lanus. W. KXI'HOI'lilATION (iV—See MrNiril'AI. < "I I'OKATION.S— ItAILWAYS AND liAll.WA Companies. 392 that they Meif iiiomit pniil ;is fact :- Soiul,!.... (' to payee of tin tioii. Cliiri: V. iiient in 'I', v. i;i, f)inpaiiy, to li;-. for S4!KS'J.(;r). ;,t of tliis arraii;.! y Y.iii the ci'i,,- |)le (ill (leninnii ;., itfil 2^vd .ll.ly. V. todefoiuhijit,- e (liscouiiteil 1 v cheques in tl.i' ft was then f..i- eir lir.'uich in 'i .. liiitilf'for aeecjit n discounted rh. efcndant.s at T., draft f■■ li. .370. OF.) Assessment am ;ed. KE. \VN Lamis. IAN LaNHS. MrNii'ii'.M. Ci'i S AND llAll.WA 393 VII. VIII. IX. X. XI. XII. XllI, XIV. XV. LANDLORD AND TENANT. 394 I.Ml'KiiVEMENTS ON L.VND — ScC I.MrP.OVE- : MKNis ON Land. Sai.i: uf — Si'i'. Sale of Land. Title t(» Land. 1. Generally — v>v'.«(i<;(, J(i!.- (1)) For Jlriiicli o/Covi-naut ill L' '(< . 401. XI. Lisi'iiiNc Lanui.ohd's Tni.K, 40'i. XII. Miscellaneous Cases, 403. I. CuNSTliUCTKJN ANl) Ol'KUATloN (v licreafter to be occupied as roadway by a railway company named ' * and with agents to searcli for, dig, excavate^ mine, and carry away the iron ores in, u[)on, or under said l)rcmises, " (.tc. Tile lessees were tu have the right to use such timber found on the premises as might be reijuired to carry on rheir operations, and sucli use of tlie surface as ndght be necessary for all the ]JUr[ioses ai)pcrtaiiiing thereto ; also to pay taxes aiul to do statute labour assessed upon the pieniises ; and they Were not to allow any manufacture or tralile in intoxicating drinks uiion said premises, or to carry on any business that might be deemed a nuisance thereupon, and there was a proviso that on the termination of the lease the Ilssoj- should have quiet possession, a proviso for re- entry in case of forfeiture, ami a covenant by the lessor for quiet enji^ymeiit : — Held, reversing the judgment of Patterson, ,1. A., a lease, and not a mere license. Se>/moiir v. Lipirli, 7 O. K. 47 L — (,). B. D. Aliirnied on appeal, 13 A. K. ,V_',-.. The jilaintitl', by a lease under seal, leaseil to the defendant a shop, save and except the bottom portion iif the east window, and save and except a portion of the slioji described by metes and bounds. Tlie defendant alleged that jirior to his accepting the lease, ami entering into the consideration for such acceptance, an independent ana collateral parol agreement, separate and dis- tinct from and not ]iart of the lease, was entered into, whereby the i I" ^v II ^ i> li ' 41 tl II I t *a « nu'iit, ami was not collateral thereto ; liut even if adiiiinsiblc, if it aniouiiteil to an easement or gr.int of an ineor|ioreal light, it should have heun iiinler seal, and n., who was merely a bare trustee for plaiutifl', assigned the reversion to her. On i",)th l)ecember, 18S2, .1. 15., without plaintifl's knowledge or assent, assigned to C. 1>., who thereafter was in posses- sion of the property, receiving the rents from .-ub-tenants and paying the rents under the prin- cipal lease to the plaintiff. The jilaintifV had also received the rents prior to ]•]. 's assignment to her. The lease was untler tical, and was in the ordi- nary printed form, and jmrported to be under the .Short forms Act. Tiie statutory covenants were prefaced by the Words : " And the said lessee for iiimself, his heirs and executors, ad- ministrators and assigns hereby covenants with tile said lessor, his heirs and executors, adminis- trators and assigns in manner and form follow- ing, that is to say." Then followed the ordinary statutory covenants, except after the covenant •• to repair' were the words "reasonable wear and tear and accidents by lire and tempest ex- t'ciitcd," and after the covenant " not to assign or sublet witliont leave," the additional cove- nant " and not to carry on any luiainess that shall lie deemed a nuisance." 'I'he covenant not to assign was (except as to the additional words) in the language used in covenant 7, column "J of the Short Forn. of Leases Acc : — Held, that the cove- nant not to assign or sub-let, itc, did n(jt include assignees, as tliey could not be held tube named ; and the prefatory wdrds to the covenant wcjuld have no contrary etl'ect ; and therefore J. B. 's assignment to I'. \i. was no breach thereof : and this was equally so as to sub-letting by using the preuiises as a tenement house ; and also from the fact of the user having been open and notorious both by l*. and J. B. for some thirteen years a license to do so must be presumed. (,>iKere, whether such covenant ran with the land, the .uiiii.:!ities ou tile point being contlicting ; but the County .ludge, to whom the c:ise hacl been referred, having frds, " reasonable wear and tear," &c. ///. Held, also, that there could be no liability on defendants as executors of J. }'. for breach n! implied covenant by themselves and .J. H. to Um the premises in a tenant-like manner, for then l.>eing a lease under seal with express covenants. no such implied covenant would arise. ///. Held, also, that an action of waste wouhl lit notwithstanding the express covenant to repair : . but there must be what would constitute wastt . I A mere breach of covenant, not amounting t^ j waste, not being sutiicient ; but to niaintaii. : such action the plaintiff must have a vested in terest in the reversion, at the time waste con.- mitted, so that her claim, if any, must be fnr waste committed after she ac(|uired the rever sion and up to J. B.'s assignment; but tlieix could be no liability here, for as to •}. B. , it appeared his assignment was made more than a year prior to his decease ; and the R. S. 0. i . 107, s. 9, only applied to breaches committeil by testator within six months prior to his de- cease ; and that it was not necessary for the defendant to sft this up as a defence, the onu« being ou plaintiff to shew she came within the statute ; and as to the executors it a[)pear.d they had no interest in the term and had never j intermeddled with the property. I/i. Held, also, that there was no breach of thi- covenant by defendant to repair according t(j notice because the notice was given to J. B. after he hal parted with his interest in the term. /'>. Held, also that as to many of the alleged breaches they were such as came within the terin^ "reasonable wear and tear," while as to others the evidence failed to disclose the date when tin y occurred and therefore whether prior to the :i> sigiiment to J. B. Ih. Ou December .'jth, 1882, plaintiff by lease, niaili according to an Act respecting " Short Forms of Leases," R. S. O. c. 103, demised to defendant certain premises for a grocery and liquor stori\ for a term of years. In April, 1883, defendant made a door through an inner brick wall, to get access from the store to a portion of the jirLUii- es previously reached only from the outside, rhiiu titV at tirst objected to this, but afterwards praeti cally assented to it. A partition, partly glass and partly wood, in which was a door, separatei! the office from the store. In April, 1885, defch da'.it proceeded to move this partition nearer thi centre of the store, substituting wood for tin glaas, closing up the door, and converting a front window into a door, so as to make the ollice i li(pior store, to comply with the new law requii ing a Separation of liipnu's from groceries. I'lai:: tiff claimed an injunction to prevent furtli' i waste, and a right to reenter for breach of tiie covenant to repair The .Judge at the trial foui; 1 that no damage was done to the premises : — Hell, I 1. That the breaking through the brick wall, f'r the purpose of making the door, was a breach nf the covenant to repair, but was not a continuing; j breacli, and had been waived by the landloril. I 2. That under the statutory covenant to repair, 1 the tenant was houiul to keep in repair not only the demised premises, but also impliedly nil fixtures and things erected or made during the term which he bad a right to erect or siake : that 39G )ri()r theret" ; iuliject to tilt- Ac, ///. lia>)ility (m or lireach (.f 1 J. B. to u>L er, for tlitic !3s covenants, ■iao, //*. ite would Vu xnt to repair : Btitute wasti . iniounting r. to niaintaii. 11 vested in e waste con,- must he f^r ed the revcr t ; but thcii 3 to J. B., it more than a le R. S. 0. r, 09 coniniitti-d iiir to his ilt- jsarj' for the ince, the oiuis nt! within tlic '3 it appear.'d ind had never breach of th. according to 1 to J. B. after the teini. /'.. )f the allejriil thin the term.- le as to others ate wlien they rior to the a> by lease, niniit Ihort Forms di to defenilant [ liquor stori'. i83, defendant :k wall, to get ■f the jjrtini' ff Htside. Plaiii rwardspracti , partly glass oor, separate! 1, 188.5, defci. inn nearer tin wood f(jr tlu •erting a fnmt ic the ollicf :i .'W law reqnir jeries. I'lai:; event furtli^ i breach of tl;c he trial fouKil nises : — IleM. brick wall, t' r as a l)reach 'it t a continuiiii; tlie laudlorit. ant to repair, ;pair not only impliedly all do during tliu or Uiake : that 397 • LANDLORD AND TENANT. 398 the riglit to erect such fixtures is to this extent, vi/. , that they shall not be such as to diminisli the value of the deniisud premises, nor to in- d'caso the burden upon tliein as against the land- lord, nor to im[jair the evidence of title. 3. Tlic plaintitr's reversion not being injured bj' the acts iriaplained of, tiiere was no waste and no for- feiture. JJolderuL'fis v. Law/, 11 O.R. 1.— Q. B. I). See Cool: v. L'dicanh, 10 0. R. 341, p. 3'JS. (c) Bi/ ip,Moj' to Paij for Itnprovementi^. H. demised certain lands to W. by deed of lease, coutaniing an agreement that, " at the exi)ir;ition of the lease, tlie lessor, his heirs or a--higns, will pay the said lessee, &c., one half of the then vaiue of any jjernianent improvements he may place u))ou the said lands," &c. : — Ifeld, that the lial)ility to pay for the said improve- nieiits ran witli the land and attached as an equi- taiile lien thereon as against tlie plaintilF, to V horn B. liad conveyed the said land, sucii lien attaching on tlie title which I!, had at the time 111' such conveyance to tlie plaintitt', and th.at on the exjiiration of the term, the latter could only let'iiver jiossession of the said land subject to such lieu. Reference to tlie master ordered to lix the viliio of such improvements. Berrie vt uK v. ll'i;0(/^, l-_'0. R. 093. — lioyd. (d) Payment of' Taxes. Breach of covenant to paj' taxes remedied be- fiire statement of claim for recovery of possession tiled. See Ihirklnj v. Btvjle, 8 O. H. 8"), \>. 3U9. Held, that under the wording of the covenant ti ]iay "all taxes, rates, duties, and assessments w iic-.tsoever, * * now charged or iiere- iifter to be charged upon the said demised prem- ises," the defenilant was liable for local improve- liieiit taxes and for the additions made under the Aisessnient Act year by year to the amount of th'' taxes in arrear or additions made by the municipality. Boultun it al. v. Blake, 12 0. K. f.'i-. — Ferguson. (e) 0/fier Covenants. A lessee covenanted that during the term he "will cultivate, till, manure, and employ sucli I art (>f the demised premises as is now, or shall III ri;after be brought under cultivation in a good, hushand-like, ami proper manner, and shall not ill !• will during the said term cut any standing timber upon the said lands excejit foi rails or hiiildings on the said demised premises, and also Mudl ami will sutliciently re^iair and keep re- |ii.ired the erections and buildings, fences, and (.Mtes erected or to lie erected uiioii the said pre- iiii.>es : the said lessor liiiding or allowing on tl;.e iireuiises all rough timber for the same, orallov.- 'II',' the said lessee to cut and fell so many timber til -s upon the said premises as shall be re(jui- site." 'i'he lessor having brought an action on the above covenant claiming damages against the le>see on the ground that he had converted cer- tniii pasture into arable land, which, however, the jury fouiul was an a- 1 of projier husliandry, whereupon judgment was entered for the de- fendant. On motion for a new trial: — Held, that the lessee was at liberty under the lease to bring further parts of the demised prondses into cultivation without the landlord's assent, and to fence the same without his assent, if it was a reasonable and proper thing to do in the course of gnoi' and judicious husbandry, iind there w;is nothing to indicate that the laiidloi'd was to con- trol the use of the timlier so as that he might ; limit it to the buildings, fences, and erei^tions . existing at the date of the lease. Cook v. Ed- I wards, 10 (). R. 341.— Chy, J). The plaintili'had under several leases been in occupation of a farm of the defeiiilant's for about 2;} years. In conseijneuce of the ilwclling on the lot hiving lieconie until for oceupatiiiii by the lessee he notilied the lessor of his intention to give up the premises at the end of his term. Thereupon it was agreed that the lessiu' would put up a new house, the plaiiititf agreeing to accept a new lease for six years and ))ay an in- crease in his rent of .^laO a year. I'l.iiiitill' also agreed to jierform some work in conneetion with tlie iniilding in the summer of the tirst year of the term, and a written lease was exeiuted con- taining a covenant liy the lessor to build a new house "during the said term." Tlie lessor in- sisted that he had the whole term within whieh to put up the house : — Held, atliriuing the ju'lg- nieiit ol tlu; court lielow, that the eircunistaiii-es attending the execution of the lease as also the corrobor.'itiou atfordcd by the lease itself war- ranted the court in adniittiiig parol evidence to ', shew that the tirst year of the term was the year in which the house was to l)e erected :- Held, also, that evi'U if the lease was meant to lie silent as to the year for building, a reasonable time Would be intended, .'Uiil that the covenant of the plaintilT being to perform certain work on the building during the tirst summer of the term, and the increased rent being payable for tlie whole term then created, the tirst year must be considered reasiiiiftble. liuhnirw /intmiri II, 13 A. i;. 411. See Boan v. KrouKhetn, 12 (). W. 197, [). 411 ; MeEn-rn v. DUhn, 12 (), 1!. 411, p. 4t)2. IV. AsSIflN>""NT (IF I.KASE. D. being indebted to the plaintiti" fur costs in some suits and other matters, by an instrument not under se;il assigned to him a lease of certain premises made by 1). to defendant, together with all rent in respect of said lease and the term thereby created. In an action to recover from defendant the rent which accrued due after tlu^ making of the assignment, the learned judge charged the jury that while jdaintitl' remained D.'s solicitor he c* II ll It 1 1 11 I' i^ II -rf-v ay the consideration agreed upon, alleging as a priucijial ground f(U' such refusal tlie aon-m, (iO. It. TAiS, p. 209. VIII. Rent. 1. A/jjioiiinniiii'iit of'. ,T. B. leased certain lots, A, I'., C, D, E, & F, with other lauds to the defendant. J. C. also, at tlie same time, leased lot . conveyed away tlie otlier lands mentioned in his lease to S. A. H. Defen- dant assigned all his interest in both leases to. I. S. .McM., with the knowledge that .1. S. Mc.M. intended to endeavour to procure a, conveyance of tiie fee for the purpose of laying out tlie land in liuilding lots, which lie failed to do, and .1. S. McM. assigned all ids interest in lots A. 15. ('. 1), E, F, ;iii., and after his deatii to liis executrix the plaiiititf. The rent of lots A, H, (,', D, E, l'\ and 1 1 fell in arre.ir, and tlie taxes also were left uu[)aid. I'laintill' then recovered juilg- meut in an action of ejectuient against C, aiul took possession of the lots, in an action to re- cover the unpaid rent and taxes accrued on the: lots before clie recovery in ejectment, in whic it was contended that as the action was brougl .against the original lessee who had assigned tl lease, and was one on the covenant resting i privity of contract and not in privity of estat there could not be an apportionnieiit of the rt i .IS to these lots. It was : — Held, following Tl Mayor, &c., of .Swansea r, Thomas, 10 Q. B. 1 48, that the rent was apiiortioiiable, and tl plaintilfwas entitled to recover. Held, also, tli there was no eviction of the clefendant by tl lessor. Held, also, on the evidence, that altliou: defendant might be a surety for the assigiir tiiere was no release of the assignee, and cons iiueiitiy no discharge of the surety. Held, als following Barnes r. Bellamy, 44 '(}. B. 'Mi, tlii the rent accrued from day to day, and was ii] portiouable in respect of tinieaceordingly. B'l' ton vt ul. V. Blabi, VI U. R 032. — Ferguson. 2. lihiht to IMlnct Tii-n'sfrom Bciit. Certain ])roperty in the city of Toronto h;el been owned by B., and on his deatli in 1SS4, in- testate, and without known lieirs, dcfeiidiint entered and leased the jiropcrty to the plaintiif, the defendant agreeing to pay tlie taxes. in 1 SS-l, the taxes assessed for 18!S3 not having be ii jiaid, a distress was entere. K. 706.— C. r. I). 3. Occupatiuii liviif. No occupation rent should be charged ngaiii-c one who has been in occuiiatiou of land under mistake of title, in resjiect of the increased value thereof arising from improvements which arc not allowed him. MrGir'/or v. J/(''>'/'"/or, o (>. K. 017. -Chy. 1). 4. Ori'i'ltiililliKj Tl limit. Where a party who has held for a term at cer- tain rent- continues to oceujiy after the expiration of his term, it is presumed, if tliere is no evidence 400 .'01 LANDLORD AXD TENANT. 40i rued on tlic-tj nt, in wliirh 1 was brought .■i.ssigned thf lit resting in ■ity of fstiitc, nt of the rent lowing 'J'l .■ U) Q. \i. \K II lie, and tin; 1, also, tli.it ndant hy tlh> that idtliou-h tlio u.ssignr.-, ', and cc if land under cre.'ised vain.' ivhich are not '■jur, 5 (). I\. I term at cer- he e.xjjiratiou 3 no evidence tu the contrary, that ho liolda at the former rent. In this case the evidence showed that the plain- till' allowed the defendants to remain in occupa- tion for two months after the expiration of their term, and made no demand for an increaseil run- t;d ; but they had notice that if they desired to riiiuiin on longer they must p.ay an increased rental : — Held, that the ])laintitr must be deemed to iuive agreed to aUow the defendants to remain fur the two months on the terms oi pa\ing the niit reserved by the lease, but tlieicifter only nil [laying the increased rent, llillianl v. Administratoks. II. Contraot.s by — See Contract. Right of te-nant to redeem mortgage. See i jjj_ Admissibimty in Evidence— .S'ee Evi Martin v. Milin, 5 0. R. 404. dence. Setting aside lease on grounds of improvidence, jy_ Defamatory Letters— 5ee Defam.viion, compensation for improvements. See Slidnaijitn ~ ■ V. Patent. 1. For LamU—See Ciujwn Lands. 2. For luvention—See Patent of Inven- tion. V. Shana>jau, 7 O. R. 209. See Ainltroii' v. Fraaer et al., 12 O. R. 459, p. :!11. LATERAL SUPPORT. See Wray v. Morriiun et ciL, 9 0, R. ISO, j'. 70. LEASf]. See Landlord and Tenant. LIBEL. See Defamation. Mortgage of. See Ktl/i/ v. finperial Loan iL Investment Co. et al.. II^a! H. 5'2(J, p. 4;VJ. LL' See Will. J. B. being tlie owni.r of - :tain U..ui. liy his will, gave his son, M. R., a legacj- o" .'irii'iU auil ; charged it on the land, which he devised to his 8(111 \V. B., an infant : with a provision that his «ion J. B. should (jccupy it during the minority of W. B., and pay the legacy. The land was so occupied and the legacy paid, and a receipt for | its payment talcen. \V. B. suhsequentlj' sold I the laud to T. ]}., and T. 15. sold it to J. C, who j retained §150 of the purchase money because tlie legacj' was not released ; but by an agreement agreed to pay T. B. the .S150 as soon as he should '• furnish a release duly executed by M. B. The { right to receive the §150 under this agreement j and any riglit he had to obtain this release was ! assigned l)y T. B. to M. K. M. K. having tender- ■ ed a release for execution to 'I'. B. , who declined to execute it, brought a suit to compel him so to do ; — Held, that although the plaintiti' was en- titled to a judgment declaring that the legacy was paid, which might be registered, still as the defen- dant had done no wrong, and had given a receipt for the legacy when it was paid, he was not com- pellable to sign anything else, and should not be punished l)y lieing ordered to pay the costs for not doing that which he was not bound in law to do. ']"he purchaser should not have ol)jected to the title on account of the legacy if there was pro()f of its being paid. Kuiserv. Boi/nton, 7 O R. 143.- Boyd. LICENSE. I. Lease or License — .S'ee L.4.nulord ani' Tenant. II. EoK Sale of Liqcors— .See Intoxicating LlQl'ORS, III. Municipal Licenses — See Mcnicipa;, Corporations. IV. Timber Licenses— .?ec Crown Lands. legislative assembly. I. Powers of — Sec Constitutional Law. II. Elections to— iSV*' Pakliamentarv Elec- tions. LI EX. I. When it Exists, 404. II. Equitable Liens, 405. III. Mechanics' Liens. 1. Gene rail I/, 405. 2. On i\Inrtija. e. 147, s. 1. AVw- cuiiihi'. V. Anderaontt al., 11 O. R. Gtio. — Q. B. D. See Hall v. CoUhn Bay Ixai'tlwi awl Fura-ardiinj Co.. 12 A. K. Go, p. 59.' II. EQUITAHLF. LlF.N.>i. Per Hagarty, C. J.— If "an eiiuitable lion, charge, or interest " be created byMeed or l)y any writing capable of being ^cgi.^teIed, ac'tual notice of sucli deed or interest will, under the ()7th hoc of the Registry Act, 31 Vict. c. 'JO (Ont.K [irevcnt the efTect of priority of regi.stration. But as to cipiitable liens, &c. , evidenced by parol only, amongst others a vendor's lien for unpaid pur- cliase money, they have by that Act l)etn pre- vented from affecting a duly registered title In the disposition of real property, unless in cases of actual moral fraud, the stringent observance (if the Registry Law is the wisest rule to adopt. I'dcrkin V. Mr.Farlane, 9 A. R. 429. Lender a judgment for redemption obtained by an execution creditor of tlie mortgagor, the mort- gagee who held the title under a deed alj.-jolute ill form, brought into the master's office witli his account certain orders, signed l)y the mortgagor, directing him to pay the parties named in them any surplus moneys in his hands after i)aying his mortgage. The mortgagee did not accept them, hut entered them in his real estate ledger, and they were not registered :— Held, (1) that such mortgagee could not claim to be allowed these orders in addition to his mortgage, not having accepted or paid them ; nor could he bo looked iilKin as a trustee holding tlie lands in trust for the holders of such orders. (2) That the orders operated us equitable cliarges or liens on the mortgagor's interest in the lands prior to the receipt by the sheritYof the plaintitl's' ti. fa. lands, and that such lien holders .should be made parties in the master's ofTiee, and preing erected on the land. These buildings were being ere"ted by W. under a verbal agreement to that e!iiut between W. and H. subseiiuent to the lease, and by which agreement H. had agreed to lend part of the money retjuireil for the buildings to \\'., advancing the same as the work progressed on the security of the property. \V. did not e.ver- cise his right of purchase under the lease, ane operative to a greater extent than as givii'g a statutory lien, issuing in ])rocesii of execution of eliioacy e(]ual to, Init not gi'cater than, that possessed liy the ordinary writs of execution. A mechanic's lien is not analogous to a vendor's lien. Per I'roudfoot, J. 'i'iie .Me<'hanies' Lien Act was intended to place nie<;hanics on a more fav- orahlc footing than other creditors, and their right ought not to be measured liy what coulil lie leali/cd upon an execution. There seems no distinction in )ninci])lc lictween tiieir position and that of an unpaid vendor of land. Jb. The defendant H. contracted with the defen- dant C. fur tlie huilding of a house. A chiust in till; agreement gave IL a right to dismiss C, and employ otliers to finish the work, in the event uf V.'a faihire to carry out the contract, li. acting thereunder dismissed (-'. and agreed ver- Iially with the respective plaintitls L'. it G., who liad suh-contracts under C., that if tliey would proceed witii their respective jiortions of tlie work, and finish the same, he (IT.) would ]jay them: — Held, aflirminu tiic i'ldgmcnt of ISoyd, L'., 2 (). It. -JXi, tiiat the agreement with !'. k '!, was a new and imlepe:: 'ent contract, n(»t a premise to pay the delit of another, and that 1'. & (i. were entitled to liens for all work done under such agreement with H. as contractors. J'(/riiv. JlnuUr id uL — Otudital. v. Jl /inter et (ll., 10 A. It. 127. \Vhcre the plaintiff's claim in an action to en- force a mechanic's lien was only 814:2, Ijutat the time the action was Itegun tlio aggregate amount of tile liens (the plaintiff's and another) register- ed against tlie property was over .S'-OO : — Held, that the action was properly brought in the High (.'ourt of .lustice, and the costs should be on the scale of that court, and it made no difference that the other lienholdcr failed to substantiate his claim. I/aJ.l v. Pit ct uL, 11 1". K. 44'J.-- Wilson. inrpiire whether any person besides the plaintiffs, other than prior mortgagees, liacl any ineuinli- rance, itc, upon the premises in (piestion. in proceeding under this reference, the master made a number of persons, including the appellants, parties in his ollice, and caused them to lie served with notice "T," Mliich erroneously re- cited the juilgment as directing an iiii|uiry as to incumbrances generally. The appellants their upon petitionetl to discharge the master's ord'r upon the ground that they were ])rior mortga- gees, and hence not necessary or proper parti, s to the action. It appeared that the ajipellauti registered their mortgage before any of the wmk was done or materials supi)lied for which the ])laintiffs claimed, and had advanced the full amount of the mortgage money some months be- fore the plaintitls' lien was registered, though a jjortion was advanced after they hadcommenceil work or supplied materials. The mortgageis had no notice of the plaintiff's lien: — Held re- versing the judgment of the court below', that the ai)i)licant's claim was prior to that of the ])laintiffs and that they were not proper parties to the action, being excepte. Jhiir, i\ 411. (i. IlUjhl of ]V(nj, 411. 7. Mor/tjiii/or or (7 «/. v. HtiijhmH, y A. It. 390. 3. J.v Aiidin.i/ till' Crmi'ii. Till' i)]iiiiitifl' set up tiiat lie liiid a ri^lit Ky ))i-i'- .seTi]itioii to kiL'|) aliil wav a lioat lioiisu in fi'oiit of his lot on till' hank of ilic ( (ttawa rivor with- out liiMUj,' int(;rfi;i'LMl with : — lliM. tiial any 11. Ar/iial mid Cuiisli-icfiir ri,.-'»i'.->.mn, A\'.\. ^tni.'turo on tlu' watn- vww ii cxistin},' for tui^nty years, woujil ho an intfi'ffreni'c witii tiif frci' usi' of the rivir icsorvccl liv tlii; ( 'row n ami tlii' II. Is I'KKSd.VAL AtTlDNS, 414. III. .IriicMiCNTs — Seo S( ii;k FaciA'^ ami Iti:- rii,'iit to i-v, intorfcre, coulil iKit he aci|uiri(| hy vivol;. lapse of time. 'I'lie action was tlierefore dis- ,,. ,, ,, .. ,,. niisseiL Wariii /'. 'I'ln' l.omlon, iVc. , Loan and 1\ . LAsK.MF.NTSllvI'liKSCIUrTION— .S /, 1 .-\{,'t"11eV I o., ( ( (. Ii. ,(Mi. ilistnieuislled. t'nlti V. Hoolli ft at., 10 <>. H. .TjI.— I'roudfoot. AM> Watkk C'on:sKS. V. AiiAiNsT Uaiiavavs— .S'ej; Uaii.wavs and UaILWAV C'o.Ml'ANIKS. I. Claim id Iti ai.t\. 1. Opi-radun of the. Statute Held, that the riglit of eonipen.sation for land taken hy a railway eonipany is not hai-red shoi-t of twenty years, and is not liarred hy tlie elaini- ant's title to the land heing extinijuislied hy reason of the railway eenipany liavinL' heen in ]iossessi(in for ten year.-. I'e'r Armour, .],, the plaintitf's claim to compensation was not money snured hy lien, or otlierwise cliai'^ed on land, within s. 'j.'i of l{. .S. (). e. lOS, and lie ha I not a Vendor's lien, for tlie relation of vemlor ;uid pur- eliaser never arose hetweeu him and tlie coni- ])aii\-. Iios>< V. a rand Triinlc li. I)'. Co., 10 O. K. 447. -Q. r.. I). Oned. in IST.S made a conveyance in fee of certain lands. The holder of an iinsatislieil jud^'- uieot for adeht incurred jirior to the eoiiveyance, hroiight this action to have tlie said conveyance declared voluntary and void as ajrainst liiin. It was pleaded in defence that the right to have tlie relief asked had hecome extinguislied, for that the .'Statute f)f Limitations had rendered the lieed of 1S73, under which jiosscssion was taken, indefcasihle hy creditors: — Held, that tlie plain- tiiV was entitled to the relief asked. A fraudu- lent deed remains so to the end of time, thoui^h it maj' not he etl'ectively impeachahle hecause of purchasers for value without notice having in- tervened, or hecause of the claims of all credi- tors having been barred or extinguished by lapse of years. Buyer v. (laffuld, 11 O. It. .")71. — Boyd. 2. Nature and Proof of Posses.^ion. In 1S((9 L. married O., his deceased wife's sis- ter. G., having had a son by L., died in 1871, .seised of certain lands of which ]j. remained in continuous possession until 1HS3, the time of ac- tion brouglit : — Held, that L.'s occu))ation was to be attributed to his rightful character, which Was that of tenant by the curtesy, so as not to Work tortiously against the heirs at law of the wife. /iV Miirraj Canal — Lav-ton v. Poxars, (I (). K. ()8r). — Hoy (1. Held, allirniing the judgment f)f the Court below, 45 (,,). 15. -r)'2, that ]>ossession for forty years was necessary to establish a title in this case, and that defendants had not shewn posses- 4. Leaxi' fur f.il'i'. Mrs. H., the owner of lot 13, built a house thereon, but whicli on a survey iniide liy a sur- veyor, I)., was found to have eiicroac.'hed on lot l'_', owned liv 1!., Seven anil a liaif inches, wiiere- iipon the fiillowing agreement was entei'ed into : " It is hereby agreed lietween IJ. and .Mrs. II. that the line as stirveyed between the lots of the above parties on Cherry street by .Mrs. I'., i.-. correct ; but that the said .Mrs. H. lie pc'iniitted. to occupy lier house during her life, and not in- conipellid to remove tiie same, nutwitiistanding a portion of it is on the land of said II. ; but that after the ileath of the said Mrs. 11,, said II. may claim the wliole of his saiil lot ; and that in tlie nieantinie said K. shall occu|iy his said lot U|i ti> the said liiii' in rear of the said house." Tin: defendant had pui'cluised from .M. to whom Mrs. 11. had sold some I'J years ])rior to the trial, which took place in the spring of ISSli, .M. at the time being aware of the agreeiiunt, but of uhicli defendant when he bought had no notice. The defendant moved a fence, w liicji plaintitl' had erected in rear of the house in accordance with li.'s survey, in a line with the house, and also veneered the house with brick so as to cause it j to encroach one and a half inelies further on ! plaintitFs lot. Mrs. H. died within ten years i before action commenced, which was brought to recover that ])art of lot I'i encroached on by de- i fendant : — Held, that the ]ilaintitr was entitleil to recover, for that the agreement must be coii- ' strued as a demise to Mrs. II. for life of that portion of lot I'J covered by the house, and not merely a license to occupy the same, so that the right of entry of the plaintitl', w ho claimed under R., dill not ;iccrue until Mrs. II. 'a death, and therefore plaintitl' having brouglit bis action within ten years of Mrs. H.'s dea,th, was not barred by the .Statute of Limitations. It was objected that the plaintilT must fail under the registry laws, because the grant to Mrs. H. it appeared had not been registered, ;ind defendant bought in ignorance of pl.'iintilf's rights ; but : — Held, tluat the registry laws did not alTect the matter, for as defendant bought lot 13 and not I'J, the instrument relating to lot I'J would not projierly be registered on lot l.'i: — Held, also, that the agreement signed by Mrs. H. recetrnizing the line run by H. as the true boundary between the bits, relieved the ])laintiir from ne mid a half int'hes ; hut hh to tlie seven and a half inches, though in doul)t, lie coiiciirieil in the? judgnnMit of the c(jiirt. Hm9 ll 'CSS 1 tit ' ' II MM. ti ac <( CI 4| i^*" Jl e: ll as <•■«• II 1' is II 'aim ll «■«• >•■« II I 1 »• «■* imi* i\ rf** 1 « 1 1 ae «!)'■ 1 '»> II ■ 1 " *- 5. J)nirfi: The owner of land died intestate in 18')8, leaving hirt widow and two infant daugliters in posseH.sion, all ot whom cnntiiined to occupy and cultivate the larin until 1.h,S,'{, when the daugh- ter.-i left the preniiscs. In February, lys4, th(^ widow intermarried with J. M. \o iiroeecding liad meanwhile heeii taken or claim made by the widow to have dower ast.signtMl to lier. In an action hroiiglit hy the daughters against .J. -M, and his wife, to recover possession thereof, the mother claimed she was entitled to retain pos- session of the premises in respect of her clower, but : — Held, that the right to doMcr was barre(l by 3S Vict. c. Ki, s. 14, (Ont.), whicii rerpiires ])roceediiigs to be taken to enforce a widow's dower within ten years from the lieath of licr husband. MncD-Svdd v. McRae, 13 A. 1!. 121. (i. liUjItt of Wnij. •See Mau'jhun v. C'a.«-i, 5 O. 11. SIS. 7. Mnrt'jnijor ami Mavti/ttijie. Held, atiirming the judgment of the Chancery Division (1 ( ). K. ICT). SjiraL'ge, (■..!.(»., liiss., that an assignment under tlie Insolvent Act, 1S75, by an insolvent mortgagor doi's not stop the nui- iiiiig of the Statute of Limitations so as to keep alive the claim of the mortgagee against the land. Court v. ICa;.s/(, A. li, •2"J4. In a foreclosure suit against the heirs of a de- ceased mortgagor, who were all infants, a decree was made ordering a sale ; the lands were sold pursuant to the decree and purchased by J. H., acting for and in collusion with the mortgagee ; J. H., immediately after receiving liis deed, con- veyed to the mortgagee, who tliereupon took possession of the lands and tlienceforth dealt with them as the absolute owner thereof ; liy subse- ((uent devises and conveyances the lands became vested in the defendant M. H., who sold them to L. , one of the defendants to the suit, a bonft tide purchaser without notice, taking a mortgage for the purchase money. In a suit to redeem the said lands brought by the heirs of the mortgagor some eighteen years after the aale and more than live years after some of the heirs had become of age : — Held, reversing the judgment of the Court of Apptial, 9 A. I{. o."i7, that the suit being one impeacliing a purchase by a trustee for sale the Statute of Limitations had no application, and that, as the defendants and those under whom they claimed had never been in po.«scssion in the cliaracter of mortgagees, the plaintitls were not barred by the provisions of U. 8. O. c. 10(S, s. 19, and that the plaintiffs were conseijuently entitled . to a lien upon the mortgage for purchase money given by L. Held, also, that as it appeared that the plaintiffs were not aware of the fraudulent , .character of the sale until just before commenc- 1 ing their suit, they could not be said to acquiesce in the possession of the defenihints. Fanhla v, llariivr, 11 .S. C. li. t)39. Per Burton, J. A. — An action to redeem a mortgage is not an action to recover laml, \\ ithiii the meaning of the Real I'roperty Limitation Act. S. C'.,9 A. 11.537. Hiild, tliat an action c)ii a covenant in a mort- gage for payment of tlie mortgage immey, dots come witliiii R. !S. O. c. I OH, s. '23 limiting suits for tlie purposes therein mentioned to ten j'ear.-'. Allan r. McTavish, 2 A. R. 27», followed iii preference to Sutton )•. Sutton, '22 Ch, \), r\\\, and I'earnside i\ Flint, ih. i57i'. MclJoit(di( v. EUiott, 12 0. R. 98.--l{ose. Tile rule that the only person whose payment on account will prevent foreclosure from beiiit; barred is the mortgagor, or his privy in estate, or the agent of either of tlieiii must be ipialilied so as to include any person who by the terms (^f the mortgage contract is entitled to make pay- ments. Where H. and \V. each mortgaged some proiierty to the ol)ligee f)f their joint and several bond, to secure the amount of the obligation, the latter as between the debtors ijciiig security only, H. being bound to pay principal and in- terest, and e.\i)ressly named as a person eiititieil to redeem both mortgages, \V. never having made any payment at all : — Held, in a suit for foreclosure, that tile period of limitation jire- scribed by sec. 30 of c. 84, of the t'onsolidated .'Statutes of New liruiiswick ran in respect of butli mortgages from the date of the last payment of interest by H. Judgment of .Supreme Court, 11 S. C. R. 1)37, reversed. Lutein tt uL v. WUsuti ft ft/., 11 App. Cas. 639. 8. Servant or Caretaker. See Ilickei/ et al. v. Stovr i-t ul., 11 0. K. 100. 9. Triisteen. J. by his will devised to H. , his wife, all his real estate in L. "during her natural life, for the use and support of herself and family, and in case H. should at any time think proper to sell my said estate, it shall be the duty of my execu- tors to sell the same with her consent, and the proceeds thereof to be ilistributed as follows," lie : " Hut if H. should not think proper to sell my said estate, then the same shall be divided amongst my children, their heirs and assigns, after the death of H., share and share alike" He then nominated P. executor of his will, " with full power and authority to act in the same." J. died in 1838, leaving H. and three children him surviving. P. took out probate. In 1846, H. by deed conveyed her estate in tlie lands for £ir)0 to P. Under this deed P. obtained possession, wliich he retained till his death in 1882, when he devised the land to K. in trust fur tlie purposes of his will, of which he made K. executor. H. died in 1872, and this action was commenced in 1883, by one of J.'s children, claiming an account against K. of the prtitits of the lands, and to have the same sold, and the proceeds distributed according to J.'s will :— Hekl, alKrming tiie decision of Osier, J. A., that P. could not be said to have been an express trustee within R. S. O. c. 108, s. 30, and that being so, t Statute of O. li. 193. Meld, tl Siirroijate thei-eiiy bi iiiiiiniity, sg.unst hir tlie gii;irilii T. L.'i mi with the la 22 years, b possession I'. L., liavi liad iiet'ii i his tenant, ijrouiid tlia had been ii l'roudf(;i)t, ity of T. L for his beUi stnictive t llirh'u et c Chy. 'D. See Fatd The poss was not of icter neces statute. S In 1S6S I the east In >()rin^s, to. the West h;i dwelling h closed the in 1872 the tenant or o repaired it same year such west of the dwel to the prei in undisturl repairing paying tiie ber, 1884, ' -Held, thi through 15. had ac(piirL perty Limit K. 349. 11. Ar The plain liour, in 18 line betwee ilrawn ran 1 years the j timber up t^ of the adjoi sion line :-- pation by t l)y possessic the correct K. 414, dis «/., 9 0. K. 412 toacciuiescc Fan 1 1 1. •i V. ri'dt't'in \i l:iiiil, within Liiiiit;itioii t in a mint niitiiig suit.-* ,(1 tun yt'iir?'. follllUL'tl ill (h. D. 511, \lcDuitald V. lau payiiiciit from liuiiig y in estate, liu (jiialiliuil Uio terms (pf ) make pay- tgagfd aoine anil scvurai I (il)ligatiiiii, ing Security lipal and in- •.son untitled ever having in a suit for itation pre- .jctnsolidated ipeet (it bntli ; payment (if ;nie Court, 1) (/. V. Wdxuii 1 0. K. 100. wife, all his d life, for the mily, and in roper to sell of my excell- ent, and the as follows," )roper to sell 1 be divided and assigns, bhare alike " of his will, ,0 act in the 1. and three out probate, estate in the 1 P. obtained his death in t) K. in trust ich he made I this :iction J.'s children, ;he protits of sold, and the J.'s will:- r, J. A., that 1 an express 30, and that 413 LIMITATION OF ACTIONS. 414 being so, the plaintifT'a iietion was barred by the ' .Statute of Limitations. Julnutun v. Kru'iiwr, 8 (). ii. IIW. — I'hy. I). Held, that . I. L. having l)eon apimintcd by the SiirroL;ate Court, guanlian of her son, T, [j., she thereiiy became an express trustee during his iiiinnrity, so tiiat she could imt U(;riuire title sg.uint him by pusHOBsion of his lands, yet tiiat tiie guardiansiiip ended and the trust ceased with T. L.'i minority, anil as after that J. L. dealt witii the land in (luestinn as her own for some •J'J years, she had ac(juired a good title to it by possession as against T. F^. : -Held, also, that !'. L., having in his pleadings set u() that .1. L. liad been in possession fur tile said ■_"2 years as his tenant, couM not obtain a no ■ trial on tiie 1,'rouiiil that ho could shew by evi lenco tliat she had been in as caretaker for him. Semble, ]ier I'roudfoot, .)., that if . I. L. had, after the minor- ity of T. L., continued to manage the [iroperty for his beiielit, she would tlien have been a con- structive trustee for him, not an express one. llkk'H et uL V. Stocer H al., 11 (J. R. 106.— Chy. I). See Faiihli v. Harper, 11 S. C. R. 639, p. 412. In 1811 r. the owner of cortnin land, sold it to I), will) Went into possession and iiccii|)ieil till IH'27 or IS'.'S, wlieii he was turned out liy the siierid' under legal proceedings, tiie iiati'ire of wiiich did not ajtp.'ar, tal;eii hy l>ulait, wiin was put in jiossession, and remuiiied in possession un- til iSlil, u hen he conveyed to (). through \\ hom tiic plaiiitiir claimed. |).'sartual possession liad been only ot ai)out ten acres : -Held, that D.'s possession was of the whole land ; and that ho could not be treated us a sijuatter so as to en- able him only to acijuire a title to the ten acres actually occupied. It was objected by the plain- till' that the evidence of the recovery by legal proceedings was inadmissible, liecause no' judg- ment was proved ; ami not being jiroved was no evidence against the iihuntill'; imt -Held, that though this might be so if tile i)laiiititl"s title were being impiired into, it was admis.sihle for the defendant in resjiect of his jxissessory title, Ri,bf,-U',a V. Dalnj, II (). K. .'?5li— C. 1'. D. SeeCa/// v. Juukin, t] O. K. .''j.'ii, \\\ A. K. ,")'2r., p. 178. 10. Cuntinuous Possesnio)). The possession of the defendant in this case was not of the continuous and exclusive cliar- icter necessary to maintain a title under the utatute. See Donovan v. IJerhert, 12 A. U. 298. In 18(18 B. being the owner and occupant of the east half of lot one in the village ot Oil Springs, took jiossession of the garden, itc., on the west half of such lot on which there was a dwelling house occupied by a tenant, and en- closed tlie land by a fence with his own lot ; and in 1872 the house having been deserted by the tenant or occupant took possession of that also, repaired it and used it as a workshop. In the same year A. who was at one time the owner of such west half removed the doors and windows of the dwelling and never afterwards returned to the premises. Thenceforward B. remained in undisturbed possessioi: of the house and land, repairing and cultivning the same, and also paying the taxes levied thereon until in Octo- ber, 1884, he sold the property to the defendant : — Held, that B. by virtue of such possession and through B.'s conveyance to him, the defendant, had acquired a good title under the Real Pro- perty Limitation Act. ^eale v. Joluiituii, 13 A. R. 349. 11. Actual and Condructive PonaeHHion. The plaintiff and M., his next adjoining neigh- bour, in 18G8, employed a surveyor to run the line between his land and that of M. The line Jrawn ran through a wood. For more than ten years the plaintiff was in the habit of cutting Umber up to the said line, and he and the owners of the adjoining land recognized it as the divi- sion line : — Held, that this was sufficient occu- pation by the plaintitf to give him a good title by possession up to the said line, whether it was tlie correct line or not. Harris v. Mudie, 7 A. R. 414, distinguished. McGregor v. Keiller et al., 9 0. K. 677.— Proudfoot. II. In' J'kksunai, Actions. 'JL'o au actio;i on a foreign judgment recovered in the Supreme Court in New York, the defen- dant set uj) as a defence that the cause of action accrued more than six years before the com- mencement thereof : -Held, on demurrer, a good defence, for under our l;iw the foreign juilgment i is only de.'iued to eoustitut'i a simple contract ! debt, and the period of limitation is governed by ■ the lex fori, and not by the lex loji contractus. Xorth V. Fi.ili,'r, G O. "it. 20G.— Rose. To make a part payment take a debt out of ; the bar raised by the Statute of Limitations, it is sutficieiit if the paj-ment be made in respect of a larger debt which is the one sued on. The payment of part is an act from which the infer- ence may be drawn that the debtor intended to i ))ay the balance though no special reference is made thereto at tlio time of such part jiayment. Bonlthe.e v. liurke, 9 O. K. 80.— C. P. D. I In an action to recover the balance of an al- leged delit to which the statute was pleadeil ai a liar, the debt was proved as also that several payments were made by the defendants there- on : — Held, that au implied promise to pay the balance might be inferred ; and therefore the sta- tute did not apply. Jb. Though the remedy of - II Ol! If mH ll Ca .1 OS. ' ■ '■»«■ IV Ml* ll Ok /. c v. Muori •: ril., II 1'. li. 447. — Ferguson. See also JI/cTrtf/f/ar/ v. Touthr if ai, 10 P. I; 201. LIVERV .STAl'.LHS. .S>t' Mi'Mcii'.vr, Coiu'oi:.\rioNs. LOCAL .JUr)(;K Ol' \\U,\l COURT. Sec I'ltAcrrcK. LOCAL PIASTER. See PRACTICE. LORD'S DAY. See SrxDAY. LIQUIDATED DAMAGES. See Penalj'V by CoNXRAcr. LIQUIDATORS. U.N'DKR WixDixi;-rr Act.s— .Vce CoKPonATioxs. LOST DOCUMENTS. See Evidence. LOTTERY. See Gaming. LUGGAGE. See Baggage. LIQUOR. Sec Intoxicatim; Liquors. LUNATIC. A jictition wa.s presented by the husband of 1>. to declare his wife a lunatic, which was ojiposid by her. Pending the hearing of the pi'tition P. a.ssigned her sejiarate estate for the benefit uf her creditors. The court dismissed the })etitioii. D. 's .solicitor jiresented a petition for taxation of D.'.'s costs, and for payment by the assignee in ■ 410 ic;>t(j(l iinlcMH it the writ or till land \h nut nil 111 111! clear luiii the \viit is (111 t. .laiiicsoii /. SliijijKirtl \. ■r a lis pciKleii- rfs]iL'i.'t to till oiiliiiary I'a.srs, roiiiiiis of ill.- ■iot nsiilc a (•(111- iiii'iit : r a I'lrtitic; action no > . .'i )■ V. Moon 1 1 t (ti., 10 1'. i; TIONS. ; couuT. e husband of 1*. cli was o])])ii.-('il tin; jiclitiiin 1'. • tlu' licnefit of it'd till' }ietition. II for taxation of the as.sii'uee in ii; MALICIOUS AUIIKST, PROSKCUTION, ETC. 418 priority to the claims of tlu; cn'ditorH, — Hfld, tliiit tliu costs of ii|i|iosinj,' the petition niinlit lie cliissed as necessaries wliieli the wife is lial)le to iiiiy out of her separiite estate, and for which tiiat estate is lialile in the hands of lu-r assi;;nee, lull that they conld not he put on the footini; of iiiainteiiiincc. Such costs should lie |iaid ratalily (lilt of the assets, and costs sul>sci|Uent to the a.^.^ii^nineiit should not rank in competition \\itli iinlitors hciorc the assigliinent. /v /hi iiilirill, III I', i;. •jk;.— r.i.yd. Money ill court to the credit oi a lunatic tlioil^di not so found was directed to he paid out ill annual sums for niainti'iiance. /A l/iiii/<. Iliwlsv. J/iii,l.'<, U I', IJ. .•).--Fcri,'uson. MAC lilN'KliV. \. I l''l\Tll;Ks. ma(;isti;ati:s. Si I JcsricKs III- rill, I'KAt i:, MAINTKNANCi:. 1. t)K Infants— ,S'<'' Iniant— Will. 11. (>K I.IN.VIICS — V'l (jN.Mir. III. Ok iy statute R. S. O. c. ''.], was not pleaded, and the statement of de- feiiee was not framed so as to enable the defen- ilaiit to avail himself of it ; and the court were of "])iiiiou under the facts, set out in the report, that tlure was no evidence on which the special tind- iii.i; of the jury could ho su))portcd : — Held, that the nousuit must be set aside, and judgineiit •27 eiitelt'd for the plaiiititl', with S'~W damages a.^ assessed. If the statute has nut been Jileaded holiest bi'lief is no defelK'C, it there existed lln reasonalile ground foi such hilief. McK»y v. <'iinniihi. K. 4(K» t ', I'. I>. In an action for m.ilicious arrest the statement of defence set np that there was a waiiaiit in the hands of a eoiivt.ible fur the apprelieii^iuii of the plain tin on a cliarge of inisdeiiicaniiiir ; that the plaintilt was avoiding arrest ; that the defendants therefore watcln d liini and when he endeavoured to cscajie di taiiied him until the arrival of the coiistalile, and then gave him into custody ; and that the defendants did tllis in the liuiia tide be- lief that they «i'ie jiistilied in thus aiding the arrest :— Held, that although these facts did not er)n8titute an answer to the action, yet they could be liiveii in evidence in iiiitiLtatioii of d.iin- ages, and tlicrefui'e it \n as proper that they .-huiild appear upon the record. I'nri/ii/ v. ll'iiinH'l a/., II I'. K. (14.-I!o.se. >Sue KifhiD'il^iiii v. /'iiii^i'iii, KM >. 1!. .'{sT, iiitrn ; SW.ii.ju/f V. Sfri/i/ifiiii, l'.» O. l;. ■_'(!(), p. 410. ' 11. M.M.iriiHs I'i;osKil rioN. Action for nialii'ioiis |iroseeiitioii and slander. The nialicioiis prosecution arosi' out of a charge l)efore a inagistlate and a siiliseipieiit iiidietnieiit pieferred at the l^uartcr Sessions. In proof of the termination of the criniiiial proceidings, the plaintitl' produced in evidence, which was ad- mitted subject to objection, the uiiginal indict- ment endorsed '•no l)ill :"--lleld, that this was not sutlicient, bm that a recoid should have been regularly drawn iij) and an exaniined copy produced : — Held, also, that evidence of the motives which induced the defendant to lay the charge before the magistrate was jnoperly I'c- eeivalile, and should not have been rejected as was done lici-e. Mrt'anii v, I'mu naii, KM). H. .573.— C. I'. 1». In an action for falsely and maliciously charg- ing the plaintilV with obtaining money from the defendant by false j)reteiiccs, and for arresting and prosecuting him therefor l)efore the police nuigistrate of Helleville, ap|iointctl by the (Jov- ernment of the Province of Ontario, and who, it was alleged, had no jui'isdiction to act, it being contended that such appointment pro])erly lay with the Hominion (ioverninent : — Held, that a j)erson could not be considered a trespasser merely by laying an information before a police magistrate so appointed, charging another with a cri^ne, and praying therein that a warrant might be issued for his arrest, llkhanhon v. liun-^om, 10 O. R. 387.— (i. B. D. A robbery having been committed at the de- fendant's store a bill of an account due by the plaintitl' to the defendant, which it was alleged had lieen rendered some time previously, was found lying near by, which from its cruiniiled appearance indicated that it had been carried aixmt for some time in a person's pocket. From this the defenilant said he su.speeted some one in the jilaintilfs house, and he went to a magistrate and laid an information, u])on which a search warrant was issueil, and the plaintitfs house searched, but none of the st(den goods were found therein and no arrest was made. It ap- peared that the account which was found hud » ii •4 It I* 19 II h V •» l» la ■u iM 419 31ANDAMUS. 420 421 l> »« ll fts '• ma ll C/; I «.t? Mh--» ll «BWt ll Bt ll c: «l i#* ll c:: )l ss J! MU k * 3r, 11 «i^ i| mm law i> 1 ! »* 41 rf" 1 a» Wl^: 1 1 ft> (■> •: II It • 1 9:: •h'U never been sent to tlie iiluintili' Imt a siniilai-nne ; liiiil, tlie defendant statin;^' that \\ hen he eansed the seareh warrant to lie is.^iied, he \vas undiT the lielief that tlie aeeoinit liad lieen sent, haviiij,' forgotten tlie faet that it iiad not lieeii. In an aetion for nialieioiis |ndseentioii, the liiiriK'd judge entered a Verdict for the defeiiclant, hold- ing that the |ilaintill' had tailed to slmw that the defendant ac ted without reasoiiahle aiio, tliat ail action for mdicious |iro" scciition will lie for issuing a search warrant with oat reasonalile and pi-dhalilc cause. Ahratli '•. Ndrth Kastcrii I;. \V. C,... II (,t. I'.. |). 7!(, 4 tO, coninientcd (.u. /',. In an action for uialiciuiis |)iiisccution, it ap- peared that the plaiiititl's father sold a liilggy to r>. for 81 1."), to he made in t«o paynieiits of S,">S ami SoT respectively, and until paid the title and riudit of ))roperty were tr) remain in the vendor, iiefore the purchase money was paid U. sold the Imggv to ilefi'iidant, a livery stalile kee])er. The jilaintilV's fathi'r, on hearing of this, directed the lilaintitl' to go and take it from defendant, which lie did, informing those at defendant's place that jilaintitl' eould lie seen at an hotel uaiiied. Tlie ilefeiidant, on his return, went a"d saw the lilaintiir. who tohl him lie was acting under in- structions from his fatliei-, who claimed to lie the owner of the Iniggy, hut, notwithstanding, the defendant eansed tile ])laintill' to lie arrested for 1 ireeiiy, and he was eoimnitted for trial, and was sulise(pieiitly tried ami aeipiitted. The jury found lor the )ilaiiitifi': -Held, on the evidence, the verdict eould not he interfered with. SratK/d// V. Sf(,/>/iton, !•_> (). H. '.'OlS.— C. 1'. U. The defendant set up that hefore causing the .arrest lie eonsulted a lawyer, Imt the jury found that the ])lair.titl' ilid not givt! a full and true ae- eount of the ea.se :^Helil, that this ground failed. //'. Kvidenee was offered that the magistrate, against whom there was no eharge, had, hefore acting, consulted thei'ounty attorney, wliieh wa> rejected : — Meld, that the rejeetiou was proper. Jb. made, 'i'lie iilaintill's gooi- vision Court was notilied of |)ayiiient of the delit, and then' was therefore no malfeasance or omi>. sion on defendant's part: — Held, also, that the defenilant was not lialile in tresjiass, for he had not anthorizcd the direction hy the clerk to issue exeeution, which was no )>art of the clerk's duty ; and -Scmlile. that neither could he have lieen respoiisilile if his attorney had directed it, after the suit had lieen settled. 'J'lir/:, It v. h'(tl(i,i, Ol». I!. 4St; C. 1'. I>. tjtiierc. miner a pel'suii w liiise I!. S. (). e. 47. s. I(l(», whether ^iiiiils have lieen seized under Hivisiou Court process, can have any further relief than the restoration of his goods : - Held, that the damaires given weii', under the facts set nut in the re|)iirt, grossly excessive. ///. M.M.iciors ix.unvTo I'koi'KHTV. See /.'■illwt v. Mrl)„:,„hl. PJO. H. .'SSI, p. :iS'J. MALI'UACTICi:. S. K. 154), tliat a County Court .ludge will not Im eoiupelled liy niaiidaiuus to ini|iiiie on a seriitiiiy of hdlot papers uiiilcr sections (11, (i'J, and illi "t 120 iig liot'U .si'iVt il ' (It'fiiidaiit fill- y iind witliiir.t i^il the suiiii' t(i s to 1)0 seized ever iiitei'feiiil nstructiiiL; tlir t tlie ])liiiiiti:l s (hitv ti) jirn leiU ()"f the l>i. uut of the (leht, ;isaiiei: nr oiiii.-- , idsd. that till' KU.s, for he h:i I y the elerk tn •t of thi' eh'lk s !• eoidd he havr lad dii'ectiMl it, 'iirkitt V. Eatihi, s. Kil), whetliei- II seized uiidrr ve any fiirtlier jj;()()ds ; - VFeld, Ut till! faet^s set ve. //'. IMtOl'KHTV. . K. .SSI. ].. ;ivj MANDAMUS. 42-2 )NKHS. Rihiji «! ('urfxiVdlinn al' R. !)0:J. p. 4'.'1. [iiaila Soiiilii rii U(lj,'e to tiy iiii ion. See /*' '■ o.se, .1. (!H». K. j,'e will nut Iw re on a s'Tiitiny I, (I'J, and ii;i |>I 1878, us to [lei'- ~(ination, lirihery or the status on the voters' list ci the parties voting, was alliimed by iliis eonrt, It aip[)e.irini; that the point was covred hy ii Midijnient of the Sn])renie ('ourt of Canada in I liipniaii r. Hand, in whieh the juilgnient aji- liraied from in this ease was eited ;uid ap|iroved i.i. /•'■ <'(ui(iila 'J'l iii/i' mil'' A'/, I'J A. K. 077. 3. I'o Mii/ii''lji'i/ Viii'jiornhon'-, \\ liere a niunieipal eorimration issued delien- tiues undei- authority of eertain by laws whieii riipured a sinkini,' fund to lie laised eaeh yeai' to [iroviile for jiaynient of tlie principal at ma- tin ity, hut the corixiration ouiitteil to raise such -inking fund : — Held, tliat they should he eoni- pelled liy nian. 1!. Olfj. — I'l'oudloot. It is discretionary with and not obligatory u] ion a munici)ial eouiicil to opi'ii a road allouance, and the fact that a by law has been passed docs lint c'-eate such an oliligation, and a mandamus was refused. /A MV/m/// v. IVfiiiirl' t i, 10 1'. K. 147. — Hose. ,Vii appeal from the judgment of Itose, .(., ;iiot re])orted) dismissing an application under 4() N'ict. c. Is, s. ;"),'!."), (Out.,) for a maiulamus to loiiijiel the ie])air by the county of Haldiinand if an existing bridge or the constriictioii of a new one over the Oswego ("reel:, where it crosses tlir boundary line between tl e townships of .Moiilton and Haldiniand, by reason of the judges iif this court being divided in opinion, was dis- missed ;—l'er Magarty, I'. ,1. U., and Osier, .1. A. -ludietmeut was the a])))ropriate remedy. The cmirt below had the right to grant the writ in its discretion, which was, however, ])i'opi'rly exercised in refusing it : — I'er lUirton ami Pat- terson, .1.1. A. — 'J'he duty under the statute is nut the general obligation to keep Idghways and liiidges in repair, but is a sjiecifie duty like that cast ujion railway com)iaiiies by their charters «ith respect to the restoration of roads or the Imilding of bridges. The existence of liability til indictment does not of necessity exempt from iiiiiipiilsion by inaudamus any party "liarged by -titiite with a sjiei'ilie iliity. JndietMieiit would ill this ease be neither a spi'eitic nor an adeipiate ii'iiiedy, and a maiidainus should have been ^'iMiited. The deiuand made upon the t'ounty cniiiicil previous to the ap])lication was suflicient: I'er Osier, .1 . A. — The demand was insullieient : I'er Curiam— 'I'he county council were liable fur the non-repair of the bridge in (piestion. //( >'' Thi Cor/)<>rati>if< III' /hi' Toiniiili}/)'' ti/ Moiillini 'lull Vatihunimih an/ Tin Curii irni'inn of llic 'mnty of Jlaidimaiul, I'J A. II. WX Held, that an .action claiming a mandamus will lie against a nuiiiicip.ility for not o))ciiiiig an original allowance for road, by reason of w liicli the occupant of land cauiiot have acci'ss to and from his land, to and from a piililic load, if there be no other convenii'iit way to and from his laud, and if there be no good reason, in respi'ct of nieaiis or otherwise, why such allowance should not be o])eiied, and if the wmk re.|uired to be done for that juirpose be worth the outlay rec|iiir(d to open and maintain the same : — Semble, if the evidence given will not warrant the court in granting a mandamus upon motion to the court, and the court has before it all the materials iieees.sary for linally determiuiiig the i|uestion in disjiute. judgment mav be given for the defen- dants under itule .'VJI of tlu^ .ludicature .Act. ///Vo/i V. 77,' '/'oi/v/v/oyMi/M/c'/;//:,-,-,,//, I'JO. \i. 74!)-(J. ];. I). A mandamus was a]i|)lied for at the instaiico of the sessi(Uis for the County of Halifax, to comiiel the warden and couiuil of the town of I lartmouth to assess, on the property of the town liable for assessment, the sum of ;Slti,!)7(> for its |iropoition of county school rates for the years IS7H-7S, under sec. ."i'J of the Kducational .Act, It. S, >,'. S. e. US. The Supreme Court of Nova Scotia, without determining whet her the reipiired assessment was ]iossilile and was obligatory w lu'ii the writ was issued, made the rule nisi for a mandamus alisolute, leaving these (piestions to be determined on the return of the writ. On appi'al to the Sii])reiiie ( 'oiirt of Canada, it was— Held. (Strong and (Iwynne, .b)., dissenting,) that the grautilig of the writ in this ease was iii the discretion of thi' court btdow, and the exercise of that discretion cannot at |ueseut be (|Uestioned; — I'er Kitchie. C. .1. That the town of Dart- mouth is not, but that the city of Halit'ax is, exempted by c. ."{'J, I!. .S. \. S. from coiitribli- tiou to the county sihool rates. Itni'uai v. Il'a;'- '/'■» mill Ciiuiicil oi' tliL Tuirii iif Darlinonlh, \) S. c. K. -m. 4. To Oiloi- Pvrsoii^. The owner of laud tak"n by a railway is enti- tled to ciimpcnsatioii, .and the eom[iany must proceed to settle the amount thereof under IJ.S.O. c. U)."), s. 'JO, if they do not, the proper course i.s to apply for a mandamus. Dnnon.i/ v. '/'If Miil- /anil A', ir. ( '(>. «/■( 'aiindfi, 10 1'. It. 7.'i.— Cameron. ()n such application a formal title in the ab- sence of proof t .^ '• '*?; " «««> ":^- ii ss ii - ' j d« (, !! M*. t «; a» I :: 5c Held that mandamus to the Provincial Secre- tary is tlie ])niiii.'r mode for enforcing the issue of a notice iukIci- "JT-'-'S \'ict. c. '23, s. ">, 8ul)-s. 18 iCiin. ) .stating that i hy law increasing the capital stock of a company liad he^'n ))assed, and declaring the niind)er and amount of shares of the new ,^to(k, iVc. See /.i Mn.^^i 11 .\fitiiiit'n direi-ted to the Mid- ! land liailway ('oni[i,iny. :uid w.is served on the president. Attaihmcnt against the president for disobedience of the writ was refuseil. heeanse it ! appeared that he could not hy himself and with- ! out a majority of the hoard of directors perform the ait rci(uired l)y the writ. ,ind the other direc- tors had not liecn scr\t'd : hut — llidd that the mandamus was properly directed to the com- pany. //). I MASTERS OF THE COURT. .See Practice. MAXUEACTOiaE.S, EXKMI'TION FkOM 'J".V.\.\1I0N — Si:i MlNK'IP.VI. C'0HI'()R.\TIONS. xMARINE IXSL'RANXE. iS'te iNSf'KANCK. MARKETS. See Mi'NRirAi. CoKroKAiioN.- MARRIAdE. Svt HryitA.ND AM) Win;, MARRIAOE SETTMvMENT. .S'm' HrsilAND AM" WlKK — l''l!.VllHLr,NT CoX- VKV.VM KS. MA1!R1HI> WOMEN. Sk llrsr.\M .\Mi WiKic .M.\l!SllALMNi; ASSETS. Tin i\' ran lie mo niar^ii.aliing of assets in favour of a charity, liu'lnr v. Ilc'ao: loymknt. 42.-). C'oNTRAf T of HllUNti. 1. Bttirii II Rclalio. 1. Where brothers, or .sisters, or other near rela- tives, live together as a f.amily, no ])romia(; arisis by implication to pay for the services rendered or benetits widcli, a.s lietwceii strange's, would afford evidence of such a promise ; and therefore in an action between relatives so living together for board, wages, or the like, an express promise must be ]iroved by the part.y making the claim. Redmond c. Rednumd, 27 "(.». ]J. 220, followed aud approved of. Ilir v. Ikr, 9 (•. R. ^ol.~ C. P. I). 2. /!' iniini nitioii or Salary. Where by-law of a municipality appointed a health otHcer but did not H.x^his salary : — Held, that the law would ti.x his salary at a reasonabU' .sum, I'cgard being had to the services performed. JtOi/arf v. 7'/(» Cor/iora/loii of the Toirwhiii if Siymonr, 10 O. R. 322. — Ferguson. 3. Ddermi nation of. Held, that a contract of hiring entercil inti/' with a rirm by a c0mmerci.1l traveller is put an end to l)y the death of one of the partners. Bur- net V. //o/jc vt al., !) O. R. 10.— C. I'. D. The plaintiff, who sued for wrongful dismissal, having received a letter from the firm in .March. 1882, dispensing with his services from the 1st .lamiary, 1883, afterwards signeil a I'cceipt for his wages for December, adding, " and I am now leaving their employnrnt :" — Held, that this was evidence for the jury of acquiescence in the termination of his engagement, more especially as he had made no claim for future wayes. /''. II. Acn'KiN FOR Wri)N(;fi:l Di.smis.-;ai,. This action was brought bj* (J. against .A. I". S, S. Co. to recover damages for an alleged breach of contract, The plaintill' was master of the ss. (Jeorge Sliattuck, trading between Mali fa.\ and St. I'ieri'c and otlier iioints in the Domin- ion. She was owned hy defendant comiiany. tin' |ilaintill beini; one of tlie largest shari'liolders of tlie couip.iny. I'laintill's contract was that lie w.is to supply the ship with men and proxisions lor the p.issengers anil eiew. and sail her ,is com- mander for ,';r!KI() a month, after«ariU increased III. 424 >URT. ANT. 4-24. ■. 424. )It In.IIKV To E.MI'LOVMKNT, 1, ither nvav rul:i- promisi; ai'isis vices ruiKleriil raiigo's, wouM ; iiml tliei'i'foie living tiigethei- xpruss pvoinisL' ing tiic ulaiiii. 'iiO, followed I (>. It. ;51.- (I'l/- y iipijointed ii salary ; — Held, it a reasoiialile ees performed. entered into> i'eller is put an )artner.s. Biir- I'. D. igful dismissal, tiiin in March. .s from the 1st I i receipt for ' and I am now [eld, that this ieseenee in the nore especially re wayes. /'<.. DiSMI.SSAI,. against A. V. for an alleged f was master ol between Mali s in the l>oniiii- t (omiiany. tln' diarehnhier.s of et \\as tli;it lie and pidvisimis sail lu'r as coni^ ards increased 425 MASTER IN ORDINARY, 426 to §950. The ship had hoen originally accus- tomed to remain at St. Pierre 48 hours, but the time was afterwards lengthened to (JO hours by the company, yet the plaintiti' insisted on re- maining only 48 hours, against the express direc- tions of the company's agents at St. Pierre, and was otherwise disobedient to the agents, in con- se(iuence of which he was, on the 2'2nd .May, without prior notice, dismissed from the service of the company. The case was tried before .Sir William Young, C. J., witliout a jury, who, considering that tiie plaintiti' was not a master in the ordinary sense, held tiiat he had been wrongfully dismissed and found a verdict in his favour for .?2,000. A rule nisi was made abso- lute by the full court for a new trial. On ap])eal to the .Supremo Court of Canada it was — Held, 1st. That even if the dismissal had been wrong- ful, tlie damages were excessive, and the case sliould go back for a new trial on this ground. 2nd. Per Ritchie. C. J., and Fournier and Gwynne, .J.J., That the fact of the master being a shareholder in the corporation owning the ves- sel had no bearing on the case, and that it was proper to grant a new trial to have tlie (juestion as to whether the plaintiflTso acted as to justify his dismissal by the owners submitted to a jury, or a judge, if case i)e tried without a jury. UniJford v. Aii'/Zo Frtiirh S. .S'. Company, 9 S.C. R. 303. See BumH v. Hojie et al., d]0. R. 10, p. 424. III. Liability of Master for Inmcrv to Sek- VAX! IN' Course of Emflovment. The statement of claim alleged tliat the pliin- tift' was employed by the defendants to work at track laying : that while so employed the defen- dants directed and required him to assist in bringing railway supplies to the place where they were being used : that they also directed and required him to be carried, as part of his employment, on the defendants' trains : that accordingly he was received by the defendants '"to be safely carried" on a tri\iii, and that owing to the defendants' negligence he was, while so travelling, thrown off the train and in- jured : — Held, 1. That if the plaintiff accepted a diflferent employment from that originally con- templated, he became the defendants' workman in that new employment, just as he had been in his former employment. 2. That the statement that the plaintiff was received on the train " to he safely carried" did not imply that a special bargain was made "to safely carry," but only that the plaintiff was to to be safely carried as one of their workmen in the course of his em- jiloyment ; and that there was no cause of action. May v. Ontario and Quehec R. W. Co., 10 O. R. 70.- Wilson. Held, in an action by a servant against his master for an injury he had sustained, in conse- quence of the guard being out of place in work- ing a circular saw which he had to attend, that it was not suthcient to shew that the master knew the saw was not guarded ; but it must also appear that the servant was ignorant of that f;iot, and as the servant was skilled in the use of the saw, and did not look to see whether the guard was on or off, as it was his duty to have (lone, he could not, therefore, make the master responsible to him for the consequences of his own neglect of duty. MUln- v. Rarl, 10 0. R. 419— Q. B. D. The defendants, the proprietors of extensive mills, constructed a tramway to carry lumber from one end of their yard to tlie other, the cars used being drawn by a steam engine. There was no passenger car, but the employees were permitted to be carried on the road. The track was laid on ties jdaced on wet ground, very little ballasting was done, and none where the acci- dent happened, and tlierc was otlier evidence of faulty construction. The plaintilf was going to his work on one of tllc cars, when it was thrown olf tlie track by renson of a misplaced rail, caused by the defective constructitui. The defendants employed a com]ietent foreman, who delegaLed the duty of keeping the track in repnir to one H., a fellow servant of the plaintiff, and it was shown thatB. neglected to replace the rail, thougli he was aware of its Ijciiig displaced :- -Held, that the acciilent having been caused by tlie negli- gence of a fellow serv.ant, the defendants were not liable : — Qua'i'e, apart from this, whether the plaintilf could have recovered, he being aware that the road was without ballast, the defects in construction being patent, and such tramways Ijeiiig known not to be substantially built or of a jjernianent character. McFm-lant V. tlUnwnr .7 «/., 5 O. R. 302.— C. P. D. Plaintiff sued as administratrix of her husband, who was killed by an explosion of defendants' ])owder mills at (."., in Ontario, the head othce of defendants being at :M. in (,Miebcc. The works at C. were carried on through a suiierintendent, who hired, pai. Hamilton Poinkr Co., 12 0. R. 58.— Q. 15. 1). See also Hynn v. Cana'la Southern R. IT. Co., 10 O. R. ~\:>'\ yfrLaiii-htinw Th. Grand Trunk R. W. Co., 12 0. U. 418. MA.STER IX CHAMBERS. Si^e Plea d i m ; — P raltice. MASTER IN ORDINARY. Sec Pt.FADiNc -Practice- Ti:iAL. lit ID 427 MEMORIALS. 428 :MASTr:R of ship. Si'f Ship. I* *■• if ftm as II ati f 1 I! !! r s !! :«*. ^ II 3fi IK ' ' «l« '" MAXIMS. " De iniiiiiiiis noii curat lex." Spo Claxloii v. ShihliU tl . 1!. 4.-)l : 10 (). H. •_>!).■). " (Juiiiiiiil ])Iaiitiitiir solo, solo cpilit." Sue Thi iS f I- fi II ■■•■, Turin i-y mill Jl/irii-' Fiiuinlrij (mil Gena'dl M((nii)hctiiriiiii Co., Liniiii tl. \. Bavfoot, 9 O. R. m-2. " Injuria iioii oxcu^at iiijurinni."' Soe l!(iiu V. Booth, 11 (). 1!. 4!l|. "Caveat emptor."' i^vv.'Jioofliirifty, Yoinui, 12A. E. (i71. MEASUKH (IF DAMAGES. *' D. M.\(u:s. MECHANICS- LIKX. S(i. Lii'.N. :yiEDICAL rit ACTITION ERS. I. Pkactisin(; Witiioit Rk(;istj:ation, 427. II. Xkclkjence and MAi.i'iiAiricK, 4'2S. I. Practising Witiioit Rkcjisteatiok. The (lefoiulaiit, who was agent for a dealer in musical instruinent.s, niulert(>y the gross. It also appeared that ho prescrihed other medicine for the patient l)esides the oil : — Held, that this was practising medicine, ami that the defendant was rightly convicted of doing so for gain or hope of reward without registration under the Medical Act. Rtijiiia v. Jfall, 8 O. E. 407.— Rose. A conviction under the "Ontario Medical Act," (R. S. O. c. 14'2, s. 40), for practising ■without being registered, was quashed, because in default of payment of the fine iini)osed, dis- tress was also awariled ; and, held, that s. 57 of c. 31, of .S'2-3;? ^'ict. (Dom.), does not apply as by 8. 46 of the Medical Act provision is made for en- forcing payment. Held, also, that s. 40 ap])lies to any person whose naint has been erased trom the register, though he may have practi-sed after having been first registered. Ihijiua v. iS jiarhaiii, 8 O. K. 570.— Rose. Semble, that on a ])rosecution under the Act the defendant may shew that as a matter of law his mime was on the register, though by accident or design improperly removed or erased there- from. //'. II. XKiil.IfJKNC'E AM) MALPRACTirK. Action against a medical man for mal[)ractici\ The alleged malpractice consisted in applying wliat was called the primary l)aiid,ige to a trar tui'c of the forearm ; and, it tliis was good sui Igery, then there was iieglecL and want of propi i : cure, in apjilyiiig the bandage too tightly, and ii; . not placing the aim in jjropei' position, wheii'liv the arm l)eeame p:iralyzeil and jiermaiieiitly n-i ■ less. The defendant admitted the use of th.' primary bandage, and Jnstilied its use as ])r(iper. and denied tliat there liad been any negk'ct. iVv. j The jury found for tlie defendant :--|-lelil, (.), the evidence the verdict could not be iiiterlVicil witli. I'aiiMio: V. Fan: mil, \'l O. R.'iS,"). -( . P. 1). A me(lical man called by the defendant statiii. fi'om the evidence given liy tlii^ iirnj 1 1 nl. v. E tightly, aii'l in sitioii, whfi'i.'liy ■niunioiitly ii-( - tliL' use of xh.y s iiso as ])roiii-i'. my iicgluL't. iVc. uit ;--IIt'l(l, 01, ot 1)L' iirterfciiil O. R,'2S5.- ( , >feiiilnnt statcil. (lefundant, and case, iio (.■oulii :t was bad siir- cnll c'videiicL' in mt .stated at tin ory : — Htdil, in- practitioiier Ini- ])rovi! not oidy it of .skill OH till' liat tlic; [ilaiiitit! af. V. Eii--ii tiic note. \^'. J., during the currency of the note', absconded, after obt lining from M. by false jirc- tences a cheijue for a large sum, whii.-h In' cashed, and gave part of the ])idceeds to l>. J. to take u|.' the note, which 1 », .1. dil before niatiiiity. \^". J, told 1). J, that he had got the money from M.. with whom he had had dealings, as D. J. knew, but D. .1, had no notice of any wrong doing in connection with the monev : — Held, (allirining the judgment of i'.oyd, C., "lO O. li. 1,) that tin- mortgage ceased to be an incumbranci^ on the land when the note was retired ; that M. could not follow hi.'? money into the note, and was therefore not entitled to stand in the shoes of \). J., as to the security held by him, even if it had been a mortgage to secure the payment of the note. Jack v. Jnek, 12 A. R. 47*). Deposit of client's monev to credit of solicitor. See Bail,'!/ v. Jrll^ll rt al.,'\) A. R. 187, p. 42, See, O'iralili v. La Ilaii'ine Jarqiir.-i ('nrlii ,•. !t S. C. R. r)!>7, p. I'■ UENCE. II. Pay.ment MEitoEi; and Discharoe. 1. Atloriii 1/ or Aijmt. 4153. 2. Prii.- " ■■•>« t liiOic ;(«' ;j c: » IX. r CasiM, 43(5. 0. Ban-' if III/ 'J'imt — SV<; Limitation ok Actions. ASSIONMEST AND TrANSFF.R, 43«. Sale inder I'owek of Sale, 43S. ReLEMI'TION OF MoKTiiAGES. 1. Who EnHthil to nulum, 439. •2. tV/.v, 441. F0HEC'Lv..srRE. 1. Ojii:nini/ Fan rh'Hiri , 441. Proceedings in Mortcaoe Suits. 1. Takiinj Ayronnt.i, 441. 2. Mnltiplirifij of I'rorti iliiii/x, 442. 3. Cost., 443. Miscellaneous Cases, 444. Dower IN MoRri;A(;ED Lands — See Dow- er. Fixtures — .S'( e Fixtures. Mechanics' Liens on Morto.\(}ed Pro- I'EUTY — See Lien. Mortcage by Executors— .S'te I^xecu- ToRs AND Administrators. i ^lORTlJAGES OF CHATTELS— ,SVe BiLLS OF ! Sale and Chattel Mortgages. ' Mort(;agees as Parties in Actions — 1 See Pleading. I G. and K., who assumed to sell under the filiove j power : — Helil, that they could not confer a good title uijon the i)nrchaser, tor that in construing I the above power resort could not be had to the , long form in the Act, inasmuch as notice was I dispensed with, m hicli was wk a mere exceptimi from nor (jualiiication oi the short form given in the Act, but an aludition of one of its most im- portant terms ; and the jiower thus being left to ; its own force, no one but the persona designata, the original mortgagee, could excivise it. A transfer of the estate cloes not involve the trans- fer ot trusts or powers necessarily as inseparublo incidents of the estate. J!<- ' (dill I-'Inii'l, K. 172, p. ISl; lit uL, 10 S. C. u consideration Ijy way of loan, lud by a deed alleged that M. paid during his le and reconvey applied to M., al and interest at she had paiil onvey the land to comply with. It year, M. sold cK., for 81,200, conveyed to 1!., value, taking a ler.^tion money, : to one W. (not timeli. & McK. le knowledge ot ge quantities of on, without any ntiff to restrain e plaintiff insti- leking to redeem was intended as was pronounced ; of opinion tliat )ne of mortgage n the report, the , had distinctly 11 in this respect. ally divided the decree for the Hagarty, C. •)., transaction was •bal undert.aking t of what shouM . — While enter- tiff's right to re- did not establisli I without notice redeem ; and in . who heard the ot of notice was ecree should be The transaction r the iidvance of ual notice of the die was entitled ir/fiH«, 9 A. Iv. II. P.VYMENT, MkRCER AND DiSCHARliE. 1. A>i(iriii II or A'ji lit. Held, that custody of a mortgage gives no right til the custodian wliether he lie the solicitoi- of tlie mortgagee or not, to receive any ji.irt of the inincipal or interest secui'ed. A nmrtgage not (iidy secures money, but it atl'ects the land, iind sii for its effectual discharge iK)t only jiayment liut re-conveyance is essential, and for this reason the law does not infer a right to receive tile ninney lioni the mere ]Kissession of this kind of security. merger, and that the plaintiff was entitled to recover. Mniiluiinlil v. linHinuii, 10 A. R. r)82. i;;n> Till iiuiiVIH Ciillio/lr J-Jjii. III., 7 O. I!. 140. — Boy . In res]iect to discliarges of mortgages, what tlie Registry Act makes t mtamount to a re-con- veyance is tlie eei'titicate of discharge and the registration of it, not tlie execution of the certi- ficate merelv. In n .Vik'k- ll, the same day as the deed : -Meld, tint thi' deed must bo assumed to have lieen delivered bct'ol e it was I'cgistered, and the , enables a mortg.igor, entitled to the possession of land, as to whicii the mortgagee has given no notice of his intei.tiou to take possession, to sue to pi'C- vent or recover damages in respect of any tres- pass or other wrong relative thereto in his own name only, and that the objection that the iiKn-t- gagees should lie paitics (uight not to prevail. Plalf v. '/'Ill' (Intiii'l Trunk I!. IC. Co. of Caniiiln, 12 {). R. Hit. -Proudfoot. 2. liiijlit of Morlijaiii'i' lo Maintain Aiiiont. C, owner of the premises in <|Uestion, mort- gaged them on (itli Februarv. ISSd, to the (J. P. I.. & .S. Co. On 17th .March, IS.S:?, C. made a second llKn'tgage to L. who assigned to plaintiff. On ,")tli October, 1881-!, ('. leased the premises to defendant for ten years from 1st .XiJril, IS84, at 817.') for the first year, and 81t).") for subsecpient years, payable in advance on 27th October in each year. The lease contained a clause that rent shoulil be paid to H., or sent to the mort- I gagees " as ji.iynients of interest on loan made i by the lessor." H. was the local agent of the first mortgagees. The clause referred to was inserted in the lease at defendant's re(|uest. The rent payable on 27tli October, 1883, 1884, and 1885, was paid by defendant to H., who remitted the nioney to the company. H. gave defendant receipts for the rent as agent for V. The com- pany sent H. receipts for the money forwarded by him, expressing that the money was received on account of advances made to C. H. had no authority to receive money for the company. The comjiany were not made aware of the exis- tence of the lease, or of its provisions, '{'he plaintiff brought this action to recover posses- sion of the mortgaged premises, his mortgage 435 ]\rORTGAGE. 436 ,»»- r il Sii h4 ■» ' MH c li £« ;!B« ^I '* >aa^ «k " aiw 4 (ia« XiV ;i ^=: 3' ir^m J-?: '!« f» s: ;» i! S"» •R :: 3S ^ W 11 ^w •«:: S^ it ^ !>» i>«^ H U ^m '!( 1 ^« ■■1 !! .jw 13' i> :sti »»■ ■ is l)fiii,t,' in (Icfiuilt. 'I'lic (U'feiiil iiit set ii|) tlic lease ami the clause referred to, the jiayiiiciit uf I'eiit to tiie eiiiiipany, ami that he was tenant to the ciinipany, whose niiiit},'a;,'e was in default : - Held, I'evei'siry the ileeisinn of I'loyd, ('., tiiat, a< the conii)any reeeivi'd the niiiney sent them by II. not .IS rent of the inorti,'a^'ed lands, hut on ai-count of advances niaile to {'., they ef)nld not under the evidence \n'. held to lie iuortj,'a;,'i cs in ))ossession, and that defemlant was not their tenant: — Held, also, that even if the comiiauv had lieen aware of tiie ))idvision in tlu' lease and had received the money with such knowledi,'e, they would not have lieen inortgani'cs in ])osses- sion with defendant as their tenant, as the money umler the ^■ery terms of tlu! iirovision would not have lie(n I'eceived as rent, hut "as payments of interest on a loan made liy the les- sor." The iilaintili' was therefore iuhl entitled to recover. I'r<,.. 1!. (i(;i». — (,». |{. 1). See Ward v. Jluijh's, S O. II. l:!S, p. 7(5. 3. I!i ronr'j of lh( .][(), ■f'/mji .}fiiii' i t the maturity of the mortgage, fi'om which lii:,. ! the leyal rate only was recovcr!d)le. McllonaL; I KUiott, I'JO. H.iis, rcfrrrol toanddistinuui-li ' i ri„i;ll v. Prr/: ,/ rd., l-i (). i;. 4!i-2. - I'loudt.. • I Sec .SV. Jolni V. /.'///■"•/, 10 S. C. K. -JTs. '. !4!t; driiddii if (d.y. Cunlmi 0. R.7;H.-Chy. 1). 'Where a mortgagee, who had sold under tli' power in the nuartgage, paiil over the surplus uii the f)rder of I. .l.. the a])])arcnt owner of tln^ ecjuity of redeni))tion :— Held, that even if the ' deeil undei- which I. .1. claimed was voidahlf. nevertheless the mortgagee was entitled to art ' on her order, especially as be had served a notii i of sale, on these who now impeached his c'li j duct, Mhile they bad done nothing to assert tlaii claim, until after the surj)lns was so paid ovi r. and as also a suit which had been thercto'niv commenced to set aside the deed from 1. J. ii- void had been abandoned. Ilarptr v. Ciilhi rt'' n/., ,■) (). K. 1,V2. — Ferguson. In IHofi H. mortgaged certain lands to .1. D.t '. to secure t'.")30, j)ayable on 1st .January, ISCm. In 1857 J. T). C. died, having appointed the ilf fendant and another his executors, who duly proved the will. In 1864, after the death oi defendant's co-executor, the mortgage was depe- rt fof puyiiiriir lis ;i iiuitti-T li' On aiipi'ul Ml.; riiliiinH, it was ; - (ii'i'iit Kast'ii. lat tlie inort.M Sinn jiaiil int.. il fiillowilii; >t. that (iiilit )i. iidt p.-iyalili-at'' i nmi wliicli til!,.. If. Mciional.; Ill ili.stiiii;iii>li. .; »!••_'. ■ I'lDiuh...: s. c. i;. 27.S, ,,, "/.. II (I. i: ///// <' III., .S II fL,'a.irr, thu m.iit ic jiovver of s.il.; [■lit and an ncti..!! in;,' till' ])l'(li;lr<. «n actiiins jiiiL- It' in(ift:,'.iiicir .ni.! ii\\(.-r (if sale ; tli.- I'tly in <'asli aii.i nvL'. 'riiis limit itii casli at a li'~- iii aililition solj. liargLMl. In an mrt^'agiir again^* 1 liad ciintiiiiii.! ill, ruvcrsiiiLr tli. .!; tilt.' (li-'fuiitiuiit- iiiit! for ])ayiiuiit without tlu' full at tlu^y must ac s cash at the tim.j I not cliargu tin I the moi'tgagf ni' 1 ; ami that tlity f L'osts ; thosf lit ht!in by tho jiuli;- tho.SO of L'Xt.'!vi>- L' statutory foi'iii tract, tlu'y lioiiiu ; ])i'ocee(ls of tlit •. U'( 'oiinor, .") U. (l sold uiidtn- till LT tllC .SUr])lus oil lit owner of tliu that even if tli.. il was voiilalilf. .s entitlctl to act ,d sui'veil a iiotiti peaeheil his 11. li- ng to assert tlieii as so paid over. been thereto'ini.' Jed from 1. J. a.- rper v. Vnlhi rt >' I lands to J. 1). ('. t .January, ISCiS. jpointed the di' itors, M'ho duly ter the death at rtgage was depn- 4.3; MORTGAGE. t.?8 .MCfd with H. as sectu-ity for an advaiipo of .'?401, as set out ill MelA'an i\ Hiine, '.'T ('. I', lil.'i, wiiireliy H. was deelared intitled to holtl the iiini'tgagc as collateral security for the said sum. la |S.')fi H. solil the ei|uity of redumption to '/,. in I.S77 II., liy re|)resentiiig that he controlleil the mortgage, jirocured the cxeciitors of Z., for iiiiiiiiiinal consideiation, to give a coiiveyani'eof tilt' eipiity of redemption to A. 1'.. H. "as bare trustee for him ; and in l.sT.S obt.iiufd convev- .iiiii's from other parties intcrestid therein, in IS71' II. sold the eipiity of redt'iii])tion to .M. for .<.').II0(I. Ill ISSO S. ■('., a beueliciary under ,1. I>. C.'s will, having mado a claim on defeii- ilaiit for hrrsliare of tho estate, a settlement was itlfcted by defi'iidant agreeing to jiay .'^•_'.().")0, mill assigning the mortgage to'her as collateral sfiurity. S. (', comiiit'iiccil foreclosure proceed- iiiL's thereon, F[. and M. being made |),irties, wlieli a settlement was etrected liy If. paying .S. I'. .•?.")()(), and jirocuring an assignmeut'of the mortgage to be made to plaintitras bare trustee for him. The plaintill' corinienced ])roceciliiigs iig.'.iust defeiulant claiming the .■'^'2, ((.")() secured liy the agreement niatle between S. ('. tuid de- ftiidaiitand in default of piiymeut foreclosure ;— Hild. reversing the jutlgment of Kerguson, J., that H. by representing himself to be mortgagee olitained the eonveyance of the etiuity of rci!eni|)- timi, and must therefore account ti) defendant for the amount realised on the sale thereof to M. The idaintilV's claim was therefore dismissed, and juilu'iiieiit entered fiu- tlefeiidant for the iliUcreiici' iiftween the .■?."), ()0(» with interest and the .'i<4(ll 'vith interest, together with the amonnt [layable to S. ('. under the agreement. U'i/kiiis v. Mr- Laii, 10 (). H. 58. -('. P. I). Reversed .V. C. i:? A. j;. 4()7. In an action by cestuis (]ui trustent against executors and trustees of a certain will, a decree liad been made for the general administration of the testator's estate real and personal, a portion of the real estate being at the time under mort- gage made by the executors. The coiuluct of the proceedings having been given to certain creditors, a receiver was, at their in.stance, ap- pointed to collect the itnits of the real estate. Aftei wards the mortgagees conniienceil an action upon their mortgage (see S (). R. o.S!)), making the executors ami trustees and the tiiiants of the mortgaged property defendants, asking payment, possession and foreclosure, when linding the re- ceiver in possession, they, after some delay, ap- plied for anil wbtainetl leave to proceed with their action, a defence, however, being made thereto, at the instance of the receiver, contest- ing the validity of the mortgage. The mortga- gees having succeeded in establishing their mort- gage and their right to possession, then applied to he added as parties to the reference in the ad- ministration proceedings, claiming to be entitled to all rents collected by the receiver between the commencement of the action on their mort- gage, and their obtaining possession from liini. They were accordingly addetl as parties in the master's office, who subseijuently made his re- port, finding them entitleil to the rents as claim- ed :— Held, on appeal, that the mortgagees were only entitled to tho rents from the date of the application for the order allowing them to pro- ceed with their action, notwithstanding the ap- pointment of the receiver. Wallace vt al. v. Wallace et al.,U O. li. 574.— Boyd. I .Sec Ifiimil/'iU Priiridi'ul mxl Looii Sorirtn v, i Campli'll, \-2 .\. 1;. •2r>0, )>. HIS. IV. Assii;\Mr.NT AND Tli.VNSIKI:. The plaintill', who w.is mortgagee of I'cit.iin lands, allt'gtd tli, it L., the present holder ot tlii' mortgage, purrhaseil it frum C with kiion ledgi.' of the fact that (' had purchased it from tlie original mortgagee as trustee for the iilaiiitiH. who was to bt! allowed to redeem on p.iyiug whatever ('. should pay for the mortgage, and ,1 certain additioii..il sum for I'.'s services; .iiul sought to redeem on p:iynient of what wa-^ ilue under the said agreement with ( '. : — Hrld, tiiat the above agi-ii'iiient fell \iitliintlie Statute ot Krautls, and should be evidencetl in writing : — Held, also, that even if this were not su. I,, rould not be allected by siu'h agreement, lia\ iui; |)iircliased without notice of it. Wri'/lif v. /.. //• ->/ III., S (). \\. .SS^Chy. I). '\'. being the owner of certain luiil, mortgaged it with otiier lands to the M. I". |{. Society by mortgage, ilateil .liily I'Jtli, IS7.'i, registered .Inly 14th, 187."!. Subseiineutly being desirous of sel- ling ])art and jiaying otl" thi; mortg,ii;e and get- ting a new loan, he by an agreement in writing, airaiiL'ed with the society to le.-ivt the mortg.ige standing, t.'ike a further loan of S7(l((, and have certain of the lands (of wliirh the lot in ipiestioii was part) released by the .Society. A second niiirtgagi' for the .S70() advance \\as jirepared ;'iid executed dated I'ebrii.ary 1st, 187.'>, registi red l''ebrnarv lltli, 187">, uhich by mistaki^ aswa^ alleged, iucludeil all the lauds in the lirst iimrt- gage: and a release dated l'"ebruary Ittli, I87.'>. was iluly executed by the .Society releasing tlii- lot in (|ilestion from the operation of the mort- gage of .Inly iL'tli. 187'{, and was afterw.irds registered .March "JOth. lS7(i. B., the plaintill', being aware of the agreement, but un;iw;ire that the second mortgage included the lot in (|iiestioii which should have been omitted, loaned ^'. lei- tain moneys, and took a mortgagedated .May "iNt, 1877, registered June (Itli. 1877, to secure the payment thereof. The Society assigned the .sec- ond niortg.ige ami all moneys secnretl thereby to tlefeiidants liy assignment dateil March ist. 1880, registered .biniiary 17th, 1881, and bydeeii dated March 1st, 188'2, registered .luiie "Jiid, bSS.'i, V. conveyed his ei|uity of redemption to B. In an action by B. to coirect the mistake by com])elling the defendants to convey the lot in (luestion to B. ; it was -Held, atlirming the judgment of Ferguson, .1., that the combined operation of B. S. O. c. Ill, .s. 81, and R. S. O. c. 9.5, s. 8, formed a coin])lete defence, anil for that the defendants as assignees of the mortgage fin- value, having the legal estate, might defend as a jmrchaser for value without notice, ami claim also the ))rotection of the Registry .-\ct. as against the plaintitf a subsetpient j)urchaser or mortgagee from the original mortgagor : — Seniblc that even as against the mortgagor the defend- ants would also be entitled to prevail, /ir'nli/i'-i V. Tin: lii'al Exioti' Lmni ami Di ln-nture Compnin/, 8 O. K. 49,3.— Chy. D. V. .S.\LE rSDER PoW Eli Of S.\I.K. K. gave a mortg.age of leasehold premises to the Imperial Loan and Investment Co. , with a Ui) MORTGAGE. 4411 " '** » " '•- • •I '^S * ■* ft II KS !> I. a* » II ^ n r: - I ^" 1 J! :fj: » no covenant iiutliorizing the company to sell the jire- niise.s un ilefiiult, with or without notice to niort- t,'agL- . ; iuiiiig the IhihIi;, tenant, on li.li,i.: he jiurehaser, ai: - do, the idaiiit::' for redemjitii.ii, i- nnneneed, it niii-: lilaiiitiH'ahcaii, laintifl' is Ixiuml ; , tcrwardis )nii>^t l^ xy he said as a nil.; St from the nioit ho mortgage. /\ f A. W. C. Mh, ng therein for tl,.; brought an actimi ortgaged |iremistj gagee against tlic md's lifetime. A iteuient of cluiin, tr had no inteixs: lings altirr.ied that en foreelosed, w, s «/., G O. R. -iril, in iiroperty, moit- nder the power lif wlio attended tin eL. ,and inirchai-ni [)ropertyto(;.,aikl I. was not awiiie MeL. being await ■alid subsequently .'hasc of two otlier lat the deed sluinli )rtgaged proiierty, 1 in it, which (-lu McL. swore that get a elear ikf '; '.. swore that iioth- . Before the det 1 liat (i. was MeL. < ised to deliver i:. :lemption : — Uelu, 1 to redeem. iVr did know, as '. t of G. 's action i:. lid have diseldsei gilt to ae(juire tin- 111 V)y means nt ; us intent Mas only » ije barred : if lie tlie equity of it- inplation as a [no plaintifi'. ///'/(('» L'hy. D. 3Ugh it maybe tlia; iking, a trustee fir ;d to enforce hi: ) satisfy the moit ni MORTGAGE. 412 ;ij;e money, tiie right of the mortgagor to redeem liii very pronounced and dce'idi'il right, and one that he cannot l>e depi'ived of by any clcaling lii'tiveon him ami the mortg;igee that is not carriccl niit«iii a full spirit of fairness witiioiit umhie [iie-sMre, inllueni.'e, or loncealment of anytiiing , Jwliich he should be infornieil bv the mortgagee. >ee Pelerkin V. McFarbine, 1) A. U.4--'l), [i. 432. 2. Cn.*l.<. See Miti-thi V. .l/(7''.^ .-)(). \{. -KI4, p. 440. VII. T'^iIiKCI.oslllK. 1. Opiniii;/ FiirerlosKfi'. I'ldieedings were instituted, in IS7(i, against tH(i persons iiiteresteil in a mortgatie estate, one fwiioin was resident out of tiie jurisdietion, and ::ic Usual decree and account was made and taken. Till' ap))lication to make such decree absolute vas not made until M i\', IS.VJ, and in the early iirt of tlie month following a petition was jire- •■■iiteil praying that the defendants might be illdwed to redeem, alleging the ignorance of the lii-eiit defendant of the proceedings until his iiturn to the country, a few d.iys before signing the [)etition, and the ignorance of hotli defen- liints of any proceedings subseijuent to the tiling ■ : tlie bill ; and that the defendant uiion whom tiiL> hill was served was about ninety years ohl, aii.l 111 feclile intellect, unfitted to transact biisi- la-sj. It was shewn that in March, 1SS2, before tlif order making the decree alisolute, the plain- titi's had sold to one Grattan, who liought, rely- ing nil the plaintirt's' title umler the Hiial oi'der fif foreclosure, which, on its face, was expressed t'llie subject to the (General Orders of Chancery 114-.V(). Under the circumstances the Gourt iicversing the order of Uoyd, C., '2 U. R. .'348), maile an order to open the foreclosure on the Usual terms of paj'ing principal, interest, and costs of plaintiff's, and of the purchaser (not in- uilliig any costs of the apjieal, of which each I'arty should bear their own), together witii any oists incurred bj' the purchaser in connection with his purchase of the property-, and in default "f iwyinent on or before the day appointed for liivment the appeal to he dismissed, with costs. I'rimlii Co/leije v. 7/(7/, 10 A. R. 9!). | See Paisleij v. Broddn, 11 1>. R. 202, p. 378. VIII. RkoCKKDIXCS in MOKTt;.\(lK .Scits. 1. Takiiiij Accniint-i. riie T. cS: L. Co. being mortgagees of land in Ontario, held a collateral mortgage on lands in Kansas. Default occurring they sold the lauds ill Ontario, through one \V., a land agent, who ' 111 ai'ted also under a power of attorney for C. tlie mortgagor, who had agreed to a commission ii-ing allowed to him for selling. \V. did not, I'iWever, actually sell until after C."s death, ^^lnii the T. it L. Co. paid him his commission : — Hi'hl, on an action for an account linnight by an tveiMition creditor, who had olitained his execu- tinii after the power of attiirney had been given t'l \V., and after the said agreement as to com- iiiissiiiii, til It the commission was a projier item to allow the T. & L. Co. in their account. Wi'lh V. 77/1' Trii-t al., 12 G. R. 593— Chy. \). On a reference to take accounts in a mortgage case it is not open to the defendants to contend that the original loan was ultra vires ; nor can any defence he raised in the master's office wiiicli, if allowed, might result in determining that the court had made a nugatory order of reference. Wilei/ V Ledi/m-d, Id 1'. R. 182.— Hodgins, ^VaMrr ill Ordinary. Mortgagees after the exercise of the power of sale in their niorti'age claimed that •■^IS2. (il was still due to them, l)ut on an account being taken .S2().07 was found due to the mortgagor ; — Held, that laying aside the question of the wliole amount of the mortgage money (.Sli,7<>")) the amount involved was 8202.(iS, and tlierefore the ease was not within Rule 515 O. .1. Act (C. S. U. C. e. 15, s. 34, sub-s. 8), and the costs were properly taxed on the higher scale. The claim of a mortgagor against a mortgagee for an ac- count in such a case is not a legal one as for a money demand, but a projier subject for equit- able relief. Morfoii v. Ifuniiltnii I'mriih tit mid Loan SocieAji, 10 V. E. G3().— Proudfoot. 2. MnltipUcity 1 'i HK as Tl j; «■•■ !!S2 ft II au II "■•■ > II ;: !■» w ^^ » 1. ids; ! 52 1 .m •1 &£ !'» " '*IH 413 M(/nOX FOR JUIXJMENT. til si-t usidu thu service of the writ as iimtiiify to Srv \\'ill-i\,'riif Trtixt iiml l.unn ('ii.ui'(',i„,i,J.i tilt! ]iiiivisic)iiH(if tlu'<>iitiiiii> .MciilL:iiKi'.\i;t, i.S84, !M>. il. 170, p. 44"J ; Morlmi v. //iiniilfnii /•,•„' 47\'ii't.c. Hi. I Out. ): - liclil, tint tlii' iilijcct nf tiiu Ht:ttiitu is tit |ii(vc'iit mH ulliiT |iiMCL'iMliiii,'.-< \s liilu the notice of .sale is luuiiiiij,', ami it is not mces- Silly iiniler the statute, to liillil tiie Vfiy wonls ol it, that one oi the iH'ls siioiihl lie prior to tile otiier. Seiviee of writ set iisiile with costs. J'j V. J'' III/, 10 I', i;. •-':.">. -l>.ilton, M(is/,r. ■iih III mill l.iiiiii SiirUlji, 10 I'. 1{. r.;{i), 4t'.'. 111 all action for an account liv a niort^'agor, ag.iiii.st tile executoi'.s of u mortgagee who liiul solil the mortgaged jireinises under tlie power of sale in tiu' nioitg.igi,', ami wiio had also taiieii jiroeeediiigs at law, a small lialaiiee of .'rilO was foiiml ill liis favour. I'lainlilV liaviir; made eliarges wiiieli he faijc.l to :iilpstantiate, and not liaviiig |iroved tiiat an aeuoiint was demanded and witliiield from him. and certain special m.ittcr ))leaded liy the dcfciidaiils liein„' found ii.'ainst tliciii ; — Held, neither pirty entitled to co.sts. liiiiitii V. I I't'nnii'ir, ,"> (). ii. 747. — Jioyd. In a foreclosure suit a decree was made in Noveinlier, 1S77, and a final order of foreclosure olitaiued in dune, 1S7S. In Octolier, I.SfS'J, a iM tition u .IS presented hy tlu' ilefeiidaiits to ojieii th • foreclosure, which was dismissed: 'JO. It. :!4S. The Court of Ap|ie d rt'versed this decision, maivili',' an order to open the t ceelosure on tlie usual terms of paying inineiiial, interest and eost.s, including tlie jilaiiitill's' eipsts of op](osiiig tlie petition : 10 A. it. !l!) : -llel 1, atlirining the decision of the Master in Ordinary, tliat tlie plaintill's were entitleil to interest on the whole amount of jirineip il, interest, and costs as found liy the decree of Novemlier, 1.S77 ; — Held, also, reversing the decision of the M ister in ( Irdiii iry, that the phiintitl's w<'re not entitled to interest on the taxed costs of opiio.sing the petition to o[ieii the foreclosure, for tlu^se costs were not recoverable 1>y force of the order made on the jietition, which was reversed, hut .simply owing to the direction of the ^.'ourt of Appeal : — Held, also, reversing the decision of the Master in Ordinary, that the plaintitJ's were not entitled to the costs of a writ of execution issued by them to recover their costs taxed under the order dis- missing the petition, for the vacating of that onlei- levelled the writ of execution, wliich was not part of the taxed costs of the petition but iucurreil subsequently. Trinity CuUeije v. Hill el at., 8 0. n. 28G.— Boyd. The practice of bringing an action for an amount due on a mortgage within the proper competence of the Division Court in the High Court by making a claim for possession of the land, is one that must be carefully guarded ; and, except in cases clearly indicating the necessity for proceeding in the High Court, no costs will lie given to the plaintiff. V andewaters v. Jlurton, J> a 11. 548.— liose. In this case where the amount claimed under a iiiortgage was within the proper competence of the Division Court, but the suit was Ijrought in the High CVjurt, and there were no circumstances shewing the necessity for bringing it therein, no costs were allowed the plaintilf. Ih. I.\. Misi i.i.i,\m;ois Cask.s. l''oi I'citiiii' of extuidcd terms of p.iyineiit. - Itclief a>.Miiist forfeiture. See (irnliniii v. /,'■..., (i (;. i!. I,". I. p. l.'iS. Scnililc, that if a morti,'ag(^ ii|ion lands lie i,'iv(ii to a b.iiiU as security for future advances in cu. traventiou of the iJanking Acts, and after tlir delit has been coutracteil or advances made, .inotlicr mortgage be executed upon the saun' |)iopcity as additional security for the debt >ii contr.ieteil or advances made, the second inoit- gai.'c will be valid. Uniiil it iil. v. Iai Uiiinjih Xiit; ,i„il,, !) (>. It. 411, — Ferguson. l'iiii iif tlw Villaqe of Jiriisticls v. Itoiialt. 11 A. R. ()().■). Rights of parties, when mortgage paid by moneys fraudulently obtained. See Jack v. J ad, 12 A. 11. 476. Specific bequest of mortgage indebtedness. See /lrt7t(';-v. Scrcrii, 12 O. Ii. 615. Liability of universal legatee for liypothec on immovables bequeathed to a particular legat'' • See Ilarriiiijloii v. Corse, 9 S. C. It. 411 See Wilkins v. McLean, 1,S A See also Core v. 7'Ac' Ontario Co. etai, 9 0. K. 236. p. 1.^7; Uebi-ntiity MORT]MAIN. See Will. MOTION FOR JUDGMENT. ^'ee JUDUMENT. •til Kill ( 'l).lif('lilltlil,l, V. Illlllllllllll /',(,. It. n:ti;, 44 J. Casks. IS (tf iKiyiiieiit.-- (irahiiiii V. Ji'uxt, |Miii liiiids 1)t.' 1,'ivcii I' iidvaiicL'.s ill (.Mil. ;t.s, anil after tli,. ■ lldVilllfL'.S lllil'll', 1 iiimii tlui siiiiie y lor tile ilclit Ml the .SL'CDllll lllnlt- "/. V. La JJiiiujii' lISOll, ijitioii olit.'iiiiccl liy rtgii^di, tile iiKirt- r :i (k'L'il iilisdliiti ur's otiicc with liis hy the iii(irti,'a.'iii', liarties iiaiiieil in isliaiuls after |i,iy. ^'ee dill not acceiit real estate leiU'i.T, : HeM (I), Tliiit iiii to he alliiwed lis inortgai,':'. not ; nor emild he iio ling the lands in iiders, (21 'I'hit lo ehai'ges or lii.i|.. the lands, jirior tu le |ilaiiitiHs' li. In. i-s should he niadi; , and ])rove tlioir '(iiuutiitii liiiiil; (if t. 442. -Hodgiiis, ;iou to take nioit iring perforinaiice IV as granted. See irii-siii'ls V. UoiKild. iiortgage paid l)y Seet/«c/; V. Jack, indebtedness. See ). e for hypothec on aarticular leir'i*" C. 11.411 A p. l')7; . Debr.niiirn \\r> M 5IUNICIPAL COKPOKATfONS. no n.rii'LK irv of i'kockkdi.xcs. Sci' Co^T.s — MuuTii M.i:. II ill. 1\'. \I1 Ml GMENT. IX X MUNICII'AL (•t»l:iMi;.\TlOXS, Si:i'\i; vrioN or Mrsnii'Ai.iTlKs. 1. l) l-;r.i;(iioNs, 417. AcrioN I'dii I'l.N \i,iii:s AiiAiNsr ('i.i:uii AM) DKl'irV-ltKTCKMM; < »KI 1(|;K L'n- HKi; 4i; Vii'T. c. lS>i. 1(17, 447. ISv-Laws. 1. (I'lii'i-alfi/, 447. 2. Aj>/>n!ii/,iirii/ i,J otju'i i\-i, 44!). ;{. I'l'd/iiiil'ialidii, 4."U. 4. Jiii/is/rafiii/i, 4.")!. ">. (^hia.sliliiii, 4.">l. (i. t'l/iirif/i'iii.-i CiKbr — ,S'rc \)l'sTlri;s iil' IlIK I'kack. See aUo next Siihdiead. (;i:NI'.KAI. I'oWKllS AM) DlTIKS. 1. Eiii'uiiiil DiitiHiiii, 4.")2. 2. //o,v/-(7(//.v, 4.')2. ,'i. h'ri r/ioii Iff Bii'ililiiiii<, 4.V2. 4. /'^rniiKKjc 'If' J^iniil-1. (a) I'Oilhiii, 4.")3. ())) A'fai-xHiiif'iit, 453. (e) Oflur Cayi's, 4rA. ,"). S'lrers, 45;"). t). Jiuiiits til Maiiiifutior'iex, 453. 7. E.vi'iii/'/iou iif Maniifactorh s from Tax- at inn, 45V). 8. Alil lo l'ai/iriti/-^—Si<' Uailwavh and RaIL\VA\ C'DMrANIES. !), I/airkiTu, I'lltij Chapmen, and Tradcr'x Aijc'iifH, 458. 10. ^fa^•krU, 459. ] 1. Animalu Uiinnimj at Lanje, 4G2. 12. ^^'oitpji, 4()3. 13. Cah .V/((/)(/.s 463. 14. Liri'i-j/ Stalilis. 4(i3. 1.5. />ity«„f,s'— ■S'ce iNToxiCATiNti Liquors. H). Hoads—See Way. Con I'K ACTS Bv and With, 463. Actions and PnocKEDiNiis Against. 1. Ui'in'rallij, 465. 2. yeijliijtnce. (a) For /iijiirif-i on Roads — Sec Way. (1)) for fiijiirU's 1)1/ Drains — See Watek M) WaTKK CotlSSES. 3. Lijitiii-tious — Si'i' Injunctions. 4. Mandamus — .SVc M.^ndamus. Taxation — Sre Assessment and Taxes. Matters Ueeerreu to Arbitration, 405. I. Sl.I'VK \ IloN 111 MrsHll'AI.I IIES. 1. /hhl.* and l.ial.iliHis hmi- A/<hip of i;,, the present pliiintills, in 1873. passed it liy-jaw for issuing delieiittircs to raise .-^li.OOl), for the purposes of a eeitaiii >rhool seetioii, ill jiart ioiiipri!^eil in it, and in part in the township of C., and providing forpiyiiieiit of interest, and ereatimi of a >iiiking fund, .md levying of the nere>s,iry s|ieei.d riite on the pro- perty of tile selioiil section. Ill I S74 tlie viiiage of I', was ineorpcirated out of a portion of the tow nsliip of IC. lieiiig a iiortion of the said srliool aeetion, and during tiie eiirreiiey of tlie lieheii- tllles the eorpor itioii of I', eolli'eted tlieir sliaru of tile moneys, on till' !Vi|Misitionof tlie secretary- treasurer of tlie sclidoi i)oarii, and jiaid over tlie same to tliat ollieial, inste.id of to llu" treasurer of tlie towiishii) of H,, wliicii towiisliip never made any rcipiisition mi tlie village of I*, toeol- leet tlu' inniieys, and itsi If p.iid over tiie moneys collected hy it to tlie seeretarytreasurer of the .sehool lioaid. In l.*S83 the said seeietary-treasu- rer ilied, and it was found he hail eoiiverteil the sinliing fund money to his own use, and had h'ft no assets wiierefroiii it might in,' made good. In tiie same year the delieiitures fell due, and the townsiiip of K. paid them and now sued the \iilagc of I', for its pKi rata share thereof: —Held, that having regard to 'M\ \'iet. e. 4S, s. .5(1, ((Int.) (II. S. (). e. 174. s. 55), the |ilaintitl's wcic en- titled to judgmelit. ext'cpt as tosunis levied ,iiid received hy tlie defeiidanis more' tiiaii six y./ara liefore action hroULtnt, for tlie ilefendants siioiild h.ive p lid tile nioiuys oviu' to the treasurer of the plaintiU's' corporation ; and even if there had heeii a ))ositivc agreeiiu'iit l)y and witii tiie town- sliiii of K. tiiat ti;e money siiouicl lie jiiid to tile seeretary-ti'cHsurer of tiie seiiool hoard, this wonld have made no differenee ; for .such an agreement wouliihave been nltra vires the town- ship of K., ,ind Void as contrary to the statute law, while the sections of 3(1 Vict. e. 48, rel.iting to arbitrations in case.s of separations of incorpor- ated villages from townslii[)s, did not aiiply in this ease, so as to prevent tlie action lying. Meld, also, that even if it was impossible to make the judgment jirodnetive on tlie groniiil that the defendants could not now levy and collect the money, this was no reason why the iiiaintitl's slionid not obtain judgment. The Cor[)or.itioii of the C/ouiity of Krontenae r. Tlic' ('orporatioa of the (Jity of Kingston, .30 Q. B. ,584, distin- guished. Til) ('orjioralion if Ihf Toirnshl/i nf J'J/dtrslie v. J'hr Corjiora/ion of th'- VilUnjf of Poislei/, 8 O. K. 270. — Ferguson. si 2. (.thj- nl.F,-lil:\. //mrhnn/, 111'. Ii. •2()4. - 1 )alton, Mii.-. In Oetoher, |8S'2, I)., who was then, and had liei n for tile tliic!' previous years, a memlnr of the township countil, petitioned the council to pass ft hy-law clciing up this portion of tiie road, and l»rociired K. an. agreeing to expcnil tlOd on the siile line, and on wiiich i' was voted to have the hulk of the statute lahuui |ierforined hut on their discovering that it w;i> against the juilili'' iiiterest, tliey askecl I). \,, release them f.-.im tlici:- pledge, which he refiiseil to do. He, however, jiivtended that he was ii..t anxious for the pa.ssage of the hydaw. and piti tioiieil the ''ouncil representing that his land might he iiijui ioiisly atl'ected therehy, ami askcl to lie heard liy counsel ; hut as he wished, ,is )i. saiil, " to he let down easy." he arranged th^it !•;. should su])|)ort the hy-Iaw, whic'li I), said would lie defeated. K. accordingly votecl fur it. as also did M., and another councillor, 1 ». Ihmh:; ' ahseiit, and th-., reeve v.i voti;ig, and ii: coiim ipience the hy-hiw was carried. I»."s couiisil. who was also counsel fur the lownsliiu, attendii the council niei'ting and s]ioke in favour of tli.- hy-Iaw. It apjieared that 1). had uiiaiantecd the eoiineil against all exjieiise in the matui. It also appeared that the a]iplicaiit hail soiur liuilclings on his lot adjoining the road, whirli Wen: usid hy farmers and others, the approach to whi(.ii would he cut oil' hy the closing of tlif road :- Held, under the cirenmstances. the hy- law iniist lie (plashed, \\ itli costs. I/i irixaii v. '/'Ill ('i)r/i(ira>ioii of tin '/'uirnship of Piiii'iriJ,-i , il O. H. 170. (^•u.ere, whether several matters, each of whi'i, rei|uire tiie assent of the electors, can he eiiactr i in one liy-law. or whether there must he sepai ate iiy laws se|iarately sulimitte not sealed or signed, for purchasing a road, wliirh they dealt with as their own property, and siih sei|iiently passeil a hy-law divesting themselve- of the road. See Ueii'iiiti v. Thi' C'vr/ior'i'ioii of Peiiii, ♦) O. It. UK"). That il hy-law purports to he for loc.i '. .m])ri not ihipsed fi'om its tirst publication, the noti' > recpiiied by .'tO N'ict. c. 48, s. '2'M, subs. '■'- 4-1 >S 449 MUNICIPAL CORPORATIONS. 450 lOUIK'il, to Ji1lm1;;i- i\v, in till! l)Lli f etit — 1>. agiffiii:; ;ili(l fill which i' lit; .statute hiliiiui uriiij: tli:it it wm- u'V iiskcil D. tu which lie lufustil 1 that lie was ina )y-law. iiiid |icti I,' that his laii.l crchy, and askc.l hi; wished, as lir le arranireil tliiit , which' I). s:ii.l ngly voted fur it. ncillor, I >. lieiii^ I',', ami ii; cohm il. I)."s counsel, rtushio. attende i in favour of tlii- had liuai'anti i-.i ; in the inatu r. )lieant had sonii' the road, which Ts, the a|iiiroar|[ lie closing of til.' iistanees, the 1>\ • ists. //' insdii V. ^1 ()/ I'llllhrnki , li M'.s, uaeli of wliicii s, can l)e ena ingaroad, which ojiet ty, and siili sting theiiisolvcs 'if Cur/iorntioii "J "or loc;;'. .niproxe- enetit of the mil prinoiple wjiicli being exercised al at the cost of ., St). U. GSO.- ideliceinthise.i^i' liydaw to remedy that ground the 7 iif till' Tuiril.-'liij' till' 'riiinitiiij' I'l ■or|ioratioii, iH' ;\ires to ;i railw.iv a lionus to ai'l vay, having l»ii .'lyers on < )ctoliir third time an i ler '-'nth, Iriit « I- iise a month li:i'l atioii. the iioti' 1 . -JUl, 8uh s. ;i. to he appeniled to the eojiy of tlie hy-Iaw as |iiililislied, having stated that the liydaw would lie taken into consideration after a month. On N'ovemlier .■■)th, iJST.'i, a motion made in theeouu- oil to read the hydaw a second anil third time and jiass it, was lost. On .Aiiril Ttli, Ks74, alter tile election of a, new coune'l, it was finally iwissed, signed, and sealed. The by law voted III iiy the council was to take effect and come iiitoojieratioii on theSDth December, \S~',i, while tiie copy published st.ited the l.'itli December, |s7.S, to be the day. The railway company were hound by their original charter to coiiimeiice within three years, and to tinish the road within liL'lit years, which they failed to do within the ^pccitied time : — Held, atlirniing the clecision of thi- t'haiicery Divisional Comt, t> O. I!. "JOl, and if I'roudfoot, .)., //-. ls:{, that the plaintill's were net in a ]iosition to enforce the deliver ■ of the ikiientiires ,'iter the lapse of nine years from the pissing (n the by law, when a total change of Liicunistances had taken ]dace, and when the jii riod li.xed by the jilaintili's' ihartir for the eoii>. jilction of the railw.iy had expired. 'J'lu' ('anailn. All'liilir h'liihnii/ Cd. v. '/'/('• ('ur/iniiilinn of the I "ill/ of Ottaira et ill., 12 A. H. '2:ii. I'er Hagarty, C. .J. O., and Patterson, .T. A.— Tlie by daw was not legally iia.',seil, and did hot ,U'4uire a legal existence until Ajiril Ttli, 1S74. It wa.s subject to the |irovisions of ,'itj ^■ict. c. 4S, i-. -48(Ont. ), and was invalid under that section, liicause it did not name a day in the liuancial year in which it was passed on x\ liich it was to take etl'ect. Il>. !'cr Hagarty, (.'. .1. O. — .V variance between the pro))osed by daw .'ind the copy submitted to the ratepayers to vote upon, as to the day ujjon wliich it was to take ellect, was also fatal to the hy-law. /I.. Per Patter.son, .1. A. -The act.s of signing and Sliding a by daw are formalities which sec. 24S makes essential to a bydaw for contracting a ilibt, ami those acts should be done at the niect- iiic at w liich the bydaw lia.s been jiassed, or at all events during the tenure of olliee of the nieni- iior (if the council who presides. {'he direction 111 sec. '2'M, that a by law carried by a majority "f voter-s shall, within six weeks thereafter, be passed by the council which siiliniitted the same, refers to the council of the year in which the by- l.iw was submitted, and not merely to the coun- I'il of the same municipality : it is nrjt inten' as «■« •HI m <* 11 ••• "* "■If jf Sic «i till (I a: TAe Caniiilo, Atuinth- li. IT. ^'o. v. Tin' Corjiorn- 1 t'.on iif lh> Totriishiii iif ('(unlind(n\ II (). K. .S9'2. j ('. I'." D. I'iuveised by (A of A.,''J3 C. L. J. 'I'M 4. Jt\iji^lriil!(iu. See Bkhford v. Chiif/iiun, 14 A. K. 32. 5. Quanhinij. An iipplic.itioii to (jUii.sii a iimiiicipal by-law must Ijo by nilu nisi, and not by nolicu of motion : — tieu'ixfn V. rill' (.'iirpiiriUiuii (if the Toicntthii' (if Pcmbroh:, {>{). K. ITO.—Uosf. Riifnsal to (jiiasli by-law where inoouvenieiico. was likely to ensue. See />'';/;/ v. 77/r ('urjiora- tiou of tlm 'J'uini.sliip (f Suiitkinjhf, (J l). U. 184. The case.s in wliieli an amending by-law niaj' lie moved against after the expiry of a year from | the passing of the original l)y-law considei'ed. ; Ite. MiUoi/ (iii(/ J hi' Muuictiial ('miiirU iflhi' Toini- \ ship of Onoiiikuja, GO. U. 573. — Rose. On an ap))lication to ([uash a by law ineorpo- rating a jiortion of township territory as a vil- ' lage : —Held, that the power of the Court to | quash an illegal by law is not limited to cases | where illegality api)ears upon the face of tlie ] by-law, but extends to cases where the illegality ; ahewn is entirely e.\traneous. lie Fi nlon el iil. , V. The Cor/toration of the fount y of tiiincoe, 10 O. ' 1{. 27.— Wilson. Kmiuiry may in every case be had upon atli- pli('atiiin . nhoidd have been to tlic ])i\isiiind Court was not ( iiti itaiiiid ; but sue li an a|ii>ln ati(.?i. if re- ' Uniic.l 111 lie made to tin' I 'i vi loiKil ('(lurl, must be tu the Couiiuuu Law Divisional Courts, and | not to the Chancery Divisional Court. //(. re Finintiiii (Hid 'The Cor/joratioii of the Toivnuhip of Til/jiu-y L\t.-erself married again, and therefore had not tiie al)Solute estate ; and also that one M. had a rent- charge or annuity charged fiu the land for h' r life ; i)ayable to one S. : — Held, that the Act doi ^ not exjiressly authorize the payment into Coint of the amount aw.irded : that the section in (jues- tion is imperative, and mak'is it obligatory uii the corporation to ascertain whether the persdii in (juestion was absolute owner or not, and if nut that the corporation was a statutory trustee ot the money, and liable to paj' six per cent. intere), B. 12 (Out), the y cannot erect iir wi*^hin the limits ry or a permanent n of tlie cor[)(prii- jtiou was granted oijioratuin of th V. The Corjiora- «/., 10 O. R. 372. he erection of a I tiie city of St. 1 chuiiilM;^ to ll.tve from carr^ in^' out iht'ir contract. The declaration also contained the common counts, part of the work having been perloiined. By the terms of the contract the iiinlding, when erecteil, would not have con- Iniuieil to the provisions of a by-law of the citj^ jiussed (under authoi'ity of an Act of the < ieucr.il .Assembly of New Mrunswick, 41 Vict. c. 7) two ■l.iys after the contract was signed. On the trial il the action the ])laintitl's were nonsuited, anil ;iii api)licati(in to the Supreme Court of New Brunswick to set such non-suit aside was refused ; — Held, Henry, J., dissenting, that the bydaw was liftecu yiars :- Held, tiiat the defect was fatal to the l)y-law. Tiie locus stilidi ot the applicant herein was oi)jccted to, Imt on the evidLiice, the objection was overruled. In ri' Fiiiiiiltin mill '/'hi t'urjiii. •Jiun a/ Ihi 'riiirn.7t), Ultra : Cur- juiralhin <;/ Duvir v. Cor/ioration of ( 'lialhaiii, 11 A. R. 24s, p. 4(JS. 4. Draii. ji- j/' Laiid/<. (a) r, ion. A by-law was paaseci l)y the township of Mer- sea, providing for the drainage of lauds in Mersea ami Koinney, and assessing property owners in hotli townships: — Held, that the "by-law was invalid because the petition therefor did not de- seribe the pro])erty to lie benelited, ami the hy-law itself, which did shew the property to lie heiietitetl, disclosed that the j)ytitioner.s were not the nii'jority of the owners of such property. la Vorparatiun of the. Tuirn.ihijt of h'oiiniei/ aial I'liriioiatioii of the 'J'oicn.ihip o/Merseu, 11 A. R. 712. (b) Assis.sineiif. A by-law passed for raising the unpaid portion of the expense of cleaning out and repairing a (liain, otherwise good on its face, was olijected to 0.1 the ground that while the resolution ami hy-law authorizing the work to lie done were f(U- such cleaning and rejiairing only, the work ac- tually done included deepening, which it was contended could only lie done by petition there- for under sec. .'>70 of the .Municipal Act. It ap- peared that the drain, if deepeneil, which was not free from doubt, was done accidentally, and '"it by design. Under these circumstances, the olijection being witlnait merits and as much ineoiivenience would ensue if the bylaw > .s tiuashed, an application therefor was refuse i , hut apart from this :— t^uiure, whether under sees. 570, r)89, of the Municipal Act, 1883, luid 4o Vict. c. 2t), 8. 17 (Out), the municipality had not ]iower without petition to 2,000, I which, in comjiliance witli a ]ietition ])rescnted by tlie [ilaintitr aTid otiier coiitriluitorics to the fund, was refunded ratably to them. The plain- till' had himsidf been allotted a section of tlie work for constructi(Ui, and had been paid there- for, altlioiigh he h{id not fully carried out his , contract. SubseipU'iitly . and after the del'end- ants hid so disbursed tlie full amount ot such assessment, the plaintitl claimed to liave discov- ered that the ilrain had not been |)ropcily (.'on- structed according tir the plans, s|ieiiliiations, and protiles of the engineer employed to l.iy out the same, .'iiid sought mi Ixdialf of liiiii-'clf and other r.itejiayers to compel the muiiiii|) iliry to ci)iii|ilcte tlie drain according; to such |'liui-, Hn'. : Held. rcVi-rsill;; llic pid^liirnt ol f'liiju-'oii, .1., that llic plainlUl lieing luiuself a detaultei- in tliu 455 MUNICIPAL COEPORATIONS. 456 157 it tK ills It •■> i «■• v perfoiniancc nf his contract and having been a i 810,000, to be conditioned: (1) for the carrying l)artj' to ])iiieen I duiing tiiat period to keep .S.'iO.OOO invested in devoted to attaining the olijcct sought liy liini. | tliu factory ; and (3) to insure the huihling au.l couM not ie(|iiire the council to execute w f ti ! vested the 8;{0,000 as stipulated for. He al.-n Sections ;-.0, ..,4. ;.S4. o8., J^Mt ..!C2 of the ; ,,,^^,,^, ,^ ,.,„.j,,^.,. j,,,„.^ on the premises to th, MuniciiMl A,t 4(, \ ic. ch. IS (Out.), relating to j,i.^i„ti|is f,„. ,S-i,000 not mentioned in the 1 the ]io\cirs of umuici|)al councils as to draiiuige, itc, considered and ex])laincd. ///. Ileference to arhitiation. See .Suh head X., 1' 4(ir). .'). .SV/ua'ri\ whether after the fornuvtion of proposed to erect thereon a mill and other liuild ings for the purpose of carrying on the business of a fidur and grist mill, and a general grain busi ness ; they petitioned also for exemption from taxation upon the mill for ten ye.-us. Under a l)ydaw piissed the 4th of Marcli, ISS.'i, a lease to the applicMits was executed by the coriioratici. of the lot in question for twenty-one years, rc- the local board of health the by daws provided [ serving a nominal rent, and conta"iniug covenants for by 47 Vict. c. ;V2, .s. 13, should be jjassed ; „n the part of the lessees in refircnce to the by the corporation or by the board of health nature of the buildings to be erected, to p.iv under c. .S8, s. 12. The motion to (piash the ' taxes and other provisions. Another by-law was by-law was therefore refu.sed, but without costs, Lsnbse(|uently passed exemiitingthe "manuf.ictur as the applicant had been led into his position by \ ii,g establishment of ('. and others (naming them) indiscretion of certain members of the cor- established for the purpo.se of carrying on tin- ation. In n Wi,rh)iiiiii nwl Tin ('orpundion uiilling and grain merchant business, inclndiin,' o/l/i' Town of Liudsoji, 7 (). K. 425.— Rose. ! the lands leased, &c.,and the mill and all builil- , , 1 , ,1 , 1 ,,.., , ings and proijcrty to be erected and iilaced upon Sewer ra es chargeil under the by-law 4(kS of ^,,^, ^^^j^j ,^^,,,^ ^J ^,,^ ^^^ ,,j ^,;^ ^^^j^j ,,;,^i. the city of I oroiito i.rior o the coming u.d force „^.^^ ,, g„,,j^.^.^ ^^ ^j,^. j,^.,.f,„'.n,,i„ce by the lessees ?^ *■ '■■ • Ti «)"t.). Ma-vhllth, ,.f the stipulations in the lease as to maintaiuinu 1,S,<>, torni a personal charge only the .said ...lact- ,^,„, „..,,i,i ^1,^ ...m, y t,,^ f.^jt,, „f t,,i, m.iitnoMieingrc ni.Hpective. h,- Annslyowj, VI l,v.law andlease. C. and others, the lessees, pur- "■ '^' ^•"•--l"'.^''- ciia,sed a large amnuilt of material, and entcie.l I into liuilding contracts for the purpose of erect iug the pid]iosed mill, and [iroccedcd toenctthe same, and further contracted for the purchase of maciiiiiery, the whole involving an outlay, as w.is allege 1," of some 817,000 Ulioll the20tli(if • liily fnlldwiiig the council by by-law repealcil the bvlii"' exempting from taxation. Upon an application by ('. and others, toipiash the repe;il (5. Jioiiiis to Mniiii/'iir/orii <. The |)l;iiiitiirs under a by-law granted the de- fendant a lioniis of 8-0.0(10 to aid him in the 111 mufacture of steam tire engines .iiid agricul- tuial implements, subject to a condition in tiie by-law that he shmiid give ,h mortgage on the factory piemises for 810,000, anil u bond for ing by-law, niioii the ground that the same was 456 for tlie carrying A'eiity years ; r2\ ,()()0 invested in ;lie I)uil(liiig ai[il 10,000. The lUv ■tgage, tiie lattoi jiiR-e, and he in ;(1 f(ir. He al;-.. J premises to tlie ed ill the liy-law. ;hteeii to tweiity- oyed, and whirl; lied mowers in i •iirs only twenty the niimln'i' ui I'll from eighteen )]f\, attinniiig tiic {. 1, that tiie per irties, of tlie con- was one reasDii- ])aliilities of thi' Unlet', tlie defeii lee : — Held, al>u. ^iveii as a seen tJ's miglit .-•istaii: ) an 'Xtent im' as a eiiarge for so, tliat as thi' rized liy tlie hy e not entitled tn lellts to he con e.ssing ]ilaintitfs iUiiijc (If' linissf!^ froni Titxdtiim. of the town of it of land owiifil \t he and others anil other liuilil- on the business neral grain husi exeiinition from years. Under a , 1S8."), a lease tn the corporati(ii. ty-oiie years, re- aiiiing covenants refirciioe to tlu' erected, to jiay itLer by-law was lie "inannfactiir 8 (naming them), carrying on the siness, inclndiiiL' ill and all bnild and jilaeed iiiinii if the .-iaiil bu.si- :o by the lessees s to in,iiiit,iiniii'4 ;he faitli of tliis the lessees, jnii ial, and entcicl nrjinse uf erect edeil to erect thu or tlie pnrch.ise ng an oiitlav. as J\»n\ tlle'JO'tlKif by-law repealeil ition. U|)oii an [Uaali the re|icai at the same was 457 MUNICIPAL CORPORATIONS. 4jS a fraud upon the applicants and a breach of con- tract, it appeared that there were other tax payers of the same town engaged in the same business, and having large anionnts of capital invested therein, wliose interests were injuriously att'ected by the repealed by-law: — Held (!) that inasiuuch as the apidieaiits were treated in the lease and by-law as carrying on t«o distinct kinds of business, viz. : the iiianufacturiiig or milling Ijusiness, and the general grain meicliant iuisiness, the Hrst only of whicli tiie conn Mil had [Hiwer to exempt from taxation, the li^'-law ex- empting from taxation was bad (2) that the by- law was also bad in exempting all the land leased, and not the mill onlj', from ta. itioii, as other buildings, suitable alone f( the grain Ijusiness, might be erected thereon (3) the fact that other large milling establishinent.s within the same municipality were discriminated against also made the Ijylaw illegal and Itad (4) the rc^iealed by-law being thei-efore illegal, the council had a light to repeal, or to go throngli tlie form '(,'onnor. The Municipal Act of 1883, s. 3(18, a.s amend- ed by 47 Vict. c. 3'2, s. 8 (Ont. ), autiiorizes a municipal council to exempt "any iiianufactur- iiig establishment, in whole or in part, from taxation for any period not longer than ten years." A by-law of the town of I', recited that a company had acquired several water privileges (in the river U. , an. R. 644, — I{ose, Held, also, that a municipality cannot pass a by-law prohibiting unlicensed traders from senil- ing out agents to take orders from private per- sons for goods, and subsetjiiently delivering the goods. //). " The Consolidated Municipal Act, 1883," (46 V^ict. c. 18), 8. 49.'), subs, 3, empowered the council of aiiy|county tf) pass by-laws for licensing, &c. , hawkers, i\:c.. going from place to jilace, &c, , with any goods, wares, or nier. !■ indise for sale, and by 48 Vict, c, 40, s. 1 (( )nt, ), the word "haw- kers " shall include all persons who, being agents for non-residents of the county, sell or ofl'er for sale tea, dry goods, or jewelry, or carry and ex- pose samples of any such gooils to lie afterwards delivered, iS:c. : -Held, that electrotype ware was not jewelry witliin the above enactment, and a conviction for selling this without license was therefore bad, and in this case was quashed, though the tine imposed liad been paid ; — Held, 459 MUNICIPAL CORPORATIONS. Wf lit;/: not .ic: lie: % II ^^ I 22 41 Z^ II ?** II tSa »• i*^ fi ^M II «,« also, that tlie A\T>rils " (itlicr ^.'uixl.s, «iirc(<, ami lnf selling,' ami delivering teas as tliu agent of 1'. \\'., a non- resident of the ('(junty. ii! violation of a liy-law of the er)nnty of IJniee, the thiiil section of wliieii was a eopy of section 1 of -IS Viet. e. -lO (Ont. ) 'I'he (lefeniiant, against the jiiotest of iiis counsel, was ealle(l as a witness ;ui(l swore that he bought the tea in (|iiestio)i from one W. of the city of London, and tli:it he did not sell as the hitter's agent, lint on iii.s own aec'iiiiii v. Hussitt, \'?. (). K. ,"il.— (Jalt. llehl, that under 48 Vict. c. 40, s. I (Out.), amending suli-s. .'i of s, 4!)."), of the Consolidated Municipal Act, LSS.'i, a memher of a lirm carrying and exposing samiiles, or makingsales of te.-. kc, is not within the lestrietion preventing " agents for persons not resident within the county "' from 80 doing, and is not such an agent. J\'i i/ina v, Marghcill, 1-2 O. ll. j.").— (ialt. ' 10. Markcrt. A hy-law required "all hay, itc, s eX|illlsioii from the market. Section 1 of Alt L\. clccl.ired that no person should sell .my fii^i tish elsewhere than in such jilaccs as shoiiM li. allotted and desigriated by the standing c nii; niittec on markets, in any of the afores.iid in u kets. Section 1 of Art. X. declared tli.it tl,.. vendors fif any articles ii: respect of whicli .i market fee might, un''.ci tlic Muiiicipal Act, !»• imiKised, might lav, lully without I'aying niiiiktt fees, otl'er for s;de any such articles at any jlic. within the city excelling the market ]iiari> thereof. 'I'lie liy-law was a consolidation of pi.- viously existing by-laws passe enough to c00 was expressly limited to muincipalities wherein no market fees were im- posed or charged, whereas here a by-law was ir existence imposing such fees and cliarges ;— Held, also, that the by-law was not ultra, vires, express power being given by s. iiO'A to pas-; ;i by-law respecting the matters mentioned in suli- s. (i ; ami that as the reasonable or unre;i.sonahli' exercise of the power conld only be considered (111 a motion to (piasli the by-law, the objectinii was not open on this motion, which was t" (|uash the conviction. Rut, — Hehl, that the conviction was b.-id, because, while covering two several and distinct ott'ences unih'r the same liy law, it imposed only one penalty. Heghiii v O'niri'lle, 10 U. ll. 735. — O'Connor. Court, /t'li/'niii V awa set apiut i. r ix ill iiuiiilpir, „j Four of tlioM' -c, . iKH'. ami lisli iiiai^ tioll (if till' anirlfs :cts werr u.stalpli^l, •tidii .") (if Art. IV )vi>i(iii.'5, or artii !..< the meat, tisli. n,,; for sal(_'. .slioii!.| i,. in eart.s or miIh ; (■I'd ujiou sail! i.iii I' iiiarki't iii^|)( . I., I y tliert'W itii, m x,, L'S, or lioxes aftt-i I'c subject t(i tin- law, and lialilc to "^titioii I of Alt iioiiM sell any fn-si ilaees as slicuij.l Kr the standing; nin: the aforesaid in.ii' declai-ed that tl,.- fs|)ec't of wliieli ,i .Muiiiei))al Act, !..• out I'ayiiig iiiokit rticles at any |.lai;. he market jilacis insolidatioii of [nr ised from time tc ,• years a<,'0 eertaiii ; apart as fish mar i'as ever made tm tiler vehicles fruin vision iiiaile liy the ish to the market : IN'., though wiilo luld aiipi ar imt t^ lee to it ; and tlint 1 of Art. X., t(. ed liv eoiistuiiiiL' lish iliight he sol.l the markets, hii; triction should In- /• (iiif/ ihr Curi'iii'i (>. i;. ii4.-i;,,se. ])iir.suant to suli?. d Muiiici[ial Act. lid regulating tlu' eFs than hy the ietioii tliercuiiilcr, IV,- did not end, I Illy I'oviso as to tiiiH' )Un (lid not refc .■)();< ; and tlii' [pressly limited hi ket fees were iiii- e a liy-hnv was ir ; and charges :— IS not ultra vires, ) s. r)0.'{ to pas-; a mentioned in suli- leor unrea.sonalili' nly lie eoiisideieil aw, the ohjectiiiii n, which was to -Held, that the hilo covering two dcr the same hy- iialty. Jx'eyiiiif v. nor. 41II MUNICIPAL CORPORATIONS. [(',-2 >;ilh-s. 2lacc for the pur- pose of selling ;" ,nid that the convietioii was had on this ground also : Held. also, that the I'liiivictioii was 1)1(1, as ditlcriiig from liotli stat- ute and liy law, lieiiig for refusing to ](ay the fees nil eight i|iiarters of lieef •■ expose 1 for sale," whereas, the ]'M\\ section of the liylaw ap]ilicil oiilv to eases of liutcher's meat i'X)(o. K. iMi.— O'Connor. r.y .se.'. :,i):\ of the Municipal A-'t, iss:?. the council may. sulijcct to the rcstri'tions uid ex- ceptions contained ill the six next jircceiliii'^' sec- tions, jiass liy-laws as provided liy the following suh-secs. : "(I) I"or estalilishini.' marl;ets ; Ci) for regulating markets," ,te. ; "(.'!) for prevent- ing or regiil itiiig the sale liy ret lil on tlii- pulilic streets or vacant lots," &('., "of any nieit." il'c. ; (4i for iircveiitiiig or refill itiiiL.' the Imyiii!,' and s-l!ing of articles or animals exposed for sale or liniketed ; "(.")) for rcgiilatiiiLr the jilaoe and liiiiiner of selling and wcighiiiu' irraiii. meat * * aiiii .all other articles exposed for sale, and the fee-: to lie p.'iid therefor." fee: " lit) for (.'ranting aiiimally or ofteuer licenies for rlic sale of fresh liieit ill ipiantities los than liy the i|uarter car- ca>e. and for regulating such sale, iind fixing and regulating the ])laccs where such sale shall lie allowed, and for ini])osinu' a license fee * * .and for )irevcntiiiur the sale of fresh meat in ipiantities li ~s than liv the ipinrter carcase unless liy a per- .'-oii holdiii',' a valid license, and in a place autho- ri/ed liy the council," &c. The restriction.s and cxce)itions, so far as applie.ihle, were those con- tained in suh-secs. 4 and (i of sec. 407. Sec. 4 applied to articles for sale liroiiiiht into the niuiii- eipality after 10 a.m., upon which market fees are not to he imposed unless thi-v arc oll'ered for sale on the market ; and sec. li ajiplied to those persons who go to the market place liefore !t a.m., lietweeii 1st April and 1st Xovciiilier. ,iiid 1(1 A.M., lietween 1st Xoveiiilier and 1st .\piil. with any article they may sell on the market iilacc ; and with regard to such jiersons that after these res]iective hours they shall not lie coni|)elled to ri'iiiain on the iiiarkit place. Init may jiroceed to .Sell elsewhere on ]iaying the ni.irket fee; Held, tliat a hy-law passed under siih-see. (», need not he made sulijeot to such restrictions. <^c. . the jiroper construction of the section lieing that sec. .'t{)'A is made snhject to such restriction.s so far as ])ro]ierly applicable, and th.it suli-see. (5 is ill the nature of an exception from these general restrictions. &c. : — Semlile, that the court might f|iiisli a hy-law of this descri)itioii when plainly iiisniheient acconiuiodation is fiirnishcd. unless ill the alternative the municipality shoulil pro- vile reasonably lit and full .icconiiiiodatioii : but as a rule the municipality is the judge of its own busini'ss and atT.iirs, and it is probably ,111 ex treiiie case in which the court would interfere. /,'<- O'Miiifii mill 'I'hr ('or/iiivit'i'iii 11/' III' t'iiii III' Of/ll,r,l, 11 0, It. (iO;!. -Wilsnll.- Atli-iiie'l bv Court of Apiieal, ■-•:?('. L. .1. -JM.-). S.-e .-)(! N'iet. c. '2'J, s. •-'!>. 11. A ii'iiiiiil-' Hinni'iiHi III L'ir;/'\ l)y-liw \o. H\, ivissed hy the towiiNhip of OiiondaLTa on 'J'.tth May. ISS'J, prohibited ecit.iin animals therein named riinniMi,' at larire : and )irovided that, i-.m/il lu-hriii llf liifli Mnii ,iii,l /III' lit Diciiiilii r ill mill II' m\ it sliouM not be lawful for the owners of any other ,iiiiiirils. not theretofore mentioned or iiidic.ited, to allow or permit the same to run ;it Large. .\ liic or |ien altv not exceedini; s."i()0 w.is impo-ed 1 ir e\ cry otleiice. but the animals were not tleirliy lo li • relieved from the o]ieratioii of ,iiiy by law relat ing to ]ioiinds or ]ioiiiid keepers, nr tor any tres- )i,-iss or damaiic coniniilted or done liy them throii'.di their being peruiitted to run at large. The recovcrv of tines and )ieiialties. (not iddiiv,' the words "and (MSts,") was directed to be un- der sec 4'2I , et seip, of the .Suiniii uy ( 'oiivietioiis Act, with iniiirisonnieiit, in the event of im dis tress, unless the line or |icn,ilty and costs, .'iclud iii^ costs of coininitt.il. be sooiii-r paid, liy law No. HT, ]risM'd on Hth .Inly, IS.SIi. after iveitiic,' tli.at til" object was to prevent all aiiim iN of any age or deseription riiniiiiu; at laru'e at all season-, of the ye.ir. amended by-law No. S4. li\ sfrikini,' out the words in italics: Ifeld. that the by-law- was not op)iressivc or iiiireasonalilc as exK'iiiling to all seasons of the year, in that it w.is no wider thin the statute under which it wis pa-^-ied. .Municiiial Act. IHSll s. 4!f2, siih-s. •_'. /,'. .U;//..// mill till- M iiii'ii-ijiiil f'liuiiril nf I'll' Tniriii'iiii nl' (hinli'/'i'Jii, (1 <>. 1!. '>':). -Itose. [t was objeeted til it the provisions in by law S4 as to the levying.' tines \\ as ultra vires, becaiiso s. 4!t'2, siib-s. •_'. of the Miiiiieip.d .\et (novidcd a mode of recovery, i. e. . by s.ile of the animals impoiindeil, and hence that sec. 4'JI, et seip, did not appl\ ; Ihit Held, that the objection was taken under a misconception of fact, in that the bv-l.iw was not and did not |)rofcss to be ,1 pound by-'.aw ; and it was by no means clear that tlie>e sections wouM not ajiply to a pound bylaw: — <,)ua're, as to the etVect of the omission of the words "ami cost.s " in the clause of the oy-lau |)rovidiiig for the pcii.ilty : but as this was not taken in the rule it was not considered. /'■. It was also objected that the by-law should have been limited in its provisions so as not to extend to Indian lands within the township, but the learned Judge refused to ipiasli on this ground: (1) because the ipiashing a by-law is not impcr.itivi! but discretionary ; ('2l and if it were (plashed the original by-law would remain : f.S) it could only be (pi;islicil as to Indians niul Indian lands; (4) the a]iplicant was not jneju- diccd. ami this was not a substantial objection; and (.")) the Indians, who were alone atl'ected, were not complaining. /''. Slice]! grazing 011 priv.ite iineiicloseil jiroperty in ch.irge of a bov : — Held, not to be " running at large." / lihnt'lsuii v. Ifmn/, 8 O. R. G'J.j.- (i. 15. I). 463 MUNICIPAL CORPORATIONS. 4C1 iJ Br jiSS ills II ou ii ^ l!~ 41 ^f II ac i SIS n % 12. ^Voiaea. 47 Vic c. 32, s. i:{, su1»-s. 12(()iit.) cnactathat by-laW5) .,iy 1)L' 1)u».slc1 •" tor legiiliiting or ine- venting tlio iiiii(ing of liull.s, tilciu iiig nt' Ikhiis, shouting ami otinr iiiuiswal noises, or noisus ual- culatfil to (iistnil) tin' inlialiitant.s,"' iVc. Sec. 2 of liy-law No. 17!) of tliu city of Loiulon, i)a.s.siMl nnilcr that Act, i.sasfolh)Ws ; '• No pcL-^ou .shall, in any of tiic streets, or in the market place ot the city of F.,onilon, blow any horn, ring any hell, lieat any drmii, ])lay any Ihite, jiipu, or other nnisical in.strunient, or .shout or make, or assist in nu'king, any uinisual noise, or noise calcniateil i,o disturh the inhaliitants of the .saiil city.'' I'roviili.-d always, tlial nothing herein contained .shall prevent the jilaying ot musical instruments liy any military haml <>t ller .Majes- ty '.s regular army, or any hi'ancli thereof, or of any militia (■or[is lawfully oryani/ed under the laws of Canaila. The i)risoner was convicted under the by law of beating a drum on a public street in the city of London :— Held, that the bydaw so far as it sought to prohibit the heating of drums simply, without evidence of the noise being unusual, or calculated to disturb was ultra vires, and invalid, and that the refusal to receive evidence on the prisoner's behalf was a valid ground for her discharge. Held, also, that the above proviso was not an exception that nmst be negatived in either the connnitment or convic- tion. Itojina V. yuHii, 10 1'. H. 395. — liose. .See Ihijina v. Martin, 12 O. It. SOO, p. 3S(j. 13. C(th Stiind.i. \Vliei'c it was adnutted that a by-law was within the powers of a nuinicipal council under 8ub-s 40, s. "JU of the .Municipal Act, 1SS3, "for authorising and for assigning stands for vehicles kept for lure on the jjublio streets and places," &c., the court refused to (juash the by-law on the ground, alleged by the applicant, that the stand interfered with the view of the falls from the hotel in question ; that the manure on the stand was otlensive, and the noise of the hack- men a nuisance, these being nuitters of municipal regulation, and the aid of the court if success- fully invoked, being an interference with the disoi'etion of the nninicipal council, and especi- ally so as tlie stand in (]Uestion had been there for twelve years, and maintained under succes- sive by-laws. Colhurne v. 'J'/it Toiviid/ ^'inijiira J-'alld, t» O. K. ItiS. — Kose. 14. Lirtry Stabkf,. 'i'he Municij)al Act, 18S3, s. 510, authorizes the licensing of owners of livery stables and of horses, itc. ,f WlTH. 'I'lie linancial allairsof a municipal coriioration '••uing in disorder a commissioner was up^jointed by the CJovernment to investigate them, and tlie plaintiti's, professional accountants, were em- ployed by tlie council to examine and arrangi; the accounts. Kesolutions were passed, uut under seal, recogni/ing that the work was Ik-ihl' done by the plaintiti's, who reported to, aii.l \vei« in comnmnication with the council. Their re- port, as the learned judge found at the trial, was ( l)efore the commissioner, and in a by-law one of tlu^ plaintiti's was referred to as '•having re- j written the books": — Held, Wilson, C .1., ihs. I seiiting, tliat the ))laintiirs could recover, thouyh i there was no by-l;iw directing the work to lH. 1 done, or appointing the plaintiti's to do it. Silshy ('. The ( 'oiporation of l-iiinnville, .S A. R. ri'.'i, and Vouiig r. The Corporation of Leamington, s Apit. Cas. 577, tlistinguishcd. I'ohiiis it nl. v. nroiktun, 7 O. R. 481.— (,». IJ. D. Agreement liy town council with chief of ])(ili('u to pay over to them fees received by him from the county for services performed by him as county constable. .See Tin- Corjiomlioti. of tlo Town of St rat fori I v. U'ilnoii, 8 O. R. 104. I5y a special Act of the legislature of Ontario, 45 \'ict. c. 45, iirovision was made for the 7 v. J'/ii- Curporofi"" t very satisfactory. The learned judge wns therefore of o])iiiion that he could not ascertain the coiii- jiensation himselt', but set aside the award, and intimated that unless the ]iarties would agree on new arbitrators, he was disposed to direct a re- ference to the county judge. In re Ilntliimm and the Cor/innitttin of thf Toirnnhip of liositnqnet, 11 O. 1!. 589.— Cameron. A townshii) by-law after reciting that there was a difficulty with S. "from alleged damage from water flowing from local drains known as the H. and S. drains,'' enacted that V. was ap- pointed arbitrator for the township. 1'he ncjtice given by the reeve to S. was, that "the corpor- ation has elected that the claims made by you for damages to tlu^ east half of lot 11," &e., "on account of the construction of the drain from P. to the S. drain, or coiiseijuent thereon, shall be referred to arbitration." Before thojiarties had been iieard on the merits, the plaintilffl arbitra- tor withdrew from the arbitratifui and refused to act ; liut "^Iie other two arbitrators notwith- standing ])i'oceeded with the leference and made an award: Held, that the reference was wludly informal, tiie subject tlierecjf not being (irojierly defined ; and though the n tice given by the reeve to S. would make the matter sulticiently clear it could not affect S. for lie never entered upon the arbitration, but repudiated the arbitra- tor's authority at the first meeting of which he had notice ; but even if the refercsnce were suflfi- cient, the award was bad by reason of the two ariiitrators proceeding alone, the Municipal Act requiring (in the absence of a special agreement to refer) that there shall be three arbitrators continuing to act from the time of appointment until the award has been made, ami enabling the County Court Jmlge to appoint another arbitra- tor in the place of one refusing or neglecting to act. //' )•( Smith and /hi' Cor/ioralion of the Toinishlj) if J'/yniji/dii, 12 0. 1!. 20. -Cameron. Qua'i-e, whether it was in the j)ower of either party to the reference to revoke the authority of the arbitrators. ///. 1. *• tt^t m •"VS 4 '4 ll C.': 'i (>&£' 1 '• '*.:. i K 'Ma ' "1 •1 ilQi "C 4 (IU»< iia !| lids "is '>4 '1 II i» •k t< II.*, iir* <■ " ^M » 1 IMB <« '« 11 ^ ')« jdc Mk '<•! « l» 88 407 NEGLIGENX'E. Sciiiblc, tli.it the iirovisions in the statute that j last iin'etiiiy of the arhitratnr.s. Ehhox the arhitratdi's must IidIiI their first nieetiiiy j ester, 42 <>•. !>. .")'J.'t, and 'i'hniliiw r. within twenty (lays from the a|i]ii>intnient of the last iirliitiutor is not ini]ieiative, Imt directory, merely ; and theretore an omission to hold such irieetin^' vithin smh time wonid not invalidate an award maile within the month as reiniiied hy the Act. //'. 4';s •. Korl, Sidinv I (). VI. 21!), eommented on. Cnr/ior'i'idn m Jhifrr V. ('iirj'oriilioii a/ C/iafhiim, II A. l!. 2h Held, (2) tiiat the report of the snrveyoi, n eoi'por.'ited in the liy law, sutiieiently shewid i! termini of the |iro]ioseil woik, and that nndci ii . lirenmstaiiees it was not open to the olijcctini . .Send>le, also, that the County .hidue may a])- | that it ilid not expressly state that the work « i ))oint the third arhitrator (jx \>i\itv altiiouj^h this [ to ho eonstrmted at the exjiense of liotli tnM i, is not desiralile ; and tiuit the power to a|>point ships iuid in wiiat proportions, and that it d' t. ■ does not depend on the disaureenu'Ut of the two mined, in ajiparent disre;,'ai'il of seetion "vi, \\>. ii arhitrators, hut on tiieir failure to agree within j the work was to he ke]it in repair hy (hat the seven diij 8 limited therefor. It was ohjceted that the arhitratfU's had m)t tak«n th(! oath re(|uired hy the statute ; hut, Siudile. this olijeetion was not tenalile, as the oath they took was sulistantially the same as that re((uired. /h. Under tlie draiiuige elauses of tlu' .\lunii;n Aet a hy law was passed hy the township of Chatham, founded on the re]u>rt, |)lans, and specilications of a surveyor to authorize the drainaye of eertain lands in that township. In order to ohtain a sullieient fall it was necessary to continue the dr.ain into the adjoinini,' town- ship of I)()ver. The survc;yor assesseil eertain lots and roads in Dover, and also the town line lietween hover and Chatham for part of the cost of the works in pro|iortion to the henelit in his jndgnu'ut derived hy them therefrom. I)over .•■.]ipcalod from the report on several grounds, and three arhitrators W(.'re apjiointed ])ursuant to the Aet. At their last nu'ctin;; they all aLcrecd that the lands and roads in l)o\er were lienetitcd hy the work, hut 11. !•'., one of the arliitratora, thought S.")0() should lie taken otl'the town line. \X. 1 ). , another of tlie arhitrators, was of o|)inion that while the Ijulk sum assessed was luit too gi'eat, the assessment on laiuls and roads should be varied, hut that this was for the Court of Revision to do. A memorandum to this etleet was >igned hy \V. I), and A. V... the third arhi- trator, at the foot of which 1'. F. also sigued a memorandum that he dissent' 1 and declined to he present at the adjourned meeting to siirn the awiU'd '"if in accordance with the ahove memo- randa," Later, on the same day, the two arhi- trators, W. I), and A. K,, met and signed an award ilcterndning that the a.ssessnient on the j lands and roads ni Dover and the town line | should he sustained and confirmed, and also that on the town line between Dover aiul Chatham : —Held (I) per Hagarty, C, ,1, ()., and Osier, J, | A., atlirnnng the Judgment of Cameron, C. J., j fi (X H. .32>'), that the award was bad (a) as for- > nially sanctioning and confirming the jiarticular assessments on lands and roads and the town i line, instead of the aggregate amount assessed, | the latter being the only award contemplated at the last meeting, at which all three arhitrators were present : (b) because one of the arbitrators had recorded hi-s dissent from the adjustment or scheme of assessment, and yet by the award purported to sanction or attirm it, I*er Hurtou and Patterson, J.I. A., contr;>, that the duty of the arbitrators was conKned to ascertaining the correctness of the proportions payable by each townshii) : tJuit all other objections as to the fimounts of the assessment were for the Court of Revision, and tlu.t the award did not substan- tially diti'er from the menioranduni signed at the at the joint expense of Chatham and D Oslci', .J. A., dissenting. //;. Ifcld, (.1) upon the true I'onstruction of ;! drainage sections of the Municipal Aet, tii when di'ainagc works arc extended and continiU'l into an adjoining towushiji beyond tiie limit.- n; ,, ,, . • , thi^ township in which they are commenced, til. the Municipal , . ,, \. , ,• , , ,. , ', roads in the former townslnp ami the town iiii. iire liable to hi; .assessed in proportion to ti;. benefits derived by them theiefroni. Osier. .1, I A., dissenting, //'. See also //( /v- /.ii/Jtn(/' riiii/ Tin Cur/^ordiH.ii • ■ ihi Ttxi-ii 0/7V/, ,■/»„■',/-.//(,.-,(). Ji.fi.'U, : .1/c. !/■,•/,.■ V, 77/1 ('(irjiiimtUiii u/' l/ic 'J'airn uf ( 'nl/iidiin,'.'! '.){). 1!. :i(is. MUTCAl, INsnSAXCK COMl'AW, Si I lNsriiAN< i:. \AMK. liemarks as to the scrioiis conse(|uenct to arise from the constant changes in the of the streets in the citv of Toronto. Kou;//i„(t V. Dnilsoii, 11 A. 1!. (i'.HI. As a trade mark. Sei' (; Wiik. NKGLKiEXCK. I. Partiks Liablk. 1. Oou-mlh/, 400. 2. Mailer for Iiijunj to Scrvcuit — Sf .Ma- TKR AND SkRVANT. 3. Mciliral PrncfiUniierx — Sec, Mkdk'a PUACTrnONKRW. 4. Minikipnliths-Sei' Watkr and Wath CuuK.sKs— Way. .'). liailirnys — Sec Railways and Haii WAY COMPANIKS. 6. Solicitors— See SitLiciTOR. 4GS •s. Kssex /'. Kdili lillllow /■. Sidiiiy. 1. Cnr/ior'i'ifiii u> hum, 11 A. I:. '.Mv if tlii' siirvcviif, 11;. iuitiiitiy slicwril tli ami that iiinlci lli. n to tllC Olljfl'tl'l,;, J tjmt till.' wiiik w 1- UllHU (if lllltll tnUI. «, .111(1 tliiit it i!' t' ■ (if scctidii ."."i4, Ih f' I'cliaii' liy ( 'ii.itli .h atliaiu and l)ii\i ■(iiistnictidii (if iL- luni(i]iiil Ai;t, tlir. ikIlmI anil cdntiimci cyimd till,' limit- !■; x\i: cdmnii'iiccil, I'l!' ) ami the tiiwii Iiih 1 \ird[idrtidii td th' luicfrdiii. Oslt'P. •!, ' Till ('ii,-/,or(iii<'i' ■ ■ i. l:.();U, ; .l/c,lr'/' iiir/i i,f ( 'iJliiiiiii;,i,J ]•; COM 1 'AW {GO NEGLIGENCE. 470 (■i)nsL'(|\ii.'ii<-'L' lil// /ii'iii'i ■ii-iifittiri'.-i nf l^nV'ioiin Killi'il III/ Acciilint, 470. VII. DkI.AV — .SV(- I.AC'IIF.S. VIII. Ni;w TiiiAi, IN Actions koh — .SVc Xr.w Tli I A I.. I. I'aRTIKS LlAllI.E. 1. Ill iii'rrilli/. Ill an action for (la!iiai,'i'.s sustained liy tlu.' lintill'lty roason of ice and siinw I'alliiii,' fioni :!u; roof of the defendant's Iiduse and injurint; iiiii while he was walkiiif,' on the hi;,diway, evi- ifiice was given to shew that aliont half an hour kfdve the accident happened the defendant was ;ititied of the dangerdiis chaiacter of the roof, biit todk no preeautioiiH to irnard a;,'ainst aeoi- 'lilts, and a liy law of the niiinicipality was pnived re(iuiriiit; the citizens to keej) their roofs kar of icu and snow : — Held, that there was tvidence to go to the jury of negligence in the iufendiiut. A nonsuit entered at tlie trial, was :!n'refore set aside, and a new trial granted. Lizanis r. Corjioration fif 'Poroiito, 10 (,». li. (( iiiiineuted on and distinguished. I.iiiiiln nlli' : lloiihi, (JO. H. 405.— {'. 1'. I). The defendants' jireinises almtted on (larenoo treet in the city of Toronto. The defendants' phiijed a beam at the height of nine ;ind adialf ieut from the ground along the north limit (jf CLirence street, a street "iS feet in width, and iiiiug a g.atc therefrom, and jmt u]) another gate ici'oss said street about .S7 feet further south, ;iie two gates not being exactly ojjposite to each 'ther, nor of the same width. A lane ran north Iriim Clarence street. There was an accuinu- lition of rubbish with ice and snow under the ivam, which raised up the front wheels, and the plaintiff, while driving along Clarence street to leliver goods to persons on the lane, was injur- cil by being crushed between the beam and the I'lad upon which lie was seated. He said he knew of the beam, having driven there often, lit that his attention was called from it by hav- mg to steer his way carefully between the two .ates. Clarence street had not been adopted as aiiighway by byd.iw : — Held, that although by If) Vict. c. 18, s. 545 (Ont, ), the council is prohi- 'ited from laying out a road or street of less than 66 feet in width, they may consent to the owner of lands laying one out less in width, .and that prior to the Act of 187.3 the owner was not lii'oliibited from laying out a road of any particu- lar width ; and that as C'larencc street had been laid out and used as a public street for many years, having several large business establish- ments fronting upon it, or with a rear access to it, and public conveyances had used it for busi- ness purposes in .all respects as a highw.ay, it might in an action of this kind, between a per- son using it in the way of business, as it had so long been used, and one who was charged with 'ilistructing it, be found to be a public highwivy : — Held, also, that the beam was the proximate cause of the injury, not the ice and siiow riidy, and that defendants were liabh' though the per son who allowed the rubliish to thus accimiiil.ite might be liabh,' also ; — Meld, alsd, that there was no eontribiitdry negligence on the part of the lilaintiir. IHim v. /Im rlJi 1 1 nl., S O. l\. b')!.— i). n. I). In an action for negligently towing a ship. See Si mil if al, v. lirillih ('oliniiliin Tiiii'imj n ml TvnnipnrtatUni Cn it nl. S. C. 11. Ttl'. Liabilitv of architect. See liiuhiliii v. I>ii-I:- son, i;j A.' R. 4!»4. See I?i'i/iiiilil.s V. l!i,.rli,i,-iih. 10 (>. 11. (I4'.t, ].• 305. II. CoNTKIia TdKV Xr.dl.KlKNCi:. See lUUt V. Uiv i-Lh >-l ,il. , S (). M. 4.-)l .111/ fi : .1//' li'i-V.H'iil, KM). H.410, p. 4'2(i. Seealso/.'ii/,-./' V. (h-aml Trim/,- li. If. I'n., 8 (). li. flOl ; rnpi Imiil V. Till < 'iiriinrnHiiii III' till Villinii' n/' llli nln im. '.) <>. K. 1!»; /'i/nii v. Tin i'linniln Sniiflii ni II. W. Cn., 10 (>. It. 745; AfrLiiiii-lillii v. '/'//. tlniiiil Triiiih II. II'. Co., 1-2 (). \\. 418; Tlic- Toin, m' Poi-tiniiii v. (/rijiiiii, II s. ( . 1;. .'i:s:?. III. I'ltOMMATlC CaiSI; OK In.iikv. See lllUs V. Iloml-I, ,/ ,tl., 8 (). H. 451, .<,ij,rfi See also iJnrl' if nl. v. Tlii- Corporalimi of the Cily ol' Toronto, 5 (). K. 'l'^:^. V. I'l-KADINci IN A(TI()NS IdK. Statement of claim claiming daiiiiges for an accident to the |ilaiiititf by his sti'[Hiiiig upon the covering nr lid of a iiianhole in tlie sidewalk allegeil to be defective, ki.'., through defeiid.int's negligence. liy the first paragraph of the state- ment of defence defendants denied the correct- ness of the statements cont.uned in tin; statement of claim ; and by the second paragraiih set up that defendants had no notice or knowledge of the defect: — Held, on demurrer to the second paragraph, that tin; whole statement of dcfenco must be read together; and that the second ])ara- graph taken with the first constituted a gond (lefence or was immaterial ; that it could mit embarrass the plaintifV, for if he proved action- able negligence he must prove either a(;tidnable or presumptive notice. lii'iLsloii v. Tln' t'nrpnrn- tioa of till' Citi/ uf Haniilloii, il O. R. 1 12. —Rose. In an action for damages for iiegligeiico a coun- ter-claim for libel was excluded. .See Mr I jean, v. nimilton Street liailway Co., 11 R. R. 10.3. VI. Damages Recovekahi.k. I. By Iiejiye,.sentatin's of Per.ion.i Killnl hy Are il leaf. The deceased had effected a, jjolicy of insur- ance on his life which was in force at the time of his death. At the trial the jury were directed to deduct the amount of the policy from the ver- dict, which amount w.as afterwards added by the Division.al Court. On appeal this Court being equally divided in opinion on this branch of the case, the appeal was dismissed, with costs. Hagarty, C. J. O., and 0.sler, .1. A., were of opinion that the actual loss or injury resulting 471 iNEW TlilAL. ::3s II sz ::aB rt Oh II ^^_ lis (I d« •'J ^"^ !» from tliL' ik'uth, can alone I)ti recoveruil in Hiich II ciisf, and if (i lar^'o incrcatie of fortiinu ouciirs to the jHirtieM an a. result of such ileatli, or pro- perty, oi' money fiilln to tiiem as a like result wLetlier undei' ii Hettlement or in the xliajie of u life insurance ullecteil for their lienelit, that must lie taken into consiileriition in estimating the Iohh sustaiueil. Burton, J. A., wan of opinion that iinikr the circumstances the divisional Court weie riglit in incieusing tlie vei'dict liy the amount cif the insurance money. I'l'r I'atterson, .1. A. -Tile recui|)t of the insurance nniney is a proper mattei' for the consideration of the Court or a jury in estimating tlie damages, and might atl'ord ground for making some reduction from a gross assessment, )iut in the present case tliere was notiiing shewn to warrant any reduction. Hicks ('. Is'ewport, itc. , K. W. Co., in ny negligence of a railway company, the husband cannot recover damages of a sentimental character, yet the los.s of houseiiold services accustomed to he performed hy the wife, which would have to he rei)laced hy hired services, is a substantial loss for which damages may be recovered, as is also the loss to the children of the care and moral training of their mother, ('i'aschereau and (Jwynne, JJ., dissenting). T/if .St. Ldwrencc and Oliawa J{. W, Co. V. Lftt, 11 S. C. K. 422. I. NEW TRIAL. Ix What Case.s. 1. Defamaiiun, 472. 2. Xeylhjtnce, 472. 3. Stduction, 472. II. For \Vhat Cause. 1. Ihdinij as to Rhfhl to Beijin, 472. 2. ExctHsii'c, Damaijts, 472. 3. Surprise at Trial, 472. 4. Discoriry of A' tic Evidtwe, 472. 5. To Produce Further Eridence, 472. 6. Improiitr Admission of Eddtnce, 473. 7. Improptr Rejection of Eridtnct, 473. 8. Contradictory Evidence, 474. 9. Misdirection ofJudye, 474. 10. Where Verdict is aijainst Evidence, or the Weiijht of EvUlence, (a) Where Verdict does Substantial Jus- tice, 474. (b) Other Casts, 474. 11. Inconsistent Findimjs of Jury, 474. 12. Jury. (a) Improperly Iiijluencing, 475. (b) Other Cases, 475. 13. To Amend Pleadimjs, 475. 14. Other Casts, 475. HI. I'KACTICE, 476. IV. Aii-ealosAvplk'ati()XhforXewTkui., 470. I. In what Casks. 1. Jjifiunntioii. .See lirndliy v. Mr/nloili, 5 O. R. 227, p. 47;i; Wllnirks v. J/uin/l, 5 (). H. 3()0, p. 185; llHh,r\. Criioknll, lot). It. 47"), p. IW; ^l/'i.-i-nV v. Tor<,iit- J'rliiliiiii Co., 11 O. i;. ;itJ2, p. I'.ll ; Dominion T,h (jruphCo. V. Silcfr c< ol, 10 .S. C, R. 238, p. IM. 2. Xi'ijlhjence. See Chirkr v. liaina Tiinlur and Transport Cu., y U. K. OS ; Tht Town of Portland v. Crifith-. 11 S. C. R. 333. ' 3. Seduction. See yl (/<((■*• V. ir(((/e,90. R. 15; Udy v. Stewart, 10 0. R. 591. II. For what Cause. 1. Rnliwj as to h'i'jhl to Beijin. Sec Miller v. Conftderation Life Assurance Cv., 11 O. R. 120, p. 345. 2. Exctssire Drunajes. For wrongful dismissal. See Guildford v. Tkt Amjlo-French Steamship Co., 9 S. C. R. 303. In action for libel. See Massie v. Tormio Printing Co., 11 U. K. 302. See Turkett v. Eaton, 6 O. R. 48G, p. 420. 3. Surprise at Trial. See Mulligan v Grand Trunk liaihuay, 12 0, R. 103. 4. Discovery of New Evidence, Held, that upon the discovery of material evi- dence publication may be opened even after jiulg- ment affirmed by the two courts above. The learned judge here considered that what was proposed to be introduced as new evidence was not material, and dismissed the petition, with costs. Synod v. DeBlaquiere, 10 P. K. H- Proudfoot. See Miller w. Confederation Life Assurance Co., 11 0. R. 120, 14 A. R. 218, p. 345; Bank of British North America v. Western Assurance Co., 11 P. R. 434, p. 476. See also McMillan v. Grand Trunk Railway, 12 0. R. 103. 5. To Produce Further Evidence. Held, that T. L. having in his pleadings set up that J. L. had been in possession for twenty- two years as his tenant, could not obtain a new trial on the ground that he could shew by evi- dence that she had been in as a caretaker for him. Mickey et al. v. Stover, 11 O. R. 106- Chy D. NEW TRIAL. 474 ixsforNewTrui., 15; Uilyv. SteriHiii, R. 486, p. 420. At the trial of a cane with a jury, the juiIko of I tin; County Court at the (MnicluHioii of the jiliiiu- tirtVcvidt'Ucp, iiiul without hearing iiuycvideiico ,,11 the liart of tiie ileferulfintH, imnsuiteil the biiititr. Ill tlie following,' term the juilgu set I t!if iiiiMsuit asiih' nnd eiitereil judgineut t'or tiic liiutitV, eliiiniiug a rigiit un(hr the eii'euinstaii- ,',» to do so. On apjicil tiii.s court, wiiile satis- ti,(l witii the ruling of th(! judge on the legal li,\liiiity of tlie defendants, set tile nonsuit aside mill ordered a new trial upon tiu; facts, so as to I .iilurd the defendants an opportunity of adducing ividc'uce ; l>ut, under tlie cireuiiistaiiecs, refused I thi'iii fiuy costs of the appeal. Itiiles .'' Co., no. It. I-JO, 14 .\ K. '-'IS. p. iu.-.; r,(l. I!. tlOT, p. '-'ttl. See also .SVo(«/f(// v. Slii/ilofoii, V2 O. U. •_'0(i. 10. Whu'i Vi vil'ii-t It Jiiitiiiif Ei'ii/i iii-i' or f/f Hi iijllf of El'iili lli'i . (a) U'hiri Vtriliif hm i Siihtiniitinl Jusiifi'. On application for a new trial ii|iom the weight of evi^ <• ::» 4 •; n.. t» Ji- '.' *• NONSUIT. 476 1'2. Jiiri/. (y reason of frt;- (|Uuiit iiitcriuptiiiiis ami reailiiiguf text hooks liy plaiiitilt 's uoiiii.scl iliiiiiig tliu tlcliviry of tlic jililgc's cliai')^!' iiiju^Liei' w.i.s (Idin! (lefciulaiits, and the Jniy iuiiiinpcily inlliU'nucd tlierehy ; Kill], tlmt this was a matter for the juilj,'e at tile trial, and it would iiave to he a S'ery strong ease for tlii^ eonrt to interfere, and the judge liatl made noeomplaint. McJJiiikiIiI \. Miirnii/ d a/., i, ( ). R. ."):.!). 111. I'hactici:. (h) Olt.i-r CiLirs. t At the trial it a[)])eared that the eoiuisid for V. had left the i,'oiirt iiefore tlie judge's charge, having authorized I'". , c(junsel for two other (11 j fendants, to take on his htdialf any ohjeetiolis he might think ))r()|)cr to the charge. The jury, I alter hearing the judge's charge, wore allowed to se]iaiate and lie at large from .Saturday till Monday, liefore giving their v^rilict, which was agr.'.nst th jdefeiidaiit.s I*, and K. : - Held, revers- ing the decision of the (^fueeu's Heiich Division,? < (. 'v. '.'ii>7}, that such a jH'ocueding could not he i>j;!ielil except niioii dear aliirniativc evidence iif consent exi)ressly and knowingly given ; and, therefore, where counsel for tlie defendant I*. had left the court heforc dm judge's charge, and it liiil not ajipcar that he iiad autliori/ed any one to reiueseiit him or his client, or that any one had consented i>v .•issiimed to con.^eut on huhalf of 1'. to the juiy separating, a new trial as to I*. was directed: I'er (Jsler, .). A. — Had I'", assumed to represent the counsel for I', in assenting to a se[)aratioii of tiie jury, I', would have been iHiund to the same extent as if his own cciinsel had taken a similar courue, coiitraiy to instructions. ^'^7/- well v. /I'l II ilic ('/ (il., 11 A. H. '/'24. The defendant, in coiivursatioii with one of the jury iianel, hut not one of the jury called to try the case, said he hoped the jury would give the defendant the heueht of any doubt :— Held, not sutlicient to justify the court in interfurintj with the verdict. I'aitim re v. FanwtU, 12 O. K. 285-C. P. 1). Held, that a defendant is not entitU-d to ri ■ move proceedings hy .•■■rtiorari t) a .SujuMiiir Court Irom a ])olice magistrate, or ii justice <,| tile ])eace, afte; conviction at any time, for tlie purpose of moving for a new trial for the rejn-. tion of evidence, or hecause the conviction is against evidence, the conviction not being liefor'; tlie court, and no motion made to c|uasli it. Rvi/uiit v. Jtiihanhuii, SO. I!. O'll.— (,». B. I». A petition by the pliintitl's for leave to ]iiii. dill"' "lewly discovered evidence, and to re-oinn the case lor its admission after the judgment ui the (-^ourt of Chancery in favour of the deieii dants had been alfirmed by the Court of Appeal and till' .Supreme Court of Ca.nada, was bnnigh: on for hearing Itefore I'roudtoot, J., in court :- Held, that .is the applicatior. might, before the (). .1. Act, have been matle *^o ;, single judge, ainl as there is no lu'ovision in that Act sjiccially ap- ])lical)le to the subject, the original jiractice o; the court reinains, and the aiiplicatioii was pin- perly iiiaile to a single ju. The objection, that the judge \t the trial .nhould have hiin.self dccidecl the is? j as to fail- ure of consideration, instead of directing an in- N RESl DENT LANDS. .S'ee A.ssKss.MHNT and Ta.xks. NONSUIT. See also Chitk;' v. Tlif llnn'it Tinihir purl Com puny (l.imii'd), DO. K. (jS. Trans Where in a jury case the .ludge at the trial enters a nonsuit, a notice of motion, and not an 476 not entitled to re- iiri t.) a Siiporidr tf, or ;i jiu-tiLu (,|' luiy time, for the rial for tlie rojn-- the t'oiiviction ij 111 not In'iiig lii't'of'.' i;i. fJ. I). H for leave to jiin. ce, ami to re-ojun r the judgiiU'iit cu voiir of the ileli-ii e Con it of Ajiptal lada, was hroiigh; i)t, J., in court : - iniglit, hefoiv tlii- ;, .-iiiigle judge, ami t Act sjiecially ap- rigiiial jiractitf (i: plication was pin- SijiiikI v. JMlik- e case and put in :w trial upoh frt^h a new action upoL minded upon sm.|] to th'j judgi; ivliii emble, \i. S. (). c L't of pi'eventing an e than a year oM, rom tiic (,'iiurt ni weie admitted, aiii (irap[)ealing woiilii later judgnieUL:— '2'2, was not in sc■<'. Coiirou.Mio.ss. VI. IMiKi; roLK'iKS-.Vir Insikanck. VU. Ok Motion- ^'ee I'kactilk. VUl. .li'KY NoTicK— .Vc Tkial. I.\. Ok Trial- .SVc Tkial. X. IJv liKiiisTit.vTiuN i>K Instki.mknts -St-e Kkajistkv Law. To accountant. See (.'olliii'iham v. < 'oltiiiijhnm, no. R. 1>94. Til resising othcer. See Simiitoii'f v. Dalloii, li U. 1{. .-lOi"). but stipula'^'id that he sho'dd act as county con- stable within the town only, and account for mikI pay over to the iilaintill's all fees received by him from the county as a reward I'.-r services per- formed liy him as county constable : -Held, that umler .'i and (i Hdw. \'l.c. It), and 4!H;eo. III. c. I'Jii, the agreement to account foi' siieh fees was invalid. (.Miare, whetiicr tlie iilaintill's. or the Hoard of roliie Coiiimi.' on /'Inn Xu. ,',S0 in the Ciiiinhi of Viir/,; 7 O. R. ")'J. -I'roiidfo.it. } See also 'J'ln' < 'nr/io ration nf tin Mnniripitlit!/ of till '/'oirn.-< -«a ,5 i•►. H h ■ •- ^, •' l» •; «^ * "' *>* i» " •<«• » S. R. came of age, ami soon after deinaiuled of | \V. 1). U. an .'icidunt of tlie assets of the part- ! ner.sliiji and a si'' tkiiient witli liini ; an. l!. ;,'ave the plaintitY a clici|nt,' fr si^'iiature, whieli piiriKntcd to be a receipt of the said sum in full of all elaims on the estate of I ». I'., and W. S. ]J. signed it. A\'. S. 11. luiw lironght this aetioii against \V. I). H. and I,., allev'ing that after tiie death of I). |{., \V. I). |i. , with L. 's eoniiivanoe, ni k e certain arrangi nieiits for the windiiig u]) of th- partner- ship, and that large portions of the as-icts of 1). 15. aTid of the lianU had lieen re.ili/.ed, and profits made, and conveited liy \V. I>. 15, to Ins own use, and rlaiming to have the ,s,aid release de- elared void, anil an account of the estate of I), li., and of the ]iartnership, and to have the same Wound up, auil payment of the share to which he was entitled :—H(dd, th.it as to the alleged settlement of Xovemher, 1880, \V, S. H. and his father cdulil not lie said to have licen on eipial terms, and the ducument in ipiestion was not hinding upon the former; th.it it was clearly the duty of his father, heforc making any settle- ment with liiu], to give I'lini the fullest iiossihie intormatioii regarding the estate and his deal- ings with it, even if then, under the cireum- stances, a settlement hinding on the plaintiff could iiave hecn made ;- Held, on the whole case, that the jilaintitl was entitled to the ae- einiiit asked, ;iud that as regarded the increase or profits in the dealings with tin; capital of the estate, these should he proportioned in aecord- aiiic with the amount of such capital owned re- sjiectivcly hy the test.itor and the defendant, M'. I». li., and the defendant \V, I), M. should he allowed a lilieral remuneration for his exer- tions, care, time, and troulile in the management of the estate, which apjieared to have l»een skil- ful ami successful. liurii v. Hum, S <_). \l '2'M. — Ferguson. Deed l>y parent to child suhject to condition of mainteiiaiKe. .See Mi/lit/i- v. SnliDiir'u), \'l (). W. -248 p. lo8. I'.AKLIA.MKNT. I. I'oWKHS OF — iSVc CoN.STITUTIONAI. LaW. II. El.FCTIONS— S'( <; l*Ai;I.IAMKNrAI!V l^l.KC- TION.S. Conspiracy to brihe members of the Legisla- tive Assembly. See Hiqina v. Ilinttiini if ill., 7 (). K. 5-24. Contract for parliamentary printing. See I{r- ijinu V. Murlmn, 8 S. C. K."'210. IV. NoTKK OK Dl.SQfAI,IFICATION OK CaNDI- DATKS, 48.S. \'. Oi'EMNo INiLi. AM) Taking Votl.s, 4i>3 VI. MaKKISC liAI.I.oTS. 1. M'iniiir (ij\ 48.S. '2. Jill ])i fiutij h'l.liiniiiiii Ojlinr, 48.'). 3. B;/ Illitimti- Volirx, 484. \'II. Dkc'LAKATION ok SkcKKCV I!Y liKTlliMNi. Okfkku a.ni) Utiikks, 48.'}. VIll. AliENlV. 1. Whilt Cun.-ititiiti.i, 4S;,. •2. J'oiri IS of Ai/iiit, 487. IX. I'.KIliKHV AND CoitKUIT l'KACTH'tS. 1. (I'i'nirnlhj, 4S7. •2. Jil-ilni-,/. (a) A'// ('iiiii/ii/iiiis, 488. (li) /.'// Aij<>if-<, 481). ;{. 'J'riii/ini/. (a) /.'// CuiiAlilith'.-f, ■1!)2. (b) nil A'/iiils, 4!»'2. (c) i4/ Mii/hi'is, 4!)2. (d) I hi Diiji of Puirni'j, 4',);i 4. iiiltiiiij, 4!»j. 5. Intimidation, 4!l.'"). (i. J'lilili'i (.inirns.-sirs, 4iU). 7. Ilii'inij ('oiifriii.iii-i s^ 4!t6. 8. (iirimi /,'iii/ 11-111/ /'iissi.i, 490. '.). JJisi/iKiliiiralioii liy l\tai■, 497. .See also ne.vt Subhead. X. Acts oFTiiirMNu XATfKE not Akfkctini; ItKsri.TuK I'J.KCTION, 498. XI. TuiAL MF ( '.iNTKuvKirrED Klection.s. 1. I'ltitiim, .-SOO. '2. rarf'ciilar.s, 500. 3. Amnuilnu'iil, oOl. 4. Di-siiiis-simi I'lHtiiin for Dday in I'rm' rntinij, 501 . 5. Eriili'nci', 5()'2. (i. Jui/gi'.s Ui'fiort, 'iW.. 7. Print Id- in Aipial, 503. 8. CoMs, 504. XII. A('TION.S FOR PENAI-TIiCS, 504. PAHLIAM1;NTAI!V KLKCTIONS. 1. Kfvisino (»ffi"kh ami Votfks' List, 480. II. yt'AMFICATIiiN AM) DiSyl AI.iKirATION OF \'()TKI{S. 1. Vati'rs ill fiioriimii-iil Ton-nnliii'i*, 181. 1. Disqunli^ticntion, 48'2. 111. Nomination, 482. I. Revisino Officer and Voteks' List. A revising oflieer under the Klectoral Kniii chise Act, 4S-49 Vict. c. 40 (Dom.), liavii,.- declined to entertain the application of S t have the name of I), struck otT the voters' lis; on the ground Ih.it the notice to l>. |irovideii fr by sec. 2('> of '' e Act w.is not proved, and tli.i- the notice to the revising ollicer pro\ iibd f"i I' same section was not duly served on or ^' \vn t him in time ; on an ,ipplieation for a manilaim;- to the revising ottirer. although it appeared ii' copy of the notice to 1). was kept, and no imtio to produce fhi'original wasserve. hlle(liip"ii a printed form with his name, address, and tU' 480 [CATION (IF CaNIiI. kKING VOTKS, 4&3 ;/ Ojlic r, 48;{. 4S4. Kcv ny Ketiknini. s, 485. I' I'KACTK'tS. 488. 4\W. , 4!)6. n.iis, 4i)(). Ji'i-a.ioii of Cornif- liliead. IHE NIPT AfFIXTINU ION, 498. lED KLEI'TIONS. /"or Di'hiij III /'(•"* I r.os. f„s, 504. D VoTKHs' List. the Electoral Fiiiii 40 (Doin.), liavii.i' .lHjliiiatiiiii of S t" k off tlu votfTf)' li^t ■ to I*, provicled Inr t jmivi'd, anil tlia; icer i)ro\ iii'il f'T 1' •vo(l on or J," nil t on for a inanilaiiu- iiiuli it aiiiiuariMl ii- irjit, and no noti" rvt'd, it was slitwn L-e to It. tilled HI""" I', luUlress, and tli^ \ 481 PARLIAMENTARY ELECTIONS. 483 objection to his vote had been mailed to him by ' ;i prejiaid registered letter on .Tune '2()tli. for the sittings of the revising otiicr on July TJth fol- Liwiiig, and tlie eertiticate of registration was pr.iiliiued, although the witnesses nad no distinct inilividual knowledge of the ])artioular notice to ii., and that such evidence had been given before the revising officer : —Held, that in the abseiK'e iif evidence to the contrary sucli proof was suffi- cient, Rp SimmoiiK and Daltoii, ,\2 0. R. r)Or>.— I'riiudfoot. The notice to the revising officer was left with his clerk at his office during the absence from tnwii of the revising officer on Montlay, .Inne •>th, and on his return on the afternoon of that (l,iv he was told what had been done, and that if Iw did not consider that sufficient the notice \v(juld be procureil again and served on him pcr- siiially, but he said wliat was done was suffici- ent : — Held, that the la?t day for service for the sittings for the; final revision to be held .Tuly I2th was .Sunday, -hme 27th, but that under s. 2, siili-s. 2 of the Act, the time was extended, and •> )iad all the next day, and that the notice was f. '.' given on Monilay. Ih. (feld, also, that the service of the notice on till' clerk of the revising officer was, under sees. !!) and 2f), a sufficient "depositing with " the revising otlicer to satisfy the statute, and the niiiduct of the revising officer amounted to an iii'.ii|)tion of "le action of the i.'lerk, and was (■.Hiiv.aleni to personal service if such wero re- ijuired by the statute. fl>. Held, also, that the revising officer erred in point of law in assuming that the notice to him r iiiiitii v^rsonal service, and that it was too 1, S', ;u\;l in holding that notici; to produce the noti.;^; ;intment of the Dominion (lovernment, and that his sittings were sittings of a Court of Rt'cord, and that there was no jurisiliction in a I'rnvinci.il (!ourt to issue a mandamus to him: - Held, that the Dominion Parliament had, by the Klectoral Franchise Act, interfereil with civil risihts in this province, and having made, no pro- vision for a co\irt to superintend the conduct of the iifficials, and following Valin r Langlois, 3 ■^ ('. I!. 1. that until such a cmirt is created t\\f I'rovincial ('ouH> ny virtue of their inherent nirisijiction have a right to superintend the dis- (•liarg(! of their diitiiM by any inferior officer or tril)iinal. Ih. electoral district where he may happen to be "U polling day ; (2) That whcve the real estate on which such person relie-s as his ijualitii'ation to vote i- situate in one of the unorganized town- .ships his right is to vote in any of the nnoryaiii/.ed townships without beiny restricted to the town- ship where his ]u-operty u\:\\ lie situate : (3) That to entitle a person to vote in the unorganized townsldps on tlie (jualiticatiou of householder, he must be a householder — /'. e., have his i|ualitica- tion as such — within the limits of the unorg'inized township. Miinhikn miil Purri/ Smnid Klerthni {On/.) hvit't ft III. V. FiiHqnh'i;'\ V.. ('. 197. 11. QlAMFlCATIoN AM> DlSQI'AMFIcATluN OF VoTF,RS. 1. Volcm ill I'norrjaiiizi'il TownKhi/in. Helil, by Patterson, J. .A., and Ferguson, J., 'hit (I) a person, the owner of real e.state of the value of .*200 or ii]iward.'<, anvwhere witliiii tV • electoral district, has the riiibt to vnte at any I'liiling place in the unorganized townships in the 31 2 Di-iquitl{/l<'iltiou. 15y order in council the (b^fendant was appoint- ed agent for the location and sale of lands under the F'ree O rants and Hom-'steads .\ct, K. S. O. c. 24. Ry letter from the Crown Lands Dejiart- nient thedefendant was instructed to enter upon his duties re]>ectim; the location of free grants, but not to sell lands or receive money until he h-id given the usual semirity. Uy H. *^. O. e. 10, s. H, all "agents for the sale of Crown Lands," amrngst otlicr persons, are dis(iualitied from Toting at (dections for the Legislatuie, under x penalty. Thedefendant before lie hid given the necessary security, voted at an election for the Legislatun: — Held, that ho was an agent for the sale of Cro\.'ii Lands within the meaning of the Act. H. S. (V <-. 10. s. 4. and therefore liable to the penalty imposed. Whether or not the defen- dant was su ;h an agent is a question of law and not a iiueition for the jurv. .V)V"/"y v. Tm/lor, 6(). U. 108. -C. P. 1). ■ in. Nomination. Under s. .S.l of R. S. O. e. 10, the returning of ficer is to fix the ])lace and time of nomination, such time to be between (deveii a.m. and two p. m. , of the day fixed therefor. The returning of- ficer, who lived at H. , owing to inevitable ac- cident arising from tiie train being blocked with snow, did not reach O. the place of nomination till tw > p.m. and the hustings until ten minutes afterwards. The two candidates who contesteil the constituency were then nominated in the presence of a large number of electors. inelueal t.i tbi' Court of Appeal, the jmlgment proce(!ded km another ground. Per Hurtmi, .1 .\, The piiiiit was now covered by s 4S id 17 \'ict , c, 4(OMt,l Per Patteis.in d, .A Qn;"ie, whether s, 48 was intended to ajiply to this point, thi.-* 483 PARLIAMENTARY ELECTIONS. 484 lite 'ft: iii ■ « II irt: - Ji «ai m " C> 1 beiiif' a matter specially dealt with by s. 15 of R. S. (). u. 10. A'a.«/ Siiiiror Kkctioh (Out.)— Hi id V. Driu-ij H (i/., 1 K. (.'. •_'i)l. 1 V. XoTICK.ipK DlSQrALIFIfATIOXOKC.VSDinATK :. At tile noiiiin.'itidii a protest was lianded to the returniii;,' utiiuer. sjiiiied 'ly tiie defeated eaii li- date and three elect< ins, elailidii^ that respuiide'.it was disi|ualilied, and tiiat tlie opp(jsing candi- date WHS entitled to the seat. Notiee thereof was jKisteil at soiue (^f the polls, and some elee tors were told of it : liild. un the evidence, the ti'ial judges having reftisrd to award tiie seat to tiieiltfi'ated eaiKliila'i', tiie eoiirt in appeal W(add Hot interl'ere. .S'lidh h'l ii/n H' L'ttrfimi, {<)nl.) — 1 i;. c. XM. y. Oi'KMSc I'oi.i, andTakivi; \'oti;s. Stio h'dsl Shiii-iit' h'/i'-fiiiii (<)iit.)— Itihl y. I>i-iinj et nl., 1 K. ('. •i'.M, p. 4iHilh, S S. ('. |{. 07(». '_' III/ l)i')ialij Rituvniiui Ojjircr. In a polling division No. .3 Dawn tlu-re was no istateiuent of votes either signed or unsigned in the InJliit box, and the deputy I'cturning otliccr had endorsed on each ballot paper the inimber ii.) — Hnn'- k'lnn V. Sinith, « ,S. C. It. ()7(). Divisidii [, Sondira — Ihiriug the jiiogress of tlie V itnig. at the re(|Ui'sl of one of the .igents, who tliought the hallo! pipers wei-e not l)i'iiig j)ri|H'rly 111 liked, the di piity r. t uriiiii_' nlli'er, who had bueii putting his iuitiaU anil the uuiu- hers on the counterfoil, not on the ballot papers, initialled and numbered about twelve (jf the liallot papei's, but tinding he was wrong, at the close of the poll, he, in good faith and with an anxious desire to do his iluty, and in such a way as not to allow any person to see the front of the ballot paper, and with the assent of the agents of liotli parties, took these ballots out of the liix and obliterated the marks he had put upon them : — Held, (Jwynne and Henry, ,),)., (lissentiiiu', that the ir ■egulai'ities eom]ilained of not haviii- infringed ujion the secrecy of the ballot, and tli,' ballots being iiniplestionably those given by tln' deputy returning ollicer to the voters, thise ballMls should be held good, and that s,iid irie gularities came within the saving provisimis i.: sec. W of the Ituminion (•'.lections Act, 1S74. I'cr Henry, .1., that although ,he b.dlots shoiiM be considered bad, the present apiiellant haviiii; acted upon the return and taken his seat, was not in a |iosition to claim that the election was void. ///. See Siiii/diKir.f Elfcfioii, (Ihtw.) — I'hnli t/c v. /{(till, 10 S. (\ l;. (i.VJ, J). 4< iV a dtK'laiatiiia isked cacii it h ■ liaving rcecivi'l estcd iiiiii to jait literacy ex[ilaiii- .'iVect tlins " vou to read or write )t pai)er." lie aper as instruct- of botii camli- erU, all of whuiii if secrecy. ( Mie ;is in the room: peal) that suli- of tile prinei])le le Act, II. S. ( > not improperly e is notiiiiig in ssary tiiat thi; withdraw with 11(1 the voter tn the poll clerk t in the polling ile the voter au- to vote. I'er ite voters were the deputy re- ■ manifest jiolicy 11 be in all ca-^es inces it can lie, than the three ;s the voter iiiiii- eputy-rcturnini; each candid ite. s not in accord- )f the Act and [ by tiiu dcpiitv .'a. liyoiel lc[iuty-rctiirii- claratioa, I her.' liursu"d whi li , therj was ii« DlX'LAKAIIo.V UK .SWHKC'V \:\ OKFlCliK A.Mi (_»1HEHS. Ki,Tii;NiN(; See EdM SiiiK-uc EhclKiK {(Int.), Hi id v. Jlriiri/ . '/., 1 E. C. -iUi, p. 41»<». Vlll. A(.iKxiv. 1. W'/iat Cuii-ttttiUc^. it appeared that when the candidate accejttcd the iioiniiiation of the convention of the party He intimated to tiiose present, among whoni was N., that he looked for tiicir active exertions in e.irrying on tiie contest :-- Held, per i'atterson, .!. A., au'l l'"erg',ison, .1., that Lliis amounted to ,Lii authoriz.-'.tion of those [ireseiit, iiieliiding N., t>i canvass and thus to act as agent, f(n' the an- thmization to canvass covers agency, and even 'AitiK.ut .inysucheX[)ressdc-claration theageiicyot those pel's. )ns wiio were actually attending and t.iking part in the coiiveutiini was e>tal)lished in tiiealjseiice of anytiiing shewing a repudiation or K'jection^'f theoli'eroi services, which is iinidied l)y the very fact of their itteuliiig and making tlie ii.iiiiiiiation. Mus/.'Df.'aiiint Purrii Suninl Eli'ftinn, \ih,f.) — l^iiijpt it (il. V. FitH'in'icr, 1 v.. ('. I'.tT. Tile petition ill this case ch.irged that one II.. as agent of the respondent in violation of 11, S. (). e. 10, s. Iu7, sold or gave drink at his tavern within the limits of a polling suli- .livisioii on pidliug day, wliich by II. .S. (). c. II, .s, 'J, sul)-s. (!, is made ,-i " c(irin|)t practice." It .■i[e^ieared that H. was [iresent, a id had acted as a delegate at tlie convention id' reiu'cseiit'itive ;• t iruiers, whereat the rcspundent was nomina- ted. The latter diur[iosc '.t carrying on the contest, lint at tbe said (Con- vention he made a sjieech iiitim itiug that he •expected his friends to work for him : — H(dd, at tlie trial and by the Court of .-Viipcvl ^liurtlln. I. A., dissenting), that this constituted an a[i- li.iuitment by him of every one of those w lo e 111. tituted the convention as bis agent for the iiiii[iiise of the cmitest, and no proof of acts done liy the persons thus addressed and recogni/ed hy the candidate, was necessary t(j establish the ;igeiicy, and as H. undoubtedly did sell the liipior as alleged, and as this corrupt act was not shewn to lie of such trilling nature and extent as to en. lie within U. S. O. c. 10, s. loit, the election must he declare! void under s. MS. I'er I'at- tursin, J. A., and Ferguson, J. (at the trial), the ((iiestion of agency is one of fact, and must be dee ded ill every i-.>»e upon tiio circumstances iinniediately in (piestion. Wist Siiwui' Ehction, ,"(/.) -Hi'dfonl V. rhi-lps, 1 E. C. I'iS. Nil formal appointment or any partiiMil.ir -vvords lie necessary to constitute agency, and less posi tive evidence of afipointmeiit or recognition and a loptioii of a. delegate to a [larty conventi(iii as III agent is rei|uircd than in the c.ise of one not a delegate. / b. Per liiirton, d. A, — lOven if H.'s agency gene- rally for canvassing and assisting in the eh ctions Well established in this case, he did not stand in the relation of agent in respect of the matter complained of. The only evidence was that he sold liipior for his ii\Mi pur|iose under a mistaken idea that he had a right to do so, and there was nothing wh.-itcver to shew that it was d.iiie in eiiiinectiiin with his character as agent. Ibit in tact the Wolds spoken iiy the rispoiident at the conveiitioi. to the delegates did not ennstitnte them his agents. [I,, I'er I'liirton, .1. .-V. — It is only tor tho>e acts of the agent whi(h are doiii' by him w liilst aeting or priifessing to act within the sco)ie of his duties that till- candid.ite is respiuisible. It is contiary to all principle to hold any [lerson allected by the act of an agent, unless it was shewn that the act was done in the coui'se of the employnieiil. and within the sco|ie of the .luthority, altliiiii;.:li it may bi; in abuse of it. /'>. I.,, b .ing a niunieipal '•ouncillor. and as such a member of an assneiatiim which had limiight out the res]iiiiidiiit as ;i candidate for elcklion, had a personal disagrceiii'iit with the la spoiideiit, and refiiseil to attend the meeting of the nomi natiiig committ 'c when the respondent received the nomination, and when asked by the rci pon- dei.t to --upiiort him refused so to do. saying that he now hid an o[ip(irtiiiiity of gettiii:,' even with him ; but withnit the knowledge of the resjion- ileiit he took an interest in the election and bribed a vot.r : — Held, that he was not an agent o! the respondent, and that there was t;videlice tending to shew tint he was ;i. 'ting treacherously towards him, /.■lllln.L- Elrrti. Ill, [lint. }~Milr.'< \' h'iir. I E. f. n. S , who was a p'llitic.il friend an(l sii|ip irter of the rcs]) indent, treated a meeting of electors with the knowle Ige, though not with the din^ct assent, o! the respondent. It w;is proved at the trial that .S. was a imisy, talkativ>: mm, em- ployed .IS a travelling agent through the country ; lie Ini'l a bet or bets on the election ; the res- [loiideiit s,iw him at the meeting, and h id some (.■oiiversition with him in the crowd. Some time during the contest, and liter than the date of the meeting, he went to reipondeiit's oilic • to make some suggestions, and asked his opinion ."vs to the result, as he said some men waiitcl t.i bet with hiiii. While there he saw some "cam]) ligii literature" on the table, and took some of it away with him, with the assent of the respondent. No evidence w.is given that he c.invassed voti-is, ,ind the respondent swoi'e that he never gave him expr>-s authority to canvass or do any thing for him, and that he w 's not a m.iii he would em|iloy as an agent : -Hi hi, .it the trial and on appeal, that at the time of the meeting S. was nutliing iiKU'e tli.in .1 volunteer, bir whose acts tin •;uidi- date was not responsible. I'veani't El'i'iimi, {iS. I'lt- teisoii— -Ferguson. One .-V. hid hired teams and taken voii'isto the |)o1Ia contrary to R. S. (). c. 10. s...-. l.Vt, and it w.is proved that the candidal ■ luing in the village of (J., was tol.l that \. was th •re for the above purposes, and th.it he went to s.'c A. in Ins hotel .an. I discussed the tdectio i uid the proli.ible result-*, with lists ol voters, vV.' : Held, |).;r l''crgus()n, d., that this wis sulii •leiii t > prove 1 the agency of A. in the matli;r : —Held, per 487 PARLIAMENTARY ELECTIONS. 4S8 ■"•SIS '^ ten li Umm " • ■•-»• '• IT ii »' tei "• * * *^, .■ . M v. "■'■ • " taw ^ Patterson, . I. A., that this, iiiulotlieroirciiiiistaiioes of the casu, ustalilishi-il such agc-iicy. Mn-ik-Dkn and J'liiii/Siiiiinl Elicliuii, ( (hit. J—I'iuji-I v. Fun- (jiiitr, 1 E. C. 197. Till! chariiu was that !■'., a licensed hotel keeper, atioiit four o'clock on the )iolliiig ilay served H. and a voter with drinks in iii. 'lar- room. !•'. was a meinhur of the reform as.socia- tioii, and generally took jiart in tdections. He attended the meeting called for the nomination of the ics])ondent, hut he took no active ])art in it. On the election day hedro'.» I. See Xorlh Oiiliiiio Elertioii, (On/.) — Trflvnnii \ V. tioii/il, 1 K. C. 1, p. 41t4 ; U'l 11 jS'iirfhinnl rlainl , Efi r/ii,ll, i PiJiii.) - III iii/ij):io)l ital. V. dtlilhJ, 10 S. C. I{. (I.T), p. 4!'l. 2. /'oin )•■< iif Aiji lit. -Vgency in election cases ditl'ers from agency in ordinary commercial nr other tran.sactions of husi- ness, inasnnich as in the ease of an election the agent, constituted hy whatever acts are sutticient for the purpose, may i)ii\d his principal hy acts which are not only outside the scope of any au- thority expressly given to him, hut which may be ilirectly .ontrary to the exjiress directions of the person whose agent he i.s held to he. Mm- kdkn mil/ I'nrrij Suiuid Eli'itiuii, {Out.) — Poiji / v. /•'niii/iiiir, I K. C. 197. Held, that an agent who is not a general agent, hut an agent «itli powers exj)ressly limited, can- not liinil tile candiilate hy anything done heyond the scope <-f his autliority. liirth'nr hhr/iux, {I)iim.)—>\ tile act, ;tnd tl e ni.iking of tlie profit lieiiig ;is •nnied to he t - motive of tlie doer "f the act. f.iunot di.ssociat> ilie.'ict from liic clirtion. The J.iucoln Case, II. E. V. 'Ml, ooniiueuted on ; The Harwich Ca.se. 3 d'M. & H. 69, distinguished UV>7 .Simroi El'''-tinv {Out.) — lieilford v, I'hfliK, 1 E. C. I-2t). Semhle, where a corrupt act is committed dur- ing an election contest hy an agent with th^' knowledge of the candidate, and it turns out that the per.->on committing it was in fact or ii, contemplation of the eleetion law the agent of the candidate, it is not necessary that the can- didate should, at the time have knowledge t'.iat the ])erson committing the act is his agent, or even that he should kiiriw such j)erson indiviilu allv. 'I'he LfUidondcrryCase, 1 ()"M. & H. -27^. and The I»unL'annon Case, 3 O'M. & H. 101. refei-red toaiid followed. /'r< irolt Ehrtioii '<>ii'.\ -('iiiiii'iiiijliiiiii v. llaijar, 1 E. C. 88. Meld, allii'iiiing the judgment of the court helow, when .in i".gent of a candiclate receives and speiicl.s for election purposes large sums of money, and does not render an account >proved of. yarlh Oiiliirii) Elirtioii {'-/III.) — Trtleiiren v. (luiild, I E. C. 1.— Burton— Osier. 'i'he ap])ointment of a voter as an agent so as I to allow him to vote in a division other than his ' own, and near where he was employed, is not i corrupt practice. Ih. 2. lirihery. (a) By Candidate.'!. j Among other charges of bribery and treating I which wtie decii'ed on tliis appeal, was the fol lowing : — ()''e Mueau. a blacksmith, who was a neighbour of the respondent, had in his ])osaes- sion for two years, several pieces of broken saws which the lespondeiit had left with him for the ))urposeof making scrapers out of them on shares. A few days prior to nomiiiiUion tlu' res[)ondent went into Minan's sliop with a scraper he want ed to lie shar|)ened, and in return for sharpenin;; tl'e scra|)er toh! him t.» keep the old |)iecea if saw wliicU he might still have. Min^ati in his t videnee answered as follows : " Q. He did int speak of your vote? A. No Q. What has lie said? A. He .'uiid that Mr. Magnan was coining like mustard after dinner. Q. M. Diigas did not ask you for whom vou were? A. No. * * y. Do you swear on the oath you ha\-e taken that M. hngas left witli you these two pieces of saw r- c|U>stion with the intent to buy (brihci >o,i? A. I think I cannot sav tliat it sure. I don't know Ins mind (son ideei. It isall I can swfur. Q. It has not changed your opin Mill ■' .\, Xo. (.). l'"or whom Were you in the last eiection ■' .-\. Foi- M. Majitian." 'J'heseraii ers Were worth in all aboTit two dollars, a' ' Were of no use to the re.sponiieiit, and no oth-r conversation took place afterwards between the |)arties. Th> iiidgewlio tried the case found that tbt-re was n intention on the part of the re- .•^pondelit to cotrupt Mireau. Minitvidiii Elfct'wn —M'Vjnan et al. v. Ihiju^, 9 S. C. it. 93. I' H'th iiski < to iiii l.lg; hiisl tend 489 PARLIAMENTARY ELECTIONS. 490 , (listiiiguisheil Ij'ord V. I'hflix, committed dtii ■ ngent with th.' 1(1 it turns out VAH in fact or ii, iw tiie agent of y tliiit tliL' cm- knowlt'dgi' tliat is his agent, or )ersi)n imiiviiln O'M. .t II. -JTs. >'M. & H. 101, '/ h'lirHi,ii inii'.\ . 88. t of the eourt ilidatc receives ses large suiii.s ■ an account ot i'. presumption ■en resorted to. eeoinniendatKiU political associ- oved of, \iiiili cot V. (lould, I ? an agent so as II other than his iployed, i.s not i ry and treating jal, va.s the fol nitli, who was a I in Ins ])osaes- iof broken saws ith him for the them on shares. the respondent icraper he want 1 for sharpening le old piei-es if Mire.iu in his Q. He (lid :int j. What has he ;nan was coming M. Dugas di'i A. No. • • you have taken !Se two pieces of ; to l)nv ihriliii say that it is ( idi'ei. I» is all nged yoiii' oimi «-ere you in the an." 'J'hescrai' i^'O dollars, a' ' it, and no otli-^r rds lietween the case foinid that part of the re- inlcidiii KlfftM^ :. 11.93. Before setting out on a canvassing tour, the appellant, the sitting memher. placed in the hands of one B. , who was not his financial agent, IIIK) to We used for the jmrpose of the election. \\hile visiting a part of the county with which the appellant was not much ac you want any money for your church?" And hav- ing received a negative rejily, added, " I>(i you want any money for anything?" K. then an- swered : " If you have any money to spare there IS plenty of things we want it for. We are liuild- nig a town hall, and we are scarce of money." H. then said : " Will .^'2") do?" K. answered : " Whatever y^v. like, it is nothing to me." The uioney was left on the talile. Then, when bid- ding the appellant B. good-bye, K. said : "(Jcii- tlenien, remember that this money has no intiu- eiwe as far as I am concerned, with regard to the election." The appellant did not at the time, nor at any subs. i|ueat time, repud.iate the act of B. This amount of J^'lit was not included in any account rendered by the appellant or his linaii- cial agent, and large sums were admittedly cor- ruptly expended in the election by the agent of the appellant : — Held, athrming the judgment of the court below, that the giving of the ?^'2o liy B. to K. was not an act of liberality or charity, but a gift out oi apiiellaiit's money, with a view to iiirtuence a voter favorable to the apiiellant's candidature, and that although the money was not given in thea{>pellant"s presence, yet it was given with his knowledge, and tliere- fore that the appellant had been personally guilty of a corrupt practice. Meijuiifii- Elicfmn {Dom.]—C()te v. Uoitlet, \i\ her hiisbaud, who laughed, an(l replied that he in- lenJud to vote for the respondent any way, or that ho would do as ho liked, .ind he did vote. After the election the wife called at [*.'s store, and having reminded him of his promise, she went into the grocery department and got goods to the value of ,s!4.49. Subse(|Uently an account was ieu(lere(l iiicludiiig this .'i<4.49, and the hus- band objected to pay it. .She then told a clerk of I'.'s that that |),irt of the account was "set- tled ott' election time," and a new account \»as subse(|Uently n iidor( d by the attorney of the estate, as 1'. had tailed in the meantime, with that item omitted. I'er Burton, d. A. -The words of the ]iromise in themselves alone did not amount to " :iii otter or promise of monev or other valuable consideration," but being followed after the election liy the present of goods, the gift was made in ]mrsuance of the promise, and therefore corruptly ; but th.it as I'.'s agency had terminated with the election, it was not such a corrupt jiractice as to affect the candidate unlei-s ; done with his ])rivity and assent. I'er Osier, ! J, A. —I', intended to convey and did convey to the wife the idea that if she procureil or would induce her iiusbaiul to vote as he wished, she would receive something of value ; the giving of the lii'occries after the election was an act of briliery, and if it stood alone it would have been necessary to Jarry the evidi'iice of agency further, but following the promise it siio\ve(l what botii parties understood, and to that extent the res- (loiide' t was atrccted by what was d(uie after tliu election: -Meld, also, under ;ill the circum- stances, that t!.is being the single corrupt act proved the case was a proper one for the appli- cation of sec. l.'ii), though the majority was only twenty, and the election should not l>e avoided. Xdii/i Oii/iirio luli'rfniii [Out.) — 'J'ri'ttuirii \. ll.'.-- aicniiiit. that l>. wasiidt ft'C'liiif^ well, ami Ihf whiskiy was i^ivcii in con- !S('(nu'ii(,'c. r>. iicgalivi'd tliat tiic S'J were paiil hilii for his vcitc and II. said tliat lie .'~u|>|)i)Sud it was a diillai' hill and told l>. tu ^'i> ni d ticat the 1mi\s willi it, and that it was not i i^'" on iieconiit of any iduv'.oiis ]iio;iii.se or fur h.is lia\ in)^ Voted. The I'otirt (llardnian /■. iiiulht. I K. ( . 3'-*,) a (|Uo lield that nnne of these ael.s eonstituted eoriupt ai.ts so as to avoid the election. On ;i|>- jiLSi! to the Snprenie ( 'oiirt of Canada :- Held, ]ier Kitchie, ('. .!., and Henry and 'I'ascherean, .Id. — 'I'iiere was sullicient evideni'e of ll.'s ayeney, hut it was imt necessary to decide thi.s [loint. I'er Stron>;, .1. -'I'he'.'c was no proof of H.s aj,'eney. .\|,'eMcy is not to he |jrrsnnicil from t'.e fact that the lespondent |)ermittid H. to canvass li. in his presence. ;ind theie is an entire alisence of proof of any sulliciciit authoiity to II. to liind the respondent liy his acts at the polling,' place in the niattils of trc.itiii;^ and tlie payment of the .'irilJ. I'er l''ournier. .1.. tliat the treatini; of ]{. (jn polling day, liotii liefoie and after lie had voted, hy H., an aL;ent, .and the uiviiii; of the tiiiin of .yj immediately aftei' iu' had voted, were corrupt acts sullicient to avoid the election. ir('.-.7 Xiirlhiniil" fliiiid K/'flioii {hniii.)— lit tiilcr- sun it III. v. (Iiiillii. 10 S. C. K. (;;{.■). , 'I'ho payment hy an agent of a sum of .>, hecaiise, lie said, he was sick an, hut on R. [ilcilging his word tiiat it liad nothing to do with iiis \(itc. I!, told T. . another voter, tliat if he wantecl .«. -Cnir V. ^■„.,/, - la •A. Ti'ulhi[i. Jli/ C'liiii/ii/iiii A ies|i(Midcnl during his canvas and on tl ■■ saliu^ evening that a piihlic meeting w.is held f.ii tile purpose of promoting the election treated ,1 niimliei' of persons, many of w lupin were votir^ ( ollccti'd in a liar loom. It was shewn tliat i' was not the respoinlents general liahit to tliit and all persons Were invited to drink, and tha he had not treated more than twice or (leiliap^ tliree times during the canvas : — Held, lint a corrupt practice, and that in view of the ordiii;ii\ custom of treating in tin- country it might 1.. I'egarded more .is iin expression ol gooil feeling to those who were siijiporting him. \ort/i n,, t(ir!o Kli'itlon (I till.) -~ Tn li m; II v. Umilil, I V. ('. I. -liurton— (Isler. See Xnfth (intdriii Elecl'mu, ((hit.) — Tnl'H'-- 1 y. lloiilil, 1 K. ('. I. iii/'ra ; MiKlnht (i)ifl I'lii-ru •Siiiiiii/ Klfftiou (Out.) — I'tii/i t v. Fniiiiiiiir, I K ('. I'.tT. p. V.y.i : L'list Mli/ii/i:<,x l-'Ji'ifion «)„■.< i;iiiiiirr V. .i/.A'./c/V, I i;. c. "j.-.o, pp. 4!t;{, v.w (1>) llij A;i' nt^. See It's' A'urtliiiDilii r/tiiiil K!' I'tinii {I>ii,. ) III lull i:head L\'. ,S (d), p. 49:i. (c) At Mfftimj". .\n association foiniecl " for the greater dif fusion cif liheral principles and tlie social ciiil ii: tilleetual improvement of its meinliers." heii.i; prevented hy an accident from meeting at tin- town li.'ill, held a meeting, in a tavern, and u.i- treated hy the resiioiident :— Held, not a nu-ct ing of electors within s. I.")l of the .-Xct. Surii Uiitiiriii I'JUrtioii (<)iit.)-'-Tri'linviii v. (JovJil, 1 K. ( . 1. -Hurton— U.sler. I'er Hurton, .1. A., under the present enact- ment in R. S. (I. c. !0, s. l.'il, it need not li.' shew n that the meeting in tineslion was asseiii liled for jiromoting the election of the candi.hiti- fninisliing the entertainment, hut the meetin, referreil to is a meeting assend>led for the pur pose of promoting the election of a represent i tive of the electoral district. I'er (ialt, .1. li' fieshment « as not furnished to the meeting whil'' it was assemhled, and therefore there was ii'i otreiicc under It. S. (). c. 10, s. I.")l. The hk ct ing was to all intents ami purposes at un ciiii. and moreover, even com eding the cor' upt ait. it was done in ignorance, which was in\ olunt.ii\ and exciisalile. .V"/|'hj/v. 'il " till' thi- greater dit h's jiihI the scicjal i.nd ii'. ipf its imillliers. ' licil;;; •lit fi'Diii iiicctiiif,' at thi' iiLi ill u taverii, and «,i- I'lit : — Hidd, lir>t a Iiici t 151 of the .Act. .Vi'i'ti -Trfkai'iii V. (joul'l, I r. iiiilur tlic present eiiu't- i), s. I.'il, it need not \f ill iiiiestioii «a.s a.sseiii eleetioli of tile eaildicla!>' niiielit, luit the nieetiii^ ,' asseliitvled for the pur .■lection of .1 repre.scnt.i- hict. Per (;alt, J. IN shed to the meeting wliili' therefore there was ii'i '. I(». 8. l.')!. The iii.tt iiid purposes at an iinl. 11 I'dillg tile cor ll|lt iict. ■, wliieh was in\ oluntan (( iiiii/ Piirri/ Siitniil /,'■ tiii/iii' r, I I'',. C 11)7. Feliruary l.'tli, tin lu >y a convention of lii* te. (In Feliruary '_'.'!ii'i L'hl liy him in a room li wa.s colli po.sed of ahoiit eloiigiiig to the op[iositi' rmuii \va.s appointed ami 4:i;5 PA RLIAM KN 'J'AllY KLECTIONS. HM tlic respondent addressed the meeting, as did (itjic'i's also. .-\s soon as the proceedings closed i, ('., \v hen the speaking \v:i.s over, nearly /ill |irisiiit crossi'd the li.ill, ,ind went into the li.ir- lu'iiii. 'I'lie respondent forcnwi-il, first invitiiiL; the ;e« >vli.. remained to join them, .ind then in tlic Iparrooiii invited them to drink, wliii'h they ,|id. he paying for the liniior. On l-'eliriiary '.'Ttli the noiiiin.itioii took iil.icc, .md the polliii;; 1,11 March l.'Uh : Held, at the trial ami hy the iiiiirt ol ajipisil, (iait, .F., dissenting, that this Mas a violation of H. S. < i. c. 10, s. I.'il. Per llaguty. ('. .F. (».. anil P.iiiton, ,1. A., N. S. ( ». I, 10. s. lol, refers clc.irly Ui a meeting of vh-r tnis. whether the form.ilities ot a|i| ointing ;i ■liiiiinan or secret iry Jire oliscived or not : - llelil. also. (i.dt. .1., dissenting, that though the ;irt of treating ;i|ipe:ired to Icuelieeil eoMiniitted ill ignor nil !■ that it u"is a violation of the statute, iiid it did not appear to have lieeii committed ill .■111 igiioiancc which w;is iii\oliintai y or e\- (■IH.llllc. //i. i 111 dilTcri^nt oi-casions a few ineiiiliers of one of n-:)ioiiileiit's local comniittees met together i,t (lill'ereiit taverns, to go over voters' lists and .ir- niiL'c as to iloulitful votes, ,iiid on each oi'cision li.|iior w.is fiiriiisheil to the ciiinniittei' iien thus iii^aged. at the expense of dilVereiit .igeiits of re- spondent : -Held, pi'r Hoyd. ('., that such com- iiiittee meetings were not "iiK'etiiig.s of cli^ctors" within the meaning of s. I."il ol the .Act; ]per ( imcroii, ('. .F., tli.'it.s. 1.">I was specially directed ;ij,iilist the trciting of such I'omiiiitfee meetings. (Ill aiipcil : Jfeld hy the court. Patteismi. .1. A . dissenting, that such meetings were within tliM nieanili!,' of the section : Held, at the trial, ]»r Hoyrl, ('., and Caiiieron, ('. .1., that |)articu- liri and evidence shewing the furnishing of liijU'ir to such inectiiigs of committeis, were ad- iiii-sililc under the general allegation of the peti- tiiiu, that respoMileut hy hiinsclf and his airents li;id lieeii guilty of "treating. " A'^rv' .l//'/.//c.v. /■ I'JI'-rfio,! {n,i/.)—R/inirnr\\ MrK'-ir.i''. 1 H. ('. '2.")0. .\ meeting of sonic thirty-live or forty electors had asseinlileil for the purpose of |iroiiiotiiig the ckction. Hiiring a meeting an agent of tint re- Npiiiideiit went into iin adjoining room with four nr live friends and trcati'd and was treated hy tliiMii : — Held, hy the ( 'onrt of .Appeal, not to he ;i fiirnisliiug of entertaiiiineut " to a meeting of I'U'itors a.ssemliled," &c.. under si'ctiou l.")l. I!. S. (). e. 10. F'er Osier, .1. .A. The i|iiestioii must alw lys lie, whether the entertainnicnt has lic'ii furiiisiied to the giMieral hoily of the elec- tills composing .such meeting, whether heforc, iliiriu!,'. or after the hiisiiiessof the niei^ting. and MJiilc as a liody such electors rem.iin together at the ]ilaee of meeting or elsewhere. I'r''.i {()iit.)—('iiiniii)iiliitiii V. //ii'iiii-. 1 V,.C H8. ^ee rri'itriill Klorlhi'i {< hit.\ -<''iini>iii'ih'iiii v. U':Vii\ I v.. C. SS, p. tSO. (d ) Ol) nail nf Pii/lhiij. Section 1." acts in tic man.lgemelit of the elei^tion the respondent Uiillld he .lllsWerahle. when some election Work \Vii< done, hut it was not shewn that lu' hid e.m v.issed except in this )iarticiilar case, or that he was a nii'inher of thi> committee, and he swore that he w.is not asked to do .'inv work On the ]iolling (l.iy he w.is actively eneaged in driviiio voters to tile |iolls in his own c unvevaiie ■. whiih he said he did as a iiicre volniit( er : Hi 1 I. that the treiiting was a i'orru)it act, hut tliit S. 's ;i'_'eliey « as not proved. Xuflh Oiilnr'io I'Jti'thi)! I'll,/.) ^r,;-/"ir,ii \. i;,„i/,/, 1 M, C. 1. !;iirt,,n — Osier. S. I)eiii'_' an agent of the respoiideiit. on the election day hrougllt some whiskey to.ihlaek- siiiith sho)i near a |po||. heing a pl.ice wln^re the iiei_dilioiirs were 111 the h aliit of conireizatinL: to warm themselves, iVc., there heing iiotiverii or |iulilic house in the iieighhourhooil. .■nel ti'e;iteil tho-^e present linos'^ of tlieiii lieiiii.' Voters! without reference to their voting, and without distinetioii as to \\ iiicli side they supjiorted : Held, not .i eorril]it |iraetic<^. Lnni'ir Elfliim {lliit.\~M',l,.i V. A'oe, 1 K. c. 41. It .llipe.ired ill the evidclic" that at the pl.iee of poUiiii; the rcspouileiit's liriii had ;i house in coiincction with their mills, where their work- men were hoarded, and when? the respondent himself hail rooms. \ short time hefore the election. Mrs. J!., who h.id formeriy liecn house kcejier of the said house, had hccoiiic tenant of it. or W.is allowed to oeeupy it, and li.ive the use of the furniture, and w;is p.tid a certain sum per week or month for (■■•ich man hoarding there, and a sum ]ier day for casual hoarders, and she \\as in this position at the time of tint election. (In |iolling (hiy. }f . , a nejihew and })artiier of the respondent, who spent the day at the polling place. t(dd voters that if they went to the said hoarding house they could warm themselves and would find dinner if they wished it, and meat and drink \\as accordiiiL.dy caused to he given to the voters at the hoarding house hy H., wlci wis clearly the respondent's agent throiiLfhout : Held, at the trial, that the voters liaviii!.' come to the place for the pur|)ose of \dtiiig. and th.it heing their errand there, and the "lection heine the occasion on which the provision was iiiade and the hospitality extended to them, the .let in question \v .is done on account of each man so entertained "haviii!.' voted or heing ahoiit to vote," and iiiasmucii as it Mas impossihle to say that the result may not have heeii affc.'cted hy the ahove olfer of lios)iitality. 1-t. S. O. c. 10. s. l.")0, the (dection would have lieeii void hy reason tiiercof under a. l.'i.S. had the matter heen pro- perly charged in the petition ;— Held, however, that the evidence did not show that the corrupt act was coniinitted with the actual knowledge 49r) PARLIAMENTARY ELECTIONS. 490 "was ■■ « as 5 >< «»■ « ••'SB * He ^ and consent of the resjKindent, and tliercfore he had not inclined tlic penal con8ei)uenL'eB of K. S. (). f. 10, s. Mil. II fW Simciif Ehrliim (Vnt.) — linlfonlw. /-h !,,.■<, I K. ('. I'JS. .See UikI XortliHiiilitrliiHtl KlictiuH {/)iim.)~- J/imlir.viii it y any intention to inlluence the conduct of the voter, and alleged that the bet was made as a sporting bet on the s|)ur of the moment, and with tiie expectation that, as he saiil, I'arker would warm up and vote; but he also admittctl in evi- dence that it passed through his nundthatsomeone on tlie voter's side would make the money good it' he voted. I'arkersaid he had formed theresolution not to vote before he made his bet, but the evi- dence shewcid that he did not think lightly of the sum which he was to receive for his not voting, ■ his answer to one ipiextion put to him being : "Oh 1 I don't know that bi'i wouhl bean insult to i any one not to vote:'' --Held, reversing the judg- i ment of the court below, (1 E. 'J. .S2, ) that the i bet ui (juestion was colourable bribery within the enactments of sub-s. I, of s. ((2, of the Dondnion Klections Act, 1H74, and a corrupt practice w Inch ■. avoided the election. lies/ Surlliiuuln'rlninl \ Khvtiun, (I hull.) — Heinhr.'ion vt at. v. <>'nilli't, 10 S. C. J{. 03."). 5. lidimidation. In an election jjetition it was charged that the respondent ])ersonally, as well as acting by C. A. C, 1*. 1). and others, his agents, did under- take anil conspire to impede, prevent, and otlier- wise interlere with the free exercise of certain voters, and that, in furtherance of a premeditated scheme, which the lespondent and his agents well knew to be illegal, they ilid, in fact so im- pede, prevent, and interfere with the exercise of the franchise of certain voters, by getting their ballots marked, rendered identiliable, antl conse- (jueiitly void, whereby the franchise of these voters was unjustiliably interfered with. At a previous election the respondent had been de- featetl i)y a majority of three votes, and the elec- tion, having been contested, was set aside, and certain voters were repotted by the judge as having been guiltj' of corrupt practices, under sec. 104 of tlie l)ominiun Idection Act. At a public meeting before the election, C A. C, the respondent s agent, to intimidate these persons iiiul prevent them from voting, in a speech made by him, threatene. I E. C. 41. 7. lliruuj Couvfii/uiiCM. Held, by Patterson, J. A., and Ferguson, .1., that what is referred to in R. fS. O. o. 10, .•*. 154, is hiring vehicles to convey persons witii the intention of their voting, and the ([ualilic.i tion of such persons, or their right to voti'. i= immaterial, whereas s. loS requires persons time in referred to be voters. MioskokaaudParri/Suini'l Election (Ont.)~l'aijtt v. Fauquier, 1 E. C I!t7. The hiring and paying of carters Ity an aj,'! lit to convey voters wlnuire known to besupportii i of the agent's candidate is a corrupt ])racti(,T. Selkirk Election (l)oin.)- -Young c. Smith, 4 ."^. C. K. 404, followed. L>ri.sEltriion(Duiii.)-lli- ii'uu V. Di.:s.-ii;uU, 11 ,S. C. K. 133. 8. Giriuij Hailwaji Passes. In appeal, four ch.i^ges of bribery were relied upon, three of which were dismissed in the Court 490 A, (;., nnil on his liiiii, marked the te tl ii'M : -Hel.l, tlint nsA<'t,l,S74,aiiil in ly of the men hail tapjiuiir that what ated t() any voui, Ithereljy:— Ihhl. was not provcil, hi V. JJntri/tl III , ed notice of di<- was informed hy mucli in tlie elii. ngljeen sent aw ay 1 charged that (', 8 having voted at ; cluirge wass in it .vov. canvassers in In- d, not a corriijit /.)—Milen v. y.'..., nets. .nd Ferguson, .1., .. S. O. c. 10. .-. vey persons w itii Mui the quahlii a right to vote, i; res persons tluii- imid ParrijSuiiiid uiei; 1 E. C. lit:, rtcrs hy an ai,'int 11 tobesupjioitii ■ corrupt prautiir. iig r. Smith, 4 .">, ■lioii (iJuia.j —lit'- 13. amen. ihery were relied issed iu the Court 497 PARLIAMENTARY ELECTIONS. 498 below, becau«e there was not sulfieient evidence that the electors had l(cen bribed l)y an agent of the camlidate ; and the fourth charge was known IS the I,.am!irche ca.se. 'I'he facts were as follows : One L., the agent of ('., the respondent, gave to icrtain electors enij)loyed on certain steainlmats, tickets over the North Slmre Railroad, to eii.ddi- them to go without paying any fare from .Nbuit- real to Herthier, to vote at the Berthier election, the voters having accepteil the tickets without ,iiiy promise being exacted from or given by thein. 'I'he tickets showed on their face that they had been naid for, liut there was evidenee I,, had received tliein gratiiitoii.sly from one of the officers of the eonii)any. The learned jud^'e who tried the case found as a fact that tlie tickets had not been paid for, and were given uncmi ditionally, and, therefor held it was not .icorruiit act;— Held, 1. (Fiiiii.) -'Hfiin'i it.r > I III. V. Cnthh/rt, 'J S. C. IJ. !(!•_>. Tlie obtaining by an agent of a candidate from the jiresident of a railway comiiany six passes, for which nothing had been or was ever intended to he paid, three of which were use., c. 10, s. Ifil, by reason of respondent paying or consenting to 'he payment of the travelling expenses of certain voters to ccuivey them to the poll ; but ilitl'ering in their judgments as to whether the respondent was guilty thereby of a corrupt practice under said 8. Ifil. ( 'anitTon, .1., reported that respondent was proved guilty of said enrrupt practii'e ; and Uoyd, ('., reported that the said respondent com- mitteil an illegal act under s. I.'i4 in sanctioning such payment, but without any corrupt intent, ami in ignorance, which was involuntary and excusable, iiniler a belief that as long as he did not personally bear or pay the said expenses it was not illegal, ami uinJ.T the fullest belief that the said voters were bound o"' were w illing to repay the said expenses or allow them to be ile- ililcted from their wages, .\ siibseciuent election took [ilace oil KSth .January, IS84, when respon- dent was electeil. A petition was tiled attacking his election on the ground of the prior disiiuali- ticallon of the respondent: Held (I'attersoii, •!., dissenting), atiirming the judgment of the tri.il judges. Burton, .1. A., ami (Jalt, ■)., that the timliiig that the respoiidi'iit was guilty of a cor- rujjt practice was correct : ami th.al he was there- fore iiersonally disiiu.iliticd ; and as there was not a concurrent lindiiig that he caiiu; w itliiii the relieving clause of s. ItJ'J the disijualitieation was not removed ; and that the amending .-\ct 47 \'ict. c. 4, s. 48 (Out.), which w.as ]iassed on "i.'ith .March, 1H84, ili <5> Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. M580 (716) 872-4503 •^ •1>' \ iV N> '"'^ ^"^^.^ ^'^\^ ^ lie: It ■> l< >' -III , I K. C. 250. Held, per Boyd, C, that inasmncli as i-espon- dent's ))crsoiud expenses had not amounted to . i?100, and as, during the canvas, although ho had treated friends, lie had not done so to any ! gieater extent than had previously lieen hishaliit, ' neither his personal conduct du'-ing the election nor the abscice from the trial oi one of his chief ngeiits, against whom considerable sus|)icion was raised hy the evidence, ought to prevent the court i from aj)])lying the provisions of sec. I5!t to the ■;i! "uii.-tanees of this case. Held, per Cameron, ■ ' -1., that thfiugli notliiiig corrupt or unusual was proved as to respondent's expenses or treating, he hu r.t properly returm-d his jiersoiial exiieiises, ai. . ,...' circumstance, coupled with the keeping O'.',. f e way at the time of the trial of one of !:■■■ hie', agents, should jireveiit respondent re- c-;i • Mg 'die henetit of sec. 15',) of the Act, and the eleeti-'i. should he avoideil. (In a])peal : — Held, Osier, il,A., dissenting, that upon the evidence the election was saved under the provisions of sec. 159. //(. At a jiolling suli-divisiou, through a series of mischances, and without any wilful default of the oifieials the ]ioll was not ojiencd till hetwcen half-past one and two, wherehy it was charged a number of electors were de])i-ived of voting. The jietitioner failed to prove the charge, while, if the onus of doing so were on the rcsjioiident, he shewed there was amjile time to poll all the votes at that suh-divisioii, and all who desired to vote could have done so ; The sup))ly of hal- lot pajiers at a polling sub-division, through a blunder of the oHicials, ran out, and, while waiting fr)r instructions the poll was chisjd for half an hour, whereby, it was charged, .some seventeen voters wei'c ]irevented from voting ; but as a matter of fact none of these voters w ere luojudiced thereby ; the deputy-returning of- ficer and subordinate oHicers at a polling sub- division, through improvidence, but not m.ala fitle, did not make the declaration of secrecy re- quired by s. 1-^7 of I{. S. 0. c. 10 ; but the result was not affected thereby ;— Held, by the trial judges, I'oyd, ('., and Cameron, J., that as these grounds of irregularity did not ]ierse affect the result, they came within the protection of s. 197. and did not avoid the election. Kn.sl Siinror Elertiou (Ont.)—]Md v. Druvn^l ,il., I K. C. SOI. Boyd, C, that though the acts of the agent in this case were clearly corrupt acts, they did not avoid the election as they came within the jirotectioii of s. 15(( ; and per Cameron, .!., that they did avoid the election, as they were iiot Mithiii the said protection. Per Hoyd, C. - The scope of the section was that an election should not b(; set aside for two or three ilU-L n acts of a trifling nature oi' extent, where th majority is considerablj- more than the v(.ti> affected, unless these illegal acts and practi.i- prcvailed, and were so influential, extensive lui.i insidious, .is to induce the ]irobable ••ind reaMU, able belief that but for such acts aiul ))ia(t:'- the result might li.ive been different, while inn. after striking otF the eorru])t votes, tlu' res|i(i. (lent would still have a majority. Per CaiiHii.!;, J. — '{"lie extent of the iiiHuence of the corni;; acts is not to be measured or estimated nieri'ly by the nuinber of corru])t votes, but in coiuii. tion with tlie influence of the jiarty jiroved t^ !- guilty of its commission, and liy the op)iortiiii!- ties he may have had of resorting to like )ii;i> tiecs in fither cases. On appeal to the Court -: Appeal: — Held, afH lining the finding of ( 'aiiuiiM.. J., (Burton, J. A., dissenting,) that the enmi];; acts did not come w ithin the protection of s. l.V.l. and therefore the election was avoideil. /', Irregularities at nomination. See /iW>V ,*>'('/," /■:/,',■/;, 1)1 (Oil/.)— I'('iueeirs Beiicdi division, and tiled ami >■]. tered in the books of that oflice. A preliniiiMiy objection was taken t'lattlie High Court of lu.- tice hail no jurisdiction : — Held, (Henry ;ii:'i Tasehereau, d.I., dissenting^ reversing the juili; ' meut of Cameron, d., 1 O. R. 4:W, that the Oiit;i rio .ludicature Act, ISSI. m.ikes the High Cmiit I of Justice, and its ])ivisions, a continuation '■; the former courts merged in it, and that tlii'v- courts still exist under new names, and that ti;i' ! jietition had not been irregularly entitled iii'l j tiled. Mitrli,-n V. Cdwrroii, 8 .S. C. 15. 12(3. 1 An alleg;ition in the jietition "that the n- I pondent was by himseit, I'^c. , guilty of corrii|i: ]iractices as defined by tlie Controverted Kliv tions .-Net of (Mitario" sufficiently charges th' coniniission of coriuiit jiractices under sees, l.'i'.' and 15.3 of the Election Act, R. S. O c. 10. A'o.'i Oiifiirid Klfrthot ((hif.) — Trelcoren v. (toiihl. I \ E. C. l.—Burt, ) or thre(> ilUv r, xtent, wIrmc til U tlliUl tin: Vnti. L'tS and ]ir;uti,>- :ial, <■xtell^^i\•l■ aii.; ihalilc and i'(;imi|; K'ts and ))iiiii;i , . X'l-ent, wliilu luri. votes, tlic rt'siir I, y. Pet- CaiiKii'dii, ice of the coniiD; estimated nieri'ly L's, Imt in efmii'r. larty jiroved tn i. by tlie (>p))(irti!n!- ting to like |!i;i, al til tile ( 'oui't ■ ; iiding of ( 'aiiieidi.. ) tliat tl\e cuntip; •otection of s. l,",ii, IS avoided. /'. See h'list >■/■;,' '/"/., 1 K. ('. ■.'!i: 'hit.) — Trraha. i;i> E[,KCT[i : the election ;u, ; ititledin theHi-i. leh Division, ,-it)('; -■liarge of tlie otii. ■ and filed and ii. e. A prelinnii.iry Figh Court of .lu.- eld, (Henry ;iii'! cversiny the jmii; X\ that the {)iit:i -'S the High Court a continuation .,; t, and that tlio- ines, and that th'' arlv entitled rii'! S. C. It. Vl{). n "that thens guilty of corrupt (introverted Klc jntly charges tlii- ;s under sees. 1.")'.' S. c. 10. y,„'ih aren v. Gould. ! hil.)~lifilfi,ri! \ iiculars deli\err: it with giviiiL,' "' :, and refieshniriit ount of their h;n ;e, l)eiiig a Cdrnii't s, 153. The pofi arged that the iv atid after tiie sail 1 liy other iiersmi- ractiee.s as detiiid! Act of Ontarifi, the trial, tiiat thi- 501 PARLIAMENTARY ELECTIONS. r.02 ionn of [letition wa.s objectionable, ])eing hardly leLoiRilable with the intention of the legislature ill requiring petitioners to tile an affiilavit with the ]ietition stating that they have reason to be- lievi' and do believe the statements contained in tiie petition to bo true in substance and in fact, jiiil, moreover, the charge being finly by refer- ence to a statute, the affidavit in such case couhl only lie intelligently and honer.tly made by one wild had iuformed himself of the provisions of tilt statute and applied to them some detiit'tt , instruction, ami in any event the cleponei. Hiiulil only be swearing to his own construction if the statute, without stating what that con- •tniction was: — Held, further, that iiuismuch as ■corrupt ])ractices,"' so far as defined at all l)y K. S. (). c. 11, were declared to mean " bril)ery, treating, and undue influence, or any of such I'tfeuces, as defined by this there might be extended upon the face of the jn'tition every offence covered by the description I'l'ilefiuitioii of corrupt pnictices contiiined in the ( iiiitroverted Elections Act of Ontario, and yet there would not be amongst them any charge iiU'ler sec. lu."} ; therefore, the petitioner could I'.iit succeed in ii voiding the election upon any cliiirge under sec. 153, as he sought to do here, unless allowed to add it by way of amendment to his petition. On the cross-appeal of the peti- tioner on this point no judgnieut \v;is given, the ilisposition of tlie respondent'sapjieal renderhig it inmeeessary to do so : — Held, further at the trial, that such amendment could not be allowed, for I!. S. O. c. 11, s. i), sufficiently shews that the umrt has no jurisdiction to tiUow such an amend- iiieiit, notwithstiinding sec. "2, sub-sec. I, ;ind sec. W, (if that Act, as does also the reipiirement of an affidavit under sec. 11. Maude r. Eowlev, 1.. R. 9 C. P. Uj."), followed ; He Election for the Kleetoral Division of the County of Monck. H. E. ' . 154, 3'2 g. P.. 147. distinguished. W'fM Siniroi' i:k<-th>n (Oitf.) — /l>"//iiri/ V. Philp", 1 i:. C. I'Jci. 5. Evidi'.nci'. 3. Ami'.Hilinint. See Wflfst SiiDCOf /"Jifrfhiu {0»/.)—Hi''/f'oril v Kiipra Phlp.^,^ 1 E. C. l-.'S, l-'rin FJectinn [Onf) I'. 195. See also Suebec, sitting as an election coiii't in the LTslet case, Duval i: Casgi-ain, 1!) L. ('. .Iiir. Ifi, that the onus probaudi was on the res)iiiiidriit to supjiort sHidi olijections. On ap))e:ii to the .'Supreme Court of Canada, Fouriiier, Henry uiid (iwyiiue, .Id., were of o|)iiiion that the (inns pr' ifr.,, '! *'• M «i» •■■ »,, 504 long as he did not personally bear or pay the said expeiiwes it was not illegal, and under the fullest belief that the said voters were liounil or were willing to repay the said expenses, or allow them to be deducted from their wages : — Held, that under the Act in question, K. S. O. c. 11, the judges must concur in finding that the respondent had been guilty of a "corrupt practice ;"' and that there was such concurrent finding here ; tor al- though the liiiding of Hoyd, C, was that the act was an " illegal act," such illegal act, under sec. 2, sub-sec. 6, is made a corrupt act : and that the respondent was therefore disqualified ; and that as there was not a concurrent finding under sec. I(j2, such disqualiHcation was not removed ; and that this was not affected by the Act 47 Vict. c. 4, s. 48 (Out.), as in this respect that Act was not retrospective. Renfrenj Election (Out.)— Harvey v. JJowtiny, 1 E. C. 70.— Burton— Gait. See 48 Vict. c. 2 (Out.) Per Osier, .J. A. One joint report of the trial judges under the hands of both is not eL'sential ; but there may be two separate reports each under the hand of one of the jumplained of were alleged to have been com- mitted, and in order not to endanger the sue- \iess of that petition it w.as deemed advisable not serve the writ until that petition was dispos- \t\ of, which, on account of objections to the [jiidsdiction, was not tried till the 10th October, h83. He also deposed that at the trial of the [election petition an Jipplicition was made for a summons against the defendant under .39 Vict. c. 9, to have the penalties for bribery imposed ;|)on liini ; and that ' \e application was not dis- d of till the 23rd November, at which date iiiejudi.'e declined to interfere : — Held, that such delay as would not expose an ordinary suit, to ilismi.ssal may be fatal to an action under this kl, under the special provision that such an adion shall be carried on without wilful deluy : -Held, also, there had besn wilful eared that the applieant hail \>\ anothei' pi'oeeediiig olitained the ught to havi' lier dower assigned out of the lands, the apjilieation was refused, with costs. Jli. II. I'llACMlK. Kalcb by the coiul oi real estate held in co- tenancy arc governed liy the provisions of the Partition Act, It. S. O. c. 101 ; and masters should not, without ain special or sutlicient reas(iii.5, dispense wiili eiiijuiries and advertisements for creditors holding special or general liens iijion the wluiiC (U' any undivided siii'.re of the estate, hut should ascertaiii and rcj.'oi't what encum- hrances ail'ect the property, or any undivided share of the cstati', do\\ n to the time of sale, aiid iKit merely at the time when the (jrder under ('•. U. Chy. ()40 is made. J:ol»:vii v. li '>.^uii, lU 1'. H. 3'24.— lioyd. When proceedings for a [lartitioii in a County Court have terminated hy an (jrder c(uitii'ming such partition, and nothing remains to he done liy way of entorcing the judgment, such judg- iiicnt cannot afterwards he imjieached on the grouiul of frauil or dece; tion on the Court other- wise than in resisting an action in which it is relied on, or hy liringiiig an action for the express pur[)ose of setting it aside. Juiki/ni v. Jinkiiin ttul., 11 A. H. It--'. I'ower of master on a reference for jiartitio . .r sale of lands to try the validity of a lease, or a tiauduleiit alteration in a sealed instrument. See A'c Ji'iitjrrs — Ji'vijcrs el nl . v. Ro-jtrs cl al., 1 1 1'. U. 'JO.' 111. EfFIX'T OF .lUDU.ME.NT IN pAKTIUON. fSee Vila W-hur I't ill. v. lliuihsun, 9 A. K. 890, p. •242 I'ARTlSEllSHir. I. Part.nkrsuip Contract, 507. II. LlABILITV OF TaUTNEIW. 1. On BilU or Notes, 509. HI. Actions foh Paktneksiiip Accounts,510. IV. Parties in Actions — Se^ Pleading, V. Executions Against, 510. VI. Death of Partner, 510. VII. Miscellaneous Cases, 510. Vlll. Partnership and Separate Creditors — Ute. Bankropi'CV and Insolvency. I. Partnership Contract. M. & a. met and agreed to jointly purchase 150 acres of laud and to sell it in lots, or perhaps en hloc, to a symliuate, if one could he got up. I'.oth parties knew that others were interested under each of the two princi|)als. M. had one- third intei'cst and C. had iwii-thirds. No .syn- ilicate was got up to take the whole, and (.i. telegraphed M. that he was going to arrange- , syndicate for two-thirds, and lie formed asyiuli. cate ot eight [lersons, of whom he was duc, tol jmrchase his tw(j-tliirds interest, and olitaiiad ,J large jirolit tliereon. This arrangement \mi made in writing, and recited that (i. was .'icisi.ill ill fee of the lands, and had executed a decliiia.l tion of trust of one-third in favour of M.. aii.l| "executes this declarati(jn as to the leniaiinii; two-thirds.' A (juit claim deed was afterwiucj executed by ^I. in favour of Ji. , and a declaratioiil of trust as to (»ne-tliirtl in favour of .M., w^jj signed by «!. In an action by M. for a share tifl (i.'s jirotit, it was ; — Held, that there was iklsuIi'I of any of the lots that belonged to M. The tWu-F thirds had not been disposeU of so as to pass oinl ol the partnership, though as to them tlitiuj might be a suli-partnership ; there liad been nol dealing with the joint jiroperty of the ijartiiir- ship, but only of the individi.ial interest ol oinj paitiier; he had sold some portion of his indil viduid share and no injury had resulted to iiiJ partner, and even if any had it would be noinoitl than one of the inevitable concomitants a*'.eii(liiiitj upon the riglit of one member to d d as in j pleases with his share of the partnership concern. I The action was therefore disniisseil, with cdsts.l Mitch, U v. r,nUij, 9 C). 11. KV.I.- Doyd. Al- lirnied, 14 A. K. 55. The respondents having on hand laruc c(iii tracts to lullil, entered into partnership «itli the ap])ellant under the style of .1. \\'. iV Co. Tln- resixiiRleut A. 1'. M. subsequently tiled a hill in ( 'hancery against \\'., the aiipellaiit and his twn Sons copartners, asking for a deci'ee decliiriiig him and his two sons entitled to receive creiiit to the amount (jf 5!40,000, the estimated vaiue i>f certain plant, etc., used in the cijnstriictiun of the wortvs done by the partneisliip. '1 he ai- ticle in the deed of partnership executed betdri; a iKjtary public m the province of t^uebec, uink-i which the respondent claimed to be entitleil t" credit of ;i<40,000, is as follows : " The stdck "i the said partnership consists of the whole of the plant, tools, horses and appliances now used fur the eonstructiun of said works by the said par i ties of the first part A. P. M. & Sons ; alsi' all i quarries, steam tugs, scows ; and also all tk rights in said quarries that are held hy the saiJ parties of the hrst part, or any of tlieni, the whole of which is valued at the sum of ■'J40,OOU. and is eontaiued in an iuventory thereof lieit- uuto annexed for reference after having been signed for identitieatiou by the said parties auii notary ; but whereas the said plant, tools, lioises. appliances, steam tugs, scows, quarries and dthi' items had been heretofore sold by the said purty of the first part to the firm of M. & W., of thi city of Montreal, hardware merchants, lo secure them certain claims which they had against the said A. 1*. M, & Co., for moneys used in the construction of the works referi ed to, to the ex tent and sum of about !i>24,000 and interest ; aiiJ whereas the saiil J. W. has paid said •■imouiitoi $24,000 and redeemed said plant, tools, horses. and appliances, and ipiarries, steam tugs, ami scows, iVC, and .low stanils the proprietor uf the same ur.vier a deed of conveyance ; it is lien-'h.v ' Well agreed and understood that the said phmt. • tools, horses, and appliances that are or may he i put on the .-aid work shall be and i-ontiniu' t" I Ite the cutir-e pniperty of the said .1. W. until I sucli time as he sliail have realizcel and receiveil m PARTNEUSHir. 510 going to iiiiaiige he lornifil a .syiuli :)ni lie was din-, t,,| •st, uiul olitaiiioi ai'raiigenient mih| tliat (i. was M_iM.,l ■xei'iiteil a (k-tlaia- favour (if M., .iiil * to the reiiiaiiiiii' ;e(l was afttTWiiiuil , mill a ileelaiiitioul favour ot M., wiij] y M. fur 11 shall- III ,t tliere was no suli-i (1 toM. 'I'he t\v uf so as to [lasH (iiitl us to them tlieii; there had lieeii ijol ■ty of tlie iiartmr- rial interest of one lortioii of liis iiidi. uiul resulteii to his t wdultl Ije no inoit oiiiitaiitsa''t,L-ii(laiit her to il il as lit irtnership eoiairu. niisseil, witli custs. i:V,l.- lioy.l. Ai- 111 liand hirge cdii- irtueisliip w itii the .). \V. & to. Tht eiitly tiled aliill in reliant and Ins twn a decree declaring I to receive eru'lit le estimated valui II the colistruetidli tiieiship. '1 he ar ij) executed bufurt :e of (.ijuebec, iiinld I to he elltitleil I a : " The stock "i of the wliole (if til mces now used fur s hy tlie said jur & Sons ; alsii a! and also all tin held by the sai'l any of them, the e sum of $40,000, tory thereof here- liter having been e said parties auii )lant, tools, luirsfs. quarries and nthi' by the said partv M. & W., of tbf rehants, lo secure y had against tlic neys useil m the ri ed to, to the ex ami interest ; anil lid said mnouut oi ant, tools, liorses, steam tugs. Mil i proprietor of the nee ; it is licieby at the said plant. Iiat are or may In- e and contiiiiic to said .1. W. iiiit i/.ed and rcciivt 1 f if the business and piolits of the present the idvaiice had not been for partliershii) pur- rtnership a sum sufficient to reimburse him of pose- d t i^-retiii'i that the other ilefeiuhuits d sum of .S-4,000 and interest so advaneeil were not liahlt .!/<•(' ,'ii V. n'lik-i i.sA. i; him as aforesaid, as also any other ■iiim or 4HS. ces anil interests which shall or may be ul or advanced to the present lirui or ]iartiier dter which time and event, the whole ot III. AiTIOSS KiiK l'AKI'.\i:il-iHIP AcUOfN'TS. il stock shall beciiiiic tlie prii))erty of the i.U ninii o I J . \\'. & ( ' tint IS to sav That lia If th if shall revert tn d beloiii' to the Action L'ki linst executor and suiviving partner S'_'ekiiig to set aside a rele ise and I'lr an account, ■irties o i the first part, d the other half ti See /iid'n v. /in S (). [I. -J.ST . I'he defendant W. acted as agent for his co- lifcUilants uiiiler a written agreenient that no [iTtiicrship should be created between them, or thi: parties held to be partners."' To all ap- [.irauce, however, \V. acted as a partner and I- such effected a sale to the plaintiff of a (pian- tty of wiue, &c., at ninety days' credit. Sub The fact that the plaintiff who had for soiiie years ajtcd as legal adviser of the defendant, was ap[iointeil one of the directors of tlcj railway com|iaiiy at the s.iiiie time that he claimed to be interested with the defi-iidant in the contract for the construction of the road formed no ground liir the defi-ndant refusing to account to the plaintiff for his share uf the profits of the cnter- pris Ih. See X<'d v. Park, 10 P. K. 470, p. 5.'}9. V. K.XHt'rTIO.NS AliMNST. Sale of an indivisible chattel on execution against a co-owner, ."^ee O'uiiii v. Bttrije-'n, 5 O. li. tJSo. Exeuution against the firm and against indi- vidual members of the firm. Priority. See Hank of Toniuti, V. Hall, (5 (). K. tio.'}. \'l. Dk.vtii ok Paktnek. Held, that a contract of hiring entered into with a firm by a eoinmereial traveller is ])iit an end to by the death of one of the partners. Bnvnet v. UoiJt it al., i) I). 11 10.— C. P. D. VII. MlSCKLL.\N'KOUS CaSF.S. In an action on a jiromissory note, one member of a syndicate cannot ask to have a contract set isiiU; by reason of misrepreseut;ition, the other members not asking for a rescission ; his remedy .tv oi w me, cvc, at iiiiiety ii.ivs cieiiit. ouii- , i.ii t- i.i^ri ^ ,, ,' r 1 i. 1 ■ 'lire i j must be by cross-action or counter-claim for de- -■luuiitly he applied to iilamtitl tor a loan of; •■ ^^ . m . .■ , , i ,, ii i r /» i> i.>i ' r'' ,, "^ ' 'i ^ . 1 i- i- - ceit. See Movri-mn el al. v. hniis, it (). K. 4,H. lii'iiicy tor the jiurpose, as lie stated, ot retiring ^ ii.itcs of customers of the firm, but which ho The stateiiient of one partner on his examina- the [ilaintilf he w.is desirous of concealing tion in a suit agiinst the linn as to transactions li.iui th'.! other dcfcinlants, his so-called p ii't- which occiured during the partnership binds all iifis. a id for the amoiint so b.irrowed he gave the partners, unless they seek, by an examiiiatiou til.' |iMiuit v. Ck'iaent (t al., 10 U. II. .'MS.-- roudfoot. .\ patent for a horse rake, the specilicrtiou of iiich dcscrilied as part of the invention "the instruction and novel arrangement of a divided le, witli wiiceis iirmly fastened tiiereon, a fric- 111 gri])c for engaging with tiie divided axle," ; tlie description ot the construction and ''ration stating tliat "the a.xle lieing divided itwo parts, permits the wheels to turn in oppt)- ;;t' directions ; a piece of iron or steel wire, or inl, or chain, is coiled round each iialf of the do, one end of each coil being secured lirmlj' the rake head, while the other ends of tiie coil ire secured to a foot treadle," &c. : — Held, not I be infringed by a rake worked by a strap issed twice m- ofteiier round the inner part of je huJj of tin; wheel elongateil for the |iurpose receiving it, one end of tiie strap being at- vhed to the axle, and the otlier connected witii ;ie treaille : — Held, also, that the mode of using iie cord was not novel, being essentially the »nie described in an earlier patent as consisting flexible metallic straps which encircle the ;;mer extension of the hubs, one end of each !!rap lieing attaclicil to a tixed bearing secured ;ithe axle, and the other to the short end of a •ver," &c. : — Seniblc, that neither the circle nor he coil was the subject of either invention, but I,.,- , . , Billy modes of using a friction band in connection .- '..PJ'll j' '1" :^^^ "til another device which was the patented im- provement. Per Hagarty, C. J. (). — It was not patentable. Sylvester v. Masson tt al., I'J A. K. 335. pie book.s unde. h; aited proceedings t claiming that thrii 1, and, on the hear obtained the reliei ppeal, 11 A. R. 145 ng th at al though th a by the act of th ent itself was voi( d not be protected curt of Canada :- he plaintiflFs nmlei as infringed by the defendant's books, Appeal should m hanccllor restored king Co. of Toronto I. 1 article known as the description of ore, gusset, or sec iged in groups and f coiled wire, " and on against the de ring a similar gore instead of contin- group to group of vire and connectei! ird: — Held, merely it, and that it w.is ever, that the suit- es for India-nihber »s a mere inecliani- libber, and that it invention, and .«'i latent. Ball et n'. ami ft ol.. !)(). R, 2 A. R. 73S. rain infringement and H. who had IV. Prior Use. Under the 7th and 8tli sections of the Patent .kt, 187-, persons who had acquired or u.sed one "r more of the patented articles before the date (ithe patent, or who had commenced to manu- iacture 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. The words in the Gth section of the Patent Act, 1872, "not being in public use or on sale for more than oae 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." Smith v. Uoldk, 9 S, C, II. 40. See Lean v. Huston, 8 O. R. 521, p. SIS. V. Rk-Lssuk of P.\rF.sr. Where to an action to restrain certiiiu allegeil iifringenients of a re-issued p.ateiit. it «as nb- ated by way of defence that the le-issucd patent 33 contained a combination not In the original patent or the a[iplieatioii therefor, ami was therefore invalid ; and it ap[ieaii'd th;it the com- biiiatidii in ipit'stinu was maiiifesti.'d in the draw iugs and speeitieaticius ot tlu^ original ii.ateiit. but by mistake and mad vertein'o was not .'ejiarated troiii the other [i.irts iif the ilcscription, and made the subject of a distinct ilaim, so as to be prn- tected by the original [lateiit : -Held, per lioy the importation of a samjile tending to introdme the invention, is not necessarily a breach of the spirit of the conditions of the 2Stli sec. Smlih V. Oolilie, 9.S. C. R. 46. Sec. 28 of the Patent Act of 1872, after sjieci fying certain cases in which jiatents are to lie null and void, jirovided that in case dispute shall arise undci this section as to whether ,i patent has or has not become void, such dispute; shall be settled bj' the minister of agriculture m his deputy, whose decision shall be final :— HeM, that a court or judicial tribunal for the deter miiiation of the matters referred to in the seeti"i; was constituted by the Act ; that the ooustitii tion of such a court was not ultra vires of tlit Dominion I'arliament as infringing Proviiieial legislation ; and that it was competent for the minister to decide as to the existence of disputt^ arising for his decision. Prohibition thcrefmi was refused. In r« The, Bell Telephone. Co. ami the Telephone ManufdetHr'nui Co. and the. MinU^'r of Agriadlure, 7 O. R. ()05. — Osier. On a motion for a writ of certiorari to bring up into this court all the proceedings, &c., liefnn' the minister of agriculture, including his deei sioii therein, on im application made before liiiii to have a patent declared void for uon-conijiliiiiK' with the provisions of sec. 28 of the Patent A 't of 1872: — Held, that the minister of agricultuiv, or his deputy, had jurisdiction under see. iS ti decide any dis])ute as to whether a patent ha i become void for non-observance or violation "' the jirovisioiis of that section. In re The /!• Telephone Company, 9 0. R. 339— C. P. D. Seiiible, that the minister's duties are miui^- teri il. and therefore cannot be reversed or r ■ viewed in a course of law ; but, even if jiidiei.iL this court cannot interfere on the ground of i total want of jurisdiction on the minister's ]iiirt to make the iiKpiiry, for, so far at least as th- court was coiicerned, this must be considered ivs jmlica l',R. :cr of 1 1 art mu'lec oath o ncsses > thi> it judi lioll t( >ii thi.- f cert St'in latent iittorn In a: Jefelld linii, a true in the del these c iiinlan lieH- 111 whoii, : tile pri alijetici the iiul prescri ihe pal iDoiii.) i-rul 01 ca.ses. !iinith ( In a prcme i titl's wc the air ilamag( ing, us used, b whom 1 any of relief h bill of guage t tions ir aeeouul fore tin of dam chines the del H. R. 2 The] for an t of D. I certain meat o) slated il on deiii plaintif U D. C file : invention to a suh lit in the absence o: •esuntation wiiicli in falsiliud in the ifMil; ■ for the pun.'hase d [)at(int. No assuinp- atif)n is to ho ma i. lihle. The i)laiiititT~ . to jiidgnient. Suiiti; ami Hall c. Coiiili r. n'nted on ; Hayiir '■ Saxton V. Doil^,'!;, T, ished. Vermihitu \. MSTKR OF Aoiuir:.- of agriculture cir lii^ ctionover ([uestionsni .^c. of the Patent Act, ground that a patiiit L'aeli of the eonditiipiis )t lie supjjorteil aft' r of agriculture or lii- lid liy reason of surli I'he jurisdiction of th-. itive rather tlian jii'li- ic motive and etlVit nj a single act, such n- e tending to introiluc( sarily a breach of the the"2Sth sec. SiiM :t of 187'2, after sped ch ])atents are to 1m lat in ease dispiit'-: tion as to whetiier , ne void, such dis])ute ister of agriculture ir shall he final ;-Hehl ilmnal for the dettv erred to in the scctimi that the constitii not ultra vires of the infringing Provincia IS competent for the ; existence of disputi Prohibition therefii Ml Teh'phone Co. an^l ij Co. and the AIhii<'-' !— Osier. certiorari to bring up ceedings, &c., l)efoi' ;, including his deri tion made nefore him I for non-com])liiiiice 28 of the Patent A' : inisterof agriculture, tion under sec. 2S t' lether a patent iial uico or violation "• on. //( 7-e The. !>• 339— C. P. I). r's duties are mini- ot be reversed nr r- ,)ut, even if jiidiei.il on the ground ef ' in the minister's ]);ir'. far at least as th lust be considereil r PAYMENT. .18 iudicata by the decisions of Smith r. f loldie, 9'S.! (■, R, 46, an ; nor was tiieic ^ jiiirtial want of jurisdiction, by reason of tilt :ii^lect of the minister to examine witnesses on iirii or his refusal to isstu' summonses for wit- | cl :i,vscs to attend liefore Idin, because under sec. •.'sthis was not riMjuired. l,)ua'iv, whetiier also, i! jiiili<'ial, tile I'rovincial Courts have jurisdic- :ii,ii to interfere witli sucii a tribunal, it lieing, n this assumption, a Dominion court. A writ if rcrtiorari was tiu'refore refused. //*. Sendde, tliat on an a|)|)lic:ition to ()Uestioii ,a iitcnt under tlie statute tiie intervention of tlie ^tt()rney■t!eneral is not essential. ///. prior to his death. Pliillipa r. Flomfray, 24 C'hy. |). 4.'{0, discussed, and rcgardeil as decisive in tlie present case. Semble, that if tlie st.iteiiient of chiim could mean that by reason of the wrong- ful act complained of, pid]iorty of a tani,'iblc cliaracter, passed from tlie jilaiiitill "s estate t. C.,aa distinct from the saving of expense, tlie conclusicjii might be difl'erent. L(.oyd, C. — In the aliseiice of any legislation or rules of court upon thu subject, the judge has no power or right to proscribe so minutely what shall be dischised in the particulars. 'Die statute 3.") Vict. c. 26, s. 24 lHoin. ), goes no further than to justify such gen- eral order for p.articulars as is usutil in otlier cases. Mills )•. Scott, .5 Q. H. 3l)0, discusseil. im'dh et al. v. ilreeij H al., 11 P. K. 169— Chy. D. 2. Damarjes. In a patent action the judgment of the Su- preme Court of Canada declared that the plaiii- titl's were entitled to an inquiry and to be paid the amount found due upon such inquiry for damages sustained from tlie making, construct- ing, using, selling, or vending to others to be used, by the defendants, and by tlie persons to whom they have sold, given, or let the same of any of the machines, &c. The jue Moktoaoe. '2. J It Error nr M'tstdb' iif I'm!. IV. O.N Co.NTUACTS K)K SAI.K OF (JOUl)S— A'te S.\I.K OK (iiidlis. V. I'avmknt or Mom;v into Cuiiit. I. l'(>liiii!(iri/ /'ill/Ill' iit-'i, iVil. '2. Ill yltvf'u//.-', .')-l. a. /nli'rr.sl A Hum,/, iVJ'2. 4. Alluc/niniil (lil>l-.K. VII. UJ rUKMIlM — .V'C 1^■^L1.) tl) ; ( 'ity ( 'ouiail ul the eity of .Montreal by a resol.uion adipjited a ii port from their road eoiiimittee prepared on tu, 3()lh April previous, as anieirltil by a repnit .!• their linanee ((Jiiiniittee of 27th .Miiy, I87!l,rei,'(iiii- ll'i lidilig liie e(instrilitioli of peiliiaueiit sideWiilK. in the follo\\iii'4 ■streets (inter alia) iJoivhe.st.; and Si. C'alharine. On tli- adoption oi tli.- reports with which an e-,timate indicating' tm iiuaiitity of liag stone reipiired for each strcit, and the apiiroxiniate cost of the woik to be iiimi;.' in each s'„rei't liail been suimiitted, the city m.. veyor ciiused tiie sidewalks in the said streets i, be maile, and assessed tlie cost ol these sidewalks according to the front of tiie real estate owueii i.y tiie proprietors on each side of the same, niA prepared a .statement of the same, which he deposited with the treasurer for collection. |i, A. li. possessed re;d estate on Dorchester ai.ii St. C';ahariiie streets, ami did not object to th^ euiistructioii of the new sidewalk. On the ;iii; December, 1877, a few days after receiviiij; ,, notice' from the eity tre.'isuier to pay within lii tt'.,ii days certain sums, in ilefault whereof cxeuii- tioM would issue, 1). A. B. paid, without piote.st, $',t4ii.'2r) ; and ..n the 2'Jtli October, 1878, paid ;; fuitlier sum of .•:r'-l38. 'JO, and on the 14th ^om.ii, ber, 1878, without havini: received any iiuticc, paid .S700 on account of 1877 assessment, li. an acti(iii by D. A. B. against tlie city of .Mum real, to recover the said sum of money wliiin she allegeil to have paid in error, believing tin assessment valid ; — Held, atlirming the jiidL'M 11; of the court below, 2 Dorioifs {). I!. II. 221,(lni:ry and ( Jwynne, ,1,1., dissenting), that U. A. I!, haJ failed both in allegation and proof, tomakediit:. case for the recoveryof theassesf ineiit paid by hti'. either as a voluntary payment made in ignoraiia of its illegality, or as a constrained payment " ail illegal ta.\, and that mere irregularities in ti: mode of proceeding to the assessment, altliuui;;! they might in a proper proceeding, have entitka the ratepayers to have had the assessiniiit quashed, did not now entitle her to recover th amount back as a payment of a void asscssuicj! illegally extorted. 2. That the City Couiici' laying pavements in parts of the city only, tht cost of whicl; was to be paid by assessment accmii ing to the frontage of the respective properties and not in proportion to the cost of the part laid opposite each property, were acting witliin tlie scope of the power conferred upon them hyS' Viet. e. 51, s. 192. 3. That the objection fuun ded on the invalidity of the assessment for waut of notice, not having been alleged nor relieil on at the trial of the ease, was irrelevant on this apjieal. JJiiin v. Cily of Montreal, 8 !S. C. K. '-5-- The plaintififs ordered goods from the defendant in Montreal to be shipped to them in Toronto, .and three several consignments were made, oiu'^ which having been addressed to "J. H. C. t Co. ," instead of " H. K C. & Co., " never reacboa tlie i)laiiitiirs, but was, after remaining eiglititr. moiith.s in possession of the carriers, in tliiecuUiH sold for payment of the charges thereon. l(i« jjlaiiitifl's in ignorance of the non-receipt of the third consignment accepted and paid the (Itiii: daiit's draft for the amount of the invoices of tK tln-ee consigiiiiients. Suincnuently tluy lii''^'-'"*'' ered their error and demanded a retain e'" tLt ^21 520 k' of Fact, llT till' llUtllolily,,! tl) ! City ' Diiiicil .)! I'.uiDii :iiiti'i| a i> i;u iirepanil on tin I'IccI liy .-i rf[ii>it n' ii.Miiy" ls7l»,ru,,i„. .•nnuiient siduwalK- ■r iiliii) iJorclii^i. iuloptidii oi til'-- liitu iiidiciitiii;,' ii.i. jil tor uacli htiiit, lu \v()ik to 1)1' iiimi ittcd, tliu city M., 1 llu' .said stivtts • . t (it tllt■seh^idl■^valK^ fid UMtutU OWllUli I'V ot' the saiiio, aij'i i: SillUC, ullifll he fur ciilkctidii. |i. Ill I •orolio.sti.T ai.'i I not ohjuct to U.I walk, On tin,' oiv s alter iL'c'fi\ illy 1 r to j)ay within lii alllt \\ llLTL'ot I'XL'Ull- d, without jiiDtfSt, loliiT, 187S. paid :i 111 thu I4th ^o\c■lll •ceivcd any notice, "i as.sessnifiit. li: : the city oi' Muni :n of money wiiicu I ror, lielicviny tin ■niing the jud:.'M ■IK ,>. li. l!.-J'_'l,(iiM,rv that I). A. 1!. li;iJ roof, to makr nut.i s^ln^•ut paid hylitr. made in iguoraiKt rained payment ■ rregukirities in tl: se.ssmuiit, altliini!;! dinjj, have entitlt. .1 the abseijiiiiiciit her to recover thi a void asscssmoj he City Council in the city only, th' asses.smentaccoiii jective proiierties i cost of the piirt iVere acting witiiin ;d upon them hy 'i' :he objection fuun jsessment for warn eged nor relieil im irrelevant on thii eal, 8 S. C. it. iJ'-'- from the defendant them in Toronto, 1 were made, one of I to "J. H. C i 'o./' never reacbiii •emaining tightur. rier.s, in dueci.m>i: ;;es thereon, ihe non-receipt oi tliv id paid the dcfn)- the invoices of til- lently tluy lii''^^'"^' ■iL a letuiu c' '-u ^21 PAYMENT. .1 00 .jiiinnt paid which the defend.mt refused :— HtM, tliat although the ]il,iiiitit1's had h;id the inaiiH within reach during all this time of a.scer- t,iiiiiiij{ the true position of matters, there wa.s II ilnty cast on them in relation to the defeii- ;,int which made their delay in disrovei ing the jiistivke laches on their part, and that they were fiititled to recover hack the aiiKJiint )iaid us ou'.'y paid iin.ier a mist.ike of fact ;— ^^eiuhle, leinand of repayment or notice to p.'vyee of the jiistake was necessary before action, t'lar/c v. Etoyd, 1-2 A. 1!. 4-25. V. 1'.\vmi:nt ok Money into CoruT. I. Vohniiarii I'dijiiifnts, Paymeiit of money inttx'oiirt of amount aw.ird- i for compensation ol land ex)iropriated by a Diunicipality for .i court house site. See In r*' H'dcM and the Citi/ of Toronto, 10 O. K. lOti. A testator insured his life for the benelit of i^ wife and chililren. Tlu! ](olicy jirovided that ;;a' money should be jiayablc as might be direet- r'lliy will. The testator by will appointed exe- itoi's, and gave his wifi^ the income ot his estate •r life and after death thi' corinis to his son. Tliu executors renounceil prol)ate, and aftei' re- ocation of a prior grant to the son, who was llicn a minor, adniinistration was granted to the kft'iidant I*. The policy proviiled that the money might be payable to the executors or ;id- iiiinistra' ors. The Act 47 Vict. c. '2(( (( (nt. ), ])ro- vidc.^ Ui.i . such policy nioiuiys to which infants are entitled shall be ])ayable to a " trustee, exe- uitor, or guardian." 1'. claimed the moneys as alministrator, whercujion the Insurance Com- piiuy under sec. 1") of the Act, and C. O. 197, and rule 541 ((() O. il. Act, a])plied to the master m ordinary in chambers for leave to pay the aioneys into court. The master hehl ( 1 ) that voluntary applications to pay in money may be ; nwdu in cliambcrs. (2) That under rule 041 (r() j 0. J. Act, he had jurisdiction, by virtue of the j iilniinistration proceedings before him, to make the order. That the money was no part of the 1 estate subject to the control of creditors, and j when paid in should be " ear marked," and not ' mixed with the other funds of the estate. On appeal by the administrator. P., Proudfoot, J. , made an order directing that the money in court be paid out to the Insurance Company. Mer- (haiit.s' Bank v. Montelth. — Ex purtp Standard lift Assurance Covi/iani/, 10 P. R. 588. fendant ilid not admit bis liability for damages, he brought into court •'^I'lO and s;ii(l that the same w.is siillicieiit. \.r. : I ['Id, th.it the money |)aid into court under this defence could not bo retained there to answer the defemlant's costs, if he suceei'ded, unless a ]il'opel' <'ase was made I'oi- orderini,' security fi r costs. A'o7« (m v. Lmn, II 1'. K. IIS. -Kii'igsmill, /.o,'-(/ ./)»/;/' -lioyd. The defendant stated ill jiis defence that in case the court should lie of opinion tliat he was liable for the p.iyuu'iit of the lialance, fee, he, tlu! det'ciiiliiit, broiinht into court the sum of j54,."00. s,iyiiig that the s.iiiie «as sutlieieiit to p.iy ill full all '■' 'ims of the pl.iiiititl' in respect of the b.dance, iS:c. : and piiil into court under his del'eiice the said sum of ■"•'t.iilMI, wiiirh w ,is witli- ■';•, 12 A. R. 1. 2. In Actions. The defendant brought into court with his defence a sum which he pleaded was sufficient to answer the plaintiff's claim, and the judge at the trial finding that it was sufficient, directed judgmeDt to be entered for the defendant, with costs : — Held, that the judge at the trial had a diacretion to deal with the question of costs, and b.iving exercised it, the taxing officer had no alteriiativ^e but to tax to the defendant his full costs iucurred, as well before as after the pay- ment into court. Small v. Lijon, 10 P. R. 223. --Cameron. The statement of defence set up that the assault complained of was in self-defence, and, as an alternative defence, that, while the de- 3. Intcrcxt AHoireJ. f^ec Be Geonif Tai/lor and Tl:' Ontario and Qia-hec A'. W. Co., 11 ' P. P. .S71, p. 349; Be Phil- Itrick and The Ontario and t^tiifhi'c /?. W. Co., 11 P. R. 373, p. 349 ; Powell v. Perk et al., 12 O.R. 492, p. 436, 4. Attachment of. See Macpherson v. Tisdale, il P. R. 261, p. 26. 5. Other Cases, Defence of tender without payment into court in an action to recover money as compensation for land expropriated. See Demoral v. Mid- land R. W. Co., 10 P. R. 640. The gross proceeds of a sale of goods in an interpleader matter should be paid by the sheriff into court without deducting anything for his expenses. Ontario Bank v. Etvell, IIP. R. 249. — Dalton, Master. An application for an order sanctioning the payment of a bequest in favour of infants to their father, who with the infants resided in a foreign state, and had there been appointed guardian by a Surrogate Court, was refused, and the execu- 523 PENALTY BY CONTRACT. 524 tors were Oidercil to pay the amount of the be- quest into court. Ite Andrews, 11 P. I!. 199, dis- tinguished. y.V Parr, 11 P. U. 301.— Boyd. Where tlic plaintitl "s .solicitor made default in paj'mcnt into court of the ten per cent. ])aid to him at the time of sale, uiuler the conditions of sale : — Held, tliat tlie other parties entitled to the purchase money sliould not suft'ci' therehy, but that tl.e plaintiff'.s share should be charged with the deticieiicy. Mnlklns v. Clarki:, 11 P. II. 350. -Proudfoot. V'l. Pav.me.nt of .Money oit of Court. 1. ^11 Arthjiis. See Bell v. Fraser, 12 A. It. 1, p. 522. 3. Other Cases. 2. When Paid in Uf Security for Appeal. On tlie 16th November, 1881, an order was made directing I), to pay a certain sum of money into court. I), appealed from this order to the Court of Appeal, and for the purpose of staying execution, instead of giving security, as required by R. 8. O. c. 38, s. 4, he paid this sum into court, being autliorized so to do by an order in Chambers. On the27tli October, 1883, tlie Court of Appeal reversed the order of 16th Xoveniber, 1881. Tlie respondents then gave notice of ap- peal to the Supreme Court of Canada : — Held, that the money paitl in by D, must be taken to liavc been so paid in lieu of tlie bond required by the statute ; that when the decision in appeal was given in D. "s favour, the money had served the purjwse for which it was paid : and that it ought to be repaid, lie Donovan — Wilnon v. Beutty, 10 P. R. 71.— Proudfoot. The defendants lieing entitled by the judgment of the Court of Appeal to the costs of the action, obtained out of court for suit the bond given by tlie plaintiff for security for sucli costs. Before action on the liond, ard pending an appeal by tlie plaintiff from the judgment of the Court of Appeal to the Supreme Court of Canada, one of the sureties on the bond obtained leave and paid into court to the credit o^ this action, §400, the amount due on the ))oiid, to abide further order. Upon the application of the defendants, the company, Boyd, C, directed §200 of the !5400 to be paid out to their solicitors, upon the solicitors undertaking to refund the amount if the Supreme Court should vary the disposition of costs made by the Court of Appeal. Kelli/ v. Imperial Loan Co. et al., 10 P. R. 499. The defendants succeeded at the trial, in the Divisional Court, and in the Court of Appeal. Feuding an appeal by the plaintiffs to the Su- preme Court of Canada, the defendants applied for payment out of Court to them o' a sum paid in by the plaintiffs representing the whole sub- ject matter of tlie litigation : — Held, that the application was in the discretion of the court : that that discretion should be exercised in the same way as upon an appeal to the Court of Ap- Eeal ; and that the application should therefore e refused, following King v. Duncan, 9 P. R. 61. Canadian Land and Emifjration Co. v. l^onynship of Dysart et al., 11 P.R. 51. — Ferguson. Money in court to the credit of a lunatic, though not so found, was directed to be paid out in annual suni.s for m.aintenance. ]i'e lliwU, J/indsv. Hinds, 11 P. R. o.^Fergiusou. Lien of solicitor on fund in couvt. See Re Hi/in,, 11 P. R. 127 ; Yenian v. Johnston, 11 P. R. I'.'il. A sum of money left by McD. in his will to his daughter, who predeceased him was paid iiiti court by ^IcI). 's executors. The daughter liy her will had disposed of tlie moneys which >lii' expected from her father's estate, leaving jnut to her luisband and part to her infant childitii. naming her husband executor, and directing him to invest the infants' shares and expend tlii' in- terest for their maintenance. It was admitted liy the official guardian on behalf of the infants that tliere was no reason to anticipate danger to tbt money if paid out to the executor: — Held, that the will of the testatrix should be respected, ;iii'l the infants' money paid out to the executor. !!■ McDowjall Trusts, 11 P. R. 494. — Ferguson. PEDIGREE. See Evidence. j PEDLAR. I See MlNICIl'AL CORPOR.-VTIONS. PENAL ACTIONS AND PENALTIES. I. Under Controverted Election.s Ai t— See Parli.^.ment.vrv Elections. II. Under Municipal Act — See Ml-mcii'al Corporations. III. Convictions for P£Nalties-.S'c« Justh es OF THE Peace — Intoxicating Liquok.s. I Held, that the 18 Eliz. c. 5, which enacts that ' an informer shall sue either in person or by at- ; torney, is in force in this province, and tlRif- fore the plaintiff, an infant, suing by his next friend could not maintain an action for a penalty under the Election Act. The appellant having omitted to take this objection in the court behiw i this court on allowing the appeal on thatgrouml, ! refused him his costs of appeal. A person who I sues for a penalty given by the Election Act is J a common informer. Garrett v. Hoberts, 10 A. R. 650. Security for costs in penal action. : ivorth V. Bell, 10 P. R. 544, p. 133. See Bi"l- PENALTY BY CONTRACT. To an action for the balance due underabuihi- ing contract, the defendant set up as a defence that by the contract the plaintiff was to builil the house and have the same completely tiuished 524 l?S. [•edit of a lunatic, cteil to l)e paid (nu aiiue. He HiwU, -Ferguson. jurt. ^ceReliyiiii, '■^(ou, 11 P. R. 2.S1. IlD. in his wil! to I liini was paid iiit, 'I'lie dauglittr liy moneys wliith -In itate, leaving yiaii ler infant ehildnii. , and directing him anil expend tlif in- It was admitted liy (if the infants that pate danger tn tht nitor: — Held, tlmt 1 be respected, invl ) the executor. 7.'- 94. — Ferguson, iRATIOXS. PENALTIES. Elections A( t- Elections. -See Municipal -TIES-.S'ffl JUSTIi-ES LiCATiNG Liquors. which enacts th;it I person or by at- (vince, and thire- luing by his next ;tion for a penalty appellant having in the court behiw alon thatgroniul, A person v ho .e Election Act is f. Bobcrtf, 10 A. ctiou. 133. See £/"/• TRACT. lue underabuilii- t up as a defence ititl' was to l>uil(i mpletely finislifd .52j PETITION OF RICxHT. 526 ami ready for the defendant's occupation by a laiiiid date, " under a penalty of 5?5 per day," t,i liL- paid by the plaintiU' to the defendant for eacli ind every day the work on the said house rdiwinevl unlinislied after tliusaid date ; alleging that tiie work remained unlinislied after the said ilatf tor a certain number of days, making an inioiint wjiich tiie defendant claimed to deduct from tlie contract price : — Held, on demurrer, Itfc'iice good : that the !?."), tliougii called a pen- alty, was in fact licjuidated damages ; — (i)ua're, wiiether a demurrer was the proper mode of rai.sing the (jue.stion as some damages would bo recoverable. Chatterton v. Vruthers, 9 U. It. 683.— Rose. On May 27th, 1885, certain individuals form- ing a Cigar Manufacturers' Association, amongst whiini was the defendant, considering them- selves aggrieved by the members of tlie Cigar Makers' union, wlio refused to lower the [irice of making a particular kind of cigar, entered into all agreement in writing between themselves of the first part and S. of the second part, as fol- lows : " Whereas for the mutual advantage and protection of the parties hereto * * it has been agreed that the parties of the first part shall become severally bound to .S, in tlie sum of §500, lifiuidated damages in case any of them shall at any time during the continuance of this agree- ment, either directly or indirectly, buy or sell any cigars marked * * with tlie labels of the Cigar Makers' union, or shall use the * * in connection with tiie manufacture of cigars by him any Cigar Makers' union label, * * or thall permit * * any Cigar Makers' union, or any union or set of men to compel him to hire or employ union men only, or to dismiss any employee. Now, tlierefore, * * the parties iiereto of the first part severally covenant with S, each for himself that he will, in case he shall at any time hereafter violate any of the foregoing stipulations (setting them out im- medi.itely pay to S. the sum of SoOO ; the in- tention being that in case of a violation of all or j any of the stipulations * * aforesaid l)y any : of the parties hereto of the first part, he, the | said party so offcn.ling, shall immediately forfeit ■aid pay to IS. the full sum of 8500, * * be- \ eause of Ids so offending, as liciuidated and ascer- j tained damages (and not as a penalty) to be by >. applied, &c. * * The intention, also, being that the entire sum of S500 shall lie the amount \ oi the ascertained and li(jaidated damages of any ! violation or breach whatever, of any of the stipu- ' latious * * aforesaid on the part of any one of tile parties of the first part." The defen- j ilaut having broken the above agreement in [ all respects, S. brought this action against him to recover $500 as liipiidated damages : — Held, that the sum of §500 was liquidated damages and not a penalty. Hchrader v. Lillis, 10 0. K. 358. — Prouilfoot. Where a .ontract contains a condition for pay- ment of a sum of money as liquidated damages tor the breach of stipuktions of vpried import- ance, none of which is for payment of an ascer- taiDed sum of money, the general rule is, that the •uiii named is not to be treateil as a penalty, but »s liquidated damages. Moreover, in this case, the stipulations resolved themaeh . j into one — viz, , that the defendant would not si "omit to the dictation of the cigar makers in carrying on his ' business. It was impossible to calculate the damage to the other members of the manufac- turers' association l)y non-compliane'c with the agreement. Tiio case wmild tliei'cfore seem to come within the rule that when the agreement is for the performance of one ae't. and there is no ' adecpiate means of ascertaining the damage's from a viidation and the parties agree upon a sum as ; liquidated damages, it will not be treated as a ' penalty, lb. See C(jri>on(fiuH a/ tlw V'dlwji' of iSnis^'h v. Ronald, 11 A. K. (J05, p. 451), rKItJUllV. Action on judgment. Defence tliat the judg- ment was obtained by perjury, stating the per- jury : — Held, good. .Sf':ir<(rl v. .Sutton 'td/., 8 O. R. 341.— Rose. PETrriON OF RIGHT. McL. , the suppliant, purchased, in ISSO, a first-class railway passenger ticket to travel from Chailottetown to Souris on the I'riiK.'e Edward Island railway, owned by tiie l)oniiiiie)n of Can- ada, and operated under tiie management of the Minister of Railways and Canals, and wiiile on said journey sustained serious injuries, tlieiesult of an acciilent to the train, liy i»etition of right the suppliant alleged that the luilway was negli- gently and unskilfully conducted, managed and maintaine-limentof (government railwaysin Canada, of which the Minister of Railways and Canals has the management, direction and control, untler statutory provisions, iov tlie beiietit and advant- age of the public, is a Itrancli of tlie puldic police created l)y statute for puri)oses of puldic con- venience, and not entered upon or to be treated as a private and mercantile siieculation, and that a petition of right er, and finally by an Order in Council of the Dominion (iovernment (to whom it was claimed the indebtedness of New Brni.swick was transferred 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 Que- bec therefor. Such consent was obtained and payments on account were made by the Dominion (TO\^rninent first to T. and afterwards to the .suppliant, to whom T. had assigned the claim. Finally the sup))liant not being able to obtain payment of the balance due by said Order in Council, proceedele ,at Torontcv Tin; plaintiff resided in Mon- treal, and his solicitor in London. The sole de- fence was, that the defendant was discharged from liability under the Insolvent Act. The defendant resiiled in Toronto, and swore th.at he intended to call two witnesses, the clerk of the county court at Toronto, and the assignee of the defendant who .also lived there. The plaintiflf filed no affiilavit on the motion. .S'/f(^•, ^.Punn.% 10 P. R. 604.— Rose. II. Venue or Place of Trial, 1. GenfiraHi/. Held, that the effect of Rule 254 of the 0. J. Act is to abolish .all local venues as well those made so by statute as at the common law, ex- cept .actions of ejectment. Li'i/an/ v. Pitch 'r ft 'i'., lOO. ; 620— Q. B. D. See also, 'rplaiid V, Pitcher, /'-. 631. Where cross-actions, with different venues, ire consolidated, the jilace of trial will bo order- ed aa the balance of convenience requires. Oonce V Leitch, 11 P. R. 255.-D.alton, Aruxter, An .action by a mortgagee for foreclosure, pay- ment, and possession of the mortgaged premises H not an action of ejectment within the meaning uf the exception in Itule 254, (). J. Act, and the 'i'liiio need not therefore in such an action be laid ill the county where the lands lie, Sciimnur V. Dt Marsh, 11 P. R. 472.— Daltou, Maxter. 34 The ])l. Semhie, ]{ulo 254 does not give a judge .aright to iuturleru with the procedure in the action ex- cept at the instance of a party. Jli. Mr. Winchester, official referee, sitting for the master-iii-uhaniljers, refused an application by the defendant to change the place of trial from tSarnia to Stratford, Imt gave leave to bring on an appeal trom his order, or a substantive motion to change the place of trial before Armour, J. , at the Saruia Assizes. Armour, .)., entertained the motion, which was made aceordii.g to the leave given, and made the order changing the venue J to iStratford. I'he order was drawn up as made by a judge at the Assizes, and was signed by the i local registrar at Saruia : -Held, that, having regard ti> Itule '254, O. J. Act, and to the leave given and the character of the motion, the order , of Armour, J. , was to be regarded as that of a ■ judge and U((t of the High Court, and could ; therefore be reviewed by the Divisional Court. The tSaniia Aiiricullural hiiphinenl Mcuiufaclur- bid ^"- V. l\'ninv, 11 P. K. 224.— C. P. 1). i There is nothing to prevent a judge sitting at | the Assizes hearing a chamber motion, if he is ! disposed for the jjurpose to treat the court room ; as his chandjers. Such an application as this, i however, should not be uiacle at the trial on , account of the inconvenience and detriment to the public iriterest arising from the delay of other business appropriate to the Assizes, and on ac- count of the injustice to parties to the cause who ' have prepared for trial ; and it is too late when ; the Assizes have begun to consider the question of the balauce of convenience ; and therefore, while the court did not see tit under the circum- ! stances to rcK^tore the venue to Sarnia, they varietl the order of Armour, .1., by making the costs of the day at Sarnia, and of tlie several ; motions to change the venue costs to tlie plaintiff in any event, lb. i In an action by a husband against his wife to enforce a charge on land, the cause of action arose at Hamilton, where also the parties and their respective solicitors and all the witnesses re- sided, but the plaintiff proposed to have the action tried at Toronto. The increase in expense of a trial at Toronto over one at Hamilton was esti- mated by the defendant at between $50 and §75, and by the plaintiff at about §30 : — Held, that there was an exceeding preponderance of conve- nience in favour of Hamilton, and it was ordered that the place of trial should be changed, un- less the plaintiff at once paid into court §40 to meet the defendant's additional expense. iServo* v. Servox, II P. It. 135. — Boyd. In an action of ejectment the place of trial may be changed by order of a judge. If the power to change is not given by Rule 254, O. J. Act, it is not taken away thereby, and it previ- ously existed under R. S. O., c. 51, s. 23. Ca- uadian I'acijic R. W. Co. v. Manion, 11 P. R. 247.— Proudfoot-Chy. D. III. PARTIE.S. 1. Cestui que Trust. The plaintiff' was the surviving trustee under the will of one J, B., of certain land, ou which was erected a two storey brick house, the \vi> terly wall of which formeee Tondinmn et al. v. The Xort/iern R. W. Co. of Canada et al, 11 P. E. 419, p. 543. 7. Other Cases. The pl.aintiff, the owner of a water-lot and boat house abutting on the Ottawa River, who carried on the business of letting boats for hire, brought an action against four saw-mili owners, alleging that they being each the owner of a saw- mill situated higher up on the i-iver than the plaintiff's lot, had each been in the habit of throwing sawdust, slabs, &c. , into the river, and that this waste matter floating down had lodged upon and in ftont of the plaintiff's water-lot, and h.ad there formed into a solid mass :~Held that the four saw-mill owners were properly joined a.i detendants in one action. Rutte v. Booth et nl, 10 P. R. 049.- Boyd— Chy. D. Action by two ratepayers on behalf of them- selves and all other ratepayers of A. against all the mcnd)ers of tlie Municipal Council of A., charging that the defendants, acting fraudulently and in collusion witli the treasurer of A., con- tinued liim in office after it had come to their knowledge that he wns a defaulter, and allowiil him to receive further moneys, causing loss tu the municip.ality : — Held, that the law attachts the liability of trustees to municipal councillors, and that it was sufficient to charge them as such without using the word "trustees;" that the action was one in the former exclusive jurisdic- tion of the Court of Chancery, and a jury notiej was therefore improper : — Senible, the municipal corporation should have been made a party to tlit action, and the action should have been on beliai: of all ratepayers, except the defendants. Mor- roiv et al. v. Connor et al.,\\ P. R. 423.— Proud- foot. AVhere a person suing on behalf of himself and others is disentitled to sue on his own Ijehalf lie cannot do so on behalf of the others interested. Dillon V. Township of Raleiijh, 13 A. R. 53. See (lalhruitli v. Irvimj, 8 O. E. 751, p. 04" ; Mitchell V. The Cili/ of' London Fire Ins. Co. {Limited), 12 0. It. 700, p. 341 ; Beatli/ et a!, v, Neelon rt al., 12 A. E. 50, p- lOG ; Sewi^ll w. Britixh ('olni)diia Toiri)ii/ li- Transportation Co.. 9 S. C. E. 527, p. 642. IV. Statement of Cl.\tm. 1. General 1 1/. The plaintiff in his statement of claim claimed d.anuiges from the defendants for "unlawfully, negligently and wrongfully," depressing certain streets in a town and thereby making it incon- venient and almost impossible for persons to ap- proach the plaintiff 's store for business : also for, in like manner, blocking them up, and rendering them almost impassable in the neighbourhood of the plaintiff' 's store, and thereby "negligently, unlawfully, and wrongfully," preventing cus- tomers or others coming thereto, and almost entirely destroying the plaintiff's business. The statement further claimed that if the depressing and blocking up should be found to be lawful, a mandamus should be granted requiring the de- fendants to proceed to arbitrate to ascertain the compensation pay;."' ) .o -plaintiff : or that it be referred to th-;: ;-:i .fficer to as(;ertam and state such co! . - •• • n. Reld, on demurrer, that tilt? statj;;- n'J do.un Vr'as sufficient ; forit v'as negligently done, and tioi, even though the work itseirmight be lawful. Quillinnn el al. v. Thf Canada Southern R. W. Co. ei al., 6 0. R. 567.— Rose. Extending time for delivering statement ot claim. See Xewcombev. McLishan, 11 P. R. 461. 2. Joinder of Causes of Action, Claims on behalf of a wife for alimony and to set aside a conveyance of the husband's property alleged that tli3 w this gave a caum; 537 536 mass : — Held that 3 liropei'ly joined ,13 ititi: V. Buuth et al., 1). on behalf of them- •s of A. against all [tal Council of A., acting fraudulently easurer of A. , con- had come to thtir ;iulter, and tallowc^l ys, causing loss U It the law attaches inicipal councillois, liarge them as such rustees ;"' that the ' oxclusive jurisilic- •, and a jury notic« inble, the niunieipai made a party to tlit have been on belial; defendants. Mor- r. R. 423.— Piou.l 2half of himself ami 11 his own l)ehalf he 3 others interesttd, h, 13 A. R. 53. O. R. Tol, p. 047; •ndon Fire /«■<. f'o. H ; Beattif et a!, v, , p. 106 ;' Seia-n v. Transportation Co., Cl.vi.m. /• nt of claim claimed s for " unlawfully, depressing certain y making it incon- e for persons to ap- business : also for, 1 up, and rendering e neighbourhood ot reby ' ' negligently, preventing cus- lereto, and almost iff's business. The at if the depressing und to be lawful, a d requiring the de- ate to ascertain the ntiff : or that it he ir to as(;ertain and J.eld, on demurrer, as sufficient ; for it gligently done, and en though the work 'linnn el al. v. Th :a/.,6 0. R. 567.- ering statement ot /ishan, IIP. R,461. of Action, for alimony and to husband's property 537 PLEADINU. 538 .IS fraudulent should be joined in one action. Hnhhr v. Snickr— Snider v. Orr, 11 R. R. 140.— Boyd. Where the writ of summons was indorsed with i a chiiiu for the recovery of land anil for mesne [ protits, but the statciueiit ot claim asked specitic performance of the contract by tlie dcleiidant to ; buy tile hind from the plaintitf, and in the event j (if specific perfonnaiice not being decreed, posse.s- 1 sioii, itc. , and no order hud been ol)tained fori leave to join another cause of action with aclaini tor tlie recovery of land, as rcijuucd liy Rule 116, l». .1. Act, and a motion was made tn set aside tile writ of .summons and .statement of claim, or one of them : — Held, that the eau.scs of action weio improper! J' joiued in the .statement of claim with- out leave, hut inasmuch as tlie two causes of action could notc(jnveniently be prosecuted sepa- rately, leave was given to amend the writ by adding ,1 claim for speeilic performance, or the statement of claim by striking out such claim, at the plaintitis option. CuinjititUw Junti-:, 11 R. K. .^47.— Dalton, JlaMer. See Goriiiij v. Camerun, 10 P. R. 49i), p. 53S. V. St.itic.mknt of Df.fen'ci:. I j Statement of claim claiming damages for an accident to the plaintitl' by his stepping upon the covering or lid of a manhole in the sidewalk alleged to be defective, &c., through defendants' negligence, liy the first paragrapli of the state- meat of defence defendants denied the correct- ness of the statements contained in the state- ; meut of claim ; and by the second paragraph set up that defendants had no notice o; knowledge I of the defect : — Held, on demurrer l^ the second paragraph, that the whole statement < >f defence must be read together ; and that the second par- [ agraph taken with the first constituted a good defence or was immaterial ; that it could not emharrass the plaintiff, for if lie proved actionable negligence he nmst prove either actual or ])re- sumptive notice. Jiea-flei/ v. The Corporation of' \ the Lily of Hamilton, 'd 6. R. 112. — Rose. ' A statement of defence, delivered after the \ proper time and on the same day on which the | plaiiitifl' set the action down, to be heard on mo- j tiou for judgment, was— Held irregular, and the court ordered that it should be struck out, and judgment granted for the plaintiff as prayed by the statement of claim, unless the defendant paid the coats of setting down the action and of the motion for judgment within a, limited time. Snidery. Snider, 11 P, K. 34.— Boyd. See Pursleu v. Bennett et al, 11 P. R. 64, p. 418. VII. Set-off and Counter-Claim. In an action by the plaintiffs as endorsees of a bill of exchange, the defendant (the acceptor) set up that the bill was part of the price of goods hought by them from H. c&(J. , the drawers, and tiled a counter-claim against the plaintiffs, H. & y., as defendants by counter-claim, claiming that the hill was transferred to the plaintiffs after maturity, with full notice and knowledge of the facts, and claiming 810,000 dauiuges from H. & G. for breach of eontiact in respect of the goods, and asking for the delivery up and cancellation of the bill, and other bills in the same transac- tion. Upon the application of H. it (J. the mas- ter in chambers struck out the counter-cl.uni, and the names of II. it ( i. as defendants t — Scinlile, that as against the phiiiitill's. the deleiici.' sin mid have been pleaded as a defence to the claim on the bill. Torraitci' et al. v. lArimiMiHU , 10 !'. H. 2!). — Ualton, Mader. In an action of tres[)ass for entfriug the warehouse of a deceased person (of wlmni the [daintilf was the administrator) ifter lli.^ death and taking ami cunverting tiie goods thei'ein, the defendant set oil' a debt due liy dei'eascd to him. -■^n administration order had iieen madcof «hii;h the ilefendant had notice Ijclore defence. The sec otr was held bad under 27 \'ict. e. 2S, s. 28, and also because of the administration order. Munii'.ilh V. Walsh, 10 P. R. Iti2, — Dalton, J/fs- ter. An action against the delriidmt on his lioud as surety fur II. it .Mc'l'. for the amount due the plaintiff by II, & McT. (ju their banking account with the plaintitis. (.'ounter-i laim by the defen- dant against the plaintiff and II, & ,McT., alleg- ing that the defendant is li.ible only as such surety, and that the plaintiff cnight to resort to H. & .McT. to enforce jiayment from them, and that H. it McT. .should be ordered to p.iy the amount, and indemnify the defendant. As the counter-claim was not rested upon any particular agreement, but was set up as arising from the position of the parties as creditors, principal ilebtor, and suiety. It was held bad, and ordered to be struck out, Fidtrul Hunk \. Harrianii, 10 P. R. 271. — Ualton, d/(wre the commencement of tiie action, was alhrmed. CIiiiikIh r/niu ct iil. v. Chaiiih(rUun el III., II 1'. K. oOl.— Feiguson. Held, tliat a married wmiian, thoiigli married liL-ture May 4tli, IS.')!!, was not Ijouiid liy a coven- ant of her liusband, entered into by him for Jiim- self. his iieirs and assigns, as lessor of certain lantls, to ])ay at tlie ex))iration of the lease for a certain malthouse which tiu^ lessee rtas to have liberty to erect on the demised ])remises, thougji the reversion liad been assigned to her iuisband and anotiier as tr>istees for her ni such a way that she iiad tile entire Itenetieial interest, and though the covenant I'un with the land : — Held, alsd, tliat a claim on behalf of the said trustees for rent in arrear and for damages for non-re]jair was not matter of set-oil' against damages recov- ered against the husl)and for breach of his cove- nant to purcliase the malthouse, thoiigli lie was one' of the trustees, tliey not being matters arising in the same right. Ambi'osc v. Francr < O. R. 4M. — Feri'uson. missed, liecanse tiie affidavit tiled in support of it did not state tliat no joinder was filed wiien the notice of trial was given : — Senible, the juin der of issue referred to in liule 17(j 0. .J. Act., is not a simple denial of :i previous pleadiiii;. Welhr V. I'rocto); 10 1'. R. .'523.— Dalton, .1/./,s Ici: The plaintitr delivered a simple joinder of is.suc upon tile statement of defence and eouiitur- claim :— Held, that this closed the pleadini;a, and that iiotict; of trial served with it was reyii iar. JIare v. Cau-thruiie, U 1'. K. ;}53— C. P.'U. See Chatkrton v. Crothcrs, 9 O. R. C83, p. u2i. See FIM v. (JaUon-aij, 5 0. R. 502, p. 112. VIII. Sl-FXIALLY PlKADIXG A STATUTE X. Other Ple,vdi.ngs, The fact that a suit for the same matter is ])ei!ding in ynebee, cannot be urged as a plea in bar to a suit for the same cause in this Province, Hwjhes V. /iV( .s, .") O. R. 654. — Ferguson. The action was to recover money as compen- t (i/., 12 ' sation for land expropriated, and for other relief. Defendants pleaded a defence in denial, and also a tender of .S4()0 and interest, but did not pay the amount into court :— Held, that the defence of tender without payment into court was a gooil defence under the O. J. Act, and a motion to strike out the defence, or to compel jjaynient into court, or for judgment for the amount, with leave to ]»ioceed for a further amount, ^^•as re fused. Dcmurcfst v. Midland liaUway Cumpawj et al., 10 P. R. G40.— Dalton, Master. D. Ijrought an action to compel a railway com- pany to arbitrate to ascertain the value of certain land taken for the purposes of the railway com- pany, and after the service of the writ the com- pany served a notice to arbitrate, and after arbitr.i- lield, following the remarks i tion an award was made by two of the arbitrators, Rogers v. Ullman, 21 Cliy. but was subseciuentlv set aside by the court as The statement of claim alleged a partnership between tiie plaintiff and tlefendant, ijut did not aver wlietiier the agreement was in writing or not. Tiie defence set up a special agreement by which the defendant was to lie remunerated by a share of tlie prolits in lien of wages or salary, but did not expressly refer to the R. S. O. c, I3.S. It was admitted that something was due to defendant, and a reference was ordererevious pkadiiiir. >3.— Daltoii, .1/.!,^ |)le joinder of issue nee and counttT- jd the pleadin^.s, with it was reuii- . R. 'Mi-C. v.b. I 0. R. G83, p. Lli. )INGS. lie same matter is urged as a ])lea in Hi in this Vrovincu. Ferguson. money as eompen- nd for oth(!r relief. in denial, and also ;, but did iifit pay 1, that the defence to eourt was a gooil , and a motion to compel paynu'iit r the amount, with ;r amount, was re Railway Coinjnnnj Master. npel a railway com- tiie value of certain f the railway ccim- the writ the com- e, and after arbitra- of the arbitrators, le by the eourt aa ivith his action, and that the arbitrators ig of the award, but time limited, ami that therefore the ilway company be- ecome the amount arned judge found had been fixed by he award : — Hold, leadings had placed whether the arl)i- t, and as that issue aintiff, the sum of ;he compensation to was ordered. De- n R. W. Co. e.t al. former judgments. 0. K. 341 ; Ham'j it. See Hughes v. 198. ;er. it as the plea de- d the debt for whioli 541 PLEADING. 542 tl.e action was brought, and that such debt was incurred undercireunistances of fraud, and otTered 110 matter whatever of avoidanci- or in bar of tiie u-ti'.n it was bad. ShiihU v. Peal: ct al, 8 S. C. i:. STO. A defendant did not, within ten days after delivery of a domurrer to a paragraph of the -.tat'-nieiit of defence enter it for ai'trument and .'ivi- notice, nor serve an order for leave to amend, ,1-^ r.-i|uired by VUiU'. !!•."> (a) ( >. J. Act ; -Held, on ,111 ex parte motion liy the plaiiititl for judgment npiin his demurrer, tliat the proper practice in jU'h a cas-e is to apply to a judge in court, u])on iiMtii'(j to the oi)piisit ' party, for .-ni onlur to strike nut tlie pleading or )iart of the pleatling demurred t(i. and for a ilircction as to ]iayment of costs ; tint on the return fif the motion the jjarty in de- fault will have no right to bi; heard as to the vnliditv of the ])leading. LiritKiitaii v. Troiu, 10 I', it. 493.— Rose. A domurrer to a statement of claim raised the qui-tion whether in an action against a share- hiiMcr living in Ontario, in a <^)uebec .Toint Stock ('iiiii]iany incfirporatcd under the Dominion Joint Stuck Companies' Act, 1.S77, it is sullicieiit to sliiiw a judgment and execution thereon leturned unsatisfied in Quel)cc. or whi^ther this must be jliovn in Ontario : — Held, that the dtMnurrcr was not frivolous, lirh'c v. Mannt, 10 P. It. r)4S. — Dalton, Master — U(jse. Semble, tlie juiisdiction as to setting aside de- murrers as frivolous, should rarely be exerciseil where the point is a new one, and is apparently raised in good faith to obtain the opinion of the foiirt. II). Si'c Itif/s V. Thr Presii/fiif, Directors, and Com- villi/ of the Hank of Prince E'lward Island, 11 S. C. R. 265, p. 52. XII. Amending AND Strikint; oi-t Pleadinos. 1. Jurisdiction of Master. In an action for damages for detention of dower, detendants pleaded (1) that the lands in ([uestion wore wild, and plaintiff was not entitled to the sum claimed for damages, if any ; (2) that plain- ti'.f had assigned her claim for damages ; (,3) set nlT for moneys expended in respect of said lands ; (4i tliat they did not detain, but were always willing, &c. On a motion in chambers, after issue joined, for an order directing a reference as to the damages under s. 47 O. J. Act, and upon evidence by atiidavit both for and against the truth of the ])loas, the master made an order striking out the '2nd and 3rd pleas, and , O. J. Act, as that is limited to ' ' actions and matters" in tiic High ( "ourt, and a motion of tliis kind is neither "matter' nor " l)roceeding " (s. 91 O. ,J. Act) in the High Court. III. 2. Other Ca.ies. Per Hagarty, C. .1. O. — This court is allowed and re(piired by law to give judgment • 'according to the very right and justice of the case," and up to the last moment has the right to make any amendment ])ro])er for the attainment of that end. Thei'efore where the deftnidants had by their answers admitted the truth of certain para- graphs of the bill which charged that they had severilly imrchased witli notice of the claim of the jilaintitf ; but subseipiently they swore that they did not intend to make such admission ; that in fact tlicy had not had such notice, and the admission was ni.idc in ignorance of its effect ; the defendants n^) to the last stage of the pro- ceedings should be at liberty to set up the facts as a means of defence. Peterkin v. McParlane, 9 A. R. 429. I Amendment of pleadings by changing a breach I of contract not proved into an action for breach ' of warranty. See Ellis v. Ahell, 10 A. R. 226. Claims on behalf of a wife for alimony and to set aside a conveyance of the husband's property as frauilulent should bo joined in one action. j Separate actions were brought for such cl.aims, 1 the five defendants appearing by the same soli- citors, and filing separate statements of defence. A paragraph of each of the defences submitted that " the plaintiff h.ad made out no case entitl- ing her to relief." This was struck out by a local master, by \\\c separate orders to the same effect ; — Held, that the paragraph was neither scandalous, nor prejudicial, nor embarrassing un- der Rule 178, but was a mere reference to section 44 of the .Judicature Act, and should not have been struck out and the costs of only one order were allowed. Snider v. Snider , Snider v. Orr, 10 P. R. 140.— Boyd. ' A defence which is wholly inapplicable may I be struck out, unless amended, although it ia neither scandalous nor tending to prejudice, em- barrass, or delay. Chamherlain et al. v. Cham- berlain et al., 11 P. R. 501. — Ferguson. See Ward v. [Inrfhes, 8 0. R. 138, p. 475; Tor- rance et al. V. Lirinr/stone, 10 P. R. 29, p. .')38 ; Bank of Commerce v. Pauk of British yorth. Am.erica, 10 P. R. 158, p. 5.34 ; Ri/an v. Fish, 10 P. R. 187, p. 208 ; Federal Bank v. Harrison, 10 P. R. 271, p. 538; Lander v. Citrrin et al.. 10 P. R. (il2, p. -lOl-.Campliell v. James, 11 P. R. .347, p. 537 ; Creeiiizen v. Burns, 13 A. R. 481, p. 539. Bi3 POSSESSION. 54i 116x3 "Sis IllrfU {la«l XIII. Costs. Tlie (lefeiidaiits, lifiiig suuil its carrions for the loan of g.Kuln ill transit uiiilura cmitraL't l)ut\veL'U the iilaintiH's and delendants, j,'ave notice unllii)',i.-!iro,ih, .'i (». K. 201, p, PLEDGE. See Bkokek. POIJCE. Sei' Co.NST.Aiii.E. The jilaintifFs appointed tlu; defendant chief of police tif the town of .Stratford, at a named salary, but stipulated that he should act as county eon- ; stable within the town oidy.and account for and • pay over to the plaintitls all fees received by him from the county as a reward for services pei'- fornied by him as county constable : — Held, that under 5 and (i Edw. VI. c. 1(5, and 49 tieo. 111. c. 1*20, the agreement to account for such fees was invalid. Ttw Curpomtin)/ of the Town of iStmtf'ord v. Wi/soii, 8 O. R. 104.— Rose. Qua're, whether the plaintifl's, or the Board of Police ComniissioncrB, h.ad the power to appoint ' the defendant ; and whether, apart from the statutes above mentioned, it was not ultra vires ' of the plaintiffs to bargain with the defendant for the accounting to them for the fees of another office not under their control. lb. I production of the Ontario patent, being the d" tendant's allidavit stating that the magistiati had no authority or apixiintment fnn" the ( 'rii\v;i ur (iovernor-lieneral oi the itomiidon, and cli;,t | he knew this •" of common and notm iiuis re[iiiii. Ji'i-i/iiKi V. It'ii'lmi'il'-iDii, b O. K. tiol. — IJ. 15, 1). I'er Wilson, C..)., the power to appoint puh > magistrates rests with the Ont.uio (iovcrnuini! likliitritsuH v. Ji'uu/iuiii, 10 U. K. .'{s7. 11. .IlKlsDIcrioN AMI I'llIALS IJl-.l-iilii;. 'I'lu^ defendant sold to ('., amongst otht. things, a horse-power and licit, [lart oi his stuiv in the tr.ide of a hutcher, in which he also .smM a half-interest to C. The horse-power had Ixin hired from l;I'.. J., iiniDMyst (itiir. It, part oi hi.s ht'i' wliieh he alsu > -i il'se-power had li" :. ;he time of tlie s, ,- xpireil. At it.i i\' U. claimed that h.. nchilit. The tleiti,- take it out ot tu uid deliver it to .M,, was summarily 111' : .nd eonvieted oi ,ii. '_'!, s. UU(Dom. li- as bad, there lieii,: m, and no jurisili- ! to try summarily, D. — Rose. ;rate cannot restiv. uperior Court umin :iu is not within tin V. Jiic/ianUuii, S U not entitled to u jrari, to a suiieiinr rate or a justice oi • at auy time, lor tlit r trial for the rejix- e the conviction i; tion not being beiwt de to qiuish it. 1:11.: ; eouvictioii in tlii; ed, and an order iii;! rate and prosecut luer to hear furtiitt fused, both niotioii.- , the magistrate ai- le best of his juik- lid his decision as ti lug a matter of Au- rt would not iutu 10 P. R. 517, p. li SCE. ON. sion — See Bills of TEL Mortgages. TATioN- OF Actions. ,i45 PRACTICE. 54G 2. Refusal til Surreuihv — See Landlord Tenant. 3. Recovery of PoKKenston — See Ejectment. 4. Deliverii of Posnexnion — See Sale of Land. 3. Order fur Itinitedhtic Ponnennion — See Railways AND KailwayCompanie.-!. POUNDAGE. See Sheriff. POUNDS AND POUND-KEEPER. See iMPorNDiNC! Animals. POWER OF APPOINTMENT. -SV'' WlLF,. See Smith v. McLellav, 11 O. R. 191, p. 308. POWER OF SALE. See MoRTGAOE. PRACTICE. I. Writ.s. 1. Endorsement, 546. 2. Service. (a) Service out of Ontario, 546. II. Appearance, 548. III. Consolidating Action.s, 548. IV. DrscLAiMER, 549. V. Dismissing Action.s for Want of Pro- secution, 549. VI. Transferring Causes from One Di- vision OF THE High Court to An- other Division— 6'ee High Court of Justice. VII. Judge, Local Judge, and Master in Chamber,s. 1, Jurisdiction. (a) Judije, 549. (b) Local Judge, 550. (c) Master in Chambers, 550. 2. Appeal from Master in Chambers, 551 . VIIL Master in Ordinary, 1. Jurisdiction. (a) Generalhj, 552. (b) In Administration Suits — See Ex- ecutors AND AdMINLSTRATOKS. 2. Proceediwjs in Master's Office. (a) Generalbj, 553. (b) Mort(in(je Suits — See Mortgage. 3. Appeal From, 554. 35 IX. Powers of Regi.strar, 554. X. Local Master.s. 1. Jurimllrtioii, ,555. 2. CoiifrmnliDn of Report, 555. 3. Appeals Prom, 555. 4. Rifrrince to ■ Ciiij v. The Grand Trunk J{. \y. Co., 10 P. R. 37'2, p. u5U. II. Al'l'KAIlANCK. j The plaintiff issued a writ of suminoiis, un I I registered a certificate of his lis pendens u|iM;i the lands of tiie di 'ciidant Tcotlie. The diiri. I daiit not having been promptly served with tii' I writ, and being anxious to get rid of the suit i ii tered an appearance gratis. The master at Lun don made an order in ciianibers upon the appli cation of the plaintiff striking out the .ippuai- ance : — Heloii appeal, that there is iiotliins' in the Jmlicature Act or rules wliich iiiti litre. with the well-rcc ignized practice that a (lefuii daiit has a right to appear voluntarily, iuid u anticii)ate the service oi actually issued [)i(icc,<. Kspecially should his privilege to appear Ljiiiti. lie preserved in a case where his property i. directly and prejudicially affected by the cum meiicement of the action and the registratiuii di its peiulency. Appeal allowed, with costs in the cause to the defendant in any event. .l/-- Twjijarl v. TuotlK- et al., 10 P. R. 261.— Boyd. In an action of ejectini'iit, G., the landlady (ji the defendant C. intervened and appeared tu tht writ. C. did not appear until statement of claim delivered, when ho appmred and joined witliH. i'l tile statement of defence : —Held, that tin; appearance of (J. was regular. Goriti'i v, '.'im '■nm, 10 P. K. 4,'iit.l upon it, for default of a statement of defeuci. was set aside, v/ith costs. Pnelw. White, 11 1', 15. 177. — Dalton, Mauler. III. CoNsoLiD.\TiN(i Actions. The plaintiffs in their first action claimed from ] the defendants a sum of §"200,000 as the balance ; due upon a construction contract, and in thi» i action, begun some time after the first, they claimed from the same defendants a sum of -•?:).- I 000, the amount of an account for goods sold an i I ilelivered. Tlie cause of action herein arosu bi- I fore the conimencenicnt of the previous anion. I The first action was practically consolidated witii I an action of the defendants against the plaiutii: in the Ciiancery Division: — Held, that the tw ; claims should have been made in the one ajtini, and that it was a proper exercise of discretion t , leave the claim in this action to be tried witii tli' claim to which it should originally have Ihmi joined. Coiiiwe et al. v. The Canadiun I'li i li,'iatratiim ni 111, with cost< ill [luy event. .1/ ■ li. '201.— Boyd. , the laiidlady mi (I appeiired to tin tateniont of claim lid joined witlii:. — Held, that tin; Uorinii V. '.'(HI fanU'r — Oaler. ;he defendant t'li lie 08, O. J. Act, in ill the particJ- mniona. The ap- adant did not if lueiit of claim :- ee a stateinuiit d! judgment sjiguel ment of deleuci. dv. While, 11 P, ACTION'S. ition claimed fi'oin )00 as the balaii.t ,ract, and in tiii^ the tirat, tliiy lilts a sum of •■;:).• n- goods sold an i ,1 liereiu ai'osu in- previous aotioii. consolidated witii ,inst the plaiutii:- M, tliat the t\u 11 the one actimi. se of discretion 1 1 he tried with tli.- ;inally have i)iMi Uduaiiiaii I'li-ir 11. 'i-.'--'— C. !'. I'' no jurisdiction v anieuts have l)w:i are pending' i^' ;., 11 1'. u. ;i:ii - 549 PRACTICE. 550 Sw Millfr Hal. V. Confi'derallon Life AMoi'ia- iiiiii —Coiij'idrralioii Liff Aixncii-ilion v. Millar it ,L. 11 P. 11.241, p. nhs. IV. DlSCI.AIMKK. See /iearU v. CiVilil Valhni /i'lihmi/ Co., (). I!. iJHi, p. i:Jl); W'lm/i'i/ v. 'yiiiaUw»i,'d, 11 A. I'lT 4;i9, p. NO. V. IJISMI.SSINU AoriON"^ KOH \V.\Nr (IF PkO.SKCI!- TION. Meld, tiiat the (iliiig of a statement of claim .mil an undertaking to speed is not a sullicient uiiawer to a motion to dismiss. The delay must Im; sulliciently explained. In this case, being an action for a large claim against sureties, tiie plaiiititl's not liaving in tiie opinion of tlie court iiillicieiitly explained, otTered excuse for a delay 111 nearly two years, or shewn a pro))abiliiy of [iroceeding speedily, tlie action was ilismissed rtith costs. Xnjxiui'i, 'J'liiiiii'orth, and (Jiteln'c i'Miriitj (Joiiipau!/ V. M<:l)oH, 0. .1. Act, dismissing the action for want of pro- secution where issue liad been joined, l)ut tlie case liad not been set down for trial nor notice of trial given, was: — Held not a dismissal on the merits and not a bar to a subsequent action for the same cause. Roberts v. Lucas, II P. 11. 3. — l!ose. An order of the 4th October, 1886, extended the time for the delivery of statement of claim till the rith October, but provided if it was not so di'livered, the action should stand dismissed, with costs. Upon failure to deliver in time, the defendant signed judgment dismissing the action : -Held, that notwithstanding the dismissal of the action, an order could properly be maile uu- ier Rule 462 vacating the judgment, and further extending the time for delivering the statement, mil the master in chambers had jurisdiction to make such an order. Newconibe v. McLuhan, 11 P. K. 461.— Wilson. VII. JuDOB, Local Jud(?b, and Master in Chambers. 1. Jurisdiction. the defendant from custody after the order has been acted upmi. .\[i'S'uhli v. Oiijieiiluiiin r, II P. It. 214.-lli.se. Jurisdiction to grant ailmiiiistration orders. See //I /v .)/ ((/(.-!(., 10 i». I!, its. See (,'niiU v. h'niii/, 10 I*. K. 40, p. 144 ; //iV /i(ird v. Arthur, 10 P. !!. -JSI, ; V. ('.,11,. 42tl. p. ')")! ; Itijiin V. '/''" t'liiindn .Snnt/nrn H. IT. ('v., lo P. it. .").'{.'), |. i44, liit'ni ; /I'li/iiiii, V. Arsciitt, !Ht. K. 541, p. (i:n ; A'/oi/u v. A'./i.>«, II P. I!. P-'l, p. 0r)2. (b) l.ociil .ludijf. Tiio plaintiir's solicitors lived at .Sandwicii, and tilt.' (U'ft'iidaiit's siplicitors at Toronto. The local judge at Sandwich in NovciiiUer, ISS4, made an ex [):irte order for leave to the plaintiff to ameiiil the writ of summons l)eforo service, and sul)se(|Ucntly set aside his own order on tiie defendant's ap[)licatioii, on notice to the plaintitl' and after .irgument l)y coiiiisid on belialf of Imtli parties. The plaintill' appealeil from the secmnl order to a judge in cii.imliers .at Toronto: — Meld, that the local judge had no [)ower to make the rescinding order under Rule 422. ( ►. .1. .Vrt. liiimi V. Canada Soiithfrn It. W. Co., 10 P. K, 5.il.— Rose— C. P. L). Subseipiently the d'^fendants made a siibstiiii- tive motion l)efore ciie s.'iine judge in chamliers at Toronto, to s'jO aside the original order ot the local judge : — Held, that save as excepted, a local judge of the High Court in proceedings in the High (.'ourt having the same power in cham- bers as a judge of the High (Jourt in chambers as ti) the matters referred to in the .Judicature Act Rules, he is a jud;_'e of coordinate jurisdic- tion with a judge of the High Court in cham- bers. A judge of the High Court lias, therefore, no power to review the decision of a local judge, save by way of appeal in the manner provided ny the .ludicature Act Rules ; and that this motion could not be treated as an appeal as it was too late under Rule 427, O.J. Act. ///. See also Li^ro- luotire Engine Co. v. Copdaml et at., 10 P. 11. . 572 ; Jaiiiii'.ion v. Prhur, Albert Colonizatiun Cn., IIP. R. 115. I Held, following the former Chancery practice, , that a local judge may make an ex parte order for the examination of a witness de bene esse, on the ground that he is dangerously ill, and not * likely to recover. Baker v. Jackson, 10 P. R. 624.— Rose. A local .Judge of the High Court has no power ' to order the discharge of a defendant held in cus- tody under a ca. sa. issued out of the iligh Court of Justice. Coclirane. Manufacturing Co. v. La- Dion, 11 P. R. 351.— Gait. (a) Judge. There is nothing to prevent a judge sitting at at the Assizes hearing a chambers motion, if he is ilisposed for the purpose to treat the court room as his chambers. The Sarnia Aijricultund liniildni-nt Manufacturing Co. v. Perdue, 11 P. K. 224.— C. P. D. A judge in chambers has no power to rescind 'tis own order for a writ of ca. aa. or to discharge (c) Master in Chambers. Jurisdiction to grant administration orders. See In re Munsie, 10 P. R. 88, After judgment has been entered against an absconding debtor pursuant to the (indiiig of a County Court judge on a reference under R. S. O. ch. 68, sec. ',(, tlie master in chambers h.is no jurisdiction to set aside the judgment at the in- stance of another creditor who wishes to be let in to defend. Wills v. Carroll 10 P. R. 142.— Uhy. D. sni PEACTICE. 552 ::si: tics The jilaiiitifT not appearing at the trial, which took placo at tliu Picton Assizes, before Patter- son, .). A., juilgint'iit was directed to l)e entered for the defendant, witli costs. Application was su)>se(|uentiy niiide tf) tlie judge at tlie same as- sizes to i-et aside tlie judgment and reinstate the case on the list. This was refused, the jdiiintiff not being then ready to go on. Application was then made by the i)laintit}' to the master in ch-iin))ers under Rule "270 O. .). Act, to set aside the judgment I'Uteied at the trial. 1'his motion was enlarged before llose. .1., in eliand)ers, who: — Held, that Itulc 1270 (>. J. Act does not give jurisdiction to the master or a judge in eluim- bers in such cases. lliUhiril v. Arthur, 10 I'. J!. 281 ; 6'. C, ll>., 4-J(i— (,). IJ. 1). A judicial otliccr cannot delegate the discharge of his judicial functions to another unless ex- pressly empowered so to do. 1"he vaiious kinds of references to judicial oHicers under the Ontario Judicature Act commented upon. In n (Jna-nCili/ Ri'fmiiii Co., 10 V. II. 41,").-- Hoilgins, Mn.^tfri'n Ordinarij. The master in cluunbers, and Incal masters and County Judges, acting under l{ule4'2'2 0, J, Act have no jurisdiction unilcr sections 47 and 4S, (). ,1. Act to order references in opjiosed cases. White V. Ihnnir, 10 1". It. r)31.— Boyd. Held, following White r. Beenier, 10 P. R, r),'{l, that the master in chambers has no juris- diction to order a reference uiuler sec. 47 O. J. Act. An ajipeiil from the master's order lUrect- ing a reference was treated as a substantive mo- tion, and a reference was directed, under Rule 3"23 O. J. Act. The Uv.on Loan and Snvbuj/i Vompany v. Boomer, 10 P. R. i)30. — Rose. The jurisdiction of the master in chaiuliers to grant a (juo warranto .'jummons under the Muni- cipal Act, 188S (Ont.), is established by the 13th see. of the Administration of Justice Act, 1885 linjiua fj- r,l., Felitz v. 1 lowland, 11 P. K. 264. — Dalton, Mu'ilir. The m.-vster in chambers is not, in any sense, by delegation or otherwise, a judge of the High Court of .lustice to whom power is given ))y the Municipal Act, 1883, to try and determine cases of controverted municipal elections ; nor can such power be given him by tiic ac(iuiescence of the parties. Ueiiinu ex rel., WUsun v. Dtturaii, 11 P. R. 37'.).—' O'Connor. Under Dominion Insolvent Company's Acts. See In rp (^iiiin Cili/ lieliminj Co., 10 P. R. 415, p. 124 ; y.V Joxei'h Hall Mmvj'ncturinq Co., 10 P. K. 48.'), p. 125. As to striking out pleadings. See liiinn v. /7v/( H al., 10 P. R. 187, p. .'i^l. As to changing venue. See Brii]liam v. Mc- Ki'nzie, 10 1'. R. 40G, p. .'■)42. See Newcomlf v. McLuhan, 11 P. R. 461, p. 549. 2 Apjtnil friim Ma^liv in Chamhem A writ was emlorscd si)e(Mallv for .'?0I0, the amount i>f a bill of exchange, aiild also asked to have certain conveyances, itc, set aside as fraud- ulent, 'i'lie master in clKind)ers made an order for judgment under Rule 80 (). J. Act, on January 1 1th. Proudfof>t, J. , on an ex parte application nf the defendant for leave to bring on an appeal from the master's order on the 17th January, diioctui the appeal to be set do\\n for Monday, Januiuv 21st; — Held, that the appeal was properly brouiiiit. Standard Bank v. Wdls, 10 P. R. 15!).— Fergus,oi. No objection to his jurisdiction was takni before the master -. — Held, that the appliia tion having been entertained, an appeal t(i . judge in chandier.'; of the Chancery l)ivi.-n:ir, 10 P. R. 406. -Boyd." An appeal from the n. aster's order refusing' costs was dismissed, without costs, where tiit atlidavit in denial of s[iecial directions contaiiitii impertinent and scandalous matter. Van.ita.hr V. Vaitxtadi'n, 10 P. R. 428. — Osier. Appeals from tht* master in chambers may li- brought on forbearing bi'fore a ju;n v. A'-w, 10 I', li. .SOI.— Hod- .'ius, Master iti Ordinary. In proceeding on a judgment for winding u[) a ..oiupany, the tormer solicitor of the company Ijrought iu a claim for bills of costs alleged to be due liim, which the former master ret'crreut to all such references Chancery Order "J'-'O applies. /// /•' .Midisic, 10 i*. I!. OS. — Hodgins, Miisfir in OrdiiKiri/. Where, on an application for such order, it appears that there is a substantial and preliioi- nary nuestion to be decided, suidi i|Uestion should be (Lcided before the referenct! is ordered ; and the court may limit i time within which the pui- ties may try the issue. lint if the issue is not tried, or the order is made in chandlers without first directing such issue, the parties are held to have waived such preliminary (juestiou, and can- not raise it in taking the accounts under such order iu the master's office. //<. The jurisdiction of the master's otlice is not co-extensive with that of the court in eiujuiring into and adjudicating upon the validity of doci- ments ; anil there is no authority to support any implied or assumed delegation of the functions of the court to the master. Nor is tliere any prac- tice in the master's ollice which allows parties to obtain a reference to the master so as to evade the ordinary judicial functions of the court, and then invoke those judicial functions in a tribunal of delegated and subordin:ite jurisdiction, /h. Admissions made before the master iu the course of a reference should be put into writing and signed by the party making the same. Foster v. Allison, 11 P. li. --'.SH.— Boyd. Manner of taking accounts in fixing an occu- pation rent to be ciiarged against one who had occupied land under mistake of title. See Miin- sit v. Lindsay '■! a/., 1 1 O. iv. .")20. 3. Ainteid Front. Where, after the argument in chambers of an j appeal from the master's report, counsel for one of the parties asked that the appeal might be treated as though argued in court, and any order made thereon issue as a court order ; or, at all events, that costs should be allowed as of a court motion :— Held, that although the appeal would, on account of its nature, have been adjourned into court, if such adjournment had been asked before the argument of it, the present application was too late, and the court hail no power to grant it. lie Fltniiiiij, 11 P. R. 27'-. — Ferguson. IX. PowKus t)K Hkcistkar. The registrar of a Divisional Court has power : to receive evidence by atlidavit to shew that an I order of court has not been obeyed, and to en- force the order by striking out paragraphs of tho defence. Hamilton Uoad Co. v. Fintt, 10 P. U. .")8 1 . - - Dal ton , Master. US* ii^T a liU. life! 555 ■MM! PRACTICE. 55t) X. L()CAi> Masters. .1 . Jur';sdiction. Rule 422 O. J. Act anil its subsection (a) must lie read together, and hence the limitation in the subsection of the jurisdiction of the county jwdge in certain cases curtails thut of local masters in similar cases. The local master at Hamilton in the county of Wcntworth gave leave to sign final judgment under Rule 80 O. J. Act, in an action in which the solicitor for the defendant liad his place of residence and office at St. Catharines, in the county of Lincoln, and no office in Hamilton : —Held, that under l{ule 422, 0. J. Act, the local master had no jurisiliction to make the order. Freelw MncdonabI, 10 P. K. 170.— Boyd. The plaintiff, as mortgagee of the defendants, by an instrument dated January .30th, 1883, pur- porting to be duly executed by the plaintiff, commenced an action for the sale of the mort- gaged property. The writ issued duly indorsed under Rule 17 0. .1. Act, and default being made, ' judgment was obtained undei' Kule 78 (). .J. Act referring it to the master at Lindsay to make and take the enijuiries and accounts as prescribed by G. O. Chy. 441 (form IGS t). J. Act). The mas- ter gave certain execution creditors, who had been made parties in his office and proved their claims, pi'iority over the plaintiff' on the ground that the instrument in tjuestion was invalid, the terms of s. S.') of the Canada Joint Stock Clom- pany's Act of 1877, which requires the sanction of a two-thirds vote of the shareholders, not ha\ing been complied with ; — Held, that under the decree the master had no power to adjudicate upon the validity of the instrument in (juestion as a mortgage, and the execution creditors not having moved against the judgment by virtue of which they were made parties were also bound by the decree. MvDouiftM v. Lindsay Paper Mill Co., 10 P. P. 247.— Boyd. Local masters and County Court judges acting under Rule 422 0. J. Act have no jurisdiction, under ss. 47 and 48 O. .1. Act, to order references in opposed cases. White v. lieemer, 10 P. R. 5;U.— Boyd. 2. Conjlrmation of lieporf. A decree directed a reference to a local master to ascertain such sums as would be sufficient to satisfy the damages complained of, awarded costs and directed payment to be made forthwith after the making of the report :— Held, that the re- port did not refjuire confirmation, and therefore that executions issued under it by the plaintiff were valid ; but pending an appeal from the re- Eort the executions were stayed in the sheriff's anda. Lewis v. The Talbot St. Gravel Road Co. it al., 10 P. R. 15.— Osier. .3. Appeah From. The solicitors for the defendants (except L.) had given due notice of appeal, but through in- advertence set down the appeal on behalf of the defendants the gravel road company only. Under the circumstances stated in the judgment the other defendants were allowed to set down their appeal. Leiria v. The Talbot Street Gravel Koad Co. H al., 10 P. R. 15.— Osier. An ex parte order for the production of docii. ments was made by the local master at Belleville on the 17th August, 1885, and an order was niadt by the same officer on the 9th September, IBS'., refusing to rescind his former order. The defen- dants appealed from the latter order: — Held, that the appeal was, in effect, an appeal from tlie original order, as the result, if the appeal woif successful, would be to rescind that order, aini the appeal was therefore dismissed as too latf. under Rule 427 0. J. Act. Jamii:-on v. l'rh,<; Albert Vuloniuaion Co., II P. R. 115.— l'.: guson. An appeal from an order made by a local mas ter, on Saturday the 17th April, M'as set down tn be heard on Monday the 26th April, which was Easter Moiulay, a dies non. The appeal was put on the paper for the following Monday :— lliM, that this course was proper and convenient, iimi also that the proper mode of objecting to the apjjcal was by a motion to strike it off' the list as improperly set down McCaio v. Ponton, 11 P. R. 328.— Boyd. There should ))e no alteration In the amount found due by the master when such amount Ikis not been appealed against. Judgment of Protul- foot, J., 11 O. R. 611, upheld in part. Gordun ft al. V. Gordon et al., 12 0. R. 593.— Chy. D. XI. Notice of Motion. An objection that a notice of motion given for a sittings of the Divisional Court, and served in time to be set down during that sittings, could not be set down in the following sittings, was overruled. Bras.'iert v. McEivan "t al., (i 0. 1!, 179— C. P. D. Where the defendant's solicitor was served with a short notice of motion, which was admit- ted to be defective : — Held, that the defendant was not entitled to the costs of counsel (ittending on the motion merely to show that the notice was irregular. )• alltr v. Claris, 11 P. K. 1.30.— Wilson. Where a defendant, upon being sued in the First Division Court in the county of Middlesex, fileda notice disputing the jurisdiction and served a notice of motion returnable before a judge in chambers, for an order directing the issue of a writ of prohibition to the said Division Court, to prohibit the judge thereof and the plaintiff from proceeding with the suit in that Division Court on the ground of want of jurisdiction in that court to hear and determine the same, but did not entitle his notice of motion, nor the affidavit filed in support of the motion, in any Division of the High Court of Justice :— Held, affirming the order of O'Connor, J. , in chambers, granting the writ, not a fatal objection, but one which could and should be amended under Rule 474, O. J. Act. Re Olmstead v. Errington, 11 P. R. 366.— Q. B. D. Where a party obtains an enlargement of a motion for the purpose of procuring further affi- davits, but does not comply with the terms on which the enlargement was granted, he is nnt entitled to read the affidavits. Campbell v, Martin, 11 P. R. 509.— Ferguson. 55b- production of docu- master at Belleville (Ian order was niudc h September, 188 », r order. The defen- I'order:— Held, that m appeal from the if the appeal were nd that order, uikI missed as too late, Jamivton v. Prhifi P. K. 115.- F.i nade hy a local nws,. )ril, was set down to h April, which was The appeal was jmt ig Monday :— Huhl, vnd convenient, ;uid nf objecting to the trike it off the list cCaw V. Ponton, 11 tion in the amount en such amount has Judgment of Proml- d in part. Gordun R. 593.— Chy. D. Motion. of motion given for ^ourt, and served in that sittings, could owing sittings, was 'Jwaii "t al., a 0, II, olicitor was served I, which was admit- that the defendant of counsel attending ow that the notice iris, 11 P. K. 130.- i being sued in the ounty of Middlesex, •isdiction and served e before a judge in ting the issue of a aid Division Court, af and the plaintiff lit in that Division t of jurisdiction in mine the same, but }f motion, nor the the motion, in any of Justice :— Held, or, J. , in chambers, 1 objection, but one mended under Rule id V. Errington, 11 I enlargement of a ocuring further affi- with the terms on granted, he is not vits. CnmpheV v, usou. 557 PRACTICE. 558 XII. SUMMON.SKS AND OrDEK.S. Remarks upon multiplication of orders and -umnionses in actions. See Snider v. Snider ; sni'ler V. Orr, 11 P. II. 140.— Boyd. Ko order of any moment should be made ex narte, except in ,i case of emergency. Thoman V, Sturftj, 11 P. Pv. 417.— Rose. Leave was given to the defemlants to read new affidavits ui)on their appeal from an order uhtained ex parte by the plaintiff'. Tai/lor v. ■/-//c \;.s^;-N ofCharili/ of Ottawa, 11 P. K.'490.— Ferguson. XIII. Skrvk E OF Papers. 1. (li'mrallij, .Service of papers on a Toronto agent for an niitsido solicitor is not good, unless accompanied with a statement of the name of the solicitor for whom the agent is served. Prettic v. Lindner ,ial., 11 P. R. 313.— Ualton, Master. Delivery of .statement of defence after the proper time. See Snider v. Sniiler, 1 1 P. R. 34. .'^ee Perkins v. Mi»ii^iiippi and Dominion Steam- ship ro. {Limited), 10 P. R. 198, p. 547. XIV. Stavino Peol'eedinos. 1. Pendimj Appeal. The trial of the action was stayed pending an appeal to the Supreme Court of Canada from the jiidi^inent of the court of Appeal upon a ques- tion arising in the action as to the method of trial of the issues in this and a cross-action. Cnmnrc el (it. v. Canadian Pan fir Railwai/ Co., 11 P. H. .356.— Dalton, ifa-'iter—iialt. Staying execution pending appeal. See Lewis V. rii'- Talbot St. Grarel Jioad Co. et al., 10 P. R. I.-). Siec McOrfffor v. McDonald et al, 11 P. R. 518, p. 88, See also Canadian Land and Emiijra- I'piu Co. V. The Miinieipalili/ of' Di/,iart et al., 9 0. R. 495 ;0'Z)o«o/we v. Robinmnk al., 10 A. R. 2. I'iU Costs of Former Proceedings are Paid. In 1879, the Grand Junction Railway obtained from the Court of Queen's Bench a rule for a maudauuis to enforce the delivery of bonds by the defendants to the amount of $75,000, pur- suant to a by-law of the defendants to aid in the construction of the plaintiff's road. On appeal to the Court of Appeal this rule w.is discharged, and on appeal to the Supreme Court of Canada, tlie Court of Appeal's judgment was affirmed, with costs against the plaintiffs. Since then the road has been completed, but the costs of the above proceedings have not been paid. This present action is brought in the name of the (lr»nd Junction Railway and the Midland Rail- way to recover the aforesaid sum of $75,000 in uwiney. Upon motion to stay all proceedings in this action till the costs of the former proceedings shall have been paid : — Held, notwithstanding that new circumstances having arisen, and the proceeding not being the same as the first pro- ceeinined as plaintiffs, the attempt to proceed in this action without first paying the costs of the former action is vexatious, and the order asked for must be made: following Cobbett r. Wainor, L. I{. 2 Q. B. 108. T/ie i. Leave '.vas given to the plaintiff to amend by setting up the Statute of Limitations upon pay- ment of costs, which were paid to and accepted by the defendant. Upwards of a year afterwards the defendant objected that such order had been improperly made : — Held, that it was then too late to object that the order had been made in error. Court v. Wahh, 9 A. II. 294. Held, that the service of the writ in this action on the station master of the defendants at Bow- man ville was void, but the defendants having ap- peared at the trial and after their objection to the jurisdiction had been overruled having pro- ceeded with the defence and cross examined wit- nesses, &c. : — Held, that they had thereby pre- cluded themselves from objecting to the juiisdic- tion. In re d'lii/ v. Grand Trunk Ji. W. Co., 10 P. H. 372.— Osier. The defendants appeared to the writ of sum- mons, and set up in their statement of defence that the High Court of Justice had no jurisdic- tion ; that the cause of action arose in Winnipeg, the defendants' liead office was at Montreal, and the service of process was on their agent for local purposes at London : —Held, that there was noth- ing in these facts to shew want of jurisdiction ; and that the appearance had precluded all ques- tion as to the sutticiencj" of the service. Dart v. Citizens /nn. Co., H P. R. 513.— Dalton, Manter. Waiver in pleading. See lim/hes v. liees, 10 P. R. 301. See Cochrane Manufacturbvj Co. v. Lamon, 11 P. R. 162, p. 29; Re The Merchants Bankw. Van Allen, 10 P. R. 348, p. 202; Hughes v. The British America Ins. Co., and Hxtghes v. 'The Lon- don Assurance Co. . 7 0. R. 465, p. 139 ; Jn re Mun- sit, 10 P. R. 98, p. 262. prp:ferential assignments. Sec Fraudulent Conveyancms. prescription. .See Li.MiTATioN of Action.'?. presumptions. Set Evidence. principal and agent. I. Evidence of Auency, 560. II. Remuneration and Commission, 560. ri. Power and Authority of Agent, 561. IV. Liability of Principal for Acts v\ AoENT, .'562. V. Liaiiility of A(iENT TO Principal, .162, VI. Right ok Principal to Contract Maj.k BY Agent, 562. VII. Mis(;ellaneous Case.s, .les. VIII. Agency in E lectio N.s—.SVe Paeliamkv- TARY ElECTION.S. IX. Particular Agents— .See The Severai Titles. m ■iwuld :;jat it !,iiiil rt ■M agi irol e\ , itadiii ■r a re a iiiit Wi ::iL' part ■i'lered. irol ev •'le ilt'f :i M:d pi :.it'wiisi j.- on a uantun vroiigfii i'7. I. Evidence of Acjency. D. agreed to purchase certain lands as agent for K., and accordingly executed an agreement for the purchase of the same in her own name. Helcl : — That the evidence of D. \s agency was receivable though not in writing, and that no subsequent dealing of 1>. , as by acijuiring the legal estate, could operate to the disadvantage of K. Quiere, whether Hartlett v. Pickersgill. 1 Cox. 15, 4 East 577, n. is still to ))e regarded as good law. Kitchen v. Dolan, 9 O. R. 432.- Boyd. II. Remuneration and Com.mission. Where a by-law of a municipality appointed ;i lifialth officer, but did not fix his salary :— Held, that the law would fix his salary at a reasonable sum, regard being had to the services perfornieil Boijart V. The Corpora/ion of the 'Township of Seymour, 10 O. R. 322.— Ferguson. Land agents have no right to accept coinniis sion from parties with whom they deal without the fullest notice to their employers that they hold themselves at liberty to do so, and asaepi on the Iptter's part to such right ; but neithei express notice or assent is necessary. It is hvl&M cient if from the nature of the circumstances thv ^^'^l ^^i you. Y bout a m the lat oept tlie expens pon an ; >rmance del, that III. Whert ".■rfect :ie Ijefo IS been als ar( 11 ts of tl riuoipal) vidence, iie det'ci isals an :ii. lice of the plaiiititl 1 farm in his liaiidi |nt of a certain conii lid be disposed n lidant himself adl Itt', the coinmissioi See Ihilnll ,t III V. Onlano Bank it a/., '.) A. It. 484, p. 300. l\. LlAIill.lTV OI' l'llIN(!irAT, FOK ACTS OK AcENT. The plaintiff during his initiation as a member f>f the defendants' lodge, in the presence of the princiiiul otlicers ;uid a number of membei's, con- stituting a full and perfect meeting, was injured through the rough us.ige of some of the members. It appeared that tliisand other proceedings were taken with the knowledge of all those wlio were present, luul that somewhat similar jiroceedings had happened on the occasion of other initiations, and that they were allowed anil not checked : — Held, that they must b" taken to have been done with the consent T. i W. signed and .sealed a deed of conveyance of ' certain land to C . who supposed him to be the 1 owner of the land, as he professed himself to ; be, whereas he was really only acting as agent for M. the owner. M. now brought this action against C. for specific performance of, as he alleged, a contract on C.'s part to purchase the 563 PRINCIPAL AND SURETY. 5G4 "■■— i; land. Tlicre was no note or inemoranduni of the alleged contract, other than the said deed, which was signed Jind sealed hy C. , and was in the ordinary short foTni, and acknowledged the receipt and ])aynient of the ]mrchase money, though the evidence .shewed that only 10 per cent, of it had been actually paid. It did not a])pear that the deed had ever l)ecn delivered : — Helil, that the deed, though incomplete as a conveyance, was evidence of a contract of sale, sufficient to satisfy the Statute of Frauds : — Held, also, that though W. ])rofessed at the time of the contract to he the owner of the land, yet, as in reality he Mas acting as agent for M., M. coulil avail himself oi the conti'act, and was entitled to judgment. MrCaiihy v. Cooper ct rt/., 8 0. R. 3 1(').- Ferguson. Affirmed, 12 A. R. 284. See iVohiisUif v. Oritllth ct n/., 10 A. R. 327, p. f)56. VII. MiscELLANEor.s Casks. Power of Toronto agent to change destination of goods or vary the terms of a bill of lading placed in the hands of an agent of a forwarding company at Waterford, Ont. . for carriage to Liverpool. Sec Movtrith v. Thf Merchants Ex- ■presn Co., 9 A. R. 282. Purchase of mortgaged premises sold under power of sale by agent of mortgagee. See Iin/al/s v. McLaurw, 11 O. R. .380. Power of municipality to act Jis agent for a railway in the construction of a subway crossing the track of the railway. See WeM v. The Cor- poration of the Vi//a(je of Pnrhlale ; Carroll tt at. V. T/ Crown and to all persons aggrieved V)y any bnarl, of the conditions thereof. liy s. 7 the inspectors are to appoint the deputy inspectors, who arc t^ be the deputies of the inspector for all the dutii - of his office, and their official acts shall be lulil to be his acts, and he is to be responsible tliciv- for as if done by himself. A bond was given liy the inspector, and the other defendants, as suiv ties for the faithful discharge of the duties ot tla said office, and for duly accounting for all moneys and property. A similar liond was given by tlu deputy inspector. The deputy-inspector niadi a faulty inspection, and the plaintifis purchased, relying thereon, and were damnified : — Hclil. under the statute and the bond given thereundLi-, the inspector M.'s sureties were liable for tin default of the deputy ; and that the fact of the plaintiff having a remedy also on the deputy inspector's bond was no answer to the claim against M. 's sureties : — Held, also, that the plain- tifl'swcre "persons aggrieved" within tlie mcaniiii; of the statute : — Quiere, whether the defendants were entitled to notice of action, but the qui's- tion was not decided, as want of notice was not pleaded. Sec. 11 provided that disputes between the inspector and the deputy-inspectors and own ers, &c., of articles inspected through or relating I in .any respect to the same, were to be settled \\\ i the board of trade, or where there was no sneh ! board, by certain specified persons : — Held, tliiit I the claim in this action was not a dispute within I this section. Verratt v. McAulay et al., 5 0. II. ' 313.— C. P. D. I Held, that where an official assignee in insol 1 vency had given a bond as siu;h with sureties, I pursuant to the Insol vent Act of 1575, and amend- ing Acts, and the creditors had duly appointed the same individual to be creditors' assignee. under section 29 of that Act, but had not recjuir- ed him to give security as such oreditors'assignee, the sureties under the bond given by him as official assignee remained liable for his dealings with the'estate, and were not discharged by reason of such appointment as creditors' assignee. A rm- strong v. EorMer et al., 6 0. R. 129. — Proudfoot. Semble,that one who brings an action against an official assignee in insolvency for default in deal- ing with a certain estate, upon his bond given as security against such defaults, is not bound to ascertain if the assignee is in default as to other estates ; and the sureties to the bond are dis charged by payment to any one who recovers judgment against them. lb. The bond contained a stipulation that in the event of any sum being found due by M. to tht bank interest should be payable thereon from the time an account of the balance due was deliveidl to the parties to the bond by the bank, and judg- ment was given in the court below in excess oi the penalty : — Held, however, as the law wouW not allow a verdict against the obligors for ,i greater sum than the penalty, interest could not be computed on that amount until after judg- ment. Exchamje Banks'. Sprinqer et al. ; Exchawy. Bank v. Barnes et al., 13 A. li 390. 5G4 ,URETY. linted an ins^iectni Act, 1874, STVirt. pcctor and ilejiuty ecurity by bond tn nance of the diitii- shall avail to tli. ievedby any bnarl: ■ s. 7 theinspertiii.- pectors, ■who arc to or for all the duti.- I acta shall be litM ■ responsible tlicn ■ bond was given liy lefendants, as sniv of the duties ot tlit iiting for all moneys id was given by tht nty-inspector nindi )laintifl's purchusod damnified : — liiM. id given thereundof. were liable for tin that the fact of tlic dso on the deputy iiswer to the claim ,also, that the plain- "within tiieDieaniiif; ther the defendants ;tion, but the (pRS- it of notice was nut Hit disputes between -inspectors and mvii . through or relating vere to be settled liy B there was no smh ersons : — Held, that not a dispute within Aiday et al.,5 0. II. Ill assignee in insol such with sureties of 1875, and amend- had (luly appointed creditors' assignee, but had not recpiir creditors'assignee, d given by him as ble for his dealings lischarged by reason ors' assignee. Am- R. 129.— Proudfoot. an actionagainstan for default in deal- in his bond given as ts, is not bound to default as to otiiei the bond are (lis one who recovers pulation that in tht id due by M. to tin- ble thereon from the je due was delivereil the bank, and judg- below in excess oi r, as the law wouM the obligors for .i f, interest could not it until after judg- n he shall remain in the said otKce, and shall render true and just accounts of all moneys, &.C., as shall come and have come into his luinds dur- iug his continuance in said office, and hi 'id the s;nue promptly into the hands of his successor in otfice, then, &c." He was re-appointed annually for several years : — Held, the re-appointments were not ecpiivalent to reiiiovrJs and re-appoint- rneuts, but were rather a ret'jntion in office of the same treasurer, and tliaii the sureties were not in oonsei[uence thereof discharged. To de- termine a man's office as treasurer under the statute, there should be some positive act of re- moval by which he is displaced and another ap- pointed, or by which the office, though continued in the same person, becomes different in some material point. Mere implication arising from formal re-appointment should not be deemed cipiivalent to such act of removal. The Corpora- tluii of the MiinkipaUtij y retain- ing the treasurer in oltict; after they had become awiire of iiis defalciitions and ('oiitinueil default : and that their fiiilure to do so wiis a l)reiich of duty towards the sureties, whicii reli^iised the liitter from all liiibility after the '_'7th of February, 1882. A reterenee wiisgniiited iit the pliiintid s election to tiike an account of the ivniount due under the l)ond to tluit date, ami in default of sucli election, the iictioii Wiis disniissei or Neglect of Obligee. In an action against the sureties under a bond guaranteeing the honesty of one M. as cashier of Ken; Of ii2» 507 PROHIBITION. 508 tlie plaintif)'s' bunk, charging misappropriation of funds by M, , the dufendantH sot up, as a bar to recovery, neglect of tlie directors of the bank in not examining tlie books, so as to detect any malversation on M.'s part: —Held, that to sus- tain this defence the sureties must shew eonuiv* anue between the plaiutiti's and M., or a very strong case of negligence, which tiiey had not done in the present case. The chief reliance of the surety, in sucii a case, ought to be, in the honesty of the man whose honesty he has guar- anteed. Exc/iuiiij''. liiutk of (Jannda v. Spriinjer 1 1 III. — Exihaiiiji. liaiik uf Ctnnidaw liarne.K it al, 7 O. U. 8(J'J.- -Ferguson. AHirined on appeal, 13 A. K. 390. See The Curjjoriition of the. M nHkijjalit ij of the Towiishij) of Adjciia v. Mi'h'/rny tt al., t( U. R. ")S0, p. oGti .' The Mirchmd'i Hank of Canuda v. McKan it al., 12 (). II. 4'J8, p. rm. 4. Death of Surety. The fact that the knowledge of the death of H surety had reached the officers of the bank formed no ground for relieving his estate from liability upon the bond. Ejchmuji' Hank of Canada v. S/iriwjer el al. ; L'xrhdiii/e Bank of Canada v. JJarne,^ et al., 13 A. K. 390: 7 O. R. 309. III. Rlfiiri'S OK SlKKTV ON A.SSKJNMENT OF JUUCMENT AcAlN.ST I'KISCU'AL. Where one brought actiou against a maker of a note and an endorser thereon, and recovered ju(igment, with coats, which the endorser paid and took an assignment of the judgment : — Held, that the latter was entitled under R. S. O. c. 116, s. 3, to recover from tlie principal debtor the whole of the judgment, including the costs. Harper v. I'vlhert et al., o O. R. 152. — Ferguson. Judgment for a debt was obtained by the plaintiti'a against the defendants, who stood to- wards one another in the relation of principal uiid surety. The surety paid the plaintiffs the amount of their debt and costs, took an assign- ment of the judgment, and then proceeded to enforce it against his principal : — Held, that the coats as well as the debt were recoverable by the surety, as against his principal. I'ktoria Mutual V. Freel, 10 J^ R. 4').— Dalton, Ma.''iir(ilhit) of tfif 7'iiii')ix/ii/) of Si'i/moiir, 10 O. R. 'i\2'2. — i-'ergnson. Where B. brought action against the township of S. to recover remunnration for medical ser- vices perffirmed on the instructions of tlu! cor- poration and of the board of healtli, and it was [ objected that the by-law professing to ajipoint I the board of lieaiih was invalid by reason of the fact that it merely ]nn-p()rtcd to apjioint three ; persons to be a board of health, but did not i make any mention of tlu; officers who, by 47 i Vict. c. .S8 s. 12 sub-s. 2, ai-o made ex officio i members of the board of health, and because it did not specifically state the three individuals named to be ratepayers :— Held, that looking I at tlie provisions of tiie said statute, and con- sidering that the attack now made upon the by- law was not l)y motion to (|ua8h it or of a like : character, the objections could not be allowed to ; prevail. /'». Injunction granted to restrain a municipality from erecting a smallpox hospital within another I municipality. See The Corporation of the Totmi- j ."/(I/) of Elizahethtown ft al v. The Corporation of the Town of Brockville, 10 O. R. 372, p. 328. See In ri' Workman ami The Corporation of the ToiL-n of Lindsay, 7 O. R. 425, p. 455. PROMISSORY NOTES. ,?e« Bills OF Exchange and Promissory Note.s. PUBLIC OFFICER. I. Generally — .SVp Office. II. Notice of Action to.— i^ee Action. PROSTITUTE. Set Bawdy House. PROTEST. I. Of Bills or Note.s— .S'ee Bills of Ex- change and Promissory Notes. II. Payment of Money under Protest— 5ee Payment. PROVINCIAL SECRETARY. Mandamus to Provincial Secretary refjuiring I pulilication of notice of increase of a Mannfac- I turiiig ( 'ompany 's capital stock. See Rt MiViSi'ij Munufadurinj Vohi/iaui/, 11 O. R. 444. PUBLIC SCHOOLS. Where a school trustee, who was a medical' practitioner, acted in his professional capacity under engagement by the board for examining the pupils attending the school as to the pre- valence of an infectious disease, and made a charge of $15 therefor, which the board ordered to be paid, but he afterwards declined to accept payment : — Held, that this disqualified him as trustee, and rendered his seat vacant, under 44 Vict. c. 30, s. 13, (Out). Retina ex rel Stewart v. Standish, 6 0. R. 408.— C. P. D. A new rural school section being formed, it became necessary for the then trustees to provide a sclrool site, itc. A public meeting of the rate- payers was called pursuant to 4S Vict. c. 49, s. 64 (Ont. 1, which nearly all tlic ratepayers at- tended, wiien the T. site was ciiosen by a major- ity vote of both the ratepayers and trustees as i tigainst the J. C. site. A complaint against this- its- 571 QUALIFICATION. 572 reault was ludged with the school inspector un- der sec. 82 of ttie statute, wliich led to liiu inakiug attempts to have an amicable adjustment of the diHiculty, tlie outcome of whicli Mas tliat two of the trustees yave notjpe of a subsequent lueetiug for the purpose of ohatiging and selecting a school site, at wliicli meeting a unanimous vote was liad in favour of a third site, called the C site. In an action by the other trustee and some rate- payers to have it declared that the last meeting was illegal, and to restrain building on the C. site, in whicli it appeared that fifty out of the sixty- seven ratepayers approved of the latter site, it was : — Held, that the necessary pre-recjuisite, under sec. ()4 of the statute, of taking the opinion of the ratepayers had l)een complied with, and the selection made was the T. site : tiiat no eiiange : of a sciiool witc siiould be made without the con- sent of tlie majority of ratepayers present at a ■ special meeting called for tliat purpose, and , that under the eircunistaiiccs of this case the school site liad been ascertained and hxed by the ' first meeting, but it was competent for tlie second meeting to cliaiigc the site with tiie consent of tlie necessary majority. WaHace <'t al. v. The Hoard oj Piddk SdiuoL Vraatii'sfur Uniuii School Sccliuii .Vunilwr Aiiir' of the Towunhip of Lubu, in the Count 1/ of Mitldkstx; et id., 11 O. R, (i4S. — Hoyd. The whole tendency of recent amendments of the Education Acts has been to give the rural school sections greater powers of self-regulation and self-government, and the courts should not be astute to interfere unless there has been a plain violation of the statute, or a manifest usurpation of jurisdiction, or a reckless disregard of indi- vitlual rights. The action was therefore dis- missed, but without costs, as it was a new point and the statute was not plainly expressed. lb. A mandamus to compel the adinissi m of a child to a public school will not be granted where it is shewn that there is not aecoininodation tor her, for this is a valid answer to such an application, especially where it appears, as here, that there is sutticient accommodation at another public school in the same town ; nor where it is shewn that the application for admission was not made in the regular and proper way, under the Public School -llegulations, as w.is the case here, inas- much as, although the child in question was a registered jiupil at the other public school in the same town during the preceding term, she had not attended there at the commencement of tlie present one, nor had application been made to the inspector to have lier admitted to the school to which admission was now sought. Dunn v. The Board of Education of the Town of Windsor, (i O. K. 125.— Ferguson. On the 3rd of December, 18S4, a school teacher dismissed the plaintitf, a boy thirteen years of age, for disobedience, speaking impudently when (juestioned about it, and refusing to be punished for misconduct. The matter was brought before the trustees, and on the (ith January they held a meeting and passed a resolution that the boy couhl return to school on his expressing regret for his misconduct. After the receipt of a soli- citor's letter on behalf of tiie father, the trustees, on the 10th ':'"'ebruary, held another meeting aii/ley v. Taylor, 6 O. 11. 108, p. 4S:;, Disqualification as school trustee. See Rc/m^ ] ejs rd. Stewart v. Standish, 6 0. R. 408, p. 57U. u72 reinstating thu n:- The father was not ; the nieetingM of the •uivry ; but lie was at, tlie iiiuetiiiii; ui ,f returned to aulKjdl, II of the 10th Fihru remained tliere for terfered witli hj the lid give him no m tlie Division Court 3tee8 for an alleged red judge disniiastii hut held tlie trustet-s )n must be (iisnii.ssiil i was not their act it caused tlie boy's f the reaolutioii as to lion: that the teathti as not acting uudir that tlicy were nut ■ to give the instruu- ''J > whilst owner of the lot continued to use, for t!i. inu'post! of |ias>ing under the railway fr 0., c. Kif), and s. 5 of C. .S. C. c. G(i, giving coii; pensation for damages to lands injuriously aBut ed. /I>. Semble, th.it where a parcel of land is seven i by the railway the actual value is the differcii between the value of the land of which it fnm part before the expropriation, antl the value the owner of the remainder after the exprn^iii tion. Ih. field, that the possible damages to bush lai from greater exposure to winds and storms, mi the greater liability to injury by fire by reason ■ ' the working of the railway, were contingcncii too remote to be considered in estimating tL' amount of compensation where there were i. buildings to be endangered. Ih. The notice by the railway company include^ compensation " for such damages as you niaj sustain by reason or in consequence of the power.- above mentioned " : — Held, sufficient to allov' the arbitrators to award damages resulting to tfc owner from the exjiropriation. J I). Held, that the right of compensation for lai;r. taken liy a railway company is not barred ?lini: of twenty years, and is not barred by the cliiiii. ant's title to the land being extinguished '') reas ^ llU'll to US«', till' t!;. ; railway IVoni mi r tor n]pw.'ii(l.s of x< ; :i'rniiiicil to i'oii\i ir lid fiiiliaiiltnunt : •i\t at lilii^ity SI) t' till' iilaintifV was. ,i. iiutlicni |{. W. ( ... II a ri'valuiitinn .; , .1. A., ilisMi'iitiii., il iiinU r tlif (.■iri'iiii ny (.'luim t'oi' ivlir' '(.■(■// /,'. II'. r,,., 11 lioli. tn])aiiy to lut ilnw ot till- railway mill, ut, IST'.I, M. 7, sill.- their right to cxpr. f coiiipcusatioii c, ilistiiictly lU'niaiiil'i _.foro, that an awa i.sati(jn to the owi; e (laniat,'u that mi;::.: I)(is8ilile exercise .' /( httini-n l III (J)iUi. Ufurifi' Toijlor, 6 ' ' e Consolidated Raj he value of the lai i ed. as the Act ilc lent to s. 7 of R. > c. (JCi, giving I'liii" s injuriously atla! siiiircd l)y lien, or otherwise ehargcil on lain!, within s. 'IW of i;. S. (». e. 1(»S, and he had not a v.iiilor's lien, for the relation of vendoi' and |inr- lim.'er never aroHn lietwfen him and the com- i.iiiy. lioxn V. 77/'' (liniiil Trunk 11, W. ''",, 1(1 II 11.447.— <^ M. U. Ill fixing coinpenHation to a landowner for 'ui.U exiirii|)i-iated liy a railway, tlu' rule is, to wrertain the value of the land of whieh it furnis 1 jiart hefort! the takin;,', ,ind the value fif sueh ind after the taking, and deduet one from the tin)-, till' dill'ereiiee thus arrived at lieiug the itiial value to the owiiir of the part taken. Iliile laid down hy Cauieron, (', ,!., in 1,'c arhi- tnitioii lietween The Ont.tr.o and <,)ueliee It. W . I'd. and (leorge 'i'aylor, <. it. ({., at p. H tS, fol- liwitd, Jiimi'it V. 'J'/i'' Oiiliiriixnxlijiiehi'i: A'liiliriiii I ... 12 (). II. (»'24.— I''erguson. The "t.'iking" is prop.jrly lixed as at the .late f tlu'ir inteiiiioii of taking the land ; jiiil it is not eorrect to .say th.at the value of the l:\ii.ls should he taken as of a d.ate prior to kiiow- wmte a letter addressed to If., agreeing; to eer- taiii tliin>;s wliei'ehy the damage to his pro- lierty would he lessened. This was delivered to the arliitrator for the eonipaiiy hefore the awaid was made and hy him to tiie umpire, hut was not eommunieated to II. until after the award, wliieli eont.iined recitals of the heiietits proposed liy this lettei', and assessed the conijieiisation at the sum origin.illy ollered hy the company, 'i'lio award was not Mnued hy H.'s arhitrator, who swore that, the letter alleeted the award, and re- duced the sum awarded, whilt,' the other two arliitr.itors swore it had no ell'eet upon their linding : — Held, that the award was hud. Jh, Remarks us to the caution to lie ohscrved hy arliitrators in sueh cases in considering or aetiuj^ upon such agreomeiits made pending the !irl)itra- tion. /''. Hy sec. !), siih-sec. 10 of the Railway Act, 42 \'ict. c. '.(, ( l>oMi.), where the sum awarded hy the ai'hitrators as compensation fur land taken, and d;iuiaL;cs is not greater than tli.'it ollered hy the eompinv, the costs of the arhitration shall he iliic of inteiiticn to construct, or ill anticipation )),,rne h'v the opposite iiartv ; hut if otherwise, tthe construction of the railway. Interest is they shall he home hy the company; and in either case, they may, if not agreed njion, he taxed hy the judge. On the 2nd August, ISS.'t, the (). and (/. It. \V. t'o. served I', with the statutory notice of their intention to take thrco and forty-two huudreilths acres of I'.'s land, ;iud l.i'iipcrly alloweit to the landowner on tlu' amomi .iliis compensation from tile time of the takiiij Miihove tletiiied to the time of the award. /'/. See lin/.'ioii i-/ a!, v. Tin' >hiliirio unit (Juilni r, Cu., 8 o. R. ;iso, p. iwx u. 1 of land is seven i ilue is the ditreren ■ d of which it forii 11, and the value '■■ after the exproini amages to Inish lai. il inds and storms, iii ij hy tire by reason .:■] were contingtncii- . in estimating tl... here there were i. 11). ly company includt- [images as you ma} I quence of the powtt!! sufficient to allc.'f lages resulting to tb ni. lb. nipcnsation for Inr.c is not l.iarred sliw'l hurred hy the clniui ii_ lany having I'er' An ..ur, atioii was not luem 5. Onh'r for Iinmi'diate I'o^ifi's.-iknt. Iiiimnliate possession of land, alleged to he lii (.essary for tlu; purposes of a r.iilway, should not he granted to the railw.iy on summary jirf)- .(■ss under the Railway i\rX unliss two jioints are very clearly estahlished : l.st. That the com- [laiiy has an indisputahlo light to acquire the Liiiii hy compulsory ])roceedings ; and 2nd. That there i.s some urgent and siilistautial need for iiimiediate action ; and inasmuch as these jioints L 'uld not he said to have heeu clearly estahlished i.y the atlidavits and arguments in this present rase, the court declined to interfere sunmiarily, ami dismissed the apjilieation of the railway (.im|)iuy for a warrant to enter forthwith upon tliL' lands :— Quau'e, as to power of judge to award costs dii'cctly under the Statute, 47 Vict, c, 11, (Dom.) Hi' Kiiiii.ftn)! iiikI Pirnhnde Ritil- nyt'o. and Murphy, 11 P. R. .304.— Boyd. y g extinguished l')| 'leuii i;| ,1.. tl.c tendered Ss.*},!!;!.") as compensation therefor ami for damages. This notice was ahaiidoncd and an- other notice given on the 2.'jld Noveniher, oller- ing the s.-inie amount of money hut reducing the quantity of land to one and lifty-four hundredth acres. The oiler was refused and the arhitration jiroceeded Mith. The railway cut oil I'.'s land .'roiii the highwHj', anil on the j)laii attached to the notice no crossing was shewn. The arhi- trators met on the 27th hecemher, when the comiiany tendered a deed hinding themselves to make and 'iiaiutain a crossing. The arhitrator.s assessed the conqiensation and damages at ■'?;!,.") l(i, orlSllit less than the amount tendered ; hut thi.s was after taking into consideration the value to 1*. of the crossing ; — Held, hy reason of the oti'er to make the crossing after tlie arhitratiu's met, the tender then made was not the same as that made prior to the arhitration ; and therefore the jiro visions of the section as to costs did not apply. A rule for a mandamus to the county judge to tax the costs to the company, ami for a prohibi- tion preventing him taxing I'.'s costs, was re- fused : — Qua're, whether the judge had under the circumstances any power to decide as to costs at all. The Ovttirh) and, Quebec Ihiihmy Cu. v. Philbrkk, T) O. R. ()74.— Calt. On an arbitration with regard to land taken by a railway company, the argument closed on the 10th of August, and the arbitrators adjourned until the 1 1th, when, after discussion, one of them said he was sorry he could not concur with the others in the sum they had agreed u[)on, and withdrew. The other two then signed the award in presence of each other, and re-acknowledged it ill presence of a witness on the Nth of August: i — Held, that the meeting having been adjourned to the nth the case was within the terms of 42 Viet. c. O, s. <.t, sub-s. 17, (Dom. ): — Held, also, 6. Reference and Award. The railway company served a notice on H. Ii'.iiiler 42 Vict. c. 9 (Uoin.), offering a sum of Imo: ey as compensation for land to be expro- Ipriated by them, and naming an arbitrator. H. l>eived a notice on the company, naming his hnliitrator, and the two apnointed a third : — IHelil, that the notices of appointment of arbi- Itiators and the appointment of the third arbi- Itraur might be made a rule of court under C. L. " Act, 8. 201. Re Credit Valley W. \V. Co. v. '■le.it Western R. W. Co., 4 A. 1!. 532, disfin- kiii-^lied. Herriiiij mid yn/iailee, 'J'lniiirurlh, mid IV'" W 7?. II'. Co., 5 O. R. 349.— Rose. ,, • ■ „ ,■•.,., , alter reviewing the authorities, that tlitt .award ■Alter the evidence had been closed the con- \\as valid at common law. Freeman v. Oii/nrio l-tr- tion coniuiittee of the railway company k«(/ ^'((e^cc 7i'ai7(«i((/ Co., 6 0. R. 413. — Rose. 37 %: 'I ■lis* 579 RAILWAYS AND RAILWAY COMPANIES. ■I oSi) An appeal on petition will not lie froin the ] awanl (,f arljitrators appointed under the Uomi- ' nion KiuhvayAct, 187!», 4'J Vict. e. 9 (Doni.) The '. only niiide of inipeachiny such an award is by an , action to .set it aside ; or else to make the sub- j mission a rule of court, and then move to set it aside. 'I'lie appeal given l)y K. .S. O. e. 165, s. '20, siil)-s. li), only ajiplies to railways over which the Provincial Legislature has jurisdiction, and , is not available in such a case as the above ; — • iSeinlile, the court has no power to turn such a petition as the present into an action. J{c Lea anil Tlif Oiitiirio and (Jiichu; Railwaij, 8 O. R. i 222.— I'roudfoot. | Held, that tlio Canada .Southern Railway, al- though brought under tlie jurisdiction of the ; Dominion ijcfora proceedings had been tr.ken for expropriation, A'as still suljject to the J{ailway Act tlicn in force in Ontario, C S. C'., J. 0*1. An I award having i)een declared void by the Supreme Court was amended so as to meet the objection, i given etlect to i>y tiuit court and was re-exeouted l)y the arbitrators after the time limited for niak- ; ing the award had expired. The company hav- | ing tik'd a bill to set aside such award, as well as ^ tile original award, the defendant, by his answer, asserted the validity of both. The bill was dis- missed on the ground that it was unnecessary : — Held, that this, in <^ll'ect, affirmed their valiility, and an appeal was allowed. Xorrillet al. v. Tlie Catuiilti Sodlhi'vn li. W. Co., and three other case.^, and, 'J'hr Canada Houtke.rii R. \V. Co. v. Xorvell et at., ecanie liy statute a Dominion road hiving previously Iteen an Ontario road : — Held, that the procedure \>\;r vided by the Dominion Consolidated Railway Act, 1879, applied to the proceedings, and tluie- fore that an appeal under the provisions of tlu Revised Ontario Railway Act could not be ])rj- secuted. Darlbxi v. The Midland Railway '.'o.. 1] I'. R. ?•:.— Boyd. Money was ])aid into a bank under Consuli dated Railway Act, IS79, (Di)m. ) s. 9, sub-.,, 28, and an order for innnediate possession nf lands expropriated by the company was maile l,y a judge under the sub-section, and an awan! n: compensation was made subsecpiently : — Hul 1, that the landowner was entitled to interest uu the amount awarded him only at the rate allowti by the bank on the money paid in, and not at th.- legal rate. Re Geunje Taj/lor and The Ontario aiol Queltec Railwaij Co., 11 P. R. 371.— O'Connor. An order was obtained for immediate passes sioii of land under the Consolidated Railway .\i.t, 1879, (Dom.,) and money was p.aid into the Cana- dian Rank of Commerce under the same Act l^y the company : — Held, that the landholder wij entitled to interest upon the amount subsecpioiitly awarded him from the date of the award, only at the rate allowed by the bank upon a deposit, ami not at the legal rate of six per cent. R; Lea, 21 C. L. J. 154, followed. In the litigiti :; that ensued, it was determined that neither paity was entitled to the costs of arbitration undtr th; statute ; but the company, in order to take \\\i the award, paid the wliole of the arbitrators' fci.^; — Held, that a summary order could not be nrnit to recoup the company for one-half the fees dwx of the moneys payable to the land-owners, ani such order was refused without prejudice to an action for the same purpose. Re Philhrick ni'l Ontario and Quebec Railwaij Co., 11 P. R. 373,- Boyd. vSee /« re Arbitration beJwee.n The Ontario ivh Qui'bec Rniho'iji Co. and deorije Taylor, G 0. R 338 p. 57(5 ; Janiis v. The Ontario and Qn^'r Railway Co., 12 O. R. G24, p. 577. IL Co.VSTRCCTIO.V OF RAILWAYS. 1 liriilije/i and Subways. Action to recover damages for injuries austaine by the plaintiff i)y reason of an 'overhead briilg being less than seven feet above the top of ta , (letcn agreement was made. P>y the Act of IS^l.t \'iet. c. 24, s. 3 (Dom.), amending the Con.-" ilated Railway Act of 1879, every bridge or otli erection or stru :ture under which any raihvj; passes, &c., existing at the time of the passKH 5Sl RAILWAYS AND RAILWAY COMPANIES. 58: ;he procedure \)V>r olidateil Railway eilings, iiuil tlifio- proviaions of tin i could not be pi')- 1 'and Railway (Jo.. ik under Consuli )om.) a. 9, suljv iate possession "f pany was made l.y , and au award m eijuently : — licll, led to iuterest cu it the rate allmve i 1 in, and not at th. ml The Unfa riodiL'l 371.— O'Connor. immediate posses lated Railway Ait, paid into the Caui er the same Act 1 y he landholder wis iiountsubseiiuently :)f the award, only ink upon a deposit. ' six per cent. R; 1. In the litigitinr. 1 that neither party rbitration undir tlh n order to take uii ;he arbitrator.^' fe.'-; ;r could not be nwiit le-half the fees o,;: le land-owners, an; mt prejudice to a'.; . BePlulhrick 111^' Co., 11 P. R. 373.- The Ontario ivi' ic. Taylor, G 0. Rj Ontario and (Jw: 577. of the Act, of which the lower beams were not from Xadeau's lot on to the track of the defend- (if sufficient height from the surface of the rails [ ants which at that point was unfenced — and was to admit of an open and clear headway of at least killed by a passing train. In an action for the seven feet, shall be reconstructed or altered with- 1 value of the horse it was : — Held, that ' ' oceu- ill twelve months from the passing of the Act, pied lands " under the Railway Act 4G Vict. c. so as to admit of such open and clear headwa. i '24, (l)oni.,) denote lands adjoining a railway and i,; at least seven feet, at the cost of the company, actually or constructively occupied uj) to the line municipality, or other owner thereof, as the case of tiie railway by reason of actual ()coupati(jn of iiiiy be, &c. By 44 Vict. c. 2"2 (Out.) passed some part of the sectinn or lot by the person who when the Midland Railway was under the legis- owns it or is entitled to possession of the whole, lative authority of the Province of Ontario, that j and that although mere occupation such as that jwilway was required to reconstruct bridges , of a squatter is not provided for in the Act, N. loniied by the company within twelve months was, under the circumstances, entitled to recpiire •join the passing of the Act in terms identical ' the defendants to fence, notwithstanding he had with the Dominion Act except that the former | omitted oo fulfil the conditions of his location by Act makes every railway liable to its servants performance of the settlement duties required liur any neglect, &c. : — Held, Gait, J., dissenting, thereby — the Crown never having taken steps to that the defendants were not liable for the injury cancel such location; that under the circum- sustaint.l by the plaintift'. 1'lie plaiutiti" was | stances the question as to contributory negli- uecessarily on the top of the car in the perform- yenee did not arise, and therefore plaintitl" was ance of his duty. There was no evidence to entitled to recover. Davia v. Canadian Pacijic [shew that he knew, at the time of the accident, j R. W. Co., 12 A. R, 724. that he was near the bridge, the night being lark ; and it was a matter of doubt whether he itven knew that the bridge was too low. The Ibell rope was not connected before the train left I the station, but this did not appear to have been hhiough any neglect of his, and for all that ap- Ipeared, the train might not liave been completed Itutil just befoi ■ starting, and until tlie engine hvas attached no connection could be made: — Held, that the plaintill' could not be deemed Iguiity of contributory negligence. MfLniichlin . Tin: Grand 'Jrttnk R.^IV. Co. 12 O. R. 418. See We.-it V. T/ie ('orporation of the Villaije of iParkdale, 12 A. R. 893, p. 404. 2. Fences. As to erecting barbed wire fences. See /lill- i/ard V. The Grand Trunk ]!. W. Co., 8 0. R. 083. 3. Gate.-). I'luintilT's horses, in consecjuence of insecure fastening of the gates at tne farm crossing, where the ilefendants' railway crossed their farm, got through the gates and on the railway track, and were killed Ijy a passing train : — Held, that the plaintiffs by reason of the continued use of the faulty fastening, could not be deemed to have adopted them as suliicient, and that it was the ' duty of the defendants to provide and maintain I proper fastenings for the gate. Section 9 of the statute 47 Vict. c. 1 1 ( Uoni. ), commented on as Railways. it) Mays, irinjurieasustaintl| in 'overhead bri'lg bove the t()p of t !■.■ _ of the accident tilt le Midland Raihv.uj nd Septe.iiber, lSS:i defendants sh" il Midland Railwa}] stock, stores, :ui should, during tih well andetlioieiitl; and maintain the Hand Railway iu « hen so taken iivtr] force for tweiitv Railway Conqwiiy, 4 Vict. c. 07, ("ii: ol of the I'arliam. minion Uailway. '; in 1883, before t; the Act of ISSl.H ■nding the Coin very i)ridgeorol wliich any railw;'! time of the paiswj Sheep belonging to the plaintiff escaped from i to the nature of tne duty cast on the plamtilis Ihis premises on to the highway, and from thence : to keep the gates closed ; and :-(^i;ere, whether lowing to defects in the fences of the defendants the wonls ni that Act, that the owners must liuto lands of theirs, whence they strayed on to ' kiJup the gates closed, extend further than mre- the railway track where they were kiHed by a ' spect of their own use of them ; or whetuer i£ Ipaisiug train :— Held, (reversing the judgment ' the gate, became open by any accidental means, lolthe County Judge) that the defendants were , '»' ''Y tbe act of a str.mger, and remamed open i)t liable for the loss, the sheep not being law- Ifully on the highway. JJuniels v. The Grand ]TnutkR. W. Co., 11 A. R. 471. without any person being near to prevent ani- mals passing throui^h it, the owner or occupier wouhl be liable to the full extent provided by ' the Act, although it had become open without his agency av neglect, anil remained so without his knowledge. MeMirhad v. The Grand Trunk \R. W. Co., 12 O. R. 547.— Cameron.— (^ H. U. "he plaintiffs occupied about an acre of lot 29 Udjoining the railway of the defendant company. iTheir horses pasturing on another part of the lot, phioh the plaintiffs did not occupy and to which Ithey had no title, passed on to the track and wtio killed bv a passing train : — Held, (athrming the judgment of the Q. B. D., 7 O. R. 073,) that , Ithe plaiutitfs wee not entitled to call upon the | Action by plaintiti, as administrator of C, ilefeiidant company to fence across the part of the ^ for damages uiidei- 44 Vict. c. 22 (Out.), by rea- llot from which the horses escaped ; and there- | sou of the annul Tnwk 1!. 11'. Co., 1(J U. R. 70S--C'. P. D. III. iNJriMKS TO I'KIiSOXS AMI C.VTTLi:. 1. Al Hi Kill CrosKhiij----. 'I"hc plaintili', early in tlie niorning, it not Leini,' rjuito daybreak and snowing a little, was drivinj,' a yoke of o.xen ■■ind a pair (jf holi sleighs along the liighway towards a railway crossing, sitting on the front liob, low down Itehind the oxen. 'I'he ti'ack crossed the highway at an acute angle, and was some seven feet al)ove the highway, which was graded up to it. At the crossing there were some hushes which(d)structed the view, hut tiefore reaching them there was a view of the track for some sixty or seventy rods, Imt not while in the hollow at the bottom of the grade and sitting as the ])l,iintiH' was. The ])laiu- till' without looking out for the train, drove on to the track, and as he did so he saw a train ap- proachiTiga few rods oil', when he jumped to the otr side and hit the oil' ox, causing it to spring aside and clear the track, but before he could get clear himself he was struck by the train and injured. It was urged that the [daintiff by so doing voluntarily exposed himself to danger ; but there was evidence to the contrary. The defendants' engine had an automatic bell. A : witness stated that these bells do not always , ring when the train is in n\otion. The engineer statetl that the hell was in good ordei' when the engine left the last station, but he could not say whether or not it was ringing when the accident happened, while a number of witnesses stated that the l)ell was not then ringing. The jury found that the bell was not ringing : tli.it it was not in good order ; and tliat tlie [ilaiutitl' exer- cised reasonable care. On motion to enter a non- suit : — Held, Wilson, C. J. doubting, that there was evidence for the jury ; that it could not be said that the findings were not justified, ami the court therefore lefused to interfere. Wiltnn v. The Norlhern liailviui C'o.,5 (). K. -WO.— C. 1*. 1). i I The deceased, who was well ac(juainted with the locality, while driving along a road running i in the same ilirection as and crossing the rail- ^ way, was killed at the crossing by a locomotive, not a regular train. Tiie jury found that the engine was going unusually fast ; that the whistle ■ was sounded at another crossing, threislifths of a ndlo otF, l)ut was not continued ; ami that de- ceased was not guilty of contributory negligence. Tlie Common Fleas Uivisioii, upon the evidence more fully stated 111 the report refused to disturb this verdict, and on appeal their judgment was atiirined, ('aimron, (_'. J., dissenting, on the ground that the plaintili was bound to disjirove j contributory negligence ; that she had failed to do so, for had di ceased looked he must havtv seen the tr;un ci'nnng : and that there should therefore ii.'ive biin a nonsuit. l)avey v. '1 he London and South Western R. W. Co. , II Q. B. I). "215; rH). 15. 1). 70, and huhlin, Wick- low, and Wexfoid R. W. ( o. r. Slattcry, 3 App. Cus. 11.");"), coii.nicntecl on. I'er Patterson, J. 1 A., and Rose, .1., whether iidndtting l>avey v. ' The London and .'-'(luth \\ e^-ti rn K. W. Co., to decide that tit ;)!aintifl must negative contri- ; butory negligence, it is applicable here, in \m\ of the statutory duty to give warning by bell or whistle, which does not exist in England. /\.i)'' V The Qmiid Trunk li. 11'. Co., 10 A. R. H)]. M. B. while driving along the highway at flit- crossing of the (i. W. railway in tne tow 11 of S., operateil by the defendants, was killed by a tr.iiu of the diifendants, which was then, as fouinl liy the juiy, running at a high rate of speed witliniit ringing a bell continuously or sounding a wlii>tic at short intervals. The jury at the trial an- swered all the questions submitted to tlieui iu a manner f'avoui'.'ible to the jilaintiffand achcistlv to the company, and negatived any contributiiiy negligence on the part of the deceased. On ap. peal it was : — Held, by this court, aflirming tlie jiulgiiu'iit of the court below, 8 O. R. 001, that there was suflieient evidence of negligence to warrant the findings of the jury in favour of tin; jdaintitf. Jiichtlw ThiAlrundTnoikR. 11'. Co., l.'i A. R. 17-1. Affirmed by the Supreme Court. OiO '2. Damitijts. The deceased had effected a policy of insuiaiice on his life which was in force at the time of his death. At the trial the juiy were directed ti deduct the amount of the policy from the verdict, which .■iinonnt was afterwards adiled by the hivis- ional Court. On a])peal from the juilgnieut ot the (^)ueen's Bench Division, 8 O. It. 001 this ciuir! being e(puilly divided in oitinion on this brainh of the case, the appeal was dismissed, with ce.-^t; Hagarty, C. J. O., and Osier, J. A., weru ( opinion that the actual loss or injury resulting from the death, can alone be recovered in such a cai^e, and if a large increase of fortune occurs to the ])arties as a result of such death, or ])ic- jierty. or money falls to them as a like roiih whether under a settlement or in the shape ol a life insurance efl'eeted for their beiictit, that iiiust be taken into consideration in estimating the less sust.ained. Burton, J. A., was of opinion that under the circnmstances the Divisional Cuuit were right in increasing the verdict by tli amount of the insurance money. Per Pattersnii, J. A. -The receipt of the insurance money is a prtiper matter for the consideration of the court or a jury in estimating! tie damages, and iiiidit afford ground for making some reduction from a gross assessment, but in the present case thcr* was nothing shew'n to warrant any reductii Hicks r. Newport, &c. , It. W. Co., in note, •! B. & S., at p. 403, commented on. Beckdi v. The Grand Trunk li. W. f'o., 13 A. R. 174. 3. Liahilitij for Injuries to Servants. The statement of claim alleged that the plain- tiff' was employed Ijy the defenda'its to work at track laying : that while so emp'o ,'ed the deUii dants directed uiid re(iuired ! to assist m bringing railw.y suiiplies to the '-x'p wliue they wcie beii:g used : that they also direcl'J and rnjuired liim to be cirried, as |iart of iii eniplovnient, on the defeudaiits' trains, ti.it accordingly he was leceived by the deleinl:' "to le safely .airied' in a tram, and ti owing lo the Ot fend.ints' negligi'iee hv v w hile so travellii g, thrown ofl' the train aii'i m; jureii : Held. i. I h.at ii the pl.dntdl aice| I'i a dilleint employment fri ni that originally "i^ 5. o84 iliciiblc here, in view :e warning liy licll or st in Engluuil. /'cd' . Co., 10 A. R. I'.ll. g tlie liiglnvay at tlit ay in tne town of S,, was killeil liy a tiain as then, as fduiid Ijy rate of sjieed witlnmt or sounding a wliistlc nry at the trial m\- hmitteil lo tlieiii in. a ilaintifl'and ailvii^tly vud any contrilintcny lie deceased. On aji- s court, atiirniing the iiw, 8 0. R. ()(ll, tliat ucc of negligence to jury in favour of the (/((/ 'rnwk R. W. Co., the Supreme Court IJCS. I aiiolicy of insurance rce at the time ot lii; ury were ilirectcl t) )licy from the vt'i-iliit, dsacUled by the hivis II the judgment ol the U. U. (iUl this court pinion on this hranch dismissed, with ci sts •sler, J. A., wero if iK':i ise of fortune dciiirs such death, or ytf hem as a like re>uh r in the shape of a eir lienelit, that iiiusl in estimating the lijJ was of opinion that the Uivisional Ccmrt the verdict liy th; iiiey. I'er I'attersini, nsurance money is a leration of the cmirt images, and niiJit rime reduction friiiii s le present case there [•rant any reductii'ii \V. t'o., in note, 4 nteJ on. HecL-tlt v. , 13 A. R. 174, •i>,s lo Servants. 'ged that the plain lefenda-.ts to work at emp'.o ,'ed the iltli"- I'd ! ' to assist 1!) to the '•"'" vh' it they ;ilso direii"! rned, as part el uihiiits' trains, tiat ■d hy the delend' 1 a tiain, anil li ii().ligei;ce he v *■ I. IV the train ami" hr pl.dnlill acceiu III thai originally "* JM RAILWAYS AND RAILAVAY COMPANIES. 586 Liiiplatcd, he became the defendants' workman, intbat new emi)loyment, just as he had been in former emjiloyment. '2. That the statement ;!tit the plaintitl' was received on the train " to Ir safely carried" did not iniply that a special irgaiu was made "'to safely carry," but only ih.it the plaintitl' was to be safely carried as one III their Workmen in the course of his employ- iieiit ; and that there was nr) cause of action. .l/i(.v V. Ontario and Quebec li. 11'. Co., 10 0. K. ;ii,— Wilson. On the undisputed facts disclosed in the plain- if's case it appeared that there was a switch- .-Miiil erected in the defendants' yard close to the ;r,iek, the deceased, who was a brakesinun in the [uudants' employment, being aware ui its posi- ;;pii and proximity to the track. On the day in i;je.stiuu tile deceased was engaged as a brakes- mail on a train passing through the yard. His ijitioii as brakesman should have been on top the car, but for some reason which did not ,(ii|n;ar, he was on the side of the cai', holding on ttlie ladder, by which brakesmen mount to the •\) of the ear, and his attention being drawn towards the end of the train he did not see the !«itch-stand, when he wa.s struck by it and tiii'uwn under the wheels of the car and killed : — Hihl, that there was no evidence of negligence the part of the defendants ; and that there »assiich want of care on the part of the deceased lisentitled the plaintitl, his administrator, to la'iiver ; and the case was therefore properly withdrawn from the jury. I!ij' Xurthtrn It. II'. Co., 11 A. K, 4.-|'2. IV. Fh(i: inii.M IvsiuNi.s. Action for negligence against the defendants in the conduct of their engine, whereby, as alleged, tire escaped therefrom and desti'oyed the plaintitl "s property. The only evidence to con iiect the defendants tlierewith was that the lire occurred immediatelyafter the engine had passeil the plaintitl' s iiarn and combustilile manure heap ; that as it passed nteaiii was put cm which might have caused a larger quantity of sparks to escape Irom the smoke-stack ; or, if the asii pan were full, which there was no evidence to shew, would cause cinders to be forced therefrom : that there was a strong wind lilowing across the track in tlie direction of the plaintill's jiremises : that a cinder too lai'ge to come from the smoke-stack was picked upon the manure heap while it was on tire ; but it did not idearly a)ipear whether tlie cinder was from coal or wood, the engine burning coal : that this fire was put out, and five minutes afterwards a tire broke out in a barn adjoining the plaintiff's, and Imth were con- suiiied. There was a steam saw-mill close by, but in a dii'cction o]i[iosite from that in which the wind was blowing, and there was evidence that tire therefrom had ignited the saw-dust in the mill-yard on two occasions. No evidence was given of any faulty construction in the engine, but there was evidence that it was of ap- proved make, with pi'oper apidiaiices to iireveiit, as far as possible, the escape of tire : — Hild, Kose, .1., dissenting, tliat there was no evidence of negligence to go to the jury, and that the case was pro])erly withdrawn from them. I'er Rose, •]., that there should be a new trial, to ascertain, if possible, the cause of the tire, whether from the smoke-stack or the ash-pan, or how other- wise ; and, . from either the smoke-stack or ash-iian, whether there was negligence on the part of the defendants. I'er Cameron, C. J., the putting on of steam when the engine was near the plaintill's premises did not of itself con- stitute negligeuce, it being done in the ordinary course of trallic, the engine having the ordinary and proijcr aiipliances tor protection against the escape of tire, whiidi it was lawful for the to Chatham, N. U. , under a sjiecial contract wherchy defendants were not to lie lialile for any ! delay oeeasioneil liy want of oji])ortiuiity to for- ward gnfids lieyond ]ilaces where defendants had stations, lint they could forward them to their destination liy iiulilic carriers or otherwise, as oj)])firtunity nn'giit oli'cr ; that pending i:ommuni- cation with the consignees the goods renuuncd on the defendants" jirenuses at the owner's risk; and that defendants were not to he liable after notilication to the carriers, that they Merc ready to deliver the goods for further conveyance ; and that defendants were not to be liable for loss by tire. It ajijiearcd that tlic defen. '25, sub-ss. 2, 3, 4, which ))rohibitcd railway <'oii panics from pi'otecting themselves against li;il.il ity for negligence by notice, condition or dici <■ ration, and which ajiplies to the(;rand Tiiuik R. W. Co., the comjiany couhl not avail tlit-ii selves of the above stipulation that they sIkhiI not be responsible for the negligence of tliin selves or their servants. Per Strong and T.isri ereau, JJ., that the words "notice, conditio or declaration,"' in the said statute, coutdii] late a ])ublic or general notice, and do not pn vent a comjiany from entering intoa sjiecial irn, tract to protect itself from liability. Thi' (li-ni. Tnnd- It 11'. Co. v. Vvjcl, 11 S. C. E. Cl'2. The goods in (jucstion were shi])ped by tlicf; T. 1!., by ])laintitf"s agent iii T., to ])laintitf .r M., Manitoba. After much delay some of the i;(i(i('i were delivered in a damaged condition by tl;' C. 1'. R., whose line touches at M., and soil!. 1 were never dclivei'cd at all. I'laintitV brnngJ! his action for .S'2,000 damages against the (i. T R., and subse(jnently theC. P. 1{. were made par ty defendants. The statement of claim cliai;:i' the (J. T. R. on the contract, and the C. 1'. 11 ill tort. The G. T. R. set up a special contrai', ])rovidiug, amongst other things, for exeiii|iti< r. from liability in case the goods were delavfl, lost, or damaged beyond their line, which ciuIm; at Fort ( 1. liefore trial jilaiiitifl' settled witii th'^ C. P. R. for !?0")0, and executed a release to tlici::. reserving his right to proceed against the (!.'!'. I'.. for the balance, and notified the solicitor for tli.- C. T. 1\. The plaintin"s agent stated that tl..- contract was a ])urely verbal one, and that lie paid the freight through to !M., and received r. receipt which he did not read, but forwarildl ;: to plaintitf. Defendants gave evidence that tlu :- contracts of shipment were always contained i;: a bill of lading, signed by the shipper and i • tained by the company, and in a corrcspoiulii:: shipping receipt, signed by the company ati^i handed to the shipper. The goods in tjucsti'i: were carried in a sealed car from T. to Fort (■ , and the car was still sealed when delivered : ' the next carriers en route. The learned jiul.i' thought there was no evidence of negligence >' far us the line of the C!. T. R. extended ; but i; was not disputed that the goods had been dam- aged and lost by negligence before they readu 1 the plaintitV. 'I'he jury found that the contra' t was verbal. In answer to (piestions put hy tl court, the foreman stated that the bill of lailii:. was signed by one of defendants' clerks, and tlii: a receipt, with the usual conditions cndorseii. ; was handed to plaintitF's agent at the time 'i I shipment : — Held, that the contract, wlietlu" I verbal or on one of the company's printed fmni\ i was a through contract from T. to M., and that all corporations and persons enndoyed en roiiu I were servants of the (i. T. K. within the nieaiiiiu of tlie Consolidated Railway Act, 1879, sec. '2'. sub-sec. 4, and the loss having been adniitteill}' I occasioned by negligence, the defendants couk RAILWAYS AND RAILWAY COMPANIES. 590 (I by the owner, sik h| nr the tri]) ; tlirouL'ii iiiiy's servants a col :he said horses wti'- u, ('. J., and Fourniirl tlie judgment (jf tlnj KJ'i, tliat under tli.' {'.U Vict. e. (iS),s. 'JO, \'ict. c. 43 8, 5, n , lS7!»(4lViet.c.!)i,>. ohiliitod railway <'oii iiselves against hnliil ;, eonditidu or dedi- to tlie (irand 'I'nuikl ould not avail t!n;ii: ;ion that they slicmlil negligence of them- *er Strong and T:iscli-| s "notice, ennditiii; id statute, conti iiip tice, and do not jiri • ing into a s]iecial mi.. lialiility. 77/'' drn,. 11 S.C. R. CI '2. ere shi])pcd hy tlief; in T., to plaintilf ,r lelaysonie of tlieLindi! ged condition hy th' lies at M., and sfuii' 11. riaintitr hmiightl ,'es against the (i. T.[ 1'. K. were made [la: nent of claim ehnvL'" act, and the C. 1'. I;.| \i\) a sj)ecial contrai' ;hings, for exeniiitii'iip goods were delayi.!!, leir line, which (lul'i intifl' settled witli th'?; ted a release to tliuh;. ed against the ( J, 'J'. 1'.. 1 the solicitor for thcj :cnt stated that ti.'.'l lial one, and tliat li'' ) M., and receivcil r. ad, Init forwnrdfil i: ve evidence that till ir always contaiiieil ii;| the shipper and i I 1 in a corrcspondii;: ly the company aii''i "le goods in (picsti'i; r from T. to Fort (■,. .1 when delivered '.■< The learned jiul.'c nee of negligence m It. extended ; hut itl joods had been ilan-.r before they reacln ! md that the contra' : (uestions put hy th'' :hat the bill of lailir:! hints' clerks, and tli >:| conditions eiidorseii. agent at the time ■: ic contract, wliethirl pany's })rinted form'.[ niT. to M., andthatl IS ein])loyed en roiiHj 1. within thenieaiiiiu y Act, 1879, .sec. i'. viiig been adniitteillvl the defendiints coal I iniit ho relieved by any notice, condition, or de- I ehinitidii : — Held, also, that notice of the release t'lthe ( '. P. i;. having lieen given to the (J. T. K. Itwfiirc the trial, theii. '1'. it. were not entitled I t'l a new trial on the ground of surjnise, or the I ilisruvery of new evidence :— Held, also, that the jll. T. !!. and C. P. U. were not joint conti'actors I (ir jiiiut tort feasors, and that proof of the alleged I R'li'ise would not relieve the (1. T. I', from lia- hilitv. MiMilhni V. aniiid Trunk li. W. Co. et \n}.,'Vl O. It. i:^()-(,». B. \). See Perkiiin v. ^^i'i■■iU1i/)pi awl Dominion Stnim- ~hip('o. {t/nuU,i(), 10 1'. U. 198, p. olT ; llnlchy .'(i/. V. The .Mcrcliant:< DvsjHiti-k Tranipnrtdlinii lu-. (-/ a'., \-2 A. R. '201, p. 73 ; Viwh>nj v. \ijmnil Trtuih n. W. Co., 1.3 A. It. 93, iofra. VI. Li.vr.ruTV foh LnjcMii:. Tlie plaiiitilF was a passenger on one of defend- fiiits" cu's iiocupying a sleeping bertii. Before /ling to sleep he hid undressed himself and liad 'jiut his pocket book containing lii.s money in I his trousers' [locket, rolling up his trousers and putting his suspenders arouml them, and then jihiifd them under his pillow next the wall. 1 rt'hi'U lu; was called before arriving at his place "f destination, he discovered that his pocket Wok and money were gone. Xo negligence in Itlie (lefeu laiits was shewn: — Held, that no lia- i'llity attached to the defendants. Steum v. The \l',(lh,hut Car Co., 8 O. U. 171 -C P. D. It is the duty of a railway company to have •aggage ready for delivery on the jilatform at Ithe usual place of delivery, until the owner in thi.' cxerciso of due diligence can call and receive it; and it is the owner's duty to call for and re- ceive it within a reasonalile tiiiu!. Therefore, wliure a passenger on arriving at his destination iklihcrately refrained from applying for his bag- gage on Ijeing told by his cabman that he could j not convcnientlj' take it, and on sending for it "Utile fidlowingilay, oneof three trunks could not he found : — Held, in an action to recover the I value of the trunk and the wearing ap])arel it was said to contain, that the liability of the rail- way company as common carriers had ceased, I ami, in this reversing the judgment of the court hilow, a nonsuit was ordered to be entered. I Tlu' only claim (if any) which the plaintiH', under the ijircuinstances, had against the company, was I as warehousemen or bailees. Vinvhcrij v. Grand Trunk RaiUmy Co., 13 A. R. 93. VII. Bonds. The L. and K. R. W. Co. was incorporated in ISili) (3'J Vict. c. 54. P. (^ ), to construct a rail- j way from Levis to the frontier of the state of Maine, a distance of 90 miles. The company I was authori./ed by that Act to issue bonds or de- hentures to i)rovide funds for the construction of I the railway. In 1872, by 3() Vict., c. 45, (P. Q.), power was given to issue bonds to the amount of 83,000,000 without limitation of time, and without restriction as to the length of the railway cor.structed. In 1874, a statute of the '.OL'islature of Quebec (37 Vict., c. 23), declared that debentures to the amount of .S'JSO.OOO had "Iready been issued, and limited for the future tlie issuing of bonds to the amount of £300,000 sterling, to be issued as fidlows : — The first issue of t; 100.(1(10 at once, the second issue of £100,000 when 45 miles of the ro.id shouhl have Oeen coiii- jdeted and in running order, as certified liy the (iovernment insi)ectiiig engineer, and the third issue of £100,000 as soon as 30 ailditiiuial miles — making in all 7.5 miles— should have been com- pleted, with the same privilege for the three issues. In 1S75, by the .Vit 39 \'ict., c. 57, the Legislature amended the former Acts so as to modify the condition to lie fultilled by the \,. and K. It. W. Co. before the third issue'of £100,000 ■ould be by them made. This comlition was as enaeted l)y the said Ai;t, (39 Vict., c. 57,) "so soon as the rails and fastenings reiiuireil for the coin])letion of the remaining forty-live miles or thereabouts of the com|)auy's line shall li.avebceii provided, then the remaining one thousand bonds, of one hundred pounds each, to be termed the third issue may lie issued by the eoiiipauy."' In the Act lastly cited, the preamble declared : " Whereas it ajipears that a total length of forty-live miles of the company's line having been completed, a tirst an 1 second issue each of one hunilred thousand ]K)unds of the company's delicntures have been made." In March, ISSl, the L. and K. Ky. was sold by the sherill' at the suit of the plaintilFs the \\. .M. Co., ami iiought by the Q. C. It. Co., respondents, for ??195,()(ll». In April, ISSl, the corporation of the City of Quebec (appellants), tiled an oiiposition atiti de conserver for .'?'.'IS, OD'.t, buiug tlie amount of 300 debentures of CIOO sterling and interest of the second issue issued on the 25tli .lauuary, 1S75, numbered 1021) and u[)waiils, payalile on the 1st .lanuary, 1.S94, and for the paynn.'iit of which the opposants alleged that the said railroad was liy- pothecateii. T'he (). C. U. W. Co., also oppo- sants ill the case, contested tile o[)[)osition of the corporation of the (Jity of (^)uul)ec, and cliimed the issue f)f the bonds of the si,'coiid issue and held by the ai)|)ellants was illegal. At the trial no ccrtiticati; was produced, but tlie(iovernuieut engineer stated that he had re))ortcd to the Minister of Kailways that there were only 43.^ miles of the road com|)leted, and the secretary \ at the eom))any testitied that the total length of railway certilied by the (iovernmeut engineer as being completed and in running order had never «xceedcd 43^ miles. The learned judge at the trial found as a fact that there wiu'e only 43^ miles completed, and held the bonds of the second issue invalid. This judgment wasatiirmeil by the Court of Queen's Bench (appeal side). On appeal to the Supreme Court, it was : — Held, (reversing the judgment of the Court below), that the ell'eet of the statute 39 Vict., c. 57, is to make the bonds therein mentioned good, valid and binding upon the company, altlnuigh tiie conditions precedent specified in 37 Vict., c. '.?.", might not have been fullilled when they were issued, ititchie, C. .1., and Strong, .!., dissent- ing. Per l''ournicr and Henry, .J.L, that as there was evidence that a certiticato f)r report had been given, oral evidence of the contents of the cer- titicate or rejiort was inadmissible and therefore respondents had failed to prove the illegality of the second issue. Corporalion of thu City of Qnchi'c V. Qaibnc Central li. W. Co., 10 S. C. R. 563. See Bank of Toronto v. The Cohonrij, Feter- horowfh, and Marmorit li. W.Co., H al., 7 0. R., I p. 177. 591 RAILWAYS AND RAILWAY COMPANIES. 51)2 1 VIII. KyUAi.iTY OF Kates. MM, aliiriniiig tlie jinlgiucnt of the crnirt lio- lovv, (). 11. '2."il, tli;itiiithi;a))sciiotM)f collusion tho court Would not iiujuiru into the rciisonahloiiusH of till! rates chargcil hy a railway company to an express company :--IIi;lil, also, that thu railway company iiaving granteil to one incorporated ex- press compaiij the ))rivilege of em])loying their station agents to act as agents of that exju'ess company, such agents having as em])loyees of the railway company the right to use the company's trucks and liagg^ige house as jilaces for storing goods ; and refused the same privilege; to another nicorjiorated ex press com])anyl)ri. H 'JO'2; MeCallum i: (irand 'I'ruiik R. W. C,., .SI (,;. li. .')27, and Kelly v. (Ottawa .Street !;. W. Co., 3 A. I'v.UKi, referred to and foHowed ; - Semble, that the concluding words of the 'J7t!i sec. of the Consoli J'liiction, mill/ 502 itlis liefore ia-tidu viiH liaired liy tin; I liaihviiy Act, tu : — Held, tiiut iiiiv icu upon a I'liiluay i iind the like u railway." Iji-ouue \V. Co., 20 (,i. H. •link R. \V. Cu,, Ottawa Sti'uut 1!. <) and followed : — .voi'dn of tlio "JTlli vay Act, viz, tlmt that the saiiie " [10 ill jmrsuaiice ui the Special Act," ill the course luil as a railway emu 3 of," &c. Mai/w K, 10 O. 1!. 70.- vNiics bv Mini- id Junction Kail- 1 the (J rand 'I'liink le former railway ho time direetiil, IMTO, an Act was liameiit to revivi' tioii l^ailway Co., ; name, and iiiaile -\fter this, in I>i7(}, »y ST."), 000 was ill- ilof l'eterboi'(iiii;h. dy, and, although llid declared tliat saiil proposed by- was on 2,Srd Xdv- l on a liydaw t^ it coiiipanj', cuii- ninienced hefui'c lie when the vut- ere was no powi-r l)onus. (Jn tlii; ;U \ict. e. 48 lied the by-law I third time, aii'l lingonallpersiiii. the Act. On thu .'50 was pas.sc'l, to aid railways the 87 ^'iet., o. y and eonsolidat- npany. In l^Tl il to send the ilo- 1 lieeu ajuioiiiti-'l n l!S7'2 the conn- imiiaiiy, repiuli- alleged by-law. IS7'2, and time ■ ;{!» Vict., c. 71 inking fund liiul on ot the county nd was made tm' the company ;il)- nd deliver tliiiii g the decision (jI t the ellect of the apart from any ng the e.\isieiii.e >t to legalize tlie 393 RAILWAYS AND RAILWAY COMPANIES. 694 ny-law in favour of the company, but was merely tu make the liydaw as valid as if it had been ivacl a third time, and as if the municipality had had power to give a bonus to the company, and, tlifi't; being certain other defects in the said by- liw not cured by the said statute, the appellants I luld not recover the bonus from the defendants. I'lTtiwynne, J., (Fournier and Taschereau, .1.1., iiiiicurring) : As the umlertakiiig entered into l,>y the luunicipal corporation contained in bylaw f il' granting bonuses to railway comjianies, is in tint natnri' of a contract entered into with the ioinpany for the delivery to it of debentures :\ N'ict. o. ; 40, was iias-setl on the 30th .)une, KS81 ; and the by-law forming the guarantee was ])assed on the 27tli July fcdlowing : — Held, reversing the judg- ment of the Court of (itueeiTs Ijeiich, L. ("., ap- peal siile, and restoring the judgment of the Superior Court, — that the statute in (piestion llid not authori/e the corjioration of i^evisto im- pose burdens 11)1011 the municipality w hiidi were not authorised by their Act ot ineor[ioi'ation or other s|)ecial legislative authority, and therefore the by-law waa invalid, and tin; iiijiiiietion must be sustained. Ritchie, C. .L, dubitaiite. (Jneher ]Vari-hoit.ie Co. v. Li^rin, II S. C. 11. (JiiO. Under a by-law to grant aid by way of bonus by the issue of debentures to a railway coni[)any, no issue or delivery thereof was to take place until certain conditions and stiiiulations con- tained in the liy-law were perloniud, amongst others, the completion of the road, and ol)taiuing the eertiticate of the goveiiimciit iMigiiicer. I'>y an agreement entereil into before the linal passing of the by-law, the company covenanted to jier- form certain other acts, amongst which w.is the location of a station "at or near" the corner of certain iiaincd streets. By the .Munici[)al Act, 1!. S. O. e. 174, s. ,')')!(, subs. 4, authority is given to grant Ijonuses and issue debentures 111 aid of a railway comp.iny, pjiyable at such times, &c., as the munici[)al council may think meet. By the defendants' siieeial Act of Incorporation, ,S(i \'ict. c. 70 (Out.), the debentur'.s were to be is- sued and delivered to trustees within six months after the passing of the liy-law, who were to re- ceive anil convert the s.ime into money, and de- posit the jiroceeds in a charterc'l bank, and pay the same out on the certilicate of tlie chief en- gineer of the railway company : — Held, on the evidence, tliat the station, though not located at the corner of the said streets, was not so far therefrom as to prevent its location being, by reasonable intendment, within the meaning of the word ''near;" at all events, non-comiiliance with the terms of the agreement not covered liy the conditions, &o., of the by law would not prevent the accruing of the yilaintitl's title to the delien- tures ; but that the defendants' remedy must lie for damages for breach of covenant. Held, also, that a compliance with the terms of the general Act was sullicient, for that the provisions of the special Act were not restrictive, but enabling and enlarging the powers under the general Act ; and that under the circumstances the appoint- ment of trustees would have lieeii useless. Iiic/<- ford v. The Corjwrolion of the Toirn of' Chnt- ham, 10 0. R. '2d7.— Cameron. Atlirmed 14 A. R. 32. Held, following Canada Atlantic R. W.Co. v. Corporation of Ottawa, 12 A. R. 234, that under s. ■')59, sub-a. 4 of the Miinicijial Act, R. S. O. , c 174, a grant by way of bonus may be made to a Dominion railway. 77ie Ciinada Atlnnfic P. IV. Co. v. The C'or/ioration of thf Toimsliij} of Cawhridt/i, 11 O. R. 392.— C. 1*. \>. Reversed by Court of Appeal, '23 C. L. J. 230". }95 REGISTRATION. 59e See Cavnda Atlanlic P. W. Co. v. Corporation ofOltava, 12 A. 11. 234, i..44!t ; Tin Curijoraliim of the Cihi of SI. T/i<,7)i(isv. 'J'/icCnilil VuUeii li. W. Co. I'i A. R. L'T.S, 1). (i59. XII. LoHS (if ])r(i])t'i"ty on sletj)ing c!ir. V. The I'ullman Car Co,, 8 O. K. Miscellaneous Cases. Sou Sli'drn 171, p. 5Si). See Wfnt V. The Corporation of thr Villaije of Paikiloli' el y an action. Up Mor/iln/-- Morphij V. Nirtn el at., 11 I'. R. ,T21.— Boyil See Wallace et al. v. Wallace et ul., 11 (), H .">74, p. 437. XIII. Si'ECiAL Acts Eelatin(! Railwavs. TO I'ARTICI'I-AK recognizax'cj:. Held, that on the return of a writ of certinraii a recognizance is unuecessarv. Refuia v. S mii, 10 P. R. 39").— Rose. Held, that since the ])assing of the I^omiuion Statute 49 Vict. c. 49, s. 8, there is no lon^'ci necessity for a defendant on removal by ceitin rari of a conviction against him, to enter into thr recognizance as to costs fornierly rc(iuired. Ui ■ ijiitav. .Swalwell, 12 O. R. .391.— Wilson. Under4^)^'ict. c. 07, s. (Pom.), the Midland railway, as constituted hy the Act, is the com- pany, that strangers or persons having claims, &c. , ujioii any of the companies incorporated liy the Act, slioidd proceed against for tiie enforce- ment of tlieir rigiits. Di niore.tt v. The Midland Jiailiciiy of Canada et ah, 10 R. R. 73. — Cameron. See lie Wal,-:o>i v. Norlhirn Baihray Co., 5 O. R. 550, J.. 591 ; Pralt v. The Cravd Trind- /.'. W. Co., 8 0. R. 499, ]>. 591 ; liivkford v. The Cor- R. W. Co., 10 V. R. 1)2. jwralion of the Town of Chatham, 10 O. R. 257, p. 594; ji/Hrjihi/ y. The Kiio/.tlon and Pembroke Railway Co., 11 O. R. 582, p. 5/4. RECORD. Fee on entering. See Morton v. Grand Trunl RECEIRT. Legatee having given a receipt not hound to execute a release. See Kaistr v. lioi/ntun, 7 0. K. 143, p. 403. RECTIFYIXa DEEDS. See Deed. REDEMPTIOX OF MORTGAGE. .SVc'MORTOAGE. RECEIVER. The plaintiff, a judgment creditor of the P. D & L, H. R. W. Co., claimed in this action to | have a receiver ajipointed in order to enalile him to obtain eq'iitable execution of his judgment by receiving the share of tiie P. D. & L. H. R. W. Co. of the earnings of the L. E. R. W. Co., who had acquired the road of the P. D. & L. H. R. W. Co., and had put it in possession of the G. T. R. \V. Co. as lessees. The whole surplus earnings of the P. D. & L. H. R. W. Co. were by statute made applicable, and were being ap- plied by the G. T. R. AV. Co. towards reducing the incumbrances, the interest on which they were insufiHcient to pay : — Held, that in the ap- pointment of a receiver the court acts only upon a proper case being made out for the exercise of its jurisdiction, according to well established principles, and in that sense only can a receiver be said to be ex debito justitia', whether the application be interlocutory or made at the hear- ing, whether the ajipointment of the receiver is the sole object of the action or only incidental to other relief, and whether the relief is sought at the instance of a judgment creditor, or of any one else. Under the circumstances appearing in this case the court affirmed the judgment of Ferguson, J., 8 O. R. 256, refusing the apjioint- ment of a receiver. Smith v. The Port Dover ard Lake Huron Raibvay Co. et al., 12 A. R. 288. A receiver, appointed as the company were here, has a right to assert his claiiES actively, RE-ENTRY. Condition of. See In re Melville, 11 0. E. 626. REFERENCE. I. To Arbitkation— -S\'e Arbitration axd Award. II, To Ma.ster— .S'tc Practice— Trial. REFORMING DEED. See Deed. REGISTRARS OF HIGH COURT. See Practice. REGISTRATION. I. Of Bills of Sale and Chattel Moet- (jages — .SVe Bills of Sale and Chattel If;' Mortgages. II. Of By-Laws— .S>? Municipal CoRP0K.^ tioxs. 5% some instancus tin- Lontention having ; of the 'iiti'i'cst (if to the c()iiii)any to ion. Jif J/oc////y— , K. .T21.— Boy.l. ace et al., 11 (). H NXE. f a writ of certiorari ^ Reijina v. Nintu, ig of the Poniiiiiou there ia no loiimji removal by certin iin, to enter into tiif lerly re(iuire(l. /.'< ■ ) I.— Wilson. toil V. Grand Trunk DEEDS. lORTGAGE, GE. Melville, 11 0, P>. L'E. tVuBITRATIOX ANl' cTicE — Trial. DEED. I(!H COURT. CE. lOX. SD ClIAlTEL MOBT •• Sale and Chattel UNICIPAL COEP0E.\ 597 REGISTRY LAWS. III. Of Deeus— .S'pc Reglstry Laws. IV. Of Ll4 Pexden.s— .^f-e Lls Pendens. v. Of Plans — Sec, REcasTKY Laws. VL Of Medical Phactitioner.s — See Medi- cal Practitioner. VIL Of Parliamentary Voters — Sec Parlia- mentary Election.^. RE(;iSTRY LAWS. I. Registrars. 1 . Diitie.i and Liabilities of, 597. 2. Fees, 597. II. Effect OF RixiisTEUiNii or Omitting to Register, 598. 1. Discharge of Jforff/aije— See ^Iort(!AGE. 2. Cloud on Title — See Sale of Land. III. Plans, 599. IV. Miscellaneous Cases, .")99. V. Memorials as Evidence — See Evidence. I. Registrars. 1. Ditties ami Liahilitics of. A will relating to certain land, though regis- ered, was not entered on the abstract inclcx, wiiereby the plaintiff claimed he was damnitied in purchasing a mortgage on the land, the mort- gagor having no title. The mortgage was first purchased by S. , a solicitor, for himself, and tlie assignment of it made to the plaintiff, for whom he was accustomed to act, and to whom he after- wards sold. S. was not retained by plaintiff' to Ecarch the title for Iiim ; it was not searched when he sold to the plaintiff ; and the learned judge before whom the case was tried held that lie relied on the supposed title acrjuired by the mortgagor by possession : — Held, that the plain- tiff could not claim that he was damnified by defendant's omission ; and that lie could found no action on the search made by S. Green v. Ponton, S O. R. 471.— C. P. D. II. Effect of Registering IlECilSTER. 598 t)R Omitpini; to 2. Fees. Where a registrar of deeds was dismissed be- fore the expiration of the year, liaving received in fees an amount in excess of tliat specified in the statute, (R. S. 0. c. Ill, s. 104) :— Held, (affirming the judgment of the Queen's Bench Division, 3 0. R. 23), that he was bound to re- turn and pay over to the treasurer of the muni- ci])ality a proportionate amount of such excess, although not in office at the time prescribed by the statute for making his return ; but — Semblo, that the treasurer could not maintain an action for such fees before the loth of January, the day named in the Act for the registrar sending in his return : — Held, also, that the defendant was not entitled to notice of action. The Corporation of the County of Bruce v. McLay, 11 A. R. 477. Per Hagarty, C, J, If "e(|uitable lien, charge or interest '' be created by deed or l)y any writ- ing capal)le of lieing registered actual notice of sucli deed or inatruineut will, under the ()7tli section of the Registry Act, 31 Vict. c. 20 (Ont.), prevent the effect of priority of registration. Hut as to ecjuitable liens, &c., evidenced by parol only, amongst others a vendor's iien for unpaid purcliase money, tiiey have by that Act been prevonteil from affecting a duly registered title. In the dis[)oHition of real property, unless in ca.ses of actual moral fraud a stringent observance of tiie registry law is the wisest rule to adojit. Per Proudfoot, J. 'I'he fact tliat a man who knows of another's title to land, iiuys in such a way as to get a title on the register aiid then set.s the owner at defiance is sncli a clear case of active fraud as would deprive iiiin oi tlie pnjtec- tion of the Registry Act. Per Patterson, J. A., and Proudfoot, .1. Tiio ruling in Forrester r. Cami)bell, 17 Chy. .379, tliat the Registry Act of 18(i.") (s. ()()), does not avoid an e(|uity as against a subsequent instrument thougli regiHtered, if taken with notice approved of. Peterkin v. Me- Farlaiie, 9 A. R. 429. V. being the owner of certain land, mortgaged it witii other lands to the M. P. 1{. Society I'y mortgage, dated 12th .Tuly, 1873, registereUO uml tlio otiioi' piiiucls on ])iiyniunt of .sums iiiinifil. Tliu i-oviiiant for |iayniiiit wa.s joint. W. \V. afterwards sold his land to J. \V., sulijuut to tliu paynicnt of s.'ilM) to tlic conijiany. W. tliiMi niort^'agt'd ids land to tlio pluintdl', l)y an in- .struniiiit wldcli diclart'd it sulijcct to tlic com- pany's niortyagt', and tin; manner in wluili tliu !<4,0l)0 Was distrilinlud npon the lands. The vari- ous eonvi!yanees Were iigistered. Jt was])roVLd that W. \\'. was merely a surety for his father in the mortgage ti'ansaetion with the eoni[iaMy, Init the plaiiitill hail no notice of this : Held, levers- ing the judgnientof I'roiidfncjt, .)., that the plain- titl ".-i registered title i)revailed over the eijiiity of W. \\ . to eliarge his father's lands with the .s,"»00 for whieh he (\V. W.) had nia. n. f). •See l>/,if/ V. a mint Trunk 11. \V. Co., 12 O. 11. 110, p. HJ-2. 111. 1'l.ANS. Held, reversing the judgment of I'roudfoot, J., 9 (,). H. '274, that the status ot C. , as a person, or the assignee of a person, who registered a plan, was a question of law and fact combined lor the County Judge to deterinine upon C.'s application to him, under U. S. O. c. Ill, s. 84, to amend the plan, and that his decision was not examinable in prohibition : — 8euible, a person not the owi;er of the property niay register a plan, and although tliis would be at the time a futile proceeding, yet if he afterwards ])ecanio the owner of the )jroperty and adopted the plan, he would be entitled under the Act to have it amended. In re Chlsholm and The Corporation of the Town of Oukri le, 12 A. U. 225. Held, that though a plan not certified as i-e- quired by the registry law, R. S. O. c. Ill, s. 82, sub-s. 2, had, although deposited in the registry olhee, no eti'ect under the registry law, yet in a deed reference might be made to it, as it might to any other document in the tegistry othce or elsewhere, for the description or designation of a lot. Fenju.ionw W'lnsor, 10 O. U. 13. — O'Con- nor. See^'. C. 11 U. 11. 88. Sections 82, S'.i, 84 and 8."), of l\. S. O. c. Ill, (Kegistry Aei), and sections 525 and CrSi of the Mnniciiial Act considered. In re \\ ttldie v. Car lioratiiinii/lhe I'lUdiji: of JliirUnyton, 13 A. U. 1()4. See Jiuan v. Kronnl/ein, 12 O. U. 107, p. 411. liHLEASK. 1. Of l)(i\\ Kit— .SVr U()Wi;U. II. UiSli!i;tv — See I'lUNCirAL .vnu Sliumy. J. M, and 1". M., his wife, were jointly insinxi! ill the defendant's eomiiaiiy, whose deposit Was being administered iiiuler It. S. i). e. ItiO, ss. 21, 22. On 4th I'ebruary, .). M., without the assent of I'". -M., signed and sent to the receiver a claim for rebate as empoweretl under that Act. Ku aclvliowledgment of the receipt of this claim wa.s given by the receiver, who, on 27th February, sent J. 5l. and the other policy holder a circular notifying them of an agreement for reinsurame, and that if they objecti: a year in lieu of si cli hoaiil. &c., and, if not paid, til he recoveralile iiy wuit at law. The eoveiiants, payments and annuities to lie eliargealile against ilie said land. The plaintiU' was no jiarty to the aijrcement, On the 4th Octolier, Ks7'2, the de- kijil.'iiit W. .M., for a nominal cmisideration of ;?I.O(lO, conveyed his undivided lialf interest to till' plaintiff'; Imt, of which she said she was not aware ; .and on 1st .March, 1.S77, she reconveyed the same to W. M. "free from iii"fiihrances." Hii I'Jth January. IS.Sli, I). .M.sold,'.. undivided half interest to (_'., and a eonvey.-uice was oxe- iiited, liut the sale was never carried tlirmigh. ilii'27th .Seiitoniber, liSfS.S, 1). .M. sold his s;iid in- tiiust to (1. A. 15., and, to save registration ihaiyes, the convevance was made liy V. to (J. X. \i On -JOth March, I.S84, (i. A. B. conveyed t.i v.. and S., who in .May, 1S84, ejected tlie lilaintifl' from the land. The agreement was not rf;:istcred until '27tli .laiiuai^ , hSS'J : — Held, re- versing the judgment of (lalt, .1., at the trial, that the agreement did not create .a rent charge, as no power of distre8.s was conferred : that if either a rert service or rent seek there wouM be a riglit of ilibtresa and apportionment ; hut if neither, hut a covenant cliarged on land, performance of it would l)c decreed : th.at upon the eonveyance by W. M. to the plaintiff, the whole charge was not extinguished, but an apportionment took phicc ; iindthat therefore defendant was entitled to en- force performance against 1). M.'s undivided half interest, in the hands of K. andS. , whom the evidence shewed were purchasers with notice. McCa-ik-ill V. AlcCasklll et uL, 12 0. K. 783.— C. P. D. REl'AIRS. Sue Executors and Administr.4toks- LOKD AND Tenant. -Land- '■ Block H," and certain other premises known as the " l.angtry i'dock ;" that rent was in arrcar, and liecaiise of such arrears of rent the defendant " well avowed the taking of the said goods on tlie said jiicniiscs and justly. vVc., as a distress for said rent which still remains ilnc ;ind unpaid :' - Held, on demurrer plea liad ; for if the "said premises" ii|ion which the alleged taking was made were the prcinises set out in the plea, then the ttiking was on other lueini^es tiiaii those nameil in the declaration, iiiid there was no con- fession, and the plea of non cejiit covered tlii.-< defence ; Imt if the premises named in the declaration were referred to, then defendant con- fessed the taking and jiistiticid for rent due for other premises, whi
  • y the defendantsfrnm t he plaint ill 's close in that county, reinovesneil for the .'irresl of tiie plaintill'oii a charge nf stealing the marc; and although tlii' original taking was justilied under a search warrant issued in Haldi- mand to search the plaintill's ineniises in ilaldi- niaiid for the mare, and to bring it lictore a justice of that county, yet tlie sulisei|Ui nt removal to the county of Brant, and 7 O. R. 499, p. 241. on the premises known as the "Northern and North-Western Station at tlie said vill.ige of (.'reeniore.'' The defeiidaut [ileaded denying the taking and the property, and then Inrathiid plea ItESCINl)TN(; CoNTR.VC'l' Set up, that one \\ . was tenant to the detendaut of certain premses in the said village known as See Contk.\ct— Sale of (Joohs. § Si: 603 RULKS AND ORDERS. COl llETAINEI!. See Solicitor. PvKTURNIXCi UFFICER. ^ee MuMcn-AL Cori-orationh— Paki.iamen tary Eleotidns. I. Reuul.*; Generales, REVISINli OFFICER. .SVe rARLIAMENTAUY ELECTIONS. REVISION (COURT OF). See Assessment and Taxes. REVIVOR. See Scire Facias and Revivor. RIGHT OF WAY. .SVe Way. RIGHT TO BECIIN. See New Trial— Trial. RIPARIAN PROPRIETORS. See Water and Water Courses. RIVERS. ^ee Water and Water Courses. ROADS AND ROAD COMPANIES. See Way. RULE IN SHELLEi^'S CASE. See Ferris v. Ferris et ah, 9 0. R. 324, p. 213 ; Re Casner, 6 O. R. 282, p. 731 ; Smith v. Smith, 8 0. R. 677, p. 733. R. (i. 89, T. T. lSr)G.~Seo Jiaktr v. Jark.wi, etal., 9 0. R. 0(11, p. 29. R. ii. l.")I ami lOS of T. T. 18,")0 aro still in force as to matters not eiiibraued in the taritidi 1881. — .See //(/// <■! id. v. Uromjiloa Corutt Co., \\ P. R. 2o{i, p. 140. R. (1. of 187'j (37 Q. IJ. 528.)— See Donoiiu V. UouUbet, 10 P. R. 52, p. G79. II. Gknehal Orders ok the Court ok Chan CERY. (}. O. 81.— See Hull v. North llriti^h Canadian Iniratmeiit Co. (Limitad) ' 10 P. R. 622 v 530. (J. O. 147.— See Orpen v. Kerr, 11 P. R. U^ p. 227. G. 0. 197. -See M tr chants Bank \, Monkith 10 P. R. 588, p. .S46. (i. O. 201.— Sec Re Ilarnden — Ilamden v. Ilarmltn, 11 P. U. 35, p. 28. G. O. 220.— See In re Mumifi, 10 P. R. 98, y. 262 ; Merchants llaiik v. Monti ilh, 10 1", 1; 458. (i. O. 260 is not superseded by Rule 285, 0. .1. Act. — See McMillan v. Wunshoroinih, 10 P. 11 377, p. 227. G. O. 208 has been superseded by Rule 2s,'l, 0. J. Act.— See Frith v. Ityan, 10 P. 11. 235, i. 226. G. O. 296.— See lie Harnden—JIarnden . Ilarnden, 11 P. R. 36, p. "^. 0. 0. 418.— ,See Mar/ Birney, 10 P. I', 368, p. 372. G. O. 441.— Seeil/cliu.,^ v. Lindsay Paii-t Mill Co., 10 P. R. 247, p. 555. G. 0. 638. — See Thompson v. Fairbairn, 10 P, R. 533, p. 203. (;. O. 640.— See Rohson v. Robson, 10 P. R. 324, p. 507. G. O. 642.— See H/ake v. Building and Loan Association, 10 P. R. 153, p. 672. G. O. 643. — See In re Stuebing, Anthe-^ v, Dewar, 10 P. R. 236, p. 264. III. Rules Under the Judicature Act. Rule 2. — See McElheran v. The London Ma- sonic Mutual Benefit Association, 11 P. R. 181, p. 355. Rule 5 does not repeal R. S. 0. c. 50, s. 3!', 8ub-s. 34. — See Cochrane Manufacturing Co, v, Lamon, 11 P. R. 162, p. 29. m RULES AND ORDERS- I. Regul^ Generales, 604. II. (I en ehal Orders of the Court of Chan- cery, 604. III. Rules Under the Judicature Act, 004. IV. Rules oi' Court of Appeal, 607. Rule 8. — See In re Guy v. Orand Trunk R. W.Co., 10 P. R. 372, p. 202. Rule 14.— See Ontario Bank v. Burk, 10 P. 11. 648, p. 370. Rule 17. — See McDougall v. Lindsay Paper Mill Co., 10 P. R. 247, p. 555. Rule 45. — See In re Guy v. Orand Trunk R- W. Co., 10 P. R. 372, p. 202; Perki7is v. Missi- sippi and Dominion Steamship Co. (Limited), 10 P. R. 198, p. 547. Rule 45 (e).— See Purves v. Slater, 11 P. R- 507, p. 25. Kil il'uiii) -.17. Kuq 10 1', EHALKS. I Jiaki r V. Jai-kiuii, T. ISnO are still in •aocil ill the tarill di nploii Cornel Co., II j'J8.)— See Donovan 7t). E CouiiT OF Chan '•th British Canadian 10 J'. 11. 622, 1.. Kerr, 11 P. R. 12S, ^1 Ba7tk V. Monteilli, niden — Ilamden v. i. \mi<'., 10 P. 11. 98, p. Montnth, 10 P. K. !cl by Rule 285, 0. .1. imboroiKjh, 10 1', I;. rseded by Rule 2sil, /an, 10 P. R. 235, |. ■irnden — Harnden \ . Birney, 10 P. C V. Lindsay Pai»f aii. V. Fairhairn, 10 P. V. i?o6sow, 10 P. R. Building and Loan G72. Stuebing, Anthe-i v, Judicature Act. V. The London Ma- iation, 11 P. R. 181, ^. S. 0. c. 50, 3. 39, Manufacturing Co, v. V. Orand Trunk 11 2. tn/t V. i?«ri-, 10 P. i;. U V. Lindsay Pap'r 55. V. Om^frf Trunk R- I ; Perkins v. il/ijiji ■ 'ii^) (7o. (Limited), 1') V. .m^er, 11 P. R. CO;') RULES AND ORDEIW. 606 Rule 48. — See Pi.rkins v. Mitnis^ipin and Do- \ Rule2.'>S.— '^oo Ponoinnv. BoiJ/hr--^ 10 P. H. 'y2. muion ateanuhip Co. {Limited), 10 P. R. 1!»8, p. Rule 070. _s..c /^ r<>l,,,y. Mornn, II P U. '^'- 31t;, p. 202 ; Ifif/lanlv. Arthur, 10 IV H JSI, KuloOS.—hJeertdv. \rhit<;\\\'. [I, 177, p. 548. 42ti, p. .H7.'> ; /{'>■>■* v. Ctr^'-'illm, 1 1 1'. K lot, p. Iviile 78.— See MnDini.intl v. Lindnnj Papvr \'-M>^\ Wilson v. Inria, 10 I*. It. 5!)S, p. .S75. .1/;// Co. , 10 P. H. 2 17, p. 5,-1,-). j,,,,^, o-.y. -See IX>n>.-in v, Bon'tlr-, 10 P. K VJ. Kule 80.— See Bryn: .Ur.Vnrrlrh .0 Co. v. llnh -'H-I.-Si-M MrDona/d v. Marrau tt a'., 't v(//, 11 P. R. 112, J). 31!»; Standard Bank v. ] q h 5-,,, ,, oj.j 10 1'. R. 1<9, p. 5u,,. Nee .Im.uMKNT, p. .U.S. , j,,^..^,^ ^. ^^^^,,^^ ' ^, ,. ,^ ._,,,. ^^ .^,_,.>' Uule 95. — See Z/^'ouA-K V. ..l/<'A':it«, 5 O. H. 200, I ,> ,1 „j- 4. ,r ,,■;> „r , , ,,, !'■ ''■*- P. K. .'{77. p. 227 ; .]rrl))nal,l v. .]f'irrtt>/<'i r,/., Uule 97.— See irtWc/- et al. v. L, 5;i5. p. 2.>T 7'a'. V. Th' (Ilii'iK Pria'ini Co., II See IL'witt v. //,(>, 11 P. R, i II. 2.-)3, p. 181). See Kvidknck, p. 227. Rule 311. — See McDaunld v. .Viirraj/ it 11/., Rule 107. — See MrLnrcn. it al, v. Marks f.t al., 10 I'. R. 451, p. 535 ; Tomlinioii it nl, v. Nor- '.km R, W. Co, 0/ Canada, 11 P. U. U9, p. 543. 5 (). II. 55',t, ]). 233; Bah r v. (Irand Trunk li. W, Cu., II A. R. OS, p. 473. Rule 312.— See Babrv. Crand Trunk R. \V. Rule 108.— See MeLarm rt at. v.Afa: '.••( ct al., | Co., 11 A. R. {)8, p. 47.3. ;!' ^*- ^,.■^•'1;, I'- •:*=*■• : '^''"i" ''■ '/' ,; • ' ^ ,!'• ',V i Rule 317, -See iVan^l. y v. Snnllwood, 10 }'. (,, p. 5.W ; Jiinitinson ii at. v. A .> .ir,.) '.;. o/CVtm«(52 ; Jamicsimv. Princi' Alhift Co/oiiizdticin Co., II P. K. 115, p. SnO. Uuk! 4'2S.— Sec W'ahn-'liy v. Mi/r/i. (>. R. 427, p. (i.Sl : -hwo// V. Li//c!/ ct a/., 11 I). R. 285, p. :?!K). Hulu 4'_'!). — See Bmlirorth v. TJf-//, 10 P. R. r)44, p. I.S:^: Hlilihlly. MiKny, 11 P. R. 4,'ii), p. 133. link" 4.31.— See Xnith v. Fis!,,;; 11 P. 1!. -)H'2 p. 133; ///(/(/ 0. R. .'"){l!t, p. 312. Pule 400. — See Willlnvix v. Crotr, 10 A. I!. 301, p. 147 ; McCoinully. Willhix, 13 A. R. 4.38, p. 147. Rule 510.— See Finiinom v. MrMartiii, 11 A. R. 731, ]). 147 ; Wavshy v. Smulluood, 10 P. R. 233, p. 303 : Wi/lhiiis v. C'/ou-. 10 A. J!. .301, p. 147 ; Wb;/iii;/ V. y/o(v)/, 12 A. R. 119, p. 14!). Rule 515. — See ZIrDondl v. Jliii/t lieceipt, 614. 7. Other CasCK, 615. 8. Parol Evidence to Vary — See Eviiii:ni k III. Ri:S(INI)IN(! CoNTIlACT, 615. IV. Stoitagi: in Tuansitu, 616. V. Paktiks Liable, 617. VI. Wauuantv — See Warhanty. VII. Sai.f. of I'ARTim.AR Artici.f.s. 1. Intoxicniiixj f/n/iiors — .S'w Intoxilat- INti LlylORS. 2. Timkr—See Ttmbkr. IV. Rules of Codht of Appeal. Rule 28.~See Bei/an v. Watem, 10 P. R. 364 p. 152. 8ALK OF fJOOnS. I. Statiti: (IF Fraiiis. 1. iXvte or Menioratidinn, GOS. 2. Acctpiance and Iteceipt, 608. I. Statute of Fraud.s. 1. Xote or Memorandum . Tlie plaintiff in Knglaud sold eertain goods t" M. k Co., at Tonnito. After 'he arrival of the goods at Toronto, the plaintiff discovered that iM. it Co. were insolvent, and he iiotitiean. K. (i09- g. B. I' i(f lifreijit. nlitl.s some tf.M. :i 1 lake li! S. S. and M., and one McG. were partners 39 3. When Property Pasiie.t to Buyer. The plaintiff consigned crude oil to A., who was a refiner, on the express Jigreement that no property in the oil sh(mld pass until he made cer- tain payments. Before making such payments, however, A. sold the oil to the defendants, with- out the knowledge of the plaintiff" ; — Held, affirm- ing the judgment of the Court of Appeal for On- tario, 29 Ciiy. 300, that .although the defendants were purchasers for value from A., in the bidief that he was the owner and entitled to SiU the oil in question, the iilaintiff, under ids agreciiieiit with A., having retained the property in tlie oil, I and not having done anything to stop him from 611 SALE OF GOODS. 612 fit!; ^: maintaining bis right of ownership, was entitled to recover from tlie purchasers the price of the oil. Forr'mtal v. McDonald, 9 S. C. K. 12. The plaintiffs sold to U & Co. certain wheels, &c,, to be used iu their manufactory under a written agreement, whereby it was stipulated that the right and property to the goods should uot pass to them until tlie whole price tliereof was paid, the right of possession merely passing ; such right to be forfeited and the plaintiti's to be at liberty to resume possession in case of default in the payments being made, oriu case of seizure for rent, &c., or upon cany attempt by U. & Co. to sell or dispose thereof without the consent of the plaintiCFs, it being expressly declared that the sale was conditional only, and punctual payment of the instalments being essential to its existence. U. & C/'o. placed the machinery in the flume be- longing to their factory, winch was held by them under a lease from H. & Co., and subse(iuently the sheriff having seized other chattels belonging to U. & Co., they surrendered the possession of the premises and delivered the key thereof to H. & Co. Default having been made by U. & Co., the j>laintiffs demanded the wheels of H. & Co., which demand H. & Co. refused to comply with, assigning as a reason that they had not possession thereof, and in the following month the wheels were sold under proceedings to enforce payment of the liei:s of certain mechanics : — Held, afhrra- ing the judgment of the Common Pleas Division, 8 O. K. -IGi"), that the plaintiffs were entitled to recover the value of the goods. Joseph '^all ManuJ'actHrinij Co. v. Hatlitt et at., 11 A. si. 749. All engine, boiler, and other machinery, were shipped by plaintiffs to the defendant E. under a written order to ship same to his address as per sum agreed on, viz., 8875; 3225 to be al- lowed for E. 's portable engine and boiler, and i$635 to be paid on shipment ; but, if not settled for in cash or notes within twenty days, then the whole amount to become due. The order not to be countermanded, and until payment the machinery to be at E.'s risk, which he was to insure, and on demand was to assign the policy to the plaintiffs, and the title thereof was not to pass out of plaintiffs, E. agreeing not to sell or remove same without the plaintifTs' consent in writing. On default in payment the plaintifiFs could enter and take and remove the machinery, and E. agreed to deliver same to plaintiffs in like good order and condition as received, save ordi- nary wear and tear, ami to pay expenses of re- moval. Any notes or other security given by E. for his indebtedness to be collateral tlioreto. The machinery was put up in a mill on premises leas- ed, with right to purchase, by defendant D. to Vi.'s wife for one or five years from 1 1th March, 188.1. ]•:. 'a wife died on the 23rd October, 18s3, and by her will appointed E. sole executor, giv- ing hiui power to sell or dispose of any property to which testatrix was or might be entitled. E. by deed of 27th April, 1885, demi.sod and re- leased to D. all the right, title, and interest in tlie premises as well of liiinself as also as execu- tor, togetiier with the mill built thereon, with the boiler and engine, &o., and on tiie i^anie day D. le.ised the said premises, mil! and machinery, to K. fur one year. After the execution of this leusi; |). niorti^iigod the laiiil, mill and macliinery to the defendants the E. Loan .Society. The de- fendant E. never paid any cash, but gave his pn missory note at three monthsi, which was renewt from time to time, but ultimately E. having faileii to pay same, the plaintiflfs demanded the maclii nery when D. notified plaintiffs not to rennivt same, ce of a contract of saL epairs upon the vesst Navigation Comp" A. R. 303. al.,7 0. R.688, p. i> 6. Acceptance and Receipt, The defendant purchased from the plaintiff a carload of "No. 1 greun hoops," to be delivered at tiie railway station. (»n tlicir arrival at the station they wore removed l)y tlie defendiint to his own place and some of tlie hoops used by him, but merely, as he said, for the purpose of testing them. He then wrote to the plaintiff that he was astonished at his sending dry and ou the reputation of the defendant for being an rotten hoops for first class green hoops, and if honest packer, he refrained from any further ex- he, defendant, had seen thc-m before they were amiiiation, and ])urchased 138 barrels, which, on at his place he would not have touched them ; subsequently attempting to sell, proved to be so that there were less in the car than the number iuforior in quality that parties refused to buy ; stated by the plaintiff ; that he enclosed a bill others returning what they had bought. There- which was tlie amount he intended to pay, and 11 *.!, .;„^;,yV.+1 in tlu.,- mstances, when the apples "appeared to be ill their nclits in tiiei; . ,, ', , . .„ *• li. i iS i • i t a -omnanv to 1* S"" plaintiff might, had he so desired, Uhe "^Thames Rm: have examined all the barrels ; but having pre- Tl,o nrn„o«al was as. viously bought app es packed_bytho defendant which proved satisfactory, and placing reliance upon the plaintiff instituted proceedings to re- cover compensation for the defect in value. The juilge of the County Court witiulrow the case from the jury, and enterf;d a nonsuit, which sub- sei(uently in term was set aside : — Held, on ap- peal, that as the sale was not a sale by sample, and the plaintiff had not been deterred by any not a cent more, because they were not worth that ; and if the plaintiff' would accept the amount otferod to let the defendant know by return mail, and he would remit. In answer, the plaintiff, through his solicitor, threatened a suit, when the defendant replied that if plaintiff would not accept this he might go on and sue : — Held, acts or conduct of the defendant from making a there was evidence to go to the jury of an accep full examination or inspection of all the barrels, the defendant was not liable on any warranty, expressed or implied, and that the maxim caveat emptor applied. Borthwick v. Youmj, I'l A. R. 671. See Leadlay v. McRob-rts, 13 A. R. 378,ip. 609. !'' U and Inspection, \ with one W- , was acting as broke; urchase by sample hn at li cents per 1)).. ' arines. In reality \\ nefit, as ho arrangeii ; le cent a pound. 1' tods at St. Cathariiu- W. to consign themt U. S., which the pla.i' The plaintiff, at f a bill of lading in t: aud drew on tliciii 1 b., which draft wivs a J, the plaintiff pa)iOi 5. Place of Delivery. tance of the hoops, aud an agreement to pay ou a quantum meruit. McClura v. Kreiittziiji:r, 6 O. R. 480— C. P. D. The plai'itiff, a lumber dealer and mill owner, agreed with the defendant, who carried on a lumber business at Hamilton, to sup\)ly him with certain grades of lumber, to be shipped on board of cars at the stations nearest to the plaintiff's mills, and to he sent to tiie defendant at Hamil- -p, , r J J. 1 i 11 i. J.1 1 • .-/y I ton ; payment to be made liy acceptance at three 1 he defendants asrced to sell to the plaintiff i 'f •; , ,■ tu i„, ,i „ „,.,c =i,i.>.>o.i ... c. ° , , ,. 1 ■ ii 'ir .. 1 months trom delivery. 1 he luinher was shipped imiaiitity of tow, to bo delivered in the United i . , i ^ ^i if, i„.,i f„ „., (.;,.,„ f,. (-;,>,„ o.\ 1. ,1 ij 1 • i >i iu *. • ■ ,. 4. \ in car loads to the defendant from time to time, Mutes at a " Boston point, that is, a point to c \ ■ u <.., i ,., i ,Hw,,.o -nw.ofn.i „u ■ 1 i.1 r ■ 1 i 1 ' 1 .1 ' ^ some of which were accepted and others rejectea which the freight charged was the same as to , , • u i i ti „*. n, i e i„„4. u„,i fv,,. ,.i„i,f 11, ., ° ij ii ^- L 1 1. 1 1.1 1 by him: — Held, that the defendant hail the right liuston, Mass. Both parties contemplated the / . , . I it . ;u u,,«. i ,..;.,„ .. .,,.,, .?,.,1 ' ' ' • - i ot inspection at Hamilton, but having accepted certain of the car loads, lie had no right to reject the others, Ijccause composed of lumber part of which ilid not answer tlie contract, unless such part was so inferior in (juality and to such an riuto from the Suspension Bridge as that by which the tow would be sent, and Bellows' Falls, Vt,, a Boston point on that railw.iy system, was the place named by the plaintiif, but subse- quently he desired to have the tow sent to f'r;uiklin, N. H., which was not a Boston point on that railway system, and he agreed to pay the urliitrary or extra freight, which he supposed was live cents per 100 poumls. 'I'he defe-idants awordingly consigned the goods to "Franklin, N. H.," and in the ordinary course of transport they were taken to Boston, and tlience to Frank- lin, N. H., where they were received by tiie pliiintiff siiljject t(j railway ciiarges greatly ex- weiiiiiL; the (ive cents per 100 pounds, it liap- pi:iied that Franklin was a Boston point upon amount as to destroy the distinctive character of the loads, which was not the case here, for I out of the whole quantity delivered only four ! aud a-iialf per cent was agreed to be defective ; and that defciidarit must rely upon liis action ' for damages, or give the inferiority in answer , pro tautii to the claim. Di/inenl v. Tlinnixon, 9 (». H. 5()(i-C. 1". D. Atlirnicd, 1'2 A. R. 05!), J). ()70. Th; idij din irce cases ol goods, cxceei were verbally ludercd by L. at M. ?tO in value, Irom plaintiff ^ ^^^SS ^^^ ^SBS 615 SALE OF GOODS. CIC i H II tl at T., through plaintifiF's traveller, and were 8hii)i)ed, cf)nsigneil to L., and carried by railway ami then l)y defendant's steamer to M. Two of the cases were received by h. . one of which was in a damaged condition. The third case re- mained on board the vessel, as the purser refused to deliver it up until tlic freiglit on these cases, as well as on a variety fif other goods consigned to L., was paiil, which L. refused to do until he had first an op])ortnnity of checking over the goods. Before the dispute was settled the vessel left, and was siibseijueiitly wrecke. 1!. 750— C. P. D. The plaintitV agreed to sell the defendant a piano for ^400, to be paid by notes at one and two years with interest, with a rebate for cash. The piano was delivered at defendant's residence, who after nsing it for some time objected to re- tain it, and refuseie et al. v. I'roclur, 5 O. P. 238, p, 23S. 111. UKStlMUM; CONTUACT. 1 lie defendants contracted b> luirehase a (pian- tity of old inm lails from the plainliU' company, to be paid for as each 100 tons were delivered. The phiiutitl'a consigned 1150 tons out of 1300 tons stipulated for, and drew for the amount thereof at the agreed price, which draft the dt- fendants refused to accept under the erroucdus belief that a portion of the iron charged for hail not l,>een received by them, and informed thi; plaintiff' company of the ground of their refusal to acce]>t the draft :— Held, afhrnung the judy- ment of the Q. P. I). 2 0. P. 1, that this refusal to accept was not, under the circnmstances, su( li an act as to warrant the plaintiffs in treating it it as a repudiation of the contract, or such a,- would release the jilidntiffs from a further )hi-. formance of it, AVhat would amount to such a repudiation considered. Midland Raiheaii ('mi,- jKitiii V. Ontario Ihdlinij Mdlt, 10 A. P. 077. , Sec Brasserf v. McEvan O al., 10 0. R. 17H, i ivfra. i ' I'^*. STOPr.xoE IN Transiti-. Per Cameron, C. .1., stojjpage in transitu does not rescind a contract on the sale ot goods, l.iit merely gives the vendor a lien on the goods I(m their pi'ice. lirassert v. McEwan et a/., 10 <>. 1! 170— C. P. 1>. The plaintiffs, merchants in l^oston, sold and consigned goods to J. C. & Son, in Toronto. While the goods were held by the railway coiii- pany in T., J. C. & Son assigned to the d( ten dant as trustee for the benefit of creditors. TL' defendant, immediately after the assignniint. jiassed and entered the goods, and paid the duty thereon, and the railway company removed tli' goods from the customs warehouse to their freif;li: sheds, where they remained, and delivery \v:i- refused to the defendant for nonproductiou liy him of a bill of lading, and the freight was not ]iaid or tendered. The i)laintiffs having stoppcii the goods : — Held, that the transitus was luit at an end, for that the railway company continued to hold the goods as carriers, and not as .igents for the defendant. The plaintiffs had, before they stopped the goods in transitu, proved their claim for the goo(ls on the estate of J. C. & Son; —Held, that this did not deprive them of tluir rights as lien holders, or affect their right to stop the goods in transitu. T/ic Mori/an Enriloji' Conipnui/ v. Boustead, 7 0. R. 097 — Q. B. i*. The plaintiff sold to G. a (piantity of leather which was to be sent to the purchaser at P. by railway. The shipping bill contained, amongst others, the following oonditi(uis : "In all casw * * the delivery of goods will be considtrtd complete and the responsibilities of the company I shall terminate when the goods are placed in tlio company's shed or warehouse, * * when thty shall have arrived at the place to be reachtd upon the railway of the company. The ware housing of them will be at the owner's risk. who was to be liable for any charges for ftorm | them otherwise than in the warehouse of tlit company. " Storage will be charged on all freight remaining in the dejjots over fortycit:lit himrs after its a'riival." While the leathern mained in the warehouse of the railway coniiiaii) at P., the ])urchaser reiiuested the station agfut I that it might be kept for him by the coiuium until he could find time to remove it, and a.-ki'l him not to charge storage, but the agent uia'i; no in'omisc ; and subsc(|ueiitly the sherili pn the charges thereon, seized the leather uiuUr 1 1 writ of attachment sued out by the defentlauts, GIC w for the amount vhich draft the dt- mlor the crroutous on charged for luul and informed tli>j md of their refusal affirming the judj 1, tliat this rctusMl circumstances, sui h intilTs in treatiu;: it lontract, or sul'U :i.-' "rom a further jhi- 1 amount to s\ul\ a dland liailirdii <'"ii' s 10 A. 11. 077. ital., 10 0. R. ITit, Transiti-. lagc in transitu does e sale ot goods, Imt ien on the goods foi Eiraii it al., 10<». \l in Boston, sold ami & Son, in Toronto. hy the railway coin- signed to the di feu lit of creditors. 'I'li'' 'ter the assigiiiutnt. Is, and paid the duty ;ompany removed tli< ehouse to their freight ^d, and delivery w.i-^ 'or noni)roductiou liy I the freight was not intiffs having stopiicil transitus was not ut company eontinutil •s, and not as agents )laintiffs had, hefrirc ransitu, proved then- state of J. C. & Son; prive them of their ;t their right to stop 'le Mania II Ennloii' K. 097-Q. B. !'• quantity of leather purchaser at V. hy contained, among'^; tions: "In all case- ds will be eonsiikretl lities of the company oda are placed in the sc, * * when they place to be reached )mpany. The ware L the owner's risk. y charges for ptorin; he warehouse of the be charged on :ul pots over forty-eitiht Vhile the leatherre the railway conipiniy ted the station agci't 617 SALE OF LAND. 618 uiul removed the same from the stores of the VIII. Under Power of S.\le i.\ Mortgage — railway company to the shop of G.: — Held, that See MouTGACiE. this did not deprive the vendor of his right to stop the goods in transitu. McLean v. Brellh- mipl et al„ 12 A. E. 38.3. hv tl ic coniv;iriv IX. h-fUiove it. and asM' I hut the agent ma.i illv the sheiitl iwi the leather under i | It by the defendants. V. PARTIE.S Liable. Where one brought an action against the regis- tered owners of a certain vessel for the value of goods supplied before they became such owners, not on the order of the defendants, but on the order of one G. C, between whom and the defen- dants no relation of agency was proved : — Held, that the plaintiff could not recover : — Held, also, that it was open to the defendants to shew that their real interest was that of mortgagees, though ostensibly registered owners. The fact that tlie Vessel got the benefit of the supplies and neces- saries did not make the registereil owner liable. XeUcm v. Wiijle, 8 O. K. 82.— Boyd. Married Woman's Proi'ERTy — -See Hr.s- BAND AND WiFE. X. Under Order of the Court — Hee Sale OK Land bv Ohder of the Court. XI. For Taxes— .S'ee Asse.s.smest akd Taxes. XII. Of Timber — See Timber. II. SALE OF LAXD. Statute of Frauds. 1. A'o^e or Memorandum, 618. 2. Part Performance, 619, Contract of Sale. 1. By Letters or Telegrams— See Con- tract. 2. Construction, 620. 3. When Time oj the Essence of the Con- tract, 621. 4. Deliver 1/ of Possession, 621. 5. Sale According to Plan, 621. 6. Description of Property. (a) Compensation for Excess, 622. 7. Compensation to Purchaser for Breaches in Currying out Contract, 622. 8. Covenants on Sale— See Covenant. 9. Specijic Performance of— See Specific Perform.vsce. Title. 1. Abstract, 622. 2. Incumbrances, 623. 3. Cloud on Title, 623. 4. Costs, 624. 5. Other Cases, 624. 6. Compensation for Improvements under Mistake of Title— See Improvement.s ON Land. 7. Covenants for Title—See Covenant.s FOR Title. S. Applications under li. S. 0. c. 109— See Vendors and Purchasers Act. IV. Vendor's Lien, 625. V. Rescinding and Setting aside Sale for Fraud— i'ee Fraud and Misrepresen- tation. VI. Crown Lands— .See Crown Lands. VII. Dower— See Dower. IIL 1. Statute of Frauds. 1. ^^'otf or Meniorandnm. Per Proudfoot, J. — It being proved that the former will in this cas: ivas made pursuant to the agreement alleged, that will might be con- sidered as evidence of the agreement, and was evidence in writing sufficient to satisfy the Statute of Frauils. Camptiell v. McKcrrii'ln r et al., 6 O. B. 85. At a tax sale of land, J. K. R. and T. A. K., finding there wouhl be a contest between them for lots 1118 and 1119, signed an agreement, with their initials in the margin at the bottom of the page of the Gazette, containing the list of lands to be sold, as follows : Mr.J.R.R.4 ) We buy on joint acc't ( J.R.R. } of 1118, 1119, sheritl's \ Mr.T.A.K-i ) Xos. above. ( T.A.K. The sheriff's numbers had not been printed in the CJazette, but T. A. K. had prefixed the.i in ink to most of the parcels on that page of the Gazette, including Nos. 1118 and 111!). It was not stated anywhere in that list that these num- bers were sheriff's numbers. J. R. R. havhig bid for the lots, and afterwarils caused them to be conveyed to B., T. A K. now brought this action against J. R. R. and 15., claiming specific performance of the above agreement, and a de- claration that J. R. R. ami ]}. were trustees for him of an undivided moiety of the lands : — Held, afttrming the decision of Proudfoot, J., that the above constituted a sufficient memorandum of the agreement within the Statute of Fiauds. The manner of paying the amount of taxes, or by whom payment was to be made, was not one of the essentials of the contract as between the par- ties. The implication of law would be that who- ever paid so as to complete the sale should have contribution of a moiety from the other : — Held, further, that the defendant appealing not having pleaded the defence of the statute, could not claim the benefit of it : — Held, also, that the above agreement was not illegal, nor did it make any difference that it was a tax sale. Kceftr v. lioafet uL, 8 O. R. 69.— Chy. D. Where pro])erty was sold by auction, the par- ticulars and conditions of sale not disclosing the vendor's name, and the contract was duly signed by the purchaser, but was not by the vendor or the auctioneer acting in the matter of sale, and subt.'jquently, in conseciuenee of delays on the part of the purchaser, the attorneys for the ven- dor (one of whom was the vendor himself) wrote in the course of a correspondence which ensued : " Re S.'s purchase, we would like to close this." And referring to certain representations made in the advertisements of the sale: "They were not made part of the contract of sale. ♦ • • 619 SALE OF LAND. 620 pi Have the c'oodness to let us know whether the ^ vemlee will pay cash or give mortgage. If the latter we will prejiaie it at once and send you draft for approval ;" and on a subsequent occa- sion : " Ee S. 's purchase. Herewith please re- ceive deed for approval," and on another occa- sion the vendor himself wrote " I shall take im- mediate steps to enforce the contract:" — Held, affirming the judgment of the courts below, (28 C'hy. '207; 8 A. R. Itil), that the conditions of sale together with the correspomlence were suffi- cient to constitute a complete and perfect contract between the vendor and purchaserwithin the Sta- tute of Frauds. O'Donuhoe v. Stcunmirs, 11 S. C. R. 358. C. verbally agreed with an agent of W. at Toronto to buy land in Manitoba, paying the agent ten per cent, of the purchase money, and taking his receipt therefor. C. signed the re- ceipt as a witness, made an affidavit of execution, and registered it, in order, as he swore, to bind the bargain. The vendor's name did not appear in the receipt, but there was a reference in it to a telegram sent to the vendor, which was pro- duced and shown to be addressed to W. The plaintiff was the ownei of the land, \\. being merely his agent, but W. subsequently executed in his own name a convejance of it to C, who also signe 75-Chy. D. JF Sale. lion. laiuti£f by agreeuieut ad to defendant fnr he execution of th- without interest w. iidant covenanting t' ;ousideratiou thtreo' convey or cause the simple to defendant. nd to permit dtfen il default. By tli- light assume possess rent then due fioii. raises, and make ai- dving uj) poasessioi. but was turned ov.t d and registered a lis idaut in April, 1883. ictment against JI . took to, and on 17th the lis pendens. Ii. tifF on October 12th, e purchase money :- following McDouahl hat shewing a goo'i •ecedent to the red- and moreover th? convey or cause to he that apart from JL intifif was entitled t gnt in the ejectmec: it's claim to the lami. jdens, which could Ik j,s no answer to the Jendant also counter lement by plaintiff t? id also claiming dam f possession :— Held, lant to recover thest ise to pay should be failed to do; hut a,' ided to pay a portioc ith half ; and he ffif 5 time defendant was 'cCraev. Backer, 90 621 SALE OF LAND. 62 o<> thon a minor, for .81,200— of which 8.500 were paid at the time, balance payable in seven yearly instalments of 3100 each, with interest at seven |ier cent. 1). M, was to have immediate pos- session and t" ratify the deed on becoming of age, and to be entitled to a deed of sale if instal- nunt.s were paid as they jjecanie due, "but if, on the contrary, 1). M. fails, neglects, or refuses to make such payments when they come due, then said 1). M. will forfeit all right he has by these presents to obtain a deed of sale of said herein mentioned farm, and he will moreover forfeit all moneys already paid, and which here- after may bo paid, which said moneys will bo considered as rent of said farm, and the.je pres- ents will then be considered as null and void, and the parties will be considered as lessor and lessee." After 0. 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, T). M. returned and tendered the balance of the price, and claimed the farm :— Held, reversing the judgment of the court below, 3 Dorion's Q. H. 1!. 21'2, (Strong and Taschereau, ! JJ,, dissenting,) that the condition precedent on 1 which the jironiise of sale was made not having | heeii complied with within the time specified in j the contract, the contract and the law placed ' the plaintiff en demeure, and there was no neces- ! ,sity for any demand, the necessity for a demand | heing inconsistent with the terms of the contract, j which immediately, on the failure of the per- fonnance of the condition, ipso facto changed the rehition of the parties from vendor and vendee to lessor and lessee. Graixje v. McLennan, 9 S. (.'. K. 385. See Keefer v. lioaf et ai, 8 0. R. 69, p. 618. of Ferguson, J., 7 O. R. 1!)4, that, as the plain- tiff had ready access to the streets l)y the lane on which his lot abutted, he could not i)revent the city from closing up other lanes on the pro- jiurty. ('(irt-t/v. Tin' ('it i/ <;/' Tontnto, 11 A. H. 416. Aflirmed by Supreme Court. See Cassell's Digest, p. 482. In lSr)9 the then owners of ])art of the lauds in (juestion in this case had a plan prepared and regi.stered, and in 1871 they conveyed a parcel which they described as block F. : — Held, that it must be presumeil they intended to convey the same parcel of land shewn on said plan as block F. witii the same natural boundaries as those thereon indicated. AtiriH v. I'latt, 10 S. C. K. 425. 3. ]Vhen Time of the Essence of the Contract, See Crossfield v. Gould, 9 A. R. 218, p. 657. 4. Delivery of Possession. See McCrat v. Backer, 9 0. R. 1, p. 620; Keaijs V. Emard et ai, 10 O. R. 314, p. 237 ; Manson v. ilansoH, 10 P. R. 155, p. 626 ; Barhtrv. Barbtr, 11 P. R. 137, p. 627. 1874, T. G., by a pro ell a farm to D. M 5. Scde According to Plan. The mere fact of the owner of lands selling tliem in lots according to a plan shewing streets and lanes adjoining the several lots does not bind him to continue such streets and lanes, unless a purchaser is materially inconvenienced by the closing of any of them. The defendants, the city of Toronto, announced a sale by auction of city lots, the advertisement stating that "lanes run in rear of the several lots." A plan of the land shewing the streets and lanes was exhibited at the sale, and was incorporated in the contracts of purchase. At such sale the plaintiff purchased a lot situate on the north side of Baldwin street, which lot abutted on a lane running from east to west ; a lane also ran in rear of other lots situate on Huron street, all of which were bought by the defendant M., such lane joining at right angles the lane in rear of the plaintiff's lot. The lane in rear of the lots on Huron street was sub- sequently closed : — Held, reversing the judgment 6. Description of Property. (a) Compensation for Excess. In proceeding to a sale of lands under a ilecrec of the Court of Chancery in 1876, one parcel was advertised as containing 100 acres, and was bid off by one A. at;?31 per acre, whicli in the agree- ment to purchase signed by A., as nell as in the conveyance to him, was described as " 100 acres more or less, composed of the east part of lot 9," &c. : he paying or securing according to the cilhi)is v. C'/arb:, 11 1*. i R. .SnO.— I'roudfoot. III. TnxK. Cloud on. See Kf-efcr v. McKay, 10 P. P. 345, p. 624. IV. Infants' Estate. See Blenn v. li/mv, 10 0. K. 693, p. 322. SALOONS. See Intoxicating Liqcors. SALVAGE. See Insurance — Ship. SAMPLE. Sale ui — See Sale of' Goods. SCHOOLS. See Public Schools. SCIRE FACIAS AND REVIVOR. S. P. brought an action for damages sustained and to be sustained by reason of breaches of covenants for title in a conveyance of certain lands to him, and before the trial died intestate, whereupon his administratrix took out an order of revivor, which order was now sought to be set aside on the ground that the right of action •lid not survive to her : — Held, that as to dama- ges which accrued during the lifetime of S. P., his administratrix was entitled to sue for the same ; but that this was not so as to damages which might have accrued since his death, for which — Semble, the heir, or devisee, might bring an action. In the case of such covenants run- ning with tlic land where only a formal lircn i takes place in the life of the ancestfir, the rdiicnv for diiina^e.s accruing after his death, jia^M s !■ the heir f)r devisee ; but wlicie not only tli. lii'('a<'li took ]ila<;e, but damages accrued in tl p lifetime of the ancestor, the remedy foi' tlips. damages passes to the personal rej)resentativi Platf v. Thp (,'raiul Trunk U. W. Co., 11 O. H 246. — Proudfoot. The original defendant dying pendente lit.. the ])laintit]'s issued an order ot revivor on tli 22n(l April, and served it on the deftndant> In order on the same day, and along with it a ii. tice of trial for the .5tli May, at Cornwall. Th, defendant moved to set aside the notice of tri;i! as irregular ; — Held, that the order of re\ i\(,' was in force from its service, and as it would h. confirmed ))y the la[)se of twelve days upon tl,. 4th of May, the notice of trial foi the.ltli of Ma, was regular. New Yuvk /'iitiio Cu. v. Shvin-n. 10 P. It. 270 — iJalton, Ma>iln: The letters of administration to an infant as administrator were revoked after judgment against him in an action brought by him to n cover certain assets of the estate, and new lettt-i- were granted to one P., who thereuj)on obtaiiitM an order of revivor in such action, directing tli> further j)roceedings to be carried on by P. a- administrator and plaintiff. Pefore P. ciniM move against the judgment the order of revivo: was rescinded. P. in this administration action attacked the validity of the securities which tht former administrator had im])eached in the ac tion I'eferred to, whereupon the plaintiffs (wiiii had been defendants in that action) applied ti^ have it ruled that the judgment in such othc; action was res judicata against P. in this admin istration proceeding : — Held, that by the di.« charge of the order of revivor in the actiun, ii: wliich the plaintiff by revivor was suing in autre droit, such action was left without a plaintifi and the judgment recovered was not muler tin circmnstances an estoppel'against P. Merrhan'f Binik V. Moiiteitli, 10 P. R. 4t)7.— Hodgins, Ma- ter in Ordinary. Judgment was recovered in 1856. On tlit 23rd of October, 18()9, an order was made by a Judge in Chambers to revive liy entering a sul' gestion on the roll under the C L. P. Act, ana the suggestion was entered on the 22nd January 1870, but no execution issued after that dati' On the 6th December, 1884, an order was niaiK under Rule 255, 0. J. Act, for leave to the plain tift" to issue execution : — Held, that the entry of a suggestion under the C. L. P. Act was a judg ment of the court and gave a new starting point for the Statute of Limitations to run from, and that the period of limitation in the case of judj; ments in personal actions is twenty years under P S. 0. c. 61, and not ten years under R. S. 0. c. 128, which relates to judgments as liens on land. Allan r. McTavish, 2 A. R, 278, am! Boice V. O'Loane, 3 A. R. 167, commented oi; and followed :— Quaere, per Rose, J., whetlitt there is any period fixed by the statute bej'oni which the court may not have power to allow execution to be issued. McCulloiuih v. Svka •' al, 11 P. R. 337.— Dalton, Master. —Ro&i The plaintiff recovered judgment against tht defendants on the 3rd of November, 1863, an^: the last execution issued thereon was returneJ in September, 1865. More than twenty years 629 SEDUCTION. 630 ly a foininl lurin' IlCfStdl', till' n im in lis (leatli, ]);ifM^ t' ilicre not only ■,\.. \^i:n lu'cnifil ill tl.p lu ri'iiiedy ffir then iiiiiil rt'iiresuiitativ. h'. IV. Co., HO. i; ying pciidonte litt. ;r ot revivor on tlr I the (left lulants l.\ iilouj,' with it a II' , at Cornwall. 'I'Ih u the notice of tri:i! lie order of re\ivi.! ', and as it would In ,elve days iqioii tin al foi the nth of Ma;, iiiio Co. V. Stevcih'ii . ration to an infant )ked after jud«nn.nt rought by him to n itate, and new letti-i ■ o thereupon ol)taiii(.u action, ilirectinL' tli. carried on liy V. ,i^ r. IJefore P. couM the order of revivn: administration aitinu .' securities which tht imi)eached in the ao II the plaintiff's (wlic lat action) applied ti Lment in such othc: inst P. in this admin 1.1, that by the di? vor in the actinii, ii •or was suing in autre without a plaintiff lI was not undei- tin gainst P. Mfrrhrin'f 4t)7. — Hodgins, Ma- il in 1856. On tli. ordi-T was made by ;i ^e by entering a sui; le (J. L. P. Act, aiM on tlie 2'2nd January iued after that datf , an order was nuult for leave to the plain eld, that the entry c: P. Act was a judg a new starting point aus to run from, ami a in the case of juil;; twenty years uudcr years under R. S. idguients as liens oc '2 A. R, 278, au'i 167, commented m. r Rose, J., whetlitr , the statute beyon; have power to allo« 'cCtdlour/h V. iSiibi'' Master.— B.ost: udgment against the November, 1863, an.'.| hereon was returned ■e than twenty year; I „ftpr\var(l.s the plaintifT moved for leave to issue execution against the surviving defendant, Init nil evidence was given of any part payment on ;n.i'ount of the judgment or acknowledgment of liability thereon within that period : — Held, ! that if the motion was neces.sary it had been ri^'litly refused : — Qua.Te, whether it was neces- sary to obtain leave to i.ssue execution upon, not vested in the pl.aintitf, but in the |ierson who was master of the girl at the time of her .sediir tion. MeKersie v. McLean, 6 O. R. 42H.— ('. P. 1). .See Udy v. Stewart, 10 O. \\. .501, 'tnfra. II. EviuESCi;. In an action of sedactionthe plaintiff obtaine I a verdict, and judgment was directed to be en- tered in his favour. In the following sittings of the Divisional Court an order nisi was obtained to set aside the verdict and judgment, and to enter judgment for the defendant, on the ground of the improper admission of the evidence of the seduced girl by reason of her incompetency to give evidence. The order was set down, and on its coming on for judgment, it appeared that after the order had been served,the plaintiff haddied; — Semble, that under O. J. Act, Rule 383, the ac- tion abated by reason of the plaintiff's death ; — Held, that the girl's evidence was improperly received, as it clearly appeared that she was not capable of understanding or appreciating tin.' nature of an oath or the obligation she assumed in swearing to tell the truth, and was therefore incompetent to give evidence ; and without her evidence the verdict could not be supported. Under the circumstances an order was granted staying further proceedings in the action. (''(/*/ V. Stewart, 10 0. R. 591— C. P. D. In an action of seduction the only evidence was that of the plaintiff, the father of the seduc- ed girl, and the defendant, the girl having died shortly after the birth of the child. The plain tiff stated that the defendant had admitted that, he had seduced the girl, and asked what the case could be settled for. The defendant denied that he was the father of the child, or that he h.id made any such admission : that he had heard L. spoken of as the father of the child. He admit- ted having asked what the case could he settled for, but that he said so because he heard the plaintiff was asking 81,000, and he wished to know what it could be settled for : that he did not do so with a view to any one but merely out of curiosity. The jury found for the plaintiff UNIVERSITY OF WINDSOR LIBRARY 631 SESSIONS. 632 ftx* IS* with §7r>() : — Held, that thurt' was suflicieiit cvi- dencL' to go tliu jury in mippni't of the jjhiiiitill 'm ciiae ; and that tliu dania^'es, untler the circuin- stances, were not excessive. I'dltiiln/ v, Mc- Clntry, 11> (). it. I'J'i-C. 1'. 1). 111. U.\.MA(fES. Assessment of (hiinages \>y jiidj^'c witiiout jury. Sec Adiiir v. Wadi , i) (). 1{. 15, p. OfS'J. .See Paliiili!/ V. Mir/,',iri/, \2 (). It. I'J'J, •v'(y//(t. IV. (,'nSTS. In an action for seihietion it appeared tliat the wrong eonn)liiined of was partly attrihutahle to the culpable coniliict of the girl's parents, and the jury gave a verdict tor tlie defendant, but declared that they ilesired hiiii nt I six montlis previously to his application, and liaij upon his own application l)een accei)ted liy tin.' Exchange as a member, the vote for his aecc'in- ance to be by ballot, and one black ball in live, I or a portion of five, to exclude. After being ac- I cepted he might purchase a seat from some unv already a member, or i)ay an entrance fee i.i .S4,()0() to the Exchange, and by such i)ayiiRiit create a seat for himself. The total iiumlHr if scats on the board was limited to 40, whereof ,'i:i were taken up by the 33 members of the K.x change. The sequestrator liaviiig applied fomii order under the writ of seijuestration to sell tliu defendants' seat at the Exchange : — Held, tliat altliough such seats were the property of the ' debtor and should be saleable under process, aiiij that the court could implement its execution by ' ordering the defendants to do any act necessary ! to etFect, or to refrain from any act to obstruct, the sale of tlie said seats ; yet that, inasmuch as the court could not control the exercise of tin ballot by the members of the Exchange, no effec- tual order for sale of the seats could be made : the application was, tlierefore, refused, without costs. Remarks on the desirability of legislation to extend the operation of the writ of sequestra- tion to meet such eases. Ih. Attachment not sequestration is the proper remedy for disobeying a mandamus. Demviv' V. Mkhand R. 11'. Co., 10 P. R. 82.— Wilson. SERVANT. 'Vee Master and Servant. SERVICE OF PAPEKS. .S'ee Practice. SESSIONS. I. Who to Preside, 632. II. Convictions. 1. Ap)' ' ' t Maf/iatrateg, 6S3. 2. . ivni Sessions, '"'33. 1. Whc IV Preside. Held, per Armour uud O'Connor, JJ. , that the County Judge of the county of Lanark had no power to preside at the Sessions in the county i' Renfrew, the Provincial Statute authorizing hin; to do so being ultra vires. >Vilson C. J., upon this point gave no positive opinion, but intliDeJ to the opposite view. Qibson v, McDonald, ' U- R. 401.— Q. B. D. SET-OFF. r,3i ittiiig at the siiiin il purchaser, ami ii cast' accuptalilc, m (I, tlie k-ave wnull j to huodiiii! a iiiLiJi nihl not, undur tlm iber unlcMs he hM ier, reaident, ilciiiM I'orouto, for at 1l,'i>i ippliuation, and li:illratfs. Two justices appointed in IMSO for the tcni- jwirary judicial district of Nipis.sing, made a uiiiviction in the snid di.strict of one .M. for an aifliudt committed there : — Held, that im appeal Hiiiild lie under !)\'ict., c. 41, now ( 'uns(d. Stat. I.e. 101, 8. 4, to the (Jencral .Sessions of the I'liiinty of Henfrew, being the neai'est to the riLicc of conviction, for the justices were not a])- ]iiiiuteil under thit Act, but under the Iv. S. ( ». I 71, iinom.,) as amended by 3.'! N'ict. c. 27, s. 2, ([)om.,) expressly t.ikes away the right to certiorai'i whei-e there has been an appeal to the sessions: Held, that where' tlic magistrate lias jurisdiction over the oltciice chargi'il, and the right to certiorari is taken away, the court camiot examine the evidence to see if the magistrate had jurisdii tion to convict, and til 'rtiorari was refnseil. Itniiiiii v. Sfatt '/ III., 10 I', i;. r)l7.- Itose. Wljcro a defendant subittits to examination before a magistrate it is too late afterwards to object to its iiro|il'iety. Incases where ii magis trate has jurisdiction certiorari is absolutely taken away, but an appeal to tile sessions still exist,-. which however is itself also taken awav l>v sec. 27, s. 1. On the appeal Ijeing heard, tlie 1 | | ,,t the Canada 'l\'in].eraiice .Act, Isfs, where the conviction is before a stipi ndiaiv magistrate. lUiiiiin v. /{uiiiiiii/, 11 (». It. 210.— Call. (■ -I, ^ - - , , misoiier was found guilty and the cejiiviction tlirmed, and the prisoner directed to be pun- iccording to the conviction. No process i>li';d , \v,is issued by the Sessions for enforcing the ju.lgnient of the Court, but a new warrant was i-ued Ijy the convicting magistrate, under which thf prisoner was retaken. Writs of habeas coiims ,,iiil certiorari were i.-sucd, and on the return tlureof a motion was made for the disch.arge of the prisoner. In the margin of the writ of iiilieas corpus, it was marked "per" 33 Car. 2, wliich was signed by the Judge issuing it ;- Hild, that the prisoner was not in custody or u'litined under the judgment of the Sessions, Init under the warrant of the convicting magis- trate ; and— Semble, under the circumstances, the oonvicting magistrate was functus officio, and therefore could not issue the warrant in (juestion, which should have been issued by the Sessions ; ;iiul possibly they could have I'.irected puiiish- iieiit for the unexpired term ; but that if no bail had been given, and the prisoner had remained ill custody, no further order of commitment wiiiild have been necessary, or if no warrant of c.iiiriiitment had been issued jirior to ajjiieal, the iii;i<,'istrate could have issued one thereafter : — Helil, also, there was power to act under R. S. O. I, 70, and so a Judge in Chambers could deal with the motion : th.at marking the writ as under the Matute of Charles, did not prevent the learned Judge so acting under c. 70, or at common law ; ,iiid as no ofl'cnce was declared the prisoner was directed to be discharged on the habeas corpus : -Held, also, that under a certiorari the convic- tmn might be quashed ; and, as the judgment of the Sessions confirmed the conviction, it would probably fall with it. Jieii'ma v. Arxoft, 9 (J. K, 541.— Rose. Semble, that the warr.int issued in this case latter the dismissal of the appeal by the Sessions, land which followed the original conviction in iliiecting imprisonment for six months, without, I making allowance for the two days' imprisonnient I already suffered, was not open to objection. \.h-xM V. Lilliy (t n!., 11 0. R. 153.— Q. B. D. See IMjina v. Bavifay, 11 O. R. 210, p, 634. 2. Appi'itl': J'i'om StSfiio)i.r Costs — SVc Costs. III. Cnoss JfDGMKNTS — Si'r .rriHIMKNT. IV. l'i.K.\i)iNr;("()iNTEU Claim AND .Skt-okf— ■Sii- I'l.EAIiIMl. I. Srn.iECT Matter ok Si.t-okk. After jilaintiff had commenced an action against the defendant to recovei from him in respect of his unpaid stock in a joint stock comjiany the sum of ?r442.2(l, being the amount of an unsatis- fied juilgnient rccovi'rcd by the plaintitl' against the company for .*4,333.0iS, .•iiid assigned it to one ({., who assigned part of the money reeo. vered to the extent of SoOO. the amount of tlu! defendant's unpaid stock, to the ilefendaiit. The object of tlie assignment to the defeinlant was to give him priority over the plaintitl's claim : — Ifeld, that the procuring of such assignment liy defendant being for such jmrpose, and being a voluntary act on defendant's part, and with no- tice of plaintitl' "s claim, ilid not constitute a defence to it ; but — .Semble, if the set-off had accrued to the defendant in his own right, al- though after action brought, it wouM have been otherwise. Fifhl v. Hulhirdi/, 5 O. R. r)02— C. r. 1). Held on the evidence in this case that the mas- ter was right in disallowing'a large set otl' brought in by the defendant over and above the sum of SI ,600 allowed for reconstructing the buildings. Smtrr et al. v. Badniach, ID O. R. 131.— Hoyd. In an action of trespass for entering the ware- house of a deceased person (of whom the plain- tiff was the administrator) after his death and taking and converting the goods therein, the defend.ant set otl" a delit due by deceased to him. An administration order had been made of which the defendant had notice before defence. T'lie set oil' was- Helil bad under 27 \'ict. c. 2S, s. 2S, and also because of the administration order. Jloiiteil/i v. H'alsli, 10 1*. R. 162.— Dalton, MaMa: •686 SHERIFF, 636 •Jul* S5 '"«£" "^«« '^^ .f. I., the fj)pellant, jave to one Q. his note for SfJ.OOO wliich was Ciidorsed to tlie Bank of r. E. I. ; the Union I5ank of P. K. I. at the time held a che(]Ue or draft, made by the Bank of P. K. I., for nearly tlie same amount, and this draft the Jippellant purchased for something more than 8'200 less tluin its face value ; being sued on the note he set off the amount of sucli che(|Uo or draft, anil paid the ditlerence. On the tiii! lie ! admitted he had purchased it for the purpose of | using it as an i>S set to the claim on his note, I which he had made nou-negotiable, and he also admitted that if he could succeed in his set off] and another party could succeed in a similar ' transaction, the Union Bank would get their claim against the Bank of P. E. i., which had , become insolvent, paid in full, The judge on the j trial charged that if the draft was endorsed to the defendant to enalile him to use it as a set off I he coulil not do so, because he was a contrilnitory ' within the meaning of the 76th section of tluj Canada Winding-up Act, and that the Act wliich ' came into force on the P2th May, I88'2, was re- trospective as regards the endorsements made before it was ])assed, but within thirty days be- fore the commencement of the proceedings to wind up tlie affairs of the bank. 'I he jury, under the direction of the judge, found a general ver- dict for the plaintiff for the amount of the note and interest, which the Supreme IJourt refused to disturb. On appeal to tlie Supreme Court of Canada : — Held, reversing the judgment of the court below, that appellant having purchased the draft in ip'estion loi' value and in good faith prior to '2ijth May, 1SS2, the Canada Winding- up Act, 45 Viot. c. "JI?, was not applicable, and therefore the apiiellant was entitled to the bene- fit of his set nil, and that the Winding-up Act was not retros[)ective as to this endorsement. Iti^s V. Bank of i'riiKV Eibvurd Island, II S. C. K." 265. It appeared that during S. P.'s ownership, the government constructed a breakwater at the mouth cf the river, and that S. P. had been awarded damages '• on account of the penning or damming uj) of the waters by the construc- tion of the breakwater, and forcing them back on S. P.'s pro])erty," and on another account not material to tiiis action : — Held, that as the sum awarded was a lump sum for both accounts together, and as the evidence on the arbitration shewed that the breakwater only affected S. P. tvi Llie extent of three feet of water, leaving him a fall of five feet, tiie value of ■. '■:\\ could only be ascertained by a reference ■ > i as the8uV)jects of the arbitration and the action on the covenant were not the same, the company were rot entit- led to set off Ihe money ri" ivcred from the gov- ernment against their liability for damages for their breach of ■ ontraet. I'latl v. I'lic (iraud Trunk li. \V. Co., 12 0. l{. 119.— I'roudfoot. Held, that a married woman, though married before May 4th, 18o!>, was not bound iiy a cove- nant iif her husband, entered into by him for himself, his heirs and assigns as a lessor of eor- taiii lands, to ])ay at the expiration of the lea.se for a certain malthouse whicii the lessee was to have liberty to erect on the demised jiremises, tliiniiili the rt' version iiad been .'issigi.cd to her liusliaud and aniither as trustees for her, in such a way that siie had tlie entile beiielieial interest, auil though the covenant ran with the land :— Held, also, that a claim on behalf of the said trustees for rent in arrear and for damages for non-repair was not matter of set-off against damages recovered against the hiisbandfor breacli of his covenant to purchase the malthouse, though he was one of the trustees, they not being mat- ters arising in the same right. A mbrose v. Frtutr el al., 12 O. R. 459.— Ferguson. S'ie Dawson v. Moffatt, 10 P, R. 366, p. 652. SETTLED ESTATES ACT. Upon a petition under the Settled Estates Act, Boyd, C, dispensed with the examination le quired by the Act of a married woman interested who livc>d out of the jurisdiction, but not of one who lived v.ithin the jurisdiction. The Marriid Woman's Property Act, 1884, (Ont.), does nut apply to cases under the Settled Estates Act, where the woman has acquired the property be- fore tlie passing of the former Act. He EiuilUh IIP. K., 196. •' ' SETTLEMENTS. -See HcsBAND and Wife. SETTLINC; MINUTES. See Judgment. SEWERS. See Municipal Corpokations — Water anpi Watercoukse«. SHAREHOLDERS. Sft Co HPO RATIONS. SHERIFF. I. Liability on Wkit.s of Execution. 1. To Attachment, 636. 2. On Ahaiidoninij Seizure, 637. II. Interpleadkr on Adverse CLAiMs-,^(fc Intekplkader. Ill Landlord's Claim for Rent, 637. IV. Fees and Charges. 1. Ponndaije, 637. 2. Olhfr Charges, 638. I. Liability on Writs of Execution. 1. To Attachment. Under an executidii in McLean i: Anthony trJ sheriff, on the Htth April, 1883, having seiznT the defendant's goods, sold them to one KcrfiJ son, there being at the time rent ov rdue tn t:.l landlord. Ferguson did not remove the ffm A Mil |"l'<)n a 636 637 SHIP. 638 behalf of the said ml for damages for of set-otf against e husband for breach le malthouse, though they not being mat- Ainbrote\. Tracer son. P. R. 366, p. 652. TES ACT. i Settled Estates Act, the examination re led woman interested iction, but not of one ictioii. The Marriid 884, (Ont.), does iMt Settled Estates Act, ired the property li- ner Act. Be EnijUxh, ENTS. ^NU Wife. MINUTES. MENT. iRS. Ikations— Water anpI LDERS. Irations. llFF. [rs OF Execution. 630. Seizure, 637. AUVERSK CLAIMS-i-(| [i FOR Rent, 637. iiom the premises. By agreement between the lamllord, the sheritF, and Ferguson, the latter lotainud sutfiuient of the piirch ise money to pay the claim for rent. Subsecjuently Ferguson sold the goods to one English, when it was arr.mged that. English should pay the old claim for rent, ami a further instalment which had meauwlule Allien due. The defendant then surrendered his term, and English l)ecame tenant. On the 23rd ,if .\pril, an execution in Slater v. Anthony was iilaced in the sheriff's hands, and he seized the kme goods some time between 21st May and •23ril June. English having claimed the goods, the sheriff interpleaded, and an issue was directed nliieh resulted in favour of Slater. Pending the interpleader issue the sheriff allowed the land- lord's bailiff, who also claimed the goods for ar- rears of taxes, to sell them and pay the rent and taxes in arrear. At the conclusion of the inter- pleader issue it appeiii-ed tliat the sheriff had taken no security for the goods, and that Hnglish, the claimant, was wortiiless :— Held, that there being no claim either for rent or taxes which the sheriff was justified in i.eknowledging, he ■.WIS liable to an attachment, on motion of the txeoution creditor, for disobedience of the inter- pleader onler. Miirli'dii V. Anthony. — Stater v. Anthony, 6 O. R. 330. -Rose. LiT.s OF Execution. ^ichment. McLean r. Anthony thj II, 1883, having »eiz. I Held, also, that the plaintiff properly applied j to a Jud','e in Chambers to review the taxation I pursuant to R. S. (J. c. 66, s. .52, as Rule 447 ap- ' plied only to th« Toronto taxing officers appoint- ed under Rule :. j, O. J. Act. Ih. SHIP j|>"Uiiil:igi' upon eacli of several writs though all IWf ismiod by the .same solicitor and were placed |iii his li:inds at the s.imc time. Grant v. Grant, m'l Jire othrr ia>,eii), 10 P. R. 40. —Wilson. I. Api'lication OF I.mperial Statutes, 638. II. Liability of Owners. 1. For Gooda Supplied to Vessel, 638. 2. For Fire from Steamboats, 639. 3. For Salvage — See p. 642. III. Contracts to Carry, 639. IV. Master, 641. V. Towage, 641. VI. Salvage, 642, VII. Ferrv— Sec Ferry. VIII. Marine Insurance— .Sfe 1n.surancb. I. Avi'lication of Imperial Statute.?. Held, in this case that the provisions of the Imperial "Merchants' Shipping Act" did not prevent the property in the ship passing to the assignee under the " In.solvent Act, 187(>. '' Jones et al. v. Kinney e.t al., 11 .S. C. R. 708. See Snoell v. liritiah Coliiinota Towing and Transportation Co., 9 S. C. R. 527, p. 642. II. Liability OF Owners. 1. For Good.^ Supplied to Vernel. Where one brought action .against the regis- tereil owners of a curtain vi;ssel for the value of goods sup|)lied before they became such owners, not on the or ler of tlie defendants but on the A sheriff upon .arresting .i judgment debtor order of one (J. C-., b.'tween whom ami the de- "poii a ca. sa. thereby becomes at once untitled . fondants no relation of agency was proved: — 639 SHIP. 640 "Bib; Ma, i Hcl(l,thattIiepl.iintitt'coul(l not recover:— Held, also, that it was open to the defendants to shew- that tlieir real intei-i\st was that of mortgagees. thouj.'Ii ostensibly i-e^'istered owners. ScUo)l. v. U;;//r '/ (if., 8 O.' R. 8--'.— Hoyi'- The fact that the vessel got the'benetit of the sii])plies and necessaries di(l not make the regis- tered owner liable. //'. 2. For Fire from Stcnmhoaif. Helil, (affirming the iudgment of I'roudfoot, .).) that the evider.oe which a). pears in the re- pf)rt of this case, was snflicient to jo to a jury to establish negligence in tlie management of the defendant's steand)oat. JliHidrd v. Thurslon, 9 A. R. r>\\. Per Rui'ton and Patterson, .TT. A., the owner of a steamboat navigating the inland waters of Ontario without legislative authority, is liable for loss occasioned to ))roperty by tire communi- cated thereto by the steamer without any proof of actual negli^'cnce. lb. Per Burton, J. A., the fact that a steamboat has been granted a licence by the Inspector under the authority of the Act for the lns])ection of Steamboats, .SI Vict., c. (i;") (J)om.), does not re- move, neither was it intended to remove, the common law liability r)f the owner of such steam- boat to a person whose property is injured. Ih. III. C0NTR.\CIS TO CaKKV. Ry a charter party of lltli l)ecend)cr, 1878, it was agreed that plaintilTs vessel then on her way to .shclburne N. S., shf)ul(l jiroceed with all pos- sible despatch, after her arrival at Shelburne, to St. .lohn, and Jiere load fmni the charterers a cargo of deals for Liverjiool ; and if the vessel did not arrive at Shelburne on or before 1st of .lanuary, 1879, the iharterers were to be at liberty to cancel the charter party. The vessel arrived at Shelburne in December, and sailed at once for St. .John. At the entrance (jf the harbour of St. .lohn she got upon the ro ..s and was so badly damaged that it became necessary to put her on the blocks for repairs. Althoughshewas repaired with all possible despatch, she was not ready to receive her cargo until '21st of April following, ]>rior to which time- on 26th March— the char- ' terers gave the owners notice that they would not furnish a cargo for her. The owners sued for breach of the charter party, and on the trial defendants gave evidence, subject to objection, that freights between St. John and Liverpool were usually nuichhigher in winter than in sum- ! mer ; that lumber would depreciate in value by being wintered over at St. John, and also as to the relative value of hunber during the winter and in the spring in the Liverpool market ; and it was contende(l that the time occupied in re- 1 liairing the damage was unreasonable and had i entirely frustrated the objects of the voyage, [ The judge directed the jury that if the time I iHi'upicd in getting the vessel off the rocks and '■ ii']i;iiring her was so long as to ]iut an end, in a commercial sense, to tb^' ccjmmercial sjieculation entered into by fhe shipowners and charterers, they should find for the defeudanta. 'J'he ver- dict being for the defendants, the court below made absolute a rule for a new trial. On appeal to the Supreme Court of Canada, it was :— HeM aflirniing the judgment of the court below, tlint as there was no condition precedent in the cjiar ter that the shij) shoidd be at St, John at mhv fixed date, and as the time taken in repairing tin- damage was not unreasonable, and the delay iliii not entirely frustrate the object of the voyage, the charterers were not justified in refusiiiijto carry out the contract. t'crriU v. Scho/ii/il, (t S. C. R. 370. On the SrdOctoberthe plaintift'chartered "Tlii Erie B "e," a vessel owned by the defendant", to car' salt from Ooderich to Milwaukee at 7.' cents a ton. On the ! 1th October the defendiuu- telegra))hed informing the plaintiff" that this ve- sel could not go, and requesting him to acooj.r the services of another. Thereupon sr)me eui respouilence ensued between tiie parties, th. jdaintifl' insisting upon the defendants pertoin, ing their contract, and they finally agreeing te do so. During all this time the plaintiff coiilil have had the salt conveyed by other vessels ;.t 81.00 per ton, but did not, preferring to wait f.ii the defendant's vessel which was loaded on tiit 25th Novend)er. Owing however to the appn- hensions of the captain as to the weather, wlijrli ileterred him from going out, the vessel was fm/e! u)) ill (iodcrich harbour, and it was then iiii|i(i> sible to for\\ard the salt otlierwise than by lui!: and for the puriiose of endeavouring to carry 011; a sale which the plaintitf had made, he did seiiii several tons l)y rail, and paid his consignee tiii difference in jtrice for salt which lie had to liuy in Milwaukee and that agreed to be paid to tlv jdaintifl'. The difference in expense in semlii;. by rail and that agreed to be paid to the di fendants, amounted to .'?.S.25 per ton : — Htl.;, affirming the judgment of the court below. 40 Q. R. 2.S."), that the plaintiff was not bound at the i)eril of losing all claim against the defeiii ants for any adilitional loss, to ha.'e charteitii another vessel at .SI. 00 per ton, on receipt of tliv telegram of the 11th October; and that, uiidii the circumstances, the plaintiflf was entitled t- recover the difference jiaid to his consignee n^ also the excess of freight. Cameron, .1., di.- senting. who thought that the sum of 2") otiit; per bushel, allowed liy the arbitrator, the advaiia | in freight for w hich the salt could have been cii lied, was all that the i)laintiff was entitled :> recover. MrEiniii v. MrLtoil, 9 A. K. 239. Tin? plaintiffs alleged and proved an agreeiiui;: with the defendants that the defendants' vessi] should proceed to B. and carry thence to C. 1 cargo of lumber; that the vessel did not got' B. as agreed ; and that in consequence the jilainl tiff's had to procure another vessel and ]wy larger j)rice tlian that agreed upon with tiie iK fendants. The defendants alleged that the nil son they did not go for the lumber was, becauifl the plaintiff's did not give them or send to tltl master of the vessel the necessary orders. ifcT judge who tried the action in the C'ounty Counl of Lambton, found tiiis allegation untrue, :■..:;[ gave judgment for the ))laintill's ; — Held, tli.'.:! this court ciiuld not reverse the finding in tl;!| court below 1 |ion this (|Ucstiiin. as the view till' f;\('ts ]irc.«intt'd by till' np|)el!aiits, (K'rivi'dil siipimrt finm tlic dociiniriits ill evidence, ;iiidt :-| court did not see its way to taking a ditliru'J 640 641 SNOW. 642 , the court btlnw •trial. On ai)i"n! la, it was :— Jkl^l court below, tlnit •edcnt in the n expense in seiidiii. o be paid to the di 1.25 per ton :— Hei.i. j)f the court beliw. titiffwasnot bounda; ]i against the defun; |ss, to ha.'c chartdii ton, on receii^t oftlk Iber ; and that, umki .intiff wasentitlcdt. il to his consigniL';i> Cameron, -b, di^ „ the sum of '2o cmt- irbitrator, the advaikv ,t could have been rai intiff was entitled t i,o,l, 9 A. K. •2:W. Il proved an agrcemcii: \\\e defendants' vessc. carry thence to t'- ' i vessel did not gut- Consequence the plain- Iher vessel and puy ' Tied upon with the dv alleged that the na . lund)er was, becaui' tiiem or send to tb J-eessary orders. H' I in the County VuyW. lUeuation untrue, :'".; llaintitls :-Held, tlu: }se the tindnig ui t..^ (estinn, as the view' lai'pellants, dcrivt'li' Its in evidence, aiidt ■ to taking a dithi^: view of the evidence from that taken by the judge at the trial : — Held, also, that it was anf- ticiently proved that tiie plaintiffs were ready iiiul willing to ship the linnher : but, perliurton, ,1, A., (dissenting). The plaintitrs shoulil have ;iverred, and the onus was upon them to shew, iiiul they did not shew their readiness and wil- lingness to ship the hunber on the defendants' vessel. The case, however, was disposet' such a vessel was inci- R'lital to their business, tlu'y had a )ierleet right Itulut the tug to hire for such purposes as it was ■'sfl for in the present case. 4. That as the VI. Saia-aoe. A vessel being stranded on the northern shore of Lake Erie, the master telegraphed to the manager of a wrecking company .at Detroit, for tugs and wrecking apparatus, to which the man- agt^r answered agreeing to furnish same. They were accordingly sent and the vessel rescued and saved. The plaintitl's claimed to recover an amount exceeding the value of the vessel, made up of i)er diem charges for the tugs and ap])ara- tiis : — Held, that in actions in the High C'ourt, salvors, in the absence of a spccitic or express agreement to the contrary, nuist be taken to render their services under and subject to the rule of the Admiralty Court, limiting the maxi- nmm amount of salvage to a moiety of the value of the saved vessel, and cargo, if any, which rule is ecpially iipplicaljle to wrecking companies as to ordinary vessel owr.ers : that the agreement mu.st define a specific amount as to the salvage to be paid or a rule whereby it may be deter- nnned ; and that there was no agreement here, but merely a request to perform the services : — Seinbh;, that the master of a vessel cannot by express agreement bind the owners to pay sal- vage bej'ond the value of the vessel. Tlte Inter- natiomd Wreckiin/ mid Tninsporlation Companij V. Lobb et at, 110. R. 408-C. P. D. SHors. See Intoxicating Liquors. SHORT FORMS. See Deed. SIDEWALKS. See Way. SLANDER. See Defamatiok. SNOW. Action for damages sustained by plaintiflT by reason of ice and snow falling from roof of de- fendant's house. See Landremlk v. Ooiiin, G O. R. 455, p. 409. Li.abilityof Municipal Corporation for negli- gence in allowing accumulation of snow on the sidewalk. See lUnikliij v. The Corporation of Prescott, 12 A. R. 637, p. 720. 643 SOLICITOR. 644 SOCIETY. See Corporations. i 1^ SOCIETY OF FRIENDS. See Borland v. Jones, 12 A. R. 543, p. 80. III. IV. SOLICITOR. I. AoEN'T OF Solicitor, 643. II. I'KocEEniXGS Against and Liability of. 1. For Negligence, 644. 2. To Summary Jurisdiction. (a) To Enforce Undertaking, 644. (b) Contempt of Court, 644. (c) Striking off the Rolls, 644. Authority. 1. In reference to Actions, 645. 2. To Receive Money, 646. Dealings with Client, 646. V. Retainer, 647. VI. Taking Security for Costs, 647. VII. Costs. 1 . Moderation of Costs, 647. 2. Reference to Taxation or Revision. (a) Delivery and Order for Taxation, 648. (b) What may he Referred, 648. (c) Special Circumstances, 649. Liability to Refund, 650. Other Cases, 650. Lien for Costs, 65L Miscellaneous Cases, 652. 3. 4. VIII IX I. Agent of.Solicitob. In a certain suit D. acted generally as eolicitor for H. who luid been appointed administrator pendente lite. In certain matters, however, in connection with the proceedings, D. advised H. to retain another solicitor, deeming it improper to act himself for H. in respect to these matters, as he was also acting for another party. The solicitor thus retained by H. agreed with D. to do the work which lie was retained to do for agency charges of winch he rendered D. .in ac- count. U. made up one bill of costs f.-id ren- dered it to H. whicli included at full rates the services which the other solicitor liad performed at agency rates. H. paid the bill with these cliargcs to 1). : — Held, tliat the master on taking H.'s accounts with rt's])ectto tlie estate of whicli lie had been appointed administrator, sliould have ;ill(iwed the l)ill as properly paid so far as coiR'oriiiMl the said chargcH, for tliere was noth- ing ini])fopur in tlie transaction, litatty v. Hal- d'lii, l(K». II. "JTH. — Fersruson. II. Proceedings Against and Liability of. 1. For Negligence, A solicitor entrusted with moneys to invest, did so on property of insufficient value, and his client, shortly after the loan, desired him to realize the amount advanced, which the solicitor endeavoured to do by getting the owner to elfe(;t another loan from a Building Society. He de- sired his client to release his mortgage for that purpose, undertaking to obtain security on chattel property for any deficiency before acting on the release. The society refused to advance more than .?800, which it was stipulated should be paid to the client, thus leaving a balance due him of about §150. The solicitor procured from the mortgagor a chattel mortgage on cattle, &c. , variously valued at from $100 to $130 : such security being made out in the name of the client, and only retjuiring his affidavit of bonn fides to have it registered. This the client re- fused to accept, and instituted proceedings against his solicitor for the surplus of his claim ; and the Judge of the C'ounty Court gave a ver- dict and judgment for §177 against the latter. On appeal, this Court, (Burton, J.A., dissenting) being of opinion that the plaintiff had of his owe wrong lost the benefit of the chattel mortgage, reduced the judgment by $1 17, thus limiting the verdict to $60, with Division Court costs, hut refused to either party costs of the appeal. O'Caltcghanv. Btrgin, 11 A. R. 594. See Taylor V. Magrath, 10 0. R. 669, p. 690. 2. To Summary Jurisdiction, (a) To Enforce Undertaking. The Court will not summarily compel a solici tor to perform an agreement or undertaking, merely because he is a solicitor ; if it was not given by him in his professional connection witii the suit or matter, the party to whom it is given will be left to his action. Wilson v. Realty — Re Donovan and Morphy, 12 A. R. 252, Where M., a solicitor, unsuccessfully prose- cuted a petition against the applicant at his own expense, in the name of one H., agreeing to in- demnify H. against costs, M.'s interest beiiit' merely as surety on a bond for H. , ?■ summary application to make M. pay the coats of the petition was refused. lb. (b) Contempt of Court. Contempt of Court by publication of letter in the public newspapers commenting on a case pending appeal from the Master. See Reifavi exrel. Fetitzv. Ilowlund— Re O'Brien, 11 0. R. 633, p. 88. Affirmed 14 A. R. 184. .Service of papers on Toronto Agent. Prillie v. Snidrr. 11 l\ R. 313. See .Vr Ryan, 11 P. R. 127, p. {Jii2. Se (c) .Striking off the Rolls. It was charged against T., a .solicitor, that im \V. being about to he tried for a criminal otlcniv. was induced by T., as her solicitor, to piiy lii^; §'200 for the purpo.se of inlliiencing the jur. Tlie court, upon the facts stited ill the rcpm: being satisfied that the ehirge was [iroveil, ^!- onler w,is made striking him c)ir the rolls. Tli' petitioner having made a prima facie case, au i I 644 645 SOLICITOR. 646 D Liability of. noneya to invest, nt value, and his , desired him to .rhich the solicit(jr he owner to etfect Society. He de- mortgage for tl'.at itain security on jncy before acting efused to advance stipulated should ving a balance due itor procured from ;ageon cattle, &c., ioO to $130: such the name of the 18 affidivit of bonii Miis the client re- tuted proceedings irplus oi his claim ; r Court gave a ver- against the latter, m, J. A., dissenting) atififhad of his own chattel mortgage, 7, thus limiting the m Court costs, but sts of the appeftl. . R. 594. I 0. R. 669, p. 690. irisdiction. dertakiiKj. vrily compel a solici snt or undertaking, citor ; if it was not )nal connection with ty to whom it is action. Wilson v, ,rphy, 12 A. R. 252. nsuccessfully prose- applicant at his own I H., agreeing to in M.'s interest beinj.' for H., 3 summary vy the costs of the f Court, blication of letter in imenting on a case Vlaster. See Re'j'm" f O'Brien, 11 0. H- R. 184. he Rolls. , a solicitor, that on- or a criminal oll'i-'ii^'' lolicitor, to pii.y lii"' illuoucing the jur. ^stilted in the Vi'[vi<'- lii'gc was piovcil, 1" lu oil' the rolls. 'H"; ii'imi facie case, uni | heing unable trom want of means to proceed | with the application, a solicitor was appointed i by the court to take the matter up. 7?c Titun, a Solicitor, 5 O. R. 87.— Boyd. ' See Wilson v, Beattij — In re Donocan, 9 A. R. ' 149, p. 650. III. Authority. 1. In Reference to Actions. Per Wilson, C. J. C. P. — If parties to an action authorize their solicitors to enter into negotia- ' tions for a settle' ent, and while the negotiations ■ are proceec' "ng, one party unknown to his own ' or to the op^)osite solicitors, writes to the other party personally withdrawing from the negotia- ; tions, and the respective solicitors, not knowing i what has taken place between tlieir clients nman- while, conclude the terms of a settlement, such ■ s' Itlement will not be binding on tlie party who '. hud thus withdrawn from tlie negotiations, Ije- cause the other party had direct notice of his ; witlidrawal. Vardonv. Vardon, 6 0. R. 719. — Chy. D. Semble, that if the principals had, between themselves, entered into an agreement, and the solicitors in ignorance of what the clients were (Iding, had previously concluded a different agree- ment, the agreement made by tlie solicitors would bind because prior in time. Jh. On the same reasoning where the two princi- jials negotiate, and either perfect a contract or [lut an end to proposals for one before the dele- gated power to their agents has been fully exer- cised, the acts of the principals are the binding acts, and the subsequent acts of tlie agents are of no avail as against their principals. In this case, upon the letters and evidence set out in the report, it was — Held, that the defendant had not withdrawn his prior proposals and abandoned the negotiations before a final arrangenient had been come to by the respective solicitors, lb. A settlement of an alimony action after judg- ment for permanent filimony, upon which writs of execution were in the sheriff's hands, was etfected between the parties without the inter- vention of the solicitors on the record. To carry out the settlement a third solicitor was instructed to withdraw the writs from the sheriff's hands, which he did without paying the costs of the plaintiff's solicitor, which he knew were unpaid. i'here was no collusion or actual fi'aud against the plaintiff's solicitor proved :— Held, that the plaintiff's solicitor had control of the writs in the 8lierift"'s hands to the extent of his unpaid taxalile costs, and that he was entitled to have the writs replaced, or new writs placed in the sheriff's hands at the expense ot the solicitor U ho withdrew them and the plaintiff", or to an I iirder directly against the defendant for payment of his unpaid taxable costs, and for the co.sts of the motion against the iilaintill' ami tiio solicitor who withdrew the writs ; but that ho was not jtntitlod to an order for payment of his unpaid Costs by the solicitor or the .slicritl'. Frirdi ich lv. /'iWnV//, lu 1*. R. ;{08.— Fergu.son. Aliirmcd in (Jhy. I>. with this variation, that he solicitor who withdrew the wiits was relieved I iiom the payment of costs. Il>. u4l>. A Montreal firm of solicitors brought an action for one C. against H., the now plaintiff, which was settled for S3, 700, of which H. paid S3, 000, and gave the solicitors a note for S<>,5(K) made iind endor.sed respectively by the defendants (JriHith and (Jiinson, and held by H. as endorsee, out of which they were to take the .S700 and their costs. They sent a clerk to Toronto, where defendants lived, to elfect a settlement, but being unable to do so, he left the note for collection with M. & Co. , a Toronto tirni of solicitors. After legal proceedings had been instituted, plaintiff' paid C the §700. A settlement was discussed between the solicitors, which M. it Co. agreed to, provided their costs and the charges for the clerk's expenses to Toronto were pai,000 clear of everything, to the plaintitr. Uii the 4tli December defend- ants' solicitors were informed by M. it Co. of other parties, liesides the plaintiff, being inter- ested in the note. On 6th December the parties met and efl'ected a settlement, by plaintiff accept- ing So, 000 in full of all (daims under the action. The note which was held by M. & Co. was never delivered up to the defendants : — Held, that the action was not the plaintiff's, but that of C, or for his benefit, and that M. it (,'o. I'ould proceed therewith, as C.'s solicitors, to enforce payment of their costs, and the Montreal solicitors charges : that the settlement of a claim under a negotiable security without the secui'ity being delivered up, sulijected the defendants to such charges as were a specific lien thereon, of which they had notice ; or; — .Semble, even without notice: that the effect of the agreement of the '2nd December was that the defendants shouM pay M. & Co. "s costs, and defendants afterwanls on th'j aettleiu'^nt made not providing then for, and leaving the note outstanding, was some evidence of collusion to deprive M. it Co. of their costs, and that the notice given not to settle without providing for 1 M. & Co.'s costs, etc., gave M. & Co. an equitable claim to the interposition of the court. Hall v. Griffith el al., 5 0. R. 478.— C. P. D. 2. To Receive Money. Authority to receive mortgage money. See Gillen V. The Roman ('iilhalic EiiiKCOjial Corpo- ration of the Diocese of Kin■— Ca^.ln,i:i fV/.vc, 10 P. 1!. 33'J. — Hodgins, Ma4:i- lit Ordinary. 648 649 SOLICITOR. eso r Revision. ■ Taxation. for ail order for solicitor's liill "f ings uiiiler iimrt y pnictioe of oli is the more i.oii il in all divisinus Order made with Jii' Fit7.i('.i Cane, 10 I'. II, ;i39. — Hodgins, Master in Ordinary. After payment of a bill of costs, the court will not disturb it on the ground of overcharge unless It appears to lie a case of g"oss and exorbitant uvercharge aniouiiting to fraud. lint liefore payment it is enough if tiie items are unusual or more than ordinarily large so as to re(|uire justi- tieation, and if no explanation is furnished by the solicitor, upon whom the onus to do so rests, tlieii taxation will be ordered. /iV W'ldhr — Walker v. liuchtalcr, 10 1'. R. 400.— Boyd. The following ciroumstaneea were held not to he special circumstancfis which would entitle the iheiit to tax his solicitor's bills after a year from tiieir delivery, because these circumstances could he as well considered at the trial of the actidU as on a reference to a taxing otHcer. (1) That tile hills sued on contained certain items iiiclud- eil in other bills paid by the client ; ("2) That some work was charged for which never was iloiie ; (3) Tli.at a payment of .S'200 on account hy the client was disputed. Ih. Held, that the eoiijunctioii of the f(dlowing ciroumstaiices, viz., (1) That the relationship of Hoiicitor and client was continued after delivery III the bills ; ('2) That there was an offer by the solicitor to make a substantial deduction from tiie bills sued on, and (3) That thcri; were items iif apparent overcharge as to which no explaiia- ti(jii was oll'cred hy the solicitor, would justify an cider for taxation. lb. riie bill of costs in (piestitm was for ])rofes- -ioiial services rendered the defendant in an in- vestigation of his conduct as a public oliicial hjfoi'e a e, I!, I». .STT, distin- guisheil. .S'(7( (((;/;/ V. .S'.7(/vi;/'/. 1 1 1', It, '2I,S, -Boyd. 3. Liahilitii to J'i'Juiid. In an action instituted by the widow of T. W. to .set aside a will alleged to have been executed liy him under undue iuHueiice, I), acted as her solicitor and obtained a^lecree as prayt^l. I)ur- ing the pendency of such action one II. was ap- pointed by the court .idniinistrator with the view of getting in certain delits due tiu' estate before being barred by la])se ol|t nie, ^lunierous actions were brought by I), in tiie name of H., in some of which moneys aggregating a large sum were recovered, whilst in many no benelit whatever resulted to tiie estate, and costs aniouutiiig in the whole to .■:<2.73S,37 were incurred, nhicii had been taxed as between solicitor and client, nn H. jiassiiig his accounts before the master, and Were paid to I), partly by If. out of moneys of the estate, and partly by funds coming into l>, 'a hands as such solicitor and retained Ijy him. .Subse(|ueiitly a prior will of T. W. was duly liroved liy the executors named therein, who took proceedings to t)btain an account of H.'s administration and a tax.itioii of l).'s costs. These proceedings finally resulted iu a dismissal thereof as against I)., and an order on H. to pass his accounts, which Ik; did, ciiarging the estate with the amount of costs so paid to !>., but on .'s bills the agi-'reoiite amount was le lulls liavmg allcL'ed ''round lieen disallowed in toto, on the allegei that the actions had been iirougiit witiiout tlio leave of the court, and H. was ordered to pay in the diU'ereuce. H. was unable to do so, anil thereupon he, as also tiie executors, by their several petitions applied for and obtained iia order u|)oii D. to repay the amount \\ ith costs, or in default be struck oft' the roll of solicitors, (20 Cliy. 2S0. ) On appeal tlie order was reversed (Spragge, C J. 0., dissenting), the court being of opinion that the taxation and all the other jiro- cecdings in reference thereto having been had in a proceeding to which D. was not a jiarty, he could not be bound thereby. Per S[iragge, C, J. O, Under the cireumstances apjieariiig in the matter an order to strike D. oil' the ndls in case of non-payment was not called for. iri/,s'0« v, Bfattij—ln rt Donomn, A. I!. 149. 4. (t/lfr Casf-^. On the reference iu this case H. sought to use a certuiu bill of costs ua a, voucher of moaeya ^ 651 SOLICITOR. 652 properly expRndetl by him in legal proceedings, and it was shewn that the said hill hail been prf)l)erly l>r(mj,'ht inti/ tiie iniinter's oHiee on a fdniier reference and properly left tliere, and tliat Nuarcli liad been niaile for it, but witiiont Kiii'i;ess, althoiigli tlit're was no evidence that it had l)et;n removed, or that it had been noticed or seen elsewhere afterwards, nor of any occa- sion when it wonld ](robui)ly have been removed from tile oflice : — Held, that the master siionld have admitted set^ondary evidence of its contents, and pi'occedingsshould have l)een taken in respect to it as nearly as might l)e the same as if H. had been aide to ])rodiice it. Beullij v. Ihtldaii, 10 (). It. "JTS. — Ferguson. The taxing othcer's allocatur is sullicicnt proof that the business charged for was done by the .'^olicitl)r. Clarhe v. Tho Uti'mn Flrr Inn. Co. — ('tiitou\i ('us,; 10 1'. K. 339.— Ilodgiiis, Muster ill ()r'' treated as judgments in separate actions, and. therefore, that in setting off the judgments tlii claim for costs of the defendants' solicitors ujini the judgment against the plaintiffs should 1» protected. Canadian Pacific R. II'. Co. v. Gram. 11 P. H. 208— C. P. D. An assignment w a j made by the mortgagor to ,i creditorof a portion of a fund in court, as to whidi litigation was pending between mortgagor nw mortgagee as to their respective shares : — Helii, that to the extent to which the solicitors of tin mortgagor incurred costs in resisting and pic vailing against the accounts brought in on be half of tiij mortgagee to that extent their liei should ))riicede the assignment. Yevieii v. Juki stoH, 11 P. R. 231.— Boyd. See Ha!, v. Griffith, 5 O. R, 478, p. 646. IX. MlSCELLAXEOCS CaSES. Held, that it is the duty of a notary, wlier executing a deed, to explain to an illitcrati grantor the legal and equitable obligations im 652 <)j3 SPECIFIC PERFORMANCE. mi was allowecl to bo ; the aug^'cstioii nf JcArthur, 4 Chv ff'att, 10 1'. U. -Miu ivered in the saim- ) claim with 1,'tMi B (lefenduiit on hi- lof, such cliiini uini the same auhjri'; iiittT-cliiim lai'L'il'i milt, a set-ntf was iiu'y ri'covercil liv iititV on (Icfemlaiit - tlie costs ailjuil_'.il ivery of judgnniit istimding the ihiin a lieu on the ost- liiaTC, when a juik- en framed witlmu' Judge in (.'haiiitici- prejudice of tiic' sn 'cree of the Cniirt II.— Dalton, J/">'' leased solicitor wiT' sum of money iii atter, to which tli' costs, to the extent of charges \v tlii- lat their bill shorn : •iority to the claiiiiH lolicitor. Be /I'v"' ,'ht for the carriag' 8 pleaded a counter the carriage of tii he trial was as tol for the plaintilfs fo ts upon their ciiimt- party will be rntit as if the statenieii: ere separate actioib. be entered acconi the decision of tli' le judgments reeov lefendants must 1>" arate actions, ami the judgments tlii ants' solicitors npni daintitfs shoulil 1» R. ]V. Co. V. Gram. y the mortgagor to :. in court, as to whicli een mortgagor aiiii tive shares : — Held the solicitors of tin resisting and pn brought in on be at extent their lier. nt. Yemen v. Jvhh R. 478, p. 646. irs Cases. f of a notary, wlier ain to an illitcrati able obligations iui posed I)y the deed and consequent on its execu- tion. ( Henry, -T. , dissenting. ) A yotte v. lioucher, 9 S. C. R. 4(}0. Deposit of client's money by solicitor to his own credit. Liability of bank. See liaUfij v. Jrlhtt H ((/., 9 A. R. i.S7. Tile general manager of a conipanj' had au- thority to do acts which occasionally reipiired lej,'al advice : — Held, tiiat he had implied autiio- rity to retain a solicitor whenever, in his judg- ment, it was prudent to do so, but that such authoi'ity ceased on the suspension of the coni- panj'. CUirh' V. I'nion Fir/t Jii.t. Co. — C'd.^lon's t'K.sc, 10 I'. R. .S3!). — Hodgins, Mtmter in Ordlmu-ij. Wiiere the directors of a company have power to appoint ollicers anil agents and dismi.ss them at jileasiire : —Held, that tiieir appointment of a solicitor need not be under the corporate seal. Ih. It is preferable to have the iiroceedings under an order for winding up a company under 45 Vict. c. '23, (l)oin.,) conducted by solicitors who are totally unconnected with the company to be wound \\\i. Hi' Josfph Hall Manufacturimi Co., 10 I'. R. 48r).— Hoyd. Whore the jilaintiflf's solicitor made default in payment into cou. o of the ten jier cent, paid to him at the time of .sale, under tiie conditions of sale; — Held, that the other parties entitled to the purchase money should not suffer thereby, but tii.at the plainti6f's share should be charged with the deficiency. Midkinsv. Clarke, II P. R. 350.— Proudfoot. I. r.KNERAI.I.V. The court must see its way very clearly before it will decree specific performance of a contract, and it must lie satisfied as to the integrity and good faith of the parties seeking its special in- j terference. Where incapacity and inadeipiacy go hand in hand, tlie court may refuse to enforce I a contract, although the purchaser was guilty j of no greater fault than making a hard and un- i conscientious i)argain. (.lowjh v. liiiuh, G O. R. 1691>.-Chy. D. Per Strong, J. — According to the principles upon which a court of ccpiity acts in carrying i into execution by its decree such contracts and. ! agreements .is are properly the subject of its jurisdiction, the court will always execute the whole or such parts of the agreement as remain I executory, but if the parties have thought fit before the institution of the suit to carry out finy of the terms of the contract such executed por- ! tions will not be disturbeil. I'eck v. Powell, 1 1 S. C. R. 494. II. Contracts for thk Sali; f)F or Relatino TO Land. 1. Salen />!/ A(jen(.-i. Hen Ryan v. .S'l'm/. 7 O. H. '2()(), p. ()3o ,• Walms leij V. Griffith el aL, 10 A. R. 327, p. ().")() .• Mc Carlhii v. Cooper rt a!., 12 A. R. 2S4, [>. (JIO. SPECIAL CIRCUMSTANCES. See Solicitor. SPECIAL EXAMINER. The powers of the special examiner under G. 0. Chy. 147, as to directing the production of documents, extend to examinations, under Rule 285,0. J. Act. Orpen v. Kerr, II P. R. 128.— Boyd. SPECIFIC PERFORMANCE. I. Generally, 654. II. Contracts for the Sale of, or Rela- ting TO TiAVD. 1. Sales by Agents, 654. 2. Defects in Subject Matter of Contract, 654. 3. When Contract is Conditional, 654. 4. Absence of Common Intention, 655. 5. Fraud or Misrepresentation, 655. 6. Inadequate Cotusideration, 656. 7. Delay in Carrying out Contract, 656. 8. Other Cases, 657. 9. Practice, 658 . III. Other Aoreement.s, 658. IV. Costs, 659. 2. Defects in Subject Matter of Contract. M. having purchased lot 14 for a building lot resisted completion of the contract on the grouinl that a party wall of the width of nine inches had been built on the line between lots 14 and 15, which at some places came over on to lot 14 to the extent of six inches, and at another place to the extent of nine inches, and that he could not get rid of the w all without engaging in a lawsuit with the owner of lot 15, and that the party wall was not suitable to the class of buildings which he desired to put up, and was worse than useless to him. The evidence shewed the wall did not depreciate the value of the land : — -Held, that this being so, and under all the circumstances of this case, specific performance must be decreed, though the matter complained of might have been pro- per for compensation, had such been sought under the condition of sale relating thereto. Imperial Hank of Canada v. Metcalfe, II O. R. 467. — Fer- guson. 3. When Contract is Conditional, C. R. S. , being the owner of certain leasehold property, wrote E. E. K., a land agent, a letter in these words: "Please call on J. J. R. He keeps a small shop * *. He resides in my house on P. street, and has been wanting to pur- chase it for some time. Tell him if he gives me $235 cash at once I will send the papers to you for him, and he can pay over the money to you. Please write me by return mail." ( )n the follow- ing day E. E. K. wrote J. J. R. as follows : ♦' Mr. S. of Meaford wishes me to say that if you desire to purchase some property he owns on P. street, that if you give him 8235 cash he will send the deeds to me and deliver them to you. Your early reply will very much oblige." About «50 SPECIFIC PERFORMANCE. 65G Si a month after an acceptance was endorsed on the ' latter letter in these words: "1 here))y accept the alxivi' on the iiiiderstaiiding that 1 pay no i fxpeiiMc.i, " and it was signed by J. il. K. Upon an action l)ein;,' lirouglit for sjjecific performance liy J. .1. It. ayaiii.st ('. 1*. .S, it waa :— Hehl, tliat the letter from C. R. .S. did not contain authority to Iv K. K. to enter into a contract for the sale <;f the projierty : — Held, also, that even if there had licen no (jiuistion as to the authority of 10. K. K. , tlu.' insertion of the words " on the under- standin;,' that I pay no exi)eiiseH," in the accept- ance prevented it from hcing considered an ac- ! cei)tance of the oiler waid to lie contained in the [ . letter of 10. E. K. iii/an v. .V/h;/, 7 O. II. '26(5. — I'erguson. ! On the 26th January, 18S'2, Mel. wrote to H- as follows : " A. .McI. agrees to take .$35,000 for Ijrojjerty known as Mc^I. lilock. Terms — one- third cash, balance in one year at eight per cent, per annum. Open until Saturday, '28th, noon." < >n the same day H. acce)ited this ofl'er in the fcdlowing terms: "J beg to accept your oU'er made this morning. 1 will accept the property known as McM. block, being the property on M. street, for .S35,000, payable one-tiunl cash on completion of title, an, 000, and .same day he went to the deftii- dants (iritlith and otFered to purchase for ?|'i,. 500 in lieu of tlie .S'JO.OOO previ/ v. I{irliar(lso)i, 7 O. R. 182.— Boyd. AtUrmcd in appeal. ///. 185. 5. Fraud or Misrepresentation. The plaintiff negotiated with the defendants (irittith for the purchase of the lands in question, and at different times obtanied from them writ- ings giving him the option to purchase for .?20,- 000. Defendants (tritfith set up that these nego- tiations were had with uhe plaintiff, as their agent, with a view of effecting through him a sale to the Independent Order of Odd Fellows at the same or a higher price for the defendants Griffith. After these options had been given to the plaintifif, he on the forenoon of the 17th February, 1882, agreed to sell to the Odd Fellows 0. liKulequate Conmkration, Tlie phiiiitiff, an old woman of the age of S(j, sued for rescission of a contract for the sale of land, and the i — Held, nffirminj? tlic jit. It. Xi'2, that thin was not n caHo in which till' (h'ffnchint.H hIiouM he -. e. f)0 8. 35'J iw to make tlui Iniii. Ait .5 and (') Vict. c. 97 M. "2, ii.s to coHtM in ciisen of rej)levin (III a distress for rent in arrear a])|)lic'alile to our Iiriictioe. iViUitnni v. < rin", 10 A. it, .SOI. (leneral rcinark.H on forms prescribed In vari- ous cases by Acts of I'arliainent, Ui.mmiU v. Qndaml, 12 O. It. 139.— Boyd. II. Prospkctive ok Ketrospkitivi;. Held, that the " Marrietl Women's Property Act, 1884," 47 Vict. c. 19, (Ont.), is not retro- spective. Scott V. Il>: ct III., 11 P. l\. 9;}.— O'Connor. See McLacld'tu et nl. v. Unhorne et nl, — Maqee V. Usborne >t al., 7 O. I!. 'J97, p. 089 ; Ita/ina \: Lynrli, 12 O. K. .372. p. 74. III. Imperial Enactuents. Held, that 18 KHz., c. 5, which en.acts that an informer shall sue either in person or by at- tiiiney is in force in this province, and therefore the plaintifif, an infant suing by his next friend, could not maintain an action for a penalty under the Klection Act. Garntl v. Jiuhertu, 10 A. R. (i5(J. Merchant's Shipping Act. Sec Jones et al. v- Kiitney et al., 11 S. C. R. 708, p. 638 ; .Sewell v- Hritinh Colmahia Towiny and Transportation Co.t 9 S. C. R. r)27, p. 042. STATUTORY CONDITIONS. Sfe Insurance. STAYING PROCEEDINGS. See Practice. (ijave him (i power of attorney to endorse any clie(|ues i.ssiieil to liiiii iiy Hie I'oiirt and I'i'p.iy himself. Siil)se<|ui,'iitly H. M. ('. obtained aii<> tiler advaiiei! from W. H. and a.Msi^'iied all liis interest in tiie funds in <'oiirt to If, , wliieii assign ment was duly tiled in the aci'ouiitant'H ollii'e aiii! entered in the aecountaiit'.s books and aeted on for tliriM' yt'ars. W. H. luul no iiotieo of A. H.'-t I power of attorney. A. H. recovered a jiul^'meiit : against If. .M. ( '. for tlieamoiint due him in Deceih 1 lier, IHH3, and oiitaiiied a sloponler in October, ISHii. On a motion for payment out to .A. II , which was ie.sist<'d i>y \V. II., «iio elaimed all tile moneys under iiis .■i.ssignmeiit, it was ; - Held, tiiat the court is the eustoiiiau of tlie fund and not till.' aei'ountant, and that notice to the; ar eountant of an aHsigiimeiit of funds in I'ourt i< not tantaiiiount to notice of the assij,'iinient of .i trust fund to a private trustee, and tiiat a stop order is the proper way of [lerfecting such a seen rity. Per IJoyd, (!.— It was not necessary for A. H. to recover a judgment in order to entitle him to a stop order. Payments already niailu to W. 11. under the assigiiinent should not be inter- fered with, as the lodging of the assignmtnt with the accountant was siithcient under the practice to justify iiayments out in the absence of any claim by A. H. under the first assignment. Per Ferguson, J. — \. H. having the earlier as- signment was lirst in jtoint of time, and prima facie would be jircferred in law, and having oli tained a stop order, which lias been held to be the jn-oper way of giving notice to the court, he thereby perfected his assignment. Cottinqhoin \. Cottinyhnm, II O. R. 294 -Chy. U. Since the coming into force of the "Creditors' Relief Act of 1880,^' March 25tli, 1884, execution creditors who obtain stop orders on funds in Court do not obtain any priority thereby, but all must share ratably. As some of the provis- ions of the statute are to enable simple contract creditors to come in and obtain the position of execution creditors, they must have the same right with regard to funds in court as they wouhl have with regard to funds in the sheriff's hands, and in any case where an execution creditor ob- tains a stof) order there must be a reference to the master to ascertain if any other creditors desire to ask a share of the fund. Dawson v. Moffatt, 11 0. R. 484-Chy. D. STEAMBOAT. See Ship. STOCK. See Coraoeatioxs. Assessment of. See Ex parte James D. Letvin, 11 S. C. E. 484, p. 17. Locus of bank stock. See Hughes v. Rees, 5 I 0. R. 654 p. 350. STOP ORDER. H. M. C. being entitled to certain moneys in I court, OLijv'ned certain advances from A. H. and STOPPAGE IN TRANSITU. See Sale of (Jood.s. STREAMS. See Water and Water Cour,ses. STREET. See Way. Remarks on the serious consequences likely to arise from the constant changes in the names of streets in the city of Toronto. VanKoughnet v. Denison, 11 A. R. 699. Si .^ 663 SUPREME COURT OF CANADA. 66j )b:j STREET RAILWAY. allowaiiei; of such security o^ erated as a writ loiute I'port Action f..r .lan.age.s t<. property aiul loss of «"l'«';«^'<'^'"y'f *''« writ of ex^xution, not as 'M, fares through the unlawful and negligent removal of a house -ver a highway occupied hy a street railway company. .See Toronto Sired h'ailwaij Co. V. DoUerij, 1'2 A. R. (IT'J p. 5. See also 77tt Corjiora/iou of thi> Count ii of Yoi'k V. Till ToroiUoO'ruvtl Ji'udil oud L'onci'tti- Co., 1 1 A. R. 7C5, p. 95. stay th ;reof merely ; and that the plaintiff' wa therefore entil'jil to recover the balance of tl purcliase money from K. O' Dvitolioe v. Jiobini' Hill., 10 A. H. (j'i'i. if srBi'(F:NA. Sie Costs. suhho(;ati()N. SiV jNsrRA.MK. SUBSi:HI1'T10N FOR STOCK. .S'fc CuKJ'uKATIO.N'S. S L'M M A I{ V CON V ICT lOXS. Set JeSTK KS OF THE I'liAUK. SUPREME C'OUIIT OF CANADA. I. AlM'K.VI.S TO. 1. Wlifu Appeal irUl Lie, 004. 2. Factum, GtiU. .3. I'raetice, (iGG. 4. Costs, CG(). 5. Otiier CiUDi, (iG6. (). J'tii/iiii-n/ Out nf Court of Moiiiy Pn'ul •■J'^'^^ I UKS'Curili/fiir A/iperl — See PaVMKNT. I 1. AVPKALS TO. 1. IVIien A/i/ieal :' , Lie. petition was duly tiled and presented hi' CO inioiin i:iiMie iii'f. ■ t^iie I-! a 'upi'ri r, riyl ii^'iit, ii< If I ,Tli;i IKMi;^' ■ti'U'(l itlltT appellant on the .'')tli of Auijust, 1H8H, under tiu , Dominion (.'ontroverted Election.s Act, '.S74. '^' again^ t the return of res))ondent. Prelimiiiiirv ol(iectioni were tiled hv resnou'lent, and litrnri '" ," • ■" .?'.■.' , I JUillcl iiinl SI \ t (if fol SUMMONS. 1. WlUl OF— .S>( 1'kactice. II. I.N CUA.MBEKS— .SV'i 1'KACTICE. SUNDAY. Si.t TiMK. In an action upon a contract for the purchase ahuildmgc(Uitract. S. denied the claim, ami, bj hsU.tli A. ]{. 94. ■ ■' " I incidental d.mand, claimed .'?G,;iG8 for damage^t the r I ••'suiting from defective work. The Supi'rioi I Court, on l!7th March, 1877, gave judgment u QTTuvp ''Mil' \^' I fovour of St. L. for the whole amount of his claim, , . . *^t^'i^*'^'^'l''AS. i,^,„| dismissing SV incidental demand. Thu ^ I he plaintiff, on the sale of certain land to the i judgment was reversed by the (\)urt of Review, defendr.nt H., left in her hands a sum of .^'JOO of ♦he puicliase money as security against an exe- cution in anoth 'r acti(.n then in the hands of a sheritl'iigainst th -dainLdl "s lands. Subse(|uently the pkiutitlappea'led in thatacti.ui and on doing 80 gave % bond with sureties eond'tioned to pay *■'« encli, and dednctinL; tlie 01'^ CANADA. U Lie, Gt)4. '.'iDirt iif Moiiiii I'nhl Apiifal—See Favmknt tic mount awarded hy tlieexjicrts from tlie lialanee laiined by St. L. , gave juil;,nnt'nt for tiic (liticr- iiif. This judgment was .ithrnied l)y the Court •Queen'.H lleneli, on tiii^ l!»tli Jamuuy, 188'2:-- kid, on ap])eal, that the judgment of the Court i.Hieen's llench of tlie '-'4th Ncjvemher, ISSO, ,n a tinal judgment on the merits, and tiiutthe ipirior Court, wiu'U the ease w.is remitted to , rightly iuld that it was hound liy that judg- .■lit, and that St. L. was entitled to the lialanee 11. leliy found due to him. Per l''(jurnier, .). - , That the jmlgment of the '24th No\vml)er, 1880, iidugli intorloeutory in that part of it whicli di ■ttted the reference to experts, was final on thi! ither jioints in litigation, and oouhl therefore ive properly been ajtpealed fnmi as a '':ial judg- iiiiit. "2. That although on an a]ipeal from a ii il judgment an a|)i)ellaiit may have the right I impugn an interlocutory judniiicnf rendered in :i. cause, yetheloses this right if lu; v(>Iiiiitaiily .,■1 without rc'A r> acts ujion such interlocutory ;.iL:inent. Shiui^ v. .SV. Ar, »;.>•, 8 S. ('. li. :?;C). would 11'! to the Supremo Court. lliinkiu, 11 S. C. R. l.'{7 liohlee 2. Fact inn. The ]>laintitr's factum, containing reflections (m the judge in eipiity and the full court of Xew Hruiiswlek, was ordered to lie taki n otf the tile* of the court as scandalous and impertinent. Vei- IK, II V. (/tlirr, 11 S. C. K. IT)!). .3. Practice. Held, that it is not necessary to serve a cer- tificate of a ju:a ' Icld, that although the amount claimed in Ills case by the declaiatioii was iiiailc to exceei' ■.'0(10, by including interest which had been iircd by prescription, the apijcal would lie. A;nii'' V. Boucher et :ourt; that that discretion should be exerg( H for whicli final judgment w as to lie klituieil, and judgiiieiit was signed for the re- k!"m.lcul on the '2iid .May f.illowing. The a]i- IlKiits then appeah'd to th • Mipreme Court of iiiKnla. ( )n motion to (|iiasl! for want of juris- ' tidii, it was coiitt'iided on hrlialf of res))oiiilent piit the appellants should have appealed from ' iil'iL.'ment I'eiidcred on the deiiiiiricr oil the ying the of tlieir 1 order was made indemnifying friend of the infant plaintiffs out of their money for the costs of an appeal to the Supreiiu; Court of Canada where the a|>peal was advised by more than one counsel, and one of the .ludges of the Court of Api)eal had dissented from the rest. i'olliiiijhiiin et al. v. Colliiitihitm, 11 P. U. 13.— Kergiisou. .'). Other ('a.v'.i. Held, Sprau'gc. C. .1. <>.. iili rcbiuary, 188.'{, and nitliin thirty days from ^ appeal will not lie from tin; dubitmite, order of a that .in •Judge of I CG7 TEMPERANCE ACTS. 668 s i; ^1 the Court of Appeal, extending the . uie for ap- pealing to tlie Supreme Court of Canada. Xeill V. Tracdleiv' lux. Co., 9 A. R. 54. Hehl, that the Supreme Court on appeal will not reverse on mere mutters of faet the judgment oi tlie judge who tries an election petition, un- less the matter of the evidence i.sof such a nature us to convey an irresistible conviction tliat the judgment is not only ^rong, but is erroneous. Moidcalin Election Maniiau v. JJuijas/J'ri.C H.93. See, also Evrthifr Eltction — Uetiertux v. Ciitlt- Otit, y S. C. R. 102, This case coming before the court below on motion for judgnunt under the order which governs the practic e in such cases, and which is identical with Kng ish Order 40, liule 10, of the orders of 187;"), the court could give judgment finally deterniiuiiig all (juestious in dispute al- though the jury may not have found on them at all, but does not enable a court to dispose of a case contrary to the finding of a jury. In case the court cousiilcrs particular lindings to be against evidence, all that can be done is to award a new trial, either generally or partially under the powers conferred l)y the rule similar to the Eng- lisii Order 3!t, Ivule 40. The Sujjrcnie Court of Canada, giving the judgmeiit that tiie court be- low ought to have given, was in this case in a position to give judgunmt upon the evidence at large, there being no hndings by tlie jury inter- posing any obsvacle to their so doing, and there- fore a judgment should be entered against both defendants for .^SO, 000 and costs. Stiri'li wJirUixh Cuiiiinhiit Tointiij diiil TnuinpnrliUioii Co/npnny (Limited) ct al., \) S. C. li. S'iT. See iidn/cw V. <'uniraij, 11 1*. K. 514, p. 151. Rule 28 of the Court of Appeal, and not on the scale of County Court appeals. Regan v. Waten, 10 P. R. ,364. -Osier. lu the caae of an action transferred from a Surrogate Court to the High Court of Justice, the costs of the proceedings in the Surrogate Court previous to the transfer should be taxed on the scale provided by the rules of 1858, i. e., as nearly as possible on the County Court scale. Re Harris, 24 Chy. 459, and Re Osier, 24 Chy, ' 529, explained aud followed. Peel v. Peel, 11 V. '. R. 195.— Boyd. SURVEY. Di:--CRiPTi()N OF Land — .See Deed. Amendment of jilan. See In re Ckishulm ami the Vorpuratiwi of the Town of Oakv'dle, 12 A. R. 225, p. 146; In re the Hon. O. W. Allan, 10 U. R. 110. Surveyors field notes as evidence. See Greijor v. Keiller et al., 9 O. R. 677, p. 243. M. SUPREME COURT OF JUDICATURE. Per Armour and O'Connor, J J. The Supreme Court of Judicature is not jiroperly a court, and ought more properly to have been calleii the Su- •jieme Council of Judicature. liejina v. Bunting etal., 7 O. R. 118. SURETY. See Principal and Si'ukty. SURRENDER Of Lease— .S'tf Landlord and Ti.nant. (•I grant from tin- I'rown. Sic Mvffutt v. Scmlrl^,^S(). H. '.M S O. R. 147 ; 12 A. K. 157, p. 19. ( )f insurance policy. See Caldwell v. 'the Stad- itraiia /•'(■;■( ilwi l/ifi Ins. Co.. II S. (', R. 215, p. :W5. TAR I IF. See Costs— Solicitor. TAVERNS AND SHOPS. See Intoxicating Liquors. TAXATION OF COSTS, 6'ee Costs— Solicitor. TAXES. J. Municipal — See Assessment and Taxes. II. Sale of Land for — See Assessment a.vd Taxes. III. As between Landlord and Tknam- iSee Landlord and Tenant. sii;i;o(;AiE COURT. Co.sts of all appeal froiii the Surrogate Court to the Coiiit ol A[)iic;d should be taxed oil the scale of the court iipptalid liom, as provided by TELEGRAMS. Contracts by— ^ce Contract. TELEPHONE. Interference by wires of Electric Light Com I pany with wires of 'iVlcphone Company. Sei'l Bill Telephone (.'onijmni/ v. lie^lcville KltctrkLi' Vomiiamj, 12 0. R. 571, p. 326. TEMl'ERANCE ACTS. See Ir.ToxicATiNti Liquors. 6681669 TIMBER 670 eal, and not on the i. Jieganv. Waterf, transferred from a ;h Court of Justice, \s in the Surrogate ter should be taxed J rules of 1858, i. e., County Court scale. I lie Osier, 24 Chy, , Feel V. Peel, II V. Y. SD—See Deed, •e In re Chkholm ami ufOakville, 12 A. R. . a. W. Allan, 10 U. evidence. Sec .Vi I. K. 677, p. 243. OLIl-ITOR. sfD SHOPS. ;(j Liquors. )F CO O^S, OLICITOR. s. f.SESSMENT AND TaIEs. -See Assessment asdI ILOHD AND Ten AM- 1 Id Tenant. Iams. fee Contract. lONE. Klcctrio Light Com I Ihonc Coinijany. Siij \ll,';,vill€Ktectnclj I. :v2t>. l\>: ACTS. \(i LiyuoKS. TENANT. See Estate. TEN.^NT IN COMMON OF CHATTELS. See Gunn v. Bunjess, 5 O. R. 685, p. 58. tendp:h. The action was to rei' \er money as compen- fation for land expropria, -d, and for other relief. Defendtants pleaded a defence in denial, and also a tender of S4(KI and interest, but did not pay the amount into court : — Held, that the defence if tender without payment into court was a good lefence xinder the O. J. Act, and a motion to striive out the defence, or to compel payment into Court, or for juii Jli: Siiid lands, excepting thai which measurea eight inches through, and the said party of the second part, covenants with the said party of the tirst part, to give him live years fron the date hereof to take the said timber off the said lands, with the right of entry upon said lands for the ]>urpose of remf>viiig said timber": — Held, that C. was entitled to all the timber over eight inches in diameter. Curbttl v, Jinr/ier, 5 O. I!, y;}— Chy. D. The plaintitF contracted with the defendant, a dealer in lumber, to sell him 200,000 feet of IS foot ])laiik of red or white pine two inches thick ami from six to twtdve iiiclK's wide ; "(jiuility the same as he had supplied tiie previous yeiir. " to be paid for liy accqitaueo at three months from dates of shiimu'nt. Tiie lumber was to bi; shipped f. o. b., at the p',uiitiH"s mills to such places as the defeiiilant should ilireit. A ship- ment was made of sfune car loads which the de fendant accepted. Sub.sei|iU'iit shipments were made, some c.ir loads of which were received and otliers rejected at Hamilton where tiie defenilant I cairied on business : Held, in an action foi' the . price, that under the terms of their contract the 1 ins])ectionshould have been inadeat the |>laintill 's 1 mills and (atiirming the judgment of the ("ourt I below, !( (). R. 5()t!), that the defeui'.aiit could not I reject the lumber at Hamilton uidess it was shewn j that the article delivered was not the article agreed to be delivered : and the evidence failed I to shew that the desi;ription of the lumber men- tioned in the contract was not sulistantially satis- fied. Per Burton and <-)sler, .1 J. A. Although in a contract for the sale of goods not then asc(;rtain- ed, words such as were here used as toipialits' W(/uld amount to a warranty that the article to be tlelivereil should agree with that description there was not evidence to shew a breach of the contract in that resjKvt: Therefoi^, .- -Held, that the defendant's finiy remedy was in damages f(-r the inferiority of the article delivered — Sembh', per Burt'ii, .I.A. , assuming that the contract gave the purchaser the right of inspection and rejection at Hamilton, an acceptance and pay- ment for one shipment would n(/t preclude tlie defenilant from rejecting subsecpient shipments of the lumber that le f ir tlie business of the ;rrailti >, subjc'-t 1 1 .1 eoven lal by them to I'lit and ri'inove tlte trees within ten ye.irs ; but tliat it wafi a grant of 671 TIME. 672 Si tlio pine siilijcct to tbe comlition that the timber ami logs should he cut and rLiiiiiveil oil' the j)ro- iierty on or ))ffoi'e the Itii day of A])ril, 1884 : — Itld, idi>i\ 1 Sundays and holidays arc excluded in com)itit ing the live days notice necessary in a sluir: notice of trial. .Short notice of trial served on AVednesday for Monday : — Held, bad. (J'lhn- mil V. O'Duiiioll, 10 P. li. •264— Osier. The term "vacation" in (i. 0. ('hy. 04'.', means Christmas as well as long vacation, an! hence the former is not to be counteil in the tiiii'- within which an ai)[ieal from a nuister's repor may be had under that order. Notice of ajipeal from a report dated '29th November, 1883, given on the 31st December, 18S3, for the 7th .Innu.iry 18S4, is valid. Hluke v. liiiddini/ nnd Loan A- surkilioii, 10 P. R. 153.— Hoyd. A notice served on Monday, 6th October, "' an jippeal to Uie Court of .Appeal from a judf ment given on the 4th of .Se()tendier, was lul too late. W'riuld v. Lfyn, 10 P. R. 354.— Daltr Miinter, The thirty days' time allowed for appealing tn the .Supreme Court of Canada under s. '25 of the .Su])reme and Fxche(juer Court Act, commeni'c! to run on the issuing of the certificate of tlie Court of Appeal. IVahnslei/ v. Uriffith vt al. II P. R. 147— C. of A. A summons issued within a month after the formal acce[itance of oliice by a candidate |.' mayor of a city by taking the statutit.i: utoiy declaration, liiijinn i.c nl. -Ftil/i v. //t laud, 11 P. 1!. '205. — DaUon, Hauler. 672 g to deduct a month's rent lease. I'ossession was at- ant's agent, but tUe defen- ,lie cdiisideratiftn agreed \)\i ncijial gnmnd for such re y of posKeMsion ou the day time \v;iH not by the agret; sseucu of the contract, ami defence to an action for tbe id. Daiiili/ V. Vidal, 11 A 'X limits. .See Crosxjidd v p. 1)57. •TATloN OK TrMK. le judgment of Armour, .1 . , ,1. , di-ssciitiug), that in com unilay is to be reckoned ic- l)e allowed for. " Days unning days, or eonseeutiv.- be some i)articular custoui exclude any days from th. must be ex|ircst'ed. Gili'i". imher Co. {Limited), 7 0. 1; ot, applies to the Chancer) li Court of Justice The sn 1 appointment to examine n: tor on a !■ unday for a Moii Liiviliu-c V. Ildiriiiijt'Di, I" , MtiHtfi: days are excluded in com]ni! notice necessary in a slu'i' lort notice of trial served im nday :— Held, bad. ()'I>o> P. a. 2*34.— Osier. tion " in C. (). Chy. Cd:', well as long vacation, a::; not to be counted in thu tin:' ipeal from a master's repor at order. Notice of appeal 2'.)th Novend)er, 1883, given er, 18S,'{, for the 7th .lanuary ke V. liiii/diiKj iind Loan A^ 3.— Uoyd. (in .Monday, 6th October, k lurt of Appeal from a jiulg 4th of Seiitend>er, was liei L.//.S 10 1'. H.354.— Dalt^D, ime allowed for appealing to of C'anada mider s. 25 of the (pier Court Act, cominenri! ing of the certificate of tli' W'dhiisley v. (Jrijith it id. I 'd within a month after the if ollice by a caudidati^ I' taking the statutory declara )n and otlice is in time, imt t issued more than six week- md mo''e than a montli iiftir itiice made liy the respomli'ii". jitcirs, and certain other ai.ti ter, less fiirnud than the stat A'r;/(/(i/ I'.C I'll. — Fcilli V. //(.'■ l)i'.lion, Manter. 073 TRADE MARKS. 674 The noti(!e to the revising officer in this case was left with his clerk at his otliee during the ab.scuee from town of the revising officer on .Nlfin- (iay, 28th June, and on his return on the after- iKion of that day he was told what had been done, iuid that if he ilid not consider that .sufficient the I notice would be procured again and served on liini personally, but he .said what was done was I .sufficient: — Held, that the last day for .service ] fur the sittings for the final revision to be held r2th July was Sunday, 27th .lune, but that under ' sec. 2, sub-sec. 2, 48 &, 4!) Viet. c. 40, (l)oni.,) the , time was extended, and S. had all the next day, and that the notice w;i8 well given on Monday. Re Simmoiii ani(^il thi! . R. 171, followed. H'dt-ionv. Weal- I'lkf, 1*2 0. R. *^&^■ -Ferguioo. TRAMWAY. See Street Railway. Accident upon. .See McFarlaiie v. GilTiwur el a?.,5 0. U, 302, p. 426. TRANSFERRING CAUSES See High Court of Justice. TRANSIENT TRADERS. See Municipal Corporations. TREATING. See Parliamentary Elections. TRESPASS. I. To Personal Property, 676. II. To Realty, 676. III. As,sadlt and Imprisonment, 678. IV. Injunction to Restrain — ^ee iNJum- TION. I. To Personal Property. See Schaffer v. Bumble, 5 0. R. 716, p. 100. II. To Realty. A ♦•"'".iator by his will directed his executors to pay all his debts, &c., out of his estate. Then followed specific devises of his estate to his wife. children, and nephews, and a oirection to his ex- ecutors to sell the chattels, e.xcepting the house hold furniture bequeathed to his wife, and out o! the proceeds to pay the debts and to invest thf balance for the benefit of the wife and children. By a codicil he directed his executors, if niices- sary, to sell in the lirst place lot A, speciticilh devised as aforesaid, to pay off any debts or in- cumbrances against his estate ; and in the event of such sale being insufficient to pay said debts. &c., then in the next place to sell and dispose ut lot B, also so specifically devised. The executors before di8{>osing of lots A and B, sold to defend ant the growing timber on lot C, a lot speciticall} devised to the plaintiffs, the defendant purcha; I iiij; in good faith and on his aolicitor's advice tha; the executors hail the right to sell to pay debts: I and defendant entcre.l and cut down .and carriii [ away the timi)er. ;Mil)se()ucntly the defeiulau; puri.hased tlie land from the mortg. geesllicron;, the land having been mortgaged by testator. Tli plaintiffs, at the testator's decea.se, were uuii': ag.-, and did not boroine of ige until after tii trespa.ss coinplainod of, when they brought trcj- p;iss against .lefeiidant claiming as damiige.s t;,- v. due of ;le timber so cut. There was no eiitr; j or ijossesiion takcMi by j>i lintitl's before activ coraiuenced :— Held, aflinning the judgment c: KoM, J., that by reason of there being uo suck TRIAL. 678 Y. ILWAY. arlane v. Gilttwur H CAUSES F Justice. lADERS. IPORATIONS. 1G. f Elections. SS. RTY, 676. 50NMENT, 678. STRAIN— 5ee INJUNI Property. ) 0. B. 716, p. 100. ALTY. lirected his executors ,t of his estate. Then his estate to hi'? wife. a (Urection to his ex [, excepting the house jto his wife, and out o! jbts and to invest the ;he wife and children s executors, if necer face lot A, specitically off any debts or in- ate ; and in the event int to pay said debts. to sell ,\nA dispose w Ivised. The executors f-nd B, sold to defenil- Rote, a lot specifically lie defendant purcha:^ solicitor's advice tfiv. to sell to pay debts: cut down and carriri .leutly the dof''iulau- le nioVti;. geeallicreu:. ;i),'ed l)y tvstator. 1 li" decease, wore uud": lof .ige until aftir tii^ len they brought trcs- jiining as dani:ige» t:i'i There w.is no entry lintiffs brfore aetinu a„^ th.> judgment i':| if there Weiug no s"'-'" entry or possession the action was not maintain- able. Per Cameron, C J. To entitle tlie plain- 'ills to recover either at law or in ecpiity, an entry upon the land by the plaintills must have , ken made at a tinie when they had a riglit to make such entry to carry the legal poasession with it: — Held, filso, per Rose, J., (1) that the geueral language of the will was controlled l)y tlie codicil, and so the debts were not charged nil the unappropriated estates ; and therefore tlie , {■\toutors had no power to sell the timber on the liiud in (piestiou : (2) that if a power of sale was ' given to the executors it could not be exerci.sed ' until after the lands specitically appropriated had been sold ; and, (3) that the purchaser, not shielded by sec. 30 of 2!) Vict. e. 20 (Out.), was Iwuiid to see that the power was rightly exer- j iised. Baker H al. v. .1/(7/.^ 110. K. 2.");{— U. P. D. ! B,, the owner of a mill, subject to a first mort- gage for j54,000, held by one K., gave a second j mortgage to plaintitl's. Subsec|ueiitly IJ., being | aesii'ous of having the mill couverted from the i 'Stone" to the "Holler" .system, ap[»lie. in favour of the company. 15. [ tiioreupon entered into an agreement with de- itiulants under whicli defendauts were to lecon- ; struct the mill for §4,S0O, .'52,000 to be paid on completion of mill and balance in three e(iual iiiuual payments, secured i)y a .second mortgage i!i the property, and it w.is one of the terms ol till' said agreement that defendants should be iui'iiished with a letter from M. agreeing to pay ihc S2,000 on completion of mill. Defendants, without communicating with M., commenced work and did not ask him for such letter until aster the work had progressed for several weeks. When applied to for sucli letter, .M. informed plaintiffs that he had not agreed with 15. to give a letter for any specitic sum, but only for what- ever balance there nught be left out of said sum of 37,300, after paying off prior incumbrances, »iui that after allowing for the amount of such prior incumbrances there only remained about il.'JOO, wliich latter amount he was willing to undertake to pay on the mill Iteing completed. liefeiidants, in the course of reconstruction, had tikeii out most of the old machinery and put in uew, and made considerable alterations, and uiwii M. declining to undertake to pay $2,000, they removed the new machinery put in ;uid left the mill in a dismantled condition. At the time liefeiidants commenced work the amount due on plaiiitids mortgage was about .'51,700. The mill, «iiiUt in such dismantled state, was sold under piiwer of sale in K.'s min'tgage and only realized enough to satisfy it, and plaintitl's, contending that dcfemlants by their acts had diminished tile value of their security, and that li., the nijitg^igor, was insolvent, liroiigiit this action to reeover damages to the e.\teiit to which their fti'iuity was impaired. Itappeare.l in evidence tiiat M., besides being manager for tile loan roinpauy, was also pluiiitiirs ui.iniger, and that he «.is, aware ih.it li. Iiad made a .'untract with lOei'iiilints for remodelling the null, although lie ilid not know the preci^ie terms ,)f such con- 'raot, and that he saw the work iu progress and raised no objection. At the trial the learned Chief Justice dismissed the action, holding (fol- lowing Baker i\ .Mills, 11 O. R. 2r)3) that plain- tifl's, second mortgagees, not having the legal estate, and not being in jiosse.ssion, or entitled to possession, could not maintain any jiction : — Held, per Wilson, C. J., and .-\rinour, .1., that plaintitl's must fail, not on the grouiul upon which the learned Chief Justice at the trial dis- missed their action, but upon the ground that they had by their conduct and aeiiuiescence pre- cluded themselves from bringing it. Per O'Con- nor, J., that plaintiffs must fail on both grounds. Th>' W'l'sU rii lUinkdJ Canada v. Grrvy vt al., 12 O. 11. 68 -Q. B. L). Right to bring action for dam.ages for trespass committed by .Municipality. See VmiEijiiwud v Th<' Coi-poratina nf tlie Town of Seai'ortli, G O. 11. 599, p. 710. See liruoki: v. McLean, r>0. It. 209, ]). 70. III. Assault ami l.Mi'iiisoNMKNT. The plaintiff, during his initiation as a member of the defendant's lodge, in the presence of the principal officers and a number of members, con- stituting a full ami perfect meeting, was injured through the rough usage of some of the mem- bers. It apjieared that this and other proceed- ings were taken with the knowledge of all those who were piesent, and that somewhat similar proceedings had happened on the occasion of other initiations, ami that they were allowed and not checked : —Held, that they must be taken to have been ilone with the consent of the corporate body, and that the defendants were liable iu damages for the injuries sustained. Kinrer V. '/%-■ P/oeiiix Lod;/:; I. O. O. F., 7 0. R. 377.— Wilson. Held, that the discharge of the plaintiff from custody on habeas corpus was not a ipiashing of his conviction on a charge for unl.'iwfully remov- ing cordwood from an Imlian reserve ; and that the conviction remaining iu force, and the de- fendant iiaving had jurisiliotiou, the action, which was trespass for assault and imprisonment mali- ciously and without re.isonable and probable cause, could not be in lintained, but the action should have been on the case ; but that even if the form of action was right, there was no evi- dence of want of reason.ible .and probal)le cause. Hunter v. Gilkison, 7 O. R. 735 -li. B. D. Suspension of action until criminal charge dis- posed of. .See /'(((/Ajc v. McCtdluuijh, 8 O. R. 309, p. 7. TRIAL. I. Ni)TH'K OK TiiiAL, 079. II. Fek on- ENTEKisa Rkcoro, 680. III. Po.sTI'ONEMKNT OF TkIAI,, liSO. 1\ . JriiY NoiicK. 1. (hnUtioa to FiU', I'lND- iNus Oh' riiK .liHV, (JH5. Inkhkncino .hi!V, 080. WlTHI>KA\VIS(i t'ASK FROM JlTRY, 686. VkkDIOT— iSVr ^■F.Kr)I('T. Vknik ani> CiiANoiNu I'l.Airc OK Trial — See Plkadincj. Rkhearing liv Divisional Court— .S'ei' Hkjii (,'oi;nT OF .Irsrit'K. Ok Contkstii) Ki.kctions— .SV*" Parlia- MK.NTAHV lu.Kl'TION.S. C'O.STS OK AliOKTIVK TuiAL — See CO.ST.S. New Trial— i'cc Ni.w Tkiai,. I. NoTicK OK Tkial. When a cause is postponed by tiie order of the judge at the assizes, upon tlie defendant'.s appli- cation, it is a reniant^t, and no notice of trial for the next asfci/.ea is necessary, under the rules of 1875 (37 Q. 15. 528) and tiu; (>. J. Act. JJoiiomn V. /iouUhee, 10 1'. It. 5'2. — Dalton, Muster.— Wilson. Service of notice of trial ofTected by leaving a cojiy of the same in the otlice of the defendant's solicitor before six o'clock, but after the solicitor and his clerks had left for the day, takes etl'ect only from the time when the notice came to the knowledge of the solicitor. The practice laid down in Consumers' (Jas Co. r. Kissock, 5 Q. B. 542; McC.illum v. Provincial Ins. Co., 6 P. P. 101, held not to have been altered by the U. J. Act as to service upon a defendant's solicitor. Davies v JhibharU, 10 P. R. 148. — Dalton, Jilastfr. Sundays and holidays are excluded in com- puting the five days notice neces.sary in short notice of trial. Short notice of trial served on Wednesday for Muiiday :-Held, bad. O'Dvn- tiellv. O'DovnvU, 10 P. P. 2()4.-Osler. The original defendant dying pendente lite, the plaintifls issued an order of revivor on the 22nd April, and served it on the defendants by order on the same day, and along with it a notice of trial for the 5th May, at Cornwall. 'J'he de- fendant moved to set aside the notice of trial as irregular: — Held, that the order of revivor was in force from its service, and as it would be con- firmed by the lapse of twelve days upon the 4th of May, the notice of trial for the 5th of May was regular. Ad/' York J'inno Co. v. Htcveii.soti, 10 P. R. 270.- Dalton, Masln: The re])ly in this action contained two para- grftphs, the lirst denying certain alkgutit.ns in the fourth paragraph of the defence, and the second jnining issue upon the rest of the defence Notice of trial was servetl with the reply. ,\ motion to set aside the notice of trial was ili> missed, because the atlidavit filed in auppuit nt it did not state that no joinder was tiled win n the notice of trial was given :- .Seiiible, tin: joinder of issue referred trt/iroi)e, II P. R. So.'?.— C. P. D. Where the plaintiff served in succession ffi\ir notices of trial for the same assizes, all of wlij^h were set aside as irregular, with costs ag:unst him, ami he was i.i default for non-payment nf such costs, the action was stayed until tliiy sh> "dd be paid. Utewart v. Hullivaii, 1 1 1'. 1: 52a— C. p. D. See Adair v. Wade, 9 0. R. ]5, p. 682. f 08 .Mil m win t(i to 8 trie tn ( tiici lulj •liat :Htl -ti; .19 a :it>ti ■Aitl uice I II. Feb on E.nterino Rkcord. ! Where the trial of a cause was postponed till ! the next Assizes, defendants to pay the costs:— Held, that no second fee was payable to the • deputy clerk of the Crown upon entry of the 1 action for trial at the later Assizes, and that ■ when so paid by ])laintiff, such fee was not tax : able against defendants. Morion v. Qraiid Truni i h'. n. Co., 10 p. R. 62.— Wilson. HI. Postponement of Trial. An interpleader issue arising out of an action in the High Court of Justice was directed to be tried in a C'ounty Court pursuant to 44 Vic. ch, 7, sec. 1 (Out.) : — Held, that a motion to postponf the trial of the issue should have been made in the County Court. London and Canadian Lorn and AgeiieyCo. v. Morphy, 11 P. R. 86. — Daltcn, Master. The costs of moving to postpone a trial on acJ count of the absence of a m\terial witness, will be costs in the cause, where the party moving has made diligent efforts, &c., to secure tlieatl tendance. Brovn v. Porter — Knox v. Porttr\ 11 P. R. 250.- Rose. IV. Jury Notice. 1. Oviis-iiun to Pile, The plaintiff omitted to file a jury notice witij '■"'s last pleading, and applied ex paite to tliJ \ I'll ;r;K't ;iis(jc ...u a fiice i '.lied .•■Ig" ...itte ,••''«'•■ jivu iJ ail' I tl <■' nt. riie H-ay ui 4.- reci till' pl Jllli of Jiicnd .'.'.'er t t' proc I'lMipai (HHJ lia( ciiue t iin' rai I'lm d ■aihva) llcllt li JI.UOO fjiiy a tii.it, t<. trej by litter c TRIAL. 682 lie dcfencp, and the 10 rest of tlie defence with the reply. A itice of trial was (li> •it filcil in supiMirt nj iiuler was tiled wli. n ^iveii : - Sfiiihle, llji; in Hide I7f>0. J. V-l, a previous pleading' {•.'.'J.--l>iUt<)ll. Mu'l'r fiction hrought in tlu I'leaa Division ^.'ivon trial of actions in thi> i nilar, and will he s;t | u)i, 10 1'. 11. 58,-..- y one of the '^inrtiof, ay give notice of tii.il, rnnk JinUivay Co., II •r. simple joinder of issue n''e anil counter-iliiini he pleadinjjs, and tli.i'. it was regular. Il'ir- 3.— C. I'. I). ved in succession lour | ne cissizes, all of wliiih ar, with costs a>i:iiiist| lit for uoii-paynitiit of VHB stayed until tliiy| V. Hultivau, 1 1 1'. I! •>. R. 15, p. 682. RINO RkCOBD. use was postponed till ints to pay the costs :- e was payahle to the 11 upon entry of the ter Assizes, and that such lee was not tai Im-ton V. Orarui Trmi Wilson. ■ NT OF Trial. arising out of an actiod ftice was directed to bej Pursuant to 44 Vic. cb [at a motion to postpone! jld have been made in \<)n and Citvadian Loai UP.R. 80.— UaltcnJ postpone a trial on acl , m-iterial witness, will hei e the party movini &c., to secure theatJ irUr—Knox v. Portal I Notice. §1 to File. f tile a jury notice witM .plied ex pai te to tlil .Master in Chambers for leave to withdraw the uiat pleading and ro-lile it with a jury notice. Ibe leave was grunted : -Held, on appeal, that *lien tlie plaintiil' came to the court to he reliev- ed from his slip, he should have been called upon 10 shew that tlie ease was one which should he tried by a jury, and that unless he iiail been aide to do so the defendants should not have had ;heir statutory right to have the case tried by a lulge without a jury taken away :- -Held, also, '.hat notice of the motion should liave been given ;ii the defendant, iu accordance with the .spirit . t Uule 40U (.). J. Act. The appeal was treated ij a substantive motion [or leave to lile the jury ;uitice, uiui the i.rderof the master was allirnifd, vitliout costs. I'oici/l V. City nj l.omlvn ,1 svx;- i«cc ('((.- I'oivcU V. IJiuInc liiSdrti'tft C'l/. , 10 I'. !;. iV.iU.— Rose. V. TitiAL i;v .](■!)(. I, WniKin .\ driiv. ■'ce H'illiaiitu v. Cnm; 10 A. K. 'Ml, p. W, Vl. Uefkkknck ok Mattkr-s to Master. riie plaintiil' sued for allegid breach of a con- ;ruct to sell and deliver a (juaiitily of hay to be inspected. 'I'he plaintiil' gave evidence of .-ihort- j.u and defective (jualitj , and asked for a reler- •■uce ;is to damages ; but the learned judge who •.iittl the ease refused the reference, and gave , Igiiielit for the defendaut ; llehl, that the .atters iu iiuestion were pro|)er fur trial by a dgu, and that the plaintiil' wa.s not entitled to ...e prima facie evidence of a breach of contract til 1 then have a relerence as to liamages. Cuo/c : i/. V. I'liUtmun, 10 A. U. ti45. I'lie defendant, having delivered ties to a rail- (ly company iu excess of his contract, as he al- lied, arrangeil thatsuch ties should be leturned J! received hy the eomiiany on a c(jutraet with .IU plaiiitili'. In anticipation oi sucli returns, ml of payment therefor, the plaintiil paid the Itiendant .'51,000, ami brought this action to re- .1 ver the same, alleging that he never w.is able !' procure returns or payment from the railway .'Mipaiiy, and that the consideration for the SI,- 'Ml bad therefore failed. It was shewn in evi- .■iice that the plaintiil" had, in a claim against ".lit railway eompaiiy for H),SS3 ties, included 3.'.;i)0 delivered by the defendant, and that, the 'jilway company disputing such claim, a settle- aiiit had been ell'ected, the plaintiil' accepting |51.000 in full of his claim, ami giving the coin- fiiiy a formal release of all demands ; —Held, ;iut, to the extent to which the ties were deliv- riil by the ilefendant on plaintiil "s account, the tutor could not, in view of the circumstances, l»li'-ge failure of consideration ; but that he was t bound by the settlement to pay for ties that |»iTe not delivered, ami therefore that the deter- muation of the action depended upon the result i! the in(juiry directed as to the number of ties livercd by defendant ; and an appeal from the algmeut directing such imiuiry was accordingly isiiiisaed. The objection, that the judge at the should have himself decided the issun as to ii.iure of consideration, instead of directing an iuiry before the master, is not one that the "urt will entertain. Featlteralone v. VaiiAUtn, 12 A, K. 133. I Vll. Ki(*iii To iiAVK TuiAi. iiv Jury. I 1. tit iin'allij. ! In an action of seduction no appearance was entered, the plaintiil then tiled a statement nf ' claim to which no (Ufcncc was made, and inter- locutory judgment was signed, and notice of as- : sessment of damages given. The defendant did not aiipear at the tri;il and a jury was called who disagreed as to tin- amount oi ilamages, anil were disi'harged. The learned judge then tried tlie case himself withiut a jury, up.i'i a fre.sh taking of evidence, andassessed tlu'daiii.iges, andgave judg- ment for the [daiutill : Semble, that under the j <). ,1. Act anil tmnier practice, the learned judge I in siieii an action had no power to dispense with the jury ;- <.^»ua-re, whether, in any event, a jury I having been called and disagreed, they ciuild be j dispensed with, ,uiil a retrial had without a new ' notice ; but it was unnecessary to decide the point, as it was not satistactoiily established that the writ of summons had been served on the de- fendant ; and he was tlieieturi' allowed to have a j trial on the merits. Adu'irw ll'in/r, yo. {;, 15. — ; c. 1'. u. since Itule iA'^, < >. ,1. Act, an action is not to be transferred from one I'i vision of the High Court of .lustiee to another, e\cei)t on very strong grounds. In an action for the recovery of land, in which the writ issued from the < 'hancery Division, the jury notice served by tin.' defen- dants was sti'UeU out, and a motiim to transfer the action to another Division was refused.. Hank of Ihitish North America v. Kddy, y 1'. It. 4()^, does not since Uule 7t\i), ( >. J. Act, alToid any general rule of pr.ictice. Mu.is^ v. Mitxst, 10 I'. K. oTl. - iioyd. licverscd, 1 1 \\ K. 81 -Chy. D. The Court of Chancery had, before the (). .1. Act, exclusive jurisdietiuu in actions to establish wills, and its jtower to direct a tiial by jury (It. S. O. cl'. 40, see. !•!»,; is continued in tlie High Court under sec. 4."), (). .1. Act. liut the heir- at law, the defendant, in such an action has not now in this Province an absolute right to a jury, and the Court refused to direct one on the issues raised herein. A'c Lcivi.s—J'tc/csoii v. .irult, 11 1'. R. 107. — Ferguson. In an action brought in the Chancery Division, on behalf of the iilaiiitilf and other creditors, to set aside an alleged frauilulent tr.insl'er uf notes, itc. , made to the defendants by the debtor, and for an injunction to restrain the defendants from negotiating them, the defendants served a jury notice, which the Master in (."hambers refused to strike out. Un apiieal to I'roudfoot, J., he allowed tlie appeal and struck out the notice, reserving le ive to ai)[)eal to the Court of Ap- jie.il :— Held, that liule r>l'), O. J. Act, was not intended to, and docs not, interfere with the power of transferring actions from one Division of the High Court to another, nor with the right to give a jury notice in a proper case, nor with the existing modes of trial of particular actions. Piticsoii el id. V, ■/'/('■ MuxhanU Bank ■ >/' Canadii ..— Ktrgu,«(in. I, hionj,'ht tliiw notion ngiiinst ■<. in the Chan- ' eery Wivision cliiiiniiig (I) fi)ifclr)suro of certain iii tinguished from its auxiliary jurisdiction. I'liir ■toil el ril. V. 'J'lip Mi'n-liiiiil< Hank of Canuiln • (i/., 11 V. J!. 72.-C. of A. Held, that this was such an action as wmiM, before the O. J. Act, have been in tlie tx elusive jurisdiction of the Court of Chaiuiiy and therefore it fell within s. 4r), and slmiilr lie tried witliout a jury. 1'he practice l;ii> down in Bank of 15. N'. A. r. Eddy, !) 1'. K 4(i8, is still the proper practice. The ((uestio' whether the order rf I'roudfoot, J., was ap|ii;il able was not determined, as the appeal was ill; missed. ///. The action M'as brought in the Chancery l>ivi sion to obtain specitic performance of a coveiuiir to repair, or for damages : — Held, that it w,i really a common law action, fors))ecitic perfdiiii ance of such a covenant could not be decreed, an the defendant was therefore entitled to the liciic tit of his jury notice, liiwjhait) v. Wurn>:i\ li 1'. K. G21.— Ferguson. Action by two ratepayers, on behalf of then: selves and all other ratepayers of A., against al! the menibera of the municipal council of A., chaiv iiig tliat the defendants, acting fraudulently aii' in collusion with the treasurer of A., contimii> him in office after it had come to their knowk'il;;' tliai he was a defaulter, and allowed liini Ui iv ccive further money.s, causing loss to the niiini cipality : — Held, that the law attaches the liu bility of trustees to municipal oonncillors, anal that it was sutficient to charge them as such wit out using the word " trustees " : that the aotiui,: was one in the former exclusive jurisdiction f>'. the Court of Chancery, and a jury notice wa therefore improper. Morrow et al. v. Connor > rt/., 11 P. J!. 423.— Proudfoot. Uv Liicis -Jackson V. Scott, U P.R. 107,p.OS'.' Vni. Right to Bkgin. Defendants admitted policj', proofs of death probate, &c., and accepted burden of proof ai the trial, and claimed the right to begin :- Held, the plaintiff's had the right to hegiu notwithstanding such admissions. Miller ^' Covfederation Life Asmrance Co.., 11 0. E. 12l — Q. B. D. IX. Right TO Reply. The learned judge at the trial nonsuited, l'« cause he thought the agreement had not bee" 684 Field, reversing theKi! he Court of Ap|H',il the ajipt'iils, and that prima facie right if n was the earlier diic iieil of were not sml, •L'tion of the .ludf;. c.) IVrOsler, .1. A, as would cntitli! ih- out the jury notn.i emature. < 'ntinw^ v , , ((;)'/ Till' Ciiiiiiili'i e, \'2 A. It. 744. f Cdurt of ClKinrerij. u )\irisdiction of tlv 45 of the ( ». .1 . Ar- •xereised generally ii its exclusive as dir y jurisdiction. I'un- ,<' Bank of Cainvlit . 1 an action as woul'l. ave been in the tx Court of Chanitn in s. 4.'), and shuul. The practice lai' A. r. Eddy, !) 1'. i: ■actice. The (juestin'. idfoot, J., was apiicil as tlie appeal wys .lis ill the Chancery Hivi iorniance of a coveiuiiu —Held, that it wa- ll, fors])ecitic perfmiii lid not be decreed, . Ill; re entitled to the beiU' nij/iaiit V. Waviin: \f rs, on behalf of thin; yers of A., agaiii.st iii. lal council of A., char.' ting fraudulently aiil urer of A., contimu'; inie to their knowk'ilj;': nd allowed him to n sing loss to the immi law attaches the Im icipal coinicillorg, aiii irge them as such witli ;ces " : that the aotiui. ilusive jurisdiction o: nd a jury notice w; row etal. v. Connor • foot. ott, UP.K. lOT.p.O!*'.' TO Bkoin. ilicy, proofs of death jd burden of proof ai he right to begin ;- the right to begin Imissions. Milhy '' ncc Co., 11 0. R. 1.!^ ■J Keply. 10 trial nonsuited, l!« reement had not beei m TRUSTS AND TRUSTEE. 686 properly proved, but allowed the case to go to the jury on the issue of fraud, the onus of which was on tlif defendants, and for assessment of (iiiinages. The defendant's counsel erossexani- int'il one of piaintitl's witnesses on tlie (jiiestion (if fraud, and the plaintiti reexamined iiim upon the eross-exaiiiiiiation : — Held, that by reason of such re-examination the plaintiH' was not de- prived of bis rigiit ot calling witnesses in reply to tlie defendant's evidence of fraud ; at all events, this was a matter for the judge at the trial, and also the i)laiiiti(r iiaving had to open the ease, the fact of tiie case going to the jury iiiily on the issue f)f fraud and for the a.ssessment (if damages, did not deprive tlie plaintifF of tlie right to reply. McDminliI v. Murntij, 5 O. 11. 559-e;. P. I). .Xll. SlIlMITriNG QUESTION.S T(J AND FINDINGS OK rilK JlIlY. It was ol)jeetcd that the representation had not been found to lie false to the knowledge of the plaintitrcompaiiy ; but : — Held, that the (pies- tioii as put having been assented to by counsel iin both sides as one the finding ()n which would lie decisive, it was too late to take •■.his objection ; and the ell'ect of the finding must l)e taken to be that defendant knew the representation, which was as to goods of his own manufacture, to be false. Star Kkliiio/ l'aJ 80. K Executory. J. R. 324, p. 213. N(i TnrsT. !S only in favour of a • cV.! ali(iu(>t part of the uch case the trust is of estate proportioned to trust arises fro:r. the aking advances on be reed to buy the estate. 13 A. R. 5G1. Ilaughtev had married a Id who was an executor Ihe father of the plain Immon interest in the jr's estate. In conse [the plaintiil the ilesi- the estate of one (1. uestead ; as by ao do tin the (1. farm leaving [ly divided between his |i8wer to plaintiff's oh IS that he, defendant, payments. The pur icted, and plaintiff ami •chase money, but nut , some of defendants ;ly in cash and partly luce was maile to the lubscribing as the wit- lion of the deed, ['n of their respective ler the eircumstaneis laintiff had purclwseil there was a resulting moiety of the land and he then value thereof en by the plaintiff, Armour, J., gave judgment for the defendants. Onappeal tothis Court; — Held,(Hagarty, G.J.U., ] dissenting,) that on the evidence there w.is not ; ,k resulting trust; that all defendant could claim j Mras a lien for the amount advanced by him ; and | a reference was directed to take the account and :i' the amount found due should not be paid in ^ix montiis that the estate should l)e .sol. 378, considered and distinguished : — Held, by the Master in Ordinary, that the amounts ]mi\ by C. M. to a professional land agent in connection with the sale of the jjroperty, and a certain sum paid by (,'. M. to a jirofessional accountant for making up the account delivered in 1880 should be allowed to him in his accounts But that sums paid by C M.'s executors to a profcpsionalaccountant for making ujitheaccount lirought in by them into the master's ofhce, and a certain sum paid to C M.'s solicitors on ac- count of their cost.s in the action should not be allowed to C. M. in his atcounts : — Held, also, by the Master in Ordinary, that C. M., as trustee solieit(n-, was not entitled to profit costs, but, nevertheless, he was entitled to a commission of Hve ]ier cent, on the cmounts coming to A. M. anil T., from which, however, must be deducted a certain sum paid as commission to a land .igent for effecting the sale of the ])roperty, since double commissions cannot be allowed. Jh. One L., l)y her will, gave her real and person.il property to her brothers and sisters, share and share alike, and ajijjointed L. and E. executors. L. and ]•]. converted the est.ite into money, and invested the proceeds on mortgage security, and afterw'ards as certain of the legatees came of age paid them over their shares, but paid the plain- tiff's' shares, tliey being infants, to one F. who, with the concurrence of their parents, had been appointed their guardian by the Surrogate Court. V. absconded with the money. 1'he infants now suing L. and K. by their next friend for the amount of their shares : — Held, that by the ac- tions of the executors the moneys in their hands had become trust funds of which they were trus- tees, and that the plaintill's were entitled to judg- ment. J/ui/ijiiin d al. V. Jaiw et «/., 11 O. R. 5()5. — Ferguson. The law attaches the liability of trustees to municipal coiineillors. See Morrow v. Connor <>t al., 11 P. l\. 423, p. 4()5. Liability for interest. >See In re Uonxherijer — J/onibirtjer v. Kratz, 10 0. li. 521, p. 207. See Btatly v. North Western TrmiKportation Co., 11 A. R. 205, p. 116. 3. Compensation and Allov:anve. Held, in this case, that the plaintiff was entitled to the account asked, and that as re- garded the increase or profits in the dealings with the capital of the estate, these should be proportioned "n accordance with the amount of such capital owned res]iectively by the testator and the defendant, \V. 15. D. ; and the defendant, W. L). 15. should be allowed a liberal remunern tion for his exertions, care, time, and trouble in the management of the estate, which ap])cariu to have been skilful and successful, limii v. Jiiirii, 8<). It. 237. — Ferguson. It is incident to the office of a trustee that tlir trust property shall reimburse him for his ex penses in administering the trust ; and a ciausi- so indemnifying a trustee is infused into every trust deed ; and the statute R. S. U. c. 107, >. 3, does little more than w hat Courts of eiiuily had been accustomed to do without any statutni y direction. Therefore a trustee who had bci n induced by a settlor to accejit a trust under an instrument void by tht; law of the settlors domicile, is entitled to be reimbursed by surli .settlor foi all his expenses incurred in the exi: cution of the trust, ilmihru v. Ji'ee.i, 10 1'. li. 301. — Hodgins, Mauler in Vrdtnanj. i^emble, that though the trust deed in que . tion was invalid, and notwithstanding Smith '■. |)re.=ser, L. R. 1 Ei). 0.")1, 35 Reav. 378, yet as against one who himself assisted in creating tlif trust, a trustee acting under it would have been entitled to expcn.ses incurred in respect of it but u])on the fact.s stated in the r^.'jiort, it was held that the sums claimed were not shewn tr have been incurred in respect of the trust deed. ti. C, 9 O. R. 198.— Proudfoot. See Tai/Ior v. Ma;/rath, 10 0. R. 669, p. 691 4. LiahiUtij for Artu of Co-trudee. A., B. and C, the three executors under a will, sold certain real estate of the testator. C. who was entitled to the animal income of the proceeds thereof, took the most active part in the management of the estate, as the othei's liveil at a distance, and employed a solicitor who re- ceived two sums.?980 and .?15S0, part of the pro ceeds of said sale, the former in January, lS7t), and the latter in February, 1882. ]$oth tlit other executors were aware of his employment and that these sums were in his hands. In Feli- ruary, 1884, the solicitor absconded causing ;i h)ss to the estate of $1960, the balance then in his hands. In the will there was a clause ''that each (of the executors) should be responsible fm his or her acts only, and irresponsible for any loss unless through wilful neglect or default ":— Held, that all three were ecpially liable and must make good the amoui.t to the estate, the rule be- ing when one or more of several trustees act in getting in and . at Courts of e(iuity j-ithout any statutory istee who had bcdi lejit a trust under an law of the settlors reimbursed by smh I ineurred in the exi. ;//«,s V. n,'<:-^, 10 I', i;. /rdivavi/. trust deed in (jUi ■ .•ithstaiiding Smitii - a") Ikav. 378, yet as isistcd in creating tlii' ;r it would have been red in respect of it u tl\e ri.'])ort, it was d were not shewn tr ect of the trust deed, dfoot. 10 O. R. 069, p. tJOl .s- of' Co-trustee. ce executors under a e of the testator. C, nuual income of the most active part iii ite, as the others lived ed a solicitor who ro- .l.')80, part of the pre ler in January, 1S7(), ary, 1882. Both the •e of his employment in his hands. In Kcli- absconded causing ;i the balance then in re was a clause ''that uld be responsible for irresponsible for any neglect or deiault " :— puilly liable and must ne estate, the rule be- everal trustees act in h the trust funds, an able therefor equally the means of know!- rdinary vigilance, he lach of trust to go on. r<«/.,7 0.H.--'4:i.-' owered his executors, of his lands to pay otl against his estate, xceutors, all of whom r executorial capacity consent, one of then. :nt of the estate and g from it, including the proceeds of the said sale, which he misap- j propriated. H. A. C, an executrix, joined in the conveyance to the purchaser for the sake of conforndt}', but did not receive any of the pnrciiase money, nor was there any evidence tiiat. she knew t l)alance remained in the hands of lier co-trustee after satisfying the '' deltts or encumbrances," or that he was inisaijjdying it : '• — Held, tiiat under these circumstances, H. A. ( '. W'vs not responsible to the estate foi' tlie nds- appropiiation by her co-trustee :— Held, also, : that even if she had been liable for the principal money so misappropriated, slie would not have I iiccn for the interest, inasmuch as the principal never came into her hands. McCartcr c. Mc- Carter, 7 < >. U. 24:i ; Burrows v. Walls, ;"> IMi. M. & (i. -ilW ; Podbard r. Cooke, 25 W. R. 5.")(), and Cowell r. (Jatcondie, 27 Beav. 51)8, dis- , tini^'uisiied. J'e Crox'lcr — Croirtcr v. Hbnnan, 10 (J. K. 159.— Ferguson. 5. Pfiiirr.i i)f. \. , on bis marriage, iiaving conveyed a certain farm (which was then under contract of sale) to till' trustee of his marriage settlement, provided tiiat the purchase money, if the sale was carrie. Iiaving the right of pur- chase under his lease, and having expended largo sums in improving the propei-ty. S. B. sub.se- (juently mortgaged to a ecrtiin comiiany, who solil under fiiroclosuro proi.'cedings to the plaintitl. The land through which such pii)os wore to run had been devised by one .M. to V.. H. M., bis w'fo, and three others as trustees. In 1854 ]•]. B. M. alone leased it to T. I>. for fourtoon years. In 1S54 T. B. lea.sed a strip eight feet wide by ()50 feet long to Z. , for the purpose of laying his pipes therein, for ten years, at a nominal rent, and both T. B. and E. B. -M., in that year, by separate instruments, covenanted witii S. B. tli.it she or T. B., if he should purchase the land under a provision in his lease for that purpose, would continue the lease to Z. for twentyono years, perpetually renewable, ;it a rent to bi' fixed bj' arbitration. Z. constructed thi^ reser voir, (ic, and laid down the pipes in 1854, and the town had been supi)lied by tliem ever sinci'. In 1864 E. n. .M. gave a further lease to T. P.. for seven years, and in 1868 she conveyed to S. B., the appointee of T. !>,, his father. S. B. mortgaged tf) a loan company, who sold under .i decree for sale to the plaintiil", stating in the ad vertisement that it was subject to tlie right of the defendants, who represented Z., to lay tlioir water-j)ipes under the lease from T. P>. to Z, After the expiration of that lease no further lease had been executed, but §12 a year was by agree- ment, paid as rent to T. B. and to .S. B. until the title became vested in the plaintiff, who re fused to accept rent or to recognize defendants' riuhts, and brought tresjiass ag.ainst them : - Ffeld, 1. That the lease of 1850 by E. B. M. alone was not binding on her co-trustee.s unless they could be .shewn to have agreed to it ; 2. That the right of Z. to get a l(>ase from T. B-, under the covenant of 1854, continueil as against T. B. under the second lease of 1 864; 3, That the defendants iiaving, under the covenants of T. B. and E. li. M., taken possession and con structed the works, which were of a permanent and expensive character, and for the |)ublic bene fit, and having paid rent up to tiie time of the plaintifTs actjuiring title, and all parties having had notice, and made no objection, they weie entitled to an injunction staying the action, and to a lease for twenty-one years, renewable at a rent to be fixed by arbitration or by the registrar of the court. Darin v. Leiw et at., 8 O. R. 1 — Q. B. U. VI. Cestui quk Trust. 1. Right to Possession oj Propert;/. The rule is that when property is devised to a trustee to pay the rents and profits to any per- son the cestui que trust is entitled to the posses- sion ; but where other parties have also a claim, it rests in the discretion of the court whether the actual possession shall remain with the cestui que trust or the trustee. Orford v. OrJ'ord, 6 O. R. 6.— Chy. D. C95 VAGEANT ACT. 696 J. O. by lii.s will iirovidcdaH follows : " 4. Not- withstamliiig the directions hereinbefore contain- ed, 1 desire that if my sou W, O. returns to 'I'oronto within five years from the date of uiy deatli, my said 'jxecutors shall hold in trust for liiui Irom tiie time of his return to Toronto said lots JS'os. * * subject to the existing life es- tate (if my saiil wife in a iiortioii thereof, during the term of his natural lile, and shall pay over to him all rents, issues and prolits thereof, and after his deatli shall divide the same between his child- ren in such manner as he shall in his last will and testament direct, and in default of such direction and appointment to divide said j)ropertj' eijually between them, conveying to each child liis or her share when, if a son, he attains the age vf '21 yeais, or a daughter attains the age of 21 years or marries, and in the meantime to a})ply tlie proceeds of the same to the support and maintenance of said children. " In an action by W. O. against the executors and trustees of the will, claiming the actual possession of the pro- perty of which he was entitleil to the rents and profits, it was — Held, that he was not entitled to such possession, and his action was disuilssed with costs. Whiteside /'. Miller, 14 Chy. 393, commented on and followed. Ih. ULTRA VIRES. Ste Constitutional Law. UNDUE INFLUENCE. ly it, and while in charge Held, that as the ks- pliedly warrants thiit purpose for -which it ibscncc of negligent e is, could not recovir. /.. 10 0. K. 649-4,'. a,nufacturer of steam were recommendeil lat the engine woulii 1 that the separator, therewith, would ncit ;, and that altogether ling machines in the il tliat after hearing sent a written orJei in engine and sepiira- ed defective, the or. id the separator wast- It out with the chaft ; coutract of purch:u-e en by him in payment ; and $300 damages, aving ruled that tht he coutract, but coukl . breach of warranty, een the machine con- hich was delivered- „ (juestions) that then- been broken and that a iiad sustained dam- ^0. Per Cameron, (.. aim on the pleadings ict not proved Ijy the -nt sht.uld be allowel on for breach of wai ^ a new trial. As t" I'crllaiiaity.C.l.O., claimed in the plead- ings were claimed upou the basis of a rescission of the contract and returu of the notes. Tlie (hiiiiages awarded were for a breach of warranty, tiie [jlaintitf keeping tile macliiiie and paying for it ; and tliere was evidence to support tiie lind- inji of the jury as to damages, I'er L'aineron, C. .1. C V. There was no evidence from which the phiintiff's damages for breach of warranty could ; |ji; reasonably ascertained, and tor this reason \ also there should be a new trial. The court be- ! iiii; equally divided, tlie appeal was dismi3.sed. Ellis V. Ahi'll, 10 A. U. 2'2li. ' I The defendant delivered a i>iauo to tlie plain- ' till' on a " hire coutract," tlie price beiug st ited i to lie .'iJ.'JOO, payable by creilitiug .*!100 on an old piano taken in excliaiigct, and the bal.inoe of $400 hymontiily instilments, the plaintiff giving a note {(ir the .5400, payable l>y like iustalincnts. Tlie '■ contract stated tliat the defendant did "neither i |jirt with ."aid jiiaiio," nor ilid tlie plaiiititf "ac- ' iiuire any title" to it until the note w.is tnlly ' paid. Certain iiistiliueiits fell due and payment ; w.\s enforced, and there were iiistalinents in ar- rear when action was broiiglit. The plaintitf: sued for fraudulent misrepresentations, and fori general damages for breach of implied warran- ties ; tlie alleged misrepresentations or warrin ■ ties being that the piano was worth $500 : that it was a first class instruiiient ; and as good as any Steinway or Chickeniig piano. The jury found for the plaintilF with damages: — Held, that as the property had not passed, an action for the breach of warranty ,vould not lie. Fri/e V. Mdlhian, 10 0. H. oO'J.— (J. P. L>. By a written agreement the defendants sold a thieshing machine forS'iOO.to the plaintilF, taking an engine in part payment of .'?'2oO, the balance to be secured by promissory notes. The right of possession was to be in plaintitf until default, but until paj'inent the right of property was to be in defendants ; with a warranty by defendants that with good management the machine would do good work and was superior to any other macliine ma,(le in Canada, &c. ; and if upou starting the machine, theplaintiff, following theprinteil hints, rules, and directions of defendants, was un.able to operate it well, he w.is to give defendants written notice of the defect, and a reasonable time was to beallowed defendants to get to the machine ami remedy the defect, unless they ould ailvise by letter ; but if they were unable to make it operatewell, &c., anil thefaultwas in the machine, tliey were to take it back and refund the pay- ments made, or remedy the defective part, but if the fault was through improper mauigeinjut or nejjlect to observe the printed, &c., directions, the plaintiff was to pay all necessary expenses incurred; and if, plaintiff observing such direc- tions, any part, except belting, failed during the .Viar, through any defect in material, the defeu- lints, on presentation at the manufactory of the I'fective piece, were to furnish a duplicate there- f'f, but defects in pieces were not to condemn I 'ither parts. Deficiencies in general adajtition I'lr threshing, Sep iiMting, &e., for which alone the iiuehine should be taken Ixick, must be report id I til lays after starting the m ijliine, and not after 'intiuued use or injury theret >. The deieudauts I'll, oil the pliintilF's coinplaint, attended and I mule alterations in the miehine. wliereupoii the I'tiiitilFused the m icliine for six weeks, .in I tlieu I ^.'Ut it bick to the defenlants, because, as the plaintiff said, it f.iiled to comply with the war- ranty, ami he had no further use for it ; but. as defendants uinlerstood, to be repaired. The plaiutitF di. R. 50!>, that as the property in thi' inacliine had not passed to the pliintitF, he could not maintain an action for breach of warranty, HeM, also, that the [ilain- tilF was not entitled to return the machine after the e.tpiration of the ten days, no notice in writ- ing of thedefeet conipl.iined of having been given ; and that tiie fact of the defendants' previous at- tendance to make alterations did not constitute a waiver of their right to such notice, as the evi- dence shewed that when plaintilF sent for defen- dants he did not intend giving notice with a view of av.iiling himself of the right to rescind ; and the starting under the contract must be reganled as that which took place after the n-iachine was so altered. Tomlinsoa v, MorrU H ai, I'JO. U. .311. -C. P. D. ^^oiinortkwh-kv. Yiiawj, 12 A. R. 671, p. 613; Dym-iU V. 'J'/ioiiison, 12 A. II. G59, p. 670. WASTK. ' Alterations in building by tenant. See Hol- iItwh v. Lawj, 11 O. il. 1. Right of tenant for life to cut timber. See Saiimkrs v. /ireakif, 5 O. R. 603 ; ,)fiinfiie v. Lindmy, 10 P. R. 173. See Wliif<' V. yellen, 11 S. C. R. 587, p. 402; Mill V. MUl, 8 (.). R. 370, p. 323. WATER AND WATER COURSES. I. Navi(!,\ble Wateks, 702. 11. FoRMi.vci Boundaries, 703. III. Ri(iUT.s OF R[PAurAN Proprietors, 704. IV. Rujiirs By Prescriptio.v, 707. V. Pennin'o Back Water, 707. VI. Pollution of Water, 708. !VII. Floatish Tlhiier, 708. VIII. LiAiiiLirv of MuNiciPALiriES yoR In- juries CVIISED BY STRE.IMS, UrAINS, OR Sewkrs, 70'J. IX. Drvis' vr.E By-la w,s — S'ee MunicipalCor- I'ORATIONS. I. Navicablk Waters. Held, in this cise, that the wharf being con- structed over the II ivigable waters of the bav, the license of the (^i.nmis.'iiouer of Crown Lands for the Province oi Outirio, oven if ho had p )Wer to gr,iut it, would not confer the riirht to iiupjse tolls oil vessels landing passengers ou the 703 WATER AND WATER COURSES. 70f to I I I wli.irf, for the public liail ;i right to roach the i s.iiil river to ono party, and the part lying S. i,r slidic over till! watifrs df Un: l)ay, ami ('. Iiriving I W. of the said rivir to the other j>arty : -HtM Ix'cii iiivitcMl, as it ajijHarcd, Ity the ipro])riet()rs ' that this wotdd carry the owiierKliip of the snii of tiaiilaii's i)oiiit to niii his vessel there he had j to the mid thnaci nf the river to the respective a riyht to land on the wharf which ])revciited his I ])arties, no eviden(!e i>f intention inconsistent i-eailiinj,' the island at that )ilace : - ','iiare, ! therewith appearing upon the inatrunient. /,',■ whether the soil at the Ixittoiii of the 'I'oronto Hay at the place in (piestion was vested in the ])ro\incc, or in the city of 'loronto tmdcr the jiateiit from the ( 'ri)wn of the island. Cltiiilrii- iihnj v. Tiinin; !)(). I!. :)4,-l'. V. U. V. at al. lironght an action of tort against \V. for having pulle.w«, 9 S. C. K. 2.S9. Professing to act under the powers contained in their Act of incorporation, 45 Vict. c. 100 (N. B.), the Q. R. B. Co. erected booms and piers in the Queddy River which impeded navi- gation — the locus being in that part of the river Avhich is tidal and navigable: — Held, affirming the judgment of the court below, that the Pro- vincial Legislature might incorporate a boom company, but could not give it power to obstruct a tidal navigable river, and therefore the Act 45 Vict. c. 100 (N. B.), so far as it authorizes the acts done by the company in erecting booms and other works in the Queddy river obstructing its navi- gation, was ultra vires of the New Brunswick Legislature. T/ie Queddy River Driving Boom Co. et al. V. Davidson, 10 S. C. R. 222. See Gardiner V. Chapman, 6 0. R. 272, p. 704; Wiirin I't al. v. The London and Canadian Loan aiidAi/ency Co., 7 O. R. 706, p. 705; Natte, v. Booth, 11 0. R. 491, p. 706. '/')■( nf I'lil/ii/ ('ii)iiil mill /.mill Kxji)o/)riii/eil ,/• Fmr/un /V//,s I'J (). R. l.")4.- l!oy. 706. IL Forming Bo'indabikj. Where a river flowed diagonally through a certain lot of land, and the owner of the lot granted the part thereof lying N. or E. of the III. Kkmcis ok Rh'ahian Pkoprietors. ( '. the owner of two lots of land divided in one place by arty : -HiM, •iierKliip of the Sdil r to the rcspcotivo •nti. was entitled to abate: — Held, 1. That the waters covering said lot si.'ven- ti'on wore part of tin; navigable waters of Lake Ontario, anil the same law w;is applicable tlieieto us in the case of tidal waters, in the absence of a v;ilid grant the soil being vested in the Crown and subject to tlie jus publieum of navigiition ; '.', That the 2,3 Viet. e. 2, s. .T). (I!. S. ( ». c. 2;{. s, 47,) gives to tlie ("rown authority to grant water lots, and the grant of water lot seventeen l>y the description, "land covered with water." was valid under these enactments, and sntliidc'iit tn pass to the grantee and his rejireseiitatives the soil and the jus publicum for navigation and the like in the water, which could In; built upon, tilled up, or otherwise dealt with, as might bt; thought proper; 3. That so long as.X.'s water was unenclosed or unoccupied any one might pass over or across it without being liabl(! to be ti'e:itod as a trespasser, and an etisement such as that claimed cannot therefore be acquired ; 4. That the claim to an easement wa.s not founded wi an enjoyment nee clam, nee vi, nee jincario, and was therefore not as of right, and could not In; sustained ; 5. That the evidence shewed the U'cr of the plaintiCFs 's water lot was not as of right, and the finding of the jury was warranted i)y the evidence ; (5. That neither the erection of the wharf nor it.s long use, nor the ereetionof thu elevator, shewed audi a claim of enjoyment as of right as to satisfy the statute ; 7. That in any event the claim was of an easement in gross, and therefore invalid ; 8. That the ver- dict upon the evidence set out in the report, shduld have been against the defendants in any tfveut, because they were not making use of the waters for the purposes of trade and commerce when they anchored the vessels upon the lot ; !). That the patent to the city of Toronto of the water lots, contirmed by the esplanade legisla- tion, gave to the owners of water lots the right ti till in their lots, and turn them into land. Ilan')! et al. v. The London and Canadian Loan o.'1'l Agenci/ Co. rt al., 7 O. 11. 706— Q. B. 1). .\tiirined on appeal, 12 A. R. .327. J. A. was the patentee of a certain water lot 'M the Kiver Ottawa, and the description in the ptuiit covered the lot and two chaii s distant imiii the shore, but a reserv.ation was contained tiiufciu " of the free uses, passagt! andenjoyiin'iit rf, in, over, aiul upon all navigable waters that 45 shall or may be hereafter found in or nndijr, or be Howitig through, or upon any part of the sai I parcel of land hereby granted. " The said water lot was subse<|iiently conveyed to .X. I!., but the (le--ciiption in the deed to him only went to the water's edge. 'i"he pl.iintilT al.-^o set up that he had a right by prescription to keep ami use a li:itent is to coiLvey the dry l:uiil and the land coveted by water two chains out, subject to the rights of the public in the Ottaw.i as a navigable river. .As to the land bordering on the water the plaintiff is a rip.iri.'in pi'oprietor. and has the right to have' the water in front ot him open for all navitf.ible purposes, and to enjoy it free from extraonlinary impurities. iOveii if the land under the water is vested in the plaintill s 'jrantor he could not (lerog.ite from his gr:iiit to the water's (mIljc liy jiollnting, tilling; up, or otherwise cutting off his grantee trom the beiictii'ial enjoyment of the river, still less can tlu! defendants be pro teeteil in their wrong-doing. The grant to the p.iteuteu of the river-licd two chains out, carries, ;is parctd of it, the Wiiter thereon so that the bed, the bank, ;ind the water ;irc vested as private jiropi rty in the p:iti'ntee, subject to tlie servi- tude ot a common public right of way for the piirp. 703. i IV. I'lOHTS RV PRKSrmiPTIOV. Scliil .-niiiiin;, per I'rimdfoot, J., that tlie rif,'ht to foul the atreiiiii could not ))o iieijiiired l)y the defeiiiliiiitH l)y a user of twenty years. I'an Idj- ' iiioiiil V. 'J'/ie i'vrpiintlioii oftlit Town o/Sea/orih, « O. R. 599. I Hfhl, that any structure on the water even if ] existing for twei\ty years, would lie an interfer- cnee with the free use of tlie river reserved hy 1 the Crown and the right to so interfere, could ; not he ae constructed. The defendants, in driving thiirj logs and timber down the stream, used all tin slides and imj)rovements. In an action for tollsi for such user: — Held, following Caldwell v, McLaren, 9 App. Cas. 352, that as to all slidril and improvements constructed in the bed of tli'; stream plaintiff could not recover ; but — Helil.l also, as to all such improvements outside tlifl channel, and upon plaintiff's land, that a recovenf by the plaintiff was proper. Held, also, that tin; absence of aprons of the proper statutable dinun-l sionsupon plaintiff 'sdams across the riveratfonit defendants no ground for claiming the right to ii-J without compensation plaintiff's improveiiajii not in the bod of the .stream. Boale v. i)icksni!,| 13 C. P. 337, remarked upon. Mackey v. .sVe man et al., 8 O. R. '2S.—Q. B. D. See 47 ViJ c. 17. See The (Jiieddi/ Rirer Drlvini) Boom Co. et V. David.ion, 10 S. C. R. 2:!2, p. 703. WATER AND WATER COURSES. •10 water from Rl.i> k 11(1 thus into Lak( orniatioii of l'l:i'k , Jnhu creuk tlui, at high water ilui nto Lak' St. .lolm i and (icht;r lamlfi at jihiintitV coiiteiiik'l in tlie river li.mk )nnight down tlian tinji the wn.ter fri'iii m^jer tb=.n it othir thus caused the dam- (juestions were iint liere was no lindiiiij cause of damai^e, i: L'ak in the river iiaiik. ntiff :— Hehl, thi iv \v trial to aseert.'\iii , was caused by suih river bank ; ami, i: lult of negligence i.i ether there was any irt of law attachalili' rhether the comijni ; plaintiff's land in't r any right so to d» Clarke v. Th<: Hauv, y (Limited), 9 0. i: S. C, R. 425, p. 704. OF Water. 'he Corporation of tU 599, p. 710; Gmn v, 'own of Dundas, 11/'■ V). B. D. See 4/ \>J r\r\n(] Boom Co. e( '' 11, p. 703. VIII. Liahii.itv ok Mi'nk ipai.itiks for Is- the defendants, having passed a by-law to deepen .lUKiKS Cai'skI) iiY SritEAM'S, I>HAINS, the Maid creek, tlirew down tile iifiiintirt's ffiu'cs. uii Sf.wkus. entered iinon Ids land, and threw upeartli from . -^ ,11 ^ , , , , ■, , the lied of tlie creek and ii'lt it there :--Ueld, After a block pavement had been aid .lowu ,utirmin^' the decisi.,!, of l'roudf(M,t, .1., that the .,„ )ueen street, one of the UH.st travelled streets ,,^,^i„^ „„j i.^.j, , ,.o„«tructed under a by-law. the ,,. the city of lon.nto, a dram about two and a ,,i,,i„ti,j- ,^..,, entitled to inaintain an .-xctiou for half feet wi.le was „pened out across tlie street },^^ j^j,,,.^. ...Htjuned, and for an injunction, and was not compelled to sue those wlio had di.s- ti) the street railway tracu, and then tunnelled luiiler the tr.'ick It was tilK'd in with lnose e.irth not rammed down. On .Sunday it rained, ill conseciueuce of which tiie earth was washed iliiwn and sunk, leiviiig a very dangerous hole. (In Tuesday or Wednesday some ivyidents in the iieighliourhood, seeing its dangerous condition, took some cedar posts and placed them length- wise ill the hole. On Thursday night, aliout nine o'clock, it iieing very dark and no light at the drain, and the street lamiis not being sulH- eieiit to shew it, the plaintiff, ids wife, and aii- (ither person, were drivi. g along the road, and (111 reaching the diiin the liorse stumbled and fell, whereby tiie plaintitt's were pitched out of the waggon and injured. The jury found tiiat the accident was caused hy the wheels of the waegon coming in contact witli the drain. The diarged the otiensive matter into the drains, nor to seek ids remedy under tlit; arbitr.itioii clauses of the Municipal Act, nor to resort to mandamua to comiitl better dr.iinage : — Held, also, that damages for the trespass on tiie plaintiff's land could lie recover" ' by action, as the corporate jiowers under the by-law for deepening the creek might have been exerciseil without the ('(immis- sioii of the trespass ; and this, too, notwithstand- ing that the work was done under and liy means of a contrai'tor, who, however, was not an inde- pendent contractor, but worked under the super- intendence of the council. VnnH'iinoiKl v. Thr. (\irpomtion tif llm 'J'oirn of Sid forth, (> O. R. 591). --Chy. I). A drain w;i.s coiistructecl by a municiiial cor- (kl'eiidants contended that it was caused by the poratiiu, and by reasdii. as was alleged, of the waggon coming in contact with the posts, and as negligeni •': cairy away the water brought It was agreed on the aigument in the Divisional down it as wa intended, or by reason of an ob- L'liurt, th.'it the court might draw inferences of structioii negligently allowed to remain therein, fact as a jury, and give such judgme;it as in its view the evidence might warrant ; — Held, that cm the evidence the defeiidaiits must be deemeil to have had notice of the condition in which the drain'"!" (' the time of the accident ; and there L'rth (I tl 1. .' ■, i„ R W V V I) ' ^'^" certain drainage works constructed by ' ■ . • • them the defendants had caused an increased Many years before the defendant municipality (piantity of water to flow into a creek running was laid out, a culvert was constructed by Z. on through his lands which were situate in an ad- private property for the benefit of a railway joining township, and which had conseiiucntly aimpany whose lauds adjoined the stream in been Hooded and damaged, partly from the access question. By reason of the culvert, the water of water sent into the creek, and partly from the brought down by the stream was not carried off, increased velocity imparted to the How of water but overflowed the plaintiff's land. The stream into the creek : — Held, that M. was entitled to was the natural drain for the surrounding couii- ; an injunction restraining the increased flow of try, but the defendants used it to a small extent water into the creek, anil also the increased velo- for the drainage of the town. It was found that city, and to a reference as to damages, and that the flooding would not have been occasioned by he was not bound to [iroceed by way of arbitra- the water brought down through the defendants' , tion under 46 Vict. c. bS, (Ont. ) ss. 590, 591, Init user of the stream, but that water brought down was at liberty to seek relief in the ordinary way from the area drained, apart from the defendants' by action: — Held, also, that the fact that the user, would have alone caused the damage : — by-law under which the said drainage work was Held, that the defendants were not liable. Laiv done had not been ijuashed, did not prevent the w The Corporation of the Toiun of Xidi/ara Fdllti ; \}\a'\ntiii' from bringiti;,' this action. Malot :. liiimiield v. The Corporaiion of the Town ol' Xia- prd Falls, 6 O. R. 467.— C. P. D. i I The defendants constructed a number of drains ' ill their town, discharging into a creek running tiirougli the lands of the jilaiiititf, which dr.iins fiiuducted ii. ((uaiitity of bi'ine or salt and refuse ii'iini salt manufactories in the neiidibourhood The C'or/ioi-a/ion of th Township of Mtr.^ea, 9 O. K. 611— Chy. I). The plaintilf's house was drained liy a private drain into the street drain, which was nenrto but did notexteiul as far as his house. L,. who alsohiul a house drain e.mnected with the street drain, put a ''ratine' across it near the connection with the iiitii the creek, and rendered the water lilthy and priv.ate drain, which obstructed the street drain, unlit for drinking, and also corroded the ina- an I dammed back the water and sewage through tiiiiiory in the plaintiff's woollen factory. And plaintiff's private drain into his cellar and dam- 711 WAY. '1: s i ^ aged the plaintift 's premises. The nature of the obstructidii was known to the plaintitlbut iifit to the (lefiMuhmts, and the plaintitl" did not notify them tliereof. 1'liere wa.s no liydaw compelling \ projjerty -owners to dr.iin their premises into the . street drain, and their use (jf it was entirely voluu- taiy. There was no fomjjlaint as to the insulli- cieney or eonstruution of the street drain. In an action hy the plaintitl' against the defendants for the injuiy sustained hy him : — Held, that the defendants wt.c not liahle. M<-<'ouhii d (il v. ' 7'/i(' '•.'oriiiirul'wii roprietors useil an old cellar as a reservoir for the noxi(]>is matter ; liut which, it Mas alleg-'', tiltered tlntiUgh from the cellar into the dr:nn and so into the creek. 'I he drain, witluiut the inliltiation into it from the cellar, fnin which it was twenty-.'-ix feet distant, (onviyed nothing injurious into the creek. The jilaintdf, a ri})arian pro))rietor on the creek, having a factory there, claimed that hy reason of fucIi f(iuling he was prevented from using the watei' of the creek for domestic purposes or for his factca-y, and brought this action against tiie defendants thertfor: — Held, that defendants Mere not liable ; but that the liability, if any, was on the scrtM' tactoiy. \'an Kgmond c. ('oii)oration ot Seaforth, ti O. K. soil, distinguished. Utiajw Tin' ('orpvrutivH nf (h, T„in, o/Jhimhis, 11 (). R. .'317. -C. P. D. j Aliirmed by the Court of Appeal, l.'i A. K. 5S8. | 1'he apptoaches to a bridge built over a river weie supportew land uidil it fell into the rivei-. 1'he municipality subse(|uently tilled in the tiestle I work and i!;ade a solid endiankment there v here- | by the water \\ as penned Ijack, and sent dow n in I a greater body and m ith greatei- force in the; regulai- channel, by reason whereof a gicat part of the bank of the river upon' which the pi lin- tifl's factory was erected, Maf washed away .\m\ was* being so washed away from year toyeai . — Held, that as the work was done by defcndai ts in such a way as to occasion damage to the plaintiff, whereas it ctmld and should have been done without such efl'ect, this was a nnitter in which the plaintitl' must prosecute his rights by actum, and was not the subject of compensation under the arbitration clauses of the ilunicipal i Act. The land in respect of which the cliiim ■was made was mortgage': — Held, that the mortgagee was not a necessary party, the pro- ceeding not being f repair, the jilaintiff, mIiosc lands were injured thereby, notified the council, calling upon tin ir. to rejiair, which thev omitted to do : — Held, aliirming the judgment of the (,». R. D. (2 O. W. -87), that the ])laintitt' was entitled to dama,L'i - in respect of his lamls so injuriously atVeeted, tin- result of such neglect to repair ; tiiat the ca.T came under s. .'')4'_', R. S. (). c. 174 ; and that it it did not he would be entitled to recover nndi r section M\\. for the neglect of the statutory iluty to re]>.'iir as directed thereby. Wh'iti' v. '/'/■ Corjtord/ion uf tin- 'i'lnrn.iliip of llosflilil, 10 A. H. In iiursuancc of the powers conferred by .■-.•i, ;");■)] and Tjo.S of the Municipal Institutions Art. 1!. S. (). c. 174, the counsel ()f the defendant municipality passed a by-law authorizing tli' juiving of F. street with cedar blocks, mIui h Mork was proceeded Mith, hut executed in surli a manner as to eausi; water to flo\v over and rot u])on the lands of the plaiiuitl':^Held, atfiimiu;; the judgment of I'roudfnot, tl., mIio found that the work had been negligently performed, thut the plaintitl Mas entitleil to recover the anioiuit I of damagis sustruned by her, and to enjoin tht defendants from further overlloM'ing her lainl: and that in eonse()Uence of such negligence lur )iropir remedy Mas hy action, not liy a proceediiii: I under the statute for c(imjiensation. J\Ic(i'aro,i | V. Till Ciirjioratli'H of tht Torn of Stratliroi/, 10 A. R. tiSl. Reference under the Municipal Act. See /<• ?v //iiili/foii mill till' Corpiirotion of the Touiifln. of Jiomnqtii ^ 1 1 O. li. '>S\), p. 4(it) ; //( ?v Smith mf' the ('orj'ori'iinn of the Tomiship of I'hjiiqiton, \'l U. R.'20, p. 4(il). WAY. I. Creation of. 1. Lai/inij out Public lioads hy Prinik I'eifionK, '1'2. 2. Private Way, 713. II. HiiiiiwAY.s, 'Vfstkd jn Crown, 713. III. PoMi:i!S, Duties, and Liabilities (FJ M INICIPAL CuUPORATIONS. 1. Ari/inrinij Poad.s, 714. 2. Ojieniuij Rorids, 715. 3. Closinij Koads, lit}. 4. L'epairiiiij Boiifl.i, 717. ■'). LiiihiHtji I'or Danwjes in Constructh) Ji'uiiih, 718. 6. LiidiiUti/ fu) Injuries on Hoads, "19. IV. Road Cumi-anie.-^, 721. V. Tou.s, 721. YI. OiiHiRicTioN OF Roads, 722. VII. MisrEi LANEors Cases, 722. I. Creation of. 1. fiiijiiiij out I'lililie Ji'iKiil.i hy I'rlrate Perm>\ See liU!i.< V. Poirkh it iif, SO. R. 4.")1, p. 4:o[ Carey v. The City of Toronto, 11 A. K.416, p. t)'--| W'al , ■■'"« |atH,l I .iisat :the \l r l-ui. puli l^'^'-'ly, ;:iMiigl hiorefc s:i.l fr( J'liiiiei jf'iM'iat 't nil , 1- ivfir ii' 22 \ I'i'Jii til 'iOiiti lin or Ju 71-2 nninicipality wholly ving falltu into ili> lands were injurtil ,, calling Ulion tlu ir. Dted to do :— Hiia. L.ntitk'd to daiiiaL'i - iviouslv atVoctcd, tlic 713 WAY. 7U >pair ; "ti;at the can e. 174 ; »"'^ t'"" '' k'(i to recover uii'Kr ^i the statutory duty chy. ir//(^' V. TIf ,oiao.-t ititY:— Held,aftiinini: t, .1., who found tli^it 'ently iierfovnicd. that [„ recover the aniourit licr, and to enjoin tli, overflowing her hiiia ; of such negligence lur on, nothy iilJrocecdniL iicnsation. Mc(j(irv\ I//., 8 0. P. 451, p. ^I l»^o,llA.R.416,p.t)' 2. Private Wdy. S. by his will devised his farm to trustees, wlio divided up the property into six several parcels, designated parcel 1, parcel 2, &u. ,accor- ling to a plan which was registered, and hy con- temporaneous conveyance under the Short Form Act, conveyed the parcels to the testator's six Mirviving children. The description of parcel 2, mchuled the lane in (piestion, descrihed as a ii^'ht of way, the use of which was thereby re- jcivcd to the owners of parcels 4 and tj, to which It was a way of necessity. J'arcel 'A, which ail- nined the way, was convejed without any nien- ti.iu of the lane. During tlie unity of title some ;.irui l)uildings stood upon paicel '.i, adjacent to '.iie lane in (piestion, wliicli was used as a means it ingress and egress thereto, but they had long .nice disappeaied. Jiy tlie Short Form Act, 1\. ^. (). c. 102, s. 4, every deed, unless an exception !«.• made therein, shiill be held to include all ways, casements, and appurtenances whatever to the liuds therein comiirised, belonging or in any wise ,i[]iiertainiiig or with the same, held, used, oc- . ijiied, and enjoyed ; — Held, thit the defendant duiiiiing under the grantee of parcel 3, could not .laim a right of way over the lane : that s. 4 of •.he Short F'orin Act could not, under the cir- uiiistanees, be deemed to apply : thai the right f way was not a cuutinuous easement, or way of i.Lvessity ; and that plaintill's right thereto was imt Ijarred by the Statute uf Limitations : — Held, a>o, that the defendant as owner of a part of l.arcel 4, could not claim the right to use the way ; appurtenant to parcel 3. Matvilmn v. t'asci, loll. u. ois— c. r. \). In an action of trespass (j. c. f. the defendants ;usiitied under a reservation or exception in a liiccd through wliioli the jilaintill' claimed title iiiil in which tlic ilescription of property was billowed by the words, "excepting aiul reserv- | ;ag a rigiit of way or road allowance of two rods width along the south side of said lot": — llhlil, that tills was only a reservation of a right ■: way to tlie grantor and not an exception of Itiif soil. Wrhjld v. Jiic.k.'iOH et <(/. , 10 <). R. Ilji-Q. B. D. ■ See Ne'jiiia v. McDonald, 12 0. R. 3Sl,p. 3S2. II. Hi(j)i\VAVs Vi;.-,TEi) IN THE Crown. LV'itain lands on which were two roads calleil Water Street " and "The Road to the Wharf,"' .iiig reijuired for public works, were expropri- |a!H(l liy the Dominion (lovernment, and tlie com- 1 iisatiou therefor was claimed by the corporation ; tlie village in which the roads were, anIAIULITIES OK MlNICIl'AL COHI'OKATION.S. I. Acijuiriiiij J,'i'(uls. A road ran between several townships in the defendants' county, and was constructed by a joint stock comjiaiiy. In 18()<), tiie defendants purchased the right of tlij road company in the roaoratioii of the County of Pi-rth,'\S(). R. 195— C. 1'. D. Qua're, as to the jurisiliction of a local muni- cipality ovei a road running within one or more townships or through more than one township. lb. 1'. owned a small piece of land at the south end of a lane or street calleil Johnson street, 26 feet wide, in the city of Toronto, leading from Adelaide street to King street, extending nearly to the line between these streets, and cmitinued to Iving street by an irregular private footway. M. and T. owned the adjoining lots on King street, extending back to the centre line, and I'. had refused to sell his piece of land to them. They then, with other owners purporting to be owners of adjacent land, petitioned the council under the local improvent clause of the Munici- pal Act, reciting that they " were desirous of securing communioatiou between Iving and Ada- 715 WAY. 716 I I I laide streets for vehicles by means of the above street, and certain lanes to the south thereof," and asking that said street might be opened up of tlie full v.idth of twenty-six feet from Ade- laide street to the centre line of the block Ije- tween King and Adelaide streets at the expense of tlie propertj' benetiteil. The sub-committee of the c(nincil, to whom this petition was referred, and l)efore whom tlie plaintiff had ajipeared to oppose it, said that nothing further should be done without notifying him, but a'oout eight months afterwards, without any further notice to him, they passerl a by-law opening up the lane to the centre of the block as prayed, but making no provision foi' extending it to King street. It was shewn that M. and '1'., through wliose land such extension would pass, had re- fused to give a riglit of way for vehicles, as expressed in the petition, ami had agreed tfi pay all costs of opening the lane : — Held, that the tjy-law had been passed improperly, not in the public interest, but in that of M. and T.; and the corporation, on the application of 1'., was enjoined from proceedinu' under it. I'diH v. JJom-c/l H at., b 0. K. (JSO.— Boyd. 2. Openinr/ Hoads. It is discretionary with and not obligatory upon a municipal council to open a road allow- ance, and the fact that a by-law has been passed does not create such an oliligation, and a manda- mus was refused. Jx'e Wilson v. Wa'tu/lett, 10 P. R. 147.— Rose. A by-law to establish a road nuist on its face show the boundaries fif the road or refer to some (lf>cument wherein they are defined ; and the in- tention of the framers of the by-law cannot Ije ascertained by extrin.iic evidence : — Held, there- fure that a by law, to establish a road on a blind line between two concessions in the plair.tifi's township was, Ijy reason of such omission, in- valid ; — Held, also, that there was not sufficient evidence given of statute labour having lieen per- formed on the road, sc as by reason thereof to make it a highway. The Corporat'con of the Township of ,S(. Vincent v. Greenfield, 12 U. E. 297.— C. P. D. Held, that an action claiming a mandanms will lie against a nnniicipality for not opening an original allowance for road, by reason of which the occupant of land cannot have access to and from his laud, to aiul from a public road, if there )>(^ no other convenient way to and from his land, and if there ))e no good reason, in respect of means or otherwise, why such allowance should not be opened, and if the work re(iuired to be done for that purpose be worth the outlay required to open ami maintain the same, lllslop V. Tht Township vf McGdlivray, 12 U. R. 749— Q. B. I). Held, that although the n;unicipality must be allowed a very large discretionary power to ilo or not to do such a work, it has not the sole and uncontrolled right to avoid doing it. Held, also, that if the claim made had been proved as stated, a new trial would have been granted, for the facts fouiul by the jury were not war- ranted by the evidence. Ih. \ Where the owners of lands, adjoiriing original road allowances, laid out roads ou their lands which were used as public roads for upwards of eiglity years, the original road allowances beini; I all that time in the occu))ation of the owners . a presumption that compensation had been puiil to them for the roads so laid out : — Held, afiiriii- ing the judgment of Osier, J. A., 8 0. R. 98, thnt the presumption was that the original road alldv, ances had been taken and used in lieu of the ro,i(i- haid out by tlie owners through their lands, m\A that a by-law to open up the original road allov, ance as of right, was invalid, Burritt v. Mar! borough, 29 Q. B. 119, approved; Cameron Wait, 3 A. R. 17"), cxiilaiiied. Beemn- v. '/'A. Corporation of the Villaqe of Grinisliy, 13 A. 1' 22.'). It was contended that since the passing of 41 Vict. c. 24, ss. 15, l(j (Out.), the only reiiRil\ for persons claiming an interest in a road allow ance was by arbitration to fix compensation ;- Hehl, tliat the Act only ap]ilies to the case wlit i. the council have in good faith intended to opti, a road allowance, but by mistake have not doiu 80 on the true line. S. C, 8 O. R. 98. Or the 13th November, 1883, the Judge of tli.. County Court of the County of Halton, in which county the lands mentioned in the report werr situate, afterhearingtheseveralpartiesintercj-tiii in the said lands and the streets thereon made an order altering and amending the plan thereof by closing up and declaring closed certain streetV and parts of streets. Notwithstanding such oi ikr the council of tfie defendant municipality on tin "ith of December, 1883, passed a by-law accept ing and declaring open some stieets so closiii. and authorizing and directing the road coniiiii- .sioner to remove all fences and obstructioi.- therefrom ; whereupon the plaintiff moved fn and obtained an order nisi to quash suchby-Iavi. which upon argument before Hose, J., (7 < >. ll 192,) was made absolute with costs. On apjK.ii to this Court that order was afiirmed, and th cip)jeal dismissed, with costs. Sections 82, Ml, 84, 85 of the Registry Act, R. S. O. c. Ill, an/i sections 525, 527 of the Municipal Act consiil-Jiiii. /)( Jif U'aldie and the Corporation of the Fi7/i''. oj Burliwjton, 13 A. R. 104. 3. Chmmf Roads. A by-law was passed by the defendant nnir.i cipality to close up and grant to a railway con pany a ])ortion of a street, by which alone tlv ajiplicant had access to a piece of land sold .iiir conveyed to him by the municipality at a tax saK . without providing other convenient access to th' land, The land was unpatented, but the \\\\\\\\ cant had paid all dues to the Crown Land IK partment. The liy-law was objected to on t\v ground that it did not provide other convenieiii access to the land : that a month's notice of thi passing of the by-law was not given, the iiotioi having been given on the 28tli of ^larch, for tin 28th of April : that it provided for arbitration hy the mayor, and by two persons, one appointed hy the railway company and one by the applicant, a mode diti'erent from that provided by the statute ; ; and that the award was to be made within nm month from the date of passing the by-law instea'l of one month from the appointment of third ar- bitrator: — Held, that all the objections were well 716 717 WAY. '18 ads for upwards of I allowances beint; II of the owners <■{ ated as their own ,s adduced to niisi- tion had heen pidil )Ut :— Held, afliriii- A., 8 0. R. 98, thnt original road all(j\\ ■ I in lieu of the roads ,'h their lands, and )riginal road allow . Burritt v. Mail roved ; Cameron d. Ilei-mcr v. V'/i. ' Grhiisliy, 13 A. 1'. ce the passing of 41 ), the only renii.(l\ est in a road allow • ix conipensati(jn :— les to the case whir, th intended to opuu itake have not dom 8 O. R. 98. 183, the Judge of til.. of Halton, in whitii in the report wii. ral parties intercMi.i ;ets thereon made ai; ,' the plau thereof l.y losed certain strttt- hstandingsuchnnl,: ; municipality on tli. ised a by-law accept 16 stieets so cloati';, ng the road coniitu- .■s and obstructiiiK- plaintitf moved l"i quash such by-law , Itose, J., (7 0.]\. [\ costs, ihi apiMiii as affirmed, and tli Sections 82, S>il. S. O. c. Ill, aii'i ipal Actconsid'.rt.i. vtiun of tht Villiiy he defendant nnui; it to a railway con ■ by which alone th. ;ce of laud sold aii.i cipality at a tax sali iveuieut access to tli. jnted, but the apiiii lie Crown Land l>i objected to on tin ide other convenient nonth's notice of th. nt given, the notic. th of March, for tlu ed for arbitration In ns, one appointed hy .e by the applicant, .. vided by the statute ; le made within om ig the by-law instea.'i intment of third ai- objections were well taken, and that the by-law was invalid. Held, also, that the applicant had sufficient interest in the land in (juestion to entitle him to apply ; and, at any rate, the municipality were estopped by their conveyance from setting that up : that an applicant atiectcd by such by-law is not bound to wait until the road is actually closed before com- ing to the court. Jn re Lapluiite and the Corjior- iiiion of the. Tuwii <>/ PeUrburowjli, 5 O. R. 634. — Rose. Qua're, whether there is any power to close up a load of the nature of the one in this case, run- ning through more tlian one municipidity. Ilrw- isoii V. 'i'/ip Corpornthn nf' the Townsliip of Pein- Wohr, 6 U. R. 170.— Rose. A municijial corporation passed a by-law to close up a Jiighway, but the notices of tlie intended by- law, rei|uircd to be given under the "(.'onsolidated Municipal Act, 1883," were only published for three successive weeks in a newspaper instead of four, as required by sec. 541) of that Act, and it was not shewn when tlio six notices required to he posted up were posted, nor what they or the advertisement contained : — Helil, in an action for Iji'eaking down fences across the road closed up under the by-law, that the notices reipiired to be given were conditions precedent, the due jicrform- aiice of which were essential to the validity of the hy-law. Wonnamaker x. (iretnet ai, 10<). R. 407.— Q. B. D. Held, that a by-law closing a road across a lot when there was more than one road was void for uncertainty in not shewing which road was meant. 4. Repairbuj Roadi. Held, that a prohibition would not lie to the Fourth Division Court of the District of Mus- koka, no notice having been given as required hy 4S Vict. c. 14, s. 1 (Unt.), amending s. 14 of 43 Vict. c. 8 (Ont. ), disputing jurisdiction of said Kiiirt ; and that in any case prohibition would iii.t lie in this case, the title to tiie road, upon wliicli the injury complained of arose, not being ill (|uestioii, the road being a cohini/ation road l.uiit by the government before the organization of the townships of Medora and Wood as a munici- |iility, and the question arising not being one of title but of liability to keep in repair a road so i.iiilt. Per Wilson, C. J. The road in question was a colonization road vested in " the Crown or in a public department or board," and which had noi been renounced by proclamation, and the municipality were not bound to repair it. Jn re. Knii/ht V. The United 7'own.shipa of Medorn and Wood, no. R. 138.— Q. B. D. Affirmed 14 A. R. 11-2. In an action against a township charging, (1st) tlic stopping up -I a highway, thereby prev< nt- iiig access to plf.ir.viff's farm ; ('2nd) the obstruct- ing of a highway, thereby, &.c, ; (3rd) the not nuiintaiuing and repairing a highway, thereby, ic, it appeared that the part of the highway in iiuestion was part of the original allowance for road which had never been opened or made fit for travel, and that physical obstacles prevented its being made tit for use except at a very large expense. It also appeared that the defendants had procured anotiier site for a road, by which the plaiutillhad access to and from his property, although not so convenient to him as the road in question if ojiened up would be : the defendants, however, had, in eiuleavouring to procure for the plaintirt" a more suitalile road to the east, been preventeil by him from doing so, a road to the west they still oll'cred to him : — Held, jier Wil- son, C. J., that the clefendants were not liable under the circnnistances for not niaintainiiig and repairing the road. I'er Armour, J. That the locus in quo, though a highway in law, was not one in fact, and that the action would not lie. I'er O'Connor, J., that the action was .sustainable in law, and the verdict was sujqjorted by the evi- dence. I/is/n/) V. The Tuimthiji of McO'illivrcd/. 1'2 O. R. 749 - Q. 15. D. An appeal from tlie judgment of Rose, .T. (not reported), dismissing an aiiplication uiucer 4(j Vict. c. 18, s. r>35 (Out.), tor a mandamus tf) compel the repair by the county of Haldimaiid of an existing bridge or the construction of a new one over the Oswego Creek, where it crosses the boundary line between the townships of Moulton and Haldiina..il, liy reason of the judges of this court being divided in opinion, was dis- missed. I'er Hagarty, C. .). O., and Oshr, J. A. — Indictmont was the appropriate remedy. The court below had the right to grant the writ in its discretion, which was, however, projierly exercised in refusing it. Per Burton anil Patter- son, JJ.A. — The duty under the statute is not the general obligation to keep highways and bridges in rejiair, but is a specitic duty like that cast upon railway comiiaiiies by their cliarters with respect to the restoration of roa'ls or the building of bridges. Tlio existence of liability to indictment docs not of necessity exempt from compulsion by mandamus any p.'irty charged hy statute with a specitic duty. Indictment would in this case be neither a specific nor an adeipmro remedy, and a mandamus should liave bfun granted. The demand made upon the county council previous to the application was suthcient. I'er Osier, .1. A. — The demand was insufficient. Per Curiam — The county council were liable for the non-repair of the bridge in c|iiestioii. Jn r,, J'he (Jorpnration-iofthe J\iirn>ihiji-< af Mmdton aii,i ('aiihoron(/h, mid thr Corporr.tion of the ntijiif JIaldimand, 1'2 A. R, 503. "' 5. L'whiUty for Danavje.s in Constructing Jloadi. In pursuance of the powers conferred by ss. riol and 5r)3 of the Municipal Institutions Act, R. S. O, 174, the council of the defendant muni- cipality passed a by-law authorizing the paving of F. street with cedar blocks, which work was proceeded with, but executed in such a manner as to cause water to flow over and rest up.iii the lands of the plaintitf : — Held (affirming the judg- ment of Proi Ifoot, .1., who found that the work had lieen negligently performed), that the plaiii- titr was entitled to recover the amount of dam- ages sustained by her, and to enjoin the defend- ants from further overflowing the land ; and that in eonseijuence of such negligence her pro- per remedy was by action, not by a proceeding under the statute for compensation. Mcdarx-eij V. The Cor/ioration of the Tov:n of Strathroy, 10 A. R. G31. The corporation of the city of Toronto, in the exercise of its corporate powers, necessarily raised the sidewalk in front of plaintifi 's premises '19 WAY. 720 i I whereliy, as was allegeil, the plaintiff's pre- mises were injuriously affected, he having had til raise his premises to the level of the sidewalk. J II an acti(;n to recover the expense occasifuied theruliy : — Held, on demurrer, that this was not the subject of an action, hut for comjiensation under tlie arliitration clauses of the Municipal Act, ISH'.\. Allium v. 'J'fif Corpm-afion of the Vily of Toronto, VI O. II. 243.— Wilson. By a special Act of the legislature of Ontario, 45 ^'ict. c. 45, provision was made for the construc- tion of a su 1 1« ay or subways as a means of crossing lertaiu railways entering tlie city of Toronto, ])art of which had to he constructed witliin the city, and part within the aiijoining nuinicipality of th« village of i'arkdale, and inconsequence of a disagreeni''nt lictwccn the city and the village as to the terms upon which the un. Town ofOakville andChiiholm etal., 9 0. R. 274. Traction engines and the use of steam power on highways. .See Thu Corpondion of the County of York V. The Toronto Grarcl Road and Concrete Co., 11 A. 11. 765. WIDOW'S ELECTION. See Dower. 723 WILL. 7-21 WIFE. See Husband and Wife. "•-1,1 15' i WILL. I. COMPETEKCY OF TESTATOR, 723. II. What may de Devised, 725. HI. Constriction and Interpretation of Wills. 1. After Acquired Property, 726. 2. Description of Land, 727. 3. Particulur }Yiirds and Expressions, 728. 4. Period of Distribution, 729. 5. Parol Evidence to Explain, 729. 6. Estate or Irderest Taken. (a) In Fee, 730. (b) Estate Tail, 732. (c) Life Estate, 732. (d) Vested or Continfjent,'i3iJ. (e) Vested liable to be Divested, 737. (f ) Takiwj per stirpes or per capita, 738. (g) Executory Devise, 7.3S. (h) Bequests of Personalty, 738. 7. Conversion, 738. 8. Estate or Interest taken by Trustees or Executor.^, 738. 9. Residuary Estate, 742. 10. Annuities, 742. 11. Legacies. (a) Abatement, 743. (b) Lapse, 743. (c) Cliavf/ed on Land, 743. (d) Cumulative or Substitutional, 744. (e) Conditional. 744, 12. Debts and, Mortgarjes, 745. 13. Provisions for Support and Mainten ance, 746. 14. Power of Appointment, 74S. 15. Widow's Election— See Dower. 16. Conditions and Limitations, 749. 17. Lapsed Devises or Bequests, 749. 18. Void Devises or Beiptests, (a) To lieligious or Charitable Uses, 750. (b) Other Cases, 752. IV. Will by Married Woman, 753. v. Will by Infant, 753. VI. Miscellaneous Cases, 753. VII. Executors and Administrators — See Executors and Administrators. 1. Competency of Testator. P. L., executor under the will of the late W. R. , sued W. C. A. , curator of the estate of W. R. during the lunacy of the latter, to compel W. C. A. to hand over the estate to him as ex- ecutor. After preliminary proceedings had been taken, E. R. (the appellant) moved to intervene and have W. R.'s last will set aside, on the ground that it had been executed under pres- sure by D. J. M., W. R.'s wife, in whose fa vim i the will was made, while the testator was of uis- sound iiiiiul. The appellant claimed and ])rovcM that 1). J. M. was not the legal wife of W. !;.. she having another luisband living at the tinit the seconil marriage was contracted. W. K. wlio was a master pilot, died in 1881, havinu made a will two years previously. His estatv was valued at about .?1(),000. On the 4tli ()ct(. ber, KS78, W. It. made a will l)y which he \k (jueathinl §4,000 ami all his household fiiruitui'e and ellects to his wife J. M., 62,000 to his niece K. K., .SI, 000 to F. S. for charitable purposes, uinl the remainder of his estate to his brother-, nephews, and nieces in eijual shares. On tin 8th of tiie same month he made another will bi.- fore tlii^ s!in>e notary, leaving .SSOO toliis wifu .!. M., .?400 to each of" his nieces M. and E. K., :ih ! .S400 to iiis brother, with reversion to the nice - if not claimed within a year, and the reiiiaind' : to E. R. On the 27tli November, 1878, \V. K, made another will which is the subject of the present litigation, and ijy which he revoked liis former wills and gave S2,000 to F. S., for tlic poor of the parish of St. Roche, and the remain der of his property to his " Ixiloved wife J. M," On the 10th January following \V. R. was in terdicted as a maniac, and a curator .appointcil to his estate. He remained in an asylum until December, 1S79, when he was released, and liviil until his death with his niece E. R., sister of tin ap])el]ant. Chief .Justice Meredith upheld the valie' iiii as by the persons eouji;'- of the will, refused the ieiief sought, and dis- missed the bill, with costs co be paid out of the residuary estate, altliough it was shewn tluit though notice had been given to the testator, he was wholly unprepared to make the will when he came to the act ; that there had not been any previous intention on his part to make a will ; that he was a man who, when in possession of his mental faculties, was not likely to take sug- gestions from others ; that not a single bequest •v. •.ir>3), in a suu • .■'. b.a^'ing been oh- COS and undue in- tiiereunder, as well TU the preparation 721 725 WILL. 726 vife, in whose favour le testator was of un- t olaiuietl ami ])i'ovtM leyal wife of W. II.. Ill liviiig at the tiiin joiitraotud. W. K. lied in 1881, haviii:.; iviously. His estat- 0. On the 4th Octd ivill by which he In I hoiisehohl fiirnitui-i 62,000 to his niece K. I'itable purposes, ainl ate to his hrotln i-, ]Ual shares. On tlu: nade another will 1h ■ ng .SHOO to his wife .!. ces M. anreparation of the will, as one clause would lie written out after his giving assent to a devise oi' bequest, he fell into a doze or sleej), from which he had on each occasion to be aroused ; that it took two hours to prepare the will, al- timugh it covered but one foolscap sheet, and that the parties preparing the will sent for ;ind iilitained the nundiers of the lots devised by the will from a neighbour, thus shewing that they could not obtain such information from the de- iiased. On appeal, the court being eijually divided, the decree stood, and the a])peal was dismissed, with costs to be paid out of the resi- duary estate. I'er vSpragge, C. J. O., and (lalt. ..l.,aflirmingthe judgment of the court below, that the evidence set forth in the report shewed that the testator was of sufficient mental capacity to execute the will, and fully understood the act he was performing. Per liurton and Patterson, .].!. A. Although there is no doulit as to the validity of a will made by (jucstion and answer, yet in such a case the court is more strict in re- (|uiring evidence of spontaneity and volition than ill an ordinary case, and that the evidence here shewed a want of either s])ontaneity or volition. Thomjison v. Tornmcc, !) A. 1!. 1. 11. \Vh.\t may ]!k Dkvised. On September 26th, 1884, .T. Le 15. by deed liiirgained and sold, &c. , to thenuuiicipal > uncil of D. district, in consideration of five shi. ,'s, a certain lot for the purpose of erecting tlieieon a school-house for the use of the D. district. Habendum, for the purpose aforesaid, unto the nuinicipal council forever. The deed was sub- ject to a proviso that the said council should within one year from its date erect a school-house ihV the use of the said district, or if the said ; council should at any time erect any other build- i i'.ig save said school-house and necessary olKces, ■ ijr should sell, lease, alien, transfer, or convey i the said land, it should be lawful for the said J. Le B. and his heirs to re-enter and avoid the estate of the said municipal council. .J. Le B. !)y his will, dated July 23rd, 1847, devised all his real estate to certain nieces, and died in the year 1848, without having revoked or altered said will. The municipal council complied with the condition by building a school-house, and at the time of the making of the will, the condition had not been broken, but the successors of ]). ilistrict dealt with the land otherwise than was authorized by the deed, and broke the condition. The land having been sold, a petition was filed to have it declared whether the devisees under the will of J. Le B. or his heirs-at-law were entitled to the proceeds thereof : — Held, that the word "possibility" in K. 8. O. e. 106, s. 2, in- cludes a " right of entry for condition broken," mentioned in s. 10, and is more extensive than the latter phrase ; and might therefore be a sub- i jeet of a devise, and is covered by the general name of " land." And that upon the breach of ' the condition no new estate was ac(iuired, so as to require words applicable to after acquired j estates to be found in the will. The possibility of reverter was a contingent interest that existtd in the testator when the will was made, and the subsefjuent breach of the condition gave a ri^ht of entry by which the contingent interest miL:ht be converted into an estate in jiossession. Held, also, that a " condition of re-entrj-," or conditii 'U .strictly so called, as distinguished from ;i "cmi- ditional limitation," is a means l)y which un estate or interest is to be ]Ji'eniaturely defeated and detennined, and no otlntr estate created in its room ; and that the condition in this case wiis therefore perfectly valid. The devisees and not the heirs of ,1. Le H. were coustciuently held i ii- titled to the land or the nmnev representing it. In re Mclrllle, 11 O. R. ()2tj. — Proudtoot. in, C'o.VSTHUCTKiN AND I.NTf.Hl'lUCTATION 01 Wills. 1. Aj'tT Ac'iutrfil Priiprrly. T'lie testator by his will devised as fidlow.~ : 4th. I give and devise unto niy son Nathan his heirs and assigns forever * * as much of hit number 12, in the 1st concession of the township of Beverley * * as I may ilie seised and jio.-.- sessed of (except therefrom the south 80 acres i.f saidlot). 5th. I further give and be()ueath unto my said son Nathan, his heirs and assigns, the south 80 acres of said lot number 12 in the 1st concession of the said township of I'leverley, ex- cepting so much thereof as I may have sold iind conveyed, subject, however,'as follows:'" provid- hig in certain events for the division thereof between the children of Nathan and the four other sons of the testator. At the time of mak- ing the will the testator had sold portions of the said southerly 80 acres ; amongst others, lots 1 and 2 on the south side of Margaret street whiidi afterwards liecame vested in his son (ieoigi'. Subsequently (leorge reconveyed these lots tn the testator. Nathan claimed that the consider- ation therefor was paid or secured by him, and that in fact they should have been conveyed to him. Per Spragge, C. 1. O., and Morrison, •'. A., (agreeing with Ferguson, ,1.) that althou;.di the will spoke from the death of the tustatoi- these lots did not pass under it ; l)ut (in this difTer- ing from Ferguson, .J.) ; that the facts, stateil in the report, sutliciently established that the testator, as to these lots, was trustee for Nathan. Per Burton and Patterson, J.T. A. (differing from Ferguson, J. ), that the will s])oke from the death of the testator and that therefore these lots passe, I under it. The judgment of Ferguson, J., 1 ( ). Pi. 107, was therefore reversed. Vansickle v. Vanskkk, 9 A. R. .352. A testatrix by her will, after giving to her two sons a certain mortgage, and after sundry other specific iietpiests, continued: "I further direct that the balance of personal property, consisting of notes and other securities for money, be given to my two sons aforesaid * * also that if there be any effects possessed by me, at the time of my decease, that the .same may be divided equally in value among my grany his will dated May lillh, LsTIi, lii'viM'd to K. -M. the '• |iiiijiLTiy tin Jl. strict," and luoeeeded : " J give all the l■e.^t and I'esiditu ; or my estate, real, perMinal and mixed, wliieh 1 .-hall lie entitled to at the time of my deeease, to A. iM." At the (hite of the will he jiosBessi'd only one projierty mi II. street, knovin as the Ked iJon Hotel, Imt he .>^nllse([Uenlly aei|idred other jiroiierty on that street;- Held, that, not- withstanding K. .S. O. e. Kit), a. L'(j, tlie alter- aeijuired property on il. street did not go to Jt. A!., imt It'll into the residue. The testator hav- ing expressed his intention with reference to all l.iiid ae(juired liy him alter the date of his will liy aiiiirojiriaie \\ords in that will, it would he going contrary to that intention to declare that some atter-ac(|uired jirojierty should lie with- drawn from the residuary clause anil held to pass under the prior specitic devise. Lord Lifford v. I'owys KecU, ;U) IJeav. ;{U0, distinguished. ,l/o/'- i'i)iuit V. MurritoK <.! iiL, II O. 1!. iiiio.— IJoyd. The aliove judgment sustained on appeal to the Divisional Iciuit, Troudfoot, J., dissent- ing. I'er Boyd, C — 'I'lio residuary clause in the will covers nni|uestioiial)ly all that the tes- tator might ac(|uiie suhseijuent to the date of the will and ilowu to the day of his death, i'er I'roudfoot, J. — 'I here is nothing in the will indicating that the testator was referring to a sjiecilic piece of property. The wiirds, "The liroiierly on Jlughsoii street," read immediately lietore tlie death of the testator, would ajijily to all the lands on Hughson street he then possessed, which, liierelore, all passed to Robert Morrison; and the w ill should he thus read under R, S. O. c. 100, s. 'JG. I'er Ferguson, d. — The will shews an intention on the part of the testator that his suhsequently aeijuirt ,i property should be dis- posed of dill'erently from the property vested in hiiii at the time of the making of the will, and thus the "contrary intention'' mentioned in sec. "ilj of U. ><. U. c. lot), appears by the will, which coiisetiueiitly does not •• speak or take effect as if executed immediately before the death of ^the testator." .b. C, 10 U. K. 303— C'liy. D. .See Jn rt MdvitU, 110. R. 620, p. 7'26. '1. Description of Land, A. McL. S. being the owner of a 200 acre lot, and having disposed of twelve acres at the north- east corner and five acres in the centre portion in his lifetime, by his will devised as follows : First, 1 devise and bequeath unto W. A. S. the easterly part of my lot Ko. 6, * * being described as one-third part of the length and the entire width, measuring westward from the easterly limit of the said lot, No. tj, and containing sixty-six and two-thirds acres, more or less. Second, I devise and becpieath unto H. D. S., the middle part of my said lot No. 0, in * * being described us oue-third part of the length and the entire width, jiieasuring westward from the land hereinbefore ilevised to W. A. fS. of the said lot No. 6, and cdiitaining sixty-six and two-thirds acres more or less. 'I'hiril, 1 ilevise and beiiueatli to my daughter A., the wife of .1. II., of * * the remaining one-third jiart ol my said lot No, (i, in * * lieing described as one-third of the length and the eiitiif width of the said lot No. 0, mea^ uriiig west w a rd from the land her(.inbi.f< ire devised to M. I). .*>., aiul extending to the westerly limit of said lot No. (i, containing by adiiieasuiement sixty-six and twd-thirds acres, niore or less. To have and to hold the said hereby devised land and premises, unto and for the use of my said daugh- ter A., foraii(' during the term of lur natural life, with remainder thereof on her decease to the children ol her body, ami their heirs and assigns for ever. A codicil proN ided as I'ollowfi: 1 do hereby idter my s.iid will, so that if my said daughter A., the wife of d. I'.., clie without issm, orslKiuld outlive her issue, the remainder then- of shall revert to my own heirs, share and shan alike :— llehl, that each of the three devisees took under tlicwillaccordingtothi mcasurenit ids giv(.n, that is to say, one-third \\x\.vt of the length of the lot, and the whole width of it, and only such ]iortioii of his or her respective parcel tluis deacrilied, as the testator had title to and powir to give, and that it could not be held that what land the testator had was to be e(|iially divi- deil amongst his three children. Saiindti-n v. Brcakif, T) t). It. (lO:}— Cliy. D. .S. Particiddr Words mid Kij>r(?sion.i. A testator died in 184" leaving a will in which, after devising his farm to his w ife for life, ainl at her decease to be divided by his executors between his sisters F, or H. in certain propor- tions, he continued : and in ciise either or Imtli of my sisters F. and H. die previous to my dc- i cease, then my will is that each of their ])oi- ! tioiis devised to them resiicctively, shall lie by my executors divided between their and each of their heirs, share and share alike, that is each sister's '. share to each sister's children, to them their heiis ' and assigns for ever. The testator's sister H. pre- I deceased him, leaving children, who survived him, and having had also a daughter, who pre- I deceased her, leaving a mm, H. H. :— Held, that ' H. H. took no share of the devise to H., for it was clear the testator was using "heirs" in ii colloquial and not a technical sense, as meaning "children," and the legal construction of the word "children' accords with its popular signi- fication, viz. , as designating immediate oifspriny. Paradis et al. v. CumphelL tt at., 6 O. li. 632.— Proudfoot. Child or children. See Stohhart v. l/uard- hotiat', TO. K. 239, p. 732. The words, "child or other issue," in U. S. 0. c. 106, s. 25, mean legitimate child or other legi- timate issue. See Uargraft tt al. v. Keeijan tt al., 10 O. R. 272, p. 749. Heirs. See Jn re liii/tjar — Bii/ijar et al. v. Stinson et ai., 8 0. R. 372, p. 740.' Heirs of the body. See In re Chntor, 10 0. R. 230, p. 732. Otlspring. See Sweet et al. v. Piatt etai, 10 O. R. 229, p. 734. Effects. See HannniU et al. v. Ifammill et al, 9 0. K. 530, p. 727. 728 itliiiils acres inoic 11(1 lii(|ueiitli to my II., i.f * * the iiy fdid lot No, ('), ill -tliiid of tlie k'ligtii [liil lot No. (), iiifa> luT('iiilifforo(U'visi''l ci the wi'sti'i'ly liiiiii )iy ailiiii'iiHUrt'iiiciit H, iiioic or li'SH. 'I'd ■liyilfvisc'it liiiul hihI ■ c of my siiid (lllli;;li- III of lur iiiitiinil life, luT ik't.'i'iisL' to till: cir lu'irM and assigns •d as t'ollowfl : I do MO that it my said }., die without issiu-, [Uv niiiaiiidcr tluri ■ •irs, sharu and sliair the ihruf (luvisiis totlii meaHureniints rd jiai t of the lengtli idth of it, and only sjicctive parcel thus d title to and Jiowcl it he held that wiiat to he e(|ually divi Idren. SaiiiKlir.s v. 1). 1(1 K.ij'n ?.4u}is. viiig a will in which, lis wife for life, and ed hy his executor^ 1. in certain jiropor ease either or hutli previous to my dc- each of their jioi- ly, shall beliy niy • and each of their that is each sister's to them their heirs tator"s sister H, pre- en, who surviveil uightcr, who pre- H. :— Held, that evise to H., for it sing "heirs" in a sense, as meaning matruction of the h its popular sigiii- mmediate offspring. al, 6 U. K. 632.- m (k IS 1 Stohhart V. Uuunl- issue," in I!. S. 0. child or other legi- tt al. V. Keerjan tt —Bi'iijar et al. v. HO.' n re Chator, 10 0. V. Piatt i:t al., 10 V. Ilammill et al, 729 WILL. 4. Pirioil of DlKtrihulion. S. 1'. by lior will jirovideil as follows : "Also, I will and ordain that my said (propeity) after the death of my helore meiitioneil daughters !•',, (). W. and S. A. \V., li.i sold * * .111,1 the pioceeils * "■ lie divided lietween the children of my daughters K. (). \V., .M. K., and S. A. W., * ' oiiethird to the children of the said M. (). \V., one-third to the chililreii of the saiil M. K., and fine-third to the children of tin; said .S, A. W'., .sliare and share alike, and in ease of the decease of one of the said families of chililreii as aforesaid, tluiii I will and ordain that the .said pl'iiceeds * * lie ci|ually dividcil lietuecii the two remaining families, the children of each family receiving, share and share alike, nf such half to cLcli family. " At the time of the making iif the will M. K . w.isdead, leaving three children who survived the test.itrix. S. A. W. survived v.. (). W ., and died many ye.irs after the testa- tii.\. All three of tiie said cliildn ii of .M . K. ]ii'c-deceascd S. A. NV. , two of them intestate and without issue, and ont; leaving two ehildieii who survived S. A. W. K. <). \V. had thrive I'hildren, one one of whom died childless licfuro t'"' testatrix, ami the other two survived .M . A. W. .S. A. \V. h.id several children, one of whom died during her lifetime leaving children, and the others all survived her: lltdil, that the ]ieriod of distriliution was the time of the death of M. .A. W., and that the ehildreii of Iv (). \V. and M. .\. \V., then liv !.ig, were entitled to the whole of the ]iro|icrty, one moiety to each family, till' niemliers of each family sharing ei|iially their iiioiety. JinkiiiA v. Jfrumhioml littL, 12 0._U. (i!M). — Ferguson. 730 5. Paral h't'idfiirr /<> E.c))Uxii). Where a testator devi.'^ed lot 1-1, con. 10, in tlie township of A. to his two nephews, anil, alter certain pecuniary he(|Uests, directed as fol- lows : "The hahinee of my estate that may re- main after paying the above beipiests, to be ])aiil to my relatives as iny exeeiitms may think ad- visable ;" and the evidence showed that the testator did not and never had owned that lot ; Imt that he did own lot "21, 'eon. 10, in the town- ship A., which was not specitically devised by tlic will : — Held, that the evidence of the testa- tor's intention to devise lot 21, in con. 10 to his iie|iliews was inadmissible ; Held, further, that the court would not authorize the e,\ecutors to convey lot 2\, in eon. 10 to tjie nephews under the residuary clause in the will. SinntiiiT-iet al. V. Siiminern ft al., 5 0. H. IIU. — Ferguson. A testator, by his will, devised as follows : — " 1 devise the south-west (piarter of lot o, con. 2 of Wcstmiiuster, containing 50 acres, more or less, to H. L'. S., his heirs and assigns, in fee siiii])le. "The evidence shewed that the testator dill not own the south-west ijuarter of the lot, Init (lid own the south-east (luarter ; that he and the devisee had lived on it for many years, and that he did not own any other jiart of the lot, e.xcept the fifty acres of the south-east (iiuirter : —Held, that the evidence Wiis ,idiuissible to ex- plain the error, and cause the will to (;perat3 on the s(iuth-e..st ijuarter. J'e .S/iarnr, (! O. H. IH2. -Hoyd. The erron(!ous part of the description in a will may be rejected if there is enough left to identify the subject matter di^ vised. .Summers e. Sum- mers, 5 0. li. IK), distinguished : lli. A testatrix devised the .S. \ of lot 20, con. !l, township of I!., to T. L., and the K. \ of .saiil hit to her two daughters. It was souglit to sheu that .she h.id at the time of her death no other land than the S. .1, of I t 20, con. H, of I!., and to make the will ojierati^ to pass tlii.s to '1'. !„ : — Held, that, tin; ile\ ise being in its terms free from ambiguity, the judge bidow was right in rejecting evidence lit exirin.sie facts, and that even if it might have been shewn tli.it lot '-'0, in eon. 8, was the only land which the test.itrix owned, the will could not operate to pass it. //irb 1/ et al. v. S/uirr ft al., 1 1 O. K. lOG— Chy. 1). .\ tiistator by his will directed his executors, "hereinafter named," to ;iay 'ds debts and fiin- er.d expenses ; and then desi.ed the re.^idiie as follows: Tohisson David "lot 10, con. 7, N. II., real and personal property ;" the .^aid I):ivid to jiay to each of his daughters .S'lOO, namely, .lanet, .M.iry, and Agnes in two years .after his death ; Margaret and Kllcn at 25, and riiristina to re- niaiii on the farm, the said sum to be given her when she became of age. No eX(!eiitors \vei-e named. I'arol evidence was admitted to shew that the land mentioned was in the township of Morris; that .V. H. me:int the mirth half, and that it was the only hind owned by testator. I'arol evidence was also admitted to shew th:it Christina, though spoken of as a minor, was :.';{ years old when the will Mas made, and that she was of delicate constitution and of weak mind : — Held, that there was an en'ectual (lis)i''iitiim of the real and personal estate : that to ;i dis- position of ])ersonal estate executors need not be exitiessly named, lint may appear by imiilication, and that David was executor .■icciirding to the tenor: that as to the land the parol evidence, which was properly admissible, cleared U]i any ainbignity as to the de.scription ; and the [lari'il evidence also shewed that as regards the jiro- vision ill favour of ( 'hristina, she must be treated as an adult ; and that the ])rovision for her would include maintenance. An infant, M-liether ex- ecutor or executor ile son tort is not liable for a devastavit. Yoimij v. PurrU; II 0. It. 597.— Proudfoot. 6. Estate or IiUerfst Taken. (a) In I't-e. J. C, by his will, directed his trustees to divide his real estate eipially between his sons then living, when his eldest son should attain the age of twenty-tive years, when the share eoniing to his eldest son was to be conveyed to him, and they were to give him ;g2,000 to stock the same. In case any of his sons should die, before attaining the age of twenty-tive years, without issue, then the share of the party so dying should be divided e(iually a(nong the survivors. J. J. C, the eldest son, died under the age of twenty-tive, leaving a widow and in- fant daughter, having made a will making no devise ot real estate, but giving his wife his life insur.iuce, then standiiiL'in favour of a loin com. pany, and diri!cted tlrit so much of his 82,000 aa Was neces.sai y be used to redeem the insurance V 731 WILL. 732 fc: I I from the company, ami the l)alaiico he gave to his wife :— riehl, tliat the devise to tlie elilest son was a devise in fee simple, 8iil)jeut to an exeeiitoiy limitation over on his dying iiuder twenty-live and without issue, and as issue was left, the infant was entitled to the land, as her father's lieires8-at law siiliject to her mother's dower : — Held, also, that the S'J,UUO was an absolute hequest, with a direi-tion as t(^ its application, and that the legatee was entitled to the money regardless of tile particular mode of its applieation. Cook v. Xohte, 5 U. lt.*4,S. — Proudfoot. A testator devised as follows: 1. I will and direct that all my just deljts and luneral exijenses ))e paid hy my two sons, A. it \'>., share and share alike, and 1 hereby charge the estate liereinafter 'I' .iaed to tliem with the said payments * 3. 1 give and devise unto my son ii. the north part of lot ■_'4, to have and to hold unto the said B., his heirs and assigns to and for his and their sole and only use forever * * (j_ J desire it should be distinctly understood that the property hereinbefore devised unto my two sons, A. & B. , is to be held by them only during their life times and then to become tiie property of their heirs, •and that they, my said sons, shall have no power to convey or dispose of the .-^aiil lands in any manner whatever :— Hehl, that the rule in Shel- ley's case applied, and H. took an absolute and luiconditional estate in fee simple, and that the limitations contained in clause (4) were void as repugnant to the estate devised by clause (H) and inireasonable. A'e C'ds/icr, G U. R. liS'J. — I'roud- foot. E. K. W. was a devisee under the will of her father K. I>. , of certain real estate in Torcuito, the material parts of which will were as follows : "After the death of my wife 1 direct tlie said freehold and leasehold property to be for the benefit of my son J!, and my daughters M. and E., their heirs and assigns, to be divided in the manner following." He then gave a part to the sou it. and proceeded thus : ' ' The freehold pro- perty 1 hold at [)resent on Jarvis street in this city, to be divided in two lots from Jarvis street (to?) Mutual street, the lot with the house to be given to M. L. to hold for her benefit during her natural life and to dispose of the same by will and testament only, the remaining lot thirty-five feet wide on Jarvis street, running through to .Mutiuil street, 1 bequeath to my daughter E. It. and that she shall not dispose of the same only by will and testament, and if either of my said daughters shall depart this life without leaving issue, then and in such case the survivor siiall be possessed of the share of the deceased .sister." E. It. W. contracted to sell the property devised to her when the purchaser objected to complete the purchase on the ground that she had only a life estate in it. On an application imder the Vendors and Purchasers Act, i\. .S. O., c. 109. ]t was ; — Held, that E. R. W. took an estate iu fee simple, which was however restricted by a condition against alienation in any niauner, ex- ce])t by a testamentary instrument and that such restraint was valid. Ji'" \\"uiManli';i andsijuthirhj thirli/ «"'•(• j'eiJ of' Lot 11 writ .■lide of Jarcii St., Turuiito, GO. it. 313-Chy. I). T. S. after providing for his widow in iiis will, made the following devise: "And 1 give and devise to my nephew R. S., lot No. 30 in the '2nd eon., said township of Etobicokc, during the term of his natural life, (excepting he have a child r.r children) if not at tlie expiration of his lif to gn to my daugiiter Ann (iuardhouse or her heirs, &c., * '." The will also contained a reaidii ary devise in favour of tlij testator's widow. R, S., took possession, married, had children ainl died leaving his widow and several children. In an action by the widow of T. S., claiming that R. S. was only entitled to a life estate in the li.t and that she was entitled to it in fee under tin residuary clause. It was : — Held, following LethieiiUicur r. Tracy, 3 Atk. 7'JG, that an estatf in fee might by implication be vested in the child or that the testator's intention might be pro lierly eil'ectuated Ijy applying the rule in Bifielil's case, (acted upon m iJoe il. Jones c. Davics, I R. & Ad. 5.")), and reading " cliild or children as iiomen coUectivum, and so creating an estiit- tail in R. H. Under the circumstances in tlii> case "child" was not a designatio jiersome, but comprehended a cla.ss and therefore the plaint!;! must fail. Stubbarl v. Giiardhoiusc, 7 O. 11. 239 - Boyd. (b) L'Mate Tail. M. C. by her will devised as follows : "First, I give and devise to my grandson, J. C, the farm * * to have and to hold the same and eveiv part thereof for and during his natural life, ainl after his death to the heirs of his body, shouU he leave any such, him surviving, and in t n- event of his leaving no such heirs, then the same and every part thereof is to bo divided as faiilv iuul equally as niaj' be, amongst * * to huvt; and to ' old the same to them, their heirs lani assigns forever ; but my will and desire is tha: my said grandson, J. 0., shall not have or uu into the possession * * until he shall have attained the age of twenty-five years, or five years after my death. Secondly, I give and lit- (pieath to my son, J. C, jJlOO annually duriin; his natural life, the same to be paid to him quar- terly ' * and to be a charge on the farm or homestead above devised to his said son John :"— Held, reversing the decision of Proudfoot, J., that the effect of the limitations was to give J. C. an estate tail, -which he had barred as the re suit of his dealings with the land by way of cou veyance. Greenw-ood v. Verdon, 1 K. & J. 7-4, distinguished. Per Proudfoot, J. — "Heirs i>i the body " mean heirs of the body living at the [ death of J. C. J. C took only a life e.state, and his heirs of his botly would take as purchasers ■^ fee simple, if at J. C.'s death there were no heirs of his body, the estate would go to his then liv- ing brothers and sisters in fee simple. Eden o Wilson, 4 H. L. C. 257 distinguished. In Ik Cleator, 10 0. E. 326-Chy. D. See Slobliart v. Ouardhouse, 7 0. R. 23(1, mpra ; Uiddell v. Mcintosh et al., 9 O. R. 606, p. 733; Sweet et al. v. Flatt el al., 10 O. R. 229, p. 734. (c) Lift Eiitate. A testator, by his will, dateil .June 2otli, ISGti. I devised to the plaiiititf "and his heirs anil ex- ' ecutors for ever," a parcel of land, subject to the j following proviso : " 'J'hat he neither mortgage I nor sell the place, but that it shall Ije to hb I children after his decease. " The plaintiff had 732 licoke, (luring the teriii iiig hu liave a cliild '■!■ ii'iitiiiii 1)1 bis lif to g. li. (577.— Boyd. fu another clause of the will, the testator ilevised certain other lands to his son \V. M. " for and during and unto tiie end and term if his natural life,' and after the determination of that estate to the sous of the body of W. M. in tail male, as they siiould be in ])oint of birth, and for want of such issue to the daughters of the liody of \V. M. and the heirs of the body of such (laughters, who were to take as tenants in com- mon, and for want of such issue, the lands were to be divided amongst the testator's other sons, or the heirs of their respective bodies, who at the ileath of W. M. should be entitled to any part of the lands devised in tail iu the will to hold to his said other sous respectively, or the heirs of their respective bodies in the same course of descent in tail as the other lands deviseil to them in tail respectively, and for default of such otlier sons luid of their issue at the death of W. M. to the right heirs of \V. M. for ever :— Held, that \V. .M. took a life estate, with remainder in tail male, to his first and other sons successively, acoordiug to priority of birth, and failing male issue, with a further remainder to his daughters. And though circumstances might arise in which W. M. would have an estate iu tail by way of remainder after tlie intermediate limitations to his first and suc- ceeding sons, yet he could not so deal with that ultimate remainder as to divest their right to take as purchasers. Hiddell v. Mcfnto-ih et al., 9 0. R. 606.— Boyd. J. P., by his will, provided as follows : " I give and devise to my brother D. P. the * ■* on which he resides * * to hold the same to the said D. P. for and during his natural life, and after the death of the said I). P., I give and de- vise the said * * to H. P., second son of said 1). I'., to be held by the .said H. P. for and dur- iii;,' his natural life, and if the said H, P. shall have oifspring him surviving, then I give ami ilcvise the same to such of liis oll'spring as the Slid H. P. shall appoint, and in case of no ap- luiutincuit bcint; made i)y the said H. P. in his lifetime, then I Mk' it woulil liavo l)(,tii iiivaliil. Ji>- Oii/nrin Liou ouil Sav iinjuCu. (1)1(1 /'uiri:ii!i, 12 U, J!. rih'J.— I'Vif'UHdii. St'(! JdhvKOv V. Ki-fiiiier, 8 (). ):, 1!).'), p. TH); /iV ('l,„rlr.i—hilh„iv. niidliiiniiii/i, lOA.li "J.Sl.ii.TIJT. (d) Vinhil or ('(lUtiiiijoit. A tcstfttDr left all liin cstntij to liis fXecutoiH " ill tiiiNt fur the lidictit (if (i. il. till lie anivcH at till! full ii^;»' . should sujiport the w idow of tlu^ testator, who n;is his mother iilid the iiiother-iiidaw of ^^'. J I., dining her life, and should eoiivevt into money the estate of the testator, to whieh he was or should lieentitled under thewill, and ])ay a moiety of the proceeds to \\'. II. in trust for the siijijioi t of (i. Jl. till he should attain twenty-one, the r(sidiie to he then jtaid liy \N'. 11. tod. II. I'lir- siiaiit to this agreeiiKiit (i. H. forthwith resided with W. H. till he w ns seventeen years of age, when this action was hiiiught liy the e.\ieut(.rs for a declaration of the rights of (J. \\., .J. I)., and \V. H. under the will :-Held, that V,. II. took a vested interest in the projierty under thi' vill : that the ooiidition was a condition suhse- fjuent, and was void as heing "against law ;" and (!. H. was entitled to all the estate given to him liy the will, notwithstanding the agreement of l.STO, which could not he regardi'dasa familycom- promise, or for the henetit of the infant. Vlnrke et at. V. DnrraiKjh et al., 5 0. K. 140. — Ferguson. I>. C. by his will devised all his personal estate to his wife, M. S, C, to he held for the interest of his son, A. S. C, when he should have arrived at the age of 24 years; an annuity to his wife, Al. IS. C, for life ; appointed her guardian to the sou to take charge of all remaining numey that should accrue from all sources ; such money to lie used for the necessary ex])enses of education, etc., for the son. He desired that the wife should have control of all money coming to the son till he was of the age of 24 years, and at that time all rents and other property should come into his posses- sion, except the annuity. He further declared that at the death of the wife all rents and all interests and all property should pass into the possession of the son, to be owned by him, his heirs and assigns forever. In case of the death of the wife before the son attained 24, another guardian with similar powers was appointed. In case of the death of the son before his mother, then all the property and rents, etc., were to be hers during her natural life., and after her death one half to go to the testator's relatives and the lialance to the relatives of the wife, she making this disposition before her death ; but if the .son at the time of his death should leave a wife or children, then all property should be subject to such disposition as he should make at the time of his death. On an applicntion. under the V( i dorsand l'iirchas( rs' Act, It. S. (». c. lO'.t, fortl,. opinion of the court :-lleld, that the will v. suttiiient t'l puss all the testator's property, in eliidiiig the land in (|iieNtion : that the inteii>' taken liy the son wa.s a vested one, and was (■ come into his |iosses.y the will, tin Hon as heir atdaw and the widow as to dowi could make title. /.V r(;,,/if tiiid Uiiffil, S A. I; WM. — T'crgiisdii. A. di(d leaving two sons and t\Mi daiightei- .'Hid hy her will directed that her property shoiil.i lie invested until ('.. her eldest son. should nr tain IW( nty-one; when it was to be divided int' four eijiial shares, and lit' was to get the incoii,. of one share until he attained thirty, when In was to get his share out ;iiid out. The otliri three shaics were to lie invested, and the iiiciii.. arising from (acli share was to he accumulatd' until th(^ remaining three children respectively attained twenty-one, when they were each ti receive the annual income thereof, until th. yoiingost (son), I'"., attained the age of thirty, when he was to get his share out and out, aini thei{ after the income of the n inaining two shai( • was to he ])aid e(|Ually to the two daughters, ( and il , until one of them should die, and tin i, (.lie share was to be paid to tlie person or persoii- w ho would be entitled thereto under the Statiit' of I listributicns in case such share was the jiii. perty of the daughter so dying. V. atiaiiidi twenty-one. married, and died before F. attaiiicl twenty-one, having niiide her will and left all lu i inopei ty to her hushand for her children : — HeM, that the jirojier eH'ect of the will of A. was tn vest in C.'s husband and children, the one-foiirtli share that slie was to draw the income of fur life, and that they were the persons entitled iiii der the Statute of Distributions pertaining tn the jiersonal estate of married women who dir intestate: H. S. 0. lioach, f) O. R. W)». c. 12,'5, s. 25. ArkcU Hovd. A will contained a devise in trust for the sup- I port and maintenance of the testator's widnw ; during her life or widowhood, with a direction 1 that she should have the full right to possess, ! occupy and direct the management of the pro- perty : and at her death or second marriage I "my son Thomas, if he be then living, shall have and take lot one, which I hereby devise tn j him, his heirs and assigns." The testator then I gave to his other sons and to his daughters otlitr real estate in fee. He directed that all the saiil devises "in this section of my will mentiomil and devised " should take effect upon and from the death or marriage of his wife, and not sooner. He gave all his other lands in trust for sale, the rents and proceeds to bo at his wife's dispos.il while unmarried, and after herdeath or marriage to be ecjually divided among his said children. At such death or marriage all his personal property and estate remaining was to be divided e((iia!ly among his children : Provided always, that in the event of any of his children dying with- out issue before coming into possession of liis 73 1; itimi, uikUt the Vi i t. S. (». c. lO'.l, fnrtli. 1, tliat tliu will w. - .tat(ii'"H |iri>iiLTty, in n : tiiiit till' iiit(it>t tuil i>iif, Hiul was t' (•(iiitrol oil liisattiiiii liK r r. > laililiier, 1 •>. altaiiiiil tliata^re till il iitltit Ills iiitiit-t, , If the: iaiuls liasM.l lie vid'iw jdiiiiiig .v 1 title as the testati 1 l)asM liy the will, tin \viili)W aH t(i ildVi I :e iiihI I'rijjil, » A. 1:. i anil two ilan^jhtei- it her in-nperty slicaili •lilest Mill, s-liould ;ii vas to he divided iiit- wan to jjjet the ilicoiii. iiied tiiirty, when In and out. The otlai icsted. and the inecn.. IIS to he aceuniulatir ehildrcn reciiectivily ill they were eaeh ti lie thereof, until tl;. led the age of thirty, are ont and out, nvy. e remaining two sliaK- the two daughters, ( tiJKiiild die, and tlid. o tlie jitrsdii or jier.'^fiii- ■reto under the Stat\it. uh share was the ]ir(i ) dying. C. atiaiiK.; Idled hefore F. attaint, ler will and left all lur r her children: — Helil. the will of A. was t. lildren, the one-fourth [aw the income of for lie jiersons entitled uii- hutions pertaining t" rried women who ili' 'J.''), H. '25. Arkill V. il. he in trust for the awf- I the te.stator's wi• Copild, See Wood v. ..•lr?H0i//', 1- O. K. 140, infra. (g) Executory Dirim', Sec Cook v. Ni>l>l'\ 5 O. It. 4:J, p. TM. (h) liiqiicsti of Personalty. The will of a testator contained the following clause: "To my daughters Flleiior and Mary Maria 1 give, devise, and heipuath the interest of three thousand dcdlars each j)er annuiii, to be paid to each of them lialf-yiarly" :— Held, that the devisees took an absolute interest in the $3,(K)0 given to each of them. lOltoii i\ .Sheppard, 1 Bro. C (',. 5!J'2, followed. Morrow v. Jcitkinx, G O. 1!. 69.'}.— Proudfoot. See In re Hii/(iar — liujijar d al. v. Stinson >t ah, 8 O. R. .S72, p. 740. 7. Conversion, A testator by hi.s will directed his executors to pay his debts, funeral expenses and legacies thereinafter givenoutofhisestate, and proceeded: " My executors are hereby ordered to sell all my real estate, after the payment of all my just debts and funeral expenses, and all my property and personal effects, money or chattels, are to be equally divided lietween my children and their heirs, that is, the heirs of my son G. and daugh- ter E., now deceased, and my son J., Mary and Hannah, or their heirs. iShould any of my said heirs not be of age at my death, my executors are to place their legacies in some of the banks of Ontario until the said heirs are of age "; — Held, (1) That there wa-^ no intestacy either of the real or personal estate. It is to be presumed that the testator did not intend to die intestate, and the language shewed he did not intend his heirs to take his property as real estate, as he peremp- torily directed a sale, making an actual conver- sion of it into money, thus blending the real and personal property into a common fund, and then bequeathed it all to the legatees. (2) That the persons entitled to share under the will took per capita and not per stirpes upon the same prin- ciple as in the case of Abrey v. Newman, 16 Beav. 431. (3) That the grandchild of G. was not en- titled to a share, the children of G. taking in their own right and not in a representative capa- city. Wood V. Armonr, 12 0. R. 146.— Proud- foot. 8. Estate or Interest Taken Executors. by Trustees or The rule is that when property is devised to a trustee to pay the rents and profits to any per- 47 789 WILL. 740 ii I son the cestui que trust is entitled to the posses- sion ; but where other parties have also a claini, it rests in the discretion of the court whether the actual possession shall remain with the cestui que trust or the trustee. J. O. by his will pro- vided cas foL'iOws : "Notwithstanding the direc- tions hereinbefore contained, I desire that if my son W. O. returns to Toronto within five years from the date of my death, my said executors shall hold in trust for him from the time of his return to Toronto said lots Noa. * * subject to the existing life estate of my said wife in a portion thereof, during the term of his natural life, and shall pay over to him all rents, issues, and profits tuereof, and after his death shall divide the same between his children in such manner as he shall in his last will and testament direct, and in default of such direction and ap- pointment to divide said property equally between them, conveying to each child his or her share when, if a son, he attains the age of 21 years, or a daughter attains the age of 21 years or marries, and in the meantime to apply the proceeds of the jsame to the support and maintenance of said children." In an action by W.O. against the ex- ecutors and trustees of the will, claiming the ac- tual possession of the property of which he was entitled to the rents and profits, it was : — Held, that he was not entitled to such possession, and his action was dismissed, with costs. Whiteside V. Miller, 14 C'hv. 393, commented on and fol- lowed. Or/orii'v. Or/ord, 6 O. R. 6.— Fergu- son. J. by his will devised to H., his wife, all his real estate in L. ''during her natural life, for the use and support of herself and family, and in case H. should at any time think proper to aell my said estate, it shall be the duty of my executors to sell the same with her consent, and the proceeds thereof to be distributed as follows," &c, : " But if H. should not think proper to sell my said estate, then the same shall be divided amongst my children, their heirs or assigns, after the death of H., share and share alike." He then nominated P. executor of his will, 'with full power and authority to act in the same." J. died in 1838, leaving H. and three children him surviving. P. took out probate. In 1846, H. by deed conveyed her estate in the lands for £150 to P. Under this deed P. obtained posses- sion, which he retained till his death in 188'2, when he devised the land to K. in trust for the purposes of his will, of which he made K. ex- ecutor. H. died in 1872, and this action was commenced in 1883, by one of J.'s children, claiming an account against K. of the profits of the lands, and to have the same sold, and the proceeds distributed according to J.'s will: — Held, affirming the decision of Oslr r, J. A. , that P. could not oe said to have been an express trustee within R. S. O. c. 108, s. 30, and, that being so, the plaintiff's action was barred by the Statute of Limitations. The proper construction to be placed on the will was, tliat a life estate was given to H, with a power of sale to P. dur- ing her life time with her consent, and the ru- main(ier in fee to the children in the event of non-execution of the power ; that unless and until the consent of the widow was given, the power of sale did not exist, and the executor had no duty to perform in relation to tlie lands ; and he did not take, nor Wiis it necessary for him to tik^!, the legal estate ; that as he never was re- quired to execute the power, he never became trustee. Johnson v. Kramer, 8 0. R. 193.— Chy. D. A testator, after bequeathing to his wife hia dwelling house and furniture and an annuity, con- tinued as follows: "I give and bequeath unto G. B. , and her children, the dwelling house they now occupy, * • the wife of C. R. B., and his child- ren, appointing C. R. B. and G. B. joint guar dians for the children above mentioned, and $500, all transactions to be null and void unless sus- tained in writing by both guardians." And in the 10th clause of his will he said : " I will ami bequeath unto each of my grandchildren living at my death $100." C. R. B. was a son of tlie testator, and had children living at the testator's death :— Held, that the children meant were those of C. R. B. and G. B., and there was a simple gift to G. B. and her children, who took concurrently ; and C. R. B. and G. B. were, by the above clause, made trustees for their children, and could give a good acquittance and discharge for the 3500, but they were not authorized to receive, and could not give a good acquittance for, the moneys bequeathed to their children in the 10th clause. In another clause of his will, the testator willed and bequeathed "unto G. H. B.'s wife, E. B., 85,500. VLis bequest is under the joint management of G. G. B. and his wife for their heirs, should there be none, then at their death to revert back to my heirs to be equally divided": — Held, that there was a trust of the $5,500 reposed in G. G. B. and E. B. ; that E. K was entitled to the benefit of the trust during her life, and upon her death the benefit of it would go to any children there might be of G. G. and E. B. , or any descendants there might be answer- ing the description "their heirs," and if there were no such children or descendants, then to the heirsof thetestator, to be equally divided amongst them. Another clause was as r Hows : "I will and bequeath unto il. R. B. 's wife and his heirs £5,000, and appoint M. R. B. as guardian and manager of this bequest" : — Held, that a trust ct the $5,000 was thereby reposed in M. R. B., an' " heirs" was merely descriptive of the legatees intended. M. R. B. was entitled to receive the fund and hold it in trust. During his life liis wife would be entitled to the whole benefit aris ing from the fund, and on his death there woulii be a distribution of it amongst his wife, or het represe:itatives, as the case might be, and thost persons who would answer the description of heirs of M. R. B. ; and M. R. B., as such trustee, wm entitled to receive, and could give a good acquit tance and discharge for, the money. In re Big qar — Bigyar et al. v. Stiiison tt al,, 8 0, R. 37' Ferguson. A testator directed his executors to pay all hii " funeral charges and just debts." The residuJ of his estate and property not required for thai purpose he disposed of as follows : To his wifJ all his household furniture, his pew in a nameJ church, and all cash in haTid at his decease, alsj to his wife tJie entire, exclusive and undivideif use of his house situate, &.-., to hold the Siim^ during.' her natural life, then the proceeds to 1 Cijually divided, kc. , he also gave and bequeatheJ the proceeds of the homestead to be equalljl divided, &c. Tiiere were other lands not iiienl tioned in tlia will:— Held (alHrming ihe juilgiaciii of the court below, 8 0. R. 411), notwithstandiB* WILL. ' 742 )wer, he never became | 'cemer, 8 0. R. 193.— eathing to his wife his jure ana an annuity, con- ire and bequeath unto (i. dwelling house they now f C. R. B., and his child- ;. and G. B. joint guar )ve mentioned, and $500, ill and void unless sua- th guardians." And in ill he said: "I will ami ny grandchildren living R. B. was a son of the en living at the testator's e children meant were G. B., and there was a I her children, who tooli l. B. and G. B. were, by rustees for their children, cquittance and discharge were not authorized to give a good acquittance thed to their children in othjr clause of his will, bequeathed "unto G. G, ). Vhis bequest is under of G. G. B. and his wife liere be none, then at their ) my heirs to be equally there was a trust of the . B. and E. B. ; that E. B. ifit of the trust during her ;h the benefit of it would re might be of G. G. and kts there might be answer- ;heir heirs," and if there descendants, then to the there was an intestacy as to such unspecified lands that the executors could make a good title to a purchaser thereof (Burton, J. A., dissenting.) Per Burton, J. A. The charge arose only by implication and might be controlled or enlarged by subsequent expressions in the will, and might therefore, perhaps, be extended to lands which the testator disposed of by the will, but the will contained no expression indicating an intention to charge the descended lands, and the executors consequently could not make a good title. Yost V. AdaTTis, 13 A. R. 129. The petitioner in a quieting title application claimed title as devisee under a will which cor- taiued the following provisions: "Secondly. I devise to my son J. i^". (the land in question), but he is to be known as a sober, steady, and iu- duoi,. lous man. Thirdly. If at any time during the period of five years after my death, it appears to my executors, liereinafter named, that my said son J. does not remain sober, I give them power to sell and dispose of the said property for luch charitable purposes ab to them shall seem meet:" — Held, that the power of sale in the will was not void for ur certainty, and that the certifi- cate of title could only issue subject to such power, Ee Fuj: and the South Half of Lot Xo. due in the l\nth Concession of Downie, 8 0. K. 489. — Holniested, Meferee — Proudfoot — Chy. D. A testator by his will directed his executors to pay all his debts, &c. , out of his estate. Then followed specific devises of his estate to his wife, children, and nephews, and a (lir>jctiou to his executors to sell the chattels, excepting the house- hold furniture bequeathed to his wite, and out of the proceeds to pay the debts and to invest he balance for th j 'oenefit of the wife and child- ren. By a codicil he directed his executors, if equally divided amongst necessary, to sell in the first place lot A, specifi- ■ " '-■' -••" cally devised as aforesaid, to pay off any debts or incumbrances against bis estate ; and in the event of such sale being insufficient to pay said debts, <^c., then in the (next place to sell and dispose of lot B, also so specifically devised. The txecutors before disposing of lots A and B, sold to defendant the growing timber on lot C, a lot tpecifically devised to the plaintiffs, the defen- (lant purchasing in good faith and on his solici- tor's advice that the executors had the right to kU to ps-y debts ; and defendant entered and cut down and carried away f' timber. Sub- Kquently the defendant purchased the land from the mortgagees thereof the land having been Durtgaged by testator. The plaintiffs, at the testator's decease, were under age, and did not become of age until after the trespass complained of, when they brought trespass against defendant claiming as damages the value of the timber so at. There was no entry or possession taken (• plaintiffs be*'jre action commenced : — Held, per Rose, i (1) that the general language of the will was controlled by the codicil, and so the lebts were not charged on the unappropriated states ; and therefore the executors had no pwer to sell the timber on the land in question l'4| that if a power of sale was given to the execu- tors it could not be exercised until after the Lmds ipecifically appropriated liad been sold ; and (3) liat the purchaser, not shielded by s. 30 of 20 fict. c. 20 (Out.), was bound to see that the [■jwer was rightly exercised, Buktr tt al. v. MUIk, 0. R, 253-C, P, D. was as . Hows: "I will R. B.'s wife and his heirs R. B. as guardian and , ' :— Held, that a trust ot reposed in M. R. B., and ^scriptive of the legatees -as entitled to receive the ust. During his life his to the whole benefit arii on his death there won! mongst his wife, or bet case might be, and those irer the description of heirs . B. , as such trustee, wiw could give a good acquit , the money. In re Big^ :inson tt al, 8 0. R. 37'- lis executors to pay all hi ust debts." Theresiduf srtv not required for tba as follows : To his wif( ture, his pew in a namei hand at his decease, alsi exclusive and undivid^ e, &^., to hold thesami , tlien the proceeds to also gave and bequeathe lomestead to be equuH Jerc other lands not imi: ll (athnning the judgmcn 1 R. 411), notwithstandiuj Right of executors to mortgage. See London and Canada Loan and Agency Co. v. Wallace et al., 8 O. R. 539, p. 254 ;'Gordon et al v. Gordon et al., n 0. R. 611 ; 12 O. R. 593, p. 255. 9. Residuary Estate, See Summers et al. v. Summers et al., 5 O. R. 110, p. 729. 10. Annuities. I A testator, by his will and codicils, devising ' his real estate, &c., to G. H. M. and B. M. I trustees, and the survivor of them, and the heirs I of such survivor, gave his widow an annuity and I provided that, when his son should attain the : age of twenty-one his trustees should convey to ; him one-half of the estate and the residue when he should attain thirty, subject, however, to the ! annuity. He also provided that if his son should die before attaining the age of thirty, the said trustees or trustee should hold " the s.aid real and personal estate, moneys, and securities, or so much thereof as shall remain in their hands, in trust to distribute the same according to the Statute of Distributions." The last codicil ap- pointed G. E. T. and G. R. anil the survivor of them, and the heirs, executors, administrators and assigns of such survivor new trustees and executors in place of G. H. M. and B. M., with the same powers. The son attained the age of twenty-one, received half of the estate, and died before attaining the age of thirty unmarried and without issue : — Held, that the widow was en- titled to her annuity as well as her share under the Statute of Distributions ; but that the tes- tator, having treated the real and personal estate as a blended fund to be distributed, she was not also entitled to dower, and that she must elect between the distributive share and the dower. Be Qttimby—Quimby v. Quimby, 5 0. R. 738.— Boyd. J. S. by his will gave his' wife E. S. an annuity of J2,0O0 a year, and charged it on his estate. After his death E. S. the annuitant, C. E. S. and M. A. S., two daughters, and W. A. S. and G. E. S., two sons, entered into an agreement whereby the annuity was charged on certain real estate and other property, and the sons cove- nanted to pay it, and the executors of J. S. transferred all their interest as executori in all the estate of J. S. to the said sons, subject to the said charge. Subsequently all parties joined in borrowin'< $16,000 on mortgage of part of the Eroperty for the purpose of reconstructing the uildings, the annuity being postponed to the mortgages. W. A. S. and G. E. S. afterwards became insolvent, and H. became assignee in in- solvency. The annuity fell into arrear for several years, and K. S. died having made a will by which she devised all her estate to C. E. S. and M. A. S., who lirought an action against B. to have a lien declared on the property for the amount of the arrears of the annuity. On a re- ference to the Master he found that they had the right to maintain the action, and settled the amount of the annuity due, and allowed interest for the six years preceding action brought. On an appeal from the .Master's report, it was : — Held, tliat R. S. O. c. .W, as. 266 and2G7, under which the interest was allowed, is not applicable ft IS 748 WILL. 744 to cases where a recovery is sought not against a defendant personally, but against his estate, and following Booth /•. Coulton, 2 Gifif. 520, that except under extraordinary circumstances upon particular grounds suggested of hardship or pe- culiarity, interest is not to be allowed upon the arrears of an annuity. In this case, undei any circumstances, the award of interest could not be upheld as against the assignee in insolveucy : — Held, also, that the expense of some flooring, lathing, and plastering, was projieily charged against the defendant, as W. A. S. and G. E. S. haf for the benefit thereof as thoroi: mentioned, but in certain contingencies to meri; estate on condition of his paying A. £3 out of < in his residuary estate, and be disposed of ui the £5 a year. He further devised another por tion of his real estate to his wife for her life, and tlien to his son R., on condition that R. should pay the balance £2 a year, and keep his son A. in board and lodging during his natural life : — Held, that the annuity to A., though chargeable against different parties, was not separable. (2) That the intention of the testator was to provide for A. from the time of the testator's death, and tliat R.'s land was chargeal)le with such £2 a year, and the board and lodging from that time, notwithstanding the tenancy for life. Mtiimev. Lindsay, 10 V. II. 432. — Hodgins, Master in Ordinary. ;ap itt£ illll :he fer V iiul lift iml :iiej »fc Jill Alf! jch !i ill ijltl .ii'in id' 1 .lit: :ti See Cook v 11. Legacies. (a) Abatement. Nohle;\1 0. R. 81, p. 748. (b) SC3 272, p, Hargro/t et al. v. 749. Lapie. Ket-gan et al. 10 O. R. (c) Charged on Land. A testator devised his real estate and chattel property (excepting some bequests to his wife) to his son Robert, sulyect to the payment of his just debts, funeral expenses, and certain specified legacies, which legacies he directed his executors to pay. By a codicil he directed the chattel pro- perty (except the specific becpiests to his wife) to ue sold, aud the proceeds equally divided amongst all his children : — Held, that the specific legacies were a charge on the real estate. Sleu art v. Dick, 10 P. R. 411. — Hodgins, Master in Ordinary. Legacies directed to be paid out of a mixed residue are a chnrge on land. Yang v. Piircis, 11 O. R. 597. — I'roudfoot. Right to compel legatee to execute release. See Kayser v. Jioi/ntan, 7 O. R. 143, p. 403. See Mnnsif no R . Lirdsiiii, 5'JO, y. i\-, 10 r. R. 432, svpra ilex iitii) .tiC the last clause of his will, hy which he dcvisi-i all the rest, residue, and remainder of his estat of which he shouhl die possessed to A. and I„ to be equally divided between them, share aiii share alike : — Held, that on a jtroper constriutini of the will and codicil, .?,30,000 of the jnu-o pii .sonalty was to be held by trustees on the trii!.t as defined for the benefit of the A. church : an as to the residue of that fund, it was to be liil generally by the churchwardens for the sujjpdr and maintenance of that church. A legatee i entitled to take both a pecuniary gift and a rwi ,) due, whether given in a will or in a conildmi r will and codicil, and the construction of a pai ticular residuary gift is not affected by the pn ! »] sence or absence of a general residuary gill • ' Bailer al. V. The Rector and Churchwardens dfth ' i Church of the Ascension etcd ,5 0. R. 386. — Boyi ,'','' »rs, e) Conditional. A testator bequeathed his chattels and $1,50 did i to his widow. His estate he directed to he sol lec and the §1,. TOO to be paid out of the proceedi die After providing for the investment of the estati nser he proceeded: "the yearly interest accruin !.00( ;llt loilj :i!' to riiirc fii-rea 1*3 n •rha liini from the same to be paid over to my said wi yearly for the term of six years, or until my sc shall become twenty -one ; 5th. It is my will tin the abovementioneil gifts and bequests to iii wife shall be given to her in lieu of dower, an on the further condition that she will cloth maintain, and suitably provide for my said so| until he shall become twenty-one ; 6th. It further my v/ill that on the connng of age of ni said son, my executors shall pay over to himtl whole of the principal sum of money remaiiiit in their hands after satisfying the above expci ses and legacies ; 7th. In case my said son sbou die before coming of age, then the money so r maining as above, and to which he would tin be entitled, shall be paid over to my two elde brothers." The son died under twenty-one ; Held, that all the gifts to the widow were upi the condition of nuiintaining the son ; but t condition having liecome impussible of perfoi anec by the soiTs death, the gifts wei'cdeniiii of tlic coiiilition :— Ikld, also, that tlie tcstatu brothers were not entitled to payment of t iterp; for ilioi ate( Ate 'I'aiu - soil the fati' iith. If tes f the M til lid til tate. 7H r Substitutional, icted his estate, real an'ij ;pt certain stocks, lands ter specifically devised testamentary expenses first moneys that shoull lis executors ; and afur iry bequests, wliicli he e fund to be produced U5 WILL. 746 te as aforesaid, and st lis of his personal estatt, the residue of my yvx be exclusively devoti'' irposea, I becjueatli tin lens of the A. church, t - the purpose of formiiu pport of tliesaid church. il, 8. bequeathed to tlirei 5:30,000 as an endowmcni invested by them in the!: for the s;iid church, an benefit thereof as tlionu lin contingencies to nieii; and be disposed of uiidi ill, l)y which he devise 1(1 remainder of his estiit possessed to A. ami 1 between tliem, share iiii it on a jiroper (;onstriutii 830,000 of the jmro ]u- by trustees on the tnis fit of the A. church ; :in it fund, it was to be lit h wardens for the su])iiii lat church. A legatee i pecuniary gift and a re; I a will or in a comltiiici construction of a par not aifected by the \m general residuary gif nvi/ Churchtvnrdeni^ uftl e.. mself specified the tinn enance, that will be ob maintenance and sup leral terms, will cease sfamiliation of a child 52 ; Gardner v. Barber, ns I'. Jodrell, 13 Chy tmmented nu. II). ntitled to support au'l ing again : — Quaere a- again become a widow Ih. urned out insufficient hich the one of 32,0t)(i those remaining un lOO legacy to the son estate the daughters eir legacies were charg the $2,000 legacy am! e must abate proper as no ground for mar a/.,5 0. R. 624, p. 754; . 597, p. 730. ppointment. ;ain lands to his wife, by her so long as she arried. After my tie- se, or in the event of f.'om and after such d devise the same un- imed by my said wife, r49 WILL. 780 by deed, under her hand and seal, and to his heirs and assigns forever." The widow married ayain, without having executed the power : — field, that there being no specific limitation as to time, the whole period of the life of the donee was allowed for the execution of the power, and it did not cease upon her second marriage : — Qua>re, whether she could exercise it till after her second marriage. Cowan v. Besserer, et al., ,5 0, R.624.— Proudfoot. Sen Sweet ef al. \. Piatt et al., 10 0. R.'229, p. 734; Smit^i v. MrLellan, 11 0. R. 191, p. 30,S; Re Ontario Loan and Savings Co. and Powers, 12 0. R. 582, p. 735. Power to appoint trustees. See McLachlin it al. V. Ufhorne et al. — Maiiee v. Ushorne et al. , 7 0. R. 297, p. 689. 16. Conditiuns and Limitations. See Jh Ca.sner, G 0. R. 282, p. 731 ; I?e Win- sfanlei/and Southerly thirty-jire fert of lot 11, we.ft 'ide (ifjarris St., Toronto] O. R. 315, p. 731 ; ' lar/ce it al. v. Darrawjh et al, 5 0. R. 140, p. 735_ .See also, Sub-head III. 11, (e), p. 744. 17. Lapsed Devices or Bequests. R. B. by his will devised his property to ex- ecutors upon trust as follows : "Fifthly, intrust to pay to each of my two surv---' • children F. B. and M. A. B. the sum of 81,000/' and the re- sidue after the payment of his debts, &c., and the said legacies and an allowance to his execu- tors, to his four sisters. F. B. and M. A. B. were illegitimate children, and M. A. B. married and (lied during the lifetime of the testator leaving cliildren surviving. In a suit for administration mid construction of the will it was : — Held, that the words " child or other issue " in R. S. O. c, 106, s. 25, mean legitimate child or other legi- timate issue and do not apply to an illegitimate child, and that the legacy to M. A. B. lapsed. Ha-ijraft et al. v. Keeijan et al., 10 O. R. 272.— Ferguson. H. made his will on October 10th, devising land to his son J., without words of limit.ition, autl added a codicil on February 23rd, 1870, by which he confirmed the will save as changeil by the codicil. J., the devisee, died February 17th, 1874, and H., tlie testator, died December loth, 1879 :— Held, that the will was made and repub- lished by the codicil prior to J;, nary 1st, 1874, the sections subsequent to s. 7 of R. .S. 0. c. 106, lud among tliem s. 35, did not apply, and that Diider the former law the devise to J. lapsed. hmstein v. Hedrick et al., 8 O. R. 338.— Proud- foot. In one clause of his will, a testator devised certain lands to his son A. S. M. " as soon as he attains the age of 21 years for and during the term of his natural life," and after the deter- mination of that estate to the sons of the body of A. S. M. in tail male, as they should be in point of birth, and for want of such issue, then to the daughters of the body of A. S. M. and the heirs of the body of such daughters, which daughters and their issue were to take as tenants in common, and for default of such issue, the lands were to be divided among the testator's other sons, or the hei/s of their respective bodies who at the death of A. S. M. should be entitled to any part of the lands devised in tail in the will to hold to his respective other sons, and in def.ault of such sous and of their issue at tlie death of A. S. M. then to the right heirs of A. S. M. forever. A. S. M. predeceased the testator : — Held, that thereupon the devise to A. S. M. lapsed, the wiiole scope of the cl.ause intending that A. S. M. should sur- vive the testator. Itiddillv. Mcintosh it nl.,\) O. R. 606.~Boyd. See Berher v. Iloare et al., 8 0. U. 328, p. 752. 18. I'ui'l Derises anil Ih quests. (a) To BeliijioHs and Charitable Uses. A testator devised land to K., in trust to sell and pay the proceeds " to the Sister.-i of Cliarity of Hamilton, to be their property absolutely." There were also bcMjueststo K. of money, to pay the same to the St. Mary's Hospital, an Orphan Asylum and a Convent. No evidence was given to shew who the .Sisters of Charity were. In an action to recover the land brought by the heii's at law of the testator : — Helil, that a corporate capacity could not l)e imputed to the Sisters of Charity, in order to destroy the gift to them under the Statutes of Mortmain, and that the devise, might be supported as a gitt to *:!;e indi- viduals who, at the time of the testator's death, filled the character of Sisters of Charity. Wnlhr V. Murray, 5 O. R. 638.— Osier. R. P. L., by his will directed his executors "Ijy and out of the moneys which shall be re- ceived by them from the P. B. & M. Co., for or on account of the debt or sum of 835,000, owing and secured by mortgage l>y tliat company to me at the time of my decease, and of tlic interest thereof which shall accrue after my decease, in the first place to pay the sum of .SI, 500, part thereof to the bishop for the time being of Algoma in Canada, to be invested by him in or upon any of the investments hereinafter autiiorized with power for the bishop of Algoma aforesaid for the time being from time to time to vary an- I I of $1 ,500 of the aforesaid currency for the benefit of those missions. And to tlie treasurer for the time being of the Ontario luissions in British America, the sum of .'?2,o00 of the aforesaid cur- rency for the i)enetit of those missions :" — Held, tiiat the bequest to the bisliop of Algoma for the benefit and education of John Eskinaii and others was intended to set apart a fund wiiich was to liave perpetual continuance and in which no indi- vidual was to have a personal right, and follow- ing (Jillani r. Taylor, L. iv. Iti Eij. 584, such l)e(piest was void : — Held, also, tliat the becpiest to tiie treas\irer for the Algoma missions was a charita!)le gift and nmst fail, l)ecause no person u V. Westlake, 12 0. ;« V. Roberts, 10 A. R. w Anderson et al, 11 xple V. T^e Toronto 5, p. 117. 757 WORDS AND TERMS. 758 "Interlocutory." — See Whiting v. Hovey, 12 A. R. 119, p. 149 ; Hatelyv, Merchants Despatch Co., 12 A. R. 640, p. 151. ' ' Investing in. " — See Re Barwick, and lot 3 in the North side of Kinq Street in the City of To ronto, 5 0. R. 710, p. i363. "Jewellery." — Sec Regina v. Chayter, 11 0. R. 217, p. 459. " Land."— See In re Melville, 1 1 O. R. 626, p. 181. " Land covered with water." — See Warin ^'. The London and Canadian Loan and Agency Co., 7 O. R. 706 ; 12 A. R. 237, p. 705. "Lease, sell or otherwise dispose of." — See Kennedy et al. v. The Corporation of the City of Toronto etal , 12 O. R. 211, p. 182. " Line of Credit." — See Eastman v. Bank of Montreal et al., 10 0. R. 79, p. 33. " Made or levied under execution." — See Reid V. Gowans, 13 A. R. 501, p. 164. "Margin." — See Sutherland v. Cox et al, G 0. R. 505, p. 67. "Matter." — See Brigham v. McKenzie, 10 O. R. 406, p. 542. " Meetings of electors." — See East Middlesex Election (Ont.)—Rhoder v. McKenzie, 1 E. C. 250, p. 493. " Mode of chance." — See Regina v. Jamieson, 7 0. R. 149, p. 296. "Navigable waters." — See Rattl v. Booth, 11 0. R. 491, p. 706. " Near." — See Bickford v. The Corporation of the Toion of Chatham, 10 O. R. 257, affirmed 14 A. R. 32 p. 594. "Neglect or refusal." — See Vogel v. The Grand Trunk R. W. Co., 10 A. R. 162. " Negligence and default." — See Vogel v. The Grand Trunk R. W. Co., 10 A. R. 170. " Negotiation." — Of debentures "for the pur- pose of carrying on the company's business." — 8ee Bank of Toronto v. Cohourg, Peterborough and Marmora R. W. Co., et al, 7 0. R. 1, p. 177. " Not being in public use or on sale for more than one year previous to his application in Canada."— See Smith v. Goldie, 9 S. C. R. 46, p. 513. " Note of hand. " — See In re Summerfeldt v. Worts, 12 0. R. 48, p. 296. " Notice, condition or declaration." — See The Grand Trunk R. W. Co. v. Vogel H S. C. R. 612, p. 588. " Now in and upon." — See Donnelly v. Hall, 7 0, R. 581, p. 61. "Obstruction." — See Regina v. McDonald, 12 0. R. 381, p. 382. "Occupant." — See Comvay v. The Canadian PacHic R. W. Co., 7 0. R. 673, p. 581. "Occupied lands." — See Davis v. The Cana- dian Pacific R. yV. Co., 12 A. R. 724. p. 582. ' ' Offer or promise of money or other valuable consideration." — See North Ontario Election [Ont.)—Treleaven v. Oould, 1 E. C. 1 p. 490. " On the understanding that I pay no expen- ses."— See Ryan v. Sing, 7 O. R. 266, p. 655. "Ordinary section."— See Page et al. v. Proc- tor, 5 O. R. 238, p. 238. "Otherwise dispose of." — ^aa Kennedy et ah v. The Corporation of the City of Toronto et al. , 12 0. R. 211, p. 182. "0^v^^er." — See Regina v. Swalwell, 12 0. R. 391, p. 4G3. "Party to a cause." — See Cameron v. Allen, 10 P. R. 192, p. 203. " Payable at par." — See Rose-Bel ford Printing Co. v. Bank of Montreal et al, 12 O. R. 544, j). 41. "Pedlar."— See Regina v. Coutts, 5 O. R. 644. 649, p. 458. " Per."— See Brown v. Howland, 9 0. R. 48, p. 48. "Person aggrieved." — See Atkins v. Ptolemy, 5 0. R. 366, p. 447; Hays v. Armstrong, 7 0. K. 621, p. 504 ; Vcrratt v. 'McAulay, et al, 5 O. R. 313, p. 564. " Person for whose immediate benefit an ac tion is prosecuted." — See Macdonald v. Norwich Union Ins. Co., 10 P. K. 462; Minkler v. M<- Millan, 10 P. R. 506, p. 226. " Petty Chapman. " — See Regina v. Coutts, 5 0. R. 644, 649, p. 458. "Placed in position." — See Harris v. Moore etal, 10 A. R. 10, p. 239. " Policies in Canada " — See Re Briton Medical and General Life Association (Limited), 12 0. R. 441, p. 347. "Possibility."— See In re Melville, 11 0. R. 626, p. 181. "Preference." — See McLean v, (?a?'^a«rf, Cas- sel's Digest 178. "Proceeding." — See Brigham v. McKenzie, 10 P. R. 406, p. 542. "Proprietor." — See Conway v. The Canada Pacific R. W. Co., 7 0. R. 673, p. 587. "Prosecution." — See Regina v. Meyer, 11 P. R. 477, p. 168. " Provincial objects." — See Clarke v. Union Fire Ins. Co., 10 P. R. 313, p. 85. " Reasonable wear and tear." — See Crawford V. Bugg, 12 0. R. 8, p. 396. " Reasonably Immediate." — See Longwayq. t. V. Avison etal, 8 0. R. 357, p. 388. "Relating to the insurance." — See Anchor Marine Insurance Co. v. Corhett, 9 S. C R. 73, p. 340. " Running at large." — See Ibhottson v. Henry, 8 0. R. 625, p. 317. "Sale."— See Regina v. Hodgins, 12 0. R. 367, p. 364. "Scrip." — See Regina. v. Chayter, 11 0. R. 217. "Seized and detained as subject to forfei- ture." — See Regina v. Fearman, 10 O. R. 660, p. 165. "Shall no longer apply." — 'See Regina v. Swalwell, 12 0. R. 391, p. 74. "Short."— See Sutherland v. Cox et al, 6 O. R. 505, p. 67. "Step in the cause."— See Re Donovan — iri7.soft V. Beatty, 10 P. R. 71. 759 WORK AND LABOUR. 760 ft! i I I "Stored or kept."— See Mitchell v. The City of London Fire Im. Co. (Limited), 12 O. K. 70«, p. 341. " Syndicate."— See Morrison et al. v. Earla. B 0. 1{. 434, p. 274. " Taking of land under the Railway Acta."- See James v. The Ontario and Quebec Ji. IV, Co.. 12 U. K. ti24, p. 349. " Tenant."— See Conway v . The Canada PaciHc It W. Co., 7 O. R. G73., p. 581. "To be safely carried."— See May v. Ontario and Quebec J{. iV. Co., 10 O. R. 70, p. 425. " Treating."— See U'cH Himcoe Election (Ont.), —Bedford v. Phdps, 1 E. C. 126, p. 501. " Tug" not a building.— See Mitchell v. The City 0/ London Fire Jnn. Co. (Limited), 12 O. R. 707, p. 341. "Trifling. "—See West Himcoe Election (Ont.)— Bedford v. Fhelps, 1 E. C. 120, p. 498. " Upon the following trusts."— See Kennedy \ tt al. V. The Corporation of the City of Toronto et al., 12 0. R. 211, p. 182. " Use the market place for the purpose of sell- ing. '—See Uufma v. Reed, 11 U. R. 242, p. oo5. " Vacation. "—See Blake v. The Buildimj and Loan Association, 10 R. R. 153. p. 072. "Vendors who shall voluntarily use the said marketplace for the purpose of selling. "—See Begina v. Beed, 11 O. R. 242, p. 385. "Voluntary."— See Whitney v. Tobyetal.,Q O. R. 54, p. 283. " Wares. "—See Begina v. Chanter, 11 O. R. 217. "Warrant and defend."— See Green el al. v. Watson, 10 A. R. 113 p. 515. "Was done in pursuance of the authority of this Act and the special Act.'— See May v. Ontario and Quebec B. W. Co., 10 O. R. 70, p. " Water's edge."— See ife Trent Valley Canal and Lands Expropriated at Fenelon Falls, 12 O. R. 153 p. 180. "Wilful delay,"— See Miles v. Boe, 10 P. R. 218, p. 505. "With intent."— See Whitney w Toby et al., 6 0. R. 54, p. 283. "Without prejudice."— See Omnium Securi- ties Co. V. Bichardson, 7 0. R. 182 p. 222; Var- don V. Vardon, 6 O. R. 719, p. 221 ; Pirie v. Wyld, 11 O. R. 422, p. 222. I. Remuneration. WORK AND LABOUR. 1. Remuneration. 1. Subject to Certificate or Decision of third person, 760. 2. Penalty for Non-performance, 761. II, Miscellaneous Cases, 762. 1. Subject to Certificate or Decision of third person. The plaintiffs entered into a contract with the defendants to construct a cedar block roadway, &c., according to plans and speuiticationp, ancl to the direction and satisfaction of the city engineer, &c. Payment was to be made monthly at the rates mentioned in the tender, during the progress of the work, upon tlie enguieer's cer- tificate anil that of the chairman of the com- mittee, and until the granting thereof no money was to become due or payable. A drawback of 15 per cent, was to be retained by the corpora- tion until after six montlis from the time of the final certificate, shewing the satisfactory com- pletion of the work. By tlic by-law no con- tractor could demand payment until he should present to the treasurer a certificate from the engineer, &c. tating he had examined, measured and computeii the work, and that the same was completed, or that the payment was due on such work, and also stating what the work was on which such money was due ; also that every account before being paid should be certified by the engineer, and by the committee under whose authority the work was done ; and the treasurer should not pay such accounts unless furnished with the two certificates : — Held, that the re- quired certificate must be in writing. By the conditions found with the specifications the en- gineer was the sole judge of the quantity and quality of the work done, and his decision was to be final and conclusive as against the contrac- tor : that monthly payments up to 85 per cent, of the work done should be made, &c. , on the measurement of the engineer, such certificates to be binding only as progress certificates, and in noway to affect the final certificate, which should only be given on the whole work being com- pleted and measured up, and at the expiration of six months when a certificate for the balance should be issued by the engineer. Part of the work required to be done by the plaintiffs was the raising and removing of the street railway ties, &c., and replacing same after the grading and ballasting had been completed. The plain- tiffs did not replace the ties, &c., as the stretc railway company elected to do the work them- selves, but the plaintiffs sent in their accounts charging therefor as if they had ilone the work. As to a portion of the work there was no certifi- cate by the engineer that the work was done or that the price was payable therefor ; and as to the other portion the acting engineer wrote under the account sent in " allowed one-third of above ^521.66;" and then undjr this was written "certified for the sum of $521.66." On the back of the account the engineer subsequently certified that he had examined the account, and that plaintiffs were entitled to recover the sum of $521.66, which v/as paid to the plaintiffs. Under this certificate the plaintiffs claimed that they were entitled to recover for the whole work done, as this was the effect of the certificate : — Held, that as to the first-named portion there could be no recovery by reason of the absence of a certificate ; and as to the other portion the certificate did not shew that the work was done to the engineer's satisfaction or was completed, or that the payment demanded was due ; but at most that one-third of the work was done, and which had been paid for ; and therefore nothing Was shewn to be due to the plaintiffs. Ardagh 760 *TION. icision of third person, a contract with the I'llar block roadway, (I specitications), and ijfaction of the city a to be made monthly le tender, during the 1 the engineer's cer- airman of the com- ing thereof no money jle. A drawback of ned by the corpora- from the time of the he satisfactory com- the by-law no con- meut until he should certilicate from the examined, measured id that the same was lent was due on such at the work was on ue; also that every hould be certified by nmittee under whose le ; and the treasurer mts unless furnished —Held, that the re- in writing. By the specifications the en- of the (quantity and vnd his decision was s against the contrac- its up to 85 per cent. ! made, &c. , on the r, such certificates to certificates, and in titicate, which should )le work being com- vnd at the expiration icate for the balance jineer. Part of the ly the plaintiffs was jf the street railway ne after the gnading npleted. The plain - es, &c., as the streec ) do the work theui- snt in their accounts f had done the work, there was no certiii- lie work was done or ) therefor ; and as to engineer wrote under 3d one-third of above iv this was written f $521.66." On the agineer subsequently ned the account, and to recover the sum of the plaintiffs. Under fa claimed that they for the whole work of the certificate :— named portion there rson of the absence of e other portion the .t the work was done n or was completed, ded was due ; but at work was done, and nd therefore nothing ) plaintiffs. Ardagh 76i WRONGFUL DISMISSAL. ?2 0. R. 2?6-cTd "" "^''^ ^''-'^ "^ '^'"•'"'"'' 2. Penalty for Non-perfonnance. One M. by a written contract, agreed with the defendant for the erection of I dwelling house in two months from date, and if M. neg^ ected to build the house defendant was to be at liberty to purchase material and employ work- men to fimsh ,t, and .leduct the cost of the material, &c., out of the price. The plaintiff agreed to supply M. with liunl.er to be used 2 tiie mil, ing, and M., after a portion of the lum- ber had been placed in the building, gave plain- tiff an order on defendant for the sum of $U\ 46 expressed to be "for lumber used in your house one month after the building is Hnished," which the defendant accepted. M. failed to complete the building, and the .lefendant employl.l a third party to do so in accordance with the terms of he agreement :--Held, per Hagarty, C. J. 0., and Morrison. J. A. (affirming tl.e judgment of the County Court) that the defendant was liable to pay the plaintiff, notwithstanding M. did not complete the building. Per Burton! J. A. The defendant was entitled to -ieduct whatever was properly expended in completing the building under the contract, and the balance only remain ing in his hands would be applicable to the pay- 762 ment of the order, but this balance according to 10 A^'^R 24.' ''"'"" «»ffi<=ient. Qanier v. Hayc., Chatterton v. Crothera, 9 O. R. 683, p. 525, II. MiSCELLANEOas CaSE8. Per Proudfoot, J. A son working at home upon his father's place would not l)e entitled to recover for work and labour in the absence of an agreement to that effect. CampMl v. McKer- richer et al., 6 O. R. 85. ^eeSpearx v. Walker, \\ S. C, R. 113, p 93 • McLennan v. Winston et al., 12 0. R. 431 j pp.' WRITS. I. Of Summons— 5ee PRAcxrcE. II. Other Writs — See Their Several Titles. WRONGFUL DISMISSAL. -See Master and Servant. i I ^ s I I I APPENDIX l'tL\TALMN(; A DIGEST OF CASES REPORTED IX VOLS. 1 •' VXD 5 OF UARTWRKJHTS OASES OX THE I'.RITISH XoRTli A^FERICA ACT, Isi;:. (•(■hiiiihd 1,11 J,,h)i R. Co.rtvrhilii. E.-'i. ACT OK PROVINCIAL LElMSLA-'^''''" TURK— Test of Validity of . i. 351 .S(( I'ltoviM'iAL Lkcislatvhks, 3. ADMIXISTRATIOX OK Jirs TICK — J"i'"is . . . ii. MA, im, lu *( CiuMiXAi. Law, d, 10. A]iiioiiitin('nt of Aragistrates. i. «10 ; ii. 317, 034 ''in ■rt'sTICK.S OF THE 1'kack. ALOOM A— Coiiinii.ssion of Oyer and Teriiiiiici- to District .rudgc— Fower to issll^' ..... i. 722 :>'ii I'liK[!()(:ATI\KOFrHE0uo\V.V,l! AIT'EAL— Hdncatiou. . . i, ,si(j Sii Dknominationai. Schools, 1. Royal Prerogative us to admit- t'liff i. 2.")2; ii. 1 'Sd PaNKRUI'TC'V ami In.soi.- VKNCY, 2. PkKKOCATIVE ()!•' THE CliOWX, 2. Special Leave . . . i, ]:,s ■•<(( I'hovinciai. CotiiTs. Trial for Felony . . j, .-,- >Vy PuoVINCIAt. L'wilsr.ATl-KES, 1. ASSKSSMJ:XT.- Income of Domin- ion OtHeer. . . . . i. 51(2 S(i Taxation, 3. Lidian Ijands Nil rNinAN Lami«. ASSURANCE P()LICIKS-P<.wer to Tax i. IK S(< lAXATlON, 2. Regidation of. . . . i. 2iJ.") .^Vf TUAOK AXl) CoMMKUCi:, L ATToR. KV-(;EXKKAL. Til.. At- torney-lJeiieial of tin- Province is tin- otticer of the Crown v.lio is considerefl as lucsent in the Courts i f the Pro\ ■ i. S31 l'A(.E. mce to assert the rights of the Crown, and of those who are under its pro- tection. The Attorney-General of the I'rovince, and not t'ho Attoriiey- (iener.il of the Dominion, is the pro- per iKirty tofilean information where the complaint is not of an injurv to proi)erty vested in the Crown'as 'rep- resenting the Covernment of tlie Do- minion, hut of a violation of the rights of the imhlie of the Province even though such rights are created liy an Act of the Parliament .if the Dominion. The Attorney-General of the Province is the jiroper |ii rson to Hh' an information in respect of a nuisance causal hy interference with ■I railway. Though the power of making crimin;il hiws is vested in tin- Dominion Parliament, the Attorney- General of the Province is the pr.,j,er otticer to enforce those laws by prose- euticiii in the (Queen's Courts "of Jus- tice in the Province.— .4;^.r;if//-r,'/,(. "•')/ \. A7«;/"7v/ Fnl/s Intcrn'utinnnl liridiH Co.— Chv., Ont. , . i. 813 "~; — -• An Act of the Dcjininion Par- liament incoriKirating a company for the pur]po.se of constructing a bridg.' across the Niagara River from Can- ada to the I'nited States, directed that the bridge should be "as well for the passage of [.ersons on font, and m carriages, and .itherwise, as tor tiie passage of railway tr.kins." Th<' bridge was conipletetl for rail- %ya.v purposes ■(,!> y. nilixh.-V.C. . . i. (i3 L'. The B.N. A. Act.LSOT, s. !J1, ill assigning to the Dominion Parlia- luent til"' sulijects of bankruptcy and insolvency, conferred on it legislative powiT to interfere with property, civil rights and procedure within the Provinces, so far as these might be art'i'cted by a general law relating to those subjects; conseciueiitly the Dominion JMiactnient, 4(1 Vict. r. 41, v. "JS, providing that tli!^ judgment of the Court of Alipeal in matters of insdlvency should be Hnal, /. < ., not subject to the ap|ieal as of right to Her .Majesty in C'ltiucil, allowed by the Lower Canailii (Jivil Procedure Code, Art. 117^*, is within the' com- petence of thi' Dominion Parliament and lilies not infringe the exclusive! powers given to the Provincial Legis- latures by section U2 of tiie Imperial Statute; nor does it infringe the t^Uieeirs prerogative, for it only limits the right of appeal as given by the Code. The section according to the true eonstrnction of the woi.l " linal "' therein, excludes appeals to Her Majesty, Imt contains no worils which pnriiort to derogate from the prerogative of the (^neell to allow such a|ipeals as an act of grace, (t, therefore, does not interfere with the prerogative of the Crown ; and, i|iiore, what powers may be possessed liy the Parliament of Canada so to do. ('i(ril/i()' y. Aiihriii (2 Knapp's P. C. C. 7-') reviewed.— C"NI,„/,.-V. C i. 252 —— 3. Section oOof thi' Insolvent Act of 1S(I!I, which provided thatclainisby and against assignees in insolvency might be disponed of by tlie.Judge of the County Court or l)y the County Court on i>etition, and not by .-uiy suit, attachment, opposition, si-izure or other proceeiling whatever, was helij not to be beyond the power of the !)ominion Parliament, Viecause the right to legislate on the suliject of banki-nptcy and iiisolv encylieloiigs exclusively to that i'arliaineiit. and because at the jiassing of the P>. X'. A. -Vet thei'" wa:' a system of pro- ceeding ill insolvency in force in the former Provinces of Upper and Lower Canada very similar to the one established by tlie Act of bSli'.t. — Criiiiihii v. JtickMin.— ^l. B., Out. . i. 4. An Act of the Dominion assuming to provide for the liquida- tion of all building societii's in the Province of <^»ueliec, whether solvent or not was held to be beyond the competence of the Dominion Parlia- ment. — .McCUniiniliiin v. Tli< St. AnvK Matiiiil Jinil'tiivi Suriitii. — '}. B., <2uebec. . . . . ii. 5. .\n official assignee, or his agent, acting undi'r an Insolvent .\et of the Parliament of Canaila, can sell by auction thi' goods of a liankru]il: without taking out a license therefor; and this right cannot be restricted by a Provincial enactment. The i,!nebec License Act, 1S70, in so far as it seeks to impose a tax on the sum realized from the sale of an insolvent s etfects when made under the Insolvent Act of ISCiil, 32 33 17r<. f. 11), and to restrain the iiovvi-rs of assignees in iiutting that .Vet in operation is invalid, ('o^ v. Wat- ■ftiii. — Sujierior Ct., (Quebec . . ii. (i. Section .')!• of the Domiidoii Insolvent Act of 1S()9 provided that no lien or privilegeuiion the |iro]ierty of an insolvent slmuhl be created for a judgment debt by the issue or deliviu-y to the sheriff of an execu- tion, or by levying upon or seizing thereunder the effects or estate of an insolvent, if, before the payment over to the plaintiff of the moneys levied, the estate of the debtor had been assigned or jilaced ir. lirjuida- tioii under that .Vet: //''(/ to be within the competence of tilt Do- minion Parliament — Kiin\< ii \ . hml- man. — Supreme Ct., N. S. . ii, I'.VOK. (. .All Act which jirovidi tor the examination of a debtoi' before a .Tudge, and which authorizes the .Tudge to grant the debtor a dis- charge from gaol or the limits as to the suit fcr which he was coiitiind, on iiroof that he is unable to jiay his debts, and that he has made no fraudulent transfer or undue iire- ference, is an Insolvent -Vet which a Provincial Legislature has no powci' to pass, since the B. X. .V. Act en-: into force, anil the assent of the (tovernor-C Jeneial does not inak*^' such an enactment valid. — Tin (Jiicm V. (7;rtHe the sul)iect iMicylii-loiigs liaiiieiit. aii'l ,,f tlie I'.. N. •stnn of pro- 1 force ill the rplii-r ail'i iiihir to the U-t of ISIil).— . T.., Out. . i. (. Iiciiiiiuioii the Hciuiila- •ieties ill tlie i-ther soht'Ut • lii'yoiid the iiiion I'iirliu- V. Thi St. I Illicit til. — ' }. ii. i.sri •JH7 ignee, or liw Insolvent Aet iiaila, can sell f a l)ankruiit I'lise therefor; be restrieteil ■tliient. The ISTO, in so lose a tax on ;hi' sale of an 1 made nmlor f ISCi'.t, :i2 .V.^ lin the iiowi-r.s [ that Aet in 'ot'' .hee V. ir 34S hr D.iniii'ioii irovided that I the iiro]ierty created for the issue in" f an execu- 111 or seizinj; estate of an till' payiiiont )f the moneys ' (li'l)tor had d iv. liiiuida- A'-/,/ to lif ' of tin l>o- iitm II y. hii'l- S. . ii. provido- for 'litor liefori' .a thori/es the I'litor a dis- limit> as to was eoiitinoil, to pay his las inadi' no undue pre- Act which a has no pow( ,■ \. Actea". ssent of the s not mak« . — Till tifinrn Ct., X. r.. ii. ire of Xew union, passed gaol limits, lie into opera- 412 vn I'.M.K. tion until April 1st, ISi'tK, and liefore that dati', Imt after tlie union, it wan repealed Ijy a -uliseipii'iit enact- ment : Hdil, that tlio sulijict of gaol limits docs nut so relate toinsol- vency as to make the repealing Aet ultni vivfx. — MrAliauii v. i'hu.— .'. An Act of the Legislature of X'W Brunswick, abolishing imprison- ment for di'bt, was held not to lie iiftni n'ri.". slii'wn to bo X. n. as ro-^pi'Cts a party not a trader or subject to till" Dominion Ins.plvint Act.— ^Icw- <'rii)Hi V. McCiitchiii. — Su|)i'enie Ct., ii. 4it4 10. An Act of the Legislature of Xi'W I'lrunswick providing that an .e.'ainst the assignee of the yrantor under any law relatintr to insolvency, a bill (if sale slmuld only take elfect trom the time nf the tiling thereof, uas held to lie within the eunipetenee ■ f the Letrislatui'e, /,( /•. ]>< Vil,tr, -—Supreme Ct., X. 11. . . ii. 11. The hominioii Parliament, by it~ Insolvent Act of ls7."i, eiia.cted that any iiersnn who purchased goods on credit, knowing nr lielieviiig him- -elf to be unable to meet hi^ engage- ments, aiifl concealing the fact with intent to defraud, and v. ho does not afterwards pay the debt, shall lie lu-ld truilty of a fr.'iud and be liable to imprisonment for two years unless the debt and cost^ are sooner |iaid, provided that in the suit for the re- covery of the debt, the defendant is L'harged with the fraud and declared ^•uilty of it l.iy the judgment rendered in till' suit. The plaintitf ~ued for 1,-iiods >old and delivered to the de- fendants who afterwards became in- solvent under the Act, and charged tliem with fraud in the terms of the Act: l[il<( by a majority of the .Iiidtres of the CoiMiiiiin I'leas, liy two dudges of the Court of Apiieal, and by three .Fudges of the Suiireiiie Court (the other thret' giving no opin- ion on this point), that the enactment is within the competence of the Do- minion Parliament. — I'ukw SliUlil.i. -C. A., Ont iii. L'Od 12. An Act of the Nova Scotia lii'gislature for facilitating arrange- ments between Railway Companies ami their creditors, provided that a company might pi-opose a scheme of arrangement between the company and its creditoi-s and tile the same in Court and that thereafter the Court mi'^dit, oiiaiiplicatioii by the company, restrain any action against the com- pany on such terms as the Court might think tit. The Act also provided that notice of tilinir the scheme should lie published, and that thereafter no execution, attachment, or other pro- cess against tlie in-opertv of the com- pany, should be available or be enforced without leave of the Court : //(W, by Ritchie. .1.. that the above jirovisions related to bankrii|)tcy and insolvency, and were in excess of tlie powers vested ill a I'rovincial Legis- V.KCV.. lature. — Miinhirh v. Win'hur il' An- iiiijiiili.^ Riiitirini Cii. — Supreme Ct., X. S. . iii. ;4iis IX liy An Act of the Legisla- ture of Xova Scotia, provision was made for the winding-up of companies in general, where a resolution toth.-it cH'ect was passed by the company, or where the Court so ordered at the instance of a contributor, on its being made to appear that such order was just and eipiitalile. The Act I'ould be enforced although no debts were due by the company, but could not be (ailed into operation by a creditor : //'/./, that the .Act did not iiartakeof the character of an insolvent law, .■mil uas within the Ici^islati ve aut h"- rity of a l'ro\incial Legislature. — /e ,■' 'Till Wion> of an Act of the Legislature of Xova Scotia, "to facilitate arrangements between Railway Companies and their credi- tors," tlie W'iiid-orifc Annapolis Rail- way Company proposed an arrange- ment whereby the so-called T. deben- ture .stock of the company then bearing interest at the rate of li pi"- cent, was '■abrogated and deter- mined, "and in lieu thereof theholdel- of said stock were to receive allot- ments of new stiK'ks thereby created, bearing lower rates of interest, and otherwise ililferingfroiM the stock for which they wen- substituted: J/i''/ (Weatheib'e, .r., dissenting) that so much of the Act as was necessary to the contirmation of the jiroposed scheme was within the legislative .luthority of the Legislature of Xo\a Scotia.- Iii Whiilsnr ,{■ Aini'ijinlis Riiihrini. — Supreme Ct., X. .S. . iii. Imprisonment of debtor , ii. Sii Ckiminai. Law, 7. r.AXKS AXl) P.AXKIXli . . i. Transferof Warehouse Recei]its. Su Lir.r.s ok Ladi.no, 2. Taxation of Dominion Notes iii. ;!77 Sii Tax ion, '^. HILLS OK LADIXO AXD WARl' I IOCS KRi:Ci:iPTS.-.V Provincial .\ct to the effect that all rights of suit should pass to the consignee of goods named in any bill of lading, or to the endorsee thereof, to whom the liroperty in the goods should be trans- ferred by hucli consignment or en- dorsement, and that every such instrument representing goods to have been shijiped should, in the hands of a consignee or endorsee for value, be conelusiveevideiice of ship, ineiit as against the person signing the instrument, was held not to be beyond the powers of the Provincial Li'Kislature as being an inteifeience with trade and coinmerce. Jliaril v. Stnli.—^}. P.., Ont i. lis:? 2. The Dominion Parliament has power to legislate with resjiect to liroperty and civil rights, so far ns ;w7 ."••J7 •"IL'S neci s-iary for the exercise of its juris- diction over til" subjects assigned to it by the H. X. A. Act. Per Sjiragge, C. : The Dominion Act, M Vict. c. ~_, APPENDIX. ri/.i'> thy triinsfer of Wiiii'liiMiHf receipts to hanks hy (lilt Jt eiulorseiiient, is within the powers assigned to the Dominion I'l I I'li anient and is valich — Smith \. The Ml rclwiits li'i)il;.*-C\\\., Ont, i. ,SL'S BRKWKRS. -License .S'(y LiCKNsKS, 1. i. tit ii. ;W2 CANADA. -~KlectiKTHKC|{i->e> the ^aii.e capacity and franchises witiiin tli" juri-dictiou iTi-ating it a.^ a comijany incorpiirateil by tlie Iiiip'-rial or Do- minion Parliament^; and may enter into contracts outside the Province wherever sucii contracts are recog- nized l)j' coniity or otherwise. The term "Provincial olijccts " in the B. N. A. Act refers to local objects witiiin a Provim-i', in contradistinc- tion to objects which are common t" all Provinces in tiieir collective ,,v Dominion (piality. — Clitrk' v. i'liint, Firi Inxiiniiifi C'l. — Master's Ottici-. Ont. iii. Me-"' CONTRACTS-Regulatinn. . i. 2()r) Sic TliAhK AMI (.,"OM.MKK( K, 1. COPYRICHT— y.'/V',' /•. !,. N. A. Act was not in- tended tocurtai! tiie paiainount autli- ority of the Imperial Parliament a^ respects any of the matters assigned by the Act to the exclusive jurisdic- tion of the Dominion Parliament, or of the Provincial Legi-latures. .\l! that the B. N. A. Act intended t- effect by s. HI, sr,l)-s. 23, as to copy- right, w;is to place the right of di'al- ing with colonial co|>yrigiit within tin Dominion under the exclusivecontri' of the Parliament of Canada, as ili^- tinguished from the Provincial Legis- latures, in the same way as the Ac; has transferred the |iower to deal with Ijaiiking, liaiikrnptcj" and insolvency . ;.nd other specified subjects, from the Provincial Legislatures, ami placed them undi-r the oxclusive jurisdiction ami control of the Dominion. The Parliament of the Dominion has ni gri'ater power to deal with the sub- ject of copyright than was possessed l)y Provincial Legislatures prior to Confederation. The Imperial Copy- right Act, .') & () Vict. c. -15, was in force in Canada at the time of Con- federation, and i< in force in Canada still. It is not alt'ected by the Cana- dian Copyright Act of bS7."3, which Act is also in force, — Sini'cn v. Bel- /on/— C. A.. Ont. . . . i. -^'rfl COIFNTY C( )URT .rUD( i K.-By the ]'.. N. A. ,\ct, l,Sfi7, sect. Dli, the Gov- ernor-Ceneral is authorized to ap point the .Muiges of the County Courts, and the Provincial Legisla- ture of Ontario hail no powiu- to pa-s an .\ct authorizing the removal of County Comt .ludges by the Lietiten antliovernor f.,r incapacity or mis- behaviour and had not power to pass an Act abolishing the Court of Im- peachment, which existed in Canada iiefoiv the p.. N. A. Act. for the tri.il APPENDIX. 10 within the • ri'straine<1 ill viiihiti'iii n a jM-'titiiiii ie(l to that V>r C'oliini"- Ass'icidti'')., '/»// anil III ii US |iMi-atfd liy a .,r thf l'U>i- SI':- thf -aihi' within till' > a CMiiupany )iiial i>r 1 '■'- il may cntfi' h,. I'lovincf s aiv ri'CDK- Twisc. Thf tt> " in the local objects iiiitradi-tinf (■ common to ci41ectivf iT rki V. i'lii'it, l^ter'.- < )tticf. iii. 1. L'lij iin. KKCK, 1. . h'liflati ox t wa.-. not in- aiiionnt auth- 'arlianient a^ ;ters a-signe't n>ive jiiri> to cni.y- ijfht of di-al- ;lit uitiiin the iu^iveconti-i'', .nada, as di^- ineial Le,i,'i>- ■i the Act TtM deal with 1 iusnlvfncy. ■ct>. t'l'iim the and placed inris(licti"ii minion. Tiie inion ha.- ni^ witii the sale wa- 1 assessed nts ])i'ior to rial Co|)y- 15, was in time of C'nn- _ ill Canada hy the Cana- ifS?."), which 'i,i)'r.^ \. I'll- i- • )(;i:.— Bythe 1)1), the iJov- ni/.eil to ai>- the Comity icial LeBfisla- |)iiwer to |ia«s removal of vthe liii-nteii- acity of mis- iciwer to pass C.mrt i.f lul- led ill Canaila t. for the trial '7(1 1' r.xcE. I'l charpe^ a^'ainst C' lm|iei'iiil .Vet, 22 (4e(i. III. c. 7o, Imt there is nn ; lower iind^-r that Act. or the Con. Stat. C. c. 13, or nndir tin- Common Law, to i-sne a connnission for n pro- liminary in<|uiiy under oath with respect to such charL"s. --/,'( S'luitr — >>. l;.. Out i. TX'.t I'owi'r to coiif.'i- jurisdiction 'in. ii. CO.-,; iii. ;{T.) >" .Jlimiks. l>, :!. CmUKTS- Constitution of. . ii. CO'.', f,.');?, >(, ^<' ClilMlNAI. I..\u, S, 10. I'owi'i- to constitute . i. ')')'! ■<•' >[.\!iiTiMK C'Hirr. I'ower to impo-o duties on. i. loS -<<( I'lidVINCI.M. C'lfliTS. CKl.MIXAr. LAW. An information nid''r an Ontario Act for scllini^ intoxicating,' licpior- on Suiiflay was lif'Id to be so far a charntario, K. .S. ( ). c. 1)^1, by which it was pio- viiled that any person who, on any prosecution under that Act, tampered with a witnessor iiiducedorattempted to iiuluce any such person to absent himself or to swe.ir falsely, should lie liable to a penalty of .s'lO, was tlmre- lore held to be invalid. — I'mina v, L„.rr.,ir<—n. K., ont. . ' . i. 742 ;>. A I'rovincial V^e'^ri^latnre has power to re},'ulate procedure alfecting pt»nal laws v.hich s'lcliLetfislatnre has authority to enact. Preach of a Pro- vincial .Statute is not a "crime"' within the iiKMiiint,' of s. !)1, sub-s. 27 of the P>.N'.A. Act.— /'"//'^ V. i.'ritHtfi. —<}. P.., I^lebec . . . ii. 2!)1 4. A Provincial Lee'islature has power torei,'ulate procedure .•dfectiu}^ penal laws which such T^ej,'islature has iuithority to enact. A Statute nf *i>uebec havinir pro\ideil th.it no pro- ce.'iliiij.'s in ci\ il matters before a I )is. trict Maifistrate shoulrl lie removed to any other Court tiy a rtiuniri or otherwise, it was held that a jiro- ceediiifr b fore a District May^istrate for tie enforcement of jienalties Mider the Licence I^aw of the Pro- vince was a civil proceeilintr within I'AGK. this enactment, and that the riffht to ri rtiontri was taken away.— AV /«(/•/( /y'Oovfji.— Superior Ct., nebcc. ii. 2!)7 5. .\ Provincial T^e^rislalure has power to rej^'ulate procedure alfectinj; penal law- tthich such Leg-i.-lature lia- authoritv to enact. — /'<"/' \. '.■n'fiilh.—ll. h., •Jiehe(t . . ii. oO.v (j. A I'rovincial Legislature has power to regulate procedure affecting penal laws which such Legislature has authority to enact. An enact- ment of the),)ueliec Legislature ple- scribiiig the mode in which penalties for \iolatioiis of a Statute of the Province (tl Vict. c. H) are tu be en- forced, was held to be valill.-^'ll^ V. ( Ikiiiviiih. — Superior ('t., <^)ueliec, ii. ;;n 7. -V Provincial TiCgislature has power to ]iass an enactment for the impri-oiiment of a person making 'lefault in iiaymeiit of a sum due on a judgment in case (a) he has had since the date of the judgment or (II) the liability was incurred by obtaining creilit under f;il>e pre- tences, or by mi'ans of any other fraud, .N..\. Act, 1S(»7, subject always to any pro\ision in any ,\ct of the Parliament of Canada, and in so f.ar as such laws are not inconsistent with .•my such .Vet." Acts were .ifterwards passed by the Ontario Legislature chang-ing the mode of selerting juroi's in that Province . //-/ i ^ I'AGK. that ;i sL'li'ction (if jninrs iiiudu in the luaniicr ihi'sci'IImmI by the Ontarin Acts was valiil f'H' tlic iiui'pnsi' nf a criiiiiiia! trial. — Jic/inu v, <)' llnark' . —.. Out. ■ . . . ii. lilt 10. The Acts IvhltillL' tn tllc atti'iidaiiceiif ti'raii'l anil [ictit jui'dM at till' Cniuity Cnurts (Courts of criminal jurisdiction o\cr al! crimes wliich arc not ca|)ital), are within the )i()\vers of the Jjocal fje^'islature, under the 1!.N.A. Act, lsii7, sect. ilL'. as |)ertainiii^' to the " Administration of .Iusti(;i'' anil the "Constitution aT\d or^'anizatioii of I'rovincial Courts," and do not lieloiig to the I'arlianient of C'anada, undei- sec. !(1, as " I'rocedure in criiiii;: il matters." — Ili'linii V. Full II. — Suiirenie Ct., N.Bi . . .' . . ii. ), it is iiro\ided that penalties aifainst Justices of the I'-ace for the nou-return of convic- tions may he recovi'red in an action of delit liy any person suinj; for the .same in any Court of l{ecord : llild, that this provision was within ihe Competence of the l-'ominion I'arlia- nient, and that a l'ro\ incial enact- •i;ei)t ''"'■larin^ that (Jounty Courts !erance Act. ii.(iO(i,(''l'' St I Tkmi'kii.\X{:i: Act OK 1.S64, 3. in'MTnll.—Piimr ttricted in the area ot its powers, but within that area it i- unrestricted. Hiltl, th.it the Customs Regulation Act of ],-<7!>, s. 1;«, was within the pleii.-iry ) lowers of legisla- tion conferred upon tin.' New .South Walls Legislatuieby the(,'onstitution Act, (Scheduled to' IS and 1!) A'ict., c. 51, ss. 1 and 4.")) : H< '•/. further, that dutie- levied by an ( h'der in Council issued under sect. l;-lo,aro reallylevied liy authority of tin' Legislature and not of the Kxeciitive. Also that undei' sect. Kiii "the oiiinion of the collector," whether right or wrong, authorizes the action of the (governor. —I'uurll V. AiKillu r,niil/i O/.— P. C. . . ... iii. 1:H2 .Sclcc-tion of .Inrors, ii. (ill Si I (.'ki.MINAI, LaW. 'J. I )EN( ).M IN ATK )N.\ L SCH( )()LS- A Pi'ovincial Legislature may legis- late in regard to Separate .Schools, ])rovided that the rig'hts or privileges with respect todeiiominational schools which any class of persons had by law in the Province at the time of Confeih'ration are not pn-judicially affected by sucli legislation. The ]). N. A. Act iirovides by subs. :-! of s. !l,3 that " Where in any Province a system of separate or dis- sentient .scllools exists by law at the Union, or is thereafter estalilished by tlie Legislature of the Piovince, an a])peal shall lie to the (iovernor- ( leneral in Council from any Act or decision of any I'rovincial authority affecting any riji-ht or privilege of tlie Protestant or Koman Catholic miii- 12 I'AOK. iiiWcrr- (if tllf — Hi III, fm- 1 Lf^fisl;ittir<- ^ct nt m)~ to oimMi>.-ii)m'i'h luliuiis of the 1(1 ly tn create lltil•^i tllcl'Ctd. '. c. . iii. in IS(il), (if rli(- licli i'Xchi(lt-> ■ Ilijrli C(n;rt 1 district.', i- I- Indian Hiiili i(;t. c. 104), -.r ■ llif,di Court, pjic within the he (MiVfVnol- Thc '.)th M-c-t. ifers n|ion the )f ]'.cn^;al the i-th( r the Act, \\f Miiiilied ill iditioiial h-gi>- atioii of h-^fi~- ■leiiai'V iiowi-r.' |Miticuhir>uli- iipi-iial or ill a , they may lie alisolntely or liter case leav- .sonie external lid manner of I into effect, as vhich it is to /■,'/(-l'. C. iii. JO!) ,'islatnre is not icrial LcK'-la; n the area of that area it i- t the Customs ::i, s. ]:{;•!, was iver- of le<,'isla- ic New .S(jUtll (■(.'olistitutioi! and lil A'ict., ■/, further, ttiat Icr in Council e really levie(l (■i>latiire and Also that linioii of the ir, or \vron>f, he (joveriior. ,./'( Co. — P- iii. ()44 SCHdOLS- ire may letri^- arate School-, ts or iirivileu'es iati()iialschool> cisons liad Ijy it the tiiiH' of lirejudicially islatii'in. The s liy suli-s. A'here in an)' eparate or di.-^- liy law at the ;er estalilislied the Tiovince, the (Jovernoi- 1111 any '^ct or icial authority privilege! of the Catholic mill- l.S APPENDIX. I'.VllK. ori'V of the 'Jueeu's subjects in rela- tion to education:'' //rely the every-day detail of the Working of a school. In elec- tion matters Separate Schools have til'' same right of apjieal to a County .Fudge us I'ulilic Schools have. — S) jHif'itt Sell mil Tnintiis of lil III rill I V. '>';•(((/'.'/( ''—Chy., (Int. . . i. Sl(i — — 2. The provisions contained in sect. Ho of the 15. N. A. Act, that iiotliing ill any law made by a I'm vince ill relation to education "shall prejudicially affect any right or jirivi- lege with respect to denominational schools which any class of iier.-oiis have by law in the Province at the Utiioii," indtect thosi; legal lights and privileges only which existed in each Province at the I'liion by virtue of p"~itive legal eliactliieiit. and not privil(.-gis enjoyed under exceptional and .iccideiital ciicimistaiices, and without legal right. At the I'nioii the law with respect to the schools in the Province of Xe,v P.ruiiswick was governed by tiie Parish School Act, under which no class of ]iers(in> liad any legal right or prixilege with respect to denomiuational school.-. ami a subsei|ueiit Act, M ^■ict. c. 21, providing that the schools conducted tliereuii(ler shimlcl be non--ectarian, was therefore held to be valid. The Cfjiistitutionality of the Act ;-i4 \'ict. c. 21, cannot be affected by any regu- lations of the Hoard of Ivlucatioii ina'le under its authority ; and sem- ble, if the Hoard of Kducation have made regulations which they ought not to have made, or have not made regulations which they shoulii have made, the case fills within sub-s. 4 of sect. \YA of the Pj. X. A. Act — Kx /iiirti Itoiiiud — Suiireine Ct.. N. B ii. 44.0 DIIM'X'T TAXATLON-Power to im- po.se. ..... i. li.'i, 117 Sa T.\XAiiox, 1, 2. UIVTSK )N COURTS-Apiiointment of .Fudges. . . . . ii. (iOri Si I .Ft IKJKsi, 2. DOMIXIOX CONTROVERTKI) !•: L !■; C T I O X S act— Electi. .11 Courts i. 1,")S Si- PuOViyci.M. CdflCI's. DCMIXIOX OFFICI'.R— .sv/:ynv „f iSdhirti ii/.] — .V Provincial Legislature has no power to declare liable to seizure the salaries of employees of the Federal (iovernment.-- A'cini.v v. Hmhiii — Sui>cri(ir Ct., 'Quebec . ii. H4(i Taxation of income. . i. 5!)3 S(l T.\X.\TI(1N, ;i. DOMINK )N (lOVKRXMKXT— Jio'- i.tilii'tion iiikI Prdjii rtii.\ I'nder the Ii. X. A. Act, 1S(;7, s. 108, read in coniu'ction with the third schedule thereto, all railways belonging to the Province of X'ova Scotia, including the railway in suit, jiassed to and be- came vested on the 1st of July, IHI!', ill tile Dominion of Canada, but not 14 I'Ai.K. for any larger iiiterot therein than at that date' belonged to the i'rovince. The railway in >uit beiiii;-. at the dale of the r-tatutory tran-fer, subject to an oblig-ation on the part of the I'l'o- vincial ( ioveriiment to enter into a traffic arrangement with the respon- dent company, the jlominion (iov- eriinient, in pursuance of that obliira- tion, entered into a further agreement relating thereto, of the 22n(l of Seji- tember. In? I. ','"" ''' , whether it w.is nitrii rin.t of the I loiiiiiiioii Parli.i- niuiit, by an enactment to that elb'ct, to extinguish the rights of the respon- dent comp.inv under the said agrce- nieiit. Hut held, that Doniinioii Act, 'M Vict. c. l(i, did not, upon its true construction, purport so to do. .Vnd although it authorized a tian.'-fer of the railway to tln^ a|ipellaiit, it did not enact such transfer in derogation of the respondent's riglits under t\\<- agreement of the 22ii(l of Septenilier, LS71, orotherwise. — ]\'iiomiiiion, it must be assumed that the liominion (iovernir.eiit inteiidi d the Coiiiniissioiiers to be subject to the law of the Province in which tin- trust was to lie administered.— /'( Tiirinitii Hnrliiiur Cumiaixsiinur^. — Chy., Out i. !S2,") Public Harbours . . ii. 117 .SV( IfAiiliOl us. Statutes. Si I SrATl TKS. I )( »M I XF( )X ItAlLWAY. -Power to traiL-fer i. ,SVv PliiniNClAI, Lkuisi.atuhks, 2. KDl'CATIOX. -Denominational and .Separate Schools . i. Sll'i; ii. Sa DkNOMLXATIONAL ScilOdl.s. Imperial Law. 2.'omiiiion. At 332 1.-) APPP:xDiy. it> i I ^ I I'Ai.K. the (latr of i>a.-binpr tlic !'■. X. A. Act tlic levfuui' aiisiiif,' ficiii all I'sclnatH til till' Cidwii within the tlicii I'rnv- iiR-f (if Caiiaila was siilijeL't tn tlii' lispiisal ami aiiiiidpriatinn of thi' Canadian Jji'},ns!atun', and imt of thf C'mwn. Altlioiij-di srct. 102 of the Act VL'stnd in tiic dominion tin' p ii- iTal public revcnui's, as then existing in the I'ldvincfs ; yet by sect. 10!) till' casual rcveniu'. arising from lands cscliiati'd to the (,'rown after the Union was icscivcd to the Provinces -the word.s •'lands, mines, minerals and royalties '" therein including, ac- cording to their true construction, royalties in resjiect of lauds s\k'1i as escheats.— -K^e/'/ii '/•'>'( (i( /v7 V. JAi /•- (■(/•.— P. C. . '. . iii. 1 i;VI I iKNCK." Per Torrance, J. The I'liniinion Parliament can confer authority uiion Courts and .ludges in Canada, to make iprders for the px- amination in the Dominion of any witness or ]iarty in relation to any civil or connnercial inatter [lending before any Pritish or l''oreign tri- bunal; am! the Dominion Act. iil Vict. c. 7t">, which contains provisions for this ; irpose, was therefore held to be valiil. — AV //r(;•^ ,Sw(y/( — Su- perior Ct., '^'ueliec ... ii. MHO 2. The taking of evidence to be used in an action pending in a foreign trilmnal is of extra Provincial per- tinence, and does not fall witliin the •exclusive legislative authority of the Provinces; the Dominion Act, 81 Vict. c. 7<'). iiroviding for the taking of such evidence by Provinciftl Courts, was therefore held to be valid. -B< WdhrriV „ml ,/..)„.v-Ch. ])., Ont iii. In Criminal ^[atters. . i. ,SV( CuniiNAi. TiAW, 1. KX POST FACTO LAW. -P.. wer to (■nact ii. ^V( Tkmi'KHANck Act oi' 18()l, 4. KXTRADITK )N.— The Imperial Ex- tradition Act of lfS70 is in force in Canada, notwithstanding that the B.N. A. Act, iireviously jiassed, gives to the Canadian Parliament jurisdic- tion to carry out obligations resulting from extraihtioii treaties.— A'c [lurti Wonaa, — 'm TliAIii; ANMi CuMMKIiCi:. 1. 31.") 7011 (i7s M15 233 320 322 324 I.JO 205 Tax on Policies Stc Taxatidn, 2. I'lRh; MARSHALS.— Constitution ..t C(jurt . . . . . i. Sa- PuoviNciAi. Lkoislatuuks, 1. ITSHERIES.-The P.. N. A. Act in assigning to tin; Parliament of Cm- ada the right to legislate with re spect to Sea Coast and Inland i'"isli- eries, did not thereby give authority to deal with i|Uestions of pinperty and civil rights, such as the owiiei- shi)) of the beds of the ri\ers, or oi the fisheiies, or the right of individu- als therein. What the .Vet ga\e to I'arlianient was a right to legislate in regard to matters of national and general concern, such as forbid- ding' fish to be taken at imjuopei seasons, or in an iniprojier niannei', or with destructive instruments — such general laws as are for the benefit of the imblic at large as well as of the owner, lender the P.N^. A. Act the exclusive rights of fishing vested in the proprietor.s of iion- navigalile rivers being in every sense of the wi>rd "property, "can be inter- fered with only by tlie Provincial F;egislatures in exercise of the powers given to them to legislate respeetino- proiierty and matters of a local or private nature. The rights of the Provincial GovernmentK in respect of fisheries in non-navigable waters, the beds of which, not having ijeen granted liefore Confederation, were then vested in the Provinces as part of the jmblic (hjiiiain, do not differ from the rights of jirivate owner.s which had been acquired by grant from the Crown before that date, and a lease made by the Minister of ^[arineand Fisheries of a ni>n-navig- alile i)ortion of a river in the Pro\ ince of New Brunswick, jiassing partly through granted and jiartly through ungranted lands, was therefore held to l)e void. — Till' Qiinn v. JlulKft-toti. — Suiireme Ct., Can, . . ii. GAOL LIMITS.— Power to alter, ii. iSVr Pankkui'tcy and Tnsoia i:niv , >s. \oK. 117 •i5 4S7 OOVERNOR-OKNKRAL. — Appeal under B. N. A. Act, sect. 93 . i. Slti Sii: Denominational Schools, 1. Auth(U'ity as to issue of Com- missions I. I 22, 789 Sec PltEltOCATIVK, 1. Coi NTY COUUT JuilGE. J [ARBOURS.— The "Public Har- bours,'' which bj' the 15. N. A. Act are declared to be the iiroperty of the Dominion, include all harViours, together v.'ith the bed and soil there- of, which the i)ublic have the right to use, and are not limited to such as at the time of Confederation had been artificially constructed or im- proved at the ]iublic exiiense ; and where a grant of ])art of the foreshore of a natural harbour used as such by the imblic, was maile by the Pro- vincial Government of Prince Ed- ward Island siib8e(ptent to the adniis- 1(> l.\i.K, i. 117 iistitntiiiii lit i. ■"••' I.Al'UItKS, 1. . A. Act ill lent of Cm- ,te witli ri-- lnliiii(i \'\>\i- vf iiutliiirity of piiipfrty < the owiiei - vivLTs, 'ir i>i t of imlividu- Act KiiM' to to lrgi.>l;it(- iiatioiiiil iuul as fori (ill - at iiiiiiroiitT i])t'i' iiumniT, istruuifiits — are fi ir the large a^ well r the B.N. A. ts te resiiectini"' of a local or •ights of the ;s in respect gable waters, iiavin-,'- heeii •■ration, were inces as part do not (litter ivate owners ed by grant e that date. e Minister (>f a non-navig- therro\ince issing partly irtly through lerefore held ii. HS to alter, ii. IS? TnsOI.N KN('> , 17 APPENDIX. IH L. — Apiieal iW . i. Schools. 1. '> 2. •' Imprisoinnent " ill No, b"i if section !»2 of the .\ct of bs(17 (I!. X. A. Act) means imprisonment with or without hard labour. -Ifnihir V. Tin (,)ni(ii.- r. C. . . iii. 1 H IMI'KKI.VL ACTS. S(( St A ITT KS. I.\[1'RIS()XMKNT. -Power to tine and im]irisoii for same offence . ii. ;«20, .S'_>2, .'524 s'm 1'"ink and Imi'Kisonmkn r. I'ower to impose hard labour ii. oTii ; iii. H I S(i Ha HI) Lahoi:u. i.MPKISONMHNT FOR DKPT. - Discharge of debtor . ii. flti, 421 Sii Pankkii'icy ami Ins()[akn(V, 7. DKIlTdH. Power to abolish . . li, -I'.M Sii 1'aNK1UIM'(^V AND INSOI.V KN( V, !l. Power to impose. . . ii. .VJ7 Sir CitiMiNAi, Law, 7. iXDIAN LANDS. —Those "lands reserved for the Indians," which by s. «tl, subs. 24, .if the P. N. A. Act, are placed under the exclusive legislative jurisdiction of tiie Parlia- ment of Canada, are those Indian lands only which have not lieen sur- rendered by the Indians, and have been reserved for their use and do not include lands to wliich the Indian title luas lieen extinguished. The On- tario LegislatiU'e has )iower to tax against a veTidi e uiii)atente(l lands which the Indians ha\t' surrendered for the purpose of being sold ; all un- (latented lands, whether Indian lanols or Crown lands, when once .agreed to be sold, being upon the same footing as respects liability to munici])al taxation. — Church v. Fm- toii.-C.V., Out. . . . i. S.ST I XFOK.M.VTION.- Nuisance i.SlS: ii.")')!! .SV( AtTOUNKY-( 1 KXK.HAI.. INJURY TO PUBLIC.-I'ioper otti- cer to complain of . . . i. SI,"? Sci Attuhnkv-Okxichai.. I. ins()lvi;ni;y. .''Vy Bank mi* rev and Insoi.\ k\(\. INSUKANCH.— Regulation of c(m- tracts i. 2{\'i Sec TUAIIK AM) COMMKltCK, 1. Tax on P<.]icies . . i. 11" Sci Taxaikin, 2. INTi:RKST.-Tlie general law having limited the rate of interest, in the absence of agreeiiumt between the parties, to six per cent., a Provincial Legislature has no power to .authorize a mmiiciiial corporation to charge ten per cent, "increase" on overdue assessments, the so-called increase I'A'.K. lii'iiig lint another name for interi'~t. A muiiieipal coipoiatioii was author- i/e(| liy an Act in force at the time of ( 'onfeileraliiiin (if the i^imIhi' Statute, :iS Vict. c. 71, s. I, (ir icrini; Iidiiscs in wliii'li s|iiritmms lii|niii-s ai'c sold, to lie cliiM'il on Snndiys, and on evi ry day from olcvcnof th(^ ulock atni>,dit, iiMtii fi\o of tlir clock ii; the ii'orn- in^'. is within the com|ietei\ce of a l'ro\incial lie^^islatni'e. — lllnuiu v. ('nriJ'iriili'iu of Qmliic — Snpi'rioi' Ct., • ^ueliec ii. ;i(;> I. I'rovincial TjcKi-^'atiu'us can make laws ri'KnIatint,' the sale of !i(|Un|-s ill taveins anil Jiulilie |il,ices. in order the lietter to maintain peace and ^'ood order, Imt they cannot directly or indirectly pmhiliit the mamifacttire or sale of .spirituous liqilors, or other articles of commerce, or conti'r aiitlioi'ity for that purpose on municipal couiu-ils. -J>i St. Aiiliiiii V. i((/'ci,')id'.— Circuit Ct., •l'"''''<'<-'. ii. lil'- •">. A Statute of Nova Scotia, pa-sed after Confederation, imposed penalties for retailing' intovicatiny liipiois without a license, and pro- vided that liceus's should only he {^ranteil upon the I'ecommeiidation of the ^'r.iud jtiry, concurred in liy two- thirds of the memliers present, and accompanied hy a petition fur the license from two-thirds of the rate- payers of the iiolliiif,' district in which tlie tavern was to he estalilished. Knactiueiits not essentially diffi rent were in force in the l'ro\ ince liefore Confederation: lliid, that the Act in (piestion was not itltni rinsui the Lej,'islature. Jlilil, further, that if the restrictions were iiltni rint, the proper course was to apply fora man- dannis to compel the ^'rantinu' of a license, and that a refusal to ^laid licenses did not justify selliiif; witli- ont a license or lelease from the sta- tutory peiuilty thereliy incm-red. A Provincial IjcKislature is entitled to legislate with a view to ref,'ulate with- in the Province the sale of whatever may injuriously affect the lives, health, morals or well-being of the comnuiiiity, whether it lie intoxicat- ing' liipiors, poisiiiis, or unwholesome provisions, it such legislation is made liiDUijitlt: with the olijectof regulation alone, even though to acertain extent trade and connnerce arti affected thereby. Kitfi v. McLiiuiiin — Sn- prenie'Ct., N.S. . . . ii. 400 (i. A New I'runswick statute, 'M\ Vict. c. 10, emiioivered the (leneral Sessions of the Peace to grant licenses as in their discretion they should think proper, and they ha\ ing refused to grarit a license to any person what- ever, a iiuinddiaiiK was granted for the purpose of compelling them to isstie a license to the ap|ilicant. The Legislature of New P>rimswick Viy iin Act subseijueiit to (Confederation declared that " no license for the sale of spirituous liipiiirs shall be grante'I or issued within any [larish or muni- i:m> I'AOK. cipality in the Province when a majority of Mie ratepayeis, residents in such parish or iiiunicipality, sh.-ill petition the .Sossions or iuunici|ial council against issuing any lieen.se within such ]iari-.h or miniicipahty.' Prior to Confeilcration, there had been no legislation of this charactei ill New I'liiiiiswick, and this enact- nient was held by the Supieine Court of that Province to be beyond the competence of the Legislature. — Ht- flinii V. JuMicia iif /xiiii/.''- Stipnine Ct., N, n ii. 7. The Provincial Legislatures have authiiritx to prohibit or regu- late the sale of liiiuors in saloons or taverns on Sundays, or at special times. The Statute ll.'- in Vict. c. I (Vi'i'bcc) which reipiires houses in which s]iirituinis liipiors, etc., are sold, to lie closed during tlie wholi of Sunday, and on every other dav between 11 ]i.m. and o a.m. is valid. (Ritchie, (J.. I., and Strong and P'our- nier, . I, f.) --/'./((//(( V. ('nr/Kirah'iiH '•/ 0/(,/„("- Supreme Ct., Can. iii. Criminal offence. . ii. (iO'i. N'( Ti:mpki!.\n('k Ait m-' isiil, ;->. Licenses. Id 11 St I LliKN.SKS. .riTT)l < HS. — ,1 iirlsiliiiimi n n/iictiii;/] — 15y an Act of the Legislature of New llrunsvvick since Confederation, o'.t Vict. c. "), it was piov ided that Courts .should be established for the trial of civil causes before Commissioners a|i|ioiiited by the Lieuteiiant-Ciover- nor in Council. The jurisdiction of the Commissioners was limited to •"? 10 in actions of debt, and •'JKi in actions of tort; ami was further restricted in special cases. On an application to set aside a judgment obtained before a Ciimniissioner ap|iointed as above provided, on the groimd that since the jiassing of the II. N. ^V. Act, a Lieutenant-Covernor had no power to ap|ioint Judges of any kind, the New J)runsv\ick Act was held t'> be valid. Allen. C. .1., and Duff, .1.. dissenting. — (Utnumi v. liinihii — Su- preme Ct., N.P. . . ' .' ii. .'iU'.t 2. In the Province of Ontario there were, in existence at the I'nion. in addition to the Superior and County Courts, other Courts styled Division Cmu'ts, for the trial of small causes; of these Division Court- there were several in every county ; .and they had since their establish- ment been always presided over l.iy the County Court Judges. An Ontario .Stiitutc, iiassed after the Union, ]irovi(led in effect that two or more Counties might be grouped together by the Lieutcnant-tiovernor for judicial purpo.ses therein sjie- citied, and the Act conferred on the County Court Judges of grouped Counties, the same authority to try stiits in e.ach of the grouped Counties, as they jiossessed in t.lii'ir own Counties re.siiectively : Hild, that the Provin- cial Legislature had coni]ilete juris diction over the Division Courts, and could appoint the otticers to preside 20 I'M IK. ilUT wlii'U ;i yi Is, resident-' ici|iMlity, sIihII 111' )iiniiiei|ia1 ^ liliy lieellse iimiiieiiialily." Ill, there had tliis uliiiraeti'i iid this eiiaut- sil|i| ellie ( 'iilll't le lieyiiMil tile ,,'islatUl'ii. — .'■' ■ ilij"- Sll|il'eiiie ii. I'.''.' 1 Lef,'ishltiin's ihihit 111' refill- (* in saliiiiiis 111 (ir at special i2-r,i Vict. c. ; ires hniises ill nil's, etc., are 'illfj; tlie wlinle ery otlier da\' ■) a.m. is \ali(i. •mi!,' :""! i'"ii'n'- ( 'iir/iiir., Out. ii. •I. .\n Act of the Ontario Ijcgi.s- lature pio\i(h'd tiiat the County Jud^'e of line Cotiiity mi^'ht preside lit tile Sessions in a County other than that of which he was .liid),'i : IJtIil, \i\ Armour iind < )'('iiiiiior, .1.1.. (WiUoi'i, C..I., iloulitiiiiri, that thi- enactment was not within the com- petelici' of the |jej,'islatin'l'. — (///.md; V. M,/)„iHi/,/ '({. \\. I)., (hit. Commission of emiuiry Sn Voisrx C< . liT Ji iiok. • ILJUOlfS Sclec'ion.if . ii. .S'm ClilMlN.M, liAW, '.», 10. ■ irsTICKS ()!•' TIIK I'HACIl.-Aii Act 'f the old I'idvince of Canada amliHi'i/.ed the (iovcriior to appoint rolice .Ma^'istrates ; the Act was temporary; //ihl, that an Act of tlie Ontario lie^^islatiire, coiitiiniin^,'' the same in force, was valid. — '/'/h Qua II V. llniii mill Aiiilirn- ;!l!i TS'.i (ill, ().'i,S, »(. I.>. Ii. (hit. Sid ■-'. I'lidcr the 11. X, A. Act, >'i. I'i^'ht to appoint Ma^'istrates, siicli a> I'lstrict Maj,'isti'ates, in the l'ro\iiice of I^Mlehec, i.s \ ested in the Provincial I'lMciitivt's ; and this ri^lit; is not att'ected liy the provisions contained in sections !I0 and IHO of that Act. — Itdjimt V. //(;)'/(i/'- ir.— (>. ]}., t^hleliec ii. LKCiSLATl'RK.S OK OXTAKIO AXI» (^UHBHC— The powers con- ferred by the P.. X. A. Act, l.sfi?, s. IL".), upon the I'rovincial Legislature- of Ontario and '^hiebec, to repeal and alter the statutes of the old Parlia- ment of Canada, are i>i'ecisely co- extensive with the powers of direct legislation with which those Imdies are invested hv the other clauses of the Act of 18(i7. The Act 'Jli \'ict. c. ()(!, of tlie Province of Canaihi. which created a corporation having its corporate existence and rights in the i'rovincesof Ontario and *,)uebec, afterwards ci'eate. \. A. Act, could not, after the 1$. X. A. Act, be reiiealed or moditied by the Legislatine of either of these Provin- ces, or by the conjoint ojieration of botii Provincial Legislatures, hut only by the Tarlianient of the |)omiii ion.' The (,>uebec Act, JHS Vict. c. ()4, which assumed to repeal and :<17 i;;u •)') I'AiiK. lid L".' N'ict. c. lid, and (1) 1 enrpoi'ation which had .'imind tin to destroy been created by the Parliament of tin I'riiviiice of Canada befme the ]'i. N. .\. .\ct,and to 'iibstitnte a new cii poiation; (IJI to alter materially the class of piisiill" interested ill the eorpiiiate fuinb, .iiiil imt merely to impose cMiidition- upon the trim- action of liusiness by the i orporat im' within the J'rovinee, was held in- valid, i'iti-.ms liisiirinii'r ('tiinininii iif t'liiiiiitii \. I':ii:iiiii.i (7 -Xl'l'. Cas. Dtl), approved and distinguished. - /iiiliii V. '/'//( 'J'l iii/iiii'iihUi ■< /I'liiril. P.C I. ,SV'( PitiiviNt i.\i. Li:oisi.Ari iiKs. ]ilC;i';.\SI':S ■-■ /'mnr In iii.ihi hiir- /■I a/ii rfiiiii The right conferred "ii J'rovincial liigislatiires bv splis. '•• of s. Ill', of the W. X, \. Act, til deal with "shop, saloon, tavern, auctioneer, and other licenses," doen not extend to licenses 111! brewers, lliililin \. Tiniliir Cili r, (.'. «,'. P.. L'l.si, iivei- riiled. Kilchie and .Strong, .1.1., ili~ seiiting. — Si 1 1 111 V. Till (Jimii, Supreme Ct., (Jan. , , i. U, The Legislature of Ontario having ]iassed an Act to regulate tavern and shop licenses : Jlil'l, that they had power to enact that any person wiio, having viol.ited any of the provisions of tlie Act, should comproinise the offence, and any per- son who should be a |i.'ii'ty to such comiiromise slmuld, on conviction, be iminisoiied in the ciimmon gaol for three inontlis ; and that such enact- ment was not oi'iiosed to sect. !)1. sub-s. 27, of the P.. X. A. Act, by wliidi criminal law is assigned exclusively to the Dominion I'arlia liieiit. — lluiiiiii V. /ii,iinliitini.-'*>. 1>., Out i. ;f. Tlie L. X. A. Act in emi- ferring legi.-lative jurisdiction nv ei particular subjects, must be held to have given at the same time the powers needed for the elfective exer- cise of the jurisdiction granted ; consiMpieiitly, the right conferred mi I'rovincial Legislatures to niake l.-iw- in relation to shop, saloon, tavern, auctioneer and otlier licenses include- the right of impo-ing ]ienalties for violating the jirovincial l.aw.s in rela tion t.i tllose subjects, Provinei.il enactments by which persons who .sell liquor by wholesale are reipiired to take o',it a license are not inv.-did as an interference with trade and couimei'ce. — /:'.<■ ii(()\: ',• vi iUi'-Hw- perior Ct., (Quebec . . ii. 4. Provincial Ligislattircs can Cil 0,(, impose fines and iieiialties for selling liipior without license. — Uniimi v. yi7c.l/(7/a»i.— Supreme Ct., N. J5. . ii. ti. Per Spragge, CF,: The juris- diction of a Provincial Legislature to legislate respecting licenses is not confined to the object of raising a revenue. — llciiina v. Froiiii ii.-C. A., Out. . ■ . . ' . ii. — IJutchers , . , ii, .S3.j Sec ThADK ami Cii.MMKIICE, 2. M'.t l.S!> .")7(> 810 21] AI'PENDFX 24 i I I I I'Ai.K. hi'^uriiiiL'c. , , , i. '_'•!.'» Si> TkaUK AMI (Jo.M.MKHCK, 1. liiiMilatiiiii iif Nuiiilii'i'. i. tlSS >'( -• Ml sirii'Ai. Issi'iTl lloN-, 1. St:i)ii|) l)iity. . . . i. 117 S,i Tax A (ION, L!. I.IKITKX ANT (;()Vi:i{N'(ti: nl' KNTAIMO. IsMlr nf ('nn,l|M>si,,llS to liiijil (-'liuitrt (if A.-Ki/.f. , i. 7-- Sii TuKHdHATIVK, 1. M<,)r(ti:.— I'roliihilinn and nrnlatinn wf -111.'. .SV( I.VTOXICATrNC liUjroMS. I<(>rAL AND I'HIVATK MAT- TKKS. iiisolvfiicy. . . i. DM •s''< I'ankki.i'Tcv anii Inscii.v kncv, TiiMitiiiii , . . i, >" Taxai'Io.n, 1. LmCAL WOIJKS AM> INDKU- TAKINjiS. — I',y an Act «( tlif I'lov- iiici' (if New liinnswiclc, |imssimI prinr td ( "(infcdcratiiiii, tlic plaiiititF timi- niiny was iiiciii|ini'at(.(| fm- tlic piir- [Kpsc (if Cdiistriictin.Lr a lailway fidiii the City authd"ity of the Tjefrislatiire of the Prdviiue to legislate with respect to the railway within the Ivonwis of the I 'rdvi nee. --A'k /•()/(((()( (iml JVurlk Aiii' ricuii liiiihroH Cu. \. T/khikis. — Suprenie Ct., N. li. . . ii. 2. All Wdrks which are whdlly within one Trovince, whether tli(3 unflertakinf,' to which they hehiiiK he for a coninieri'ial pnrjidse nr dtlier- wise, are within the Cdiitnil, and snl)- ject td the lej^i-lation df the Province in which they are situate, iiidess they are liy the Parliament df Canada de- c-lared tdhe. for the general advantaj.fe of Cimada, or for the advantatre of two or more of the Provinces. The |)diuinioii Parliament cannot with- ont stich declaration, anthori/.e a company to estalilish in two or more T'rovinces, works, neediiif^ sjiecial le^fislative authority, and which are in their nature local in each Province, the jurisdiction in such case tn give the needed authnrity, being deter- mined hy tin' locatidii and object of the works, and not by the circum- stance that the comjiany is aiithori/ed td niiiks them in several Provinces. A comiiany was incorporated by Act of the JJoininion Parliament for the pm'pose of establishing teleiihone lines in the several Provinces of the Dominion, but not of connecting two or more Provinces by telephone lines, nor was the undertaking declared to be for the general advantage of Can- !l.') m afia, iiTdi tWd (ir nioreol the Prov inces, and in the absence of these cduditidns it was held that the .Vet, NO f.iras it professed tocdiifer a right td erect pdles in the -treets df citio and towns, was invaliil. — Jtniiiiti \. .Uol,r.-(i. 1'.., (Quebec . '. ii. MAIJJSTHATKS. App.iintmentof. s<( .fisririis (ii- rm: 1'i;aik. MA KIT! mi: C'JlKT. The Act |0 Vift. c. 21, I)., establishing a Mali- lime Court, « 1th jurisdiction limited to the Province of ( (ntario, is within the powers of the Dominion Parlia- ment. - 7'//i J'icloii, Supreme (^'t.. Can. i. MARIvI'lTS. Power to regulate. i. Sii MiMcil'AI. I N> rill I" "VS. 2. MATTKRS OK A MVM I,t • CAL (ili PKIVATK X. K. - Direct taxation for local purpose, i. Sn TAXAriON, 1. Pr(.;'erly in Proviiu I'AOK. .-.-,7 7r.(i .*>'(( Pkiu'kuiv and Civil, Riiiiii-, I — Relief of liisolvem C(imi)an\ . i. Sic 15.\.NKItl IMCV \ N I ) I NS( ll.\l:N( V. 1. Restrict ing if Licpior . -ilTfno.Ns, I. 241 f;:t (iSK Sn .MlNKII-.M. Is- MKDTCALPUACTITIOXKR. /,'.../■ ixtratid)}.] Thelm|ierial Parlianient having enacted since Cdiifederation, that any persmi registered as a medi- cal (iractitidiier tinder the ICnglish Medical Act (21 and 22 \'ict. c. <.>0\ shall be entitled to be registered in any colony upon payment of tin fees rH(|uired for nuch ii'gistration and that the term " cdlony " shall in- chide any of Her Majest'' ■uwses- sions whicli haxc a legi \ the emtctment w.'is held to a] Can- ada and to override Pro.. legu- lations for the examination ot appli- cants for registration, notwithstand- ing the Confederation Act and tile "xclusive power given thereby to the I'rovinces to legislate in relatidii to education. — liii/itiu v. Colli in' nf I'ii.'i- sicianit ami Siiri/ionx, Ontario,— (}. P.. Ont. . '. . . . i. 7111 MIIJTARY AND XAVAf- SllR- VICK.— The Parlianient of Canada has, tinder the M. N. A. Act, exclu- si\e jurisdiction in matters relating to militia, military and naval service, and defence, an(i Cdnsecpiently, the provisions of the Imperial Army Act, IXSI, do not ai)i)ly to Canada, so as to make persons not connected with the active militia of the Dominion liable in respect of iicts which ari> otl'ences under the Imjierial Act. but not under the Militia Act of Canada. — Hnliiux V. Tnniili'. — Sessions of the Pe.ace, (^lebec. . . . ii. ?,^ MCXICIPAL INSTITUTIONS. - I'nder the exclusive legislati\o authority given to it with regard to '■ Municipal Institutions "" and td "matters of a merely local or lirivate nature in the Prijvince."' a Provincial Legislature can confer on niimiciiial corporations jiower to pass by-laws wholly prohibiting the sale of .siiirituous li(|iiors in shliiiij,' 11 -M.ni- (li(tii>ii liiiiitcil laiiii, is williiii iiiiiiiiiii I'lnlia- Siiiiit'iiii' <"t., 1. •i->7 rt'Kuliilc. i. 7'"''> III ri'i\>, •_'. KH I.O. ; X. K.- n\ |ii\riM»'-. i. !•■"> itio'. . ii. --*l !ivii. Riiiiii-, 1 It Cciiiip.iii.v . i. '>■{ II iNSdI.Vf.Nt Y, it Li(|ii(ir . I irvriDNs. 1 lOXKIv. /.■.;/• rial I'uiliiunt'iit Cdiiffileratioii. ci'imI iis a mrdi- •r til" ICiii,'li
  • •> Vict. ". W\ ic rcgistiTfil in li'llt cif tll<- ti'l'> 'j,'istr:itinli and iiy " ^liall in- llji'St' (;s,«. "Ri '. tin- Can- ii-un- itiiiu lit ai'i'li- iiDtwithstaiid- Act .and till' thereby tn the ill reliitiun to 'nlliiii' III I'll II- vtarin.— <^. r>. i. T'il \y\fi sKif- t i)f Canada \. Act, e\clu- tters relating luwal service, e(inentl.\, the rial Army Act, Canada, so as mnected with the Diiininion cts which are lerial Act. Imt Vet of Canada, Sessions of the ii. 39U TUTTONS. - legislati\o with regard tutioiis "" and ■■rely local or Province." a can confer on s jiowerto pass litiiig the salt' in shops and 2". AIM'KNDIX. •2() places nlhir than Iihuho of |.iil entertaiiuijent, ami hiiiitiiig the iiinn her ol tavern lieeii«e,H ; and the ion telling such power is not an inter fereiice « illi " the regnlutioii of tradr and eoiiilnerce," assigned e\clusi\el\ to the Doininioii I'aihiiiiieiit. -.S/'/i//i v. r,/l,i,i, III Onlliii. - (^.H., Out, i, ■_', The provision contained in the .Mnnicijial .\ct of Ontario, au- thorizing city councils to pass liy laws "for preventing criers and \en dors of siii.dl ware from practising their calling in the market, jiuhlir streets, and \acaiit lots adjacent thento," is not iillra viri-'< of tin Ontario liegisljitiire, as lieiiig a legii- latioii of trade and coiiirierce. In giving juiisdielioii to the I'liivincial Legislatures ill all matters relating to luiiuicipal institutions, the intention must have heell that these Leg'is. lalures should have power to alter and amend all the existing laws with lespe, t to such institutions, and cspi dally to enlarge the scope of .-i power existing in the Municipal .\t it the time of Contederatio.',-- Iliin-in \. U., Out, . , ' , , . i, X'uisaiices , , . iii. Si Nl IS.NNrKs. .Sale of Lii|Uor. Sti InTOXICATINi. Lll)l I)I!-S, navu;atjox .VXD .siiii'i-ixo- Tlie po\\ei' to inciiriiorate a navi- gation company the ojierations of which are limited to a ]iaiticu!ar l'ro\iuce, belongs exclusively to the Ijcgislatiire of such Province. — Mur- itimiiiill \. Thr Uniiin NiiviiKitinii Co. t^. H., < Quebec ii, 2, The (Jovernnieiit of the I'ro- viiK f< Quebec having by Letters I'a- tent granted .iwaterliitextendinginto deep water, at the mouth of the Ui\ er St, Manrice, tiie Letters Patent were held to be valid, subject to an implied restriction that the requirements of navigation and coninierce were not to bi' interfered with or injured there- by.— A'//- ;;w»f/ V. T/ii St. Lawrinci Xaiiiiation Co.—il. }5., l^'ueliec. ii. ■3. Th{i Dominion Parliament can I'AiiK. ic (iSS 7:i(! L'L'S 231 confer on the Vice-Admiralty Courts jurisdiction in any matter of iiaviga- tionand shipping within the territorial limits of the Dominion. When an Act of the I'arlianu'nt of Canada is in part .repugnant to an Iiniierial Statute, effect will be given to the former so far as its iirovisions do not coiiHict with those of the Imperial enactment. — T/i< Furcicdl — Vice- Admiralty Ct., (Quebec. , . ii. 87^ 4. A Provincial enactment autli - ori/.ing the erection of booms in a navigable river does not conflict with the power of the Parliament of Canada with respect to na\igation and shipping under sect. 01 of the B X. A. Act the words navigation and shipiiing being employed in that section in the sense in which they ■are used in the several Acts of the Imiierial Parliament relating to navi- gation and shipjiing, and in the Act I'A' of the Parliament of Canuda, 'M Vict. c. "iM, vi/. As gi\ ing the right to prescribe I ul. .mil regulations fm vessels navigating the vvjitei.-. nl the Dominion, and not as excluding for all purposes Provincial jurisilictioi. over nav igalile waters. .Ui'.Millnii v, Sdiil/iin nl liimui, 6'(/.- Supreme Ct., N. 15 ii, -; .">. A Provincial Legislutnre max incorporate a boom company, but cannot I'onfer upon the companx jiower to obstruct the navigation o| a tidal and navigable river, Tasch ereaii, .1,, doiililing. .Mi'.Millnii \. S,,,(lh,n.sl Itimm (',!., (I P, \ P., 7lo), overruled in part, tjimli/n Jlinr iJriiiiii/ /liiiihi I'll. V. /hniil.iiiii Supreme (.'t,. Can. . . iii. .K. ■' f-' VA iStatiites. ■1.1, "i.'i!) NKW UHIXSWHK .s'c SrATtii;s. NOVA .SC;oTIA Statutes. S(i .SlAlMlKs. Nl'ISAXCKS The power ol tlw Parliament of Canada to enact a general law ot nuisances, as incident to its right to legislate as to ciimiu.il law, is not iiiciiii.patible with a right ill the Provincial Legislatures to aulhori/.e municipal coi poratioiis to jiass by-laws against nuisances hurt fill to public health, as incidental to nmnicipal institntioiis. ~ h'.r /iurl' J'illdir Superior Ct., >> ' .VrroUNKY-ti KNKIIAI.. ONTARIO— Power to repeal m modify laws of Province of Canada. . . i. .'v'd Si( Lkcisi.atluks ok o.\t.m!1o anh Vict. c. 2t), cannot he institutecl in the name of a Provincial Attorney- (ieneral, and can only be leg.dly brought by the Attorney-(!eneral (if Canada. Mdiis.sfitn v. />'('/(— Court . iii. mi ire. ii. 2!ll. 2!t7. •MS, ;n I iii. 40") if Review, <,)uehcc. PENALTIES -Proced Sec CiiiMiNAi. Law, o-(), 11. — Recovery by informer. iii, 2:17 iSci Piioi'EKTY ANi> Civil Rioiits, 8. POLICE MAGISTRATES I'ow.r to appoint, . . . . i. Set .ItsTK'ES OK THK PkACK, 1. PREROtiATlVE OF THI'. CROWN — The iirovisions of the B. N. A. Act have not superseded the pre- rogative ri^ht of the Crown to issue a coniinission to the Judge of the Provisional Judicial District of Al- goma to hold a Court of Oyer and Terminer and General Gaol Delivery, for trial of felonies, etc. ; and such a commission by the Deputy of the (Tiivernor-General was held to be legal. Per Wilson, J. —The Lieuten- ant-Governor, aswella.sthe(;overnor SIO 27 APPENDIX. 2H I i I I'AliK. ' li'iicial, liiis till- pdwcr til issue com- iiiis>iciiis ti) hold Ci)iii'ts of Assize. /!i ii'preseut the Klecturiil Distiict of .Mniituiiiuier iu tin- Legislative As- -eiiil)ly nS the ridviuce of (^ut^bee, Iiis ejection was afterwards, on i>cti- ti(PU, deelai'ed null aud vnid liy judj,'- ni(!Ut of the Su|M'rioi f'oiirt, under the i^Mieliee Coul I'overted I'lli'Ctions Act, 187i">, aud hiuiself de(:!ared guilty of coiTujit ]iractiues, both personally and by his at,'euts. He now apiilii'd for special leave to a|i|ieal lo iter Majesty iu Council : //'i<»T. — <^. ]i., '!•> .'). Provincial Legislatures are not restricted to legislation respecting property such as Iwnids held in the Province, ami where debts and other obligations are anthori/ed to be con- tracted under a local .\ct, jiassed in relation to a matter within the power of a Local Legislature, -'icli di'bts may be dealt with by suliseipient Acts of the same Legislature, not- withstanding that by a fiction of law they may be domicilt>d out of the I'rovince. -.futus v. ('niiitiln (\utriil llnilmi/i Vict., c. o, regulating this right are valid. Ramsay, J., dissenting. — A'.'' /iiirti Jiinisi nun. — <,>. I'., <,|ui'- bee ...... ii. Ki"! 7. A Provincial Legislature has authority to determine the age or other (pialitications whicii shall be required on the part of persons resident in the I'rovince, to entitle them to manage their own alfairs, or to exercise certain professions or branches of business attended with danger or risk to the inibllc. If laws on these s\ilijects iiicideiitall.V atVeet trade and conniieree, tliis incidental power must be ilcmed to be included ill the right to deal with those matters which are specially placed under Pro- vincial control. The t^iuebec J'liar- macy Actof 1S7.'', so far .-is it rMpiires cei'tain (pialitic.itioiis on the part of persons exercising the business of -I'lling drugs and medicines, is \aliil. The Pi'ovincial Fjegi^latures luwe the right toappropi'iate lines to municipal or other corporations. Iknnitt v. I'/iiiniiiiri ntii-til A.fsnciiitiifn nf (Jiii- '■ir—i-i. I'..,<,!uebec. . .' ii. •_'•")() S. .\ Provincial Legislature is entitled to legislate with a view to regulate within the Provincetlies.de of whatever may injuriously affect the lives, health, morals or well-being of the community, whether it be intox- icating liipiors, poisons, or unwhole- some iirovisions, if such legislation is made liiiiiii full with the object of legulatiiiii alone, even though to a Certain extent trade and comnurce are alfected thereby. — luifi v. Mc- Linutin. — Supreme Ct,, N. !S. ii. 100 JTP.LIC INJURY. -Proper olticer to c.implain of. Sn Ari'uiiNKv-(;i-;\Ki{Ai,.. Pi; P.LIC HARP.< )IR.- .Fnrisdictioii and owiiershili . . . ii. 147 Si I llAlilidllls. PUNISI[MI';XL". Fine and Tnipris- onineiit. >(f Fink anh Imi'uisiinmknt, Hard Labour. .Va HaHI) IjAIUUK. t^in^HKC. — I'liwer to repeal or modify laws of Province of Canada . i. H51 .S'tt LKlilSI.ATLKKS OK ( )NrAUI(l ANH liUKltKC. Privileges of Legislature . ii. 105 .S'(f I'liOVlNl'IAI. LKia.sL.Vn.UKs, (i. Statutes. Sii SrAriTKs. (iUKFA'"S(^()UNSFL.— ^/-/)'i'l a|)|iiiiiit('cl by tlif Lii'iitinaiit-dovt'iiinr iiniltT Acts of till' I'liiviiK'ial liC^islatiiri-', tlif re- siniiidciit bciiih' a (Queen's CduhspI apiii'intiM) by the (jlovcriior-lieiu'i'al ; aiuiStidiif,', FouniieraiulTascliiTcaii, ,).r., \vi re of opinion that tlio Piovin- cial Acts under which the aiJpcUants wi'Vt- appoint(^(l were not intended to 4ill'"'ct ihe i)i-eeedence of '.(ueiirs Cnin^el ap])oiiited by the ( !i)veriioi- (iencral; and it was tlierefore held, I'll- Strong and Fournier, .TJ, : - That as tliis ("oiu't oiif(ht never, ex- cept in cases wiien such adjiidicatinn i> indispensabh' to the (U'cision of a cause, to i)ronoun(e ujion the consti- tutional i)ower of a Le<,'ishiture to pass a statute, tliere was no necessity in this case for them to express an opinion ui)on tiie validity of the Acts in (piestion. — A(»o(> v. A'i'ic'u'f.— Su- preme Ct., Can. . . . i. 48S RAILWAYS.— Where it is necessary for a Provincial railway in Ontario to cross a Dominion railway, the com- pany desiring to effect such crossing must )irocure the ajiproval of the Commissioner of Public Works for (•iitario, as well as the ajiproval of the Railway Connnittee of the Privy Council of the Dominion ; and the railway companies cannot by agree- ment waive this provision.— (>('//< Vdlliii /idilwdn ('ii. V. (treat Wvxtivii i;,iihr„ii ('e.*-^Chy., Out. . i. S22 2. TheProvinceof Ontario i)as.sed an .\ct to make provision for tlu' safety of railway eniiiloyees and the l)ublie, such pidvision having refer- ence to till' construction and mainte- nance of railway frog.s, etc. Per Spragge. C. J., a Provincial Legisla- ture lias no power to )>ass such a law with reference to a Dominion railway situate locally within tlw Province. The other .Fudges of the Court of A])peal expressed noopinion nipon the point, being of opinion that the Act was not intended to a]iply to Doniiniou railways, and for that reason didnot ap^lly to the Dominion railway company in ()uestion. — Mimk- liniim V. Uraml Trunk Rnihvaii. — C. A., Out iii. 2K!l I'Atending beyond Province . i. !<.'"i Sn T.\X.\riON', 1. Jurisdiction respecting i. 2I-i;>, .'y , i. Ml.'t So ArroUNKV-(iKNKHAI., 1. Iiegulation of (isheries I'AIJE. ii. 05 Provincial connectiiig wit'i for- Si( railway LocAi, WoiiKs, L ii. i;v.( Ki;( ; ISTU.VTION. — Registration medical ]iractitioner Si MkiUCAI. PliACTITlONEIt. RIVKRS. -Navigation. .S(( Navh:ation anh .Siiiri'iNc;, 4,6. of i. -31- iii. 7111 ,-.42 243 ilntiirio .Aot, J.' \ iit, c. '27, sect. 1. Sri KiSHKIlIKS. SKP.VRATK SCHOOLS. Siv Dknominationai, Schools. SHIPPING. See NAVIIIAriO.V AM) SlIlI'l'INi;. SHOP, SALOON, TAVKHN, AUC- TION KKR AND OTHKR Ll- (JKNSKS. Src Lu;i-;nsk«. SMALLWARK. -Regulation of ven- dors of i. '')>> .s'l' MiMC'ii'Ai. iNHi'irtnioxs, 2. SOV KRKKJN. — Jl(i>rincntatir<:< nf. \ The members of the Dxeuutive Coun- cil of a Province, under the 15. N. A. Act, represent the Sovereign, and cannot lie sued in the civil courts of the Province for acts perfor.ned b\ them in the discharge of th' ir otticial duty. — M(ili<(Hi v. C/uiphitit. — Sujier- ior Ct., l^iiebec . . . iii. ^00 STAMP DUTY. -Power to im- pose . . . . i. 117 ; iii. I'-'O Sec Taxation, 2, 4. STATl'THS- /iiijicrinl . . 22 Geo. 8, c. 7"'. i. 7M> Si( Col NTV CorUT .TL"I)(!K. 5 & (! Vict. c. 45. i. 57'> S(< COPYUKIHT. ;U Vict. c. 29. i. 7til Si I MkIUCAL PltAC'TITIONKU. ;«&34Vict. C.52. ii, 1^15 S(( MxiKAliniO.N. 44&45Vict. c, .-i^. ii. MiH! Sit ;\lii,iTAKV Axn Navai. Seuvick. <'«)i«(/((— (Old Province of) Con. Stat. C.c. 18. i, 7V.) Sci CoiNTV Conn- JiDCK. Con. Stat. P'.C.e.U. i. 7.^!» Si I Col NTV COUHT JUDOK. 22 Vict. c. ()(i. i. ;-(51 Sii Lkiiisi.atiiik.soi- Ontakio AMI <,;rKHK<'. 27 & 28 Vict. c. l.s. See Tkmi'KKANCk Act oi'' 18()4. 28 V'.t. c. 20. i, 810 ."^Vf .fl STICKS OK THK PKACK. 1. IhiMinlnn . aiVict. c, 88. i. 7'><'» See County Couut Jidck, 31 Vict. e. 48, i. 117 See Ta.XA'I ION, 2. 31 Vict, c, (iO. ii. ; irUTIONS, 2. Kcntati !■<.■< (ij'.\ xeciitivcCijtiir r till' 15. X. A. idvi'ieijrii, Hiid civil courts iif pcrforMicd li>' (if till ir (itiiciiil plcau. — SuinT- iii. aOO owcr to iiii- i. 117; iii. H'O ). 3, c. 7">. i. "■'^'•' JflXlK. Vict. c. 15. i. 57<> ct. c. 29. i. 7lil TITIONEH. 4Vict. c.M. ii. ;H15 5Vict. c. ."iH. ii. .S'.h; i> of) ^tiit. C.c. 18. i. 7.V) • Jll)(iK. it.U.G.c.H. i. 7.s'.» ' Judge, ct. c. ()(). i. ;-trii oi.- ONIAKK) 28 Vict. c. IS. \CT Ol' ISiil. jt. c. 20. i. «]0 IK PK.\1'K. 1. ct. c, 88. ' JlDliK. I. 78! » Ct. c. IS, i. 117 ct. c. HO. ii. <).') ct. c. 7li. ii. 880 iii. 81.-. n l^VIDKNCK. 8 Vict. c. K). i. IJM,') ii. 412 ANI> InsOI.- 33 Vict. c. 21t. ii. 4!I2, (141 Civil. Uu; a IS. V, !i. 33 vVPPENDIX. .S4 vm;k. 32 & 33 Vict. c. 31. ii. «02; iii. 40;") Scr Chiminai. Law, 8, 11. 34 Vict. c. 5. i, 828 See Bills ok Ladinu, 2. 35 Vict. c. 2(5. iii. 341 Sa Patknt oI'' Invkntion. 3(i Vict. c. u4. ii. 378 Kf< Navi(;ation and Shipi'inci, 3. 37 Vict. c. 9. iii, 297 t'^K ruoi'KUTY AND Civil Kidiir.s, 3. 37 Vict. c. 10. i. ir)8 .SV( I'UOVINCIAL COUUT.S. 37 Vict. c. 1(5. i. 8!»7 ,SC( DoJlINION GoVKKN.MKNT, 1. ., 37 Vict, c, 103. ii. 275 iii. 118 Sec COMPANIKS, 1, 2. 38 Vict. c. IH. iii. 2(5(5 Set Bankkuptcv AND Insol- VKNCV, 11. 38 Vict. c. 88. i. 57(5 Sec Copyright. 40 Vict. c. 21. i. 5,57 Sec MaUITIMK COIKT. 40 Vict. c. 41. i. 2.52 See Bankuuptcy and Insol- VKNCY. 2. 40 Vict. c. 45. i. 822 See Railways, 1. 41 Vict. c. l(i. ii. 12 .*>« Into.xicating Lkjuohs, 1. 42 Vict. c. 48. ii. 237 Sfj Bankuuptcy and In.sol- VKNOV, 4. 43 Vict. c. (57. ii. 257 S,e Local Wokk.s and Undkk- TAKINCiS, 2. (hiUtrio . 31Vict. c. 17. i. 810 See Justices ok thk Pkack, 1. 31 Vict. c. 44. i. 777 i .Vtf ritoviNCiAi, LK(;isL.vrui!E.s,5. j 32 Vict. c. 22. i. 78!» i Si( County Couut Judgk. 32 Vict. c. 32. i. ()7(i, (188 Sec LiCKNHES, 2. Municipal Tnhtitution.s, 1. 32 Vict. c. 3(i. i. 5!)2 .Set Taxation, 3. .33 Vict. c. 12. i. 7811 S(e County Coukt Judgk. 33 Vict. c. 1!). i. ()8:! Sa IjILLs ok Lading, 1. 34 Vict. c. 'M. i. 5(50 Sec Puovincial Lkgihlatiuks, 4. 3(5 Vict. c. 10. i. 70!) ,SV( Ciujiinal Law, 1. 37 Vict. c. 82. i. 411 ii. (S01 88 Vict. c. 75. See Dominion tiovEHNsiENT. 30 Vict. c. 24. i. 2(»f) Sci Trade and Commkkce, 1. 39 Vict. c. 2(i. ii. (578 Sir Temperance Act ok 18(54, 4. 40 Vict. c. 18. ii. ()0(), (il(> -SV< Tkmperanck .Vctok 18(54, 3. 41 Vict. c. 8. ii. 392 S(c Intoxicating Liijuous, I. 41 Vict. c. 4. ii. (i3l See Justices ok the Peace, 8. 44 Vict. c. 22. iii. 289 Sic Uailways. 2. K. S. (). c. 42. ii. (i(i5 iii. 319 Sic Judges, 2, 3. R. S. O. c. 1(15. i. 822 Sec Railways, 1. R. S. (). c. 174. i. 75(5 See Municipal Institutions, 2. R. S. O. c. 181. i. 742 , ^ '"■ 1-H 'Set Criminal Law, 2. ])ELE(iATION, 1. R. S. (). c. 20(5. i. 8i(i See Denomin.\tional Schools, 1. Quebec , 31 Vict. c. 25. ii. 228 .Vtc Navigation AND Shipping, 1, 31 Vict. c. 32. i. 57 Sii Provincial Legislatures, 1. 32 Vict. c. 15. ii. 241 Sfi I'ROPEHTY AND CiVIL RIGHTS. 1. ' 32 Vict. c. 29. i. 57 Sit I'liOVIN'IAL Le(;islatures, 1. 82 Vict, c, 70. ii. 320 Sk. Fine and Imi-ri.sonment. 33 Vict. c. 5. ii. Iti5 .V« Provincial Legislatures, (i. 33 Vict. c. 58. i. (« Sei Bankruptcy and In.sol- VE.NCY, 1. 84 Vict. c. 2. ii. 291, 297 , , 308, 348 Sec Criminal Law, 8, 4, 5. Bankruptcy a.m> Insol- vency, 5. 34 Vict. c. 52. ii. 250 Sec Provincial Legislatures, 7. 35 Vict. c. 6. ii. 1(15 Sec Provincial Lkgislatuhes, (i. 87 Vict. c. 51. ii.33.5, 310 _ iii. 357 See Trade and Commerce, 2. Nuisances. 37 Vict. c. .57. ii. 3(51 See Interest, 2. 38 Vict. c. 8. ii. ] ,SVf Prerogative ok the Crown, 2. 88 Vict. c. 12. ii. 84ii Sie IJO.M1NION OkKICKR, 85 APPENDIX. ;Hy i I I I I'AOK. ;}S Vict. c. ti2. i. 'Ab\ Sec LKC.ISLATUUKS ok ttNTAUlO ANU (iOKHKC. 38 Vict. c. ()4. i. 351 Sa Legislatuuks ok t)NrAiu() AND (iUKHKC. 38 Vict. c. 74. ii. 3ti8 Sa: Intoxioating Lujuous, 3. 38 Vict. c. 7. ii- 100 ,S'f( Tntoxicating LuiuoKs, 5. H,.v. Stat. (iHli serifs) c. 80. iii. 1^7 4 Sir Bankkuptcy and Insol- vency, 13. New liriiiiavick oOV\ct. a, iyi. i. 9,") S(i Taxation, 1. 31 Vict. c. 1(5. li. 121 Sll V.ANKUUl'TCV AND INSOL- VENCY, 7. 31 Vict. c. 2'.». ii. 487 Sie DANKUUI'TCY AND INSOL- VENCY, 8. 32 Vict. c. 54. ii. I3'.l Sec Local Works and Undeu- TAKINGS, 1. 33 Vict. c. 23. ii. 48!l See Licenses, 4. 33 Vict. c. 47. i. ••5 .SVf Taxation, 1. 34 Vict. c. (i. ii. I!>!1 See Intoxicating Luiuohs, (>. 34 Vict. c. 21. ii. 145 See Denominational Schools, 2. 35 Vict. c. 44. ii. 512 ,S»f Navii:ation and Smi'i'iNG, 4. 3(1 Vict. c. 10. ii. lilll Sll Intoxicating Luruns- wick (33 Vict. c. 47), intituled " An Act to authorize the issuing of de- bentures on the credit of the lower District of the Parish of St. Steiiheii, in the County of Clp.irlotte,' which empowered tlie majority of the in- haliitantsof that parisli to raise, hy local taxation, a subsidy designed to l)roniote the constrdction of a rail- way extending beyond the limits of the I'rovince, but already authorized by st:itute, was held to be within the legislative cai)acity of the Legislature. .\ Provincial Legislature can, v.nder th.' P.. N. A. Act, sect. !t2, art. 2, imiiose direct taxation for a local pur- pose upon a particular locality \\ thin the Province. The Act in (piestion was held to relate to a matter of '• a merely local or iirivate nature in tlu' Province," which, by th(! !)2nd sect- ion of the 15. N. A. Act is assigiu'd to tiie I'xchisive competency of the Provincial Legislatmc, anil not to relate to a railway or any local work or m'dertaking within the excepted suVijects mentioned in art. 10, sub- sect, (a) of the said section. Ij Union St. Jiici/ndi lie J\fi>ntr<(iJ v. Ihlixh . L. R. (> P. C. 31, approved.— />((iy V, liliick\ V. C. . . . i. -^ 2. The clauses of the Act, 3'.t Vict, c, 7 (i)assed by the Legisljiture of (Quebec), which impose a tax upon certain policies of assurance and cer- tain receijitH iind rt^newals, are not authorized by the 15. N. \. Act, 18(17, s. 02, sub-ss. 2, 0. A License Act by which a license(> is compelled neither to take out, nor pay for a license, but which meri'ly provides that tlie |irii f a license shall con sist of an adhesive stamp, to be paid in respect of each transaction, not by the licensee, but liy the person who deals with him, is virtually a Stamp 05 36 TAGE. ct. c. 7. ii. I!»l AM) Insol- ict. c. 107. ii. .")I2 Ni).Snii'i'iN(;,4. ict. c. 5. ii. .")0'.l ict. c. 100. iii. 218 NDSHiri'iNr.. T). Stilt, c, 38. ii. 527 w, 7. Stat. c. 75. ii. 5.52 ■ AND In.sol- ict. c. 19. ii. 147 LICENSES- loilw re!<])L'ctiiif,' iii. Ill 1. t of tlic Pro- )f New ]5ruiis- iiitituk'd " An ' issuitiR (/((! i. !)5 n of the Act, 3!( the Legislature «' a tax upon irance an, lenewalsand receipts with piovisions lor avoiding the policy, reni'Wal, or receipt in a ('oiiit of Law. if the stamp is not athxed is not warranted liy the terms of an Act which author- i/es the im|iosition of direct taxation. Attiiriii >h(i'i III ral fur Qitiluc v. Tin i,>iiiin InxHiuincr Cii. — I'. C. . i. 117 3. .V Provincial Legislature can- not in.pose a tax upon t'>'' otticial income of an officer of the Dominion (lovernment or confer such a power upon the nmnicipalities. - i/(/'/'(//ii Proceeds of insolvent estate ii. Sci Bankhui'tcv and Insui,- VKNCV, 5. TEMPKRANCK ACT OF l,stl4 — The P.. N. A. Act in assigning to the Parliament of Canada the ex- clusive legislative authority over "the regulation of Trade and Com- merce,'" ll'ences against the Act; the Troviucial Legis- lature of Ontario afterwards eiiacteil that the sale of liquor in such localities slimild also be a contravention of the Provincial Acts for selling without a license : these Acts provided other imnishments .iiid proceedings: /fihl. PAOK. that under the Temperance Act the matter was one :)f criminal law ; and that the legislation of the Provincial Legislature was ultr.i vires.— llriiiini V. Prittir-'^l B.,Oiit. . . ii. <>0(( /.■(—< ^ P., Out. . ii. t)l(i 4. Acts of the Ontario Legi.-!- provided that local Boards lature of Commissioners, and Inspectors appointed by the Lieutenant-(iov- ernor, sliouhl iieiforiii certain duties in their respective localities for the enforcement of the statute of the late Province of Canada, called "The Temiii'iance Act of 18(i4 ; " and that a certain proportion of tlit^ expenses attending tile execu- tion of the.se duties should be paid by the municipalities concerned. The Temperance Act provided for prosecution by private persons, as well as others, for otfences .against the Act : //(/(/, that the On- tario enactments were within the competence of the Legislature. An enactment of an (.i: ikikI factu char- acter by a Provincial Legislature is not void on that ground.— //I'T/i.vi ('omiiiisnionirs of J'rinct Kilivaril v. Count!) of I'rinrc Kilinird-Chy., Ont. . . . . . ii. 078 5. A Provincial Legislature can- iKit rejieal those sections of the Tem- perance Act of l.Stii, which relate to the |)rohibitioii vi the >ale of intoxi- cating liquors.--f.'r/fh7// v. fiimi.e— .Superior Ct., (Quebec . . iii. 34n TRADE AND COMMERCE.- The powi'r of the Doniininii Parliament for the regulation of trade and com- merce includes jxilitical arrangements in regard to trade, and regulations of trade in matters of inter-provincial concern, und may, perhaps, include general regulations affecting the whole Dominion, but it does not comprehend the [lower to regulate the contracts of a particular busir.'ss or trade (.such as the business of fire insurance) in a single I'rovince. An Act of the Province of Ontario to secure uniform conditions in policies of tire insurance was held to !)<■ within the iiower of a Provincial Legislature over "property and civil rights." 1 Such an insuranct Act. s.. far as relates to on property within the Province, may bind all tire iiisiivanei vince, may bind al panics, wliether ii companies, whether incorporated liy Dominion, IVovincial, Colonial or Foreign authority. A 1 )ominion .Vet having reciuired insurance companies to obtain licenses from the Ministei' of Finance as a condition of tlieir carrying on the business nf insurance in the Dominion, neither the Act, nor the fact of a Company liaving obtain- ed .such license, w.is lield to withdraw the Company from the operation of the Provincial Act.— Ciir.nix ami (jitrcn Iiisuriiiia CoiuiKniUs v. Pur- «<««— P.C. . . . . i. 2. An Act which authorized the Coijioratioii of the City of Montreal to impose ii license tax on butchers keeping -tails or shops in th.' city for 2{i5 :V.) APPENDIX. 40 I'AliK. till- Hill(! of iiiciit, iisli, etc., rlscwlu'l'c thiiii on tlic public markets, was 1h|1(1 not to bf! ultra vires of tin; I'roviiicial Lfgislatiirt', as an interference witii trafle and coniuierce.- ./l»srf)',s v. Tin City of Montreal — Superior Ct., (Quebec ii. 335 Malkttr v. The Vitil of Montreal— SuiHsrior Ct., (Quebec . . ii. 340 Bankruptcy . . . ii. 343 See IjANKKurrcY and Insol- vency, 5. Bills of Lading See Bills ok Ladinij, 1. Intoxicating Linuor- Sce InTOXK'ATINO Lim'OKH, — License Law Xre LiCKN.SES, 3. — Tenii)eranco Act .Vet- Tkmi'kuanok Acr r,') Apollo Caiullo Company, Pnwoil ,-. . 10 Api> Cas ''iS" Ann.sti'on,a- c. McCutchiii . . . 2 Piii;.sluy ':{Sl" " Attoiiiyy-Genoral /■. Intornational Britl<'o ) , " " ' ' Company ...."' ^ *' -M'l'- l^t^p. T).'!; AttonKiy-(;oliural r. Niagara Falls jntm'- / ,,„ ,, national Jii'idgo Co. . . ^ -^0 Cnint, ;{4 . Attonioy-(ienuml -•. Mercoi- . . 8 App. Cas. 7(i7 Attorney-(!oneiul for (,)uol)t'c v. (Jiiucn ) ., . InsuiancoCo ^ ^ App. Cas. lODO Attornoy-Cienoral of Quebec *). Colonial { ^. . Building and Invostmoiit Association. \ I'l'- *^''"^- I'"*'''- Attonioy-Oeneral of Quebec >-. Heed . 10 App. Ca 14] B Bate, Mousseau v. ..... Bayley, Ganong v. . Beard v. Steele ■ . . . . Belford, Smiles v. . Belisle, L'UnionSt. Jac(|ue.sde Montreal r. Bell, Doyle r. . . . ; . Bennett r. Pharmaceutical Association of Quebec . .... ISeniustt, Keg. ''...... Black, Dow c. ..... Blouin /'. Corporation of Quebec I'oardnian, Reg. v. .... l5()urgoin r. La Compagnit' du Cliemiii de For deMont real, ( »t ta\v;i et ( )ccidental Bradsliaw, Beg. /•. .... Brome (Municip.ality of), Coney c. . Burah, Reg. >•. '. .... 27 L. C. Jurist, 153 1 Pugslev iV- Burbid' ••M Q. B. 43 I App. Rep. 43(;. Ii. R. (> P. C. 31 II App. Rep. 32() e, 324 Canada Central Railway Co., Jones Chandler, Re<'. r. . " . ; 1 Dorion, 33(} . 1 O. R. 445 L. R. (i I». C. 272 7 <,). L 1{ IS . 30 (i. I!. ,^,5,3 I ■") App. Cas. 3,SI 38 (,). 15. 5(;4 . 21 L. C. Jurist. 182 3 Ajip. Cas. 881». 4(i Q. B. 250 CI laple.-i Mol; 1 11: son c. uin;iy, 55fi Chauveau, Cote Church c. Fentoii . L. R. 258 . 28 C. P. 384 . I'AOK. 27 .39 J2 6 3 2 15 37 8 37 20 20 (; 8 3 28 M,30 21 36 19 22 29 10 37 12 29 4 32 10 17 42 TABLK or NAMES OF (^ASES IN APPENDIX. ft ^ § I Oitizuns' InsuniiicoCo. '•. r.ii.sniis . 4r( L.T. N. S. 7-1 :7 App. (':is OlHi'kc! r. riiiim Firo liisiir;im:o Cn. . 1(» I'r, Ivcji. ."li;! Clinulmid (Miiiiicipiility nf) c Miiiii- | cipdlity of MclhoiUiK! luid Uroiiiptun V4 LL't;al Nows, 277 (Joro ' . . . . J Collej^o of Pliysiciims ;hrI Sui'!,'ooii.s "M 44 (\ i> xr± Ontario, Rog. 1: . . . ( v • ' • C(tioniivl Buikliug fuiil Jnvestiucnt Associa- / ,. . ,,, ,-^ tion, Attoniuy-(iuiieral of (Juelioc /•. ) ' ' '"''' ''' '" ' Colonial Builtliii}' ami Investment A.ssocia- I e- t 1 aj ,.,. ,. T / 6 Lesial rsew.s, lid tion, Lorangor *■. .... J '^ Connnorcial Bank of Windsor, Town of).,,, n p ^. 11 t ^on Windsor Cooey r. Muniuipality of liroiiu Cooto, Reg. y. Cfiti' r. Clianveau . r. Watson Credit Valley Railway- Co. Western Railway Co. Crombie r. .laekson . Gushing r. Dupuy . 21 L. C. Jurist, 182 . . L. R. 4 P. C. .W!» . 7 Q. L. R. 258 . :j Q. L. R. 157 . fireal j ,^^^ ^j^.^^^^j.^ j.^^ . :}4 Q. B. 575 . 5 Apj). Cvs. 409 l"A(iK. •tc. :!s H 27 24 8 7 2SJ 10 4 31 4 3 Dansereau, /?;« ^Jrtrfe Davidson, Queddy River Driving I'oom Co De Grosbois, Willett r. , De St. Aubyn r. Livfrance De Vcber, In. ic , . . . Diblee, Whittier r. .... Dobie r. The Temporalities Board . Dow (1. Black ..... Doyle V. Bell Duduian, Kinney r. Duncan, ii'.i; ^«nf(; .... Dupuy, Cushing r. . m lit L. C. Jurist, 210 . 30 10 Can. S. C. R. 222. 26 17 L. C. Jurist, 29y. 14 « Q. L. R. 190 . 19 21 New Brunswick Rep. 401. 5 2 l»ugsley, 24'.i . 28 7 App. ( as. l.'5G. 22, 29 L. R. P. C. 272 36 11 App. Rep. 32U . 28 2 Russell Ai, Chesley, 19 . 4 IG L. C. Juri-st, 188 . 10 5 App. Cas. 409. 3 Ellis, Ex parte 1 Pugsley & Burbidge, 593 Eur()i)ean and North American Ry. Co. -•. ) ^ Pu./sley, 42 . Thomas Evans c. Iludoxi 22 L. C. Jurist, 268 . 10 23 13 Farewell, The Fenton, Church Foley, Reg. r. Frawley, Reg. i: F 7 Q. L. R. 380 . 28 C. 1». 384 . Stevens' Digest, 381 7 App. Rep.' 246 25 17 11 17, 22 (Janonc! v. Bayley, .... Gibson r. McDonald Gocxlhue, Tie .... Grainger, Separate School Trustees of Belleville r. . . . . Grand Trunk Ry. Co., Monkhouse r. Great Western Ry. Co., Credit Valley Ry. Co. (! Green, Molman r. . • . . 1 Pugsley it Burbidge, 324. 20 7 O. R. 401 . ^ . 21 19 Gr.int, 3()(; . . 29 1 25 Grant, 570 . . . 13 8 App. Rep. G37 . 31 I 25 Grant, 507 . , M 6 Can. S. C. R. 707 • 17 l-A^ • X i>7 2Si 10 4 :!1 4 3 ;{0 20 14 1!) 5 28 22, 29 36 28 4 10 3 fjlCJ 10 2:5 13 25 17 11 17, 22 fo, :}24. 20 21 20 13 31 31 17 TABLE OF NAMES OE C.'ASES IN API^ENDIX. 43 ♦ irillitli, P;i£{o I-. , T'tiii,'o c. , l*n])0 '•. '■. Uioiix H HAMif.Td.N (City nf), Harris c . Fliirris r. City ><{ Huniiltnii Hiirt c. Cnrpdr.iticin tif the Cuunty nf Mi.s,sisi|iiiii .... Ifdlniiui r. (iroLMi .... lfi>liiics /■. Toiiii)1l' lloriior, lic<4, '■..... Hiulnii, Evans c . . 17 L. C. .Iiiri.st, ;{02 18 ^J. C. Jurist, 11!» Ki L. C. Jiiri.st, l(i!) <> Logal Nows, 211 44 q. n. (i41 44 q. B. H41 I 3 Q. h. R. 170 A\>]>. C.w. 117. Can. S. C. I{. 707 . 8 Q. L. R. 351 . 2 St,oi)lions' Dif,'ust, 450 22 L. C. .lurist, 208 . I.XTEKX.'TIONAl, CJonoral r. Uridyl' Co.. Allnnicy } K Jackso.n, Croiiihic ,-. Jnlllistoil /•. I'nynt/C . J<>no.s r. Canada Central Ry. C. Kkkkk r. McLonnan Kiii,-j;'.s (.lusticus nf), Ri.. Kinney v. Dudnian . La Cuni|)a,i,'nio du Clioniin dt' For de | Mnntroal, Ottawa ot ncuidoiital, ' Hnnr^oin c . . . . ) Lafrance, Dc St. Auhyn *•.... Lake, Rojf. r. .... liandry, Tliehorgo '■.... Langldi.s, Valin '■-..... Lawronoo, Re:,'. /■ Lcnoii' r. Ritchie . . . . . Loprulidn r. City of Ottawa Leveillo, E.r I'avh- . . . . . LoranLCer r. Colonial Ijiiildintr and In- vestment A.ssociation L'Union St. Jac(jiiesdo Montreal c.Belislu \ 5 Legal News, llO L. R. P. C. 31 M('Ai,Mc)N /•. Pine .... McClanaghan i: St. Ann's Mutual Ihiild- ing Society .... McCutchin, Armstrong c, McDonalil, (rib.son c . Macdougall c Union Navigation Co. McGuire, Wilson c. ... McLennan, Kec^fe c McMillan. Reg. <■. . \ '•. Southwest Room Co Mallette /■. City of Montreal . \ 2 Pugsley, 44 . 24 L. C. Jurist, lOL' 2 i'ugsley, 381 . 7 O. R. 401 21 L. C. Jurist, 03 2 0. R. 118 2 Ru.ssell & Chesley, 5 2 Pugsley, 110 . 1 Pugsley it Burhidge 715 24 L. C. Jurist, 203 . TAfiF,, 10 15 9 38 25 25 v: 37 17 17 24 21 13 4 11 29 10, 30 20 4 29 19 38 27 28 !» 31 37 22 10, 5 4 5 21 25 21 30 22 20 30 44 TAFU.K OF NAMKS OK CASKS IN APPENDrX. i I I S5 IVTclbniiriK! 1111(1 Hroniptoii Ciiwv. (Muni- \ cipiility i)f), Mimicipalifcy nf CIovo- > 4 Logal Nowa, 277 land c. Morcov, Attornoy (icnonil i Mcrchfints' Rdiik, Smith e 8 App. CdH. 7<')7 2K (irant«20 IVIissisciuni (Cfd'poriitioii of tliu Cnmity /-jot i> lyn of), Il.irt (". . . jj • J. • ■ < Molir, Ruj,'. r. Molsnn r. Cliiiploau Monklioiiao r. (Jiaiid Tniiik Uy. Cn Moiitroal (City of), Aiij^crs r. -, Mallotti) i\ 7 Q. L. 11. 18;] . (i liC!,'al Nows, 222 , 8 A pp. Hop, (i;{7 24 L. C. .Imisfc, 25!) . 24 L. C. .Jurist, 2(i;] . Moiitroal, Ottawa otOcciduiital, 15nuri,'<>iii r. r> App. Cas. 1581 Moiifcroal WaroIinusiiiL,' Co., Koyal Caiia- ) ., • , ^r ,-- uian Ins. Co. r. ....)" ' Mousscau ('. Uato . 27 L. C. Juri.st, I5;{ . Murdoch v. Windsor & Annapolis Ry. Co. Ru8seir.s Eijuity Rup. KJ? N NiAiiAUA Falls Intornational Ikidgc Co., ^ on r < , ^ -u . , . /^ I / .iu iirant, •»*! Attorney-doncial r \ Noel V. CoriMiratioii of tlu! County »i i , -r, ■ ■..>.> Richmond ) Normand v. St. Lawronco Navif^ation Co, 5 Q. L. R. 215 . o OiiiiJ.iA (Villaj^o of), Slavin r. (VRourko, Rog. c. . Ottawa (City of), Luprohoii ( . P.\riK r. Ciridith Paigi! i\ (Jriliith Papin, I'jx portc Parsons, The Citizens Insurance Co. r. . , The (jueen Insurance Co. r. Peek, Shields i: . . Pharmaceutical Association of Quul>ec, Bennett r. ..... Picton, The Pillow, E.i'.p((rii- Pine, McAlmon » Pope i: Griftith Poulin i\ Corporation of Quebec- Powell w Ap App. Rej). 63!) 37 25 25 II 37 10 15 15 15 38 38 21, 30 24 2(> !> 20 12 11 38 38 Q QuEBKC (Corjioration of), Blouin c. .^^^^__- , Poulin r. 7 q. L. R. 18 . DCan. S. C. R. 185 Queddy River Driving Room Co. -■. ) jq ^.^^^ ^ ^ j^ 222 Davidson . . . ) Queen Insurance Co., Attorney-General ) ., . ^.^^ jqj,(^ for Quebec i: S (Jueen Insurance Co. I'. Parsons . 45L.T.N.S.721 ;7 App.Cas.iMl Id 20 2(i 37 38 [)rx. I'A(;k. TABI.E OF NAMKS OF CASES IN APPENDIX. 45 \m. as, (Hi m 27 15 7 2t ;j2 •M ;«> 2!» 18 2(> 25 II .'{7 10 15 15 15 n8 38 Cas.fXi 21, 30 24 2(; !» 20 12 11 ;J8 38 20 26 37 Rog. Reed, Attonioy-Ciuuoivil of Quahec r. -, Wiii'd c. .... r. Amur .... ''. Huiiiiott .... r. Uoai'diiijni .... ('. BradMJiaw .... r. Bunili .... I'. Cliaiullor .... Collu-,'0 of I'liysicidiia and Surgoon i)f Oiitiirio Codto . Foloy ...."." Frawloy .... . Hodgo ('. — ■ ''. Hurnur. .... /'. Justicos (if King's. i\ Lako ..... I". Lawronco .... ('. McMillan )'. M-.Iir ('. (J'Rourko .... ('. I'rittio .... ■ i'. Rono ft al . r. Roliurt.son ('. Roddy .... , Russoll ('..... — — , Suvorn c. . . . . Ronaud, Ex imrfe .... Rono ct al.. Rug, r. ... Richmond (Corporation of tlui t'ountv of Noel (- ^ Rioux, (iritHth v Ritchie, Lunoir r. . Robertson, Reg. t\ . Roddy, Keg. v. Ross ('. Torrance .... Royal Canadian Insurance Co. i\ Montroa Warehousing Co. . Russell i;. Reg. . . . . , s St. Ann's Mutual Building Society, Mc- Clanatrhan v. . St. Lawrence Navigation Co., Norniand i\ Separate School Trustees of Belleville o. Grainger ...... Severn r. li eg. Shields, Peek ;'...... Slavin r. Village of Orillia Smiles v. Belford . . . . . Smith, Ex parte ■ . . . . V. Tho Merchants' Bank Southwest Boom Co., McMillan r. . Squier, lie ...... Steele, Beard r. ..... Sidte, Corporation of Three Rivers c. Temple, Holmes r. . Temporalities Board, Dohio r. Theberge i: Landry 10 App. Cas. 141 22 Now Brunswick Rep. 27 42 g. B. 3!»l . 1 (). R. 445 30 Q. B. 553 . 38 Q. B. 504 . 3 App. Cas.SSU. 1 Hannay, SoO . J44y. B.5(J4 L. R. 4 P. C. 599 Stevens' Digest, 381 7 A])p. Rep. 240 9 App. Cas. 117. 2 Stojiiiens' Digest, 450 2 Pugsley, 535 43 (^>. B. 515 . 43 Q. B. 104 . 2 Pugsley, 110 . 7 Q. L. R. 183 . 1 O. R. 404 42 Q. B. 012 . 4 Pr. Rop. 281 Can. S. C. R. 52 41 Q. B. 291 . 4GL.T.N.S.889;7App.Cas 2 Can. S. C. R. 70 1 Pugsley, 273. 4 Pr. Rep. 281 I 1 Dorion, 333 . Legal News, 211 3 Can. S. C. R. 575 OCan. S. C. R. 52 41 Q. B. '»M . 2 Legal News, 180 9 I 3 Legal News, 155 40 L.T.N.S. 889 ; 7 App. Caa. 829 I'AUE, 37 11 27 21 22 10 12 4 24 29 11 17, 22 12, 17 21 20 38 9 22 24 11 38 21 16 9 18 22 13 21 37 38 31 16 9 18 18 18 829 |24L. C. Jurist, 102 5 Q. L. R. 215 I 25 Grant, 570 . 2 Can. S. C. R. 70 App. Rep. (i39 30 Q. B. 159 . 1 Ajtp. Rop. 430 10 L. C. Jurist, 140 28 Grant, 02!) . 1 Pugsley A Burbidgu, 71 40Q,B.474 . 34Q.B.43 •') Legal News, ;J30 4 25 13 22 5 25 8 15 7 20 9 18 8 Q. L. R. 351 . 24 7 A])p. Cas. 13(i 22, 29 2 App. Cas. 102 27 v, '\i?. n i!^ T 'ABLK OF NAMKS OF CASES IN APPENJ)1X. TlioiiiiiH, Kiirupfdu tind North Aiiioriuiiii / . •, i ,., 'riiroo Ilivoi'M (Cui'jHinitiDii of) c. Sulto Tnrniitd llHi'lxtiir OuiiiiiiiHHioiiL'rH, Id' 'loVViincv,, lloHH I', . Li'f^iil NuwH, ;j.'{0 L'H(imiit, 1!I5 . 2 LuLjiil Nuws, IHi! I'ACIK. 23 18 14 18 u Union Firo Insuninco Co., Clnrkc c. Uniiiii N(ivi<'!iti()n Co., MaedoUL'fiU r. 10 Pr. Rep. .'U;5 lii L. c. Jiiiist, n:i 8 26 is I VAiiiN V. Ljuiylois rib W Wallace Huostis (iroy Stoiio Co., Jic. Ward r. Rood Wiitson, Coto (•..... Westurn Uountios Ry. Co. i: Windsor it Annapolia Ry. Co. Wotlioroll it .lono.s, He Whittior /•. Dil.loo .... Willott r. Do (irosboi.s Wilson r. Mc(!uiro .... Windsor (Town of) r. Commercial Bank Windsor Windsor it Ainiapolia Ry. Co., lie. , Mnrdoch r. . , Wostorn Conntios Ry. >'. . Worms, E.y juair .... 5 App. Cas. 115. RiiHsoll's E(piity Rop. 4(il 22 Now Urunswiok Kop. 1 oil L. ii- 157 . ' 7 App. Cas. 17H. 7i» 4 O. R. 7i:5 2 Pugsloy, 24.'} . 17 L. C. Jurist, 2!t;j , 2 (). R. IIH > ;j Rnssell it Geldurt, 4 RussoU it (iol 14 15 ])1X. TAtiK. 23 18 14 18 8 26 41)1 ;i). 27!> 420 .'U2 i;J7 28 U 4 14 28 14 21 37 fi (> 14 15