A COLLECTION ' ot Legal Opinions, COMPRISING UPWARDS OF ONE HUNDRED AND THIRTY LEADING OPINIONS ON CASES SUBMITTED TO THE LATE HON. J. HILLYARD CAMERON, Q.C. COMPILED BY W. A. ORR, (sti;bejjt-at-i-aw.) K. CARSWELL, 26 & 28 Adelaide Sihbet, Toronto. 1878. , , PREFACE. This publication is prepared from copies of cases sub- mitted, and opinions given thereon, during a long course of extensive counsel practice, and is now presented to the profession, who usually are unable to derive any benefit from such resources, with the hope that considerable in- formation and advantage, in both study and practice, may be gained from the perusal of the opinions of one who for so many years stood at the head of the Bar in Ontario. The compiler wishes to express his thanks to the Ad- ministrator of Mr. Cameron's estate for his permission to use the materials from which this work is prepared. W. A. 0. Toronto, April 25th, 1878. STATUTES HEFEBl^ED TO. TAOE. 13 Eliz. c. f) fiii 2 Geo. IV. c. 1, 8. 11) 29 4 Win. IV. c. 18 53 8 Vic. c. 8 165 8 & 9 Vie. c. 70 (Imperial Act) 89 9 Vic. c. 5(5, 8. 8 ' 29 12 Vic. c. 85, 88. 85, 36, 87 11 14 & 15 Vic. c. 6 67 " c. 153 54 16 Vic. c. 140 32 18 Vic. c.24 82 19 Vic. c. 06, 88. 2, 8, 4 16 " c. 90,8. 24 30 22 Vic. c 06 '. 21 29 Vic. c. 10 97 29 & 80 Vic. c. 51, 8. 287 84 31 Vic. c.88 190 31 Vic. C.48 167 IiDperial Joint Stock Companies Act, 1845 116 British North America Act, 1807 98, 183 Copyright Acts, 1868,1875 170 Interim ParHamentary Elections Act, 1871 137 Land Mining Act, 1809 109 Canada Joint Stock Companies Act, 1869 113 Eeal Property Limitation Act, 1874 180 Insurance Act, 1875 146 C. S. U. C. c. 21, SB. 270, 271 29 " c. 22 30 " e. 31 164 *• c. 46, s. 3 84 " c. 47 60 BTATUTKH RKPKRRKI) TO. I'AUK. C. S. U. C. 0. /)4, 88. 1(){), 170, 17*2 IS " c. 64, H. 'ilT) 751 " c. 54, 8. !W() 7H «* c. r>/) 4(i •• c. r)5, 88. 70, 77 '24 "• c. ()« 27 " c. 110, 8. 7 IH " ' c. 120, 8. 3 IH " 0.121,88.1,3,4 19 Ont. Stat. 10 & 20 Vic. c. 03 10 22 Vic. c. H4... 11,12, 13 22Vic. c. 00 10 11 20 iSj 27 Vic. c. 03 103 " 31 Vice. 13 103 " 31 Vic. c. 30, s. 340 105 31 Vic. c. 41, 8. 22 10(; 32Vic. c. 11 165 166 33Vfc. c. 21 150 34Vic.c.3 04 34Vic. c. 37 100 103 ■ " 35 Vic. c. 16, 8. 4 151 35 Vic. c. 48, B. 2 121 35 Vic. c. 52 132 35Vic.c.l02 146 175 36 Vic. c. 10, 8. 5 151 36Vic. c. 47 162 \ '• 36 Vic. c. 86, 8. 4 120 37 Vic. c. 32 179 38 Vic- c. 67 103 30Vic. c. 26 182 Temperance Act, 1864 181 Election Act, 1873 128 INDEX. PAGE. Ho 2« 120 AcknowltniKmL'iit of title i**' Action on cuntiact under protest Administration of Justice, exjienses of Agruement on (irantinn Honua Amendinf{ Assessment 1 1 ' Appeal Against Assessment 1 2ij Apportionment of Assessment 25 Appropriation for School 108 of Money by By-law.. 167 Assessment under Hy-l'iw 24 *' under C. S. U.C. c. 55.. 46 •' on Mutual Policies.. 15 116 " when to cease 188 Auditing Accounts 1*5 Average or Partial Loss 53 B. Bank Discount 21 Bankruptcy 10,139 155 Bills and Notes 69 Bonds Under .\ct of Incorporation. . 106 " Under 38 Vice. 57 i93 Bonded and Floating Debt 161 Boundary Stream, rights in 104 Breach ol Contract 27 of Covenant 20 Brioery in Elections 128 Bridge, Construction of 132 Cancelling Leases 58 Cancellation of Policies 187 Cause of Action 173 Carriers, Liability of 143 Charter Party 131 Commutation Fund 141 Condition Precedent 46 Confirmatory Deeds X89 PAGE. Construction of Dam 146 Contractors, Liability of 173 Contract for Purchase 147 Contributory Negligence 173 ('onnty Kates 81 C'opyright 170 D. Debentures 3a " by Way of Loan 195 Deeds under Cancelled Seal 52 Deposit under Insurance Act 88 Discharge under Bankrupt Act. .. . 10 Distress for Jient 70 Distribution property 38 Discount or Interest, Rate of 119 Disqualification of Stockholders. ... 41 of Member 12S Dividends na Divorce 130 Double Insurance 107 Dunkin Act 181 E. Easement, Right of 128 Election of Directors 35 " of Speaker 92 Estate in Fee by Devise 104 Exchange of Bonds 186 Exemption from Taxation 175 Extension Bonds 99 Extradition 139 F. Eees of Clerk of the Peace 36 Ferry, License of 83 Forfeiture of Leasehold 125 of Land by Non User. ... 53 of Stock 116 Fraudulent Assignment 60 " Preference 168 INDEX. PAOB. Glcbc l^indff 47 fJnods ,' r/)st by Fire " . . , 70 (iovoniniunt (^otnmiMsiottH ujo ir. Hypothecation of liondn 170 I. Injury on Public Road 78 79 Insur.iltlc IntcrcHt 158 Insur.'incu Act 1H75 146 Interest on I) ilionturos 95 " on Arrears of Rent 65 Interpretation of Contract 80 Investment of I'unds 21 " in Canadian Securities. . 89 L. Leases by Incumbent 58 Lease with Right to Purchase 122 Legal Tender for Rent 42 Legislation. Right of 183 Lessees I lun lering Timber 67 " Rights of 105 Liability of Directors 39 Libel •. 62 License Act. 39 Vic 183 Lien in Equity 16 Limitation of Actions 144 Liquor Licenses 177 Loss on Marine Policy 53 " from Explosion of Gunpowder 147 M. Maintaining Road 196 Marine Insurance Loss 44 Marriage. Validity of 25 P2flect on Property 37 Mechanic's Lien 184 Mill Dams 128 Misdemeanor to Highway 51 Misrepresentation 13 Municipal Loan Fund Debts 162 Mutual Insurance Act in N. Notes Made by a Corporation 72 Notice to Quit 58 76 " to Insurers 186 Nuptial Partnership 38 P. Participation of Profits 123 Partners, Liabilities of 168 PAOR. Pension to Wid >w 39 Petitions to (Council 9 Pound-ige 29 I'owers to Issue Policies 166 Preference Bonds 118 Premium, Repayment of 188 Privileged (Communication 64 Provisional Directors 90 Public'ition of liy-law for Honus .. 129 R. Receiver of Company 145 i6r Rectory Lands Fund 96 Reduction of Special Rates 194 Registrar, Action against 15 Registry Law 82 Replevin 39 Resident and Occupant 134 Residuary Devise 56 Right of Entry 39 Right', in Streams 50 River, Diverting Course of 192 Road Allowance 11 84 S. Sale of Property for Debt 74 Seal. Change of 51 Selection of County Town 16 Shareholders, Animal Meeting of .. 112 Sheriff's t'ees 164 Shop Licenses 179 Stamp Duties 55 91 Statute Labour 78 Statute of Limitations 64 St-itutory Title 1 79 Street Railways 26 Track 152 Sureties of Agent, Liability of 118 Surrender of Bonds 185 of Policy 150 T. Taxation, Liability of Bank Stock to no Tenants from Year to Year 77 Timber, Reservation of 109 Title, Examination of 136 U. Underwriters, Liability of 149 V. Voters, Qualification of 137 Voluntary Deeds 15 OPINIONS ar THK HON. J. H. CAMERON. TETITIONH TO COUNCIL. CASE — On the 16th July, 1858, the Council passed By-law No. 15, dividing the township into wards, under which by- law the Councillors for the year 1859 were elected. According to the assessment roll the numbur of resident ratepayers in the township is four hundred and eighteen. On the 2'.)th of August last the Council received the petition of D. B. and two hundred and thirty-two others, praying for a re-division of the township in numner . herein set forth. This petition (No. 1) contains the signatures of a majtu'ity of twenty-four of the ratepaycsrs of the township: the recep- tion and reading of the same were duly recorded in the minute book. The members of the Council who were favor- able to the proposed division were enabled to secure a meeting of the Council, to take place before the expiration of a month from the date of the reception of the petition, intending thereat to pass a by-law to establish the division prayed for, in compliance with the prayer of the petition and in accordance with the 22nd Vic. chap. 29. The Council met accordingly on the 24th of the present month (Septem- ber), when another petition (No. 2) was laid before the Council, praying that the division into wards under By-law No. 15 might be totally abolished by the repeal of said by- law. This petition contains two hundred and lifty-one signa- tures, being a majority of forty-two, or, in other words, it is signed by eighteen more qualified electors than the first petition. This second petition has been signed by many who signed the first. 10 BANKRUPTCY. It is the desire of the Council that you should state your opinion fully, not only as to which o{ the two petitions should be first entertained, but whether one being acted upon, the oilier should afterwards be complied with, and if so, at what time, and also as to what should bo the future course of the Council in regard to the petitions. OPINION — As there are two petitions before the Council, it is in their power to take up either of them, but as the last presented is tlie most numerously signed, I consider that that petition should be first considered, and on its consid- eration the whole subject may be disposed of. If four mem- bers of the Council agree either to abolish the wards alto- gether, or to re-oast them, they may pass a by-law at once to take effect on the 1st December next if it shall have been previously published for a month in some newspaper in the county or by printed hand bills put up in twenty public places in the township ; but if only three members concur, then a vote must be taken according to the provisions of the sub-sections of 22 Vic. ch. 99, § 267 My advice to the Council is oo comply with the petition of the majorty of the ratepayers, and abolish the division into wards by a by-huv, and it would probably be advisable that only three members should vote for such by-law in order that it may be submitted to the ratepayers, and their vote taken upon it before the next anni .al municipal election. J. Hill YARD Cameron. 4th Oct., 1859. BANKRUPTCY. OPINION.— On a careful consideration of the statute 19 & 20 Vic. ch. 93, I am of opinion that any certificate given under that statute to any person having been a trader in Upper Canada within the meaning of the Bankrupt Act, is an absolute discharge of all debts or liabilities due or con- tracted up to the time of the presentment of the petition, and I am not aware of any decision of any of the Superior Courts to the contrary. J. HiLLYARD Cameron. 4th Oct., 1869. ROAD ALLOWANCE. 11 , ROAD ALLOWANCES. ' CASE.— ''' ' '■ ' ., : ' . " ' .' 1. In the month of September, 1858, the Council of the Corporation of tlie Township of Torbolton passeil a by- law authorizing the making of anew road across the second concession, running in a right line from post to post between lots 20 and 21, without reference to any governing line, and of course leaving the original road allowance and running partially through lots 20 and 21. This road was opened up, and also another at the same lots, on the first concession, and running in the same way from post to post. The road on the 1st concession was made with the consent of the parties whose lands were affected by it. The road on the west side of the second concession was made with the consent of the owner of the lot through which it passed, on condition of his getting the original road allow- ance, which offer was accepted 18th December, 1858. With the regard to the half of the road on the east side of the concession, arbitrators were appointed under the old Muni- cipal Act, but no bond executed. 2. An award was made, and the amount awarded has been paid. ^ By the new Municipal Act 22 Vic. cap. 99, sec. 300, which came into force 1st December, 1859, it is enacted that " all allowances for roads made by the Crown Surveyors in any town, township or place already laid out.&c, shall be deemed common and public highways." And by sec. 322 of said Act it is further enacted "that every public road, street, bridge, or other highway in a city, township, &c., shall be vested in the municipality." , By the Act 22 Vic. cap. 84, assented to on the 4th of May, 1854, and which from the preamble appears to have been passed in consequence of the petition of the inhabitants of the township of Torbolton, it is enacted that for and not- withstanding anything to the contrary, in the 35th, 36th, and 37th sections of. the Act passed in the 12th year of Her Majesty's reign, cap 35, " All the side lines between lots in " the said Township of Torbolton shall be so drawn that 12 ROAD ALLOWANCE. *' the side line between any contiguous lots in any concession " of the said township shall be a line drawn from the post " at one end of the concession to the post planted at the '* same side of the lot bearing the same number at the other " end of the concession, and any line so drawn shall be " deemed to be the true side line of the lots between which " it shall be drawn." ■ • . . As the Council wishes to avoid all unnecessary responsi- bility, and to prevent in as far as possible any disputes as to the original road allowance left useless by the roads before mentioned, and also to prevent any disputes between the inhabitants themselves as to side lines, they request answers to the follow^ing questions : 1. Does the Act 22 Vic. cap. 84, make it imperative that all side lines between contiguous lots shall be drawn from post to post, or does it apply only to those which remained to be drawn at the date of the Act, leaving all lines legally drawn by a licensed surveyor under 12 Vic. cap. 35 still untouched ? 2. As road allowances made by Crown Surveyors in any township are by 22 Vic. cap. 99 sects. 300 and 302, consti- tuded public highways, and decLared to be vested in the municipality, can 22 Vic. cap. 84, which does not even men- tion the 22 Vic. cap. 99, or make any allusion to roads or road allowances in any way alter the lines oounding original road allowances ?'- •.'•" ,';..■'•'■"•: ^■/'''■'/ -'.■' -;i'i?v'x' '"^'-'v .". 3. Can lots separated by an original road allowance be contiguous lots so as to be affected by 22 Vic. cap 84 ? 4. Can a line betwixt a lot an original road allowance be deemed a line between lots ? 6 If thei22 Vic. cap. 84 be held to apply to original road allowances^and to lots separated, by original road allowances, did the running of the side lines at lots 20 and 21, 2nd concession, constitute such a running of lines as would take them from under the said Act if it be held that it only applies to lines undrawn when it came into force ? 6. Is itjpossable in any case to draw a side line according to the course laid down by 22 Vic. cap. 84 ? or would a Court be inclined to give effect to the supposed intention of the act? MISREPRESENTATION. 18 7. Under all the circumstances of the case would the Corporation bo justified in proceeding to sell the said original road allowances under the Municipal Act, holding them entirely unaffected by 22 Vic. cap. 84 ? OPINION. 1. In my opinion the stat. 22 Vic. ch. 84 applies only to side lines to be run after the passing of the statute, and not to side lines legally run out before it was in existence. 2. The 22 Vic ch. 99 being a later statute than the statute 22 Vic. cap. 84^ the law respecting original road allowances must be founded on the former statute, and nothing con- tained in the chap. 84 can affect the lines under chap. 99. 3. Lots seperated by an original road allowance may be contiguous lots within the meaning of cap. 84. 4. Yes. 5. I doubt whether under any circumstances the line drawn between lots 20 and 21 can be upheld as the by-law does not clearly define the course except by reference to something not in the by-law itself, and I therefore should not consider this as a side line run before the passing of the statute. 6. This must depend on the circumstances of each case. 7. I am of opinion that the corporation may proceed to deal with the original road allowance under the Municipal Act, as I do not see that their power is affected by 22 Vic. ch. 84. J. HiLLYARD Cameron. 6th Dec, 1869. MISREPRESENTATION. CASE — In security for certain shares of stock purchased in a building society, A. B., by his agent, offered, afiiong other property, certain village lots mentioned in a deed accompanying his offer, which lots are described in said deed as containing seven acres and twenty-three perches of land. 14 MISREPRESENTATION. The offer was accepted by the Board of Directors, and the money ordered to be paid upon the soHcitor of the society certifying that '^ne title was good, the property unencum- bered, and a mortgage duly executed and deposited for registry. The money was paid ui)on the solicitor's certificate, which was in the following words: — "I certify that A. B. hath executed to the society a mortgage in due form of law on the property offered, and that the title is free, clear, and •unincumbered, and that the mortgage has been deposited for registry, and that no judgments are recorded in the registry office of the County of Welland against the said property or the said A. B., and that there are no executions against lands of A. B." The certificate of the solicitor was founded upon a certi- ficate of the same tenor and effect from the Registrar of Welland. ■ / ; > v The mortgage to the building society was dated the 16th, and registered the 28th of February 1855. A. B. failed to make the payments to the building society. It now turns out that by deed dated on the 1st, and recorded on thy 11th July, 1851, A. B. conveyed to C. D. i roods and 4 perches of the land thus mortgaged to the building society, taking a mortgage from C. D. securing i'105 on said 2 roods 4 perches, dated and recorded at the same time as the deed, which mortgage is still unsatisfied in the registry ; and that C. 1)., by deed dated December 31st, 1851-, recordedJanuary 2nd, 1852, conveyedthe same land to E. F. Also, that by deed dated 13th November, 1852, recorded 24th June, 1853, A. B. " for and in consid- " eration of the love and affection which he entertains " towards his nephew, G. H., and also for and in consid- " eration of the sum of five shillings to him in hand paid " by K.L.," conveyed 3 acres 3 roods 19 perches and 9-lOthB of a perch (part of the 7 acres and 23 perches mortgaged to the building society) to K. L., his heirs and assigns for ever, upon trusts to lease or sell the same, and pay over the rents and proceeds to the said G. H. With regard to this last mentioned conveyance, A. B. ASSESSMENTS ON MUTUAL POLICIES. 15 states verbally that he never delivered it, that he placed it in his desk, and it was taken therefrom and registered with- out his knowledge or consent. , . Your opinion is requested on the following points: — 1st. Is any one, and if so, who and to what extent responsible for the misrepresentation under which the .building society advanced the money? 2. How is the claim of the building society to the 7 acres and 23 perches affected, under the circumstances above stated, by the conveyances to C. D. and G. H ? OPINION — On the facts stated there can be no doubt that the society has a clear right of action against the Eegistrar of Welland, if the security be insufficient. Tne solicitor would, I think, be protected by the certificate, although it is questionable whether it is not his duty to ascertain by personal examination, himself or by an agent, the true state of the title on the books of the registry. As, however, the case against the Registrar is clear, it will be advisable to proceed against him. The deed made in November, 1852, by A. B. to G. H. being voluntary, cannot prevail against the mortgage to the society, except as to such portions of the land as G. H. nlay have sold for valuable consideration. ' " '-s >• J. HiLLYARD Cameron. 6th Jan., 1860. C ASSESSMENTS ON MUTUAL POLICIES. CASE. I beg to enclose you a copy of a resolution passed at a meeting of the Board of Directors, together with a policy, to obtain your opinion thereon. Resolved, That the Secretary obtain the opinion of the Hon. J. H. Cameron as to the manner in which the assess- ments on mutual policies are to be realized in cases where parties are unable, or unwilling, or neglect to pay ; and 16 SELECTION OF COUNTY TOWN. whether the company has power to sell the propertiep in- sured, or such part thereof as may be necessary for meeting said assessments without previous legal process, and if such previous process is necessary, of what nature. OPINION — The assessments payable by any member of a Mutual Insurance Company acting under the provisions of the Mutual Insurance Companies Act can be enforced against the real property insured by filing a bill in Equity to establish the lien of the company on the assessment, but no sale can take place unless such lien be estal)lished. J. HiLLYAiiD Cameron. 13th Dec, 1859. SELECTION OF COUNTY TOWN. CASE. ■ . - " - ' ".:■■"■■"" 19 Vict. ch. 66 sees. 2, 3, 4. In October, 1856, a vote of the electors was taken in pursuance of the Act, and a majority of about fifty was in favour of separation. ,: ^ . i Owing to uncertainty as to what roll should guide them, some of the returning officers used the assessment roll of the year 1855, and some 1856. In 1857 the Provisional Council consisted of ten members, a meeting was called at Brampton, five only attended, and no business was done. In 1858 the Council consisted of twelve members, a meet- ing was called, six attended at the precise hour appointed, elected a Warden, and settled Brampton as the county town before the other six arrived. The election of Warden was set aside by the Court of Queen's Bench, on the ground that there was not a quorum present. No further business was done by the Provisional Council that year. The Council has no corporate seal. 8ELKCTI0N OP COUNTY TOWN. 17 QUERIES.— 1. Wlmt roll Hhould have govorned the voting under the Act ? Has the irregularity, if any, heen waived by any- thing submitted, and what can be now done to susta'.u or set aside that vote? 2. Was the resolution confining the selection of county town to IMalton and Streetsville legal *.' 3. Waf the selection of Malton as county town made according to law ? 4. Can that selection be set aside and another place selected by any act of the council, and if so, what course should be taken ? /). Assuming (per opinion) that it could be proven that some parties who voted for Malton did so for a consideration or that the selection between Malton and Streetsville was decided by lot, what would be the effect on the question ? 6. What course would you advise the supporters of any other place than Malton to pursue if they had a majority of the Provisional Council in favour of that place ? OPINION — 1. I am of opinion that the vote of the ratepayers, or the validity of the roll on which the vote was taken, caunot now be questioned, as several meetings of the Provisional Council have taken place in successive years. 2 I am further of opinion that the selection of the county town, and the purchase of property for the purpose of build- ing a gaol and court house thereon, should have been by by-law, and that no by-law having been passed that no legal selection of a county town has as yet been made. 3. I am further of opinion that if any of the members voting in the majority in the selection of Malton were in- fluenced by pecuniary considerations, or in other words, received money or monies worth for their vote, or if the selections were decided by lot, the selection would be void. 4. The proper course to be pursued now is that the select- ion be proceeded with by by-law, as if no other selection had been made. J. HiLLYARD Cameron. 20th Jan., 1860. 18 AUDITINO A00UUNT8. AUDITING ACCOUNTS. CASE. - We arc iiiHtructod by our County Council to obtain your opinion as to the concurrent right of the Council and Quarter SessiouH in auditinjj; accounts, and their authority in directing the County Treasurer as to the payment of Quarter Sessions orders. The Consol. Stat. U. C. ch. 121,. sec. 1, directs that all accounts, ttc, preferred against the county, the auditing of which belongs to the Court of Quarter Sessions, shall be delivered to the Clerk of the Peace on or before the first day of the sessions in each term, to be laid betore the Bench. Sec. ;} of the same Act dir».cts how these accoujits are to be examined and orders signed. Sec. 4 directs the Clerk of the Peace to furnish the Treasurer with lists of orders, and how the Treasurer shall pay the same. Chap. IH), S 7, of Consol. Stat. U. C. enacts " that the Treasurer of every county shall, without further authority, pay the amount of fees which are i)ayable out of county funds when duly allowed by the Magistrates in Quarter Sessions assembled, as in the order prescribed by law for the payment of the expenses of the administration of justice after the expenses of levying, &c., and managing the rates and taxes imposed in any county are, paid the sheriff, coroner, gaoler, surgeon, &c." Ch. 64 § 169 of Consol. Stat. U. C. directs the auditors to prepare abstract and detailed statements of receipts, expenditures and liabilities of the Corporation. Sec. 170 enacts that the Council, on the report of the auditors, shall finally audit and allow the accounts of the Treasurer, &c. Sec. 172 enacts that every County Council shall have the regulation and auditing of all monies to be paid out of funds in the hands of the County Treasurer. Chap. 120, § 3, of Consol. Stat. U. C. enacts what shall be deemed the expenses ol the administration of justice : see also the schedule to the same Act. Ch. 54, § 160, of Consol. Stat. U. C. enacts that every Treasurer shall receive all monies belonging to the corporation, and pay out the same to such persons and in such manner as the laws of the Province and the lawful by-lawB or resolutions of the Council direct. AUniTINO ACCOUNTS. < 19 Have tbo County Council any authority to interforo with or audiu the accounts for the administration of justice, directed by statute to be audited by the Quarter Sessions, or direct the County Treasurer not to pay the orders of tlio Quarter Sessions signed by the Chairman, these orders being granted on accounts connected with the; adminis- tration of justice, and audited by the Quarter Sessions? OPINION. In reply toyour conmiunication on the subject of the authority of a County Council to interfere with or audit the accounts connected with tlu; adininistration of justice, or to direct the County Treasurer not to pay the orders of the Quarter Sessions for expenses of a similar character, I am of opinion as follows : The expenses connected with the administration of justice havingbeen defined by statute (Consol Stat. I'. C. chap. 120), by the next statute, chap. 121, the marftier in which the accounts shall be audited and paid by the order of the Quarter Sessions is distinctly pointed out, and the intention of the Legislature is clear that their expenses shall be mentioned and allowed by the Magistrates in sessions, and paid by the Treasurer without the intervention of any other authority, the law of the land imposing upon that functionary is plain a duty to pay the order of the Quarter Sessions for these expenses as to pay monies under the authoiuty of the council, when such payments are made, in cases within the control of that body ; and I am therefore of opinion that the Treasurer is bound to pay monies ordered to be paid by the Quarter Sessions lor the administration of justice, although ordered by the council not to pay them, as the council has no authority nor power to direct him to dis- honor such orders of the Quarter Sessions. I am of opinion further that the auditors of the council must audit all the Treasurer's accounts, including those for the administration of justice, as those accounts are paid out of county funds ; but such audit is only to establish the correctness of the accounts of the Treasurer, and does not empower the auditors to question the authority of the Quarter 20 UHKAOn OF COVKNANT. SeflHionH to grant any order for paymontH connontod with the jidniiniHtration of juHtici!, tht! prodiK^tion of the order and proof of payment hein/^ all that tlu! auditors can recpiire of the TroaBurur, iu the examination of these account«. J. TTiiiLYAitn ('amkiion. '2}jrd Jan., 1800. BllEAOH OF COVENANT CASE — Extracts from an agreement hetween the Niagara Falls International Jkidge Company, the Niagara Falls Suspension Bridge Company, and the Great Western Kail- way Company: " The parties of the first part to allow the directors and employees of the parties of the second part, and such other railway companies as they shall make arrangements with, free tickets to pass their hridge, and the parties of the second part shall allow from their own, and procure from the railroad companies with whom they shall arrange for the use of tKe bridge as aforesaid, free tickets for the directors and officers of the parties of the first part to pass over their respective railways." Under this clause, have they a right to charge their employees — they having broken their agreement — and still be in a position to come on them for damages, or must we continue to perform onr covenant, and sue for the breach on their part ? If any other remedy suggest itself to you, please advise us on it that we may fully understand our position. OPINION.— I am of opinion that the directors and officers of the companies, parties of the first part, are entitled to free tickets over the railway of the G. W. Co., whether such directors and officers are travelling on the business of their companies or not, and that the G. W. Co. have no right to enquire the nature of the business in which they may be gravelling. I advise that a list of the directors and officers INVKHTMKNT OF FUNDS. 21 of your company Ix) at oiuhi proparud, and a corarauni- oationHunt to tho (1. W. (Jo-.Toquonting fruo tickots for tliom for the prosent year, up to tlio time of your iioxt annual election. My prostsnt opinion is, that an action at law on the coviinant will be the most Hpeedy mode of obtaining rodroHH. J. HiLLY\ni) Cameron. 24th Jan., ISCK). . INVESTMENT OF FUNDS. CASE- Tlio Board for tho Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland, are incorporated under the Act 22 Vic. eh. (JG. Tliey dcs re to know whether they have authority to invest the funds of the Board on mortgages in Upper Canada. Your opinion is sought upon this question. OPINION — I am of opinion that tho Board have power to invest in mortgages on real estate in Upper Canada, but those mortgages should not bo taken for periods exceeding two years, and should contain powers of sale, so that there may be no question arising under the clause relating to real estate. Of course there would be no real difficulty practi- cally in extending the loans from two years to two years, but there should be no agreement to that effect when the loan or mortgage is made. J. HiLLYARD Cameron. 12th Mar Ii, 1860. BANK DISCOUNT. CASE — The Commercial Bank of Canada discounts a draft upon a person residing in a place within the Province of Canada, where the Commercial Bank has no agency, but 22 BANK DIHCOUNT. whoro tlioro \h an aRonoy of anothfr hank, tlirougli whicli i\w ('()iiiiiu>r(Mal Hank is olili^cd to hcikI the draft for acceptance* and payuimt. 'I'lio other l)a)d< charf^'eH the ('oMuncrcial Haidi one-half per cent, on thi* anioinit of thu draft for th( coUoction. ('an the Commercial Hank, on diHcountin^,' thin dri.ft, charf,'e the person for whom it in din- counted the (me-half {nr cent., allowed hy Stat. (.'onHol. ch. 5H () 7, in addition to the one-half per cent, paid to the other hank, or in otlu-r wohIh, char^'e tlie one-half per (tent. for itH own profit, whatever may hi! the wnm i)ai(l to the other bank, in addition to that Hum, to the party for whom the draft is discounti^d. OPINION — By the liftli Hcction of the statute! referred to in the case, a Hank diHcoiintinji; any hill or note payahle at one of itH own af^encicH Ih allowed to recciivc' or retain in addition to the diHcount (urtuin raten per cent., varying from one eij^hth to one half of one per cent, " to d«'fray the ex- penseb attending; the collection of such hill," and hy the seventh section when Huch hill or note in payable at a place where it is not discounted, and where theJiank discounting has no Agency, the diseonnting Hank may " charge, in addi- tion to the discount, ji sum not exceeding one-half per cent, on the amount to <.efray the expenses of Agency and exchange in collecting the same." The intention of the Legislature in passing the Statutes, the provisions of which are incorporated in the Act above referred to, was to authorize the Banks to take Interest directlv as interest at the rate of seven per cent, on the discount of notes &c., and to assess certain rates of commission where notes were payable elsewhere than where discounted, in order to do away with the uncertainty that existed as to the rates of commission that could in such cases be legally charged. The Legislature therefore altered the rates from one-eight to one-half of one per cent., according to the time that the note had to run to maturity, when the note was payable at the Agency of the discounting Bank as a suliicient remuneration for " the expenses attending the collection of such notes, &c. ; " but. where it was payable at a place where HANK IHHOOirNT. ' *28 tilt) (liHcountinK Hunk liiul iio A^onrv, it iillixcd tlit^ rate at onr liiilf per cctit.. without rcfcruncf to tlm tiiiio the note had to run to niatuiity, hcin^ the hi^^hcHt rato of conuniH- Hion allowed to the diHcountinf^' Hank, where tht^ note was payahle at one of its own a^eneieH. It is I'vidint that the diHctount and tlm eoiiiinlHHion are charReahleJor ditVereiit reaHonw: tin- diweount is the intcrent of the money advanetfd, tlu* eonirniHsion in the reiiiiiiu'ration for letterH, poHtaj^*', and transinisHion of money. Whore the whole husineHw in done hy the diHeount.n^' Hank, the remuneration is rei^'iilated hy th(( dat<' of payment of the note : hut iiowevt r far diHtant it nniy he, no ^'reater (duirge can he made than one-hiilf i)er cent., hut when' the huHJuuHH isdividi'd hetw(!en the diHcountinj.; Hank and another Hank or person hy whiehor whom the eolleetion is to he nuide the discount still reuuiins tlu? same, hut the commission is fixed at one-half ptsr c(!nt., without reference to the date of the payment of the note, heinj^' the hi.:.■■, ,- /^ 1. What effect has the act of suspension on the part of the Department of Public Works — on our position as contractors ? 2. Can we be compelled to resume work again before being compensated for the damages sustained by us in the disorganization of our force of 600 to 700 men, the best of whom have many of them left the Province, and for damages in other respects ? 3. Can these damages be commuted for a fixed sum, or can we demand that whatever work we may hereafter be required to do, originally included in our contract, be paid for at a valuation, instead of at the old contract rates? ' 28 BREACH OF CONTRACT. 4. By the terms of the contract we are required to pro- tect the works against the frosts of winter. Would our doing BO without protest be considered as a recognition on our part, of the continuance of the contract, and if so in what terms should we protest ? 6. Would the fact of ou** building up walls in order to put on roofs, and protect tlie works in that way, not be considered as a recognition on our part of the existence of . the contract, unless we protested against its being so con- sidered ? 6. Would the fact of our doing joiners work and other works upon the old contract, during the coming winter at our own expense, and without any order from the Dept. Pub. Works 1 e considered as a recognition on our part of the continuance of the contract ? OPINION.— 1. I see nothing in the contract on the subject of a suspension of the work, except what is found in clause 4, and there it seems only inferential ; but there is nothing authorizing a general suspension unless in winter and incle- ment weather, and the effect of this suspension is to relieve the contractors from all penalties or for non-completion of the work at the specified time, and to give them a claim for damages against the Government. 2. I think not, except under a new contract or arrange- ment with you. 3. If my view on the second point be correct, any work hereafter may be either on the contract or per measure and value, or on such new terms as you may agree upon, but you cannot be compelled to proceed under this contract. The damages sustained you may compound for a fixed sum, or claim for, as in any other case from the Government. 4. I think you can protect the works without injury to your claims, if you act under protest. The protest should be, that in order to protect the works already constructed from injury, but without acknowledging your liability bo to do, and protesting that the suspension of the works by the Government was not in the contract, and releases you from POUNDAGE. 29 your covenants, that you will, if the Government desire it, proceed to protect the works. 6. Yes. Act as in fourth answer. 6. Yes, in my opinion. J. HiLLYARD Cameron. 10th Oct., 1861. POUNDAGE. CASE.— ■ ■. - What effect has the Consolidated Statutes of Upper Canada, cap. 21, sees. 270-271, upon the sheriff's right to poundage upon executions against the person, lands, or goods of defendants ? It is assumed that prior to the passing of the Consolidated Statutes the sheriff was entitled to levy the poundage fees, expenses of executions, &c., restricted, however, in the case of goods and cliattels to the value of the property actually seized hy him under any writ of execution, &c. There are abundant authorities to support this assump- tion : Viv. Digest 1841, p. 19, Vannorman v. Com. Bk., Trinity Term, 3 & 4 Vic. ; Jurist No. 11, Vol. 6, April, 1850, p. 615, Corbett v. McKenzie ; Chamber Eeports, Jan, and April, 1852, Nos. 1 & 2, vol. 2, Morris et al. v. Boul- ton, &c. In the first quoted reference (Van. v. Com. Bk.), Macaulay, J., states, where a sheriff before William IV. ch. 3 levied on a defendant's goods, he was entitled to poundage, although there was afterwards no sale. In Morris v. Boulton, Judge Burns says: — I am of opinion that sheriff is not bound by his poundage fees, after he has once made a levy, &c., quotes Chapman v. Bowlby, 8 M. & W., 249 ; Bell v. Hutchinson, 2 Dowl. & L. 43 ; 8 Jurist. 896. Has the Consolidated Statute, Cap. 22, altered and can- celled instead of consolidating the several statutes on the subject of poundage ? The 270th clause of cap. 22 Consol. Stat, has the follow- ing reference : 2 Geo. IV cap. 1, sec. 19 ; 9 Vic. ch. 56, sec. 80 POUNDAGE. 3 ; Vide 19 Vic. ch. 90 & 24 ; and Tariff of Fees, 18 July, 1867, and it enacts thus : ' « " Upon any execution against the person, lands, or goods, "the sheritl' may, in addition to the sum recovered by the "judgment, levy the poundage fees, expenses of the execution " and interest, upon the amount so recovered from the time " of entering the judgment." The 271st clause of cap. 22 Consol. Stat, refers to 9 Vic. C. 56 sec. 2. This 9 Vic. sec. 2 refers to writ iHnueii to several districts, and enacts that "where upon any such irritoi execution sued out against the estate, real or personal, of the defendant, no money shall be actually levied, no poundage shall be allowed to the sherifl', itc." The 271st clause, however, quotes and consolidates the third section of the 9 Vic, and enacts " that in case a part only be levied on an execution against goods and chattels, the sheriff shall be entitled to jioundage on the amount so levied, whatever be the sum endorsed on the writ." The words of the 3rd sec. of the 9 Vic. are on a greater sum than the value of the property actually seized by him, &c., the Consol. Stat, says, " on the amount so levied." Are these synonymous terms ? The 271st clause proceeds : — " And in case the real or personal estate of the defendants " be seized or advertised on an executipn, but not sold by " reason of satisfaction having been otherwise obtained, or " from some other cause, and no money be actually levied " on said execution, the sheriff shall not receive poundage, " but fees only, for the services rendered." Can this last portion of the clause be construed to mean that, notwith- standing seizure and advertisement, if that which has been so seized be not sold the sheriff has not earned poundage ? It is evident that if such be the effect of this 27l8t clause, it is not a, consolidation, but a material alteration of the previously existing statutes. It is contended on behalf of the sheriff that it would be a forced and inaccurate construction of this clause to require an actual sale as the condition of pouudage, excepting in the cases referred to by the reference made in this clause^ POUNDAOE. 81 viz., the U Vic. sec. 2, having reference to several districts, and that the ohviouH iiieaninj^ and intention of the conHoli- dations in the hitter part of the chiune was to refer to writs to several districts -md to such cases, and it is important to • ohserve the words in this clause, "and no money he actually levied on such execution," the *\ords would he without meaning;, mere surplusage, if the clause could he construed to restrict the ])oundage to actual sale in all cases ; and it is, therefore, evident that the further condition was made, if the goods he not sold or money levied. This construction would hring this latter portion of the clause strictly within the reference of 1) Vic. sec. 2, and as the money could not be levied in several districts, hut only in that in which the money was paid, it provides that in such districts only shall there be a poundage earned. Not only by the English authorities, but by various decis- ions of our .Judges, it has been determined that sherift's are entitled to poundage, where i)arties compromise, vide ('olton V. Thomas, and other cases already cited, and others. The levying of the money has been defined to mean by or through the sheriff under the exigency of the writ. If the construction of the statute now under consideration should be declared to have altered existing statutes, and thereby to have deprived sheriff of all poundage fees, except- ing in cases of actual sale, it is obvious, that such alteration has been made in error ; and it will be necessary to apply to the Legislature for an amendment to the statute. It can not be the desire of the Legislature to deprive the sherifT of that fee, which constitutes the value of his office, and is intended not only to provide for his official income, but to meet the necessary responsibility of his office. OPINION.— Upon the best consideration I can give to the case submitted, I am of opinion that the right of a sheriff to poundage remains lipon the same footing as it stood before the consolidation of the statutes. Whatever phraseology is used in the Consolidated Statutes, it is evident, by the reference to the statutes themselves in their original state, that it is intended that they shall be 82 DEBENTURES. referred to in any case of doubtful construction arising from any change or transposition of words in the same statutes when consolidated, and that they are to bo void whon the interpretation is doubtful according to the wording in the original, and not in the Consolidated Statute. If the words in the 27l8t sec. of Consol. Stat. ch. 22, are to he read as in all cases requiring an actual sale before a sheriff is entitled to poundage, then would the sheriff bo deprived of his poundage, where after seizure, but without sale, the debtor paid the money into the sheriff's hands because it could not be said to be levied on, the execution of an actual sale being required to make the levy complete. There can be no doubt that, as the law originally stood, the sheriff was entitled to poundage of the seizure, however the money was obtained, but it was declared a hardship that if concurrent writs were issued in several districts, and seizures made on all of them, although the money was actually obtained only on one, poundage should be paid by the debtor on all of them, and therefore the changes in the law was made by 9 Vic. ch. (J, by which the poundage was confined as in that statute mentioned. I consider that the law has not been altered by the consolidation of the Statutes, and that the sheriff is still entitled to poundage to the same extent as before the con- solidation. J. HiLLYARD Cameron. 24th Nov., 1862. DEBENTUEES. CASE.— By statute 16 Vic. ch. 140, the harbour of Port Hope was vested in Commissioners who were authorised to borrow the sum of A'30,000 which sum by 18 Vic. ch. 24, was increased to the sum of i'76,000 for paying a certain debt, and for improving the harbour. After the first act was passed, the Town of Port Hope borrowed from the Municipal Loan Fund by by-law approved DEHKNTUUK8. 88 by the rntopayorH, tho sum of l*!U),0()(), iind niU'V tlio Hcoond act was pa. vd with thci satno approval, thcHiiniot' l'15,()0() for the purpose of h'udiu}^, aud tlie Town did hnd tliese respective sums to the Harbour Comuiissioners for tho im- provement of the harbour. The Harbour Commissioners in return for these loans issued their debentuies for the sum of 1'5}0,(H)I), and t'lH.OOO according to the power vested in them by the above statutes and delivered them to the Town to secure the repayment of the loan. The by-laws under which the Town borrowed the t*45,000 from the M. L. Fund, provided that all payments made by the Commissioners of the harbour, should be paid to the Town Treasurer, and l)e by him paid over to the lleceiver General of the Province, to be placed to the credit of the Town with the M. L. Loan. After these by-laws were all passed and the harbour debentures received by the Town, the Town Council in 1857, passed a resolution authorising the Mayor of the Town to hypothecate l';K),()()() of tliese debentures for a loan of £'2,000 to be paid to the contractors, on the Peterboro' branch of the Port Hope and Peterboro' llailway, and in 1858 passed a by-law authorising the Mayor to advance to the railway comj^any, the harbour debentures, to the extent of t'45,000, and at the same time by resolution directed their deposit in the Bank of Upper Canada with the view to their disposal by the Bank and authorised the Mayor to apply the proceeds, when they were disposed of to the railway in accordance with the provisions of the by-law. During all this time T. G. R., one of the Harbour Commis- sioners, was a director of the Port Hope and Peterboro' Railway Company, and chief cashier of the bank of Upper Canada. The harbour debentures or some of them were accordingly deposited with the bank of Upper Canada, and advances made upon them either directly or as collateral security by the Bank, which advances were in fact applied to the assistance of the railway company in accordance with the provisions of the before mentioned by-law. The Bank had no actual knowledge of the provisions of the by-laws under which the il30,000, and £15,000, were 84 DKHKNTIMIKH. borrowed from tho Municipal I/. Fund, hut they had an office or afjcnry at Port Hope, where th(f hy-hiWH were pawwed and were ratcul as ratepayerH of the town, and their chief cashier waH one of the Harhour ConnniHwionerH to whom the money obtained hy the town from the M. L. Kund was advanced. The hy-hiw authorising' tlic advance of the harhour dehen- tiircB to ttie railway com^jany was not admitted to tiie rate- pay paying shares in advance on the security of mortgages on Real Estatu, whicli mortgages contained power of sale. The Society held their annual meetings regularly, and at each of those meetings a new board of Directors was elected (in accordance with by-laws,) and at a subsequent meeting of Directors, a President, and other officers were appointed, the last meeting for these purposes having been held in the month of February, 1858, when the Society had been for eight years in existence. It was at this time thought by the Directors that since additional monthly payments (making 105 monthly pay- ments in all) on each existing share of stock, would be more than sufficient to cover the unpaid shares, and all other liabilities, and they agreed to receive from any of the borrowers, payment up to the 105th instalment in full. From losses in collection of arrears caused by depreciation of property, their anticipations have not been realized in making these collections, the directors advertised certain properties for sale, and for a portion of them they had previously obtained judgment by ejectment. The sale took place, and titles were made out in accordance with con- ditions of sale which titles were in some cases signed by the President but were not then, nor have they been since delivered to the parties by him, as he was afraid of making himself personally responsible by so doing. , ^ . Illness on the part of the then Secretary and other causes have prevented anything being done since in the matter, and also prevented any meeting of stockholders for the election of directors. . , - . The Society would like your opinion upon these points : 1. Are the acts of the Directors since the expiration of the yar for which they are elected legal ? 2. Was the sale of the properties under the several mortgages legal, and can the President and Secretary give a legal title under such sale ? 3. Would the President or Secretary, or either of them by executing the deeds — whether the sale was or was not legal — make themselves personally or privately responsible to the purchaser, and if so, to what extent ? LIABILITY ETC. OF DIRECTORS. 41 4. Can a stockholder who had borrowed, under mortgage, and paid up the instalments, and interest up to the 105th instalment act as a Director, his mortgage not being re- leased, the payments having been made recently, since the time at which it was supposed the Society would have expired, or can he if his mortgage has been released ? 5. Can the members of the Society be now called togethei for the election of new Directors, or the re-election of the old Directors, and can such new Board proceed to exercise the powers of sale under the mortgage, and is such new election a necessity, or can the present Directors still pro- ceed without a new election ? OPINION.— 1. The Society was not at any time liable to be dissolved by the non-election of Directors at the proper time, Imt the Directors last elected continued in office until their suc- cessors were appointed, and as a consequence the Directors elected in 1858, continued legally in office after the year for which they were elected had expired, as their successors were not elected. 2. The conditions in the mortgage authorising the sale, having been duly attended to, the sales were perfectly legal, and the President and Secretary could convey a legal title. 8. The sale being legal, no responsibility could arise if it were illegal, the responsibility would be the damage that the purchaser might suffer, if he lost the land from the illegality. ■ • 4. A stockholder having borrowed to the extent of his shares, thereby ceased to be a stockholder, and could not be a director, being disqualified, having ceased to be a share- holder, and this whether his mortgage was paid or not. ■ 5. If the Society has not been actually wound up, the non-borrowing shareholders may be called together, and elect Directors, who will have all necessary powers, or the old Directors can proceed to act with the same powers. J. HiLLYARD Cameron. 13th Nov. 1862. 42 LEGAL TENDER FOR RENT. LEGAL TENDER FOB RENT. ; ,v ^ - CASE.— A question is likely soon to arise between the Suspen- sion Bridge Company and the Great Western Railway Com- pany, as to the character of the funds in which the rent of the bridge, to fall due on 1st Dec, shall be payable. Hitherto, and while Canadian and American funds were at or about par, the Railway Company has usually paid, and the Bridge Company has accepted, half the rent in Canada money, and the other half in a Bill of Exchange on New York — in other words, in American funds — this mode of payment then best suiting the convenience of the Bridge Company ; and this course of dealing has so continued ever since the completion of thn work. Now, however, that the value of money between the two countries has so materially changed, the Bridge Company is no longer willing to accept half of their rent in a depreciated currency and discharge the claims. In the Indenture of Lease nothing is said as to the place at which the payment is to be made, nor is there anything to shew in the Lease itself at what place it was sealed and delivered. The rent has always been paid at Hamilton, in Canada. The Lease being silent as to the place at which tlie rent is payable — as well as to the description of funds in which the payment is to be made — and it being manifestly to the advantage of the railway to pay in a depreciated currency, it is announced that they will tender to the agent of the Bridge such payment asthey have hitherto been allowed to make, and contend that the course of dealing between us in past years has establishedthe mode of settlement, which mode, it must be admitted, has been more of our seeking than theirs. The Bridge Company, on the other hand, maintain that whatever they may hitherto have done in this respect they are not bound to continue a practice which in the now altered state of things permits the debtor to pay us in currency, which gives an actual profit to him, while the creditor is a sufferer to the extent of the depreciation of the money in which he is paid. On this case, then, the questions for the opinion of Counsel are : — LEGAL TENDER FOR RENT. 43 1. The Lessees having their place of business and all their work wholly in Canada,and the Lease being in the joint names of the two Bridge Companies as the party of the first part, and therefore as to their claims indesirable, can the Man- agers of the railway pass over into the States, where the Government paper currency is a legal tender, and discharge themselves of the rent by paying it there in the manner anticipated ? 2 If they cannot pay all the rent in the States, can they compel the Bridge Company to accept any part of it in the legal tender currency ? 3. Under existing circumstances, can the mode of settle- ment heretofore acceded to, be considered as establishing a precedent, or be construed into a rule for further payments, or be successfully urged as a bar to the demand of the Bridge Company for settlement in gold or its equivelent ? 4. Can an action on the lease for arrears of rent after the 1st of Deceml)er next be successfully prosecuted by the Bridge Company against the railway in the Canadian Courts, in the face of a formal tender made in the States, in the currency indicated, of the amount which represents the sum due to the American Company ; and if so when could tinal payment be obtained '? 5. If the Eailway can pay half of the rent in this way, what is to prevent iis paying the ivhole, the two Bridge Companies being but one contracting party, and thus force upon them a large amount of depreciated currency, result- ing in a very serious loss to all, but especially to the Canada Company, equal at least at the present time to 30 per cent ? 6. Can parol evidence be given to shew where the contract was executed, and will the place of its execution, in the absence of any express stipulation or provision, determine the question ? By the law of which country is it to be con- strued ? If executed partly in the one country, and partly in the other, what then ? OPINION — 1. I consider that the Railway Company cannot pass over into the United States, and tender to the International Bridge Company the whole of the rent in the current paper 44 MARINK INSURANCE LOSb. money of the United States, and thereby discharge the wholt; rent under tlie Lease. ^ 2. The two Bridge Companies being separately entitled, although they have joined in the Lease to the Railway Com- pany, I consider that the Railway Company may apportion the rent, and on the day on irJiich the rent is due, tender to the Internationial Bridge Company one-half the rent in Government paper currency of the United States, and the other half to the Niagara Falls Jiridge Company in gold, such tender being made to each in their respective countries, or that they may be ready with their money on the liridye ready to tender if the rent is demanded. 3. No precedent or usage would make any diiference in the above. 4. If the rent is not tendered as before stated, or the Railway Company are not ready on the hridf/e to pay the ' rent on the day the same is due, an action may be com- menced on the 2nd December for its recovery, such action could be tried at the York and Peel January Assizes, and judgment be obtained in February. If the rent were not tendered nor ready, and the action were brought, the pay- ment of the rent must be made in Canadian currency, being legal tender. 5. The reason for the payment being allowed in the dif- ferent currencies arises from the right of the Railway Com- pany to (j-/>jiJo?tion the rent. 6. Parol evidence could not be given so as to control in any way the general effect on the written contract. J. HiLLYARD Cameron. 26th Nov., 1862. MARINE INSURANCE LOSS. CASE.— On the Ist Nov., 1861, the schooner Linnie Powell was insured with the British America Assurance Company for one year, from Ist Nov., 1861, to the Ist Nov., 1862, at a premium of 16 per cent, less rebate on 15 per cent, on MARINE INSURANCE LOSS. 45 $5000, net premium l|>818.7o, which sum was secured to said Company l)y prtmium note at six months, therefore due 3rd May, 18<)2. The note contained the usual condition, which is as follows, viz: "And in case this note he not " paid at maturity, the full amount of premium shall he " considered as earned, and the said policy hecome void " while the note remains overdue and unpaid." The note was not paid on the 8rd May, when at maturity, nor has it heen paid to this date, hut remains in the hands of the Company unpaid. Long after the premium note h:id matured, and lying unpaid in the hands of the Company, in the month of October, I believe said schooner was found sciiltled and abandoned by the officers and crew i>i> Lake Michigan. The crew of the American vessel took the said schooner Linnie Powell into the port of Milwaukee, where I learn she was sold for the benefit of the sailors. The owners have not, to this date, put in any claim for the loss of said vessel, nor have they caused to be delivered to the Company any of the papers necessary to establish their claim for loss under the policy, had any existed. 1. The Directors respectfully request your opinion as to whether or not the conJition in the policy is a condition precedent, and as a warranty binding upon all parties to the contract. 2. Whether the condition on the face of the premium is objectionable, and if so, to what extent? 3. Whether, in the event of a suit to recover the premium, the action should be based upon the premium note or upon the contract ? 4. Whether, in the event of a suit at law, the defendant could with advantage, plead the loss of his vessel as a set off, notwithstanding the condition in the policy and on the premium note, and the probable result of such a plea ? 5 Whether, in Law or Equity, the defendant could, with effect or advantage, object to the condition rendering the policy of insurance for twelve months void, if, at the end of four or six months (the time specified on the promissory note), the said premium note was not fully paid? 6. Whether, in any case — the premium being paid after »■ 46 ABBE88MKNT UNDER C. H. CH. 55. a losH occurred — the note being overdue and unpaid at the time of the difiaster, would such payment rosuscitate the policy 80 aH to enable the assured to establish a claim for loss or damage occurring during the time the policy had been declared void, and the premium nuL overdue and un- paid? OPINION — 1. The condition in the policy of the payment of the premium note is precedent to enforcing any claim in the policy by the assured, and if a loss happens after the pre- mium note matures, and while it is unpaid, it must be enforced against the Company. 2. The condition on the premium note is not objection- able. 3. The action should be brought on the i)remium note. 4. He could not plead the loss of his vessel in bar of the action on the note. 5. He could not. ' : ' v ^ ^^ « 6. The policy would not be levied by the payment of the note on the state of facts suggested. J. HiLLYARD Cameron. 16th July, 1863. . ;" - ASSESMENT UNDER C. S. CH. 55. CASE — The assessment rolls of the Township of Stratford, shew the assessable Property for the year, as follows : Rental $28,406 00 Annual value of the Real Property ... 17,225 40 of Incomes & Personalty 3,210 00 <( 143,841 40 In making the appointments on this assessment, how is the County Council to be guided when the assessments are equalized under the Municipal Aci Consolidated Statutes, ch. 55. OLEBK LANDS. 47 If the Council of the County does not make the appoint- ment properly, are there any, and if any, what means of compelling them to do so ? OPINION,— ■ To make Town property equally asseHsahle for County rutoH with Township jiroperty, accordiuj^ to the seventy third section of the Municipal Act, the rental capital wluire there is (tcfiitd rental, must he calculated at ten instead of six per cent of annual value, whiU^ the Ueal Estate Capital, not producing rental, and pers(m; ' estate and income capital, must he calculated at six per cent of annual value. Upon the hases which in my opinion is the correct mode, under the seventy third section, the value of the property in Stratford assessahle for County rates, on the assessments stated in tlie case, will be as follows : Kentals, capital atten per cent $23,400 00 $234,(m0 Keal Estate, not rented, at six per cent 17,225 40 287,090 Income, and Personalty, at six per sent 3,200 00 53,500 143,84140 $574,650 Therefore the correct amount of the assessable property of Stratford on which the equalization is to be based is $574,650. If the County Council make the appointment incorrectly against the Statute, the Courts of Common Law will grant a mandamus to compel them to do right in the premises. J. HiLLYARD Cameron. 24th July, 1863. GLEBE LANDS. CASE.— By Letters Patent issued on 3rd September, 1834, the Crown granted to A. H. and four others in fee simple 400 acres of land in Stamford, consisting of Glebe Lots, numbers 2, 83, 89, and 103 upon trust " as a permanent provision 48 OLEBR LANDS. " for thti maintainancu and support of an Incumbent or " Clergyman for the time beingof the ProteHtuntKpiwcopal " Church of Saint John in the said Township of Stamford, " provided nevertheless that whenever our Governor shall " erect a parsonage or rectory in the sjiid Township of " Stamford, and present to such parsonage or rectory an " Incumbent or Minister of the Church of Phigland, who " shall liave been duly ordained according to the rites i•■ LEASES BY INCUMBENT. CASE.— 1. What right (if any), he being strict tenant for life, had the late Archdeacon to grant, or give leases over and beyond his incumbency, or 21 years. PKN8I0N TO WIDOW. 59 2. Admitting he had right for 21 years, or his Incumbency, by what right liad he to reserve covenants charging his successor ? 3. Admitting he had right, are these leases legal, they not having been countersigned by the Bishop, whose approval and signature is required by law to save the property of the Church, (he being guardian of the Temjjor- alties) ? 4. Are not all these leases now null and void by death of Archdeacon ? OPINION — The Patent constituting the Rectory in this case has not been submitted to me, but I assume it to be in the same language as other Patents constituting Rectories in Upper Canada, and I therefore ixply to the points which have been offered for my opinion as follows : 1. The Archdeacon had no right to give his leases beyond 21 years, or his own Incumbency. 2. He had no right to insert covenants in his lease binding on his successor. 3. Under our law the leases did not require the Bishop's signature. 4. The leases have expired in the Archdeacon's death, unless there may be particular clauses in some of them which may give the Lessees rights of which I cannot speak without seeing the leases. None of the leases are null and void; they have simply expired by the death of the late Incumbent. J. HiLLYARD Cameron. Ist Sep., 1864. * ' ' ' PENSION TO WmOW.^i ,^ ^ ~^^^ CASE.- The Church Society wish to have your opinion as to the legal claim of A. B., widow of the late C. D., to the pension of the Society under the by-law regulating the dis* 60 PARUDULBNT AS8IONMENT. tribution of the Widows' and Orphans' Fund, sec. 1G9 in Report of Society. OPINION.- Upon an examination of the various papers submitted to me, 1 find that the late C. 1). compHed with the terms of the above by-law by the paymont of $5 on tlie lOth Nov., and $40 on 17th Dec, 18G3, and that both of these sums were received without any exception beir.g taken to his state of health, although he was well known to bo ill. There is nothing in the by-law which requires any certi- ficate from any clergynaan of his state of health before he becomes a subscriber to the Fund ; and the small annual payment, without reference to the age of the subscriber, shews that the subscription cannot be looked upon as a premium for life insurance. If C. D. had been accidentally killed on Slst Dec, instead of having died of a protracted illness on that day, no one would have raised any question as to the right of his widow to participate in the benefits of the fund; and as the by-law makes no distinction of age, requires no certificate of health, and settles a uniform rate of payment by all clergymen, I can see no ground for refusing to allow A. B.'s claim, and I am of opinion that she has the right to her pension from the Fund. J. HiLLYARD GaMEBON. 15th Sept., 1864. FRAUDULENT ASSIGNMENT. OPINION.— I have carefully perused the provisions of the deed, among which I find the following: " Provided always that " it shall be the duty of the said Trustees, and their suc- •* cessors in the trust hereby created, and they are hereby " required to sell and dispose of the assets of the estate, or •' of so much thereof as may be necessary to pay and dis- *' charge the amount of the debts due by A. B., with interest " on the same at the rate of six per cent, per annum, within FHAUDDLENT A84IONMKNT. ' Gl *' seven years from the day of the date of these presents, it " being the intention of the i)artie8 to these presents that " there shall bo a (inal dividend declared amontj the cro- " ditors within the said period of seven years, this proviso " being, however, subject to the understanding that in the " event of there being real estate in the hands of the Ab- '• signees then not disclosed of, not through their wilful *' neglect or default, but which it shall bo necessary to the *' final winding up the estate to dispose of, there shall be " such further time granted for the declaration of a final " dividend as shall be deemed requisite by the majority of " the creditors on their lawful representation." " Provided always, and it is hereby declared and agreed, " that the said Trustees, their heirs, executors, or adminis- " trators shall net be answerable or responsible for, or " chargeable with, any loss or diminution which the said " trust estate shall or may sustain by reason of any default, " negligence, or misconduct, or misappropriation of monies " of or by any person or persons employed by them, or " either of them, in or about the winding up of the said " estate, or the execution of the trusts of these presents, " or anything connected therewith." I consider that these provisions are clearly objectionable, and that no creditors would be expected to execute the deed with them in it. The first proviso is clearly in hindrance and delay of creditors. The real estate may remain for seven years unsold, and although the Trusteed are then called on to make a final dividend, they may still have the time further extended to an i; definite period by the majority of the cre- ditors in number who may happen to be the minority in value. r < . -, The second proviso is also, in my opinion, bad. The Trustees have power to appoint, and have appointed, the Assignors to act in the winding up the estate. They may, in fact, give time in that way, the whole control over the estate which may be wasted by his means or through his other employees, and yet tney are not to be held responsible for this. Does not this clearly make him simply a shield between the debtor and his creditors, making the assign- 62 LIBEL. raent colourablo, and therefore fraudulent and void within the meaning of th*. Statute of Elizabeth '} I am of ()i)inion, therefore, that the introduction of these clauseH haH vitiated the instrument, and that it is void against the creditors of the Assignors who have not assented to it. J. HlLLYAHl) CaMKUON. 16th Sept., 18(54. LIBEL. CASE.-- Some time about the middle of the month of Novem- ber last A. B. came to the Village of Shakespeare, in this County. Some twenty-eight years ago he had been employed in a menial capacity by C. D., in the Town of Stratford, but for several years past he has resided in the United States. He bore the reputation of being a dissolute and idle char- acter. On the 18th of November he came before E. P., Justice of the Peace at Shakespeare, and stated that a ser- vant girl named G H., who lived with him at C. D.'s, had told him that C. D. had murdered a man at their house. E. F., instead of taking an "information," in the mode prescribed by law, contented himself with taking down the man's words. This statement was signed by A. B., and witnessed by E. F. and others, but was not sworn to or dinned in proper form. Instead of proceeding at once to investigate so grave a charge, E. F. allowed five days to intervene, and did not move in the matter till Wednesday, the 23rd. In the meantime the rumour had spread all over the county, and had given much pain and concern to the relatives and friends of the accused party. The rumour derived all its force and consistency from the assumption that an information had been laid in proper form before E. F. E. F. called upon the accused on Wednesday, the 23rd, and stated the nature and particulars of the charge. He also stated that he could produce A. B. at any time. E. F. prosecuted his enquiries, and found that the woman was lilKBL. , H8 dead, and ttiat shu had never mentioned anything of the supposed murder to her huwhand or her brothers, persons much more Hktdy to he taken into her conlidence than a menial of ill repute. The whole turned out a cock and hull story of the most absurd kind, the olfspring of either a diseased inuiginatiou or of iiuilevolenee and ill will. Hefore E. V. coninuinced this investipition, A. 13. had h'/t the country, and when the accused took steps to secure his arrest he was no where to he found. C. 1). desires to know wluither an action will not lie against E. F. for the injury which the circulation of such an infamous rumour has done to his character. You will see (1) that by taking a simple statement instead of a sworn information C. J), was deprived of her right of proceeding against A. B. for perjury; (2) that it also dei)rives him of the right to secure A, B. as a witness on the prosecution ; (3) that the woman obtained credence solely from the sup- posed fact which E. F.'s action in taking down the " state- ment " gave colour to, that A. B. had sworn to its truth. E. F., fearing an action, refused to give a copy of the statement. The wide circulation given to the rumour will be seen from the newspapers. C. 1). and her family occupy a most respectable position in the country, and they think some redress should be given for the grievous wrong done them through the culpable negligence of E. F. It is pre- sumed that an action of libel will not lie unless they can compel the production of the statement. They require your advice as to the course which they should pursue to obtain redress. It can be proven that E. F. shewed the "statement'' to tome magistrates and, others. Will not this constitute a sufficient " publication " to sustain an action for libel ? OPINION.— ^ Upon the facts stated, I am of opinion that E. F. is liable lor the publication of the libel against C. D. It was the duty of E. F., as a Magistrate, if he took the statement as such, to have taken it on oath, and even then not to have shewn it to other parties or informed them of the statement in the manner alleged. C4 STATUTE OP lilMITATIOKH. If nn action for the publication is brought, it will bo necessary to prove : 1. That there was such a statement in writing. 2. To produce the statement or give secondary ovidcnoa of it, if not produced by K. F. or not forthcoming otherwise. \i. To prove the publication by the reading or exhibiting of the statement to some other party. 4. That it was intended to apply to C. D. E. F. will no doubt contend that the publication of the statement was privileged, and that will raise the question of malice, which is a (piestion for the jury, but there are suffi- cient circumstances in the circulation by him of statements connected • ith the case to shew, in my opinion, that he acted wantonly and not bona Jide, and that ho is, therefore, liable. J. HiLiiY.xiiD Camkuon. 2nd Doc, 1864. STATUTE OF LIMITATIONS. CASE.— On the 25th of July, 1832, we sold the east 1 lot 21, Ist con. Burford, to A. B., who received his deed therefor on the IGth of April, 1839. The Patent to the Canada Company is of an old date, more than twenty years. Our attention has lately been drawn to the fact that A. B. has encroached on the W. 2 of the lot on the one side, and the owner of Lot 22 seems to encroach on the other side of the lot, so that one hundred acres is now reduced consid- erably. On the 25th Nov. we wrote A. B. that we did not wish to incur the trouble and expense of legal proceedings, and that if he would write us a letter stating that ou th-.^ survey being finally settled, he would remove his fences without further trouble, we would allow the matter to remain as it is until the final adjustment of the survey. To this we have received a reply that he will not consent to do so. INTMUKHT ON AIIIIKVIIH Ol' ItKNT. 05 Undor thoao circunistiincos, you will ploaHO adviso us wlicthor W(( havo a roinody a'^ainst A. B., and in what that roincdy consists. Wo fnar that, owin^,' to tho noi:;UK!t of our tenant on tho W. .] of tlio lot that A. M. may havo h(!on in possossiou for nioro than twtiuty yoars, or at all ovonts tint wo should ho unal»lo to provo to thu contrary. oriNioN — On tlio facets statod it appears that tlu! Canada CornpanysoldthoHeeondhalf ofthis liot on'2r)th of July, 1882, to A. ]J., and that he rooeived his Deed for the land on KJth April, 183i), and that tho patents from tho Crown to the Company for it, was issued more than 20 years ngo. It appears also that A. B. has leen in possession of the land eneroachod ui)on, and has had it within his fences for more than 20 years, and that ho now elainis to hold it hy such possession irrespective of the true houndaries of his half lots. If,accordin<;to this statement, A. B, has heon in possession of the' land encroached upon for more than 20 ye^rs, the Company have lost it hy that i»ossession, whether it is held accordiuf^ to the true lino or not, and on the facts stated I am satisfied that if the case W(!re hrouf^ht to trial, such pos- session would he proved, and th? Company would be involved in tin* expi'nses of the litigation. 1 am therefore of oi)iiiion that the right of tho Company is harrcid hy the Statute of Limitations, and that it is not advisable to take legal proceedings against A. J3.,theoccupier of the land. J. HiLLYARD Cameron. . 12th Dec. 1804. INTEREST ON AIUIEAKS OE KENT. CASE.— ,„,,,. , . , , ,„^'.^ You are, I believe, aware that in the case of Lessees falling in arrear with their rents, we always charge interest at 6 per cent, on the arrear from the time it occurred to the time of payment. 66 INTEREST ON ARREARS OF RENT. In many cases of arrears the lessee has transferred his Lease to another person. The transferee then applies to U8 to sanction the trjinsfer, and we require before acceding to it that the interest should be paid, as we have such large arrears of Rent due, the question is an important one in the case which lias now come before us, and which demands more immediate attention. A. 13. holds a transferred Lease, for lot 1 in the 6th con. Downie, the transfer was acceded to and Lease issued on the Iflth December, 1854, since which time no rent has been paid. There is now due a large sum. A short time since C. D. ap}/iied at this office for the amount of rent, &c., due in the account, and was furnished with a memorandum of same, with the addition of a trans- fer for, as he stated that he held a transfer from A. B. The time of the Lease expired on the 1st Feb., 18()5. By letter dated the 27th Jan. last, from Quebec, C. D. sent in the sum due, less the interest, but including the transfer fee. We received the money on the Slst January. We at once wrote off, demanding tha interest and also requested C. D. to sign the transfer, which he enclosed with the Lease on the Slst of January. By to-days mail he returned the transfer unsigned, and refers us to his letter of the 27th January, by which we understand he refuses to pay the interest and demands the deed. As we wii ^ to have your opinion on this case and on the whole question, for future reference, you will please oblige UB. 1 . Whether we can legally demand interest due on arrears of rent ? 2. Whether we c^n safely receive such interest if parties pay it willingly, without the risk of being called on at a future time to refund ? 3. Whether we can make the payment of interest a con- dition of the acceptance of a transfer, or the refusal to pay interest a valid reason for refusing to accede to a transfer, or in case of breach of covenant can we make it a condition before recognizing the Lease ? 4. Whether in the case before set forth, as to C. D., whether we can insist on his paying interest, and in default LESSEES PLUNDERING TIMBER. 67 of his doing so can we safely refuse to accede to the transfer and to issue the Deed ? OPINION — Upon the first question I am of opinion that the Company can legally demand interest upon their arrears of rent. The law gives interest in all cases where any money is payable under a written instrument, or a day certain, and there is no exception with regard to Eent, the law how- ever does not enable any i)erson to enforce the payment of arrears of Rent, or interest charged on land, for a longer period than six years, or action, but if a Lep^ee has been in default and desires to obtain a '^eed unde* the covenant or provision in his lease, the Company can refuse unless all such arrears of rent and interest are paid now although extending six years. The second question is answered in the first. On the third question there can be no doubt that the Company can refuse to assent to a transfer if they think proper, without assigning any reason for the refusal, a.nd a portion they can do so under the circumstances stated in this query. On the fourth question, I am of opinion that you can refuse to issue a Deed to C. D. under the facts stated. He has neither himself, nor by the person through whom he claims complied with the covenants and conditions in the Lease, a strict compliance with which the Company has the right to require, and he now demands his deed as if they had all been duly and properly performed. , J. Hill YARD Cameron. 16th Jan., 1865. LESSEES PLUNDERING TIMBER. CASE.— Many of the Company's lessees have taken up their leases for the purpose of plundering the timber thereon for their own use on other farms or for sale. On being dis- covered in the fraud, they set us at defiance, and state that 68 LESSEES PLUNDERING TIMBER. we have no power to seize the timber or stay their plunder by summary process, as we do in the case of vacant leases. Our timber agent, A. B., is duly authorized to act on our behalf, and to seize all timber which may be cut on our lands; and where the lands are vacmt iic finds no diffi- culty. On the leased lands, however, this is not the case — some submit quietly, others set us at defit^nce. We agree that, the lease not having been complied with, is a nullity, and we are, therefore, at liberty to seize our own projierty (i.e., the timber) where we can find it. A. B. is also a Magistrate, and we suggest to him that in his magisterial capacity he can seize any property, by his constable or agent, when he has reason to believe it has been stolen or unlawfully obtained. Please advise us on the subject as to our rights, and the best way to assert them. OPINION.— The Lessee covenants not to cut timber except for the purpose in the lease. If he cuts for plimder and sale, and not for tliose purposes, the timber when cut is the property of the landlord, and can be seized by him. In this case you should at once instruct A. B. to seize the limber. It is not necessary that he shall apply to a Magistrate, and if he is prosecuted for a trespass in the seizure, the Company must hold him indemnified, as they may properly do, as the timber is their property. A. B.'s magisterial position should not be mixed up with his acts as your agent ; and he should not act as a Magis- trate in any case in which he acts also as the Agent of the Company. ♦ J. Hill YARD Camkron. 10th Feb., 1865. BILLS AND NOTES. 69 « BILLS AND NOTES. OPINION.— A great deal of difficulty has arisen under the Act respecting interest and discount on the discount of notes by Banks at places other than those where such notes are made payable. There can never be any question upon the discount of a note or the charge of Bank commission at the statutable rate when the note is bomi fide, in the course of business, made pay:ible at a place different from that where it is dis- counted, nor where, even although not so made, it is brought to a Bank for discount in the ordinary course of business. The difficulty arises where the Bank Agent arranges that the note shall bo made payable elsewhere as a condition to its discount, and where the note is an accommodation note of which the Agent has notice ; and in such case I advi-:e that no discount shall take place, or rather, that no Bank commission shall be charged, as it is this commission that makes the discount questionable. Every note or bill brought to a Bank by the maker or acceptor, and discounted for his credit or use directly, gives prima facie notice to the Bank that such note or bill is for the accommodation of the maker or acceptor, and thei' ifore would come within the preceding paragraph. . I therefore advise that until SD-na judicial decision is given upon the construction of the provision relating to Bank commissions on notes and bills, no note or bill, payable elsewhere than at the place of discount, shail be discounted, and the statutable commission charged where the note or bill is known to be an ascomraodation note or bill, or where it may be proved to be such from the circam- stancas before stated. J. HiLLYARD Cameron. 28th April, 1865. 70 DISTRESS FOR RENT. DISTRESS FOR RENT. To the quaeres submitted I beg leave to submit the fol- lowing answers: gU/ERE.— 1. Can the Canada Company distrain for more than six years' arrears of rent ? ANSWER — No ; not without the consent of the tenant, but if the tenant does not object the time need not be limited to six years. gu^RE.— 2. Must the bailiff actually sell, or may he appraise the goods and buy them for the Company ? ANSWER.— There must be an actual sale, but that may be by appraisement, with the consent of the *j>inant. The Com- pany may purchase, but the property purchased should be leased by writing to the tenant. J. HiLLYARD Cameron. 2nd June, 1865. GOODS " LOST BY EIRE." On behalf of the " Liverpool and London " and "British America " Assurance Companies, I am instructed to obtain your written opinion on the following case : CASE.— ^. i '^ .; ^. ., i,- ' ... ', '. - ■, '* On the evening of 28th April, about 9 o'clock, a " fire broke out on the premises adjoining those of McD. & " Co., Ingersoll, and subsequently consumed the store of " the parties mentioned. McD. & Co. had their stock in- " sured in the above companies. The books of McD. & " Co. shew stock on hand at time of fire, $8,113.59. The " stock saved amounts to $6,231.53, leaving a deficiency " of $1,882.06." Assuming the fact that no goods were burned, and that aOODS LOST BY FIRE. ' 71 eve»-ything was removed from the building previous to its destruction, this item of $1,882.06 stands in the claim as for goods either stolen or lost, either at the time of the fire or before its occurrence. " Is this a legal claim on the companies '?" OPINION — I assume that the policies in both companies are in the usual form, and contain no special clause affecting the question at issue, which is directly, whether goods insured, which are removed for their security from fire, which has attacked a neighbouring building, and are stolen while in course of removal, are recoverable as to their value as goods " lost by fire " within those words in the policy. That damage or loss by lire does not mean by the action of fire alone is evident from the fact that damage by water used to extinguish fire is recoverable, although no fire has ever touched the goods, or even the building in which they were contained ; and such damage is looked upon as damage by, or in consequence of fire, as if it had arisen from the direct action of the fire itself. The damage has clearly arisen from the fire, and although water has been the proxi- mate cause apparently, yet in reality it has been fire. So in the case of goods stolen in the course of removal from fire. The loss has happened by or in consequence of fire, and is, in my opinion, within the peril insured against. In a case in our Court of Queen's Bench, of Thompson v. The Mutual Insurance Company, 6 U. C. Keports, there is a dictum of the late Chief Justice, to this ettect ; " and although no English authority is cited in its support, such an authority may be found in the case of Levi v. Baillie et al., 7 Bingham, 349, where the claim of the plaintiff was for ii'I,085, £85 for goods injured, and i'1,000 for goods abstracted (or in other words stolen) in the course of removal from the fire, none of the goods having been burned ; and although a defence of fraud in the assured was set up, no objection was urged, either by counsel or court, that the value of the goods stolen could not be recovered." In a case of this kind, where it is alleged that so large a quantity of goods has been stolen, I think that some evidence of the actual fact that goods were stolen should be produced, 72 NOTES MADE BY A CORPOItATION. and that the mere production of in'.oices and accounts of Bales, which sliew a difference to the amount alleged to have been stolen, is not sufficient, as the insurer is thereby made liable for all the errors, negligence or improi)er manage- ment, in the conduct of the busincs.-. It may be said that this is the rule acted upon when the goods were actually burned, but there there is | roof that the goods have been actually burned, and here in the same manner there kIiouUI be proof that goods have been actually stolen before the loss by invoices and aecount sales should be admitted. J. IIiLLYAUD Cameron. 4th July, 1865. NOTES MADE BY A COBPOEATION. CASE — The Corporation of the City of Toronto on the 8th of May, 1865, passed the following resolution : " That His " Worship the Mayor, with the Chamberlain, be empowered " to sign notes and affix the seal of the city to the same, *' upon t::e same being brought before the Finance Com- " mittee and authorized by the said Committee." In accordance v/ith this resolution, notes have been signed by the Mayor and Chamberlain, with the seal of the city affixed, and have been sanctioned by the Finance Com- mittee, but no by-law of the city has been passed author- izing all or any of such notes, nor is there any resolution or by law of the Corporation showing or declaring for what purpose these notes are given, although it is stated by the Chamberlain that they are for the current expenses of the Corporation, such as interest on debentures falling due within the year, and other similar matters, and in contem- plation of the payment of the annual taxes by which such interest, &c., would be paid. The question for the opinion of counsel on this state of facts is, are these notes valid and binding on the Corpo- ration, and recoverable at law by the lawful holder, in case of default of payment ? NCTE8 MADK IIY A COUPORATION. 73 OPINION.- IJy tlie Municipal Act, Consolidated Statutes Upper Canada, cli. 51, sec. 215, no Council shall act as bankers or issue any bond, bill, note, Arc, to pass as nuuuiy, ikv.; but li ere is nothing in this clause affecting the point, as it is clearly intended to prevent only the issue of notes as a circu- lating medium to pass for money, and notes for any purpose under the amount of one liundred dollars, and therefore the validity of the notes in (piestion must be determined by the general provisions of the Statute. The Legislature has not provided for the issue of }iy and cannot 1 e sued ujmn them, although l)ear- ing the corporate seal of the city signed by the Mayor and Chamberlain. J. HiLLYAUi) Cameron. Oth Tulv, 18()5. SALE OF PROPERTY FOR DEBT. CASE — I have got into difficulty about some village property. I write you for the necessary informaHon on the matter. The proi)erty in the first jilace was purchased from the Crown by A. B. about nine years ago, and in IBoO farm lot No. 5, in the 8th con. llowick, was laid out in village lots, and registered on 15th May, A.L). 185(). A. B. sold the greater part of said farm in village lots. I purchased a lot from J. A. The said J. A. purchased from A. B. I received a bond for a deed from J. A. by complying with certain con- ditions in said bond, with which I complied. I was to receive a deed in fee simjde, free from all incumbrances, in three months after a deed or Crown patent had been received for farm lot No. 5, 8th con. Howick, laid out as above. About two years ago C. D. obtained judgment in Division Court, also a judgment for a larger amount in the County Court. A. B. had no personal property. C. D. said he would register his claims against A. B.'s property. To prevent this A. B. sold the property, or at least transferred it over to his brother. You will understand that the Crown Patents came out in the brother's name. Several persons took deeds from the brother ; I and several others did not do so because we considered he had no right to give a deed for A. B.'s pro- perty. It appears that C. D. threatened to enter an action in law against the brother about the property. He became uneasy in the matter, and in December or January last he gave back the property to A. B. As soon as C. D. was made aware of this change he at once registered his claim against A. B.'s property, viz. : farm lot No. 5, 8th con. Howick. You will also consider this fact, that C. D. purchased his SALE OF PROPERTY FOR DEBT. 75 property from the said A. B., and did not receive his deed until after he, C. D., had rela) it. Tlu-y tlioiij^lit tlif liorHO would not live, iiud shot it. Tho C'ouiunl WHS not iiwim^ of its hciiif^misiil'c, tlicowiwr of tli<' lioi-Hc \\v\'oi' hiivinj,' wariud tlicin ultliouj^li lie lived witliiii a (lUiirtcr of a niiln of th*' place. ANSWKR. Tlio result of this case must dcpi'iid Itotii upon iiotico of tho non-n'i)air <»f the road to the Council antl the want of care and caution on the part of the person driving tho horse. If the Council had no notice of the state of the road, and the drivers of the horso acted so iin[)rudently in driving as descrihcid, as to liave contrihuted to the accident by their own want of skill, no action will lie, hut it is a (pU'stion of fact for a jury, and if they were to lind a verdict, that there was no notice of the want of the repairs of the road, and that tlu; driver had acted unskillfully, the Council would clearly not he liable. J. IIiMAAKi) Camkron. QUESTION.— Another horse in the spring, reported to he old and in poor condition was being rodo over a crossway, also a short distance from home, alxMit dark, got caught in tho crossway almost at the end of tlii^ log. The owner procured assistance and got it out, it walked home and lived some- where about a week. The owner says it died from the effects of injuries it received about the back. The neigh- bours to the numlier of six or seven say it died from weak- ness and being strangled in the stall, signing a paper to that effect, -which was submitted to the council forl)idding us to pay the damages. ANSWER — Upon the facts stated the Council Is not liable in this case. ' , - j.^ HiLLYARD Cameron. ;* 8rd Oct., 1805. 80 AOriON ON (J()NTIIA(!T. ACTION ON CONTKACrr. Ol'INION. - I am ill rocoipt ol' your coniniiinicjitioii, in vvliich you CiX|)r<'HHy()ur wIhIi thai I slioiild I'liriiiHli tlui Hank ol' Toronto with iny oi>inion an to an action iyiii}^ af^airmt th(! Hank in tht* Unit(i(l Stat(!H for anythin;^ arininfJiout ol'tho tratiKaciionH in which your hit(! aj^cnt in Montreal wan cnj^iii^iul. In cvca'y caw*! of a contract made in (Ijinada hctvvccn a iU'itiHh Hiihj. COImNTV liA'I'I'lS. TASI'. - Tho by-law for iinijosin^' county ralf lor 18(55 includoH an a8H(!HHinent I'oi- the lu-w ^niol inider tin; county by-law of March, IHIII, for raisinj^' by loan ^'i'i.HOO, which is held to bc! ilhf^^aJ. (^>U(fr('. — Does tlu; asHessnu'nt of su(di <;aol rate, Hupposinj^ it illej^'al, make ille<^'al aiul void thewliol(( by-law iinposinj^' county rstte for I HO;"), in which said f^'ii.ol is included and forms !i. part".* (^)iiii,lity (looH not itnolf tiilvo action to rciHiHt the (Jounty Council? OPINION.— Tht! (rouuly 1)V law (livi(UiH thiit tiio doud will bo copied ill tlu3 rej^istr} bookH iit full Icii^tli. .1. llii,i,YAiii) Camkhon. ntli .fan., IH('>(;. LICENSE OK Fl-'JaiY. CASE.- lu th(( matter of licenH(! of forry between Ottawa and Hull, pleaHi! ^ivo mo your o]>iiiioii. TIk; facts are as followH. Until lant July any man who wished to do ho, kept a Ferry Boat and paid no license U'v, consefiuently there wc^re jjlenty ferrymen on tho Kiver and the public was satisfied in that respect. In Jun(! last one A. B. pcititioned tlus Municipal Council of th(! city of Ottawa, for a hinse of ferry betwcion Ottawa and Hull, a by-law was passed recomi'iendinj,' said A. B.to the Governor in Council as a lit and j)roper pcirson to receive license!. A. JJ. then pe^titioiKid the Hull ^Municipal Council for a similar lease and was notrcuioinmended, but one C. J), was. The by-law of the City ('ouncil to^'ether with a tarifT of rates, S:c., w((re sent with tlu; (loiimiisHioiier of CustouiH to report iiixm. A. B. [x'titioncul the Oovcriioi' iii (Jouiutil, which ])ctiti()ii was sif^iuul by the ATayor and sevi^raUJouiKuliors respectively as Mayor and Councillors of said Towjishii) (Council, prayiiif^ that h(\ (A. B.), iiiij^dit receive tli(! license. IMease observe that this petition was signed as if in direct opposition to their by-law passed in ("ouncil. v With this last petition and thi; by-law of the City Council bcifore tliein, without the rejiort of the (loinniisHioner tho Governor in (Council on the TOth day of July lust, <^a\'iiit('d a license of ferry to A. B., to hirry between Ottawa and Hull, and to pay tlui Govt^niiuent $:M) ])er annum therefor, kuI)- ject to the tariir being approved by the (Jovernor in Council, 84 ROAD ALLOWANCK. which approval has not yet been obtained because the tariff has not been l)rough't before the Council. Please see Con. Stat. U. C. cap. 40, also 20-80 Vic. cap. 51, sec. 287, and Con. Stat. ch. 24, sec. 41, and sub. sec. 88. I contend that under sec. 3. ch. 40, C. S. U. C, license should not have been granted unless by public competition. And I have been informed that this very point in this same matter has been referred to the Attorney General. My object is to have this license tested, and the ferrying left as it was before granting said license. OPINION.— Under the Ferry Act, Con. Stat. U. C. eh. 40, the Municipality of Ottawa might have received a license to ferry, and by by-law have sub-let the ferr}-, but as I under- stand your letter they did not adopt that course, but recom- mended a person to the Governor in Council that a license might be granted to him direct by the Crown, without their further intervention. If my view of the state of facts as conveyed to me by your letter be correct, then this was a ferr}- granted directly by the Crown and could not be leased except under the formali.ies prescribed in the third section of the above mentioned statute and after sucli public competition, as therein mentioned. J. HiLLYARD Cameron. 12th March, 1807. ROAD ALLOWANCE. CASE.— The Township of Fullerton which forms part of the Hiu-on Tract was granted to the Canada Company, by four patents bearing date respectively, 10th Nov. 1830, 15th Aug. 1881, 5th .Tuly 1830, 7th Sept. 1839. The patent of Ist Con. Fullerton beares date Nov. lOtli 1880. In December 1828, and January 1829 the Company surveyed out one tier of lots on e ich side of the Huron Boad nOAD ALLOWANCE. 86 part of which now form the first ccncession of Fullorton, that Township being situated south of the Huron road. In surveying this concession the usual side h'nes were left at every (ith lot. The river Thames passes through lots 25 and 20 in 1st Con. FuUerton. There was a sideline left between lots '25 and 2(), but no reservation for u road or tow path appears in the original filed notes to have been 8urve_yed or marked out in any way on either side of the river. Subsequently the Canada Lompany laid part of a, town plot which was called Mitchell on lots 25 and 20 in 1st Con. Fullerton. The first map we have of that village bears date Nov. 1845, the survey having been made by J. K., I). P. S., on the map are shown all the buildings which were then erected in the village, and which only numbered 12. Before the village was laid out, the Company located the site for a mill on the north east corner of lot 2() in 1st Con. Fullerton, on the river the mill ground extended from the western boundary of the side line between 20 and 25 to the bend of the river. No tow path or. road allowance is shown on the plan of the Town, as surveyed in November 1845. And as the Company sold all the lots extending from the various streets to the bank of the river, without any reservation whatever, there can be no doubt that the Ca-nada Com- pany never intended the tow path or road allowance to exist. The survey of the township of Fullerton, was made at several times. First one concession was surveyed off, then two others, and it was not until the 21st of January, in the year 1839, that the place and surveys of the Township was finally handed in as a complete work to the then Surveyor Generals Office. This jjlace on the face of it shows two surveys one from the first to the fifth concession, and the other of the remainder of the Township. In this place the surveyor laid oft' on each side of the river throughout the whole township a tow path or road allowance of 50 links on each side of the River, including the first concession but we cannot find that this tow path was ever mentioned in the filed 80 IIOAI) AFJiOWANCK. notoH of tli(j lirHt, Hocond, third mid fourth ooncoBBioriH aftor that in th(! rciniiiniiit,' part of thd Hiirvoy, a titsr of lots was rnadi! to abut on thd river and thctro iH no doubt of tho roHcrvation from that ))oint. In convctyin^ tlu; lotH 21 and 'in, 2nd (ioncoHHion, tho (-'onipany rcsHdrvdd a tow path on each wido of tho rivor aft(!r tho Vilhi},'(! of Mitcholl wan in- cor|)orat('d, the authoritic^H of th(! viliaj^t! Hoc-ni to hav(! wiHhcd to (iHtahhHh tlio tow path or road aiiowanco on (tach HJdo of tho riv(!r throiif^hout the extent of the town plot, whi(di cxtendH from tlii; Kouth boundary of tho Huron road to the north bounihiry of the H(!('.ond eoiK^cHHion. I'pon th(! Hlren^^'th of this information tht; vilhi;^'(i author- itioH oatiHed a Hiirvey to l)o made by Mr. IL, I', ij. S., of tho tow path throuf,di all fh(! lotH alrtiiidy de(!(l(!d by tint Canada Company and whi(;li had boon ho deeded without any kuoIi r(!Horvation. Thct pundiaHorH from the (!anada Coni})any naturally look to tho ('onijiany to (hjlino thc^ rif^'lit (!onv«!yed by thoir do(!dH and (complain by the aHHinnption of tins villa^'o of a portion of fheir lots which are valuable and which have biusn paid for and are incdudod in thoir dvA'dn from th(! Company. No by-lawH Iuih (ivor yet boon nnido, that wo luivo had notice of, and wo boliovo that no road haH over Ixson nuido or UHod on oitlior bank of tho rivor throuf^diout the bound- aries of tho town plot Houth of tho Huron road. Th(! Comi)any ar^'uoH lirHt, that there novor was in tlio orif^inal Hurvoy and ficdd nutv.H a roHorvation niado through- out the lirHt conc(!HHion on tho bankn of t\w river, and that tho carrying tho tow path through tluj lirnt concoHHion of FuUorlon at tho time of the laying of tho plan and Hurvoy in IHJJl), was a nioro error and aftor thought of tho Hurvoyor. And Bocondly, that even if tho Company had at any time made Huch a rosorvation that an the whole of the land belonged to the Company, and aH no HaloH had been made which interfered with or were afTocted by the roHorvation, and aH no public work or statute labour had ever been done on the part HOHuppOHcd to have boon reserved, the Company had full right to resume Huch allowance or reservation and ^ that they having done so, and the 20 years possoHsion under the sales made by the Company to their settlers, their title IIOAI) AI,I,()WAN(!i;. 87 to tht! Hiiid Jillcf^'od iillowiiiKU) iind that of tlioir piircliiiHcrH ciimiot now hv. iiitfi'l'iinul with or (liHi)ut(!(l. Tho (Joinpiiiiy iii'Ht diHpoHCfd <»f IoIh 20 atid 27, iHt con. I'^illcrion, in th(( year 1H2!>, and .'irtcrwardH n-piindiaHiid tlicni. No r(*H(Tvation aH to tow path or road waH mado in (^iihiir (MHO, nor wan th(! tow path niciitiont'd. 'rh(! vilhif^c authoritidH on, thi' oth^r liand, all(({^(i that thd Hhowin<^ of th(! tow path in th(^ plaiiH of th(t townHtn'p of IHMI) waH a (h'dication of thd r(!H('rvation tin a road which could not, hy any HidjHiKpKtnt act, he rc(;alh'd hy the (Joni- pany. Yonr opinion in r('(|ii('Ht('d aH to the ri^^ditH of th(! vilhi^c to Hurvc^y and Hot off the ho culled tow |)(itli, and whether, in Hodoijii^, and in planting' HtaloM, inarkiii<<, hiiildin^f, iVc, th(!y hav(i not (toniniitted a treH|»aHH, ,ind rendered tln^ni- S(dveH liahle to a proHe(;iition for trespaHH hy th(! partien wlioHe proj^^'tieH hav(i h(!en int(^rfer(^d with. And you are alHo re(pieHt««l to adviHe an to the hcHt method of hrin^duf^ the (jUcHtion to a di^cinion whicii may H(^ttle the diHput(! from tiiiH time forward. OPINION — On th(} caHo Hul)mitt«!d hy tho Canada Company, I am of opinion that tluire iH no tow path or j-uhiic way along the hank of the river in tho Village of Mitchell, which tho muni(!ipal authoritien of tho village or any person can Hot up againnt the Cainida Company or their annignH. Thoro evidently wan no original authority given hy the Company to the Hurv(!yor who laid out the townnhip to make Huch a roHervation through tlie townnhip, and tho fact tliat ho did HO in tho plan that tho (Company lihid, Ih not hinding upon the Company, when hy their actn they have clearly nhown that there waH no intention of dedication, hut on tho con- trary actual HaloH of tho property included within tho sup- poHod pul)lic way. Tho Canada Company laid out tho Village of Mitchell, and Bold lotn to th(! edge of tho river, and thoHo lots have hocn occui)iod accordingly for many yoarH. Tho municipal autho- ritioH can have no claim aH for an original allowanc(! for road, an there never wafi an allowance made hy the Crown, • ' ' ■ ' ' I ' ' 88 DKI'OHIT UNDKIl 1N8JHANCK ACT. and they have themselveB never obtained the hmd and eBtabhshed it ns a highway under the ]\rinu('ii)al Acts. Under these circiunstances, the Municipal Ci)r[)()rati()n has been guilty of trespass in entering upon the land in ques- tion, and planting stakes, &c., and actions may be broughi against them by the Canada Company or any of the owners or occupiers ol' tlui land on which these acts have been com- mitted ; and 1 should advise that a formal notice be at once given to the; Corporation that any further tres[)ass on the land will be looked upon as wilful, and the stakes should all be taken up and removed without delay. J. HlM.YAUn Camkiion. 4th April, 1808. DEPOSIT lINDEll INSUEANCE ACT. CASE — The Edinburgh Life Assurance Company have refer- red to us to know if, according to their charter, they are entitled to make the deposit, as by the Gazette they seem to have done under clause 22 of the new Insurance Act. The Edinburgh Life Assurance Company are gazetted under the following clause: "The following companies, which have made a deposit in British 8 per cent, consoli- dated annuities, are provisionally licensed to transact insur- ance business in Canada pending an examination of the special terms of their charter by the law officers of the Crown in Canada, their licenses to hold good for three months from this date." Clause 22 in the new Insurance Act, enacts that as regards British and other foreign insurance com- panies actually doing business in Canada at the time of passing of the A^ ,, which cannot, by the terms of their constitutions or charters, or by law, invest in Canadian securities, it shall be lawful for the Minister of Finance, with the approval of the Governor in Council, to receive the amount of the deposit required of them under this Act in British or foreign government securities, &c., at their market valu*. , but with power to him to require from time to time, DEPOHiT undeh insurancr act. B9 if Buch market value should decliins equivalent to their diminution in value. The lOdinhurgh Life AHHurance Com- pany have, it Heems, deposited !jJir)(>,()()() in liritish 3 per cent, conwolidated annuities. ^ Now, the questions are: Can the Edinburgh Life Assur- ance Conii)any, by their charter or by-law, invest in Cana- dian securiiies? If they are capable of investin}^ in (^ana- dian securities, is not the Act imperative as to their doing 80? Do not the general words in claus- 2 of the charter of the Edinburgh Company of 1845, as extended by clauses 2 and 3 of the Edinburgh Life Assurance Company Amend- ment Act, 1858, give the Company power to invest in Cana- dian securities ? OPINION.— I am in receipt of your letter, with case, for my opinion in the matter of the license to the Edinburgh Life Assurance under the Insurance Act passed during the last session of the Parliament of Canada. The points offered by you for my consideration are two : 1. Can the Edinburgh Life Assurance Company, by their charter, invest in Canadian securities? 2. If the Company can so invest, is the late Statute imperative on them to do so? Upon the first point, I am of opinion hat the Company can invest in Canadian securities. They have been in the habit of investing on mortgages on real estate in Canada for many years, and they have held as investments the bonds of the Canadian Government. The fifth section of the Im- perial Act, 8 & 9 Vic. ch. 76, gives them power to take, purchase, and hold every description of property, whether real or personal, heritable or moveable, wherever situated, and to lend money on herital)le, bond, or bond and dispo- sition in security, or by way of mortgage, or on personal bonds or bills only. This power is clearly an. pie to authorize an investment in Canr.dian Government stock or bonds. t Upon the second point my opinion is equally clear. The twenty-second section of the Act of last session, respecting insurance companies, provides as regards British and other 6 90 PROVIrtlONAL DIRRrTOUa. foreign iiiHiiranco coinixmioH doing huHinrHH in ('iiniiilii at the time of tlm iiisHing of this Act, which ciiiniol, hi/ the terms of their CDiiHtitationtt, or rhartrr, or hi/-luic, iiirt-tit in Cantidiau aecuritieH. " It uliall hv hiwfiil for th(! Ministii" of Finance, with the approval of tho (iovi-rnor in (loiincil, to receive tlie amount of the (h'posit re(iuire(l of them muh'r thin A<'t in Ih'itish or forcij^'n (loTcrnnicnt Hccuritics, Arc." The Mdinhiirgh Ijife AsHiiran(!e ('omi)aiiy, Ix'in^' a company which can hy liiw invest in (lanachan Hecurities, do not (!oine within the tvveiitv-Hecond section, and tlierefore (U)iild not make their deposits in Hritish consols, and such (h'i)08it is of no vahie whatever as a comphance with the terms of that provision of the Act reipiiriu"^ the eposit in Dominion stock, and the provisional license granted alTords the Company no legal protection under the Act, as the Finance Minister had in their case no power to ac>'ept a deposit in consols, and no power unditr the Act to issue any provisional license whatever. My opinion, therefore, is, that the Company must make their investments in Dominion stock, if they desire to continue to transact new husiness; that their pre- sent deposit is not a compliance with the terms of the Insur- ance Act, and that, in conseipience, the provisional license granted to the Company is of no legal validity. J. HiLLYARD Cameron. 8th Aug., 18(58. PROVISIONAL DIRECTORS. CASE — Some of the Municipalites along the line of the Toronto and Nipissing Railway have voted sums of money, by way of bonus, in its aid, on the understanding that the sums so voted in dei)entures are to be expended on the rail- way in the manner specified in a bond to be executed in accordance with a resolution of the Provis.onal Directors, by their President under the seal of the Company. If such a bond be executed, is its execution within the powers of HTAMP nrTY. 91 the Provifiionul |)ir(ct()rs'.* and if tlic clcctcil hircctorH h1i()!i1(1 al'tcrwiirds deviate from its pr^vlHiotiH, and its condi- tioijs 111' Itrokt'ii. would any iiiimit'ij)alit,v to wliicdi siudi a 1)011(1 wasj^ivcii, liavt' any remedy, cither at law or in e(|nity, to enforce it or claim dama^'cH aj^'ainst tl'.e Comi)any? OI'INION. In my opinion the Provisional DirectorHliavenopower to ^'ivf such a hond. Their |)o\v Act no powers to make such a hond is j^iven to Provisional Directors, they have no authority from that i)art of the section for such a puri)0S", and therefori^ no suidi hond coidd he enforced, either at law or in equity, against tiie Com[)any wlieu it is completely orgaui/ed. J. illLLVAim Camkuon. 3rd March, 18(54. » STAMP DUTY. CASE.— My opinion is reipiired U[)on the (;tfect of the Stamp Act relating to l)ills and notes in the following cases, as explained by the Order in Council of Sei)teniher of last year. 1. A bank, banker, or person residing in Canatla keeps monev in a chartered bank or with a banking house or com- pany in New York, and has cheques dated at New York, but he signs them in Canada, on such bank, banker or per- son. 2. A bill of exchange is made out of Canada, drawn upon and accepted by a person out of Canada, payable to the order 92 ELECTION OP SPEAKER. of the drawer, or to a person in Cana .a, l>ut in both canes negotiated in Canada, although enaorsed in Canada in the case onl}^ where it is payable to the order of the person in Cnnada. OPINION.— In my opinion in the first case above, the cheque which is made in Canada is liable to the stamp duty. The Act exempts from duty any cheque upon a chartered bank or licen.-ed banker, but I consider that thf.^ exception applies only to banks chartered or bankers licensed in some part of the Dominion of Canada, and not in a foreign country. In the second case, I am of the o[)inion that the bill or note is not liaVle to stamp duty. It is true that the Order in Council referred to has, under the ninth section of the Stamp Act, attempted to affix a duty to the negotiation of certain i:ills and notes of the class named, but in my opinion that order is beyond their power under the ninth section, which gives authority onl}' to the Governor in Council to declare that any kind or class of instruments, as to which doubts may aris-, are or are not chargeable with duty. Now, there is no doubt whatever as to the kind or class of instrument in this case — it is clearly a bill or note. The doubt is as to its negotiation only ; and to affix a duty upon the negotiation is an act of legislation, not interpretation, and has, in my opinion, no effect, but leaves the case as it was under the Act without the Qrder in Council, and there- fore free from stamp duty. ■".;:'; J. HiLLYARD Camkron. 6th Nov., 1871. .. , /.-. v., ELECTION OF SPEAKER. CASE — A general election for the Legislative Aspembly of the Province of Ontario was had during this year. Petitions under the Controverted Elections Act of 1871 have been presented, complaining of undue elections of certair per- / ELECTION OFk SPEAKER. 98 sons elected, and after trial had under such Act on certain of such petitions, the judges who tried the same respect- ively, have determined that the memhers elected were not duly elected, and that the election is void, and have so duly certified in writing as required by the Act. The question submitted for the opinion of counsel is, whether, on the next approaching Assembly of the Legis- laturr, any person elected to be a member, who has been certilied to have been unduly elected, and whose election has been certitied to oe void as above named, is entitled to vote for election of Speaker. The farther (Question submitted is, whether, in case a judge who tries any such petitions shall determine that the member elected whose election is complained of was not duly elected, and that his election is void and that some other person was duly elected, and should so certify in writing, as by the Act such other person so certified to have been duly elected, can vote on such elections for Speaker. The further question is, whether, for such election the Clerk of the Legislative Assembly can, in case of equality of votes, give a casting vote. OPINION.— Upon the first question submitted I am of opinion that a member whose seat has been declared void as stated is entitled to sit and vote at the first meeting of the Legis- lative Assembly for the S[)eaker of the Assembly.. By the 41th section of the British North America Act, 18()7, provision is made for the election of a Siieaker of the House of Commons of Canada on its first assembling after a general election. By the ioth section provision is made for filling a vacancy in the oliice of Speaker in case of death, resignation, or otherwise. By the 87th section the provisions relating to the House of Couimous are made applicable to the Legislative Assembly of Ontario in reference to the election of a Speaker originally, and on vacancies, the duties of the Speaker, the quorui^i, and the mode of voting. 94 ELECTION OF SPEAKER, « By the 49th section questions arising in the House of Commons shall be decided by a majority of voices other than the 8^eaker, and when the voices are equal — but not otherwise — the Si)eaker shall have a vote. By the Elections Petitions Act, Ontario 34 Vic. ch. 3, see. 4, lor the purpose of this Act the ex[)ression " the Speaker," shall mean the Speaker of the Legislative As- sembly, a d whe;i the oliice of Speaker is vacaiit the Clerk of the Legislative Assembly, &,c. By the IGth section of the same Act, at the conclusion of the trial tlie judge wiiO tried the petition shall determine whether the member whose election or return is complained of, or any and what other perscm was duly returned or elected, m whether the election was void, and shall forth- with certify in writing and determination to the Speaker, and upon such certiticate been given such decision shall be final to all intents and purposes whatever. By tlie 21st section of the same Act the Speaker shall, at the earliest practicable moment after he receives the certi- ficate or report or reports, if any, of the Court or Judge, ■ communicate the same to fhe Legislative Assembly, and the Legislative Assembly shall forthwith thereafter order the same to be entered on its journals, and give the necessary directions for confirming or altering the return or for issuing a writ for a new eh'ction or for carrying the determination into execution, as circumstances may require. The only members who, by the terms of the 4*2nd section of the A'!t shall not sit or vote in the Legislative Assembly, are those ' vho have given notice of their intention not to op- pose the petition against them. Li my o'pinion the House of Assembly is not organised until a Speaker is chosen, as there can be iiO vacancy in the office of the Speaker until such a choice has been made and the office has been filled, and that on the first meeting of the Assembly after a general election, and before the election of S|,»eaker has taken place, the Clerk is not 8ii])stituted for the Speaker within the terms of the fourth section in the manner he would be if the Speaker had been chosen and had afterwards vacated his office, and that in such case no INTEREST ON DEBENTURES. 95 report of the Court or judge can be coramunicated to the Assembly until after a Speaker lias been chosen. The second question is answered in the first — the mem- ber substituted by order of the Court or Judge cannot vote for Speaker. , The Clerk of the Legislative Assembly has no casting vote in case of an equality of votes for Speaker. No one can vote except a member. The election must be by the Assembly or House. The Clerk is not a member thereof, and if there is an equality of voices there is no election. J. HiLLTARD Cameron. 23rd Nov., 1871. INTEREST ON DEBENTURES. CASE.— ' >■■ •-• .. . ->• In 1855 the Town of London was erected into a City, and arl.itrators appointed to settle differences existing be- tween the City and County of Middlesex, made their award on the 28th Dec, 1855, which is set out in 14 Q. B. Reports, p. 334, Middlesex v. City of London. Previously to the separation Middlesex held il25,000 stock in the London and Port Stanley Railway Company, and an equal amount in the Great Western Railway Company, to pay for which the county had granted debentures payable in twenty years, but they were uegotiatvid at different dates and matured at different times. ^ : -; .- A Some of these debentures have been paid by the county, and others are still outstanding. The city by the award got one-fifth, or iJlO,000 of the railway b.ock, and were to pay the county therefor, as provided in the sixth clause of the award. The debentures issued by the county had coupons at- tached for the payment of the interest thereon semi-annually. The County authorities understood, from the sixth clause of th3 award, that the city should pay the coupons as they matured. 96 RECTORY LANDS FUND. An action was brought, but it was held that the city was not liable until the debentures were due. Now some, but not all, the debentures are due, and the County, having paid thera, has applied to the city for repay- ment, which has not been made. 1. Can the County collect the debentures already matured and paid, with the coupons belonging thereto, or must pro- ceedings be delayed until all the debentures are du.' and paid? 2. Is the city liable to the county for interest up6n the coupons from the date of their maturity and payment, or can the County only collect the amount of the debentures and coupons, without interest on the latter? OPINION — I have examined the provisions of the award as set out in the t4th vol. B. E. Keports, and am of opinion as follows: r-,-\''-''--. -^v'^. .-- — ,:■' :v..-i ;.■.:.:.■.:.■'-. ;:■_,, 1. The County can at once proceed to collect any deben- tures that is due and unpaid. :;:> fi, 2. Intorest is not payable upon the coupons. The County can collect the debentures and coupons only. , _ J. HiLLYARD Cameron. 25th Nov., 1871. • ' KECTORY LANDS FUND. CASE — The Synod passed a resolution in 1870 as follows : " That for the purpose of defra^ ing the necessary expenses incurred in the management of the several trusts or funds, now transferred to or what may hereafter be vested in the Incorporated Synod, whatever sum may be required beyond that produced by the rent of lands or the interest of the investment held for the general purposes of the Synod, shall be raised by one equal rateable per centage on the several funds administered by the Synod." In accordance with this resolution, the General Purposes, RECTORY LANDS FUND. 97 Statistics and Assessment Committee resolved that, in order to meet the future expenses of managing the investments and the proper share of the general expenses of the Synod chargeable to the rectory lands already or in future to be sold, and the proceeds invested, there be deducted from the proceeds of every sale (whether already effected or to be effected) a sum equal to five per cent, on such proceeds, and that the same be transferred to the General Purpose Funa Committee, to be by it invested as a special fund, the interest upon which shall be applied to meet the share of the said rectory investments in the paying the expenses of manage- ment. The sale of the rectory lands is provided for by a Statute passed by the Parliament of Canada in 1866, ch. 16, and under that Statute the Church Society of the Diocese of Toronto passed a by-law to regulate the sales of the rec- tory lands and provide for the management thereof. That by-law places the sale and management of these lands in the hands of a committee who, by the fourth section of the by-law, shall keep all necessary books of accounts, may appoint an ofKcer for keeping the same and may remune- rate him, and all charges of management shall be appor- tioned among the several rectories in proportion to the income of each rectory derived from the sales of tiie rectory lands or any part thereof, or the investments therefrom. 1. Does the Act of 1866, ch. 16, authorise the General Purpose Committee to adopt and carry into effect their resolution alone, and if so, can they deduct from al monies still to come in on account of sales already made, the five per cent which has not been deducted from monies already received on such sales as well as from all monies still to come in ? 2. If the General Purpose Committee cannot enforce their said resolution, how can that committee legally ULder the said Act secure the payment from the Rectorial Funds of the legitimate expenses incurred in managing the said funds ? OPINION.— The act of 1866, ch. 16, which authorises the sale of the rectory lands and makes the Church Society an Incor 98 RECTORY LANDS FUND. porated Synod of the Diocese in which they are situated, the Ti-ustess for their sale and management, provides by the third section that the proceed'- of such sales shall be held first, to pay all expenses attending the management thereof. The Church Society of the Diocese of Toronto, in 1867, passed a by-law under this Act, provided a committee for the sale and management, and by .the section set out above, declared from which sourci' the expense of management was to be met, and how it was to be apportioned. That by-law has not been repealed, or altered by the Incorporated Synod, except as to an increase of the number of the committee, and by placing their funds under the management of the increased committee, unless an alteration has been made by th? resolution of the Synod of 1870, stated in the case, and in my opinion that resolution does not make any alteration, first, becaus;' it does not profess to do so, and secondly, because the resolutions could have no legal or binding effect upon the Rectory Lands Fund. The Synod have no power to assess this Fund for the expenses of management of any other fund administered by the Synod and neither the resolution of the Synod nor of the General Purpose Com- mittee could have any legal operation upon the Rectory Lands Fund. The by-law of 1867 points out the proper mode of assessment, the Rectory land committee may be required to pay for the management of their fund, and may either provide an officer under the by-law for their manage- ment, or contribute a specific sum to the Synod for their management, and that sum must be assessed upon th'e income and not upon the principal of the Fund and in the proportions specified in the fourth clause of the by-law of 1867 as stated in the case. J. HiLLYARD CaMEUOM. 16th Jan., 1872. EXTENSION B0NI>8. 99 .::,,■,;.:'■' ..^ EXTENSION BONDS. -■ ■• ' CASE.— '• \ '■;.' '■■ • ■ It is important to know if the rights of the holders of the Bonds which have heen already issued by the Wellington, Grey and Bruce liailway Company, can be affected by the j'roposed issue of Bonds for the construction by the same Company of the southern extension of the line from Palmerston to Kincardine. The Wellington Grey and Bruce Company entered into an agreement with the Great Western Company, dated 15th of June, 1869, whereby thoy agreed to apply 20 per cent of the traffi-* of the Great Western line which had been receiv-d Irom or sent over the main line of the Wellington Grey and Bruce Company — which for con- venience may be styled "interchanged tratHc." At first the agreement was limited to the issue of Bonds to the amount of $10,000 per mile, and to that portion of the line between Gueljdi and Fergus, and as lengthening the line was contemplated, the following words were in- serted. " Provided always and it is hereby understood, declared, and agreed that notwithstanding this lease is in terms confined to that portion of the line now about being con- structed from Guelph to Fergus, it is intended to aj)ply, and all its provisions shall extend and apply to the whole main line of railway, so intended to be constructed from Guelph to some point in the County of Bruce, or on Lake Huron, as well as to the bonds which shall rank jxiri passu with those to be issued for the first section between Guelph and Fergus, but not to any extension or branches from the same main line and the several covenants and agreera^^nts herein contained, shall be held to apply to the several sections of the main line, as from time to time they shall be comi)leted to the satisfaction of the said general manager and engineer, and ready for traffic." ' . Subsequently by another agreement entered into between the same parties, dated the 3rd of June, 1870, it was agreed that the Great Western Railway should apply $12,000 per 100 EXTKNSION BONDS. mile of railway in the whole to the same effect as though $12, 000 had been originally named in lieu of $10,000. The Bonds which the Wellington Grey and Bruce Com- pany issued, shew upon the face that in the whole they shouhl not exceed the sum of $12,000 for each mile of railway, and that the payment or liquidation in res[)eet of both principal and interest is limited and confined in accordance with the Lease and agreement made between the two companies bearing date, 15th of .Tune, 18(59, and 8rd of .June, 1870, and that the Bonds were liable to be ac- quired before maturity by the Great V/estern Company, by the api)lieation by the said Comi)any of 20 per cent of the interchanged traffic according to the terms of the said agreements. The Wellington Grey and Bruce Company obtained amendments to its Acts of its Incorporation, 3-4 Vic. ch. 37, (Ontario), 1.5th Feb., 1871, whereby the issue of $12,000 per mile of Kailway which the Wellington Grey and Bruce Company had been authorised to construct and which by this Act the said Company was further authorised to con- struct, was declared to be the lawful issue subject to certain conditions as to work done and money subscribed in the undertaking, which Act further authorised the construction of the southern branch from some point on the main line to Kincardine. The second clause of the 34 Vic. ch. 37 enacts, that the Bonds ji' Debentures which the Company may issue under the borrowing powers and shall with those already issued be a first charge under the Mortgage referred to in the said lease and agreements with the Great Western Kailway Company dated respectively the 15th day of June, 1869, and the 3rd day of June, 1870, shall not exceed in the whole with those already issued, $12,000 for each mile of the railway by the said recited Acts, or this Act authorized to be constructed and which shall be actually completed and worked by the Great Western Kailway Company. It would seem therefore to be quite clear that assuming the proper basis being in existence for the issue of the Bonds, viz., work done, bonus voted, or stock subscription EXTENSION BONDS. lOl paid, that the Wollinpfton Grey and Bruce Companv have a right to issue |>r2, ()()() per mile on the whole mileage of either main line or extension which Honds shall he a first charge. The Great Western, and the Wellington Grey and Bruce Company have since agreed an.l although the agreement has not hetn executed it is fully intended to act upon its terms which are, that the Great Western Company should in like manner apply the same terms and conditions which are in every respect the same in relation to the southern extension as have heen made in relation to the main line with the single exception that the issue of bonds was to he confined to $1.),000 per mile on tlie extension. But the point is whether the holders of Main line Bonds can claim that as between themselves and the holders of Extension ]3onds are entitled to he first redeemed out of the main line traf'lic to the exclusion of the extension bonds which should he limited to the fund of traffic arising out of the extension and not participate in the main line traffic until all the main line Bonds are absorhed. And graiiting that it is nevertheless true that all the Bonds are a first charge pnfi jxissu, but that relatively to each other there are two classes.. On the ground that the rights of the main line .Bond holders are secured by the agreements of 18(50, and 1870, and that the act of Ontario, of 1871, did not expressly i deprive them off their rights thereunder. ;, V As the Act legalized the issue of Bonds as the first charge in respect not only of the line agreed to be worked, in the agreements but also in the southern extension (as authorized to be constructed by that Act,) the Great Western and the y. ellington Grey and Bruce Company as of one issue jwn passu so that the bonds al)out to be issued for $] 0,000 per mile on the southern extension may participate on equal terms and conditions in the redemption fund to be provided by the Greit Western. Therefore the point arises, : Upon the affect of the Great Western executing the agreement to apply 20 per cent of traffic from the main line and extension, for the aquisition of all the Bonds upon like 102 EXTKNSrON nOND. '■■;,,' ■,■■,,,■.. terms disregarding the restrictitjn contained in the proviso in the agrt^ement of 18H9, which states tiiat the agreement was not to extend to any extension or brandies from the same main line. T: e ol)jection8 which the main line bondholders might raise : The relief which the extension bondholders could claim from the Great Western Company by reason of the dis- appointment sustained by l)eing limited to the traffic on the extension, while the agreement relating to such extension, led enquirers for Bon. h to look to the whole line ; And whether tlie Great Western should only agree to apply the traffic iiiterchanged with the extension only to the acquisition of the bonds to be issued for the extension until all the main line bonds were acquired and then secure to the extension bonds the benetits of the entire traffic. And then further, whether the main line bondholders can insist thai the rental received from the Great Western, namely, the 20 per cent from gross traffic is not by the agreement of loth oi June, 18()9, appropriated to the main line honds before an approi)riatiou therefrom is made to pay interest to the extension bonds. And whether any interest at all should be paid to ti^e extension bondholders while the main line bond holders are unpaid. And whether the extension bonds are not by the previous agreements of the two companies really made a second charge notwithstanding the Act assumed to make them generally a first charge. And whether the second section of the Act of 1871 by the term "The bonds * * * referred to in the lease and agree- ments * * * shall not exceed in the whole with those already issued $12,000 for each mile of the railway by the said recited Acts or this Act authorised to be constructed ai^d ^ which shall be actually completed and worked by the Great Western Railway Com[>any introduced into the general plan of the agreements of 186i), and 1870, the bonds of the extension line in disregard of that part of the proviso which said that the agreements should not apply to any extension or branches from the same main line. KXTRN8I0N BOND. 103 \ ■ , . Did the Legislature (perhaps inad'T'-tently) deprive the existing main line bondholders of a certain trattic from tlie whole line, applied exclusively to their bunds, by admitting the extension londs to share therein. Vide>cts relating to W. G. & B. Co. 26 & 28 Vic. 0. 93 ; 31 Vic. 0. 13 ; 34 Vic. 0. 37. • OPINION.— Upon a careful consideration of the case submitted, my opinion upon the various points is as follows : 1. It is clear that the conditions being performed, the Wellington, Grey and Bruce Company have the right to issue bonds to the extent of $12,000 a mile on the whole mileage of both their main line and extension. 2. Considering the agreement between the Great Western and Wellington, Grey and Bruce Companies as to the exten- sion bonds as executed, there were or will be two classes of bonds, one for $12,000 a mile and the other for $10,000 a mile, and I am of opinion that without express words in the Act of Parliament the right held by the bondholders of the first cannot be abridged or transferred to those of the second class. The holders of the first class of bonds are entitled to all the benefits of the interchanged traffic, and their bonds must receive all the advantages intended for them under the agreemeiits of Juno, 1869 and 1870, to the exclu- sion of the bonds of the other class until they are redeemed. 3. The Great Western should apply the interchanged traffic to the main line bonds only until they are all re-' deemed. . • 4. As between the holders of bonds of the two classes as described above, I consider that the bonds of the first class are to be treated as if they were the only bonds in existence until they are all acquired, and that in respect of interest as well as principal their holders are entitled to the appli- cation of all the traffic arranged by the aireements of 1869 and 1870, and the holders of the bonds of the second class can claim only on the extension until all the first class bonds are satisfied. J. HiLLYARD Cameron. 6th Feb., 1872. 104 ESTATE IN FEE BY DEVISE. ESTATE IN FEE BY DEVISE. ; ■ ■ CASE.— . -. ■ ^'■■- :;>■'■■•,...:.;:,-. ;.,-.'■ In a codicil to his will a testator devises as follows : will and direct that my son A. B. do have the '.est half of ■'aid lot No. 16, east side of East Lake, and C. D. the ea. alf of the said lot, to have and to hold the same to them, their heirs and assigns forever. Slould my sons A. B. and C. D. die without heirs, I hereby will and bequeath the said lot No. 16, 1st con. east side of East Lake, to E. F.'s two eldest sons, share and share alike." A. B. sold the land and, gave a deed of his part of it in fee. He had a son, but he is dead, and he has no other children. If he dies without leaving any children, will the land go to the two eldest sons of E. F., or has the purchaser from A. B. good title in fee to the west half of the lot. OPINION.— My opinion is, that A, B. had an estate in fee simple to the west half of the lot under the will, and that the pur- chaser from him had an estate in fee in the west half, which cannot be interfered with by either of the eldest sons of E. F. on the death of A. B., as they have no title nor interest in the land under the will. J. Hi] LYARD Cameron. 19th Feb., 1862. RIGHTS IN BOUNDARY i^TREAM. CASE.— The Etobicoke River or creek forms the boundary line between the Counties of York and Peel, and also be- tween the Townships of Toronto and Etobicoke. These boundary lines are usually four rods wide. gUESTIONS.— 1. Have the owners of the lots on each side of the river the right to the stone in the river, or have the Town- ship Councils? And can the Councils pass a by-law to sell same ? RIGHTS OF LE8SRE8. 106 2. Does it make a difference whether the grants of the lots state boundary to be to high or low water mark ? OPINION — The River Etobicoke is not a navigable river, and although the boundary line be as stated in the case, the proprietors of the land on each bank would be entitled to the middle of the stream on their respective sides. If the Crown granted only to the edge of the stream, whether to high or low water mark, and re-sold the river, the bed of the river and all on it would be in the Crown. It the grant was granted to the edge of the stream, with- out reservation, or if the lots were granted generally on each side of the river, the owners ol the lots would be en- titled to the middle of the river from each side, and each, therefore, to the stone on his own side. , V i J- HiLLYARD Cameron. Ist June, 1872. t '>;...; ; RIGHTS OF LESSEES. OPINION,— I have had a great deal of difficulty in coming to a conclusion as to the correct course to be pursued in refer- ence to the lessees and occupants of lot 12 W. Belle River. From the papers sent to me it appears that A. B. was the first lessee, and his lease gives him "the south fifty acres of lot twelve, west side of Belle River, extending from front to rear of lot, containing fifty acres." C. D. was the second lessee, and his lease is fcr " the northerly part, extending from front to rear of lot twelve, west of Belle River, con- taining fifty acres, be tiie same more or le&s." E. F. was the third lessee, and his lease is for " the south half of the north one hundred acres of lot twelve, west of Belle River, containing fifty acres, be the same more or less." No lease has been issued for " the north part of the south part " of the lot, but it was ap[)lied for by G. H., who paid 7 106 BONDS UNDER ACT OP INCORPORATION. the amount required by the Company, and has, as I under- stand, gone into possession of his supposed part, and made improvements. The lessees are all for parts of the lot " as described by patent from Crown to the Canada CoiQpany." On the best consideration that I have been able to give the case, the rio[hts of the several parties, as far as the Canada Company is concerned, are as follows : A. B. is entitled to the south fifty acres of the lot, as that exact quantity is leased to him without the words " more or less." C. D. is entitled to whatever quantity there may be in the north half of the north half of the lot. E. F. is entitled to his deed for whatever quantity there may be in the south half of the north half of the lot, and any surplus of purchase money must be returned. G. H. is entitled to whatever may remain of the south half after giving A. B. his fifty acres. As believing the several parties themselves by reason of knowledge of occupation or agreement, they nuiy be unable to interfere with the actual occupation of each other, but the rights as between each of them and the Canada Com- pany appear to me as above ; and I accordingly advise the Company to act on this view, unless the parties can be induced to take leases or deeds for the exact number of acres of which each of them is in possession. J. HiLLYiBD Cameron. 28th Jan., 1873. BONDS UNDER ACT OF INCORPORATION. OPINION — The power of the T. & N. R. Company to issue bonds is given by the 22nd sec. of 31 Vic. ch. 41, their Act of Incorporation. There is nothing in that section, nor elsewhere in their charter, declaring in what currency or at what date the bonda !il Comuril of that village, requesting them to raise the sum of $5,400 to i)ur. chase a school site, build a sehool, Sec. In addition to stating the time at which the Trustees desired the money, they requested the Council to raise the money by deben- tures payable over 18 years, paying small sums the first few years, increasing in amount till tin; end of the time. The questions to which answers are required are as fol- lows : 1. Is the Co.'.ncil bound to raise the money for the Trus- tees ? 2. Have the Trustees authority to iiistruct the Council in what manner the money should be raised by tliem ? 3. If the 'J ruslees instruct the Council to raise the money by debenture, as done in this ease, can the Jouncil pass a by-law in pursuance of such instructions without suln)itting it to the pt'Ojile? 4. Can the Council, under any circumstances for school pur[ oses, [lass a by-law to raise money on debenturcb witliout su])mitting it to the people? ;", Can the amounts be made paynbhi annually without foiniing a sinldng fund for paxnicnt of debt and interest'/ (1. If amount required to be levied annually according to Inst revised nsses^ment roll to meet premium and interest Hsked for by Scdiool Trustees should require a rate of -^ part of a cent on the dollar extended over a 100 * period of 18 years, would such a demand Le considered increasonable so as to excuse Council from raising amount, and would it justify them in resisting tlie demand? OPINION.— T send ray answers to the questions in tl)e order in which you have placed them. 1. Yes. 2. No. The Council are to provide the monies for school purposes in the manner du-ccted by the Board of School /• PRESEHVATION OP TIMBKR. 109 Trustees, but that does not, in my opinion, apply to the mode in which the inone}' is to he raised. 3. No. 4. No, if the debentures extend beyond the current year. '■ . 5. No. '": ' '^ . •.- ':■,• /.,' . ,?, 6. No. ^. ■ -:' . -. ■ - ■ '-- -. .'--^ ^-- ^ » , V J' HiLLYARD CaMP:RON. 12th June, 1873. 'V RESEKVATION OF TIMBEli. CASE.— . r ^■k :. ■ . ' ' ' V Under notice of the Crown Lands Department of Ontario bearing date 4th Sej t., 1800, in which tlie public lands in Tudor and other townships, all offered for sale under the "Land Mining Act of 1809," at $1 per acre, and ai)plications to purchase directed to be made to C. 1). at Belleville, on the 21)th day of April, 1872, we delivered the necessary papers to and paid the said C. D. in full for lot 17, in the 18th con. of the Township of Tudor ; and on the 15th day of May, 18/2, the patent for the said lot *' as mining lands " was issued to us. .- w ■ ^ On the 17th Dec, 1872 we sold the said lot to one A. B., who lives upon it, but we reserved in the sale to him all the cedar and tamarac timber and trees lying or being on the said lands. During the last winter the said A. B. cut upon the said lot and delivered to us on the banks of a creek near by his place a (pumtity of the cedar standing on the said lot, and we paid him for doing so, and marked the cedar so got out by him with our own registered mark. Then in the month of March last G. k Co.'s men went to the said cedar and put their mark ujjon it, on and over our marks. Under the reservation clause in the patent the said lot will be kept in G. & Co.'s timber license for that township, and their license for last year bears date May 1st, 1872. Can we, in your opinion, hold the cedar so got out and marked, and if so, please advise what course is best to take and hold it. Messrs. G. & Co. claim that tht-y now 110 LIABILITY OF BANK STOCK TO TAXATION. have it in their possession, but we consider we have it as much in our possession as they, for it is intermixed with timbers of different parties, besides theirs and ours descend- ing the River Trent. OPINION — I suppose that your patent for lot 17, con. IS Tudor, is the usual patent in the reservation of pine timber under the Mining Act, and it can only be to such timber that the license of G. & Co. can apply. The cader and tamarac trees not being excepted in your patent are yours under the reservation in your deed of the lot to A. B., and therefore you have a right to it. Your proper course is to notify G. & Co. that their men have erased your trade mark from the timber and put on theirs contrary to the statute, that the timber is yours, and ask them if they claim it, as you wish to hold them respon- sible for its value and damages. If they dont answer you take it away, or if you choose, take it away instead of notifying them, but the former is the better course. J. HiLLYARD Cameron. 13th June, 1873. LIABILITY OF BANK STOCK TO TAXATION. CASE.— Upon the question of the liability of Bank stock to municipal taxation under the assessment law of Ontario, I am of opinion as follows : OPINION — By the assessment Act the stock of incorporated companies is liable to municipal taxation in the hands of the stockholders but the stock of Banks was exempt from such taxation so long as the issues of such Banks were liable to the general tax existing when the assess- ment Act was passed, and this exemption being excep- tional and temporary as to these Banks the issues of which are no longer taxable under the General Banking ^ MUTUAL INSURANCE ACT. Ill Act, and therefore in my opinion such Bank stock is now liable to municipal taxation, but I consider that Bank dividends should not also be taxed although I do not say that they are not also taxable. The stock of any such Bank doing business and having offices or agencies in Ontario, the stock of which may be transferred by law within Ontario although the head office may be without this province is taxable as the personal property of the person owning the same and resident in the said province. The stock is taxable at the time when other personal property is assessed. J. HiLLYARD Cameron. 14th June; 1873. MUTUAL INSUEANCE ACT. OPINION — I consider that if the Beaver or any other Mutual Company with special acts, avails itself of any of the provisions of the Mutual Insurance Act lately passed, which are of a more extensive or beneficial character than those contained in the former Mutual Act, that company should not exercise any powers which are directly opposed to the express provisions of the new Act and that under such circumstances the cash policies of such Company should be limited to three years. AMENDING ASSESSMENT. If there be any erroi in any resolution of assessment there is no reason why the assessm'^nt should not be amended, always taking care that the premium notes of those policies only are issued on which losses and expenses were incurred during the currency of the policies for which the premium notes were given. J. HiLLYARD Cameron. 27th June, 1873. H2 ANNUAL MEETING OF 8HARKH0LDER8. ANNUAL MEETING OF SHAREHOLDERS. CASE.— ;'.• We want your opinion on the legal construction of gecB. 12 & 13 of the Western Ins. Go's charter respecting the time of holding annual meetings. The hooks are halanced at 30th June, in each year and general statement of the com- panys affairs made up to that Hate annually. The question now is, suppose tha+ one annual meethig of shareholders was held on 28th Aug., 1872, would it follow of necessity by the sections referre I to that the annual meeting this year must be held not later than the 27th Aug., so as to keep within the 12 months, or does the charter admit of the annual meetings 1)eing held in each and every year on the construction tiiat if held ^ast year in August, it might be held this year in September, or any time within the year. Your early attention will oblige us as we have to give immediate public notice of thirty clear days should you favour the opinion that the annual meeting shall take place within the twelve mouths following that of last year. OPINION.— Upon considering the clauses Referred ^o, and the amending Acts, substituted for the twellth cliuise in the amended Act, I am of opinion that the directors may call the stockholders together on any day they may appoint in any year on giving the necessary notice, and that it is not necessary that in this year the annual meeting s'.all take place within twelve months from the time it took place last year. J. HiLLYARD Cameron. 24th July, 1873. \ DIVIDENDS. CASE.— The Canada Car Company will shortly be in a posi- tion to declare a dividend on their stock and the Directors are anxious to be advised whether in declaring this dividend DIVIDENDS. 113 they may iake into consideration the numher of calk paid by each shareholder, and the tim- of the payment of each call, and declare the dividend pro rata according to the amount paid and the time of each payment, or whether every shareholder is equally entitled to a dividend, such ''■■:, dividend being declared on the shares, irrespective of the amount paid thereon or the time of payment. V The Company was originally incorporated by charter Tinder the Canada -Toint Stock Cora})anys Letter Patent ' Act, 1869, under the name of the " Canada Car (,'ompany," and nearly all the present shareholders subscrilied for their stock before the said Charter was obtained and witli the object of obtaining it. At the last Session of the Dominion Parliament the Direcitors obtained a special Act giving thfm luller powers, and authorising them among other things to change the name of the company to the " Canada Car and Manufacturing Company," and constituting them a body " politic and corporate," and with all " and every ** the incident powers and privileges to such Company *' heretofore belonging and hereinafter mentioned. Pro- ** vided always that nothing therein contained shall ba *' construed in any way whatever to effect any right or ** liability of the said Canada Car Company under its ** charter of Incorporation, or the rights or liabilities of the *' shareholders of the Company on their subscriptions for *' stock, and their payments made on account of the same - *' or otherwise in respect of any contract matter or thing ** affecting the said Company on any action, suit or pro- *' ceeding commenced on behalf of or against the Company " at the time of the passing of the Act." The Canada Joint Stock Com[)anies Act, 1869, except in 80 far as its provisions are inconsistent with the special Act, was incorporated \N'ith this Act. Under the Canada Joint Stock Companies Act, 1869, the Dfrectors of the Company had power in all things to administer the affairs of the Company and make by-laws not contrary to laws nor to the Actj to regulate the making and payment of calls on the stock, the forfeiture of stock for nonpayment, and the declaration and payment of divj- 114 DIVIDENDS. dendB thereon ; and by sec, 26 of Uie same Act " the Direc- tors of the Company may call in and demand from the shareholders thereof respectively all sums of money by them subscribed, at such times and places, and in such payments and instalments as the letters patent, or this Act, or the by laws of the Company may require or allow, and interest shall accrue and fall due at the rate of six per centum per annum upon the amount of any unpaid call from the day appointed for the payment of such call." And by »ec. 29, " If, after such demand, a notice as by the letters patent or by-laws of the Company may be prescribed, any call made upon any share or shares be not paid within such time as by such letters patent or by-laws may be limited in that behalf, the Directors in their discretion, by vote to that effect, reciting the facts and duly recorded in the minutest may summarily forfeit any shares whereon such payment is not made, and the same shall thereupon become the pro- perty of the Company, and may be disposed of as by by- law or otherwise they shall ordain." And by sec. 31 " No shareholder being in arrear in respect of any call shall be entitled to vote at any meeting of the Company." Similar powers to these last were conferred on the Canada Car and Manufacturing Company by their special Act and the Canada Joint Stock Companies Act, 1869. The Directors have from time to time made calls on the shareholders of the Company amounting to about fifty per cent, of their subscribed stock. A few of the shareholders are a good deal in arrear in their payments, and the Direc- tors do not feel that it would be just to those shareholders who have paid their calls to allow those who have not paid to receive an equal dividend. They are therefore allowed, if they oan legally do so, to declare a pro rata dividend, as has been above said. They have already passed a resolution authorising an interest dividend of seven per cent, on the calls paid, and which resolution is as follows : " The Board ordered that " all the shareholders in this Company be placed on one " equality, and that this be effected by means of an interest '• account, the rate of interest to be seven per cent, per DIVIDENDS. 115 <; aunum. It being unclerHtood this does not embrace the " the $30,000 paid uj^ Btock given for the projerty of the '* Company " ; but as it is prolabh' that the iiUiount of profit to be divided even alter tliis interest di'"i end will be considerable, they wish to have your opinion on the questions now submitted to you. Yoii are referred in these questions to Litidleif on Partner- ship, ]'ages 653-055; and to the cases of Adley v. Wliit- Btable Co. 17 Vic. 315, and Lovses v. Currie, 1 Kay 017; and to the Imperial Joint Stoek Companies Act of 1845-48- 63, which make special i)rovisions for a case like the.present. You are therefore requested to advise in writing the Com- pany. ■■, 1. Whether they can legally, in addition to j"^ g ^' interest dividend above referred to, divide the }.. iit > of the Company among the shareholders according to the amount paid up by each shareholder and the time of their several payments. 2. If you are of opinion that they can, whether a share- holder in arrear can put himself in a position to claim the whole divided 1 y paying uj) the amount he owes the day before the dividend is declared ; and 3. Whether the resolution of the Board above referred to, declaring an interest dividend, is a good re solution ? OPINION — Upon the case submitted for my consideration I am of opinion as follows : 1. I am of opinion that the resolution providing lor the payment of interest on stock paid up is a good resolution, provided that the holders of the $30,000 stock mentioned in it have either agreed to it expressly or by the terms of sale of their property to the Company, otherwise it is invalid as excluding so much stock that is entitled to share in any dividend that may be declared by the Directors. 2. I consider that dividends may be declared pro rata on the amount of the stock paid up by each shareholder. 3. Any stockholder can entitle himself to a full dividend upon the payment of all due upon calU before a dividend is declared. 116 ABSESHMKNT OF MUTUAL POLICIES. 4. To obviate any difficulty whatever tliat all calls have been legally made, and that the Directors are in a powition to forfeit the stock upon which the calls have not been paid, I would advise that such forfeiture should be made, and that the defaulting shareholders should be informed that their stock will be restored to them on the payment of their calls and interest, and that they will then be credited with the dividends declared upon the amount of their stock actually paid up before forfeiture J. HiLLYARD CaMKRON. •24th July, 1873. ASSESSMENTS ON MUTUAL POLICIES. , . < CASE — The financial committee of Beaver Insurance Co., desire a formal opinion from you on the subject of assess- ments generally and particularly with a view to the powers of the Board to assess in accordance with the new Ontario statute. The Agricultural Co. of London, originated the practice of assessing annually on farm polices under their j-.pecial Act passed in 1863, of which one special Act of 1864, sec. 3' i^ a copy nearly. We were advised at the time that we could assess annually under this section, and as the ordinary assessment on farm risks is 20, very small averaging not more than $5, and has never been disputed it would be undesirable to change our system unless upon some pres.^ing necessity. The Agricultural Co. collect but one assessment of half the premium note. We collect two assessmentR of one fourth the premium note each. All parties, farmers and merchants alike, prefer an average assessment of an understood amount to the old mutual system of fluctuating assessments at regular intervals it would scarcely pay us to collect smaller sums than we now do. With respect to assessments on mercantile risks, we have assessed yearly on an average calculation of the probable losses and expenses of all kinds, — that is yearly on each A88E8SMENT OF MUTUAL POIilCIES. 117 separately — it would Becm now proper to (Uclare tbis assi'Hsinent bv a mojitblv resolution so as t.) includt; every policy distinctly and to meet tbe objection in a late decision that we cannot declare an assessment until tbe losses and expenses bave actually accrued, we propose to make our assessments alwavs ex post factn. As in tbe case of risks legal objections are not unfrequently taken, it is desirable , to keep strictly within the law. There seems to be no limit to the 'irst paifinent under tbe statutes, and by increasing it we can manage to assess for every loss than we can legally do. ]>ut it is bif^hly important tliat our assessments for ordinary p/urposes should be on tiie average principle if at all practicable as that principal best meets the views of mercantile men, and all others. ' ■ OPINION.-- V , There are four purposes for which assessments may be made b}' the Corai)any, 1, losses ; 2, expenses ; 3, guar- antee fund; 4, reserve fund. The first and second class can be assessed for, only after they have been incurred, and must embrace only such policies as are in force while they have been incurred the third and fourth class embrace all policies in force when t})e assessments are made, these latter may clearly be assessed for annually, and so in my opinion may the first and second under the terras of the Beaver Act. The 49 section of Ihe new Mutual Firt- Insur- ance Company Act authorises an annual assessment for the reserve fund only. The Beav r Acts allow such an assessment for that and other purposes, I would therefore continue the annual assessment in any cases in w'hich it is found mo-t con venient, always bearing in mind that in the first and second class of cases as above that the assessment might be only on those premium notes in force when the loss or expense was incurred. J. HiLLYARD Cameron. 26th July, 1873. 118 PREFERENCE BONDS. PliEFEKENCE BONDS. CASE.— Under the Act of 1864, the Welland Railway issued > dt50,000 preference bonds at 8 per cent interest payable in ,' .; ten years and due in 1874. The company desire to issue or substitute the same amount t'oO,000 bearing a different rate, say six per cent interest with a different period to run, , say twenty years. Can this be done, and if not, what other > course should be adopted with a view to lower the rate of , interest if new bonds cannot be created under the Act holding their preferential position. Please give me your opinion on above. OPINION- Under the 13th section of your Act of 1864, your directors have full power to issue bonds in lieu of the present preference bonds, as these bonds become due^ and not to compel any holder of these bonds to take new bonds either for a longer period or for a less rate of interest or in fact new bonds at all unless by agreement, and of course by agreement with the present holders such new bonds can be issued, and they w U hold exactly the same position and preference as the present bonds. If the holder can not be induced to agree the only way by which an arrangement can be made is by the amendment of your present Act by Parliament. J. HiLLYARD Cameron. 11th Aug., 1873. LIABILITY OF SURITIES OF AGENTS. CASE.— I am to give my opinion on the position of surities for agents of a company under the usual forms of bonds and letters of appointment, in eases where the agents do not pay over monies collected in accordance with the terms uf their letter of appointment, and the company continue RATE OF DISCOUNT OR INTEREST. 119 them in their position without notifying their surities of the default. OPINION.— If the terms of the appointment are communicated to the surities then their hond is hased upon it. As a matter of contract, and if the company do not notify them of the default they may be discharged from the payment for future defaults, and if as in the case on which the question has arisen, the agent is allowed to continue it should only be with the consent and knowledge of his surities, and their agreement, that time being allowed the agent for payment they should not be discharged. J. HiLLYARD Cameron. 6th Sept., 1873. RATE OF DISCOUNT OR INTEREST. CASE — Qua re 1. Under the Banking Acts as at present in force in Canada, does a chartered Bank or its oiticers incur any, and what penalty or penalties by stipulating in re- serving or exacting a rate of discount or interest beyond seven per centum, per annum. Quoere 2. A chartered Bank having for souk years done a discounting business with a customer and having reserved or exacted a larger rate of discount or interest on each note or bill, as discounted, than seven per cent, could the excess be recovered against Bank by action or otherwise, or could such excess be set of in an action brought by them against such customer alone on one of such notes or bills held by such Bank and made by such customer as money had and received to the use of such customer or under a special plea like the fifth plea in suit of the Bank of Montreal v. Butt, and would it make any difference that such customer had knowledge of the rate* exacted and acquiesced in or voluntarily paid the same. 120 AOBEBMENT ON GRANTING BONUS. OPINION.— Ansiver 1. No. Answer 2. The excess could not be recovered by action or set oS if aquiesced in or voluntarily paid by customers but if it were retained by the Bank without the customers consent or knowledge and repudiated by him, I consider it could be made the subject either of action or of set olf. J. HiLLYARD Cameron. 2nd Sept., 1873. AGREEMENT ON GRANTING BONUS. CASE.— By-law passed 1st Dec, 1870, under Canada South- ern Railway Act, 1869, cap. 32, granted |15,000 to the Canada Southern Railway Company. By-law calls for an agreement stipulating that, Ist, $7,500 should be payable when road graded and bridged ; that, 2n(l, $7,500 should be payable when the railway should have oonstructed their railway through the said township, so that the same is in a fit condition to carry traffic. The stipulation as to the 1st is, that it should be done within the time limited by the Act of Incorporation, Oct., 1873. As to the 2nd, by the Ist of Dec, 1872. The Act provides that the debentures should have been delivered to the Trustees appointed under the Act, within six weeks of the passage of the by-law. The Municipality was largely indebted to the Municipal Loan Fund, and on this account the officers of the munici- pality refused to execute tue debentures or hand them to the Trustees, and as an agreement in compliance has been made, the municipal indebtedness is now wiped out. By the Canada Southern Railway Act, 1873, the by-law was legalized, Ont. 3(i Vic. cap. 80, sec. 4. The road Wiis bridged and graded long prior to Dec. 1st, 1872, but the rails were not laid a^ through the township. AOREEMENT ON GRANTING BONUS. 121 The municipal officers are unwilling to execute the deben- tures, because they contend that the terms of the bj'-law as to time have not been complied with, and that they might be personally responsible if they executed the debentures. The Company having now fully complied with all the terms of the by-law, the Council are desirous of giving them the benefit of the by-law. ^ The only existing difficulty appears to be the non com- pliance of the Company with the time limitations as to the 2nd $7,500. The Canada Southern Railway Act, 1872, cap. 48, sec. 2, gives the corporation of an^- municipality which has granted aid to the Canada Southern Railway Company power to grant such extension of time as the Corporation may think fit for the performance or fulfilment by the Company of any works stipulate.! for in respect of such aid or assistance. The opinion of counsel is asked on the terms of the above. OPINION.— The by-law has been legalized, and therefore there is no longer any question about its validity. The question now is, Is the Municipality bound to deliver the whole or any part of the debentures to the Trustees ? In my opinion upon the delivery to the Municipality by the Canada Southern Railway ComiJany of the agreement recited in the by-law, the Municipality is bound to deliver to the Trustees one half, or seven thousand and five hund- red dollars, of the debentures ; but they are not bound to deliver the other half unless the Corporation of the Muni- cipality agree and resolve to extend the time for the fulfil- ment of the Railway Company's agreement as mentioned in the conditions in the by-law. 1 consider that the Corpo- ration of the Municipality lia\e tiie power to extend the time under the Canada Southern Railway Company's amend- ed Act of 1872, ch. 48, sec. 2, and that that power can be exercised by the Corporation of the Municipality without any member of such Corporation incurring any personal responsibility by agreeing to such extension of time. J. HlLLYAAD CaMJCRON. 18th Oct., 1873. 8 122 LEASE WITH RIGHT TO PURCHASE. LEASE WITH RIGHT TO PURCHASE. CASE.— In the matter of leases for which money has been paid for grant. Leases in this position are now often turning up in which the lessee is dead intestate, and the heirs either infants or ♦^ ... unknown to us. You are aware how very important it is to us to be able to deal with this class of leases in the same manner as we can in the class of leases where no money has been paid, and in which cases you have long since decided that the administrator can relinquish the lease to the Company, and we can then safely deal with the land. There is a case now before us in which A. B., the lessee, is dead intestate. He left no children. His wife claims as heir at law, but has not administrated ; there was a sum ot money, i*31 5s. Od., paid for grant. Could we not, in a case like this, treat the matter in this way: Allow the administrator to relinquish the lease to the Canada Com- pany, and to withdraw the money deposited for grant of lease as part of the lessee's personal estate, we of course consenting to the arrangement, and getting up the lease and all papers. Or do you consider that the fact of the amount i^aid for grant of lease creates such an equity in favour of the heirs that it cannot be got rid of without suit in Equity and the decision of the Court ? In the case of infant heirs who would not attain majority during the existence of the lease a manifest injustice would be done if the lease were to expire without any one having the power or right to exercise the privilege of purchase ; and we do not understand you to say that by the reception of money for grant of lease such an estate arises as exists beyond the term granted, even as an equity ? OPINION.— In the particular case mentioned, in which the lessee, A. B., is dead, there can be no difficulty in taking a relaase from the administrator of the lessee, with return of the j£31 5s. ud. paid, as there are no children. On the general question in cases of this description, I am unable to say decisively that if the lessee dies pending the ■ PARTICIPATION OF PROFITS. 123 lease, and when there has been no breach of covenant on his part, that there is not an equity in his heirs. If the lease has terminated without tlie exercise of the right of purchase the case is different, and there I consider no equity could exist if the lessee died, but when the lease still exists, and there has baen no forfeiture from any cause, as the lessee might claim the fee simple if alive, so might his heirs if he were dead ; and in that case the release of the lease by his executor or administrator would be insufficient to re- place the Company in their original position. The Company cannot themselves file a bill, as that would admit the equity. They must await the filing a bill against them. -• J. HiLLYARD Cameron. 10th Nov., 1873. PARTICIPATION OF PROFITS. CASE.— The Ontario Trust and Investment Company (incor- porated by cap. 68 Stat. Ontario) opened stock books, and stock was subscribed. The only by-laws passed by the shareholders, giving the Directors power as to stock, are in these words : " The Directors shall hav^e full power to increase the capital stock of the company to the extent allowed by the Act of Incorporation, or by any Act hereafter passed amend- ing the same at any time, and on such terms as the Directors decide, and may charge such premium as they think proper on such increased capital, such premium shall be carried to the credit of the Company, and form part of its general assets." " The Company shall have a lien on the stock of any shareholders indebted or liable to the Company until such indebtedness or liability is removed, and without the consent of the Directors no shareholder, whilst indebted or liable to the Company either as principal or surety, shall be allowed to transfer his stock in th(j Company." 124 PARTICIPATION OF PROFITS. " The Directors may call in the amounts due on sub- scribed stock in such sums and at such times as they may, but no one call shall exceed twenty per cent, of the subscribed stock or be payable until thirty days shall elapse after the last preceding call was payable." The Act was amended, but the amendments do not aflfect the ijresent question. The Directors passed a resolution in these words : " It was ordered that parties desiring to i)ay their sub- " scribed stock in full or any j)art of it be allowed to do " so." Calls to the extent of 50 per cent, of the subscribed stock have been made and paid. No calls beyond this 50 per cent, have been made. One shareholder has paid up in full, and several have paid in advance of the calls, and the remaining shareholders have merely paid up all calls. It is desired to wind up business and divide the cash and assets amongst the shareholders. What are the rights of those who have been paid in ad- vance of the calls in respect of such excess ? OPINION.— Under the resolution of the Directors, as set out in the case, shareholders paying in advance were mere volun- teers without any definite rights as to such payments. . All shareholders paying their calls stood on the same footing, and knew their position. Those paying in advance could at most claim interest on their advances, but could not claim a share of profits on their advances. I am of the opinion that the shareholders who paid their calls are entitled to a participatio i of profits or liabilities for losses in proportion to the calls due, but that those who paid in advance are entitled neither to a participation of profits on their advance beyond the calls, nor are they sub- ject to a liability on their advances oeyond the calls, but they are entitled to legal interest on their advances. The shareholders who have paid in excess of their calls FORFEITURE OF LEASEHOLD. 125 are entitled to be repaid such excess, and interest in full, accounting for any dividend thereon, and ranking with the others as to the amount of calls. J. HiLLYARD Cameron. 10th Nov.. 1873. " FORFEITURE OF LEASEHOLD. CASE.— A. B. is in treaty to purchase C. D.'s property, but wishes to be advised of the effect of the limitations con- tained in the lease, as stated more fully below. 1. It will be seen that the deed of the freehold is an absolute statutory deed. See lact recital, " And whereas " the said parties of the first part have agreed with the said " parties of the second part dhsolutchi to ndl and convey for " $11,620." 2. Tlie first recital in the lease is that C. D. had pur- chased the property referred to in the deed of the freehold, thus recognising the fact of an absolute estate of freehold. 3. The next recital shews the consideration for creating the leasehold term at a nominal rental ($20 a year and so on), viz., the expenditure of !^85,000 on the freehold, and of $40,000 on the leasehold. 4. The vendors are advised that the covenant in the lease to expend the monies does not give a charge on the free- hold, either at law or in Equity, and does not create any restriction in dealing with the freehold. This is the first matter to be considered for the Vi^ndee. It will be observed that the consideration stated in the lease for making the demise is the performance of certain conditions, the princi- pal of '• hich is the exj)enditure of $125,000; and "that until the whole of the said sum shall be expended," tfec. the lessees shal- pay as a'ld for rent such further sum of money (beyond the $^0, &c.) as would equal the difference between the taxes on the premises, and what they would be if the expenditure of $125,000 had been made. This rate C. 1). has been paying the city since 1864. 126 FORFEITURE OF LEASEHOLD. It is not necessary to consider the question of forfeiture for breach of performance so far as the past is concerned, as it is proposed to get the consent of the city to an assign- ment of the term ; but it is necessary to consider what, if anything, would be necessary to do for the future in order to avoid a forfeiture. 5. What, in other words, would be the position of the vendee with reference to the expenditure of $126,000, re- quired by the lease, and what is the meaning of the clauses bearing on this point ? The vendors are advised that the word " premises " refers to the leasehold only, looking at the habendum, the context, and the reference in the same sentence, by way of contrast to the " purchased " premises. They contend, therefore, that it is only the leasehold premises that it is obligatory to use for manufacturing pur- poses only, and that the freehold can be used for any pur- pose ; and that any erections on the freehold would be to the extent of $85,000, a compliance with the covenant to expend $125,000. And they read the second sentence as follows : " And shall and will expend in and upon the said premises so purchased as aforesaid $85,000, and in the said premises hereby demised in permanent improvements, erections, buildings, and machinery for manufacturing purposes {" such purposes "), together with storehouses and wharves, not less than $40,000 ; " and they read the preceding paragraph thus : *' And also shall and will use and occupy the said demised premises for manufacturing purposes only, or for building storehouses, wharves or other erections used with or belong- ing to buildings and machinery for manufacturing purposes which may be erected on the premises so purchased as aforesaid." It is understood by aU parties that $85,000 will have to be expended on the freehold. Must they be of the same character as '.hose on the leasehold? OPINION.— The points submitted for my consideration are : 1. Is the covenant in the lease to expend $85,000 on the free- FORFEITUKE OF LEASEHOLD, 127 hold a charge upon he freehold ? In my opinion it is clearly not a charge upon the freehold. 2. As to causes of future forfeiture of the leasehold pre- mises. All forfeiture for any past cause being abandoned, there can be no forfeiture for the non expenditure of the money covenanted to be expended, as the expenditure was to be made during the first three years of the lease, and if \ all past cause of forfeiture is abandoned, that being a past cause can no longer be acted on. The causes of forfeiture that still exist are as follows : Non-payment of rent and taxes, use of the demised premises for other than manufac- turing purposes, or for buihlings, storts, wharves or other erections used with or belonging to the huibiirigs, and machinery for manufacturing purposes erected on the free- hold property referred to ; carrying on any noisome, noxious or offensive trade or business on the demised pre- mises ; carrying on any trade or manufacture carried on at , the date of the lease on any part of tne property of the les- sors then under lease, or assigning or sub-letting demised premises or any part thereof without written covenant of lessor ; refusal of entry on demised premises to surveyor, &c., of lessors to view state and condition thereof. 3. The position of the vendee with reference to the expen- diture of the $125,000 stated in the lease, and the meaning of the clauses in the lease bearing on this point. The cove- nant for the ejfpenditure of the $125,000 is clearly divisible into $85,000 on the freehold, and $40,000 on the leasehold premises, and that covenant \\ill therefore be binding on the vendee as the assignee of the leasehold to the extent of $40,000 only. J. HiLLYARD Cameron. 22nd Nov., 1873. - 128 BRIBERY IN ELECTIONS. BKIBEEY IN ELECTIONS. CASE.— What will be sufficient to make out a case of bribery sufficiently strong to render void an election, under the Act of 1873 ? Also what connection required to establish the Act com- mitted by the party acting and the candidate, also the election clerk ? OPINION.— Any general or systematic acts of bribery, or corrupt practices on the part of members of the committee of the member elected, even although done without the knowledge of the Candidate himself will avoid the election. If the member elect is to be disqualified the acts must be brought home to him as done with his knowledge or consent. J. ffiLLYARD Cameron. 10th Feb., 1874. MILL DAMS. OPINION — I have carefully examined the plans and survey sent to me in reference to these dams, and the statement submitted in relation to them. The mill-dam has been existing a sufficient time since the issue of patents to the Company, in 1846, to give the owner of the saw mill easement on this lot, if no greater quantity of water is backed by the mill now than was backed for the last twenty years that is a question of fact to be ascertained hereafter, but if the facts are in favour of the owners of the saw mill, they have acquired a right to the easement and the right of act^'on of the Com- pany is lost. As to the retaining dam no date of its erection is given, but if it has existed and been in use for twenty years the "S PUBLICATION OF BY-LAW FOB BONUS. 129 right of action of the Company is harred as to it also, although another question may be raised here as to whether or not the use was of sucli a continuous character as the statute requires, that is a question of fact to be ascertained. I advise that an immediate action shall be brought as to both dams against the owners and occupants of the saw mill. _ J. HiLLYARD Cameron. 28th Feb., 1874. PUBLICATION OF BY-LAW FOR BONUS. OPINION — After a careful consideration of the various statutes relating to money granted to Railways, by Municipal Cor* porations, by way of bonus, I am of the opinion that the by-law providing for the grant of said bonus, requires to be published in only one newspaper in the municipality. , J. HiLLYASD Cameron. 11th April, 1874. APPEAL AGAINST ASSESSMENT. OPINION — The amended clause of the assessment law came into force as soon as the Act was passed, and therefore the time fixed for the return of the assessment became the first of May, and notices of appeal could then be given for 14 days from that day, or if the roll was not returned on first of May, within fourteen days from the time of the return. If your Court of Revision sat before the 26th May, or before fourteen days had elapsed after the return of the assess- ment roll, if it were returned after the first of May, then the sitting was invalid and a new court should be held. 8 130 DIVORCE. If however the Court sat on or after the 25th ^Fay, the Bitting was good, and no new Court should he held. The time for giving notices of appeal to the Court ex- pired on the 14th May, cr fourteen days after the return of the roll, if it were returned alter the first of May, und any notice of appeal given afterwards wjould be out of time and useless. The Court of Eevision or any member of it, or the party who appeals, or his attorney or agent, may swear any person appealed against as to his right to vote. J. HiLLYARD Cameron. 30th May, 1874. DIVOECE. CASE.— A. B. was married at Toronto, in Upper Canada, in December, 1851. He and his wife both being British subjects and domiciled there at that time, they continued to reside in Canada after their marriage, and had several children born there. In 1859 in consequence of dilificulties arising between them the wife left Upper Canada for the United States, where she has since continued to reside, part of the time in the State of New York, and part of the time in the State of Illinois. In 1870, she then residing in the state of Illinois, filed a bill for a divorce in a court of competent jurisdiction in that State, and process in the suit having been duly served on A. B. a decree of divorce was duly pronouned in July of that year, by which the marriage in Upper Canada was annuled and both parties were per- mitted to marry again. A. B. continued to reside in Upper Canada until September, 1871, when he went to the United States with the bona fide intention of taking up his per- manent residence there, and he married his present wife in the State of Michigan, on the 2l8t of that month his former wife having married again in the United States, in Feb. 1871, and she and her second husband being both alive and resident in the United States at the time of A. B's. second marriage. CHARTER PARTY. 181 The questions submitted on this statement are as follows; 1. Is the decree of divorce of July 1870 valid according to th« law of the State of Illinois ? 2. Is the second marriage of A. B. valid in the United States ? 3. Is the second marriage of A. B. valid in Canada ? OPINION — There is no difficulty in answering the first and second questions in the affirmative, according to the law of the State of Illinois, and the principal generally acted on in the courts of the United States. The marriage in Upper Canada was dissolved by the sentence of divorce pronounced in July, 1870, and the subsequent marriage of A. B. in the State of Michigan was a valid marriage, and therefore recogniazMe in the United States. The third question cannot be answered quite so con- clusively. There is no Court in Ontario, formally Uppr ' Canada, which can decree a divorce. The Parliament of the Dominion alone having authority to grant a divorce by statute, but the decree of divorce of July, 1870, being regular according to the law of Illinois, and the second marriage being valid in the United Ptates, it is also prima facie valid in Canada, and is liable to be questioned here only on the grounds of fraud or collusion, either in respect of domicile, or in the pro^ieedings prior to the decree, but if in point of fact there was neither fraud or collusion in those respects, the second marriage is also absolutely valiJ. in Canada. J. HiLLYARD Cameron. 15th June, 1874. CHARTER PARTY. OPINION.— The St. Lawrence Tow Boat Company being the owners of the steamer Clyde, had proposals made to them for her charter for the season of 1874, to run on Lake Ontario, and A. B. one of the proposers, proceeded to 182 CONSTRUCTION OF BRIDOE. Quebec, the headquarters of the Company, where the steamer was, to carry out the terms, A. B. took with him a power of attorney from the other proposing parties, and a form of Charter Party to be executed by the Tow Boat Company. This was objected to by the latter in some particulars, and a new power of attorney was sent to A. B. which also was not satisfactory. And A. B. then received a telegram from the proposers on which he executed the Charter Party as altered by the Tow Boat Company, paid the part of the Charter money to be paid down, received the Clyde, brought her to Toronto, and she has been running across Lake Ontario in the interests of the charterers ever since. The charterers now object that A. B. in ex- ecuting the amended Charter Party exceeded his powers, and allege that they are not bound by its provisions, but the Tow Boat Company are entitled to carry out the Charter Party and agreement for sale as executed, A. B.not having exceeded his powers, and his payment of part of the Charter Party, his taking possession of the vessel, raid her use ever since, all being after the Charter Paity was executed and known to the charterers are clear and suffi- cient evidence of the ratification of the execution of the Charter Party by A. B. J. HiLLYARD Cameron. 16th June, 1874. CONSTRUCTION OF BRIDGE. CASE.— In the matter of the " Lake Burwell Drainage " a point has arisen which does not appear to have been fore- seen in preparing the Act 35 Vic. cap. 52 Ontario. In constructing the channel into which the river is to be turned we interfere with a travelled road ; and to keep up communication a bridge will be necessary — temporary in the first place, but a permanent bridge as soon as the efi'ect of the drainage is fully ascertained. '.^-. CONSTRUCTION OF BRIDGE. 133 In the first place the Township, by their Keeve, agreed to be at the expense of the temporary 'n'idge, provide*^ the Canada Company would find the necessary timber, and to this arrangement we consented. The matter was reduced to writing, but no regular by-law was passed to that effect, although the Township advertised for tenders to build the temporary bridge. Now, however, the Township seems inclined to back out of the arrangement ; and the Township not only claims that (we) the Canada Company should build the temporary and ' the permanent bridge, but that we should also maintain it. The question, therefore, assumes a somewhat serious aspect. Will you please look into the matter and advise us how far the legal liability of the Canada Company is likely to extend. It must be remarked that the road in question is not on the concession line, nor is it a regularly established rqad. It just wanders over the Canada Company's land in the manner which is found to be most convenient to the travell- ing public, and is, in fact, only a mere track across a bar- ren plain, altered and varied as it becomes more or less cut up by the tral'lic. The regular concession line is altogether impracticable, and cannot be travelled. We have surveyed a new concession line, which will be available as soon as the drainagt is completed, and it is across where this new concession line passes, that the per- manent bridge should be built. We consider that by virtue of the Act the new cut becomes in fact the Avx Sable Hirer, and that the Townshi]) is equally liable to be called on to build a bridge over it, as over any other part of that stream. • The Township on the other hand (now that they are sure of the imi^rovement being completed), are willing to involve the Canada Company in any way they can. They seem to think we have made too good a bargain as to the freedom from taxation, and will not hesitate in forcing the Company to build and maintain the bridge, if the law will bear them out, notwithstanding what has passed with the Keeve. 134 KE8IDENT AND OCCUPANT. The Township Council voted $1,000 for the bridge. The minutes of the meeting will show this, as it is of course now a matter of record. OPINION — Upon the case submitted, it appears that the road, which requires the bridge, is not a regularly established road, and runs entirely through the land of the Company at the point where the bridge is required. By the Act of Ontario, ch. 102 of 35 Vic, the Canada Company are authorised to divert and turn the waters ri the river Aux Sable into the new channel or drain men- tioned in the Act, but not so as to impair or interfere with the navigable character of the river. As the river passes through the Company's land, either in its old or new cha* nel, no obligation lies upon the Com- pany to build a bridge over any part of it which runs through the Company's land, except' for the convenience of the Com- pany, or those claiming under it, any interest in these lands, but not for the benefit, use oradvantage of the public gener- ally. If there is a road over these lands which has become a highway, either by dedication, long uses, or in any other mode by which it would become a highway, then all the incidents of a highway attach to it, and among them the liability to repair it, and to connect one part of it with another, where it may cross a stream or river, by a bridge, would by law be on the municipality as the construction or repair of a part of the highway, which a bridge clearly is, and no liability would attach to the Canada Company. J. HiLLYARD CaMBROH. 2oth Aug., 1874. RESIDENT AND OCCUPANT. CASE — I wish to submit the following question to you for your opinion : A. B. lives in the Township of Yonge, cIobb RESIDENT OF OCCUPANT. 185 to the line of the Township of Elizabethtown ; his farm is part in Yonge and part in Elizabethtown ; he works the part in Elizabethtown, but does not live or reside upon it ; there is no tenament or building upon it ; no notice was sent to Township Clerk of Elizabethtown requiring his name to be placed on roll ; the Assessor for Elizabethtown refused to put his name on roll as a resident ; A. B. appealed to Court of Revision ; Court held that he was properly assessed as a non-resident, as he had not given the Clerk the notice required by law; A. B. then appealed to County Judge. The Judge held that as he worked the land, thcugh he did not live upon it, he was an occupant, and entitled to be placed on the roll as a resident. What constitutes an occu- pant so as to be assessed ? Was A. B. an occupant ? 2. C. D. resides in Brockville, is jailor, owns ten acres of pasture land in Elizabethtown, pastures it in summer ; no building upon land, nor is it occupied by any one except as above ; no notice sent to Clerk. The Assessors assessed the land as land of non-resident. Were they right ? 3. One E. F. lives in Mallorytown, in Township of Yonge, has an interest in a business of merchandise in Leyn, which is in Elizabethtown ; he pays his proportion of rent. Has he a right to be assessed as tenant ? OPINION.— I am in receipt of your letter, with questions in rela- tion to three persons on the assessment roll of Elizabeth- town. 1. On the facts stated, I consider the decision of the Judge to be correct, and that A. B. is not only an occitjxdU but a resident of both the Townships of Yonge and Eliza- bethtown. His farm lies in both Townships, he lives upon and works it, and no other person has anything to do with it. His case, in my view, is clear, and has been rightly decided by the Judge. 2. C. I), could, on the facts stated, nevt^r have been ' assessed as resident as to the ten acres in Elizabethtown. 3. On the facts stated, E. F. has a right to be assessed as tenant. J. HlLLYABD CaMEKON. 4th Sept., 1874. 136 IXAMIMATION OF TITLE. EXAMINATION OF TITLE. CASE — A. B., of Hamilton, declines to receive a deed for the following reasons : He demands abstract of title. He demands a sight of the Company's charter, and an examination of the patent, to see if the patent corresponds with the charter, and he refuses to pay fee for the prepa- ration of the deed. He also refuses the deed because the mineral reservations in it do not correspond verbatim with the reservations in the lease. In reply, we have informed him by letter that the Com- ' pany do not consider themselves bound to furnish an abstract of their title, and that the patent cannot be given up because it covers 1C1,S46 acres of land. With respect to the sight of the Company's charter we verbally refer him to the registry office, and we offer to shew him that the land is included in the patent, but refuse to allow nim to examine the whole patent and compare it with the charter. We also inform him that the Company's origi- nal charter is not in Canada, and that we do not feel bound to shew him our copy — which he can get at the registry office — and that, as both the patent from the Crown, and also the charter, are matters of record, he can examine the public documents if he is not satisfied with our certifi- cate. That with respect to the difficulty about the mineral reser- vations, the wording of the deed is synonymous with the reservations in the lease, and that we would consult ycu on it. The chief (and indeed we believe only) difficulty lies in our requiring that fee for the deed should be paid. A. B. threatens legal proceedings, and said yesterday that his object is to put the Company so far in the wrong as to put a bill of costs on them. OPINION.— The Company agree in their form of lease to make their deed at their own coatt and charges, and therefore they QUALIFICATION OP VOTERS. 137 cannot charge anything for the deed, liowever complicated the matter may be, unless the other party agree to it. In this case, therefore, if he did not agree to pay the fees he cannot be compelled to do so; and as that appears, from your letter, to be really the point of difficulty, you must waive the payment, if it was not agreed to. Upon the demands made by A. B., you shall inform him : 1. That the title of the Company is by patent from the Crown, giving him the date of the patent. 2. That he may examine the charter of the Company, and so much of the patent as applies to the lot in question, in the office of the Company, at such day and hour as he and the Company may arrange, or whenever he presents himself at their office for that purpose. Probably, however, if you give up the question of the fees you will hear nothing more about any difficulty, J. HiLLYARD Cameron. 6th Sept., 1874. QUALIFICATION OF VOTERS. CASE.— Your opinion is required upon the question, whether the qualification of voters in the Townships of Hagarty, Richards, Sherwood, Burns, and Joues, townships added to and included in the South Riding of Renfrew, for the pur- pose of representation in the House of Commons, in 1872, continues to be, that such voters shall be male persons of the full age of 21 years, subjects of Her Majesty by birth or naturalization, and not otherwise disqualified, being at the time of the election owners of real estate in the said South Riding of the value of $200 or upwards, or householders in the same, and having been such owners or householders during the six months next preceding the election. OPINION.— In the same session in 1872 in which those town- ships were added to the South Riding of Renfrew, the Act " to amend the Interim Parliamentary Elections Act, 1871," 9 138 QUALIFICAnON OF VOTERS. was passed, and under that Act the qualification of voters in those added townships was declared to be tne qualifi- cation set out above in the question submitted to me. " The Interim Parliamentary Elections Act, 1871," was a temporary Act for two years onlj^ and expired in April, 1873, but there was no time limited for the continuance of the above Act to amend it, passed in 187'2. In May, 1873, another temporary Act was passed, to be in force lor a year, and Irom thence until the end of the next session of Parlia- ment, and no longer. And this Act contained the same provisions as to qualification of voters in those new town- ships as were in the Act of 1872. By the 40th section of the Act passed during the session of the Dominion Parliament held in this present j'ear, 1874, respecting the election of members of the House of Com- mons, it is enacted that " all persons qualified to vote at the election of representatives in the House of Commons or Legislative Assembly oi the several Provinces comprising the Dominion of Canada, tnid no others, shall be entitled to vote at the election of members of the House of Commons for the several electoral districts comprised within such Provinces respectively " ; and by the 133rd section of the same Act, the Act of 1873 above referrrd to is repealed. The eflFect, therefore, of the law, as it now stands, as to the qualification of voters for ,the election of a member of the House of Commons, is to give to such persons only as are entitled to vote for a member of the Legislative Assembly of Ontario the right to vote for a member of the House of Commons in an electoral district in Ontario ; and as no special qualification is admitted for those added towuHhips, in an election for the House of Assembly, so none now exists in an election for the House of Commons, and the qualifi- cation of voters in these townships is, therefore, exactly the same now as in any other township in Ontario, and can only be exercised in the same manner and under the same circum- stances as in other townships, and the special quahfication given by the Acts of 1872 and 1873 is at an end. J. HiLLYARD Cameron. iBt Oct., 1874. EXTRADITION. 139 EXTRADITION. CASE — A firm doing business in the United States having an officer in England sim;)ly for office (not for general busi- ness) purposes, fails in the United States, in 1870 is put into (involuntary) bankruptcy in the United States by an English creditor. The failed firm's indebtedness consists of acceptances (hited, given and payable in England for merchandise got and ordered in England, acceptances at 4 months, an I all given and dated in 1870. Bankruptcy pioceedings stiU pending. " ^ ; * . , ; ■ ^ gU/ERE.— •.■•'•,,- .■.■■•"■■-'^■- -";'■■•; ■:^':-/.. ^< ■ .■■;,.--vt^ ,/,.■ 1. Can English claims against a firm as herein de- scribed, claims proven in bankruptcy in the United States, follow a debtor, if found in Canada, whether residing there or not? ' ANSWER.— ■■"■. ■■'/'^'■' ':•''■ ■'",'.• -.■'■■ Yes. ';:■-. ^^ ,:\,:/;/\;:;;^-;,.s,,v;;"i..;;r::'^ QU.ERE.— .,.;■, '-:- -H.-;, ';':.■'■'■-.:.::.■'■'■.':■.■'■ '■'': ■■;.':' ' ^'"^^i- 2. Can claims, un proven in bankruptcy in the United States, follow in Canada, as above? .- ^ ^, , > ANSWER.— Yes. - ' QU.ERE.— 3. Can a failed firm, such as named herein, or any member of that firm, go (voluntarily), if in Canada, into bankruptcy or insolvency ? Or can any protection be ob- tained, or any discharge be obtained, under Canadian laws ? ANSWER.— No. QU.ERE,— 4. Is there any extradition law between Canada and England, or Great Britain, under which an English cre- ditor, whose claim is or is not proven in i)en'ling bankruptcy proceedings in the United States, can bedemandedordaimed successfully in alleged fraud by misrepresentations made 140 EXTRADITION. by any of the firm in England, to obtain goods, *&c? An exasperated creditor might allege anything. Look carefully into all the above, and answer fully as to extradition, so that a lay ukih can understand your answer. ANSWER — For any criminal offence committed in any part of Great Britain the offender can be arrested in Canada and taken to England. Canada being a colony of England, no extradition exists, as that is required only between foreign countries, and not between countries bearing the same rela- tion to each other as Great Britain and Canada. QUiERE.— 7. Does your Canadian law, or extradition, &c., with England or with the United States operate in any way in such a case as described herein ? ANSWER.— No. QUAERE.- 8. Any imprisonment for debt in the within named case, whether a resident or not, if found in Canada ? ANSWER — A debtor resident in Canada may be arrested by order of a judge of one of the Superior Courts on proof of his intention to leave Canada with intent to defraud his creditor of his debt. QUiERE.— 9. Can the debtor, or any of the firm, if in Canada, be molested? If yes, by whom and how ? Answered in former answer. QUiERE — 10. If the failed firm, or any of them, should go to Canada, or reside there, what course would you recommend to he adopted ? ANSWER — If they come to Canada they will be liable, as stated in the foregoing answer. They must take their chance of being proceeded against. * J. HiLLTABD Cameron. 21st Aug., 1874. COMMUTATION FUND. 141 COMMUTATION FUND. CASE — A. B. claims to be the first entitled to be placed on the Commutation Trust Fund whenever the surplus per- mits or a vacancy occurs, and has submitted to me the various documents introduced herein as furnishing the grounds on which his claim is based. The Clergy Trust Fund is administered under certain by-laws of the late Church Society and canons of the Synod of the Diocese of Toronto, and by them it is i rovided, that, " The surplus shall be appropriated to the mainten- ance of the Clergy of the Diocese being in priest's orders according to lenpth of service in the Diocese'' ; and service is defined to be " the time during which the clergyman has been employed in bona fide parochial or missionary duty in the diocese," with a provision for the deduction of any period of intermission of service, and when the Trust Committee report a surplus of $400 it shall be paid to the senior clergyman (as above defined) not being in the commutation list. After the passing of this by-law and canon a committee was appointed by resolution of the Church Society shewing the order in which they should become participators in this fund. And this committee made a final report of such list up to 13th Nov., 1867, which was on that day adopted by the Church Society and was ordered to be publish- ed in the Church Chronicle, and was so published accordingly. The Church Society and the Synod after- wards become one body by Act of Parliament, and the Synod now stands in all respects in place of the Church Society. Under the by-laws of the Church Society, the clerical members of the Clergy Trust Committee were selected from those Chrgymen only who had helped to create the Clergy Trust Fund. And iii 1873, a canon was passed by the Synod in amendment of that provision by which it was enacted that the selection might be made " From those who from time to time be placed on the said Fund, and also from the twenty clergymen whose names appear as the Senior, on the list of non-commuted clergymen, who 142 COMMUTATION FUND. will be benefited by the fund, when the surplus permits." Another canon was passed by the Synod in 1" 74, by which it is declared " That as soon as a surplus arises in the commutation fund, it sliall be the duty of the Commutation Trust Committee to request the Lord Bishop to furnish the committee with a list, in the order of seniority of those clergymen who might be entitled to claim under this canon." A. B. came into the diocese of Toronto in 1856, and was licensfcd by the Bishop in 1857, and is entered on the list of the clergy, as adopted by the Church Society on 13th November, 18(57, as of the date of February 27th, 1859, in the order of seniority, but his case being affected by inter- mission of duty was not to be considered determinate, till examined and decided by the Bishop and his seniority was subsequently under his Lordships direction, entered as of 27th April, 1857, and was so published in the Church Chronicle. Since this period A. B. has had the license of the Bishop and although he has been eng:^ged a large portion of the time in the school work as head master of the Barrie Grammar School he has nevertheless during almost the whole period been engaged in the performance of clerical duties which not only in his own opinion but in the opinion of the committee of the Church Society constituted bona fide, parochial or missionary duty and entitled him to be in the order of seniority on the list of non-commuted clergy, where the committee placed him. The question for my consideration on this state of facts is. Las A. B. a legal claim to be placed on the list in the order of his seniority as stated above, when their is a sur- plus or a vacancy ? OPINION.— It appears to me that both the Church Society and the Synod have recognized the action of the committee who prepared the list of the non-commuted clergy, the former by formally adopting it by resolution, and the latter by making it the guide, in the selection of clerical members of the Trust Committee in the canon of 1878, and although the canon oi 1874, makes it the duty of the Trust Com- LIABILITY OF CARRIERS. 143 mittee to ask the Bishop for a Hst, that does not in ray opinion set aside the action of both tlie Church Societ}' and the Synod, as to the list recoprnized Dy hotli, or enable the Bishop to nullify the lists which both those bodies have adopted bui rather gives him the 0|>))ortun>ty to point out any disqualification making those lists the basis : I am of opinion therefore that upon the facts stated, A. B. is entitled to bu placed on the Commutation Fund whenever there is a vacancy or surplus. * J. Hill YARD Cameron. 7th Nov., 1874. LIABILITY OF CARRIERS. OPINION- I now jonfirm the view which I expressed to you, that under the circumstances and the forms of the l)ills of lading and freight receipts no action can be successfully maintained by yourselves, or your assignees under those documents, which afford a defence to the carriers bv. the express words used by them and accepted by you. 'In any case where goods to reach their destination must pass into the possession of various companies or individuals the protection that the parties interested in the goods should endeavour to secure is, first, the undertaking of one of the Companies of forwarders to send the goods to their final destination, without any exceptimi as to the termin- ation ot their own liability, when their own particular undertaking terminates, so that any one of them sliould contract for the transmission for the whole distance how- ever many distinct companies of forwarders may intervene between the point of departure and the place of destination, and secondly, for the guarantee of the delivery of goods at their destination without loss or diminution by theft or robbery by any persons whatever, whether in or out of their own employadent. If you can succeed in obtaining from 144 LIMITATION OF ICTIOIig. the forwarders with whom you do business h contract to the above effect you will in my opinion effectually protect yourselves from such losses as you have sustained in the cases which you submitted to me. J. HiLLTARD CaMSBON. 18th July, 1875. LIMITATION OF ACTIONS. CASE.— I duly received your letter, with copy of the Act of the Legislature of Ontario for the further limitation of actions and suits relatinc; to real property, and have care- fully examined its provisions with the view of meeting the difficulties that may arise in dealing with the overholding tenants and squatters on the lands of the Company, and of answering your quaere, whether the Company will be con- sidered as non-resident within the terms of the Act. The points therefore now requiring consideration are : 1. The non-residence of the Company. 2. The position of overholding tenants. 3. The position of squatters. OPINION.— Upon the first point, I am of opinion that tha Com- pany would not be considered as non-resident, and even if the point were more doubtful, than I think it is, it would not be advisable to risk the loss of any of the property of the Company, by allowing the time given to residents to pass by, in the belief that the Company might act as non- resident at a late period. It is not improbable that it may become necessary to raise the point in some case hereafter, but in dealing with the question now the Company should consider themselves as resident. As to the second and third points, I consider that the Company should deal in the same manner with both over- REORIVKR OF COMPANY. 146 holding tenants and squatterB, in obtaining ackno^'ledg- ments of title to their lands, and whenever any person declines to sign one, }^rocee«;iiigs should at once be taken by the Company to obtain possession of the land. J. HiLLYAHD (JAMERON. 6th Feb., 1876. '■% ■■,::--■ • - •■ :..v;:...> -;-■.■ ■■; -^v-^^ RECEIVER OF COMPANY. CASE.— . ■■■■.ir.y.. "v--.-: .,: ;. . ' ' ' ' In the event of a Canadian railway passing into the hands of a receiver, what is the status of the claim of an employee for services rendered before appointment of re- ceiver? Is the matter affected by reason of the employee having his office in the United States, and being paid salary in United States currency ? Can an agent of such a Company, who holds assignments of pay from other employees, use such assignments to bal- ance accounts between himself and the Company ? OPINION.— An employee will be in the same position as any other creditor. His position is not affected by his office ' being in the United States or his payment ui United States currency. On the explanation made of the nature of the claims for pay assigned, the employee may retain in his hands money of the Company to meet them at any rate to the amount ho has paid for them. J. HiLLYABD Cameron. 9th Feb., 1875. n 146 CONSTRUCTION OF DAM, ' '" CONSTRUCTION OF DAM. CASE — The Canada Company propose to throw a dam across the River Aux Sable, at a point in lot 30, in let con. Bosjin- quet, where said river forms the boundary line between the Townships of Bosanquet and McGillivray, and also between the Counties of Lambton and Middlesex. The object of the dam, if constructed, is to force the whole, or nearly the whole, of the water of the river above the dam through the new channel now under construction, as authorized by the Company's Act 35 Vic. cap, 102 (1871-72 Ont. p. 354). Two questions now arise : 1. Must the Canada Company maintain this dam, and if 80, for what length of time ? 2. Should the dam break, would the Company be liable for damages to crops or buildings situate below the dam ? OPINION — 1. The Canada Company must maintain the dam idefinitely. 2. Yes. — .^-•.^.■■■■.. ,>,-,,,.,^. ,; ;-.,-■:.■.. ... ;■. J. HlLLYARD CaMBRON. , 23rd April, 1875. ;, , INSURANCE ACT OF 1875. i - : , OPINION.— \,' 4 In answer to your communication upon the question " Whether, under the new Dominion Insurance Act the Beaver & Toronto have still the right to reinsure for the Provincial Company risks taken in the Province of Mani- toba, or anywhere else outside of Ontario and Quebec, and also on any other matters aii'ecting you in the same statute," I beg leave to state that I am clearly of opinion that you have still the same right to reinsure the Provincial on pro* parties outside of Ontario and Quebec that you had before the passing of the new Act, that Act only preventing your Company opening offices and doing business outside of those LOSS PROM EXPLOSION OF GUNPOWDER. 147 Provinces without a deposit and license ; but not preventing jou in the Provinces of Ontario and Quebec from insuring properties any where in the Dominion or any where else. There are no matters atfecting j'ou in the new Statute, as Companies situated as you are, are required neither to make a dejwsit nor obtain a license, unless they transact business and issue policies outside of the Provinces of Ontario and Quebec. i v; ^ i? Au - «v ;: J. HiLLYARD Cameron. 28th April, 1875. ., ^ .,>■-: : ; LOSS FROM EXPLOSION OF GUNPOWDER. ^ CASE.— ''' ■ -'^"- ■"' '■ ' - ''■■ ■■ '-'"'"" , ' In this case property insured by the Beaver in Toronto was destroyed by tire, which was caused by the explosion of gunpowder, which was not on the premises insured, but in a shed in premises adjoining, is the Com- pany liable? ■.,.-■;...;,,;-. ov;'^' '••- V-: .'^- ■• ':■:;•'*■■' 'hi ".<.;■--..:..;/:■;■,■ OPINION.— ;,^.:-^;'.'.:,;. ..v-, ^ ' On the best consideration that I can give to the case, I am of opinion that this loss comes within the exceptions in the policies of the Company, being a loss "by fire arising from explosion," and that therefore the Company is not liable. J. HiLLTARD CaVBBON. 3l8t Mav, 1875. ^ ^^ . CONTRACT FOR PURCHASE. OPINION.— I am in receipt of your letter, enclosing form of seven years' lease, in those cases where a sum of money has been paid to the Company prior to a lease being granted. 148 CONTRACT FOR PURCHASB. In these cases it is clear that the whole contract is one of purchase. The payment of the money for the grant of the lease is taken as a payment of a part of the purchase money of the lasid. The rent is stated to be for interest. The price per acre is stated, and the sum on the payment of which the deed will be made is the balance of the aggre- gate average price after the deduction of the money paid down for the grant of the lease. - Under these circumstances I consider that this transac- tion is a contract of purchase ; the right to the linal acqui- sition of the title to the land being made dependant upon the punctual payment of the balance of the purchase money, and the performance of all of thc> covenants with regard to the money consideration, such as the payment of the rent and taxes, and that at tlie expiration of the lease if these covenants have been broken, and the forfeiture is insisted on, if the balance of the purchase money is not paid, there is no equity left in the lessee, and the Company can decline to carry out the sale. ■ ■ Also, if, while the lease is current, the Company forfeit it for breach of covenant, and obtain possession of the land, I consider that the Equity js gone, and that the lessee can- not afterwards compel the Company to give him a deed, but that wh.le the forfeiture is not enforced, and the lease js current, he may. When, therefore, the term of the lease is at an end, and the balance of the purchase money is not paid, the Com- pany can sell the land again and carry the money paid for grant of the lease to profit and loss account without any difficulty, and th<^y can do the same when the lease is for- feited and during the currency of it, if they have acted on the forfeiture and taken possession of the land. The only case remaining is wherb a forfeiture has been incurred, hut possession has not been taken. In such case I should advise the Company not to sell, the lease being still current, but to bring ejectment and refuse the lessee's claim, if made, for a deed, and thus compel him to file a bill for a conveyance, and have this point finally settled by the Courts ; and in view of the new limitation act, and LIABILITY OP XTMDBRWRITKRS. 149 the consequences that may arise from it, I advise that the Company should take steps to have this point settled as soon as possible. . , '. J. HiLLYARD Cameron. 23rd June, 1875, LIABILITY OF UNDERWRITERS, CASE.— V - Your opinion is requested on Insurance Policies issued by '* the Marine Association of Ontario," as to whether each member of that Association is liaMe individu- ally for the whole sura insured by any policy, or only for a proportional amount ? OPINION.-- Every policy of insurance is a contract between the insurer and the insured, and the liability of 'the insurer must be decided by the terms of the contract. In the form of policy in question, as the insurers expressly stipulate "each for himself only and not for the others," taking of the risk a certain sum only ; and in the last condition but one endorsed on the policy it is declared and agreed" that each Underwriter of this policy uriderwrites for himself only, and not for the others or any of "them, and for the part or portions within mentioned, of the whole sura within named, and for no other or greater sura ;" and this policy is acce;ited by the insured upon this express condi- tion and agreeraent. This js therefore, an express contract by which each insurer lifiits his liability to the sum which he individually agrees to pay by the terms of the iKiiicy, and no one of the insurers is responsible for the whole sum in uired or beyond the amount he lias agreed to pay. J. HlLLYAIU) CaMKHON, 11th Aug., 1-575.' 160 SURREITDER OF POLICT. SURRENDER OF POLICY. CASE.— /.-■'-'- 1. In the case of a policy issued prior to August, 1865, upon the life of a husband when he, within the year limited by that Act, executed a declaration in favor of his. wife. Can the husband or wife, or the two together, execute a valid surrender of such policy to the Company? 2. In the case of a policy issued under the act of 1865, or the subsequent Acts of the Legislature of Ontario, on the life of a husband for the benefit of his wife. Can the husb? nd or wife, or both together, execute a valid surrender of such policy to the Company ? 3. In the case of a policy issued prior to 1865 upon the life of a husband, and under the Act of 1865, declared to be for the benefit of his wife and child, and also in the case of a policy issued under the Act of 1865, or the subsequent Acts, on the life of a husband for the benefit of his wife and child. ' <' ' •" ' Can the husband or wife, or both together, make a valid surrender to the Company of the half or other proportion of the policy which, in the event of death of husband at the time of such surrender, would be payable to the wife, the child being a minor ? 4. Section 6 of the Act 33 Vie. ch. 21 Ont. provides for the insurance money in the event of death of one or more of the beneficiaries being payable to survivors. Has not the minor child in such a case an interest in the share or portion eclared to be for the benefit of the wife ? 6. In the case of a policy on a man's life, issued prior to 1865, and declared under the Act of 1865 to be for the benefit of his wife, or for the benefit of his wife and children, or for the benefit of his children alone, can he, under the Act 33 Vic. ch. 21 Ont. sec. 4, or otherwise, surrender such policy to the Company and re- quire a paid up policy in favor of himself and his personal representatives ? 6. In the case of a policy on a man's life, and declared SURRENDER OF POLICt. 151 to be or issued for the benefit oi his wife, or of his wife and children, with profits, not by the terms of the policy payable in cash. ^^ . Can the Company with safety pay a sum in cash equiva* lent to the bonus addition to the insured above, or can they, when the policy is for the benefit of the wife only, safely pay such sum to the husband and wife? Can the Com- pany be comi)elled to pay such sum in either case? 7. In the case of a policy on a man's life, issued in favor of himself and his representatives, and by him de- declared, under the provisions of t'.je Ontario Act Bo Vic. ch. 16 sec. 4, as amended by 36 Vic. ch. 19 sec. 5, to be for the benefit of his wife, or fdr the benefit of his wife and children, or for the benefit of his children alone. • , The same question is asked as in No. 4. OPINION.— . , . ■■■■■::■■'.''- -"■^'r^ ^ :, 1. In answer to the first question my opinion is, that the husband and wife can together execute a valid surrender to the Company. 2. In answer to tlje second question, my opinion is th« same as in my answer to the first. 3. In answer to the third question, I am of opinion that in none of the cases put cnn the husband and wife, or either of them, make a valid surrender of the wife.'s interest, as shown in the policy of the Company, 4. In answer to the fourth question, I am of opinion that the minor child has such an interest in the share or portion declared to be for .he benefit of the wife. 5. In answer to tlit fifth question, I am of opinion that in the case of a surreiidt r luider the circumstances men- tioned in stc. 4, 33 Vic. ch. 21, tlie paid up policy must be granted to the insured in the same manner, that is, subject to the same declaration or direction as to a) pointment as attached to the surrendered policy at the time of its sur- render. 6. In answer to the sixth question, I urn of opinion that the Conipany cannot safely [lay acirutd jirofits in cash in any of the cases put, except wheie the i-ol.cy is declared for the benefit of the wife alone, and she and her husband 152 STREET RAILWAY TRACK. both come in for the benefit of the money and the release and discharge of the Company, but the Company cannot, in either ease, in my opinion, be compelled to pay the profits in cash. . * ^ .;; 7. In answer to the seventh question, I am of the same opinion as in my answer to the fourth question. 1 ; J. HiLLYARD CaMKRON. 18th Oct., 1875. .': , ' ^„: •.;-:"■:.■. ,..^,:.,.:v.^.;.■.:■-.-f-vv-.» .-,. ,, ^ ! STREET RAILWAY TRACK. CASt.— ■.;- - .. . -^ ':- .■.■^'■ I have had under my careful consideration the agree- ment between the city and the Street Railway Company, the contract and specifications for the construction of the sewer on Yonge street, the report of the engineers, and the other papers submitted to me with the view of giving you my opinion upon the following questions, which have been raised in reference to their construction : 1. Have the City Corporation a right to take up the track of the street railway without being liable to replace the same? 2. If the track is so taken up, are the Street Railway Company entitled to demand compensation? 3. Would the right to compensation only accrue after the expiration of a reasonable notice ? 4. The sewer has been constructed according to the con- tract and specifications, but the track of the street railway has not been reinstated according to the contract within the time limited. Can the City Corporation now take the work into their own hands and constitute it at the expense of the contractors ? OPINION — The contract between the Corporation and the Street Railway Company contains the following provisions: "The city authorities shall h^ve the right to take up the streets traversed by the rails, either for the purpose of altering the STREET RAILWAY TRACK. 153 grade thereof, constructing or repairing drains, or for lay- ing down or repairing water or gas pipes, and for all other purposes within the province and privilege of the Corpo- ration, without being liable for any compensation or dam- age that may be occasioned to the working of the railway or the works connected therewith " ; and the Corporation also covenant "that when and so often as it may be neces' sary for them to open any of the streets as aforesaid a reasonable notice shall be given to the Street Eailway Company of their intention to do so, and the work thereon shall not be unnecessarily delayed, but shall be carried on and completed with all reasonable speed, due regard being had to the proper and efficient execution thereof; " and the Street Eailway Company on their part covenant to " con- struct, maintain, and operate the said railways within the terms, in the manner and upon the conditions therein set forth," also that " they shall and will from time to time, and at all times during the continuance of this grant, and the exercise by them of the rights and privileges thereby conferred operate the said railway, &c." ; and further, that it was the clear understanding of the Company " that the privileges hereby conferred were to insure the completion and working of their lines of railway." By this agreement it is clear that the Street Railway Company agree to maintain ai.d operate the railway during the grant, and that, as a part of the consideration for it, the City Corporation may break up the streets for the pur- poses mentioned above, neither being liable for any compen* sation or damage that may be occasioned to the working of the railway, or the works connected therewith, but that the Corporation shall provide that " the work thereon shall not be necessarily delayed, but shall be carried on and com- pleted with all reasonable speed, due regard being had to the proper and efficient execution thereof." On the construction of this agreement, I am of opinion that the clause exempting the Corporation from compen- sation or damage must be read in connection with the clause requiring the work to be carried on and completed with all reasonable speed, and therefore that the Corporation would 10 154 STREET RAILWAY TRACK. not bo exempt from liability, where there was unnecessary delay in the completion of the work, nor are they exempt from liability to replace the track, although both parties have agreed that they may break up the street railway tracks for constructing drains, without being liable for com- penstion or damage that may be occasioned to the working of the railway, or the works connected therewith. My answer, therefore, to the questions submitted in the Street Eailway agreement are as follows : 1. The City Corporation is bound to replace the track. 2. The Street Eailway is not entitled to compensation if the track is relaid without ucnecessary delay on the terms of the covenant of the Corporation. 3. As the breaking up is the act of the Corporation, and the sewer work is under their control, they are bound to have their work completed with a due regard to its efficiency without unnecessary delay ; and if there be such delay, and the track is not relaid as soon as it should be in conse- quence, the Corporation is responsible without any notice from the Company. Upon the fourth question it is necessary to examine the contract and specifications relating to the Yonge street sewer. ■ --"..■'-: ■ ■ ' "•- - -- '' The contract provides for the performance of the work, " in strict accordance wdth the specification, plans, and profiles," and that if not so proceeded with, so as to ensure its satisfactory completion in accordance therewith by the 17th June, the corporation may complete it. The 47th section of the specification provides that the contractors shall with all practical expedition, relay and make good, &c,, or pay and satisfy the expense of relaying and making good all foot pavements, &c., and all those that may be damaged removed, disturbed, or injured," and if on the report of the City Engineer, it shall be made to appear to the Board of Works that the contractor has failed with practical dispatch to relay, »fec., or pay, &c., it shall be competent to the Board of Works to relay and make good the same at the expense of the contractors, or to pay and satisfy the expense thereof or deduct from monies due BANKRUPTCY. 165 or to become due to the contractors, and the contractors expressly agree as to the street railway for taking up the line of railway aif dcted by the se\\ er work to adopt special measures to ensure a rapid and permanent consoli:lation of the railway bed in order to be able to relay and in every respect reinstate to the entire satisfaction of the City Engineer, and leave in perfect safe running order the whole or so much of the street railway as may be aifected by the work, likewise to make good all damages that may be inflicted either to ties, rails, sleepers or other work con- nected therewith, by the execution of the sewer works. There are also various other provisions in the specilications providing for the assumption of the work by the corporation under different states of circumstances as the work pro- ceeds. The fourth question submitted assumes the work of the sewer proper to have been completed according to the contract and specifications, and confirms the question to the effect of the non-completion of the part of the specifi- cations that applies to the Street Railway alone, and in answer to that question my ojiinion is, that the City Cor- poration can under the contract and specifications take that part of the work into their own hands, and complete it at the expense of the contractors. J. HiLLYARD Cameron. 18th October, 1875. •,: • ., BANKKUPTCY. ' 1. Does your new or any Insolvency or Bankruptcy Law affect or afford protection to a debtor, if residing in Canada, or if found by an English creditor who had proved his claim in a Bankrupt Court in the United States-? ANSWER.— Yes. 156 BANKRUPTCY. QU^RE.— /•„•;- ;; ;,,, ,■-■ "■'.'; ■•"'^"'* ^";, 2. What of a creditor who being not found in the United States ? , . -/- . - : ANSWER.— -.--.-„■ ■: -■■ , ,,;•..,-;-■'; ''\-::-,d.\ His claim remains unaffected.* .; . . " QU^RE.— -. ■ ;; ■' -■■■ if a debtor as herein described if in Canada as a resident or otherwise could be sent to England for alleged fraud for obtaining goods there on false rei)resentations made there by himself or by any of his partners during or prior to 1870 ? ANS\VER.- If a debtor was guilty of such fraudulent represen- tations as would bring within the lerms of the Criminal Law, he couid be arrested in Canada and taken to England. QUiERE — 4. Does it make any difference whether the claiin was or was not proven in the Bankruptcy Court in the United States ? ANSWER.— -'-'-"•' '^' ■■■■'■■'• '■■■■■■^^''■'■'■' "■ ■"^-"■- -■•'^^"■' " ■•■■•■■ That would depend upon the provisions in the> United States Insolvency Law in relation to such frauds. QUiERE.— 5. Does lapse of time affect or outlaw such debtors, viz : Book Accounts or acceptances, given in England during 1870, the latter all given dated and payable in England by this American firm ? . ANSWER.— Yes. Six years residence in Canada will bar such debtor, if not during that period acknowledged in writing or payment made upon them. QU.ERE.— 6. If you were such a debtor would you fear resid- ing in Canada ? ANSWER — No. BANKRUPTCY. 157 gu^RE.— 7. What would you advise such a debtor to do if residing in Canada ? « , ANSWER.— Notliing but live quietly. . . QU^RE.— ■'* - ''' -■■^■."v.--- ■ .' ■' ■' , 8. As to the lapse of time please recollect that the firm failed in October, 1870, was put into Bankruptcy in the United States in December, 1870 ; was declared Bank- rupt in January, 1871 ; an Assignee appointed in Febru- ary, 1871 ; and the case is still in Bankruptcy in the States? ANSWER.— These facts make no difference as to lapse of time here. ' gU/ERE.— 9. What would be the position of any of the failed firm if in Canada ? ... ANSWER.— ; ■'^ '■'■ ■ , • ■ - ■■' ■ ■■^'-- The position would be such as is described in my previous answers as to their former liabilities. QUiERE.— , . '^ -: :/■-'■: :[-,y-. ■..;•_ . , 10. Would — or is — the property in Canada of a deceased wife of either of the partners liable ? the wife an American always residing in the United States — died there — had property obtained in Canada after the firm's fail- ure? , : ANSWER.— ■ ■:"'■'",:'■' ■'''■::'•': No. J. HiLLYARD Cameron. 19th October, 1875. 158 INSURAftLE INTKKEST. ' INSURABLE INTEREST. CASE.— ■■' _" ■ : ■ On 17tli February, 1874, W. & D. insured certain chattel property for one year, for $2, 000. In the policy it is stated " loss, if any, payable to A. B." In the month of January previous A. B. had lent VV. & D. $1,000 ; and as security therefor had taken a Mortgage on certain lands upon which their Foundry and Machine Sliops stood ; and also a Chattel Mortgage on certain Machinery in the said Foundry. These Mortgages bore interest at the rate of eight per cent, per annum. Only a portion of the Machinery insured was mentioned in the Chattel Mortgage, and no portion of the implements. In May 1874, W. & D. made a volantary assignment under the Insolvency Act of 1869 to an Official Assignee, and at the first meeting of Creditors C. D., of Montreal, was appointed Assignee, and transfer was duly made to him by the Official Assignee, No notice of the Assignment or of the transfer to C. D, was given to the Insurance Company, A. B. having the Policy in his possession neither assignees knew anything about it. • •:• ' • C. D. was instructed by the creditors to carry on the business, and did so from May 1874 till February 1875, when he by resolution of the creditors sold the entire Estate to the Peterborough Manufacturing Company. In January 1875, A. B's, Mortgage having become due, and he wishing to realize sold his Mortgage to E. F. of Montreal, for the amount then due, viz : $1,080, principal and interest for which amount A. B. took a draft accepted by E. F., payable three months after date. The Mortgages were both assigned, but no assignment of the Policy was executed. It and the assignments being left in my hands by A. B., to be held until the acceptance was paid. On the 17th February 1875, I went to the agent of the Phoenix in Peterborough and informed him of the assign- ment and paid him the renewal premium to keep the Policy then in my hands in force, and got an Interim receipt. At ,/ INSIIRABLK INTEREST. 169 this time negotiations were going on for the sale of the proi)erty by C. D. the assignee, to persons who were to become incorporated as the Peterborough Manufacturing Company. Subsequently the sale was completed to take effect as of the 15tli of Feluniary, 1875, and a conveyance was executed by C. D. to three Trustees to hold the pro- perty until the necessary steps for the Incorporation of the Company were coippleted and a charter obtained — as soon as the conveyance to the Trustees was executed, they paid to me the premium paid by E. F. to renew this policy — but no assignment of the Mortgages or of the Policy by E. F. to the Trustees.or to the Company was ever made. E. F. was appointed one of the Directors of the Company. I did not have the Mortgages or the Policy assigned by E. F. as the Company had given his firm notes for $8,000 the purchase money of the property. No new Policy was issued to E. F., nor any receipt other than the Interim Receipt above mentioned, and no notice of the sale by C. D. to the Peterborough ^Manufacturing Company was given to the Company. A fire occurred on the Ist of August 1875, by which loss was sustained. , The 1st claim papers were put in in August shortly after the fire, and the affidavit as to total amount of loss was made by A. B. The Company wanted more particulars of the loss, and amended claim papers were given the Agent of the Insurance Company, in which the President of the Company made the affidavit as to loss sustained by the Peterborough Manufacturing Company. Since then the Inspector of the Insurance Company was here and examined into the cfaim and was furnished by me with a copy of A. B's. Chattel Mortgage. No policy was issued and no Head OfficiB receipt was delivered to the Company or to any one for them and the matter lay in that state until after the fire, when in course of conversation with the Agent he told me he had a Head Office receipt in the name of W. & D. and the receipt attached to the Interim receipt was then given to me ? The Insurance Company does not now appear to know that 160 INSURABLE TNTEREST. A. B's. interest in the assuied property has ceased to exist, and it had as a matter of fact ceased to exist before the fire occurred, but it was deemed advisable as no notice had been given to get him to make the claim in the first in- stance. You will also consider that the Company offer to pay the amount of A. B's. claim, provided he assigns the Chattel Mortgage to the General Agent of the Insurance Company. If they are entitled to an assignment of the Chattel Mortgage, they would also be entitled to an assign- ment of the Mortgage on the land. The property saved has been sold by the Peterborough Manufacturing Com- pany for something like !^800, and the Mortgage on the land is good security for the whole amount of the interest that could be claimed under the Mortgages — both principal and interest. Under the foregoing statement of facte can the Peter- borough Manufacturing Company maintain their claim for the amount of the Policy $2,000, either at Law or in Equity ? OPINION.— On the case submitted to me, I am of opinion, that the Phoenix Insurance Company is liable for the loss under the Policy affected by W. & D. There is no consent nor condition making the Insurance void upon an assignment of the i^roperty without notice and therefore the dole ground upon which the liability of the Company can be disputed is that which the Company appears to have taken, viz : that the assured had no in- surable interest,. Now to determine that point, the whole of the circumstances must be examined, and the case states that they were all known to the Agent of the Company at the time he renewed the 2nd premium and granted the several receipts. Under the state of facts I consider that the Company is liable to the Manufacturing Company, who were at the time of the loss the beneficial owners and represented both W. & D. and A. B. J. Hir.LYARD Cameron. 20th Nov., 1876. BONDED AND FLOATING DEBT. BONDED AND FLOATING DEBT. OPINION — At your request I place before you my views of the positiou of a railway company in relation to its bonded and floating debt, and the policy that should be pursued in a depressing state of its affairs. The bonded debt of the Company is $1,600,000 00, the floating debt about $500,000.00. More than $200,000.00 of the bonded debt has matured and is unpaid, and a fourth par* of the floating debt, which is all due and unpaid, has gone to judgment. There are, therefore, now two classes ol creditors of the Company who can take act'on for the appointment of a receiver by application to the Court of Chancery — the gene- ral creditors and the creditors by bond, the latter of course having the preference as holding a first lien on the road, if any contest arises, as to their respective positions and rights. The Company, under the Act of the Ontario Legislature had the power conferred upon them of creating a loan capital of $2,250,000.00, which would, when properly cre- ated, take the place of the present bonded debt ; and the Act was no doubt passed by the Legislature with that view, but it has not as yet been brought into operation, and there- fore the Company cannot at present derive anj' benefit from its provisions. In my opinion, the first thing to be done is to bring this Act into operation, and to submit to the bondholders a proposal for exchanging their present bonds for the loan capital under this Act, and for the reduction of their interest from 8 per cent, to per cent. This can be effected by the united action of two-thirds of the bondholders under this Statute, as whatever action two-thirds take the remaining one-third are bound by ; and when the Act is once in ope- ration and acted upon by the bondholders, the provisions in it as to the appointment of a receiver and other beneficial provisions would at once be in force. I need hardly describe to you the practical effect of the 10^ 162 MUNICIPAL LOAN FLND DEBTS. road passing into the hands of a receiver. The Board of Directors would be comparatively useless, and the whole . machinery of the road would be worked for the mere receipt and expenditure of the monies earned by the Company under the direction of the Court of Chancery, and the' final result would probably be, that the bondholders would bring the road to sale, and the creditors of the floating debt, including the contractors who had built the road, and to whom the balances due upon their contracts were still unpaid, would be deprived of all means of obtaining their just claims, as they could never become the purchasers of the road. Under these circumstances there are, in my view, but two courses that can be pursued so as to bring about any final result, either that the bondholders shall bring the road to sale, or bring the Act of last session into operation and exchange their bonds, as I have already stated. I consider the latter course to be the more fair and just to the general creditors, as they will then have a chance of payment), which, if the former were adopted, will be utterly lost, and under the latter the loan capital will receive an interest of 6 per cent, per annum, and the capital itself be well secured. J. HiLLYARD Cameron. Ist De^., 1876. MUNICIPAL LOAN FUND DEBTS. OPINION.— ■-";::<■:';.,, X ' I have had under my consideration the various Municipal Loan Fund Acts, and the memorandum and schedule of debentures prepared by the Ontario Treasury Department, on the liability of the Town of St. Catharines to the Municipal Loan Eund. Shedule B. of the Ontario Act 36 Vic. cap 47, makes the debt of the town |165,182.48, but the correct amount I MUNICIPAL LOAN FUND DEBTS. 163 understand to be $160,571.62, the interest on which, at 5 per cent., is $8,028.57 per annum, which amount, by the sixth section of the Act, was payable in the year 1873, or all or any part of it, instead of being paid in money, might, under the authority of the Lieutenant Governor, be included in the debentures to be issued under the Act. The effect of this Act, when brought into operation, as to any municipality, is to suspend the operation of the former Municipal Loan Fund Acts, except as provided in the 17th section, which continues the existing Municipal Loan Fund debts as security for the debentures to be issued under this Act. The mode of providing for the payment of the Loan Fund Debt of the Municipality under the Act is by debentures, to be issued either by the Municipality or by Trustees appointed by the Lieutenant Governor in Council, and the debentures so issued are by the seventh secton " to provide for pay- " ment by the same sums per annum, as nearly as may be, " as the municipalities are now liable to pay " ; but at the same time they are declared valid against almost every pos- sible objection that could be urged against them. The debentures, under this Act in this case, have been issued by the Trustees, and not by the Municipality, and while providing for the payment of the interest at 5 per cent, every year, they provide for the payment of but small portions of the principal yearly, until twenty years shall have passed, when debentures to the amount of $144,977.42 will become due. Under the seventh section of the Act no more than two cents in the dollar on the assessment of 1872 can be levied in any year for the purpose of paying these debentures, and none of the debentures shall have more than twenty years to run. The assessment of 1872, as given to me, for the town, was $3,077,770.00, and two cents on the dollar, on that sum, would produce a sum that would soon pay off all the principal and interest of these debentures ; but only a small sum is actually required for the payment of principal until twenty years, when nearly all the principal is made payable 164 sheriff's fees. at once, and the amount is more than two cents in the dollar on the assessment of 1872 could possibly produce. Ths question then arises, are these debentures legal? and the further question, is interest payable on the debt in schedule B., or beyond the interest that by the Act is expressly made payable for 1873, is any interest payable for any subsequent year? or is the schedule debt to be made payable at the end of, or scattered over twenty years, without any interest ? I am of opinion that the debentures are legal, and that interest at the rate of five per cent, per annum, the rate fixed by the Lieutenant Governor in Council, is payable every year on the amount of the schedule debt until the whole debt is paid for. I consider that the Municipality is not limited in its assessment in any year to the mere amount falling due in that year, for principal and interest, under the debentures, as the amounts fall due, but that they may past a by-law in any year to levy any sum within two cents on the dollar, to provide for debentures thereafter falling due, so that in no one year shall it be necessary to levy a greater assess- ment than is allowed by the Act ; and that although in the last year, of the twenty debentures to the amount of $144,- 977.42 will be due, those debentures are perfectly valid, although it would be impossible to pay them all by an assessment of two cents on the dollar on the whole of the real and personal property of the town, according to its assessed value in 1872. * J. Hill YABD Cameron. Ist Dec, 1875. . ' i •: SHERIFF'S FEES. CASE.— ■■^^-'- •;>-■;■ -.-:- r ■ Is the Sheriff of a County entitled for the period from the passing of the Act respecting jurors and juries. Consoli- dated Statutes of Upper Canada ch. 31, until the passing sheriff's fees. ' 165 of the Act of the Legislature of Ontario 32 Vic. ch. 11, to the fees mentioned below, in addition to the fees mentioned in the former Statute sec. 161, sub-sec. 3, for every sum- mons served upon the jurors on any panel, the sum of twenty-five cents ? Sheriff summoning each Grand Jury for the Assizes or Quarter Sessions £ 3 Summoning each Petty Jury for do 6 These two sums of £3 and £6 having been fixed bj^ the Judges of the Courts of Queen's Bench and Common Pleas, under the authority of the Statute passed in the eighth year of Her Majesty's reign, entitled, " An Act to regulate the fees of certain district officers in that part of the Pro- vince called Upper Canada." OPINION — From the question put to me, it appears that this tariff was acted upon, and these two sums paid to the Sheriff, until the passing of the " Jurors and Jury Act " above, and that such payment was then discontinued on the ground that the allowance of 25c. for every summons served upon. the jurors or any panel had been substituted for it. The Statute 8 Vic. ch. 8, under which the Judges framed the tariff by which these fees are authorised is recognised by and included in the provisions of the Consolidated Statutes of Upper Canada, ch. 31, and was in force as to the tariff framed under it until that clause was repealed by the Ontario Act 32 Vic. ch. 11, but the Ontario Act enacts the new tariff of fees promulgated by the Judges on the 6th of June, 1868, in which tariff these two fees of £3 and £6 for sum- moning the Grand and Petty Jury for the Assizes or Quarter Sessions are allowed, and, as I understand, have, since 1868, been paid, in addition to the sum of twenty-five cents for the service of each summons under the " Jurors and Jury Act." Upon the best consideration that I can give to the ques- tion submitted to me, I am of opinion that the Sheriff con- tinued to be entitled to the fees of £3 and £6, as authorised 166 POWERS 10 ISSUE POLICIES, by the tariff, as well after as before the Jurors and Jury Act, and that the allowance in that Act of twenty-five cents for every summons served upon the jurors in any panel was not in substitution of those fees named in the tariff. There is no express repeal of these tariff fees, but on the contrary the existence of that tariff as a subsisting tariff is recognizeJ by the Judges in their amended tariff of 1868, which is confirmed by the Ontario Act. 32 Vic. ch. 11, and there is not, in my judgment, any more reason for refusing the allowance of these fees, before the Ontario Act was passed, than since its passage, as from that period they have been invariably allowed. J. HiLLYARD Cameron, 7th Dec, 1876. , POWERS TO ISSUE POLICIES. CASE.— We are directed by the Direc ors of the Mutual Fire Insurance Company of Clinton to obtain your opinion as to the powers of the Company to do business in the Lower Provinces previous to the Act of last session of the Dominion Parliament. The Company was incorporated in 1868 under the general Act then in force relating to Mutual Insurance Companies. In July, 1873, the Company commenced to do a premium note business in the Provinces of New Brunswick, Nova Scotia, and Prince Edward Island, and continued to do sucli a premium note business until the Act of last sebsion, when they discontinued business there, except to wind up the old business and collect the notes they held. A large number of the parties now are refusing to pay the assess* ment upon the premium notes given, and the questions now are these : 1. Had the Company, previous to last session, power to take such notes and issue policies in these Provinces? APPROPRIATION OF MONET BY BY-LAW. 167 2. If the Company had not power to do business in these Provinces, would they be liable upou the policies issued ui)on property there ? 3. Did the Act of 1868, 31 Vic. cap. 48, require Mutual Insurance Companies not doing a cash business, but a pre- mium note business, to obtain a license before doing busi- ness in the Maritime Provinces ? OPINION.— 1. I consider that a Mutual Fire Insurance Com- pany, incorporated as the Clinton was, had no power to issue policies out of the old Provinces of Canada, as the evident construction of the Statutes under which such companies were incorporated was to confine their opera- tions to Canada. See sees. 20, 83, &c. 2. Any policies issued by the Company on property out of old Canada were ultra vires, and the Company could neither recover upon premium notes granted upon such policy, nor be liable upon them. 3. The Clinton Company did not require to obtain a license under the Act 31 Vie. ch. 48. J. Hill YARD Cameron. 4th Dec, 1875. APPKOPRIATION OF MONEY BY BY-LAW. OPINION- By-laws have been passed to appropriate the monies to be paid to the Town of Brampton under the Act relating to the Municipal Loan Fund debts, passed by the Ontario Legislature in 1873. The first by-law. No. 6, appropriated the monies to make permanent improvements in the erection of a market house, &c. The second by-law. No. 25, repeals By-law No. 5, and appropriates the monies to the purchase of debentures issued by the town. The appropriation in both by-laws is within the Act, but 168 FRAUDULENT PBEFERENCE. both require the .sanction of the Lieutenant-Governor in Council. If the first has been sanctioned, and the second has not^ or cice versa, the one sanctioned stands good, and the other is invalid. If neither Las been sanctioned, then the one that may be sanctioned will be binding. = c . By-law No. 11 is to raise ^6,000 by debentures to aid in the erection of a market house building, &c., and I am asked if the debentures issued under the by-law can be applied, either directly or indirectly, for any other purpose, such as to pay or replace the bonus to the Credit Valley Railway instead of being used for the pui'pose for which this by-law directs them to be issued. My opinion clearly is, that they cannot be used or appropriated for any other purpose than the purpose author- ised by the by-law under which they were issued. J. HiLLYARD CaMBRON. 4th Dec, 1872. FKAUDULENT PREFERENCE. CASE.— In this matter A. and B., debtors of a bank to a large amount, are partners, each having one-fourth interest in the firm, which consists of C, A. and B. A. and B. are unable to pay the Bank out of the assets of their firm, and the Bank desires to know, in the first place, whether they have any, and if so, what recourse against the partnership interest of A. and B. in the firm, who, as a firm, are not indebted to the Bank? OPINION,— It is in the power of the Bank to make A. and B. insolvents, and if they are made insolvents such insolvency will work a dissolution of the jirm, although it will not make that firm, as a firm, insolvent also. FRAUDULENT PREFERENCE. 169 The property, which will then pass to the assignees of A. and B., will be the whole of the joint estate of A. and B., together with such part of the estate of the firm as A. & B. would be entitled to. This would render it necessary that the account of the whole partnership should be taken in order to ascertain what was to be administered, and would effectually terminate the existence of that firm, although it would not entirely do so if the other partner desired to go on with the assignee as a partner, although he could not in any way avoid the taking of the whole partnership accounts. In the second place, A. and B. now claim that the partner of A., being also the partner in law of B., is the separate creditor of A. & B., for advances made to each of them to enable them to go into the business, and they profess to have secured him, the partner, upoii their separate property for such advances, and the Bank desires to know if the Bank has any remedy in this respect. The first question on this point is, " Is this separate debt to the partner bona fide ? " If that be assumed, or it be deti'rmined to test it, the next question is, assuming it to be all right, will the security be good against the Bank ? Here has to be considered the question of fraudulent pre- ference, and all the various difficulties that may arise upon the facts upon such a question ; but I have no hesitation in saying that, on the circumstances of this case, I shall advise the Bank to investigate the \yhole matter with the more rigid scrutiny, both as to the fact of the existence of the debt, as a debt, and also as to all the circumstances attendant upon the security given for it. In addition to these points there are circumstances con- nected with the representations made of the partnership assets and liabilities by the partners, that may involve more serious consequences than the distribution of the estate or the setting aside of a fraudulent preference. - - 7 J. HiLLYARD Cameron. 28th Dec, 1876. 11 170 COPYRIGHT. COPYBIGHT. OPINION — The Copyright Act of 1 868 has been repealed by the Act of 1875, but copyrights under the former Act are valid as to the unexpired terras thereof. In June, 1875, before the Act of 1875 became law, a book was entered for copyright at Ottawa under the Act of 1868, which had been printed and published in England, but it was professed that the copyright had been purchased by and assigned to a firm in Canada. The copies of the book so printed at Ottawa had been printed in England, with the exception of the title page, which was piinted in Canada. No other reprint has ever taken place. Is such a reprint sufficient, under either Act, and can any person import the work and sell it in Canada irrespec- tive of any copyright so obtained ? In my opinion no copyright has been secured in this work under either of the Acts referred to. It is doubtful if the copyright has ever actually been purchased by the professed owner ; but if it has been, it has not been properly secured by the deposit of a copy of the book printed and published in England, and therefore the sale of the book involves no penalty nor liability on the part of the party selling. The Act also provides for the sale of the foreign reprint of any copyright work when such foreign reprint has been imported previous to the date of entry of such work upon the registry of copyright, which I understand to be the case with the work in question. . -. . J. Hill YARD Cameron. 28th.Dec., 1875. HYPOTHECATION' OF BONDS. CASE.— The A. & B. Eailway Company had an account with the Bank of Toronto; contractors were then building portions HYPOTHKCATION OP BONUS. 171 of their line. The Company had not money to pay the contractors for prosecuting tlieir work, and required supplies for the line, which they could not get without cash. They asked the Bank to advance them money; the Bank refused, unless secured ; the Company offered to deposit with the Bank bonds to be issued under their charter as security, the deposit to be made at 80c. on the dollar; the Bank agreed to advance on this promise by the Company ; agreements under the Company's seal were given to the Bank, providing for the deposit of the bonds so soon as tliey could be issued ; the Bank advanced monies from time to time, which were used by the Company in paying for building the line and for necessary supplies for carrying on tbe undertaking; bonds were duly issued under the provisions of the charter, and the agreed amount was duly deposited with the Bank as security for the allowances. The Bank now have the bonds, and the advances remain unpaid. On another occasion, when the interest on the bonds held in England matured, the Company had no money to pay it, and could not obtain any except on security. The Bank agreed to advance the money on the Company's notes being endorsed. The notes were given and endorsed, and the Bank made the advance, and the money was used to pay the interest. The bonds were issued and deposited as security at the rate agreed on. On some other occasions the Company were in want of funds to pay the men working on line and contractors build- ing the line, and could not get it excejit in the same manner as above referred to ; and some parties advanced monies on the Company's note, with a deposit of the bonds, others endorsed notes as above ; and the money raised was applied for above purposes, and in no case were bonds deposited to secure a past debt, always for raising money for the pur- pose of prosecuting the undertaking. Your opinion is requested as to t|ie validity of the above transactions, so far as the hypothecation is concerned. OPINION — I am in receipt of your letter, asking for my opinion on the legality of the hypothecation of the mortgage bonds 172 CAUSE OP ACTION. of the A. & B. Railway on the several occasions and in the various transactions mentioned in your letter, and in reply beg leave to state, that in my opinion the hy])othecation of the bonds in those several cases was perfectly legal and valid. , J. HiLLYARo Cameron. 10th Jan., 1876. CAUSE OF ACTION. CASE.— In a case of Shaw v. The Grand Trunk Railway, the •plaintiff stepped on to buff -r of post-of&ce car, and from there to baggage car, as he did so an engine on the track west of the baggage car struck the latter and brought it into collision with the post-office car. Plaintiff's left foot, which was on the post-office car, was caught by the Miller coupler between the buffers. The probabilities are, that his first squeeze was not severe. When first caught, plain- tiff saw the station master motioning towards the engineer with his arms, and station master was fully aware of and saw the accident. Plaintiff fully believes that station master signalled engineer to advance and release plaintiff, but engineer, seeing that some accident had occurred by the people running towards the train, got excited and reversed engine, and gave plaintiff a second squeeze. There is no doubt that station master saw plaintiff when first caught ; there is no doubt, also, that the plaintiff received a second squeeze, which he felt much more than the other, but the brakesman told plaintiff that after the first squeeze he was signalled to advance, and he did so, but as he did so the coupling of the car broke, another car rebounded back, and gave the second squeeze in this way. Plaintiff 's case is, that after seeing the accident and being signalled to go forward, the defendants reversed the engine and gave the second squeeze. Defendants admit they saw the first squeeze ; they admit also the signalling to go forward, but LIABrLITv OF CONTRACTORS. 173 say that they did so, that in doing so the coupling between the engine and baggage car broke, and the baggage car therefore bounded back and gave second squeeze to plain- tiff. OPINION — Upon the best consideration that I can give this case, my opinion is, that the plaintiff has no cause of action on the facts* stated against the Grand Trunk Railway. It is clear that his own negligence contributed to the injury in the first place ; and I see nothing in what is termed the second squeeze that, on the facts stated, takes the case out of the general rule that contributory negligence destroys any right of action. J. HiLLYARD Cameron. 12th Jan., 1876. LIABILITY OF CONTRACTORS. CASE.— Your opinion is required on the question in difference between the Water Works Commission and the contractors for the works, as to the liability of the contractors for the injury to the works arising from the lilting up of the conduit pipe after the works had been in the possession of the Com- mission, and used for the supply of water to the city from the 25th Nov. to the 7th Dec. Under the specifications attached to the contract in refer- ence to the conduit pipe, it is provided that " whatever plan the contractor may adopt of building and sinking this pipe, he must take the risk of making it tight. It will be sub- jected to the test of closing the end gates and pumping it dry, so that the engineer may pass through it from mouth to mouth. The expense of this pumping must be borne by the contractors." The engineer of the works, without reference to the con- tractor, proceeded to pump the pipe dry — the engineer and 174 ' TilABlLITY OF OONTIUOTOTIH. hiH olTlicorH liaviri^ tliiiH ]nteing an old and roHpectaldo houHO of twenty ycar^' standing. And uh to the two HliopkeeperH to whom li(;enK(!H liave been granted, tho condition iH inipoHed of eonfining tlie huHin(;HHof tiieir shop solely to the Hale of li(|Uor. We are dimiroiiH of obtaining your opinion in tliiH niatt(!r for the guidan(;e of our (dients, the rejeettid HhopkeeperH, aH well aH to the validity of the , Act of the (hitario LegiHlature restricting HhopH, nn to the best courHc for our clientH to ado])t to get the validity of the Act tcHted ; and also whtither the (JonnuisHionitrH have any j)Ower und«!r the Ontario Act to refuHe whohiwale licMJuneH. We hav(i adviHed our (dientH to tender the liicnuHcf I uHjtector the retail licenHe money, and to deiiuind a licenH(;. We HUppose that there are strong ntaHon.; in liUpi ort of the deciHitm that the Ontario liegislature can impoHo a liceuHe for revenue purpoHew, and thenjfore tiie tender of the license money is advisable. Of course the Inspector will riffuse to accept the money. What next should the shopkee lost sigbt of tbat tbe squatter and the Lessee may continue togetber to allow tbe occupant to obtain a Statutory Title, and tbus to cut tbe Company out of tbo tbree-fourtbs of tbe purcbaHo money wbicb would be coming under tbe Leas'). DUNKrN AOT. 181 It ifi alHo quito probablo that many of tlio liOHscoH irjay ullow the Hqiiatt. under this lAcinHn Hell in addition to hi» own nianufa(;ture, all liquors in wholesale parcelH, accord- ing to the terniH of his licenue ? '2. Can he uwe any liuilding on hirt property on Ferguson Htreet for that pur])OHe, or inuHt he conline himself to the building in which his business was carried on when the license! was granted ? 8. Can he import Hpirituous fiiquors in hogshoads, and on his own premises lic(;nse(l, rack into stnaller parcels or quantities, such as stated in the License, and send out in such parcels, or must ho import in the parcels or (pmnti- ties in which he sondn it out '/ OPINION.— My opinion on the foregoing case is as follows : — First. To the first (picHtion my annwer is " Yes."' Secondly. To the second question my answer is " That the sabi should be confined to the building licensed." Thirdly. To the third question my answer is "That he may import in hogsheads and draw off and send out in the smaller (pnintities authorised by the License." J. Hir.LYARD Camkuon. lUth May, 1876. LICE N 8.. ACT »« VIC. CASR- 1, Is License Act 39 Victoria, chapter 26 constitu- tional ? 2. If constitutional, have the persons who have been deprived of their Licenses any remedy in Law or in Equity ■* LICENHK ACT, 89 VIC. 188 for darnagcH or in(l(!ninity aKiiiiiHt tlio Provincial (iov(!rn- incnt, or thoir MunicipaliticB, for hucIi Iohbch uh tlioy Imvo HUHtained '/ OPINION. -- Th« Uritiwh North Aiiiorica Act, lH(i7, ^'ivcH to the Dominion Parlianuint tho oxciimive right to hii^inhitn upon all niattorh r<;lating to th^r) ntgtiiation of 'I'radu and ('oru- morce, and tin; Provincial LogiHlaturoH tho exclimivc right to l(!giHlato U])on all nnittbrH rulating to Muni(;i|)al hiHtitu- tioHH, Khoi), Saloon, 'I'avorn, A uction(!(!r, and othor IiiconH(m, in order to tho raiHiiig of a Uovenuo for Provincial, iiocal, or Municipal purpoHeH, and property and civil rightH, all to he exerciaed within tho Provin■•■ i-;:-; ■■ >v.; OPINION.— ':-'a;;;-'^';. '.,;.:"■ ''i'.:'.\-yx':^' In answer to your communication on the subject of the rights of any bondholders who have not come into the arrangement, sanctioned by the shareholders, and exchanged their bonds for those of the new issue, and asking me what course the Company should pursue in reference to such per- sons, I beg leave to say, that in my opinion the Directors should offer to those persons bonds and stock in the same proportion that they have given them to those persons who have surrendered their old bonds, and if they are refused the Directors should await such action as those persons may determine to take. J. HiLLYARD Cameron. 22nd June, 1876. NOTICE TO INSURERS. CASE — S. C. & Sons, of ki^^gston, had two policies with us, as follows: No. 56077, for $4,000 for three years from the 24th Dec, 1873 ; and 56671, *■ one year from the 10th Feb., 1874, $2,000. The former was reinsured in the Canada Farmer's Insurance Company for $2,000. The yearly policy was renewed from year to year. In October, 1875, C. & Sons took in a partner, and the firm became C. &, W., CANCPJLLATION OF POLICIES. * 187 but we did not receive any notice of the change until the 14th Feb:, 1876. W., through failing health, has since gone out of the firm, but no dissolution has taken place formally. Policy 56671 was renewed in Feb., 1876, in the name of C. & W., but no new policy issued or endorsement made. The fire occurred on the 12th June, 1876, and S. C, as a member of the firm of C. & W., claims under both policies. The question arises, whether this Company is liable under policy 56077, and also how far the liability of the reinsuring company is affected by want of notice to them of change of firm. OPINION.— I am in receipt of yours of the 22nd inst. I am of opinion that on the facts stated therein, that the Company is discharged from policy No. 56077, as any change of part- nership which affects the property insured should always be notified to the insurer. J. HiLLYARD Cameron. 26th June, 1876. CANCELLATION OF POLICIES. CASE.— I am instructed to obtain from you a formal opinion on the general subject of cancellation of policies for the information of the Board of Directors. It appears to me that the following points call for consideration ; 1. What policies require cancellation. (a.) Policies written, but not issued, on account of subse- quent objections. {b.) Policies issued and found undesirable. (c.) Policies under which suspicious claims have occurred. (rf.) Policies void from any and what other causes. 2. Assessments. When and for what cause should we cease to assess on a P. N. policy under which a claim has arisen ? 188 CANCKLLATION OF POLICIES. 3. Mode of cancellation, whether by the Board alone or by any other agency. (a.) The Examining Committee at their weekly meetings. {h.) The Managing Director. (c.) One of the Inspectors or the Secretaiy. 4. Repayment of premium any time actually insured. How to be made or tendered. Should any other points occurr to you, will you kindly give it your attention? - OPINION.— The points for consideration in your letter are : 1. The cancellation of your policies ; 2, the circumstances under which the Company should cease to make assess- ments on premium notes ; 3, how repayment of premium should be made or tendered. 1. Cancellation of policies. No policy requires cancel- lation which has not been actually issued — that is, which has not been completed with the seal of the Company at- tached. Any policy which has not become void by any act of the insurer must be cancelled if the Company desire to avoid liability upon it. Any policy v/hich has become void by an act of the assured does not require cancellation. Any policy which becomes void only at the option of the Directors should be cancelled, if the Directors wish to exercise that option. An interim receipt stands on the . same footing as a policy while it is current. The Board of Directors may confer upon the Examining Committee and Managing Direc- tor the power of cancelling policies, but such policies, when so cancelled, should be reported to the Board of Directors and the cancellation confirmed. 2. When assessment should cease. When the premium note has been assessed to its full amount, when the policy has been cancelled, when the policy has become void by the act of the insured and the Company intend to insist upon its avoidance. 8. Repayment of premium. Strictly payment or tender should be made in specie or Dominion notes by an ofi&cer or agent of the Company. J. HiLLYARD Cameron. 15th July, 1876. €ONrraMATORY DEEDS. 189 CONFIRMATORY DEEDS. CASE.— We have a number of applications from parties in- terested, who want us to make a confirmatory conveyance in each case. This is, of course, out of the question, as we should not know what interests we were interfering with. No doubt the laws of the Province on the subject of plans and altered plans in the registry offices are very strict, and necessarily so ; but those laws cannot surely prevent a land- holder from conveying *' on view" any real estate, notwith- standing it may not be strictly described for the registry office. The fact remains the same, that the vendor sells to the vendee certain property which he has set out by survey and placed the vendee in possession of. The vendee goes into possession, and receives and accepts the deed. Surely this kind of transaction cannot be invalidated by mere registry office regulations ; and one would suppose a proper document ought to be admissible evidence of the intention of the parties. ,' , . ■ OPINION.— ■--■■■■■■ ■ ' - '•'■-■'■ I think that you cannot very well execute a general form of conveyance, but that any deeds that are given should be given to the parties respectively and at their expense, as to enquiry into present title, kc. As I under- stand the matter, all these lots, whether taken by the old one or by the new one, have been actually conveyed by the Company to various parties, and those parties, therefore, can, by their own acts, and independently of the Company, change the land among themselves, and make the whole of the titles right without any further conveyance from the Company. If, however, they all prefer confirmatory deeds from the Company, then I would advise them to be given only to each party separately, and at the expense of the parties requiring them. J. HiLLYARD Cameron. 2nd Aug., 1876. 190 GOVERNMENT COMMISSIONS. GOVERNMENT COMMISSIONS, OPINION.— Having been required by the N. R. Company to advise them in reference to the Commission issued by the Dominion Government for the investigation of various ac- counts of the Company, with power to the Cominissioners to summons and examine witnesses on oath, and call for the production of any books or documents of the Company, I beg leave to state for the information of the Board, that in my judgment, the Government have taken an erroneous view of their powers in the issue of this Commission. The Statute 81 Vic. ch. 38, under which it is recited that the Con nission is issued, authorises the issue of a Co n- mission by the Government, when it -is deemed expedient to enquire into any matter connected with the good govern- ment of the Dominion or the conduct of any part of the public business thereof, and in no other case, and I am unable to understand how the accounts or affairs of the N. R. Company come within either of these classes of subjects, merely because ihe Government is a creditor of the Company, and has a lien on the railway, as stated in the Commission, a lien to which Parliament has given a special protection, which it would have been hardly neces- sary to afford, if it had been considered possible that this extraordinary power of the crown, could be invoked on the suggestion of any one, to investigate the Company's affairs. In addition to this position the Parliament of Canada, have sanctioned an arrangement between the Government and tne Company to compromise the Government Lien of A'475,000 stg, for £100,000 stg., have extended the time for the payment of the i^ 100,000 to a day which has not yet arrived, and have declared that on that payment the Company shall be released from all further liability, and the Lien of the Crown shall be discharged. The Directors are aware, although the Government may not be, that a Bill has been filed in Chancery in Ontario,, against the Managing Director of the Company and the GOVERNMENT COMMISSIONS. 191 Compam' itself, to investigate and enqaire into the very matters, which are to be made the subject of this Govern- ment enquiry, and it may be prejudicial to the defence of the Company in that suit, that an investigation shall be made by the Commission, before the suit is brought to a hearing. r The Directors are also aware that the Act of Parliament under which the debt of the Company to the Crown was confirmed, ^n*ovides for the appointment of a Government Director, whose special duty it iB, to look after the interests of the Crown in the Comj any ; that the Government has appointed such a Director, who is able, by his position, to make all the investigation and enquiry sought for by the Commission, except to examine witnesses upon oath, which he may have quite as good a right to do as tiie Commis- sioners themselves. The Board are further aware that tlie issue of a Govern- ment Commission and an enquiry thereunder into alleged irregularities in the accounts, and false and fraudulent entries in the Books of the Company, to the prejudice of the Government Lien, is a matter of such grave moment, that it may seriously atfect the interests of the Company, and render nugatory all their efibrts to obtain the money necessary to pay the i;100,000 to the Government, and to carry out the other objects of the Company provided for by the Act of Parliament. I therefore advise that under these circumstances and with the view also of communicating with the Shareholders and Bondholders, who are the constitutents of the majority of the Directors, and whose interests may be prejudicially affected by these proceedings, the Government should be informed of the points which I have brought to the notice of the Board, and requested to suspend any action under the Commission, until they have been considered by the First Minister, and if necessary the Company heard there- on, and also an opportunity given to the Board to com- municate with their constituents on the sutiject, the Board themselves undertaking to pursue at once a searching in- quiry into any matters which may have been brought under 192 DIVERTING COURSE OF RIVER. the notice of the Governmeot, and which the Government may desire to have investigated. I need hardly add that the action of the Government places the Board under a grave responsibility as to the course to be adopted. If my view of the Commission be correct, every oath administered will be extra judicial, and every witness summoned may refuse either to appear or be sworn, and every Shareholder or Bondholder may file a Bill to prevent the Company from submitting to the inquiry or allowing their books to be produced before or examined by the Commissioners. J. HiLiiYARD Cameron. 20th July, 1876. DIVERTING COURSE OF RIVER. CASE.— About twenty-five years ago we purchased a mill site on Snake River, and buili thereon a Saw and Grist Mill in a short time, we found that the stream did not supply suflticient water for the Mills, and in a year or two after we built the Mills, or about twenty-three years ago we built a reserve dam to retain the water in the river at a higher level which we could draw on in the dry season, the banks of the river being very low allowed the water to spread over on each side, as the land flooded was Crown Lands, and at that time considered of very little value, no objection was mitde. Recently tne lots bordering on the stream have been settled on, and the owners wish to get the water off the flooded portions, they have been advised by legal authority that they cannot compel us to remove the dam on accounnt of the length of time It has been up, failing in this they are trying to divert the stream above our mills into another channel, which owing to the formation of the country can be easily done. As we have spent upwards of twenty-five thousand dollars in the erec- tion of buildings and machinery, which would be rendered worthless could tho stream or any considerable portion of BONDS UNDRR 38 VIC. CH. 57. 103 it be diverted, we must resist as far as possible. What we ^ish to know is to what level we can restrict them in the attempt to drain this land, the owners of the land say that they can drain all the water over the original bank of the stream, we wish to confine them to the level the water has stood at for the last twenty-one years. If the law would bear us out in deterring these parties from draw- ing off any water that naturally flows into the stream it would be of great benefit to us. Such legal advice as we can obtain here give the opinion that the stream cannot be diverted, as we have considerable at stake in the matter we wish to have advice from the highest legal authority. OPINION.— I am in receipt of your letter requesting my opinion on the case stated therein, in reference to the right of parties, who are Grantees of the Crown, to direct Snake River from its natural channel, and thereby deprive you of the flow of the water to your mill, which you have enjoyed in its present state without interruption for upwards of twenty years. In my opinion on the facts stated the parties have no right to divert the stream to your detriment, and you will be entitled to obtain an injunction from the Court of Chancery against them, if they attempt to do so. J. Hill YARD Cameron. 23rd of August, 1876. BONDS UNDER 38 VIC. CH 57. OPINION — I have carefully examined the various Statutes affect- ing T. & N. R. Co., and the proceedings taken by the Com- pany under the Ont. Stat. 38 Vic. ch. 57, to authorise the issue of $900,000 of the bonds of the Company, and I am of opinion that every thing that is necessary has been done to give validity to such parts of the said amount of $900,000 12i 194 REDUCTION OF SPECIAL RATES. of bonds as the Company has alreaiy issued, and of such part up to the said extent as may be hereafter issued by the the authority of the Board of Directors, and that such debentures as have been issued in accordance with the said proceedings are legal and valid, and form part of a first charge on the said railway and property, according to the terms of the said Act 38 Vic. ch. 57. J. HiLLYARD Cameron. 26th Aug. 1876. REDUCTION OF SPECIAL RATES. CASE.— It has been submitted to me that certain by-laws of the City of Toronto provide for the payment of the principal and interest of debentures issued thereunder as required by law by a certain special rate in the dollar, to be levied yearly and calculated at eleven per cent., being six per cent, for interest, and five per cent, for sinking fund, for the ulti- mate payment of principal, the debentures being payable at the end of twenty years ; and that such rate, as far as it is applicable to the sinking fund, has produced and is produc- ing so much more than is required for the sinking fund, that the sum may be reduced from five per cent, to three per cent., and still produce a sufficient sum to extinguish the debt within the time limited, and I have been requested to advise whether in any, and if so, in what manner, by by- law or otherwise, such reduction can be effected. OPINION.— I am of opinion that such reduction may be made, but only by a by-law which shall receive the sanction of the Lieutenant-Governor in Council, and shall contain the DEBENTURES BY WAY OP LOAN. 19fi various recitals and statements required by the Municipal Act in the case of the passage of by-laws for the reduction of special rates. J. HiLLYARD Cameron. 26th Aug., 1876. , DEBENTURES BY WAY OF LOAN. CASE.— ,,.■'.,.,,. .ic'^-.,..;;-.;:.,./;:,,,;, /..,,■;,,,■;..•„ My opinion is required upon the question, whether a municipality can issue debentures by way of loan to a person for establishing and maintaining a manufacturing establishment within the bounds of said municipality, under the subsection added to sec. 349 of 31 Vic. cb. 30 as follows : "For granting bonuses to any railway, and to any person or persons, or company, establishing and maintaining manu- facturing establishments within the bounds of said munici- pality, and for issuing debentures, payable at such time or times, and bearing or not bearing interest, as the munici- pality may think meet for the purpose of raising money to meet such bonuses." OPINION — I am of opinion that the Municipality has a legal right to grant a bonus by way of loan for the purpose stated. The law grants a Municipality the power to make the gift absolutely, and it certainly does not prevent the recipi- ent of it from entering into an engagement with the muni- cipality to repay it. It is equally a bonus whether it is a gift or a loan, and if the debentures are issued according to the terms of the municipal law, they will be perfectly valid. J. HiLLYARD Cameron. 12th Sept., 1876. 196 MAINTAININO ROAD. MAINTAINING ROAD. CASE — The point on which the Council wanted your legal opinion was respecting the liability of the Corporation to maintain the road which runs along the banks of the River St. Clair on the front concession. In the original deed from the Crown to the settlers whose lots front the river, a chain width was reserved across the lots for a public road on the river bank. In many places the action of the water has entirely washed away the original road allowance. In such cases, can the Council of Moore exact another road allowance free of cost, or must the right of v^ay be bought from the parties inter- ested in the usual w,ay of orocuring land for public uses? Some have asserted that the reservation of a chain width for a public road was made for all time, irrespective of future encroachments of the river. The list of parties to whom the patents were issued, with the dates thereof, sent you, will show how the matter stands in the Crown Land Office. Of course the road must be kept up for public travel, being one of the most public thoroughfares in the county along the western frontier, and the Council have at great expense built and constructed embankments for its protection in several places, but were the road not there tl^e settlers would have to protect the lands at their own expense. Is it the duty of the settlers or the Council to protect the road ? As the road runs on the river bank, the protection of the road protects the fronts of the farms. Another difficulty the frontier townships have to contend with regarding this road is, that whereas the other boundary lines ot roads in the County of Lambton are maintained equally by the counties interested, the local municipalities through which this road runs have to support it at their own expense, there being no municipalities on the west to co-operate with them. Could not the County Council of Lambton be made legally to contribute a share of the expense of keeping the road in repair? Running on the western frontier, with the River MAINTAININO ROAD. 197 St. Clair and Michigan on the one side, fiome are of opinion that the Government should assist in keoping the road pass- able. OPINION.— ..:-■:;:■''■' ■ .''" - According to citatement of facts, in the original grants from the Crown a chain in width was reserved across the lots on the river bank for a public road, and that reserva- tion has been used as a public road, and been maintained and kept in repair by the Township, and the action of the waters of the river having in many places washed it away, the question has arisen whether the Township can take land for the road in such places, to replace the road, or whether the land so taken must be paid for by the Town- ship. ' In my opinion the Township is entitled to take the land in such places without making any compensation to the owners. Independently of the provision in the original grant from the Crown, the road through the land is by the Common Law a way of necessity and every one can use it, but the Township Council must in such case, maintain and keep in repair the land so taken, in the same way as any other part of the road. The County Council cannot be compelled to contribute maintenance of the road as there is no provision for such a case in the Municipal Law, but they can contribute if they think proper, as there is express provision in the Munici- pal Law enabling them tc do so. J. HiLLYABD Cameron. 28th Sept., 1876.