Trust and Loan Co. v. Lawrason et al

than to any one else in that election applies the maxim, as well be repealed, if such a defence could prevail.

E ON I am of opinion the appeal should be allowed with Taeau, costs, and this election avoided with costs of the petition J. and trial thereof in the election court against the respondent.

Had this charge of fraudulent contrivance under sec.

95 not been established, the election would still have had to be set aside on the charge of intimidation, as shown by Mr. Justice Strong's judgment, in which I entirely concur.

Appeal allowed with costs.

THE TRUST AND LOAN COMPANY

APPELLANT;

OF CANADA ..........

APPELLANT.;.18 *Dec. 7,8. MILLER LAWRASON, et al., ExEcu- TORS OF THE LAST WILL AND TES- RMay.

TAMENT

OF GEORGE WILSON

RESPONDENTS.

DARNLEY...

...........

ON APPEAL FROM THE COURT OF APPEAL FOR ONrARIO- Mortgage-Rev. Stats. Ont., ch. 104- Wrongfil Distress for Mort.

gage money-Attornment clause.

A mortgage made in pursuance of the Act respecting Short Forms of

Mortgages, R. S. 0., ch. 104, in addition to all the clauses mentioned in the statute, contained the.following provision and variation: "And the mortgagor doth release to the company all his claims upon the said lands, and doth attorn to and become tenant at will to the company, subject to the said proviso."

Among the statutory clauses in the mortgage were those

W. J. Ritchie, C.J. ; and Strong, Fournier, Henry,

Taschereau and Gwynne, JJ.

(1) Young v. Smith. 4 Can. S. C. R. 494.

TnaTr

APPEAL from the Court of Appeal for Ontario (1). The following special case without pleadings was submitted by consent of the parties:

" This is an interpleader issue directed by two several orders bearing dates respectively on the 22nd day of January, A.D. 1880, and the 18th day of February, A.D. 1880, and made by Robert G. Dalton, Esq., clerk of the Crown and Pleas, Queen's Bench, for the purpose of determining the right of the plaintiffs as against the defendants to the sum of $1,596.79, which has been paid into court in the cause of Lawrason V. Christie, and by the consent of the parties and by the order of the said Robert G. Dalton, bearing date on the 11th day of May, A.D. 1880, the following case has been stated for the opinion of the court.

"1. Under and by virtue of an indenture of mortgage, bearing date the 23rd day of March, A.D. 1877, and made between The Hon. David Christie of the first part, the plaintiffs of the second part, and Margaret R. Christie, wife of the said Hon. David Christie, for the purpose of barring her dower only, of the third part, of wlich mortgage a true copy is hereto annexed, the plaintiffs became and have ever since the date of the (1) 6 said mortgage remained, mortgagees of the lands and last premises in said mortgage described, for securing payment to them of the moneys which the- said mortgage purports to secure at the times, and in the manner in the said mortgage provided for payment and the said mortgage was not executed by the said mortgagees.

" 2. The said The Hon. David Christie remained in actual possession of the said lands under and pursuant to the provisions of the said mortgage from the date thereof until after the directing of the interpleader issue herein.

" Under and by virtue of a writ of fieri facias against, goods tested the 7th day of February, A.D. 1879, and issued out of the Court of Queen's Bench for

Ontario, directed to the sheriff of the county of Brant for the having of execution of a judgment of that court recovered by the defendant Miller Lawrason in an action at his suit against the said The Hon. David

Christie, and under another writ of fleri facias against goods, tested the 18th day of February, A.D 1879, and issued out of the county court of the county of Brant, directed to the said sheriff for the having of execution of a judgment of that court recovered by the defendants,

William Burrill, John Heaton and Henry Wilson Darnley as executors of the last will and testament of* George

Wilson Darnley, deceased, in an action at their suit against the said The Hon. David Christie, and under two other several writs of feri facias against goods tested respectively on the 18th day of February, A.D. 1879, and the-24th day of April, A.D. 1879, and issued each out of the county court of the county of Brant, and directed to the said sheriff for the having of execution of two several judgments of that court recovered by the defendant Cockshutt in two several actions at his suit against the said The Ilon. David Christie, the said sheriff did in the month of December, A.D. 1879, seize and take in execution all the goods and chattels of the said The Hon. David Christie, then lying and being upon the said lands, and he has since under and by virtue of the said writs sold and removed the said goods and chattels from the said lands.

" 4. The plaintiffs, before the date either of such sale or of such removal, but some days subsequently to such seizure as aforesaid, and while the sheriff was in possession under such seizure, gave notice to the said sheriff that they claimed to be landlords of the said lands, and that the said the Hon. David Christie was their tenant, and that there was then due to them from and payable by the said the Hon. David Christie for rent of the said lands for several years preceding the date of the giving of the said notice, a sum greatly exceeding $2,720, and that they required the said sheriff, before removing any of the said goods and chattels, to pay to them the sum of $2,720, as and for one year's rent of the said lands for the year next preceding the giving of the said notice. " 5. The said sheriff, after the giving of the said notice, applied to this court for relief under the Interpleader Act, when an order was made by the said Robert G. Dalton, bearing date 22nd day of January, A. D. 1880, and ordering the said sheriff to pay into court in the said cause of Lawrason v. Christie, and out of the proceeds of the sale of the said goods and chattels, a sufficient sum to cover the amount of the said execution of the defendant Laiorason, together with interest and costs up to the time of such payment, and the taxed costs of the application for the said order, to abide the result of an issue between the plaintiffs and the defendant Latorason, and that he should pay over to the plaintiffs the balance of the proceed~s of the sale of the said goods after deducting thereout his own fees, poundages and incidental expenses, together with the moneys so directed to be paid into court as aforesaid; provided that such balance should in all not exceed the said sum of $2,720. " Afterwards, upon the application of the defendants Cockshutt, Burrill, Heaton and Darnley, an order was made by the said Robert G. Dalton, bearing date the 18th day of February, A. D. 1880, whereby it was ordered that the lastly mentioned order be amended, and that the sheriff should pay into court a further sum sufficient to cover the amount of the said several executions of the defendants Cockshutt, Burrill, Heaton and Darnley, together with interest thereon and costs up to the time of such payment, and that the said defendants should be added as parties defendants to said issue. " The said sheriff has, in pursuance of the said orders, paid into court as thereby directed the sum of $1,596.79, and has paid to the plaintiffs. the sum of $1,180.91, besides which sum the plaintiffs have not since the making of the said mortgage been paid anything on account of the moneys thereby secured, either for principal or interest, or by way of rent. The question for the opinion of the court is, whether the plaintiffs by virtue of the said mortgage or anything therein contained and of the facts hereinbefore set forth, are entitled as against the defendants to any portion of the money so paid into court as aforesaid in the cause of Lawrason v. Christie.

The main question that arises in the present case is one of construction of the mortgage.

Is there a tenancy at a fixed rent ? The statutory distress clause contained in the mortgage in question, coupled with the possession had by the mortgagees pursuant to the provisions of the mortgage, created the relationship of landlord and tenant between the mortgagor and the respondents: Royal Canadian Bank v. Kelly (1). By the wording of the distress clause in question, rent and interest are equivalent and interchangeable terms. The effect of this is to reduce the arrears of interest to the extent of whatever amount of interest may be collected by way of rent.

This avoids the difficulty raised in some of the cases decided under other distress clauses, where it was objected that there was no provision for the application of the rent in payment of the interest. This equivalence of the rent to the interest also establishes the fact that the rent is fixed and certain, for there is no question but that the interest reserved by the mortgage is fixed and certain, and so must that be which is its equivalent. . The distress clause provides that as soon as the interest falls into arrear it may be recovered " by way of rent reserved." Upon reference to Webster's Dictionary, under the word " way," it will be found that the phrase "by way of " is equal to the phrases "as being," ' in the character of," which latter is the meaning given to it by Mr. Justice Gwynne in Royal .684

Canadian Bank v. Kelly where he considers that the rent is fixed by the use of this phrase. Upon substituting either of these two phrases, " as being," " in the character of," for its equivalent as used in the statutory distress clause, it will appear that the distress clause indicates not only the mode in which the overdue interest may be recovered; but also, the (haracter in which it is to be recovered, viz., as a rent (2).

That part of the clause which provides that the time for payment of the principal money may be extended upon. payment of arrears at any time before judgment shows that the clause in question was intended merely as a license to the mortgagees to commence action upon default, but that the moitgagees' right to treat the mortgagor as a trespasser is not complete until judgment is obtained, and in this case no action or suit was commenced after default and before the directing of the interpleader issue herein,

Clause 2 of the special case states that the mortgagor " remained in actual possession of the said lands under and pursuant to the provisions of the said mortgage from the date thereof until after the directing of the interpleader issue herein," i. e., as tenant at will.

A tenancy at will at a fixed rent having been created upon the execution of the mortgage, and the will never having been determined as is shown by clause 2 of the special case the same tenancy at the same rental still subsisted after the default (3).

The attornment clause in the mortgage expressly creates a tenancy at will, subject to the proviso for payment of interest, and the statutory distress clause provides that the mortgagees may distrain for interest " by let J.

way of rent reserved," which should be constructed as and for rent reserved.

These three clauses, when read together, create a tenancy at will at a fixed rent. An attornment clause in a mortgage creates the relation of landlord and tenant, with all its incident remedies Jolly v. Arbuthnot ; Morton v. Woods ; ,Re Stockton Iron Works Furnace Co. (3); Exparte Bank of Whitehaven. Re Bowes (4); see note to Keech v. Hall Another point taken is that we do not come within the provisions of 8 Anne, ch. 14, sec. 1, and as we claim under that statute we must show that we come within the meaning of that statute. There is an express case which proves conclusively that the statute of Anne extends to the case of a tenancy under an attornment clause in a mortgage.

Yates v. Ralledge (6).

The same principle was acted in the case of Monroe v. Build (7). Another objection taken was that appellants claim was prejudiced by the Chattel Mortgage Act.

In order that an instrument may be avoided by the Chattel Mortgage Act, it must be strictly within the terms of that act. The instrument in question here is not a " mortgage or conveyance intended to operate as a mortgage of goods and chattels."

In England it has been held that such an attornment does not infringe upon the Bill of Sales Act.

See re Stockton Iron Works Furance Co.(8); re Bowes (9); see also Patterson v. Kingsley (10); and McMaster v. Garland (11).

The proper construction of this instrument may be best arrived at by applying the ordinary rules which judges have framed for the interpretation of written contracts.

See Morton v. Woods (12).

Q.

The attornment clause here, if not construed together with the distress clause, so as to create a tenancy at a aRUST rent certain, will either be of no effect or will be a clausula damnosa so far as the mortgagees are concerned, rendering them liable, in the character of mortgagees in possession, to account to subsequent incumbrancers for rents and profits which by the ter .as of the contract they have debarred both themselves and the subsequent incumbrancers from collecting. The instrument being intended solely as a security for money, it could never have been intended by the parties to it, that it should have any such prejudicial effect upon the mortgagees, and the above authorities show that it should not be treated as inoperative.

It would therefore appegr that the attornment clause and the distress clause must be so read and construed together as to create a tenancy at a fixed rent.

Phillips on Insurance (1); See Am. Express Co. v. Pinckney (2) ; Harper v. Albany Mutual, 4-c., Co. (3); Gumm v. Tyrie (4).

The mortgage in the present case conforms to the Statutory Short Form of Mortgages throughout, with the addition, however, of some further clauses, one of which is the attornment clause.

If this latter clause should be thought to conflict with any of the clauses contained in the statutory short form, then upon the authority of the above citations, it should be treated as the governing clause. Moreover, it is stated in the special case, that the mortgagor " remained in actual possession of the said lands and premises under and pursuant to the provisions of the said mortgage from the date thereof until after the directing of the Interpleader issue herein," and it also appears therefrom J. Ill.; that default was made in payment of the mortgage Moneys within a few mouths after the date of the mortgage, while an examination of the mortgage itself will show that the attornment clause contains the only pro- Aaso. vision under and pursuant to which the mortgagee could remain in possession after default.

A point is made in the judgment of Patterson, J., also in the judgment of Burton, J., of the fact that in the long form of the statutory distress clause, from which the lastly quoted words are taken, the said words are followed by the clause "as in the case of a demise," and it is argued from this that it is indicated by the lastly mentioned clause that the statutory short form of mortgage does not create the relationship of landlord and tenant between the mortgagor and mortgagee. Whether this be a proper deduction or not it has no bearing on the present case, for here there is a demise, or what is equivalent to it, an attornment by the tenant. All that is here required is to show that there is a fixed rent.

It was also objected in the court below that the various statutory clauses relating to possession contained in the mortgage in question are inconsistent one with another, and inconsistent with the attornment clause.

I submit, in case of any such inconsistency, the attornment clause should prevail. It is not necessary for the appellants to show the the exact nature of the tenancy under which the mortgagor held; it is sufficient if they show that there was a tenancy of any kind and that it was at a fixed rent. That there was a tenancy of some kind is sufficiently shown by the special case when it is admitted that the mortgagor " remained in actual possession of the said lands under and pursuant to the provisions of the said mortgage from the date thereof until after the directing of the interpleader issue herein "

. The appellants in the case make their claim under the provisions of the statute of Anne, ch. 14, sec. 1, and in order to succeed they must show: 1st. That the relation of landlord and tenant was created; 2nd. That there was a fixed rent; and 3rd, that the rent was fair and reasonable.

The mortgage is made in pursuance of the Act respecting short forms of mortgages and the clause upon which appellants rely is what they allege to be the attornment clause. That clause does not refer to any rent, and if the intention of the parties had been that the interest should be the rent, it would be likely that the words " at the rent fixed by this pro ision ' would have been added. That clause gives only the right to take possession of the land, and the distress clause in the mortgage in question is a mere license to the mortgagees to distrain the goods of the mortgagor for arrears of interest.

The ground which the Court of Appeal took was, that if effect was given to this clause as creating the relation of landlord and tenant at a fixed rent, then it would be holding that the intention of the parties was to confer and secure a remedy against the goods of a stranger that might happen to be on the premises. If such had been the intention of the parties, would the mortgagees have allowed three years of interest to accrue;

for the mortgage was given in 1877, and it was not until after the seizure by a judgment creditor, that the present appellants moved in the matter.

The mortgage in this case was given and accepted as a security for moneys lent on the security of the lands mortgaged, and the courts have always required any extraordinary right that may be reserved to the mortgagee to be such as is a fair and reasonable one, having regard to the nature of the security.

It has been considered right that a mortgagee should have the same security for his debt when the mortgagor is in possession as he would have if the mortgagor's tenant or a stranger was in possession, the mortgagee being entitled, on default of payment of interest, to demand and recover from the tenant or stranger the rent which would otherwise be paid to the mortgagor, who was entitled to the possession of the premises until default should be made in payment of the mortgage. The clause of attornment of the mortgagor to the mortgagees was then devised, and has been very extensively used, and this was done because it was conceded that the proviso allowing the mortgagees to distrain for arrears of interest amounted to nothing more than a license to seize, and it has been well decided, it is sub-; mitted, that the term in the intended form of the covenant that the mortgagees may distrain, and by distress warrant recover, by way of rent reserved, as in case of a demise of lands, the interest due, together with the costs attending such distress as in like case of distress for rent, means no more than that the like proceedings may be taken to recover the interest as may be taken when a distress is made for rent.

This proviso,. as appears from the language. used in the short form, is only intended to give the right to distrain for arrears of interest and not rent; and it is submitted that if any other construction is put upon this proviso, it will become repugnant to the other terms of the ordinary mortgage (apart from the attornment clause), all of which show that the essential matters provided for are payment of the principal money secured thereby, with interest thereon.

There is no demise of the premises by the mortgagees contained in this proviso, nor is there any agreement that on default a tenancy shall be created, and that the interest shall then become rent, nor is it alleged that ai there is any interest in arrear.

The case of Clowes v. Hughes (), shows that there was no subsisting tenancy here. See also Walker v. Giles (2). Moreover, there is an inconsistency and repugnancy in the clauses of the said mortgage ; for how can the tenancy at will be reconciled with the provision that in default of payment for two calendar months the mortgagees may, on one calendar month's notice, enter on and lease or sell the'said land ?

Under the attornment clause, the mortgagee is entitled, if at all, to the rental of the lands mentioned in the mortgage from its date, while under the other clause just referred to, the mortgagor, being entitled to quiet possession until default, the mortgagee cannot enter on and lease the said lands, in order that he may receive the rents and profits of the said lands, until there is default of payment for two months, and then only on giving one month's notice.

The mortgagee, therefore, could not enter at will, as he would have the right to do if a tenancy at will was created.

If the mortgagor abandoned possession of the lands and default was made, the mortgagee could not obtain possession thereof and make a lease until after two months' default and one month's notice had been given. But if the attornment clause in the mortgage in question is held to be a valid one, the mortgagee would be entitled at any time to give notice of the termination of the tenancy at will and take possession.

The attornment clause cannot be construed to confer two such distinct rights inconsistent with each other.

My learned friends have relied on the case of the Royal Canadian Bank v. Keliy but the judgment of the Court of Error and Appeal, in that case, reversed the decision of the Court of Common Pleas that the statutory distress clause in mortgage, under the Short Forms Act, creates the relationship of landlord and tenant between the mortgagor and the mortgagee. Then it is contended that the proviso as to distraining for interest applies and aids the attornment clause as before mentioned.

This distressing clause cannot be held to be " the said proviso " mentioned in the attornment clause.

This attornment clause, however, contains no allusion to rent, and by itself it could give no power to distrain. It is an excrescence upon, not an integral portion of the mortgage, and there is no portion of the distress clause, either in its short or extended form, that gives the right to distrain for any rent. Another reason why appellants cannot succeed is, that by the terms of the mortgage, upon default of payment of interest the principal became due, and default was made on the twenty-third day of March, 1877, as the interest was payable in advance and the mortgage money became wholly due and payable prior to the said seizure, and the mortgagor still remaining in possession could not be a tenant, but was a trespasser, and the interest was assessable as damages only.

Finally, we submit that it is against public policy that any such power as is claimed in this case should be given to mortgagees.

Such a power is in direct contravention of the Chattel Mortgage Act, and if allowed would seriously impair the usefulness of that Act.

Mr. Marsh, in reply, relied on Morton v. Woods (1); Re Threlfell (2); Pinhorn v. Souster (3); Brown v. Metropolitan Counties, Society (4) ; Turner v. Barnes (1) L 3 Q. B. Q. (3) 8

(5) & S.

Whatever may be the effect of the distress clause standing alone, upon which there appears to have been a difference of judicial opinion, I think there can be no doubt as to the construction and effect of the attorn- ment clause and the distress clause in the same instrument. In construing these two clauses, we must take into consideration the whole scope and object of the instrument, and not regard the position of the clauses; because, as James, L.J., says in ex parle National Guardian Assurance Co. in re Francis (1) :

There is no magic in the position of the clauses in the deed, every clause is part and parcel of the bargain between the parties. It is said in Mill v. Bill (2) :

The general rule of construction is that the courts, in construing the deeds of parties, look much more to the intent to be collected from the while deed than from the language of any particular portion of it. The intent must be collected from the deed itself, and not from evidence aliunde; and the courts consider themselves authorized and bound, where they can collect the intent from the language of the deed, if all the parts of the deed will admit of it, to construe that deed rather according to the general intent than according to any particular phraseology contained in it.

And with -reference to attornment clauses, Jessel, M. R. says In re Stockton Iron Furnace Co. (3) :

According to the course of practice of conveyancers, when the mortgagor is occupying, so that there is no rent receivable to meet the interest on the mortgage debt, it is usual that he should agree to become tenant. There is nothing novel or remarkable in the mortgage.

It is in the ordinary form.

Bacon, C. J., in ex parte Jackson, in re Bowes (4), says: The case of In re Stockton Iron Furnace Co. (5) is valuable for the observations which it contains, which traverse the whole ground of these attornment provisions, and no disapprobation is expressed by the judges, either in that case, or even in ex parte Williams (6), of (1) 10 Ch.

(2) 3 H. L. Cas. 847.

(3) 10 Ch, D. 353.

the use of an extensive attornment clause. Attornment clauses are TZ u in themselves valid. They can only be impeached, that is to say, the contract between the parties can only be set aside, if you can infer from the facts that there is an attempt to defraud the other credi- L .

tors of the mortgagor in the event of bankruptcy happening. There is not a particle of evidence in this case which leads me to think Ritchie,C.J. that such an intention was present here.

Cotton, L. J. (1):

Undoubtedly, a mortgagor and a mortgagee have a right to insert in their mortgage deed a clause making the mortgagor attorn as tenant to the mortgagee, and thus by contract constituting the relation of landlord and tenant between the two.

Under such circumstances, where it is a real and not a fictitious or sham arrangement, the ordinary consequences of a tenancy follow, and there can be a distress for the rent agreed upon, which will be valid and effectual in the case of baikruptcy.

As has been pointed out by Lord Justice Baggallay, this is quite reasonable, for the mortgagee has a right to take possession, and to turn out the mortgagor, whether he is in possession by himself or by his tenant.

If the mortgagor is in possession by a tenant, then the rent which that tenant pays comes into the hands of the mortgagee.

If the property is in the possession of the mortgagor himself, the mortgagee may turn him out and let the property, either to a stranger or to the mortgagor; and, therefore, there is nothing unreasonable, or that can be called a fraud on the law of bankruptcy, in allowing the parties to make a contract in the mortgage deed which they might validly and effectually make afterwards. If the mortgagee lets to a third party, no question can arise as to the amount of rent; and if the attornment clause is one which really constitutes the relation of landlord and tenant between the mortgagor and mortgagee, the court will not be nice in considering whether the rent is too great for the mortgaged property.

Thesiger, L. J. (2):

There cn be no doubt that such clauses contained in the mortgage deeds are valid and operative in themselves, and that they may, and ordinarily do, create the relationship of tenant and landlord between the mortqagor and mortgagpe, and with it the ordinary right of distress which the law attaches to that relationship. And, more than that, it appears to me abundantly clear, both upon prinoiple and authority, that attornment clauses will be valid. and operative, although the rent reserved by them may be considerably in excess of what may be required to keep down the interest on the mortgage debt.

I can even imagine a case in which the rent reserved (1) P. 739.

(2) P. 743.

Now what was the intent of the parties in reference to this deed?

Clearly their sole object was to secure to the mortgagor the repayment of the mortgage money and interest. The clauses in the deed, more especially those we are now considering, were unquestionably inserted with a view to that end in the interest of. and for the benefit and protection of the mortgagee.

If it was intended that the right to distrain was merely a collateral license, assuming the distress clause gave no more than a license, to which the right to distrain the goods of a stranger on the premises would not be incident, nor would the right to claim a year's rent, under the statute of Anne, when the goods are seized by the sheriff, what possible object could there have been in the interest of either party in inserting the attornment clause.

If the attornment does not establish the relation of landlord and tenant, it is meaningless.

If it establishes the relation of landlord and tenant, but without the reservation of a fixed rent, and is to be read as separate and distinct from the distress clause, then instead of operating in the interest of the mortgagee, and in furtherance of his security, it would impose on. him a most onerous burthen, and cast on him a duty of a character having the exact contrary effect, viz.: by making him a landlord it would constitute him a mortgagee in possession with all the corresponding liabilities attaching to that position, and more particularly in regard to any subsequent incumbrances, without conferring on him any other or greater rights or privileges than he would have without the insertion of such a clause, a state of things not benefiting but detracting from the security, a state of things not indicated by the deed, and which, I think, neither party could have contemplated or intended, and which will be avoided by giving legitimate effect to Ritchiec.J. all the clauses of the instrument.

By reading these two clauses together as creating a tenancy at a fixed rent, distrainable as between landlord and tenant, the clauses are consistent the one with the other, and in accordance with the scope and object of the mortgage security. To read them separately and as having no connection with or bearing on each other is to render them wholly irreconcilable.

To say that the mortgagor when he agreed to the insertion in the mortgage of a clause in these words: " And the said "mortgagor doth release to the company all his claims "upon the said lands and doth attorn to and become "tenant at will to the company subject to the said pro- "viso," viz, the proviso for repayment of principal and interest, and, at the same time, inserted the statutory clause that the company might distrain for interest, which, extended by the terms of the statute, reads thus:

To say that he did not intend to make himself a tenant under the first clause, and did not intend under .]

SUPREME COURT OF CANADA.

the second clause, read in connection with the first, to fix the amount of rent and times of payment as between landlord and tenant, and make the rent so fixed, rent distrainable by way of rent under the tenancy so created as a right of distress incident to a tenancy, is to say, it appears to me, that the instrument is incapable of a reasonable and consistent construction.

I think the only possible object the parties could have had in inserting the attornment clause was to make the interest, when in arrears, rent, and give the landlord the same right, as if in so many words, the attornment clause had specified that the mortgagor became tenant at a fixed rent, viz: the amount of the interest in arrears reserved by the mortgage.

Any allusion to rent in the attornment clause was rendered unnecessary, because the rent is fixed by the distress clause, which authorizes the interest to be distrained by way of rent reserved. Those clauses, as I said before, being read together, establish the relation of landlord and tenant, and in my opinion fix the amount of interest as rent for the purposes of the tenancy; or in other words, that the reason why the attornment clause was inserted was to prevent any doubt arising as to the right to distrain being treated under the distress clause as a mere leave and license, and not as a rent charge.

In delivering judgment on the appeal in Morton v.

Woods, (1) Lord Chief Baron Kelly, after noticing the appellant's contention that there were certain defects in the form of the mortgage instrument there under consideration which rendered it invalid as a lease, says:

[VOL. X. and I agree that if the mortgage in question herein be Ritchie,CJ. construed according to the rule enunciated in Morton v. Woods, there can be no reasonable doubt that the relationship of landlord and tenant at a fixed rent was thereby created.

Therefore, in my opinion, the occupation by the mortgagor, connected with the attornment clause and the provision that the mortgagee should have the power of distress for the interest in arrears by way rent reserved, constituted the relation of landlord and tenant between the mortgagor and mortgagee, whereby the mortgagor became tenant at will to the mortgagee, at a fixed rent, viz: the amount of the interest payable at fixed times, and that under such demise, on default in payment of the interest, it became payable qua rent and liable to be distrained for as rent, the right to distrain not being a mere collateral license but a right of distress incident to a tenancy.

As the addition of the attornment clauses distinguishes this case from the Royal Canadian Bank v. Kelly and makes whatever may be doubtful in that case clear in this, I refrain from discussing or expressing any opinion on the point there decided that without the attornment clause, the statutory distress clause has the same effect, as I think the two have in this case.

I am of opinion that we ought to dismiss this appeal. I entirely agree with the majority of the Court of Appeal that, upon the proper construction of the mortgage deed, there is no reservation of rent. Nothing is said about rent in what is called the " attornment " clause, and, assuming, as I do the present purpose, that either by the effect of this attornment clause, or by the operation of the covenant, that the mortgagor should retain possession until default, or by' the combined J. effect of these two provisions, tenancy of some kind was created, there is no pretence for saying that there was, either by expression or implication, any reservation of rent as incident to that tenancy, unless it was contained in the distress clause.

What we have to do, then, is to construe the extended statutory equivalent of the short form of proviso actually used by the parties in the mortgage deed itself., And here, I would observe, that the present case affords a very good example the imprudence of using these short forms, which, in

England, as I find it stated in writers of authority, are never adopted. The short form in the mortgage is:

There is no indication n these wards of any intent to reserve a rent. If, therefore, we read the proviso, of which this short form is the symbol, as containing a reservation of rent, we are giving an effect to it which makes the use of this statutory form a snare.

If the statute had enacted in so many words that interest should mean rent, of course there would be an end of the matter; but, whilst it stops short of that, and so long as there is any ambiguity in the words of the enlarged covenant (though I am far from admitting that there is any ambiguity in the extended form here), I think we ought so to construe the extended form as to ascribe to it a meaning of which the short form may be said to be a fair general expression, and this we certainly should not be doing if we were, by the aid of the statute, to translate the word " interest "' as meaning or including rent. I do not, however, consider this as a conclusive reason, though, in my estimation, it certainly greatly strengthens the construction placed upon the extended form by the majority of the court below. Again, the very existence of an express clause of distress which would be totally unnecessary to entitle the mortgagee to distrain for rent, though not conclusive, is also a circumstance weighing against the construction contended for by the appellants. But I rest my judgment upon what appears to me, speaking with all respect for those who entertain different opinions, to be the plain meaning and intendment of the words of the proviso, taken in its extended form as given in the schedule to the statute, and which is as follows:at it to part teneinterest rent.

Reading this form, it is apparent at once that all depends upon what is to be considered as meant by the words " to recover by way of rent reserved as in case of a demise of the said lands

*

* * so much of said interest," &c.

Now, in the first place, it is to be observed that what is to be recovered by the distress, is not rent but interest e6 nomine; what warrant is there then for saying that this arrear of interest is to be considered as rent reserved?

The only answer which can be suggested is, that the words " by way of rent reserved " show that the interest is, so soon as it gets into arrear, to be considered. as a reserved rent; but this is to beg the whole question for the words by way of rent reserved are not used in connection with the interest, but with the mode of recovering it; it is not said that interest in arrear is to be considered as rent reserved, but that when interest in arrear is to be recovered, it is to be so recovered in the same way that rent reserved on a Strong, .. demise is to be recovered, namely, by distress. And the latter words of the clause, providing that the costs of the distress shall be recovered " as in like case of distress for rent," reflect light on the preceding expressions, and show, as clearly as language can express it, that the distress is not to be for rent, but for interest to be recovered in the same way as rent.

The case of Doe Wilkinson v. Goodier (1) is an authority amply sufficient to warrant this construction.

In that case, the power of distress authorized the mortgagee to distrain for interest in arrear for twenty-one days " in like manner as for rent reserved on a lease;"

and the court held that this did not amount to a reservation of rent, but was a mere personal clause of distress.

I am unable to see any difference sufficient to make a reasonable distinction between the concluding words of the clause in question here, and which, as I have said, are a key to the construction of the expressions used in the earlier part of the proviso, "as in like case of distress for rent;" and the words in Doe Wilkinson v. Goodier, " in like manner as for rent reserved on a lease."

I am, therefore, of opinion, that for the reasons given by the majority of the Court of Appeal-reasons to which I profess to add nothing, but merely to reiterate them in my own language-this appeal should be dismissed.

I have arrived at this conclusion, as already indicated, merely by a process of verbal construction, and without being influenced by any considerations of the impolicy SUPf

[VOL. X. or hardship of giving effect to the provision in question as amounting to a reservation of rent.

A I was a party to the decision in the case of the Royal Canadian Bankv.Kelly, in the Court of Appeal, I think it proper to say that I have given no weight to that decision Strong, Jas ail authority in the present question; for this the want of any authentic report of the case would alone be a sufficient reason, but besides this, my recollection of that case is such that I could not properly act upon it. In Kelly v. Royal Canadian Bank there was not, as there is here, an express provision in the mortgage deed that the mortgagor should become tenant at will to the mortgagee-in other words, there was no attornment clause-the only clause contained in the deed from which a tenancy could be implied was the provision that the mortgagor should have quiet possession until default, and I am able to say that the grounds of my own judgment, which concurred with those stated by the Chief Justice, was that there was no tenancy to which a rent (as a rent service) could be incident, since the covenant * that the mortgagor should have possession until default in payment -in a case where the principal and interest were payable not at one fixed date but by instalments-wanted that certainty which is requisite for the creation of a term. The judgment of the court in that case was the judgment of a large majority, but a majority which did not agree in the reasons assigned for their judgments, for whilst the judgments of some of the learned judges proceeded upon the grounds I have just mentioned those of others proceeded upon the ground upon which the Court of Appeal have rested their decision in this case, the proper construction of the clause of distress in the extended form given in the statute.

This want of unanimity was probably the reason why the judgment was witheld from the reporter. I only mention it now as explaining why I attributed no weight to it in arriving at a decision of the present appeal.

Although I rest my judgment in the present case entirely on the same grounds as those relied on by Mr. Justice Burton and Mr. Justice Patterson, in the Court of Appeal, I think it right to point out some further Strong, J grounds for the conclusion that, notwithstanding the existence of the attornment clause in this mortgage deed, no tenancy to which a rent service could have been incident, was created. This attornment clause appears to be so utterly inconsistent with the proviso, that the mortgagor should have quiet possession until default, that the one or the other of these clauses must be void for repugnancy. The mortgage deed, operating as a conveyance to the mortgagee of the whole fee, these provisions are in the nature of redemises to the mortgagor, and, therefore, must be construed beneficially to the mortgagor, and strictly against the mortgagee, who is in the position of a grantor as regards them. Then it being impossible to reconcile a tenancy at will, that.is, a tenancy determinable at the will of the mortgagee, under which the latter can, at any time, take possession, with a provision, though in form but a mere personal covenant, that the mortgagor shall remain in quiet possession until default in payment ; one or the other of these two clauses must necessarily give way, and upon the principle of construction just stated, it is clear that this must be the attornment clause being less beneficial to the mortgagor. It is no answer to this argument to say that the tenancy at will can subsist with the collateral personal covenant of the mortgagee not to take possession until default, for such a covenant would be enforced specifically by a court of equity, which would restrain the mortgagee from taking possession in violation of its terms, and thus there would arise a direct r04 repugnancy between such a provision and a tenancy at will.

Then, in determining whether a tenancy is created or not, and what is the nature of the tenancy we must have regard at law as well as in equity to the terms of the whole deed, for to this extent at least the case of Walker v. Giles though impugned in other respects, is still law, and is so recognized in the later cases of Pinhorn v. Souster (2), and Brown v. The Metropolitan Counties, Society (3) That this is the effect of the authorities is also recognized in Davidson's Conveyancing (4), and in the 3rd edition of Fisher on Mortgages the true principle to be extracted from the authorities is thus stated:- Then, the tenancy at will created by express words in the attornment clause being thus rejected we have only to deal with the provision that the mortgagor shall hold until default in payment of principal or interest at the times stipulated in the deed; if any tenancy is created it must be by that clause. Now, when I say that this clause is in the nature of a redemise, I do not mean to say that it creates a strict legal tenancy, that it confers upon the mortgagor a chattel interest amounting to a legal term, for it has been determined-and upon long established principles of the law relating to leases and terms for years, it could not be otherwise held-that the uncertainty in the duration of the term is fatal to such a construction, though, as I have before said, the covenant is one which a court of equity would undoubtedly enforce by restraining the mortgagee from ejecting the mortgagor before default.

In the view which I thus take of the proper construction of the mortgage deed, after eliminating, for the reasons already stated, the clause purporting to create the tenancy at will, there is neither a tenancy created by the remaining provisions of the deed nor anything amounting to a reservation of rent.

The uncertain duration of the holding until default in any one of the half-yearly payments of interest during a period of five years, and then until default in the payment of the principal at the end of that time, makes

.the implication of a tenancy, in view of the requisites for the creation of a legal term, in my opinion, impossible.

There are, it is true, some decisions which may seem contradictory on. this point, and Wilkinson v. Hall (1) is supposed to have determined otherwise.

I think, however, that case is sufficiently distinguished from the present in the full and able discussion of the authorities contained in the note to Keech v. Hall in

Smith's Leading Cases

This distinction is that in

Wilkinson v. Hall the mortgagor was to remain in possession until default made in the payment of the mortgage money at one certain time fixed by the deed

-not as here, until default should be made in any one of a number of half-yearly payments spread over a series of years. In a case-such as that of Wilkinson v. Hall- all the money, principal and interest together being payable at a day certain, the duration of the term was fixed and ascertained as soon as the deed was executed to be until the one certain day named for payment.

In a deed framed like the present, it is, however, impossible to say what the duration of a right of possession will be, which is dependent altogether on ex post facto events-in the present case ten different contingencies.

Therefore, for the reason that it wants that prefixed certainty which is essential to the creation of a term, I should be inclined to hold-if the point had to be decided-that the quiet possession clause in the present case does not create a legal tenancy. The editors J. Smith's Leading cases state the following as a general conclusion from the authorities (1) :

The mortgage deed in the present case does contain the affirmative covenant that the mort2agor shall hold, but not that he shall hold for a determinate time. It is no answer to this to say " id certum est quod certum reddi polest," for no principle of the law property is better established than that which makes it indispensable to the creation of a term that its duration should be prefixed and certain from the beginning, and not fluctuating or uncertain according as certain contingencies may or may not happen.

We find it laid down that a lease for so many years as A shall live is void fpr uncertainty, though nothing can be more certain than that there is a limit to human life, but a lease for twenty-one years if A shall so long live is good, being a lease for a term certain, determinable on a contingent event which may happen before the expiration of the term limited (2)

So in the case of a mortgage where the principal is payable in one sum, at one fixed date, and the interest is made payable in a number of half-yearly payments, as in the present case, if the covenant should be that the mortgagor should have quiet possession until the time fixed for paymentofthe principal, witha proviso that such right of possession should be determinable upon default in payment of the interest at any of the stipulated times, that, no doubt, would create a perfectly good leal interest in the nature of a term of years. This distinction may be thought very thin and meaningless, but it is well-settled law, and that is sufficient for the present purpose.

I have made these observations, not J. as intending to rest my judgment upon them, but be- -cause it occurred to me that it might be useful to draw attention to the difficulty I should have felt, in holding that the quiet possession clause created a tenancy, as a suggestion that this clause, in mortgage deeds, should be so framed as to avoid the objection, as may easily be

Aone.

As to the point that the quiet possession clause could, in no case, operate, because the mortgage was not executed by the mortgagees, I am clearly of opinion that, even as a strict legal objection, it is of no force, since the principle is, that a mortgagee or grantee is bound, even at law, to sustain the burden of .covenants and provisions contained in a deed under which he claims to take a benefit, even though he has not executed the instrument and, at all events, a court of equity would, on the ground of equitable fraud, restrain a party to a deed in such a position from repudiating any obligation or onerous provisions which the instrument imposed upon him.

It was suggested, that, although .no tenancy was created to which a rent, as a rent service, could be incident, the distress clause might be construed as creating a rent charge. This point is sufficiently answered by the view which-following the Court of Appeal--I have taken of the proper construction and meaning of the clause in question a further and conclusive reason being that the mortgagor had no legal estate out of which such a rent charge could issue.

My conclusion is, that the appeal should be dismissed, Tusr with costs.

FOURNIER, J., concurred wifh J.

I agree with my brother Strong, and entirly adopt the views of Mr. Justice Patterson and Mr. Justice Burton. I have come to the conclusion that the attornment was not to attorn further than to give a license to distrain which would enable the mortgagees to colle6t arrears of interest and did not create the relation Of landlord and tenant so as to enable them to distrahi strangers' property found on the premises.

J.-Was of opinion that the appeal should be allowed.

GWYNNE, J.

At the time of the passing of the 271h and 28th Vic., ch. 31, it was the universal practice, I may say, in the Province of Upper Canada for mortgagees to insist, as a condition of all loans on mortgage, upon a clause being inserted in the mortgage whereby in express terms the mortgagor become tenant to the mortgagee at a rent which was the interest agreed upon for the principal sum secured by the mortgage, and the object of the act was simply, in my opinion, as its title indicates, to establish a short form, which could conveniently and at a trifling expense be registered in full. That the relation of landlord and tenant can subsist between a mortgagee and his mortgagor simultaneously with, and by virtue of the same instrument as creates the relationship of mortgagee and mortgagor, is not disputed. If then, the language of the short form given by the statute is sufficient to create the relationship of landlord and tenant at a rent, I cannot see upon what principle we should construe that language as conferring a mere license to distrain the goods of the mortgagor himself done, and so deprive the mortgagee of the security which(upon the faith of the language of the statute being sufficient for the purpose), may have been an essential condition without which he would not have consented owynne, J. to lend his money; and I cannot see how a mortgagee's insisting upon his having the security, which a mortgagor becoming tenant of the mortgagee for the mortgaged premises gives to the latter, can be regarded as in fraud of the Chattel Mortgage Act. Now, the language of the statute when expanded as it is in column two of the Act is:

Now this language is, to my mind, essentially different from the language used in Chapman v.

Beecham (1) ; Wilkinson v. Goodier (2); and

Pollitt v. Forrest

The covenant is not that the mortgagee may distrain for the interest, " in like manner as landlords are authorized to do in respect of distress for arrears of rent upon leases for

"years;" nor " in like manner as for rent reserved by

"lease;" nor does the covenant impose a penalty for which the mortgagee may distrain " as for rent in

. arrear " as in Pollitt v. Forrest, but it is that the mortgagee may distrain upon the lands and for the interest, and recover it by way of rent reserved as in the case a demise, thus, as it appears to me, plainly declaring that the interest shall be deemed to be rent reserved J* and recoverable as such. But it is said that the introduction into the clause of the words " as in the case of a demise of the said lands, is quite inconsistent with the relationship of landlord and tenant being created; but on the contrary, the language appears to me to be sufficiently appropriate to the object in view, which was not to create an indenture of demise merely, which the legislature knew to be an instrument which in its terms is different from an indenture of mortgage, but in an indenture of mortgage to attach the relationship of landlord and tenant to that of mortgagee and mortgagor, with all the incidents of the former relationship as in the case of a demise-just as if the parties should have said that although this is an indenture of mortgage, and the parties to it are called mortgagee and mortgagor, the relationship of landlord and tenant shall also exist between the parties, and the interest payable by the mortgagor shall be paid to and recoverable by the mortgagee by way of rent reserved upon the indentare of mortgage, just as in the case of a pure indenture of demise. The language of the statute appears, to my mind, to be abundantly sufficient to superadd the relationship of landlord and tenant to that of mortgagee and mortgagor, upon the authority of West v. Fritche (1); Doe Dixie v. Davies (2) ; Pinhorn v. Souster (3); Doe Bastow v. Cox (4); Brown v. Metropolitan Connties, 4-c., Society (5); Morton v. Woods (6); and being sufficient for that purpose I do not think that we should be justified in diminishing its force. However to a clause which, to my mind, is in itself sufficient, the parties to the mortgage before us, to make assurance doubly sure, have introduced a further clause whereby the mortgagor in express terms attorns to, and becomes tenant at will to

_WS the mortgagee, subject to the proviso for redemption contained in the mortgage. I am unable to see how we can declare that the relationship of landlord and tenant, with all its incidents, does not exist without declaring that the plainly expressed intention of the parties shall not prevail. The appeal therefore must, in my opinion, oe allowed and the judgment of, the Court of Queen's

Bench be restored.

Appeal dismissed without costs.

Marsh.

Solicitors for resrondents: Hardy, Wilkes, Jones and

D. Brooke.

-Hypothecary for-Payment under pres- 8ure-Imputation of payment s-Appropriation debtor-Statute of Limitations- ACCEPTANCE-Evidence qf acceptance. Art.

----- - - - - APPEAL-Documents not proved or produced at trial. Inadmissible appeal. Held : That a document which has not proved nor produat the trial cannot relied on or made part of the in appeal.

COURT-Duty of-when confict'ng evidence - ---- ASSIGNMENTfor benefit of creditors -Power to sell on credit - Fraudulent preference. R.

S. 0. ch. 2.] In deed of assignment for the benefit of creditors, the lowing clause was inserted: "And it hereby declared and agreed that the party of the third part, the assignee, shall, soon as conveniently collect and get in all outstanding credits, and sell the said real and personal property hereby assigned, auction or private contract, as a whole or portions, for cash on credit, and generally such terms and in such manner as shall best or suitable, having regard to the object these presents."

fraudulent intention of defeating or delaying creditors was shown.

Held: affirming the ment of the court below-that the fact of the deed authorizing a sale upon credit did not, per invalidate it, and the deed could not that account impeached as a fraudulent preference of creditors within the Act of a Government contract without prior of Government-efect of

RAILWAY-Validity of

LINE-Equitable estoppel-:Description of land reference to plan-Construction ofdeed-Extrinsic evidence of boundariesof lot adjoining it the south. Both lots had no exact indication of. the true boundary line between them. T. being about to build, employed a surveyor ascertain the boundary. The surclaimed his northern boundary was. pointed out an old running part of the way across the land between the lots and an old post, said the line of the fence produced to the was his boundary line. surveyor then the average line of the fence and produced it till it met the post. staked out this line, C. objecting.

days afterwards with architect and builder, went the ground, and, the presence of the builder again marked out the boundary means of line connecting the surveyor's marks, C. not objecting. Excavating was commenced according to that line immediately, and T.'s was built according to the line the extreme verge of T.'s land. first time that raised any objection to the boundary marked was when the walls of house were up and ready for the roof and derable money had expended building. Hleld: That C. was estopped from disputing that the line run the surveyor, was the true line. Per Strong, J. : When lands are described reference a plan, the plan considered as incorporated with the and the boundaries of the lands conveyed defined the plan are to taken part of the description. In-construing a deed of land not subject tospecial statutory regulations, extrinsic evidence monuments and actual boundary marks is inadmissible to control the but if reference made the deed to such monuments and boundaries, they control, though they may call courses, distances, or computed contents which do not agree with those in the deed. In W. D. P., who owned a piece of land bounded the south Queen street, on the east William street,on the west Dummer street, and running north distance, laid out the southerly portion into lots depicted upon a plan, which plan showed -the boundary line between the plaintiffs and defendant's lots to exactly feet from Queen street.

There were stakes or other marks the ground to indicate LINE-Continued.

the boundaries of the lots or the extent of the land laid out. years afterwards the remaining land to the north of the parcel laid out, was laid out into lots depicted another plan, and a street was shown between northerly limit of the first plan and the southerly limit of the second plan. The actual distance, however, of this street from Queen street was greater than the first plan its face showed to and the parties owning lots on the plan appeared to have taken up their lots as queen street and the street on the north of the fst plan actual limits of the plan. Per

Strong, J.: 1. The true boundary line the plaintiff's and defendant's lots was a line commencing at a point feet from Dummer street, as measured on the ground at the time when the plan was made; but the absence evidence showing a measurement on the levelled street, that point could not be accepted as the true point of commencement of the boundary question.

1867-Sec.

-Powers of Provincial Legislature

ENGINEER-Condition Precedent-to

CODE-Art. 1235-(P.

or

Art.

2--Winding of-Foreign

PRECEDENT-Certifcale of Engineer-Prior

Deputy Returning cer Candidates agen 4 intefere withfranchise ballots- CONTRACT-Government Contract-Clause in- Construction of-Assignment-Efect o-Damages.] the 2nd August,

.

F.

entered into a contract with Her to the excavation, of the Georgian Bay branch of the Canadian Pacific Railway.

Shortly after the date of the contract and after the mencement of the work, H. 4. F. associated with themselves several partners in the work, amongst others S. 4. R. (respondents), and

30th June, the whole contract was assigned to S. 4 R. Subsequently, the July, the contract with H. 0..

F. cancelled Order in Council the ground that satisfactory progress had not been made with the work required the contract. On the 5th August, B. R. notified the Minister of Railways of the transfer made them of the contract. the9th August the Order in Council of July was sent to H. F. the August, an Order in Cotincil passed stating that as the Government had never assented to the transfer and assignment of the contract to 4. R., the contractors should notified that the contract was taken out of their hands and and annulled. In consequenceof this notification, S. carying on the works, work, and with the consent of the Minister Public Works, realized their plant and presented a claim for damages, and finally f. .' F. and S. 4S

R.filed a petition right claiming damages for breach of contract. The statement defence set up inter alia, the clause of the contract which provided againstthe contractors assigning the contract, and in of assignment without Majesty's consent, enabled to take the works out the contractors' hands, and employ such means as might to complete the same; and in such the contractors should have no claim for any further payment in respect of the works performed, but remain liable for loss reason of tion the contractor. At the trial there was evidence that the Minister of Public Works knew that S. t R. w're partners, and that satisfied that they were connected with the cern. There was also evidence that the department knew S. 4. R. were carrying the works, and that S. I R. had been intormed the Deputy Minister of the department that all that was necessary to recognizel contractors, was to send a letter to the government H. C. J F In the Exchequer, Henry, awarded the suppliants damages. appeal to the Supreme Court of Canada it was held: reversing the judgment of Henry, J., (Fournier Henry, J.J, dissenting,) That there was no evidence a binding assent the part of the Crown to an assignment of the contract to S. . who therefore were not entitled to re. cover. That H. C. & F., the original contractassigning their contract put in the of the government to rescind the contract lutely, which was done the Order in Council of the August, and the contractors under the clause could not recover either the value of work actually the loss of pective damages,orthe reduced value of theplant. V. - - - - - - - 2-Unwritten commercial-Evidence of - CROWN-Petition of Right to recover damages fcr

2-For breach of agreement to recovered by

Petition of right-Judgment obtained against joint misfeasor-Effect of, in reduction of damages ---- DEED-Of land--Construction of-] Extrinsic.

evidence of monuments and actual boundary marks admissible to control the but reference is made the deed to such monuments and boundaries, they control, though they may call for courses, distances, or puted contents which not agree with those

PAYMENT-Personal liability under ----- - POLICY-Efect of land reference toplan10i

2-by metes and bounds-when parcel of land granted

DISTRESS-Wrongfulfor

EASEMEN'q'S-Grant of servient tenement-Implied reservation-Implied grant-Plan-Evidence-Boundaries-Description-Ripvarianprprietor -Diversion of water.] One piece of land cannot said to burdened an-easement in favor of another when both belong absolutely to the same owner, who has, in the exercise of own unrestricted right enjoyment, the power of using both as he thinks fit and making the use of parcel subservient to that of the other, if to do,-and the title to different parcels to vested the same owner, there is an extinguishment of any easements which may previously have existed, a species of merger which what may have been, whilst the different parcels were separate hands, legal easements, cease to and mere easements in fact-quasi easements.

If the quasi servient tenement subsequently first conveyed without expressly providing for the continuance of the easements, there is no implied ressrvation for the benefit of the land retained the grantor, except of easements necessity, and distinction to be made for this purpose between easements which' are apparent and those which are non-apparent.

If the dominant tenement firstgranted, all quasi easements which have enjoyed as

EASEMENT.-Continuecd.

appendant to it over a quasi servient tenement retained by the rantor, pass implication. Besides the lands the titleto which was derived from their common grantor, the appelant was proprietor of another piece of land, called Block situated on the opposite side of the River JMaitland the boundary of said Block on the river being high water-mark. Held: That the lateral or riparian contact of the land with the water would to entitle the appellant to object to any unauthorized interference with the of the river in its. natural state. In the then owners of part of the lands in question had a plan prepared and registered, and in they a parcel which they described as Block F. Held: That it must presumed they intended to convey. the same parcel of land shown on said plan as Block F with the same natural boundaries as those thereon indicated.

The evidence of professional draughtsmen was properly admitted to show what' according to the general practice and usage of draughts men in preparing plans, certain shadings and marks on said plan were intended to indicate. When a close or parcel of land granted a name, and it can be shown what are the boundaries of such close parcel, the governing part of the description the name, and the whole parcel will pass, though to the general description there superadded a pirticular description metes and bounds, or a plan which does not show the whole contents of the land as included in the designation which it is known. ELEOTION-The Dominion Elections Act, Wager agent with voter-Bribery-Corrupt practice-Treating polling day-Agency.] Pringle, an acknowledged agent the respondent and the President ofthe Conservative Association, whose candidate the respondent was, made a bet with one Parker, a Liberal, that would vote against the Conservative party, and deposited with stakeholder the $5, which, after the election, was paid to Parker. Atthe trial Pringle denied that was actuated any intention to influence the conduct of the voter, and alleged that the was made'as a sporting bet the spur of the moment, and with the expectation that, as he said, Parker would warm up and vote; but also admitted in evidence that it passed through his mind.that on tbe voter's side would make the good if voted. Parker had formed the resolution not to vote before made bet, but the evidence showed that did not think lightly of the which was to receive for his not voting, his answer to one question put to him being,: I I don't know that would an insult to any one not to vote."

Held: (reversing the judgment of the Court below), That the bet in question was colorable bribery within the enactments of 1 of of the Dominion Elections Act, and a corrupt practice which avoided the elertion.

acts complained the 11eenanaauvsals charge also relied as have the election set aside. The facts of this charge that H., Conservative, prior to the election, canvassed in company with the respondent one B.

election day H. was selqcted the assistant secretary of the association (an acknowledged agent of the respondent)

to represent the respondent at the Burnley poll, and obtained him a certificate under of the Dominion Elections Act, entitling him to vote at the Burnley poll. H. there met B. and treated him giving him a glass of whiskey, ad after B. had voted gave him and sultsequently sent him

The treating according to B.'s evidence was nothing more than an act of good fellowship; and according to II.'s account, that B. was not-feeling well, aud the whiskey was given consequence.

B.

negatived that the $2 were paid him for and B. said that supposed it was dollar bill and told B. to go and treat the boys with it, and that it was not given account any previous promise or for his having voted.

Court a held that none of these acts constituted corrupt acts as to avoid the election.

appeal to the Supreme Court of Canada, Held, per Ritchie, J., and Bienry and aiathereau, JJ.-There was sufficient evidence of H.'s agency, bnt it was not necessary to decide this point. Per Strong, J.-There was proof of H.'s agency. Agency not to presumed from the fact that the respondent permitted f.

to canvass B, in his presence, and there is entire absence of proof of any cient authority BH. to bind the respondent acts at the polling place in the matters treating and the payment of the $2.

Per Fournier, That the treating of B. polling day, both and after had voted, H, an agent, and the giving of the sum of $2 immediattly after bad voted, were corrupt acts

Dominion Elections Act,

Intimidation - Undue influence - Conspiracy

-Deputy Returning Officer and respondent' a gent with franchise marking ballot at of-Election void.

In an election petition it was charged that the respondent personnally, as well acting

C P. D. and others, his agents, undeitake and conspire to impede, prevent,and otherwise interfere with the free exercise certain voters, and that, furtherance of a premeditated scheme which the respondent and aget well knew to illegal, they did, fact, imede, prevent, and interfere with the exercise the franchise of certain voters, getting their ballots marked, rendered identifiand consequently void, whereby franchise of these voters was unjustifiably interfered with.

At a previous election the respondent had been defeated a majority of three votes, and the election having been contested was set aside, and certain voters were reported the judge as having guilty of corrupt practices, under section of the Dominion Election Act, At a public meeting before the election 0, A. the respondent's agent, to intimidate these persons and prevent them voting, a speech made threatened them with punishment if they voted; and subsequently printed notices to the same effect were sent to these voters.

On the polling day D. P., who had been appointed deputy returning on the distinct understanding with, and promise made to, the returning that would not mark the ballots of these voters, consulted with C. and on advise and collusion ivith marked the ballots of certain of these voters. Held, -that the election was void reason the attempted intimidation practiced A. the respondent's agent; and reason alsoof the conspiracy between the said agent and the deputy returning to interfere with the exercise of the franchise of voters, violations of of the Dominion Elections Act, and corrupt practices under section of the $63 ESCROW-Delivery of a Policy an Agent not countersi ned- -- - - Mortgaqe of - Statutory discharge, efect of - R. . 0. and Held: (Reversing the judgment of the Court below, Henry, J. dissenting) that the execution and registration, accordance with the Revised Statutes of Ontario, a discharge of a mortgage made a tenant in tail reconveys the land to the mortgagor barred of the entail.

ESTOPPEL-Equitable-adoining owner of land allowing a boundary line to run a surveyor

2-shareholder not stopped questioning legalof Issue

Conflicting

Duty Appellate Court.]-Where there is a direct coodictof tes, timony, the finding of the judge at the trial must regarded as decisive, and should not overturned in appeal a court which has not had the advantage of seeing the witnesses and observing their demeanor while under examination.

See also O. 2--of acceptance of goode-Parol. Art.

(P.Q.)

P rol inadmissible whe------ 6of professional draughtsmen to show what cirtain shadings and marks plan intended to

EXECUTOR-Powers of

PREFERENCE-Power to sell credit nqt a

HYPOTHEC-Delegation of payment in hypothiE

Sale of property - prior to acceptance of delegation

Personal liability under delegation - Ventilation.] the

October, sold to the soith half of the cadastral lot in the cty of Montreal, and on the same day sold the north half of the same lot. the

October, sold to and to L JR.

three undivided fourths of the two properties for sum of in deduction which purchasers paid cash and covenanted pay the balance for Q. to R.

R. was not a party to this last deed, and did, not then accept the delegated debtors.

In

.hitie, R. sued al. bypothecarily flo'nums due to her the deed of sale herselt to Q,atid thereupon abandoned (ddlaiss en justice) undivided fourth of the said south half of lot Oh the 4th December,

187;Mrs. R. accepted the delegation of payment, made her favor the deed of the

October and afterwards brought the present action against 0. for one-third part of the debt of with interest due her virtue of delegation of paymefit. contended that the acceptance of the delegation of payment being subsequent to the hypothecary action and his ditaissement, was null and of and therefore not sued for any portion the money: ffeld: That, under these circumstances. relieved from personal liability tinder the delegation of payment, but only to the ertnhtof his interest the south half of said and remained liable for interest the remainder of the piopertyi the amount to estimated a valuation (ventilation) of the south half of the lot proportionately to the price of the whole property. INTEREST-Interest on covenant in mortgage -Evidence.]

note dated

January payable to and endorsed one I. was for with interest at the rate of two per cent. per month until paid. a ant payment contained a mortgage of the same date, given the defendant to the plaintiff as a collateral security for the payment of this note, the defendant covenanted to " the said sum of on the day of July, with interest thereon at the rate of twentyfour per cent per annum until paid." judgment was recovered upon the note, but not the covenant. master allowed for interest in respect of this debt per cent. only the date of the recovery the judgment. Held: That the proper construction of the terms both the note and covenant as to payment interest that interest at the rate of twentyfour per cent should paid upto the July, and not that interest should paid at that rate after such day if the principal should then remain unpaid. JUDGMENT-Obtained against joint misfeasor -Effect of ------ S description of-by reference to plan TENANT-Relation of-whether created mortgagor and mortgagee by LEGISLATURE-Provincial--Powers of-Obstruetions in tidal and navigable rivers-45 (N. B.) ultra vires-B. N. A. Art, Professing to act under the powers contained their act incorportion, ch. (N. B.), the B. erected booms and piers in the Quedly river which impeded navigation-the being in that part of the river which tidal and navigable. Held: That the Provincial Legislature might incorporate a company, but could not give it power to obstruct tidal navigable river, and therefore the Act N. B., far as it authorizes the actsdone the Company in erecting and other works the Queddy river obstructing its navigation, was ultra vires of the New Brunswick Legislature.

LIBEL-Telegraph message-Liability qf Telegraph Company-Special damages-Inadmissiility of evidence ai when not alleged -Excessive damages.] al. (respondents) partners trade, sued the D. T. (appellants) defamation of the respondents.in their trade. In the declaration it was alleged :-I. That they were wholesale and retail merchants at Hali'ax.

That appellants wrongfully, falsely and maliciously, means of their telegraph lines, transmitted, sent and published from their at to their in St. John, and there caused to printed, copied, circulated published the false and defamatory message

:-"John Silver t wholesale clothof Grenville street, have failed; liabilities heavy."

2nd. That same message was caused also published in other parts of the

3rd- That the appellants promised and agreed with propietor or publisher the

St John Daily Telegraph newspaper, and entered into an arrangement with him, whereby the appellants agreed to collect and transmit, means of their telegraph lines, news patches to said newspaper time to time, and that such publisher should pay for all such messages and should publish them his newspaper, and that in pursuance of said agreement the appellants wrongfully, maliciously and means of said telegraph, transmitted, sent and published their in Balifax to their in St. John, and there falsely and maliciously caused written, printed, copied, circulated and published the above message, whereby many customers who had heretofore dealt with plaintiffs ceased to do and their credit and business standing and reputation were thereby greatly damaged..

The T. denied the several publications charged, and also the entering into this agreement mentioned in the third count and the warding of the messages as alleged.

At the trial it was proved that the telegram which was published in the morning paper was corrected the evening edition, and that the publisher's agreement was with Snyder, an of the company, to furnish him news at much every hundred words, but that only paid as used. original despatch was produced. only evidence as to damage was the evidence of two witnesses, who proved that reason of the publication they ceased to business with the respondents as they had previously accustomed to do. This evidence was objected to as inadmissible, but was received.

dealings of these witnesses with the plaintiffs consisted in selling their exchange and times discounting their notes.

The counsel the defendants moved for non-suit which was and the case was submitted to ibe jury upon the evidence, rendered a verdict the with damages appeal the Supreme Court of Canada, it was Held:

(Taschereau and Gwynne JJ., dissenting,) That the appellants, the D. T. were responsible the publication of the libel- question. Per

Taschereau and JJ., dissenting, Assuming the agreement in question to within the of the purposes forwhich the defendants incorporated, and that Snyder had cient authority to enter into it on behalf of the

LIBEL.-Obntinued.

defendant company, the evidence established that the . defendants collected, compiled and transmitted the news for the proprietor of the newspaper, as his confidential agents and at request, and that they were not responsible the publication the said proprietor and publisher of said news, for which the damages awarded.

(Sir W. Ritchie, 0.J., doubting, and Venly, J., dissenting) that the damages were excessive, and therefore a new trial ought to granted. Held also per Strong, Taschereau and (hoynne, JJ. special damages having alleged the declaration, the evidence as to such damages, having objected was inadmissible, and therefore a trial should be granted.

JOINT-Judgment obtained agaiust S. 0., wrongful distress for mortgage money)-A mortgage made in pursuance of the Act respecting Short Forms Mortgages, R. 0., addition to the clauses mentioned the statute, contained the following provision and variation: the mortgagor doth release to the company claims upon the said lands, and doth attorn to and become tenant at will to the company, subject to the said proviso."

The mortgage, other statutory clauses, provided that the mortgagees default of payment for two months, might on one month's notice, enter and lease or sell the lands; that they 'might distrain for arrears of interest, and that until default of payment the mortgagors should have quiet possession. H1eld,-4Affirming the judgment of the Court of Appeal for Ontario,) Ritchie 0. J. and Taschereau, Gwynne, JJ., Contra.) That upon the proper construction of the there was no reservation rent entitling the mortgagees to claim alandlord's rightas against execution creditor of a year's arrears interest on their mortgage before removal goods on mortgaged premises the sheriff. of tail

PAYMENT-Appropriation of-By a decree of the

CourtofChancery it was directed that anaccount should taken of all dealings between St.

J., the plaintiff, and R., the defendant. master found that was due to the defendant the plaintiff. master disallowed to the plaintiff the amount of a note for5 and interest there barred the Statute of Limitations- and reduced the interest asum of$3,000 ad-vinced from twenty-four per cent to cent. after jugdment recovered.

The note of was dated November, and was payable with interest at the rate week the 23rdNovember, the

6th the defendant. bad sued the plaintiff for certain other claims, entered into agreement with order to relieve him from the pressur of execution debts, paid him on account of his indebtdncss, and got time for the balance.

The plain piff made no demand at the time to paid this note, and did not instruct his attorney who acted for.him to payment of it until Held:

That the evidence showed an appropriation respondent of the account of the debts for which was being pressed, and as the note for was not included such debts, the master was right in treating it barred, the

Statute of Limitations.

2---Delegation in

BIGHT-Agreement with Governnint of Canado for continuous possession of railroati-Construction of-Breach Crown in assertion of supposed rights-Damages--Joint mifeasor-Tudgment obtained against-Efect of, in reduction of damages-Pleading-37

16.)-By an agreement entered into between the Windsor and Annapolis Railway Company and the Government, approved and ratified th6 Governor Council, September, the. Windsor Branch Railway, N.S., together with certain running powers over the trunk line of the Intercolonial, was leased to the suppliants forthe period of years from ist January, suppliants under said agreement went into possession said Windsof Branch and operated the same thereunder up to the 1st August, which date J. B, being and acting

Superintendent of Railways, as authorized the Government (who claimed to have authority under an Act of the Parliament Canada, passed with reference the

Windsor Branch, to transfer the same to the

Western Counties Railway - Company otherwise than subject to the rights-of the Windsor and

Annapolis Railway Company),ejectedsuppliants and prevented them from using said Wind-.

sor Branch and from passing over the said trunk line; and four weeks afterwards said

Government gave over the possession of said

Windsor Branch to the Western Counties Radway Company who took and retained possessthereof. In a.suit brought the Windsor and Annapolis Railway Company against the

RIGHT.-Continued

Western Counties Railway Company for recovery of ossession, &c. the Judicial Committee of the rivy Council beld that did not extinguish the right and interest which the Windsor and Annapoles Railway Company had in the Windsor Branch under the agreement of tember,

Onapetition of right beingfiled bysuppliants, claiming indemnity for the damage sustained the breach failure the part of the Crown to perform the said agreement of the September, the Exchequer Court Canada J., presiding), held that the takingthe possession of the road an the Cown under the assumed authority of act of parliament was a tortious act for which a, petition of right not appeal to the Su preme Court Canada. Beld: (Strong and Uwynne, JJ dissenting,)

But, as the a rement was still a continuous, valid and ing agreement to which they had no right utan this defence failed: Therefore the Crown, its having acted on a misconcention of or misinformation as to the rights the Crown, and. wrongfully, because contrary to the express and implied stipulations their agreement, hut not tortiously in law, evicted the suppliants, and though unconscious the wrong, such breach become the suppliants property, the petition right would lie for the restitution such property and damages.

Prior to the filing of . the petition right, the suppliants sued the Western Counties Railway Conipany for the recovery the possession of the Windsor Branch, and also by way of dgmages monies received the Western Counties Railway Company for the freight or passengers said railway since the same came into their possession, and obtained judgment the same, but were not paid. The judgment question was not pleaded br the Crown, but -was proved on the hearing the record the Supreme Court Canada, to which Court an appeal in said cause had taken and which affirmed the judgment of the Supreme Court of Nova Scotia.

Held: Per Ritchie, J., and Taschereau, J.-That the seppliants could not recover against the Crown, as damages, breach of contract, what they claimed and bad judgment for as damages for a tort committed by the Western Counties -Railway Company, and in this case there necessity to plead the judgment. Per Pournier and Henry, JJ., that the suppliants were entitled to damages for the time -they were by the action the Government deprived of the session and use of the road to the date filing of their petition of right. RIGHT.-Continued.

POLICY-Life Assurance-Policy, delivery of- Policy not countereigned, efect of-Premium, proot of payment of-Delivery of policy insufficient-Ecrow.] an action a policy, the appellant pany claimed that the policy was never delivered, and that the premium had paid, and that it was not a perfected contract between the parties.

policy was

Toronto the agent at Halafax, to receive the premium and countersign the policy and deliver it to the party entitled. The agent never countersigned the policy, and on one of the policy the following was printed : "This policy not valid unless countersigned by-agent at--, countersigned thisday

Agent."

agent, his evidence, said delivered the policy to W. O'D. (the party assuring) not countersigned order that might read the conditions, and swore the premium had not paid.

policy was found among O'D.'s papers after his death, not countersigned. policy was dated lst October, and the first prewould have covered up the year up to the

October,

W. O'D. died the July,

The case was tried before McDonald, J., without a jury, and gave judgment favor of respondent for the and this judgment was confirmed the Supreme Court of Nova

Scotia. appeal to the Supreme Court

Canada, it was Held: (Pournier and Henry, JJ.

dissentingi that the evidence established the fact thaf the policy had not delivered to the assured as a completed instrument, and therefore company was not liable. Per Owynne, that the instrument was delivered as an to the agent, not to delivered as a binding policy to O'D. until the premium should paid and until the agent should testimony thereof countersign the policy, and that there was no sufficient evidence divest the instrument its original character of and to hold the defendants bound the instrument as one completely executed and

PLAN,-Description reference - - -- - RIGHT.

(P.Q.), construction of-Condition Precedent-Certificate

Engineer, contents of-Parol evidence inadmissible-Onus probandi.] L. and K. Ry. Co.

was incorporated P.Q.), to construct a railway Levis to the frontier the state of Maine, a distance of miles.

company was authorized that act to or debentures to provide funds for the construction of the railway. In power was given to bonds to the amount of three million dollars without limitation of time, and without restriction as to the length of the railway constructed.

In a statute of the Legislature of ch. declared that debentures to the amount of had already issued, and limited for the future the issuinF of bonds to the amount of S300,000 stg., to issued as follows :-The first issue of at once; the second of when miles of the road should have been completed and in running order, as certified the Government inspecting engineer and the third issue of as as additional miles-makingin all miles-should have completed, with the privilege for the three issues. In the Act the Legislature amended the former acts to modify the condition to fulfilled the L. and K. By. the third issue £100,000 could them made. This condition was as enacted the said Act as the rails and fastenings required the completion of the remaining forty-five "miles or thereabouts of the company's line "shall have been provided, then the remaining thousand bonds, of hundred pounds '(each, to termed the third issue may " the company."

In that Act lastly cited, the preamble declared :

Whereas appears that a total length of forty-five miles the company's line having completed. " a first and second issue each of hundred " thousand pounds of company's debentures " have made." In March, the L. and K. Ry was sold the sheriff at the suit of the plaintifs the

. and bought the R. respondents, for In April, the corporation of the city of (appellants), an opposition afin conserver for being the amount debentures of sterling and interest of the second issue issued the 25th January, numbered and upwards, payable the lst January, and for the payment of which the opposants alleged that the said railroad was hypothecated. Q. Ry. also opposants in the case, contested the opposition of the corporation the city of and claimed the issue of the bonds of the second issue and held the appellants was illegal. At the trial certificate was produced, but the Government engineer stated that he had reported to the Minister of Railways that there were only miles the road completed, and the secretary of the company testified that the total length of railway the Government engineer as being completed and running order had never miles.

The learned judge at the trial found fact that there were only miles completed, and held the bonds of the second invalid. This judgment was the Court Queen's (appeal side).

appeal to the Supreme Court, it was Held: (reversing BONDS.-Continued.

the judgment of the court below)-That the effect of the statute to make the.bonds therein mentioned good, valid and binding upon the company, although the conditions precedent might not have fulfilled when they were issued.

(Ritchie, and Strong, J., dissenting.)

Per Fournier and Heiry, JJ.,that as there was evidence that a certificate report had been given, oral evidenceofthe contents ofthe certifictae or report was inadmissible and therefore respondents had failed to prove the illegality of the sebond

RIVERS-- Obatrutioninnavigable- GOODS-Unwritten commercial contract for--Acceptance, evidence of-Parol admissible-'Ar. 0. (P. Q ) 1eld: (reversing the judgment of the court below)-That in action in the Prov. of Qucbec upon an unwritten commercial contract for the sale of goods ding-the of ral evidence ofacceptance or receipt of the. whole or any part the goods, is admissible, under Art. 0. C.

-Liability of Public Company

<- 23-Estoppel-Kfortgage shares.] 'The Ontario Wood Pavement Company, incorporated under & with power to increase by-law the capital stock thecbmpany." after the whole capital stock the company shallhave been allotted and paid in, but,, not: sooner," assumed to pass by-law increasing the capital stock from to before the original capital stock had paid in. P. al., execution-creditors the, company, whose writ had returned unsatisfied, instituted proceedings way aci.Ja. against as holder of shares not fully paid up in said company.

It appeared from examination of the books that the shares allkged to held were shares of the increased capital and not of that originally authorized.

Held: (affirming the judgment of the Court

Appeallothat as there was evidence that the original, nominal capital of was never paid in, the directors had power to increase the stock of the company, and the stock held by .consisted wholly new unauthorized stock, P. et al. were not entitled to recover.

(Gwynne, J., dissenting, the ground that the objection not having taken the defendant or tried, the court, under R.S.O., should put the questions of fact upon which the validity and of the objections suggested the court rested, into a course for trial in due form of law.)

Where a statutory liability is attempted to be imposed party which can only attach to actual shareholder in a company, he not estopped by the inere fact of having received transfers of certificates of stock from questioning the legality of the issue of such stock. Per Strong and Henry, JJ., (Gwynnel contra), that although A.i a mortgagee, the shares and not an absolute owner, had taken transfer absolute in form and caused it to entered in the books of the company as an absolute was not estopped from proving that the transfer of the shares was way of mortgage.

(sub-sec. of sec.

STATUTES-Construction of-45

& ak. -Winding up Company-Foregs6amayi Sleet Company of Canada (iaiteil), incororated in England under the Imperial -Joint Stock Companies Acts, and carrying on business in Nova Scotia, and having its principal place of business at Londonderry, Nova Scotta, was, order judge, on the application of the respondents and with the consent the company, ordered to wound up underA5 ch.

The appellants, creditors of the Steel Company, intervened, and objected. to the. granting the winding-up o6 the ground that was not applicable the company.

Jeld: (reversing the judgment of the Supreme Court

Scotia, Fournier, J., dissenting) that Vi.,: was not applicable to such Company. Tsa British North America Act, sec. -91-------222

Dominion Elections Act, 4-27 and 28-Liability of Shareholder -1

6-R.S.O., ch. 2

8-R.S.O. ch.

J. D. L, et al (the appellants), who are the only children the defendant H. L., and his opposed the sale of the property seized on the ground that the said property was insaisissable. Held : (reversing the judgment of the court below, Taschereau and ,Gwynne, JJ., dissenting)-that the endorsements were not authorized the will, and that the clause in the will, exempting the property of the testatrix from execution, valid, and must given effect to. Art.