Beatty v. Oille

done the defendant, the declaration also containing the JJ.

This action was brought by the executors of the late George N. Gille, of St. Catharines, to recover from the appellant the sum of $14,500, being a balance alleged to be due by him under a contract in writing and under seal between the said George N. Oille and the appellant, executed on the 13th day of May, 1881.

Under the contract Oille agreed for the sum of $26,500 to build a compound engine "of the propor- " tions, quality, style and finish, with furnishings the " most complete and best, and to be provided with " cylinder boilers built of the best boiler steel, and "shall have all the, requirements, furnishings and attachments complete, according to the specifications "hereunto annexed, said specification to form and does form part of this agreement, the engines and boilers "to be all finished in every particular, and furnished, "set up, and securely and amply fastened to the steamer "now building near the town of Sarnia, on or before "the 1st day of March, A.D. 1882."

The specifications which, as appears above, are made a part of the contract, commence as follows: "Specifi- "cations of a compound engine and two cylinder "boilers to be built by George N. Oille, of the city of St. Catharines, for James H. Beatty, of the town of "Thorold, to be completed and set up in the vesgeA "now being cons: ructed at the town of Sarnia, and to "be in every way finished and furnished with all "things necessary aRd required for such a style of "engine and boilers and description of steamer; the material used in the engine and boilers shall be of the "very best quality and the work on the most improved and approved plans and best workmanship."

The appellant's defence was that default was made in the completion of the engine ; that Oille, in December, 1882, wholly abandoned the work; that the appellant was then obliged to finish it, and expended large sums of money in so doing; that by reason of the default of Oille the engine and boiler were not finished until the opening of navigation in 1883, and the appellant thus lost the profits which the boat would have earned in the season of 1882; that the work was performed by Oille in an unskilful, negligent and careless manner; that large sums had been expended by the appellant in remedying defects, and that it would be necessary to expend a still larger amount before the engine and boiler were brought to the standard called for by the contract; that the moneys expended by the appellant to complete the engine and boilers and remedy the defects and the loss by the delay and defective and negligent work were more than the amount of the plaintiff's claim, and the appellant counter-claimed for the balance.

The case came on before Mr. Justice Armour and a jury on the 17th and 18th January, 1885.

While the appellant was being examined at the trial the plaintiffs admitted his right to credit for the moneys expended by him in completing the work after it had been abandoned as aforesaid, and also a sum of between $200 and $300 which the appellant paid in replacing a portion of the machinery in which inferior material had been used, and the plaintiff's claim was thus reduced to the sum of $9,911.60, which sum, with interest to the date of the trial, making in all the sum of $10,329, was claimed by the plaintiffs when the case went to the jury.

The defendants applied to the Divisional Court for a new trial, which was refused, and on appeal to the Court of Appeal the judgment of the Divisional Court refusing the new trial was sustained.

The questions to be decided are: First-Was the work done according to contract ? And secondly-If not, is the defendant entitled to damages for the noncompletion and for the loss of what the vessel would have earned during the season?

The work was not finished until May, 1883. The season commences in May and ends in November. The date for completing the engine, namely, March 1st, was important, as it would leave two months to complete all arrangements and get the vessel ready by the first of May. The hull was ready to receive the boiler in December, 1881. The boiler was not commenced until June, and the engine until September, 1882.

Then the engine when finished was defective. reason why the boat was not given a higher speed than 11 or 12 miles an hour is, that the port or opening into the high-pressure engine from the boiler was too small. The same mistake was made between the highpressure and the low-pressure engine. The vacuum pipe also was too small and the hot well was so badly constructed that it burst.

A large outlay would be required to remedy these defects and make the boat fit for her business.

See Thomson v. South Eastern Ry. It is clear that we are entitled to damages for loss of what would be the ordinary use of what the plaintiff contracted to supply us with.

Cory v. Thames Iron Works and Ship Building Co. (2); Ex parte Cambrian Steamship Co. (3) ; Elbinger Actien Gessellschafft v. Armstrong (4); Roscoe's Nisi Prius (5); Benjamin on Sales (6); Hadley v. Baxendale (7).

Large profits might have been made out of this boat. See Fletcher v. Tayleur (8)

Then we are entitled to a new trial on the ground of misdirection.

White v. Crawford (9) and Hoyt v. Stockton (10) show that the observations of the judge to the jury on matters of fact will form ground for a new trial if the jury have been misled by them. See also Maddock v. Glass (11).

The objections to the judge's charge were not made at the trial and should not be considered here.

As to the claim that the engine was defective it is only necessary to refer to the evidence, which shows that the appellant tested it on two trial trips and made no objection then nor at any time until he put in his counter claim in 1884.

The vessel was kept running for a year, never losing a day, and was sold then for the full cost price, with $4,000 added for his personal superintendence in her construction.

In answer to the claim for damages for the non-completion according to contract, it is submitted that the defendant sustained no substantial injury thereby. The Q.

contractor for the hull failed in March, 1882, with $45,000 of work yet to be done. There is no evidence that the vessel would have been ready for sea if the 0 ". engine and boiler had been furnished. Defendant had no sale for the vessel until 1883, and could have done R nothing with her before.

The following authorities were also cited: Canada Central Ry. v. Murray (1) ; Connedicut Mutual Ins. Co. v. Moore (2) ; Cousins v. Merrill (3) ; Reg. v. Fick (4); Fitzpatrick v. Casselman (5).

Sir W. J. RITCHIE O.J.-There does not appear to havelbeen any misdirection in this case, and no objec tion was taken to the judge's charge. The questions raised were properly for the jury, who found in favor of the plaintiff with, evidently, the concurrence of the learned judge before whom the case was tried.

On a motion to the Divisional Court to set aside the verdict on the ground that the verdict, so far as it was in favor of the plaintiff on his statement of claim, was against law and evidence and the weight of evidence, and also so far as it related to the contention of the defendant, the court were of opinion that the finding of the jury ought not to be disturbed; that there was no miscarriage in the case upon any question of law-; that there was no objection to the judge's charge nor any room for objection; that though the impression on the mind of the learned judge was favorable to the plaintiff he presented the evidence fairly to the jury, and that his comments thereon seem to have been fully warranted; that though there was a technical breach of contract which might have entitled the defendant to have recovered nominal damages, yet that that was not a ground for interfering with a verdict when the jury i11 found, as they must be taken to have done in this case, that substantial damage had not flowed from the o breach, at which conclusion the court thought the jury were fully warranted in arriving; therefore the court refused to interfere with the verdict.

The defendant appealed from this decision of the Divisional Court to the Court of Appeal. That court was unanimously of opinion that though on his counter claim the defend-nt was in str ictness entitled to a finding in his favor for nominal damages for breach of contract as to the time appointed for finishing the work, yet the court would not disturb the verdict on that ground as " for a long series of years the courts have refused to disturb verdicts merely for the purpose or entering a nominal amount for either party, where no right was involved and the case sounded wholly in damages."

The court could not see that there was any misdirection, and concurred generally in the reasons for judgment in the court below discharging the rule against the verdict.

"The evidence " the court said "was, as usual, rather contradictory as to the character of the work done by plaintiff, but it was a fair question for the jury as to whether it fairly answered the contract and specifications," and the court would not say that the jury had arrived at an erroneous conclusion, and they thought it unlikely that any other jury to whom the case should be submitted would arrive at any different conclusion, and so dismissed the appeal, and so, I think, must we

I am far from being prepared to say that the jury and the courts below were wrong in the conclusions at which they arrived.

On the contrary, had I been on the jury I think I should have arrived at the same conclusion that the jury did.

FOURNIER, and JJ.-Concurred. GWYNNE J.-This action is brought by the executors of one Oille to recover a balance alleged to be due to them as such executors upon a contract made by their testator with the defendant for the construction and fitting of composite engines and boilers in a vessel wyne then being about to be built by the defendant. The plaintiffs in their statement of claim alleged the completion of the engines and boilers and the fitting the same in the vessel, and that after the completion of the vessel they were found, upon a trial trip, to work satisfactorily, whereupon, as the plaintiffs alleged, the balance of the contract price amounting to $14,5!0.00 ($12,000.00 having been paid during the progress of the work) became due and payable to the plaintiffs, as such executors, with interest.

The defendant in his statement of defence set out the contract whereby it appeared that Oille, in the month of May, 1881, had agreed with the defendant to construct the engines and boilers according to specifications annexed to the contract and to set up the same in a steam vessel then being built by the defendant at the town of Sarnia, on or before the lst day of March, 1882, and by the contract it was provided that the whole of the work on the engines and boilers should be pushed forward so as not to interfere with or delay the shipbuilders in their work, and that any change made in material, construction, and furnishing, required by the shipowner or the inspector, should be consistent with the said contract, and it was thereby agreed further that when the engines and boilers should be finished and set up in the vessel and everything finished and requirements met according to the contract and a satisfactory trial made by a round trip to Duluth and return, that then the shipowner should pay to the contractor in full of his contract the full sum of twentysix thousand five hundred dollars, but that should the contractor desire it he could draw money during the time of completing the contract to the amount of twelve thousand dollars. The defendant then alleged that Oille failed in completing the work by the time specified in -n Jthe contract, and that in the month of December, lc 82, the work being still unfinished, he wholly abandoned the work and left the same in an unfinished state, and that the work then done was not done according to the contract, and was unskilfully and negligently done and performed, and that after the abandonment of the said work by Oille the defendant was obliged to complete the same, and thereupon employed men and obtained materials for the purpose of completing said work, and had expended in such work and materials the sum of $7,000; that the said steamer had since the opening of navigation in the year 1883, and during the seasons of 1883 and 1884, been employed in running between Sarnia and Duluth, yet that no satisfactory trip had yet been made by reason of the said engine not working properly or satisfactorily; that the defendant had expended large sums of money in investigating and endeavouring to ascertain the defect in the construction of the said engine, and had ascertained that certain work in the construction of the said engine in the interior tbereof was performed by Oille not according to the specifications in the contract mentioned, but in an unskilful, careless and negligent manner, which work was, as the defendant alleged, recently and long after the opening of navigation for the year 1883, discovered by the defendant; and the defendant claimed that the plaintiffs' claim should be dismissed with costs. and by way of counter-claim the defendant claimed that he should be paid by the plaintiffs out of the assets of the estate of their testator, the said Oille, the damages which the defendant had sustained by reason of the default of the said Oille in not completing his said contract according'to the terms thereof, and for the loss which the defendant had sustained in being deprived of the earnings of his said steam vessel for Emrr the season of 1882, and for the loss and damage which the defendant had sustained by reason of the unskilfulness, neglect and careless work performed on said engine, as aforesaid.

The plaintiffs in their reply, among other things, alleged that the delay in completing the said contract was caused solely by the defendant and the persons employed by him to construct the hull of the said vessel, and they alleged further that during the progress of the said contract work the defendant made frequent changes therein and required the said Oille to alter the same in many particulars and vary from the said specifications, and also to do work not provided for by the said specifications, and thereby materially hindered and delayed the said Oille in his said contract work; and the plaintiffs submitted that by reason of such the conduct of the defendant, the said Oille was released from the obligation to complete the said work at the time specified in the contract; and the plaintiffs further alleged that the said specifications were prepared and the said engines and boilers and other work mentioned in the said contract were planned and designed by the defendant, and he personally superintended the said contract work during the progress thereof and that the same was done in all respects according to his instructions and directions, and they further alleged that a satisfactory trial trip was made after the completion of the said work, and that the defendant was satisfied therewith and made no complaints whatever respecting the same until shortly before the commencement of this action, and they denied that the defendant had suffered any damage whatever by reason of any default of the said Oille, or that he had sustained any loss whatever for which the said Oille was, or the plaintiffs as his executors are, responu sible. At the trial before Armour J. it appeared that the inspector referred to in the contract to superintend for the defendant the performance of the work was not ap- ~pointed by the defendant until the latter end of Novem- Jber, 1881. In a letter of the 21st of that month addressed by the defendant to Oille, he says:-" I have engaged "Mr. Thos. Pettigrew for one year at $1,0 '0 and board, " he to take charge of the work in your shop till the "engine and boiler are completed and set up, and then "he is to take charge of and run the engine till the "close of navigation, and he will be ready to com- "mence work next week.

Get your material and men "at once. Should the forging not be ready now, go to "Buffalo and see after it so that there may be no delay, "also all patterns and castings. In a word, the whole "work is to be shoved ahead. I hope you have ordered "the strap plates for the horizontal seams as they must "be triple riveted.

We have taken measures of the "hold and find the distance from the top of the boiler "to the top of the main deck, allowing six inches for "the saddle, to be 23 inches, and the throw down " should stand about six inches above the deck, say " whole length, 30 inches between boiler and dome. "Now there is another thing I wish to call your atten- "tion to, that is, the absolute necessity of making pro- "vision for a receiver over engine working at right " angles; this culd be dispensed with provided the " engine worked at opposite centres.

This must be " provided without fail.

How have you arranged in " regard to the small cylinder where the receiver was "intended to be?

Can you give me the size of the "engine on which you intend to have the steam lap "and exhaust pipe, with the distance the exhaust pipe "will be from the centre of the engine, giving size of "exhaust pipe and the inside and outside measures from "centre.

This we want, as we are laying our beams "and stringers. Please waite at once, give the size and "distance of exhaust pipe from cylinder."

It appeared from the evidence of Pettigrew, who had own. thus been engaged by the defendant to superintend the J. construction of the engines and to run he vessel when completed, that the defendant himself was backwards and forwards at the workshop where they were constructed 80 per cent. of the time during which the work was in progress, and yet during all that time he does not appear to have ever complained of the delay which had occurred in the construction of the engines or that the contract therefor had thereby been broken. He also gave evidence that the vessel made a satisfactory trial trip when finished, and that she ran 16 trips during the year 1883, during all of which trips the engines ran very fairly and were successful during the season.

In March, 1883, Oille, the contractor, died, and in June of that year, after the trial trip, one of the plaintiffs having written him a letter enquiring as to the working of the engines, the defendant in reply wrote the following letter, dated June 15th, 1883:- Sim,-I just letter, it but The defendant, however, never did subsequently correspond with the plaintiffs, or either of them, upon the subject. Pettigrew, who was the engineer who ran the vessel in 1883, upon this point said that the defendant applied to him for a report of the working of the engines, and although he saw the defendant upon the occasion of every trip that the only thing which passed between them upon the subject of the engines was when laying up the ves6el in the fall of the year 1883 the defendant came into the engine room and said that " there must be something wrong with the engine "because she was not coming up to his expectation, and "he asked me what was the matter.

I told him that "the proportions of the engines were the same as the "Euffalo engines, and that they did as good work as any boats that were going across the lakes."

He added, in his evidence, that he had got a speed of 11, 12 and 13 miles an hour out of the engines, and that he ran her at the speed which he found to be most eco- -nomical for her, which was upon an average 11 2 miles per hour.

It appeared, also, in evidence that the persons who had contracted to build the hull for the defendant failed, and in March, 1882, wholly abandoned their contract, after which time the defendant had to take the work into his own hands and was obliged to lay out in workmanship and material the sum of $45,000 to complete the vessel, of which sum the material which the defendant was obliged to purchase to complete the vessel cost from $10,000 to $15,000. The contention of the defendant upon this point was that although the contractors for construction of the hull did abandon their contract in March, 1882, still that the vessel had been sufficiently advanced to receive the machinery in the fall of 1881.

In answer to this contention the plaintiffs relied upon the defendant's letter of the 21st November, 1881; and, moreover, they contended that even if the jury should be of opinion that the hull was sufficiently advanced so as to receive the engines before the 1st March, 1882, still the noncompletion of the vessel so as to engage in the navigation of 1882 was not to be attributed to the delay in the completion of the engines, but to the delay occasioned by the failure of the contractors for the construc. tion of the hull, and in support of their contention that the defendant had not been damnified, as he claimed to be, by the delay in construction of the engines, from not having the use of the vessel during the period of navigation of 18c02, the plaintiffs relied . upon the following which appeared in evidence, namely, that the vessel was built by the defendant wholly upon the speculation of selling her to a certain company called the North-West Transport and Navigation Company, of which company the defendant was the principal stockholder, and that during the whole of the year 1882 that company refused to purchase or to have anything to do with the vessel, and so the plaintiff contended that it was for the jury to say whether the defendant had not for this reason taken the whole of the year 1882 to complete the vessel, and that he was in reality not damnified by the delay which had taken place in the construction of the engines.

Much evidence was entered into upon the question whether or not the engines and boilers had been constructed in accordance with the specifications, and as to the sufficiency of the work to meet the requirements of the contract, by which it was stipulated that the engines were to be built, according to the specifications annexed, with furnishings most complete and with cylindrical boilers built of the best boiler steel. The specifications appeared to have been drawn by the defendant himself, and not to have been altogether perfect, many things which as was contended by the defendant were necessary to make the engine complete and perfect not being specifically mentioned therein. During the examination of one of the witnesses, an expert, the learned judge before whom the case was tried made the observation that : " The question is, did this engine fill the specifications, to begin with, and as far as these speci- "fications do not specify, was it reasonably fit for the SUPRiiME COURT OF CANADA.

[VOL. X11. "purpose for which it was intended?" Andhe added: "If the man who ran the engine in 1883, says it is as VE.

good an engine as ever went into a ship, that would "be evidence to go to a jury to show that it was rea- J" sonably fit for the work."

No objection appears to have been taken to the correctness of this view, as to the question before the jury as to the sufficiency or insufficiency of the engine to meet the contract, the main ground of insufficiency relied upon by the defendant, was that the speed of the vessel did not come up to what was expected by him, which was from 13 to 14 miles per hour, and the evidence he relied upon on this point was that of an expert who had examined the vessel after the close of navigation of the year 1884, and who suggested considerable changes at a very large outlay with the view of increasing the speed of the vessel.

Whether the suggestions made by this witness were at all necessary and whether the alterations suggested were required by the contract was the subject of much criticism, and of evidence in contradiction offered by the plaintiffs, which latter evidence included that of the witness Pettigrew who inspected the whole of the work until the engines and boilers were fitted in the vessel, the part taken by the defendant in completing them being only to advance for materials and work a sum in excess of the $12,000 agreed to be paid during the progress of the work.

The learned judge no doubt, formed an opinion which the jury perceived to be unfavorable to the defendant, but he left the case to the jury with charge to which no objection whatever was taken either for misdirection or non-direction or for any other cause.

Nor was he asked to vary in any respect upon any point, the manner in which he left the case to the jury. His direction as to the rule of law as to the measure of damages applicable in cases of the nature of the present was not then nor has since been objected to.

A rule nisi for a new trial upon the ground of the verdict being against law and evidence and the weight of evidence, having been obtained, was, on argument, discharged by the Divisional Court, whose judgment has been unanimously sustained by the Court of Appeal for Ontario, the defendant has appealqd to this court, and in the argument before us the learned counsel for the defence und.ortook to est ab. lish, which he has failed to do, that these judgments are clearly errone)us.

Moore v. The Cunnecticut Ins. Co. (1) before the Privy Council, is an authority that even where a verdict is unsatisfactory in the opinion of a court before which it is reviewed as against law and evidence and the weight of evidence, which the verdict in this case does not appear to me to be, that is not sufficient to justify a court in granting a new trial. That in order to be justified in granting a new trial they must be satisfied that the evidence so strongly preponderates in favor of the party as to lead to the conclusion that the jury in finding for the other party have either wilfully disregarded the evidence or failed to understand or appreciate it. Consistently with this ruling, which is conclusively binding upon this court, there does not appear to be any foundation for the cor tention that the unanimous judgments of two court [VOL. All. upon the point in question should be rpversed. The appeal must, therefore, be di-missed-with costs. Appeal dismissed with costs Gwynrie J.

Unswrn-Contradictoqry overments in plea- Effect

obligations of-Arts. (P

ACTION-En reddition compte-Contradictory averments in plea-Rfect of-Unsworn account.] action reddition compte an assignor against assignee the assignee plea answered that was not bound to render an account, and at the time allged that already accounted for the moneys as garnishee another suit. but produced an unsworn account, and asked the court to clere the same to a true and faithful account of administration, and prayed for the dismissal the plaint'ff's action Held, reversing the judgment of the Court of Queen's dismissing the plaintiff's action,and restoring the judgmentof the Court of Review, thatalthough parties had joined issue heard witnesses to prove certain items the unsworn account produced, the plain'iff was first entitled to a judgment the court ordering the defendant to produce sworn account supported had

M&ice-- 2-hypothecarylor church rates-aUnder not appeilable

4-against account-Stock held in trust-Purchase of, bank -Arts. 2268,

(P.Q)-------------661

-With m'enicipality - Construction of trimway-Traction engine-Agreement to withdr sw and d scontinue use-Right use steam engine under.]

agreement was tered into under the authority of an Act the Parliament Ontario between the municipality and the Toronto Gravel and Concrete Company, under which the latter were to have a right to construct a tramway their gravel pits to the city

Toronto.

the clauses of the agreement was follows:-" soon as this agreement shall have been ratified the said corporation, the company shall forthwith withdraw their said traction engines the public highways of the said county, and shall discontinue along such public highways."

Under this clause the company claimed the right to put steam engines the roal over such piblie highway.

Held, affirming the judgment of the Court Appeal, that the of steam engines was an infraction of the said clause. land-Interest- APPEAL-42 -lypothecary actionfor church rates under not appealments of each was assessed certain property the Parish of the Nativity Toronto subsequently became propriethe payment of the first instalment said church rate, the Superior Court at held the of Toronto were liable; the Court Queen's (appeal thejudgment to the Supreme Court Canada, that the case did not ment Act, providing for appeals from the Province of and was not appealable. Tas or

2-from order in chambers rejusing writ ofhabeas corpus-Jurisdiction- Proceedings on-Penr issue writ of certiorari 3-in habeas corpus matter- Writ grante judge in chambers-bc. Supreme and chequer Court Writ improvidently issued- Juridiction court quash-Control its process-Criminal under - AWARD-Lans taken for railway purposes arbitration- Matters considerel arbitrators-Costs 2-Manicipal Construction of drain- Petitsonsfor-Benefit land in adjoining municipality-Arbitration onengineer's report-D"ty ARREST-On warrant magistrate after conviction-Application for writ of habeas corpus- TAXES-School taze8-32 P. Q.-Cons. Stats. ch 77-41 Vc. P.Q.-Construction

In an action brought appellants against the respondents to recover the TAXES.-Continued.

of for three years' school taxes imposed property occupied them as a situated one municipality, the products of which, with the exception of portion sold to cover the expenses oi, workinz and cultivating, were consumed at the mother house situated in another mmnicipality. Held, reversing the judgment of the court below, that as the property taxed was not occupied the respondents for the objects fir which they were instituted, but was held for the purpose deriving a revenue therefrom, it not within the exemptions taxation rates provided for of

Held, also, that said not extend, regards exemptions, of 15 the Stats. L.

which has not repealed, but which has amended the a'dition of Vic.

bs and Taxes-Cons. Stats. L.

and ( P.Q ) Art

P.Q.-Construction of.] Action the city of Montreal to recover the for asessment or taxes for the years and property in said city occupied the defendant.

The property set out the plaintiffs declaration was, during the time mentioned therein, occupied and used as a private boarding and school girls, kept and maintained the defendant, who employed divers teachers, and during that time had therean average, their education, as pupils, eighty-five girls per annum.

said institution never received any grant from the plaintiff. Held, Gwynne J. dissenting, that the said institution educational establishment within the meaning of ch. sec.

exempt municipal taxation.

3-Assessment real estate-In name occupier-Description as persons and property

Stats. (N B.) 16-Several selsments in warrant-One illegal assessment

-Warrant vitiated

Stats. of Brunswick relating to rates and taxes, provides that " real estate, where the assessors cannot obtain the names of any of the owners, shall rated the name the pier or person having ostensible control, but under such descriptions as persons and property * * as shall sufficient to indicate the property assessed, and the character which the person assessed."

owner of real estate in Westmoreland County, leaving widow administered to his estate and resided on the property.

perty was assessed several years in the name the estate of '. , and in it assessed the name of Widow

Held, affirm'ng the judgment of the court that the last named assessment was illegal, not comprissuch description persons and property would sufficient to indicate the property

TAXES.-Continued. assessed, and the character which the person was a warrant for the collection of a single sum rates several years, included the amount of an assessment which did not appear to against either the owner or the occupier the prope'rty, Heli the julgment of the court below, that the clusion of such assessment would vitiate. the warrant.

dunicipal Act-Construction of drain- Petitionfor-Benefit lands in adjoininq municipality-Assessment aljoining municipality/or-Report of engineer-Noe ASSIGNMENT-In trust mortgagor of goods 1 property insured against loss fire- Without written consent of company-Conditin in policy-Breach

FIE .

bill of lading-Property is under -Stoppage in transitu-Replevin

M the consignee, being the verge of insolvency, indorsed the bill of lai ig to McH. to secure accommodation acceptances. draw M. for the value of the consignment, but the draft was not accapted, and H. then directed the agent of the not deliver the goods. The goods been forwarded Picton, and the agent there telegraphed to the agent at Halifax hold them applied the agent at Halifax for the goods, and tendered the freight, but delivery was refused.

A replevin suit against the Halifax agent:-Held, affirming the judgment the court below, Henry dissenting, that the goods were sent to the agent at Picton to be forwarded, that had other interest them, or right duty connected with them, than to forward them their destinati and could not authorize agent at Halifax to retain them.

also, that whether or not a legal title to the passei to Mll. the position the agent retaining the goods was simply that efa wrongdoer, and had such an equitable interest in such goods, and right to the possession thereof, as would prevent the COLUMBIA-Constitution of Supreme

Court-Commission to judge presiding

Trial prisoner in-Practice

BY-LAW-Of municipality-Bonus railway- Premature consideratioa ef-Error in mitted ratepayers-Signing and sealing-To confirmed same council as that which it was first

2--Of corporation-To authorize purchase property of director- Ratification shoreholders-Vote of of property

MORTGAGE-Securitv for after acguared property-Agreement not to registertreat mortgagor-Leal. title trustee in goos mortqaged-Equitoble title of mortgagee-Priority ] the indebted the plaintiffsin of 58,000, chattel all in beingin ant Granville in city of Halitax;

further plaintiffs all which, during ofthe might for substitution in of in with which to plaintiff. of to plaintitff to in in at if instalment plaintiffs

It further the

D. that the credit D.

to to kept it not until of all to the in trust for of his creditors, trust

F.

of plaintiffs. took of the

Granville to plaintiffs, default having in plaintiffs brought this for suit delito plaintiffs small portion of the in which,

MORTGAGE.-Continued.

Hll, affirming of court Strong that legal title the V. prevail, plaintiffs' title merely eq-itable, 2- Interpleader issue-I solvent Co.-Chattel mortgage by-Preference other creditors- Intention prefer-fR. 0.

L. & B. in a large believing that their not allow their to to give of to return At of this action that getting from this creditor would to carry their failure. This not try title judgment that judgment division of court. Held, judgment of that fide that giving this getting of timeforpayment of plaintiffs' would their not a of not lent S. 0 of insured a breach of condition* in policy not to assign without consent [P.Q.1-Arts. and 83-&fatrimonial domicile-Declaration of act marriage-Civil

9'e

Arts. and obligations of-Action account

Arls. 2267-Malicious prosecution- Libel-Prescription fire insurance polict-not to assign property withost consent company- Breach

2 -in life insurance policy- Voluntary exposure to unnecessary danger-Death

3-in fire insurance policy-As subsequent insurance-A otice company-Waiverms Fire insurance policy-Avainst loss by ezplosion-Ezemptiou from liability

CONTRACT-Suretyship- Contract of with firm

-Continuing security to firm and member constituting firm for time being- Death ofpartner-Liability ofsurety alter] S.

security

0. & for to for time constituting

0. & tor firm of 0. & to long as mutually having will of latter into of continuel to of C & quently all their interest in joint

An action having against S. for

Q. after of :-Held, judgmentof of that firm of U. & put to contract sale of land-Sale agent-Instruct ions sell-Statute offrauds

4-Technical breach of-Defendant entitled to nominal damages for-Verdict for plaintif- New trial joint stock company- Subscription for stock-Payment services 644

CONVICTION-By magistrate-Inquiry into director company- Aarajication shareholders- rote owier of property director of joint compiny the of by-law authorizing the company property, ileld: illegal, not ratified of of at of ratificamajority director.

N.

--- --- .598

2-Joint stock company Contributorie8-Sub- CORPORATION.-Continued.

scription for stock-Paym at services ] act oficuorporation a joint '- that for valid until actually bond fide a attorner in of attorney ing : I ratify that attorney virtue not, in fact, but of U. in of a which having to C. on list contributories, in which that io credit professional to the having solicitor, that stock to for Held, affirming judgment the court J. that C. rightly list contributories. COSTS-f

Arbitration under Railway Lands taken for railway purposescrossing considered arbitrators - - COURT-Suprerne, British Columbia- Constitution of-Commission judge presiding ovr- Trial

LAW-Administration of-In Supreme Court of British Columbia-Consttu',on court-Commission presiding judge- Trial ofprisoner-Change venue-Order for-Provisionfor increased expenses-32-33 (D)-Practice.

DAMAGES-Action contract-Defendant titled nominal damages for technical breachtrial

DECLARATION-In act of marriage-Mlatrimonial domicile-Civil status.-Arts. DIRECTOR-Of company-Sale company property of-Ratification shareholders- DOMICILE-Matrimonial-Declaration in act of marriage-Civil status-Arts. (P.

In or about a native of Ireland, of In out for in while in in habit with of timber, DOMCILE.-Continued.

engaged to married to one the widow of one in his lifetime of Upoer Canada.

W. was married to the widow in the month

September and shortly after marriage he returned to the Bonnechhre to carry lumbering operations there as formerly, and way up left his and daughter in the neighborhood of Aylmer, Lower Canada. In the winter came down for her and brought to his on the Bonnechbre and lived there for or years and acquired considerable wealth.

declared the presence of the priest who performed the ceremony that he was journalier la Province and was described in the certificate marriage.

M. having died without will married again, and his will left his property to his second the appellant.

The respondents, their action, claimed there was community property between M. their grandmothei, and W. according to the laws of Lower Canand demanded their share of it in right heirship. The appellant disputed this claim, contending there was no community. Held, reversing the judgment of the court below,

. that the facts of the present case were not to prove that had acquired domicile in the

Province of at the time of this marriage.

Also, that the certificate, acte mariage, has only relation to residence connection with matrimonial domicile, and therefore has relation to the ceremony of marriage and its validity alone, and not to domicile in reference to the civil status the parties.

Commissioners,

Powers of-Decision of Superintendent ofEduto-Mandamus.

----- EVIDENCE-On proceedings magistrate-Inquiry into an habeas corpus-Jurisdic- PREFERENCE-Insolvent

Chattel mortgage - Intention to prefer - O

Certiorari- Jurisdiction

Supreme and Exchequer Court Act,

R S. 0. ch.

Application was made to the

Cb-f Justice the Supreme Court of Canada iH Chambers, behalf ofa person arrested on a warrant issued a conviction magistrate, for a writ of habeas corpus, and for a certiorari to bring up the proceedings before the magistrate, the application being based the lack of evidence to warrant the conviction. The full court :-Held, Henry J. dissenting, that the

CORPUS.-Continued.

conviction having been regular, and made a court in the unquestionable exercise of its authority and acting within its jurisdiction, the only objection being that the magistrate erred the facts and that the evidence did not justify the conclusion at which arrived as to the guilt of the prisoner, the Supreme Court could not go behind the conviction and inquire into the merits of the the use of a writ of habeas and thus constitute itself a court of appeal the magistrate's decision.- The only appellate power conferred on the court in criminal the 49th section the Supreme and Exchequer Court Act, and could not have been the intention of the legielature, while limiting appeals in criminal cases the highest importance, to impose on the court the duty of revisal in matters of fact all the summary convictions before police other magistrates throughout the Dominion.- Section of the Supreme Court Amendment Act of does not in any case authorize the issue of a writ of certiorari to accompany a writ habeas corpus granted by a judge of the Supreme Court chambers; and as the proceedings the court on habeas corpus arising out of a criminal charge are only by way of appeal from the decision of said judge in chambers, the said section does not authorize the court to issue a writ of certiorari in proceedings;

to would to assume aupellate jurisdiction over the inferior court. per Ritchie C.J., that ch. of the Revised Statutes Ontario relating to habeas corpus does not apply to the Supreme Court 2-Granted judge in chambers-Appeal under Supreme and Exchequer Act- Writ improvidently issued-Jurisdiction of court of court its processriminal under 51-Supreme Court British Columbia-Constitution of-Commission judge presiding over-Trial of prisoner in-Order change venue-Provision for increased expenses-Practice

Section the Supreme and Exchequer Court Act does not interfere with the inherent right which the every superior court, has incident to its jurisdiction to enquire into and judge of the regularity abuse of its process, to quash a writ of habeas corpus and subsequent proceedings thereon when, in the opinion of the court, such writ has been improvidently issued a judge of said court.-The said section does not constitute the individual judges the Supreme Court of Canada separate and independent courts, nor confer on the judges a jurisdiction outside and independent of the court, and obedience to a writ issued under said section cannot enforced the judge but the court, which alone an attachment contempt in not obeying its process (Fournier and Henry JJ. dissenting).-Per Strong J.- The words of section expressly giving appeal when the writ of habeas corpus has CORPUS.-Continued.

refused the prisoner remanded, must attributed to the excessive caution of the legislature to provide all due protection to the subject the matter personal liberty, and not to intention to deprive the court of the right to entertain appeals andrevise, rescind and vary,orders made under this section.-The right to issue a writ habeas corpus being limited section to "an inquiry into the cause commitment in any criminal under act of the Parliament of Canada," such writ cannot issued in a case of murder, which a case at law. (Fournier and Henry

.)-Per Fournier and Henry JJ.

dissenting :-The restriction imposed section

" inquiry into the cause of commitment in any criminal case under any Act the

Parliament of Canada " merely intended to exclude any enquiry into the cause commitment for the infraction of provincial law; and the words "in any criminal case " were inserted to exclude the habeas pus in civil matters; it is sufficient to give jurisdiction if the commitment in virtue an act of the Parliament of Canada.

Query-Is section of the Supreme and

Exchequer Court Act ultra vires ?

Semble, that when a judge in province has the right to issue a writ of habeas corpus returnable in term well as in vacation, judge of the Supreme Court might make the writ he authorizes returnable in said court in term as as immediately (Fournier and Henry JJ.

dissenting).-An application to the court to quash a writ of habeas corpus as improvidently issued may entertained in the absence the prisoner (Henry J. dissenting).-After a conviction for a felony court having general jurisdiction over the charged, writ of habeas corpus an inappropriate remedy.-If the record a superior court, produced on an application for a writ of habeas corpus, contains the recital of facts requisite to jurisdiction it conclusive and cannot contradicted extrinsic evidence (Henry J. dissenting).-A return the sheriff to the writ setting out such conviction and sentence and the affirmation thereof the court error is a good and sufficient return. If actually written him or under direction the return need not signed the sheriff (Henry J. dissenting).-The Supreme Court of British Columbia is clothed with all the powers and jurisdiction, civil and criminal, necessary or essential to the full and perfect administration of justice, civil or criminal, in the province; powers full and ample as those known to the law and possessed the superior courts of England.-The various statutes of British Columbia providing for the holding of courts of and terminer and general gaol delivery render unnecessary a commission to the presiding judge.-Per Strong J. :-The power of issuing a if necessary, belonged to the

Lieutenant Governor of the province (Henry J.

contra).-An made pursuant to Dominion

CORPUS.-Continued.

statute and directing a change of venue, would sufficient although containing no reference to any provision expenses, when the indictment has pleaded to and the trial proceeded with without objection, and even in a court of error there could no valid objection to conviction founded on such order.-Even if the writ of habeas corpus in this case had rightly issued, the prisoner on the materials before the judge was not entitled to his discharge, but should have been remanded. Inre INSOLVENCY-Insolvent Co.-Chattel mortgage by-Preference-Intention prefer-R. 0. 1 75-Sec. Sureties, liability Held, that where an cial assignee under the Indolvent Act of has capacity, and subsequently the creditors have, resolution passed at meeting the creditors, continued as assignee to the estate without exacting any further security, and while acting such assignee makes default to account for moneys of the estate, the creditors have recourse upon the bond given for the due performance his duties as FIRE-Condition in policy-Not to assign without written consent of company- Breach of condition-Chattel mortgage.] Where a policy of insurance against loss or damage contained the following provision:-" the property insured assigned without the written consent the company at the head endorsed hereon, signed the secretary or assistant secretary of the company, this policy shall thereby become void, and all liaility of the company shall thenceforth Held, affirming the judgment of the court below, that chattel mortgage of the property insured was not an assignment within the meaning Ts

Condition in policy insurance-Notice to company-Waiver.] policy insurance against loss contained the following condition :-"In of subsequent assurance on interest in property assured this company (whether the interest assured the as that assured this company not) notice thereof must given in writing once, and such subsequent assurance endorsed the policy granted this company, otherwise acknowledged writing; in default whereof such policy shall thenceforth and of no effect."

insured effected subsequent insurance and verbally notified the agent, but there was no indorsement made the policy, nor any acknowledgment in writing the company.

loss having occurred, the damage was adjusted the inspector of the company, and neither nor the agent, made FIRE.-Continued.

compliance with the condition.

a to recover the amount of the policy the pany pleaded breach of the condition, in reto which the plaintiff set a waiver the condition and contended that the act of the agent and inspector the company were estopped from setting it up

Held, reversing the judgment of the court below, that the insured not having complied with the dition the policy ceased and became of no the subsequent insurance being and that neither the agent nor the inspector had power to waive a compliance with its terms.

AssoicE e.

3-Condition in policy-Loss explosion- Loss fire caused explosion-Exemption from liability.] policy of insurance against contained a condition that " the company will make a loss caused the explosion of coal gas in a building notforming part of works, and loss caused other or lightning." loss occurred the dropping of a match into a keg of gunpowder the premises insured, the damage being partly occasioned the explosion the gunpowder, and partly the gunpowder setting to the stock insured. company admitted their liability the damage caused but not for that caused the explosion. Held, reversing the decision of the Court of Appeal, Taschereau J. dubitante, that the company were not exempt the condition the policy liability for damage caused the explosion.

LIFE- Policy-Condition untary exposure unnecessary danger.] The plaintiff (appellant) brought an action to cover upon policy of insurance effected the respondents upon the of her deceased husband, J. who met his death during the carrency of the policy from being run over a train of cars upon of the lines of the Northern Railway through the company's yard at

Toronto. In answer to the plaintiff's claim the respondents, amongst other defences, their fourth plea invoked a condition to which the.

policy sued on was subject, to wit :-"No claim shall made under this policy when the death or injury may have happened in consequence unnecessary danger, hazard perilous adventure."

The uncontradicted evidence was that the deceased was killed train coming against the vehicle in which was driving alone dark night in what was called a net-work of railway tracks in the company's station yard at Toronto, at place where there was road-way for carriages.

Held, ing the judgment of the court below, that the undisputed facts established the plaintiff showed " that the deceased to his death in consequence of voluntary exposure to unnecessary danger," and that therefore respondents were entitled to non-suit.

INTERPLEADER-Insolvent Co.-Chattel mortgage by-Preference-Intention to prefer.- 532 JURISDICTION-of court in habeas corpus matters- Conviction magistrate-Going hind conviction-Inquiry as to evidence- Supreme and Exchequer Court Act, See 1.

court to quash writ of habeas corpus when improvidently issued order judge in chambers-Control ofcourt its process Supreme and Exchequer Court Act- Criminal or

LIBEL-Action for-Malicious prosecution- Arts.

LIMITATIONS-Statute of

and2267C.0. -Proceedings instituted remove plaintiffrom position of Commissioner of Expropriations.] the April, and two others, and were named joint commissioners to name the amount which should accorded expropriation of property required for widening of the streets in the city Montreal. the August, the appellants, in consequence of award made in reference to said property, passed resolution charging him with fraud and partiality, and an application was made on their behalf to the Superior Court to have him removed from the commissioner.

the September, the conclusions of the petition were granted the ground that the commissioners mitted error of judgment in the execution their duty commissioners, and had proceeded on a wrong principle in estimating the amount payable for the expropriation.

The charges fraud and partiality were held unfounded. the 20th of September, the Court Queen's far Lower Canada (appeal side) re-instated the said and in their position as commissioners.

the 4th November, this judgment was the Privy Council.

In 8. brought an action against the defendants for damages which he alleged he had in consequence of his having been unjustly removed tae appellants from the position commissioner. The respondents, widow and daughter of the late became plaintiffs par reprise d'instance. appellants pleaded that the action was barred under Arts. and C.0. Superior Court dismissed the action on the but the Court of Queen's Bench (appeal side) reversed the judgment and allowed damages to the respondents. Beld, on appeal to the Supreme Court Canada, affirming the judgment of the Court Queen's Bench, Fournier J. dissenting, that the INI)EX.

PROSECUTION.-Continued.

CORPORATIO.-Continue. action was not an action merely the libel authorizing the work to done according to contained in the resolution of the 7th August, the terms of such agreement. municpality but for malicious prosecution in followof Parkdale then contracted fr ing that resolution proceedings instituted the construction the subway, and by-law the courts maliciously and without any just providing for the raising of Parkdale's share cause, and prescription did not begin to run the cost of construction was submitted and until the termination of proceedings. The approved of the ratepayers that municiaction, therefore, and judgment for damages palty.

In an action the owner of property should sustained, no objection having been injured the work

Held,-Per Ritchie raised thattheaction was prematurely brought.

Fournier and Henry .1., that the was Per Strong J.-Following the practice adopted not done the municipality under the special in the Court of Queen's Bench Lower Canact, nor merely agent ef the railway ada, where they either increase or lessen the anies, and the municipality therefore amount of damages according to their appreciliable a wrongdoer.-Per Gwynne 3.-That ation of the facts, the damages this case the work should considered having should increased to

On done under the special act, and the plaintiffs were entitled to compensation thereunder. -Per MANDAMUS-School Commissioners, Province Taschereau J.-That the work the ofMANDAM-Soof municipality as agent of the railway companies cation-Decision

WS sioners-Appealfrom decision.

&e accun-Ats

.

Assessment on adoining municipality.] Under See ~iNOi'A

2.the drainage clauses the Municipal a MARRIAGE-Declarations in act of-Afatri.

by-law was passed by'the township of Chatham monial domicile-Civil Status-Arts.

founded on the report, plans and specifications with aviewto the drainage that township.

The by-law, CODE-Province of Quebec-Art. ater setting out the fact of petition Construction of.

work having signed majority the of the township to be benefited by tewrk, recited the report the CORPORATION-Construction of h it appeared that order to obtain a subway by-Authorized special statute-46 it was necessary continue the (Ont.)-Agreement with Railway drain into the adjoining township of Companies-Order in Council under

The surveyor certain lots and roads (D.)-Work as agents of companies and the town line between or as principal-Injury property construeand Chatham, for part of the cost tion of subway-Corporation a wrongdoer.]

to derived the lots and roads therespecial statute in Ontario Vic. authtownship Dover appealed this orized the municipalities of the city Toronto report, under of the and the village Parkdale, jointly or separgroundt, inter alia, that majority the ately, and the railway companies whose lines owners of property of railway ran into the city of Toronto, to agree posed drainage works had not petitioned the together for the construction railway subconstruction such work as required ways; provision was made in the Act for the statute; that proper reports, plans, issue debentures to provide the cost of cations, assessments and estimates of said prothe work, and the by-law for the of such posed work had made and served as debentures was not required to be submitted to required bylaw; that the Council of Chatham, the ratepayers ; there was also provision for the surveyor, had no power to compensation to the owners of property injurcharge the lands the purposes iously such work, such compenstated the said report and by-law ; and that sation to determined arbitration under the report did not any to that the Municipal Act if notimutually agreed upon.

the Council of Chatham, their surveyor, had The municipalities not being able to agree, any authority to the lots roads Parkdale and the railway companies entered

Dover any part the cost of the proposed into an agreement to have subway constructed work; that the assessment lots and roads at theirjoint but under the direction was much too high proportion of the municipality and its engineer, and the any benefit to derived the proposed application of Parkdale and the railway work, and that no assessment whatever should panies to the Privy Council of Canada, purportmade lands or roads Dover the ing to made under Vic. ch. an work would, in fact, an injury thereto order the Privy Council was obtained and that the rport did not sufficiently specify CORPORATION.-Continued.

the beginning and end of the work, nor the manner which Dover was to benefited.

Three arbitrators were appointed unler the provisions of the act, and at their last meeting they all agreed that the township of would benefited the work, but one of the arbitrators, thought should taken the town line, another of the arbitrators, held that while the bulk sum a-sessed was not too great, the assessment the respective lands and roads, and parts thereof, should varied, but that this was a matter the Court of Revision.

randum to this was signed and the third arbitrator, at the foot which F. signed a memorandum that he dissented and declined to present at the adjourned meeting to sign the award, accordance with the above memoranda."

Later, the and and signed an award determining that the assessment the lands and roads in Dover, and the town line, made the surveyor, should sustained and confirmed, and that the appeal should be dismissed, and that the several grounds mentioned in the notice appeal had not been sustained.

The Queen's set aside this award on the two grounds, namely, of want concurring minds in the arbitrators, and of defect in the surveyor's report in not showing specifically the beginning and end the work. The judgment the Queen's was sustained the Court of Appeal.

appeal to the

Supreme Court of Canada:-Held, Ritchie dissenting, that the award should have set aside upon the ground that it was not shown that petition for the proposed work was signed a majority of the owners of the property benefited thereby, as to give to the corporation Chatham jurisdiction to enter the township of Dover and any work therein.-That the arbitrators should have adjudicated, upon the merits the appeal, against the several assessments the lots roads assessed, their award was, secs.

and of Vic. ch. made subject to appeal only to the High Court of Judicature, and it was not matter for the Court

Revision to deal with at all as held the arbitrators.-That the award should have set aside because it in point of fact, it stood, profess to a adjudication against the township Dover upon all the grounds appeal stated in the notice of appeal, and did, point fact, charge every one the lots and roads assessed with the preamount assessed upon them respectively, although, a minute the proceedings of the arbitrators who signed the award, it appeared that they refused to render any award such point and expressed their intention to be to submit that to the Court of Revision.-That the arbitrators should have allowed the appeal to them against the surveyor's assessment, and that their award should also have also been aside on the merits, because the evidence not only failed to show any benefit which the lots or roads in Dover which were assessed would receive the proposed work, but the evidence of the surveyor himself showed that he did not assess them for any benefit the work would confer upon them, but for reasons of own which were not sufficient under the statute and did not warrant them to assessed. 3-By-law-36 (0.)-Bonus to railway-Vote of ratepayers by-law for-Premature consideration by-law-Error in submitted to ratepayers-Signing and sealing law-To passed council by-law was submitted to the council of the city of 0., under Vic. for the purpose of granting a bonus to railway then in course of construction, and after consideration the council it was ordered to submitted to the ratepayers their vote.

the notice published in cordance with the provisions of the statute by-law was to taken into consideration the council after one month from its publication the 24th of September, The vote of the ratepayers was favor of the by-law, and 20th October a motion was made in the council that it read a second and third time, which was carried, and the law passed.

mayor of the council, however, refused to sign it, the ground that its consideration was premature; and on 5th vember the same motion was made and the by-law was rejected.

Nothing was done the matter until April, when a motion was again made before the council that such by-law read second and third time, which motion was, this occasion, carried. At this meeting a copy only of the by-law was before the council, the original having been mislaid, and it was not until after the commencement this suit. When it was found it was discovered that the voted on the ratepayers contained, mistake of the printers, a date the by-law to into operation different from that the original.

action was brought against the corporation the city of 0. the delivery of the debentures provided for the by-law, in which suit the question of the validity the whole proceedings was raised.

Held, affirming the judgment of the court below-1. That the vote of 20th November, was premature, and not conformity with the provisions of the Municipal Act; that the mayor properly refused to sign it, and that without such signature the by-law was invalid under That the council had power to consider the law 5th November, and the matter was then disposed

That the proceedings 7th April, were void for two reasons. that the by-law was not considered the council to which it was submitted as provided which to construed meaning the council elected for the year and not the same corporation; and the other reason that the by-law passed in was not the same that submitted, there being difference in the dates.

that the functions of a municipality in considering a by-law after has voted the ratepayers are not ministerial only, but the by-law can conor rejected irrespective of the favorable vote.

CO.

verdict was found the plaintiff and a rule for a new trial was refused the Divisional Court, and also the Court of Appeal. Held, affirming the decision of the

Court of Appeal, that a verdict would not set aside merely to enter verdict for the other party for nominal damages.

NOTICE-By policy holder company of subsequent insurance-Condition in policy

Waiver

---- -- PARTNERSHIP-Dissolution of, death partner-Liability of surety to, after dissolution security

PLEA-in action reddition compte-Con tradictory averments in-Efect of-Oneworn account - --- -- POLICY-of insurance against fire-Condition in

-Not assign without written consent pany-Breach insurance against fire-Condition in-As to subsequent insurance-Notice company- Waiver ----fire insurance-Condition as explosion-Exemption from liability

2-In habeas corpus matter-Writ granted judge in chambers-Jurisdiction of court quash-Control oer its process-See

PRACTICE.-Continuel.

reme and Exchequer Court Act-Criminal law- Trialfor murder in court of and terminer, British Columbia-Order to change venue-Provision for increased expense-32-33 cap. 29 PREFERENCE-Insolvent Co.-Chattel mortgage by-Intention prefer-R. S. 0. ch - - - - - PRESCRIPTION-Action for libel-Malicious PRINCIPAL AGENT-Agent-Sale Duty of, under instructions to sell lands- Vendor and purchaser-Contract not binding under Statute of Frauds-Commission-Mistrial.] et al, the appellants, real estate brokers at Winnipeg, received verbal instructions from the respondents to sell certain lands of theirs at certain price and terms of meat. al. sold the land at the price named, receiving the purchasers the of as a deposit on account the purchase money, and giving therefor a receipt. Prior to the expiration the delay within which the balance of the purchase money was to paid, the purchasers refused to complete their purchase for want of title in the respondents to certain portion of the land, and contended that from the absence of writing signed them they could not compelled to The appellants then brought an action for mission upon the entire purchase money. The respondents set up the defence that the appellants promised to sell the said lands and to complete such sale preparing the necessary agreement in writing to make binding tract with the purchasers.

The came for trial jury who followed the charge of the Chief Justice, and found a verdict favor of the appellants for the fall amount their claim, thereby giving them per cent. upon the entire purchase money of both parcels ofland. The jury were not asked the judge to pronounce upon the nature of the terms upon which appellants were employed, upon the question whether the sale went through the neglect of the appellants to take a writing binding the purchasers, or whether it went reason of the vendors not being able to plete the title, or because they were unwilling to In review before the full court a judgment was rendered directing that the verdict should reduced to being mission at the rate of per cent. the actually paid, or, the alternative, that there should a new trial. Held, affirming the judgment of the court below, Strong J. senting, that there had been mis-trial, therefore the order for a new trial should appellants have the alternative reducing his verdict to

Per Henry J.- It was the duty of the appellants to take the purchasers a binding agreement under the AGENT.-Continued.

statute, and having neglected to do they were not entitled to any compensation.

2-Stock held in trust-Purchase of a bank

-Effect of-Mandatory and pledgee, obligations of a-Action to account-Arts. C.C.

(P. Q.)]

brought an action against the of Montreal to recover the value stock the

Montreal Rolling Company, transferred to the bank under the following circumstances:

S.'s money was originally sent out from England to J. at Montreal, to invested

Canada her

J subscribed for certain amount of stock the Montreal Rolling without naming for whom, and paid for it with

S.'s money.

subsequently sent over the certificates of stock to and paid her the divi-.

dends received on the stock.

indebted to the Montreal, transferred to the manager of the bank, as security for indebtedness, shares of the Montreal

Rolling Company, and the transfer on its that held these shares "in trust."

The of Montreal then received the dividends on these shares, and credited them to who paid them to J. subsequently became insolvent, and S., not receiving her dividends as usual, sued the bank for an account. Held, reversing the judgment of the court below,

Strong dissenting, that there was to show that J. was acting as the mandatary or agent of and the Bank Montreal, not having shown that J. had authority to sell or pledge the said stock, was entitled to an account from the bank. v.

3-Construction of subway municipality- Special statute-Agreement with railway nses-Aunicipality agent of or pri-cipal-Injury

PRIORITY-of title to mortgaged-Security for after acquired property-Assignment in trust mortgagor-Legal title of trustee- Equitable

Lands taken for railway purposes-Arbitration

-Award-Matters considered arbitrators- Costs railway company, having taken certain lands for the purposes of their railway, made an to the owner in payment of the which was not accepted and the matter was referred to arbitration under the

Consolidated Railway Ast, the day that the arbitrators met, the company executed in addition to the money payment, and it appeared that the arbitrators took the matter the crossing into consideration in making their award. The amount of the award was less than the sum the company, and both parties claimed to entitled to the costs the

COS.-Continued. arbitration, the company because the award less than their r, and the owner because the value of the crossing was included in the awarded which would make it greater than Beld, affirming the judgment of the Court Appeal, Gwynne J. dissenting, that under the circumstances neither party was entitled to

2-Agreement with municipality for construction of subway-Order in Council under Vic. cap. (D )-Work done municipality agent of companies or as principal-Infory to property constructiort of subway-Corpora 3-Bonus to-Action against municipality for-Illegal by-law granting bonus.

Subsequently, on June, notarial deed, transferred to the respondent the balance alleged to due under the deed the 98th June, and the respondent brought an action recover this balance with interest 1st July, to the December, date of the action. To this action the appellants pleaded, inter alga, that under the deed of the 28th June, interest could demanded only the let July, the secretary of the company having said date testified for the first time there was available surplus; and also that both principal and interest were compensated the of$1,901.70 paid the city assessments imposed under and Vic. the cost of public improvements made in the vicinity the property prior to the sale of the property to the company in

The assessment rolls originally made for these improvements were set aside two judgments .733 INI)EX.

LAND.-Continued.

and affirming the judgment the court below, that under the circumstances the respondent couldnot be said to the garant the purchasers of the said property, and therewas entitled to the payment of the balance alleged to due under the deed of the

28th June. notwithstanding any claim the appellants might have against their vendors under the general warranty stipulated in the deed purchase of April,

Held, also, that the terms of the deed the

June, interest could recovered only lstof

COMMISSIONERS-Province of Quebec-Powers of-Con. State. L. ch.

and 33-40 ch. P.Q -Construction of-33 ch. 25sec. 7 P.Q.-Erection of a school house-Decision of superintendent- Mandamus Under ch. the

Superintendent of Education for the province of Quebec, an appeal to him the decision of the School Commissioners of St. Valentin, ordered that the district the municipality of St. Valentin should divided into two districts with a school house in each.

The School Commissioners resolution subsequently decreed the division, and days later, on petition being presented ratepayers protesting against the division, they passed another resolution refusing to entertain the petition. Later on, without having taken any steps to put into execution the decision of the

Superintendent, they passed another resolution declaring that the district should not divided as ordered the Superintendent, but should re-united into one. In answer to a peremptory writ of mandamus granted the

Superior Court ordering the School Commissioners to put into execution the decision of the

Superintendent Education, the School Commissioners (respondents) contended that they had acted on decision approving of it, and that the law stood they had power and authority to re-unite the two districts the petition of a majority the ratepayers, and that their last resolution was valid until aside an appeal to the Superintendent. Held, reversing the judgment the court below, that the Commissioners having acted under authority conferred upon them Stats.

L. C. and and an appeal having been made to the Superintendent

Education, his decision the matter

(;0 P.Q.), and could only the Superintendent himself an application made to him under

7 ; and, therefore, that the peremptory mandamus ordering the respondents to execute the Superintendent's decision should issue

FRAUDS-Contract not binding under-Sale agent-Duty of agent under- Instructions sell* lands-Vendor and purchaser - - - - - - LIMITATIONS-Conveyance to trustees-in trust for tenant for life-Remainder joint tenants or tenants in common-Possession tenant for life.]

to trustees two lots of land were conveyed trust for her with remainder lows :-Lot 2 to and lot 1 to A. to the of them, their heirs and assigns, joint tenants and not as tenants the tenant for entered into possession lot and put her the husband of the defendant, into possession without exacting any rent. The died a months after, and the defendant, his widow, continued possession of the lot, and was possession in when the tenant A. the plaintiff, obtained of the legal estate in the two lots from the executors of the surviving trustee having died a number years before) and brought an action against the defendant for the recovery the said lot

Held, that there was no time prior to the death ot the tenant for when either the trustee or the mainder-man could have interfered with the possession of the said lot, the statute of limitations not begin to run against the remainder-man until the death the tenant for in and was therefore eutitled to recover. Held, also, that for the purpose of the said action it was immaterial whether the plaintiff was entitled to the whole lot survivorship on the termination of the joint-tenancy the death of his brother, or only to his portion the lot as his brother's heirs. -5--- 45,384 1, 2-Construction of-School commission, Province of powers of-Decision Superintendent of Education-Obedience

3-32-33 - 5-38 - 48(0.)

Conrus 1.

STATUTEJ.-Continued.

13-C. L. (P.Q.) 546

14-0.

L. (P.Q.)

18-41

(ir-Payment services-Contra butory m -Held as investment or principal- Pledged to in trust-Action account- IN TRANSITU-Bill of lading-Asof--Property under replevin

1875-fficial assignee-Laability of sureties for default of prie.firm-Liability after death of partner-Continuing security

ENGINE-Definition of-Agreement to discontinue of-8team included

---- - - - TRUSTEE-Of debtor for of creditor- Legal oin goods mortgaged-Equitable4itle ofmortgagor-Priority

2-Convegance to-In trust for tenant for life -Remainder to joint tenants or tenants in conmon-Posseesson tenantfor life

3-Stock held by-Purchase of bank-E'ect of-Mandatary and pledgee-Obligations o Action account-Arts. C. (P.Q)